Summary: We found fault on Mrs B’s complaint about the Council failing to award her the correct housing banding. When it decided her requests for medical priority for her husband, it failed to explain its decision or give reasons. It also failed to consider its discretionary powers when it decided her request for separate space for her disabled husband. The agreed action remedies the injustice caused.

The complaint

1. Mrs B complains about the Council failing to award her the correct banding under its housing allocation scheme despite all the medical evidence she sent it about her family’s needs: as a result, she remains in accommodation that does not meet the family’s needs.

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What I have and have not investigated

2. I have not investigated the following:

• Events before 30 November 2022 about the removal of her from its direct offers list or the connected appeal. This is because we investigated this, and a final decision was issued on the complaint on 30 November 2022 (22 007 318).
• Any complaint she had about the Council’s handling of her housing application for medical priority before 17 August 2022. This is because we investigated this complaint and issued a decision on it on this date (21 016 100).

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The Ombudsman’s role and powers

3. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

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The Council’s Housing Allocation Scheme (2019)

5. When an applicant makes an application, the Council decides whether they are eligible and qualify. It then considers the bedroom need and the entitlement to a priority.
6. It has an Accessible Housing Register (AHR) alongside the Housing waiting list. It records the details of waiting list applicants who have been awarded a priority, or need, for adapted properties. Applicants on this register are helped by officers to look for adapted properties meeting their needs.
7. The Council will prioritise applications. It has five bands (Band 1 is for those with the highest priority who have an urgent need to move, and Band 5 for the lowest).
8. Band 2 includes those with medical priority 1 (this is for those where an applicant’s quality of life is compromised because of current housing). Medical priority 1 is only awarded where the medical condition is severe or chronic and is affected by their current accommodation.
9. Band 2 also recognises cumulative need where an applicant meets the criteria for more than one reasonable preference group (Band 3) and an additional priority is awarded.
10. Band 3 includes those with medical priority 2 (this is where an applicant’s quality of life is compromised but they do not meet the criteria for the higher, level 1 priority).
11. Where the number of bedrooms is short by two or more bedrooms under its bedroom entitlement standard, an applicant is placed in Band 3 to recognise overcrowding.

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How I considered this complaint

12. I considered all the information Mrs B sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mrs B and the Council.

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What I found

13. Mrs B has lived in their two-bedroom house for the last ten years with her husband, and two young children who share a bedroom. One of her daughters has needed her own room because of her health needs for the last five years. She also argued her husband needs additional space where he can go to be on his own and calm down as his disability means he has anger episodes.
14. In 2018, the Council gave them Band 3 (medical priority 2) as they need a three-bedroom property with her daughter having her own bedroom. Due to her husband’s health needs, they need a property no higher than the first floor, with a garden, or access to a park. Mr B also needs a bath with a shower and grab rails. Mrs B believes they should be in a higher band.
15. The Council placed her on the AHR in December 2022 based on an occupational therapist report about Mr B’s needs.
16. These are key dates:

2022:

• August: Mrs B was told she needed to send new medical information for there to be a further medical assessment after she completed its questionnaire for medical banding. In the questionnaire, she noted Mr B had a weaker left side and gets dizzy, dizzy when climbing steps, and loses his balance a lot of the time. She also stated he needed his own space in which to calm down as he gets confused and angry quickly.
• September: The Council told her (decision 1) an independent medical service considered her request for priority banding on medical grounds. The Council said after receiving the recommendation from the service, it decided the accommodation was suitable on medical grounds for Mr B and would not award the priority she wanted on medical grounds. She remained in Band 3 (medical priority 2).

I have seen the recommendation from the independent medical advisor. This said there was no formal confirmation of the daughter’s condition which meant it could make no recommendation on it. When it reached this decision, the Council confirmed it took account of her completed questionnaire, as well as letters dating back to 2020/21 including one from Headway. This was in support of their wish to move and referred to: left sided weakness, changeable moods, and the need for the family to have ‘time out’ space. It also took account of an independent medical advisor’s report from 2020. This said there was no medical necessity for his own room. Mrs B challenged the decision.

Later the same month, the independent medical advisor provided a second report to the Council which said Mrs B should have Band 3 (medical priority 2) on medical grounds with accommodation up to the first floor and daughter to have her own bedroom. There was no mention of Mr B’s need for space in the report.

The Council’s email to her explaining its review decision (decision 2) said there was no priority on medical grounds for Mr B. It did not explain why. In response to Mrs B’s query about this, the Council emailed explaining there was no medical priority for Mr B ‘as per previous advisory reports’ but when rehoused, the housing needs of the whole family, including his, will be taken into account.

• November: Mrs B sent the Council the Occupational Therapist report about her husband. It noted Mr B struggled to share a space at times, especially when his mood changed or there was too much noise in the house. He wanted his own space to go to when this happens such as a dining room or small separate area. It noted Mrs B sent the Council a report from Headspace about the need for his own space along with a psychologist who also agreed. While Mrs B wanted a three-bedroom house, it needed extra space for Mr B’s need. He also needed a bath with an over shower and grab rails. His daughter needs to use a bath, otherwise he needed a level shower.
• December: The Council told her it had reassessed her case (decision 3). It had now placed her on its AHR. The Council rejected her argument for Mr B to have a separate space. It said he could ‘demarcate’ a zone in the lounge or the bedroom area.

2023:

• April: Mrs B told the Council she wanted to go to Band 2.

17. The Council explained its allocation policy does not refer to the allocation of ‘a separate space’. This meant it was looked at in terms of whether they needed an extra bedroom. It noted its policy said married couples are only entitled to a bedroom each where there is medical evidence of the need. This extra bedroom would be for medical equipment or carers, which is at the Council’s discretion. Where a three-bedroom house has an extra downstairs room (parlour type property), which can be used as a bedroom, this will be offered as a four-bedroom property. The Council points out there was never a recommendation for a four-bedroom property for them.

My findings

18. I found fault on this complaint for the following reasons:
1. In decision 1, the Council said Mr B did not qualify on medical grounds for priority. It did not explain why it reached this decision. It gave Mrs B no reasons justifying its decision. This is fault.
2. In decision 2, the Council again said Mr B did not qualify for priority on medical grounds. Once again, it failed to explain why it reached this decision. It gave Mrs B no reasons justifying its decision. This is fault.
3. I also consider it fault for this decision to simply refer Mrs B to previous medical advisory reports when referring to its decision not to award Mr B medical priority. If previous reports were considered when reaching its decision, this should have been clearly referred to in its decision when providing reasons for the decision.
4. I note the recommendations received from the independent medical advisor for both decision 1 and 2 also failed to give a reason for not awarding Mr B medical priority. The impression given is of the Council doing little more than agreeing with the recommendations and passing them on to Mrs B without independently assessing all the evidence when reaching its own decision.
5. I am satisfied these failures caused Mrs B an injustice. This is because she has the uncertainty of not knowing whether the decisions were properly assessed and considered by the Council.
6. In decision 3, the Council again considered her request for Mr B’s own medical priority and need for a separate space. It said a separate space would be her decision and could be arranged as a demarcated zone in the property lounge or alternatively in the bedroom area. While the Council correctly argued its housing allocation policy makes no reference or allowance for a ‘separate space’, and only referred to bedroom need, I consider the Council fettered its discretion when reaching this decision.
7. This is because there is no evidence, for example, of the Council considering whether the lounge or bedroom was large enough to make isolating an area, even on a temporary basis, feasible, or could practically be done in any effective way. Nor did it consider whether this need could be met in other ways, such as an outdoor space, like a garden shed for example, with some possible modifications for insulation or heating.
8. I am satisfied these failures caused Mrs B an injustice. This is because she has the uncertainty of not knowing whether the Council properly considered and assessed her request when reaching its decision.

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Agreed action

19. I considered our guidance on remedies. I also considered what the Council said in response to my draft decision. It explained it had made suggestions on similar cases about partitioning sections of living areas in any property it offered. This is because it is unlikely there would be a property with a separate room, such as a lounge or study, within its housing stock, which could provide a built-in cooling off area.
20. The Council agreed to carry out the following action within 4 weeks of the final decision on this complaint:
1. Send Mrs B a written apology for failing to: give reasons for its decisions in September 2022 on her request for medical priority for her husband; exercise its discretion about alternative ways her husband’s need for a separate cooling off space could be met.
2. Remind officers making decisions about medical priority requests to ensure decisions are supported by reasons and refer to evidence considered.
3. Review its guidance on housing allocations to officers about the need to consider exercising discretion on requests for separate space areas based on medical grounds.
4. Reconsider her requests for medical priority for her husband and provide her with a new decision supported by reasons.
21. The Council should provide us with evidence it has complied with the above actions.

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Final decision

22. I found fault on Mrs B’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman