Summary: Miss Y complained the Council did not properly consider her unsuitable housing conditions when assessing her application to the housing register. We have found fault by the Council, causing injustice. This is because we consider its allocations scheme fails to meet the statutory requirement to give reasonable preference to all applicants occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions. The Council has agreed to remedy this injustice by apologising to Miss Y and making a payment to reflect the upset caused. It has also agreed to make service improvements by reviewing its scheme and making the changes needed to ensure it complies with the statutory requirements about reasonable preference.

The complaint

1. The complainant, who I am calling Miss Y, complains about the way the Council dealt with her application to the housing register to move to a larger property. She says her current one-bedroom property is:

• too small for herself and her family of two children under 18; and
• unsuitable because of mould and condensation issues.

2. Miss Y complains the Council failed to give her housing application appropriate priority. She wants it to move her family to suitable accommodation.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)

Back to top

What I have and have not investigated

Repairs to Miss Y’s home

6. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
7. This means I cannot investigate the part of Miss Y’s complaint about the condition of her accommodation or any failure by the Council to carry out repairs. This because it is about the Council’s management of her housing as a registered social housing provider.
8. But I have investigated whether the Council considered giving reasonable preference and priority to Miss Y, under its allocations scheme, as a person occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions.

Miss Y’s bedroom entitlement

9. We do not start or continue an investigation if we decide it would be reasonable for the person to ask for a council review or appeal (Local Government Act 1974, section 24A(6), as amended, section 34(B))
10. I have decided not to investigate Miss Y’s complaint about the Council’s decision about her bedroom entitlement. This is because she had the right to ask the Council to review its decision and I consider it was reasonable for her to ask for this review.

Back to top

How I considered this complaint

11. I spoke to Miss Y, read her complaint and the Council’s response to our enquiries, together with all the other information Miss Y and the Council provided about the complaint.
12. I invited Miss Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

Back to top

What I found

What should have happened

Housing allocation schemes

13. Section 166A of the Housing Act 1996 provides that every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing. All allocations must be made in strict accordance with the published scheme. 
14. The Housing Act also requires allocation schemes to give reasonable preference to applicants who fall within the statutory reasonable preference categories in Section 166A (3) of the Act. The statutory groups include, amongst others:

“ people who are occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions”

The Council’s published scheme

15. This confirms:

• the objective to meet the legal requirements for the allocation of social housing as set out in Part 6 of the Housing Act 1996; and
• the Council will ensure its scheme complies with all legislative requirements.
• Applicants to join the Council’s housing register will be accepted and given a priority band if they have sufficient priority to be registered. The Council has the following four priority bands - A, B, C and D - which take into consideration the reasonable preference groups:

16. Applicants in Band D have no priority and are not able to bid.

People living in unsatisfactory housing conditions

17. The Council’s scheme gives reasonable preference to the following people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions:

• Band A – Decants for council tenants when essential repairs are required and private sector tenants where the property poses a category 1 hazard;
• Band B – Council tenants assessed as being statutorily overcrowded;
• Band C – severe overcrowding where an applicant is lacking 2 or more bedrooms and where a resident is living in poor accommodation as assessed by the Council’s private housing services team; and
• Band B – applicants lacking one bedroom.

The Council’s rules about bedroom entitlement

18. The Council’s scheme sets out its standard for deciding the size of property for which applicants are eligible. A separate bedroom is allocated to:
19. Each married, civil partnership or co-habiting couple;
20. Any person aged 21 or over;
21. Each pair of children aged between 10-20 of the same sex;
22. Each pair of children under 10, regardless of their gender; and
23. Any unpaired person between 10-20 is paired if possible with a child under 10 of the same sex. If that is not possible, they are given a separate bedroom, as is any unpaired child under 10.

Emergency Management Transfers

24. The Council may agree, in exceptional circumstances, to provide a tenant with an emergency management transfer when its allocations panel determines this is a more appropriate way to ensure the personal safety of the tenant, members of their household and/or the local community.

What happened

25. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Complaint background

26. Miss Y has been a Council tenant for many years and lives in a one-bedroom property. She has a child of 16 and is responsible for a five year old child who also lives with her.
27. Miss Y applied to the housing register in 2010 to move to a two-bedroom property. She was placed in Band D. This meant she could not bid for properties.

2022: Miss Y’s complaint about overcrowding and poor conditions

28. Miss Y complained to the Council about overcrowding causing mould at her property. The Council’s surveyor visited, and remedial works were completed.
29. Miss Y complained again about living in a one-bedroom property with two children, and the mould and damp. She sent in a change of circumstances form for her housing register application.
30. The Council reviewed the information Miss Y provided about her change of circumstances. It told her, although it assessed her as having a need for two bedrooms, only applicants lacking two or more bedrooms were awarded priority. As she only lacked one bedroom, she would remain in Band D.
31. A Council surveyor visited again. They noted the property was quite small and Miss Y would continue to have mould issues because of the lack of space. Further remedial works were carried out.

2023: Miss Y’s complaint the Council had failed to move her

32. In response to Miss Y’s complaint, the Council said:

• A property was deemed overcrowded if two people of opposite sex and not a couple had to share a room. Children under 10 were not included and a living room was considered available to use as a bedroom; and
• Because the children were of the same sex, and one was under 10, they had a living room and a bedroom, they were not considered to be statutorily overcrowded in terms of bedrooms.

33. The Council accepted the lack of space might be contributing to the condensation. It said:

• it would carry out an audit of room sizes to check the space was sufficient under the Housing Act;
• it would ask a housing officer to advise about any further steps which could be taken to reduce condensation issues; and
• Miss Y could submit an online medical form with the information about the health issues she had mentioned affecting one of the children. The Council would then consider this.

Miss Y’s concerns about her family’s safety

34. In April a housing officer carried out a tenancy audit. They noted the size of the property was having an impact on the family. Miss Y and the younger child were using part of the living room as a sleeping area. Clothes drying in the living room were causing condensation.
35. Miss Y also told the officer about safety issues, including threats, affecting the family.

Approval for a management transfer

36. In May the allocations panel considered Miss Y’s case. The panel agreed a management transfer should be arranged for her based on the threats only, not overcrowding. The Council would make Miss Y one direct offer of a suitable property.

My analysis – was there fault by the Council causing injustice?

The Council’s allocations scheme

37. The law says allocation schemes must give reasonable preference to certain groups of applicants for social housing. This includes applicants occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions.
38. I have considered the Council’s allocations scheme. This gives reasonable preference to both council and private tenants living in overcrowded housing or in housing where major repairs are required. It also gives reasonable preference to private sector tenants living in poor accommodation. But it excludes council tenants living in poor conditions.
39. The Council says there is no need to give this group of tenants reasonable preference because, if its surveyor deems a Council property to be insanitary or unsatisfactory, it will carry out the repairs needed to bring it up to the required standard.
40. But this does not take into account Council tenants, such as Miss Y, where damp and mould or apparently minor disrepair is repeated or recurring. Or where the Council has failed to address the repair issues such that the tenant remains in poor conditions despite the requests for repair.
41. And in any event, I do not consider this reasoning exempts the Council from its legal duty to give reasonable preference to all applicants, whether private or council tenants, living in unsatisfactory housing.
42. My view is the Council’s scheme fails to meet the statutory requirement to give reasonable preference to all applicants occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions. This is fault.

Impact of this fault on Miss Y

43. The Council considered what priority, if any, it should award Miss Y because she was lacking one bedroom under its policy. But, because of the fault in its scheme, it did not consider whether she should be awarded reasonable preference as a person living in unsatisfactory housing conditions, with mould issues.
44. This meant Miss Y lost the opportunity to be assessed and awarded reasonable preference, which may have led to her being placed in a higher priority band, because she was living in unsatisfactory housing conditions.
45. We don’t know what the outcome of an assessment of her application on this basis would have been. But I don’t consider the lost opportunity caused any delay in her being able to move to new accommodation. This is because the Council has agreed to make her a direct offer of a suitable property, as a management transfer.

Impact on others

46. This fault may have caused, or could cause injustice to other applicants to the Council’s housing register. This would include applicants living in poor conditions, excluded by the current scheme from being awarded reasonable preference as a person living in unsatisfactory housing conditions, because they are council tenants.

Back to top

Agreed action

47. To remedy the injustice caused by the above fault and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Miss Y for the opportunity she lost be assessed and awarded reasonable preference, which may have led to her being placed in a higher priority band, because she was living in unsatisfactory housing conditions;
2. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings; and
3. pay Miss Y £150 to reflect the frustration and upset caused by this lost opportunity. This is a symbolic amount based on the Ombudsman’s published Guidance on Remedies.
48. And within three months from the date of our final decision, the Council has agreed to:
1. review its allocations scheme and make the changes needed to ensure it complies with the statutory duty to give reasonable preference to all applicants occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions; and
2. take action to ensure these changes are brought to the attention of those they are likely to affect.
49. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

50. I have completed my investigation and found fault by the Council causing injustice. The Council has agreed to take the above action as a suitable way to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman