Summary: there was fault in the way the Council considered Miss X’s request for medical priority for housing and for separate bedrooms for two of her children who have medical conditions. The decision not to award medical priority was changed on review which remedied the fault in the original decision-making. Following a change in her family circumstances, Miss X can now bid for a property of the size she needs to give her two eldest children separate bedrooms.

The complaint

1. Miss X complained that the Council has not properly considered her request to be moved to a higher priority band on the Housing Register on medical grounds. She also complained that the Council did not assess her two eldest children’s need for separate bedrooms. They have neurodiverse conditions and anxiety which affects their behaviour and disrupts their sleeping patterns. Miss X and her children’s current accommodation is overcrowded and this adversely affects their health and wellbeing.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
    

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)

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How I considered this complaint

4. I spoke to Miss Y, who is Miss X’s aunt, because Miss X gave consent for her to act as her representative.
5. I considered all the information Miss X sent us, the Council’s comments and relevant housing records and correspondence. I also considered the relevant law and the Council’s housing allocations scheme.
6. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law

7. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating social housing. All housing allocations must be made in strict accordance with the published scheme.

8. All councils must give what the law calls “reasonable preference” to the following:

• homeless people;
• people in insanitary, overcrowded or unsatisfactory housing;
• people who need to move on medical or welfare grounds;
• people who need to move to avoid hardship to themselves or others.

9. Councils are not required to give equal weight to each of the reasonable preference categories. Also, they are not required to award higher priority to applicants who meet more than one of the reasonable preference categories, although they may choose to do so.

10. The law says the Council must decide whether the applicant is eligible for medical priority, and the level of priority, with regard to its allocations scheme and all the evidence provided. It cannot simply adopt or rubber-stamp advice given by its medical adviser.

11. Applicants can ask the council to review decisions made about a housing application. The review must be carried out by a more senior officer who was not involved in making the original decision.

The Council’s housing allocations scheme

12. In order to bid for properties on the choice-based lettings scheme (Homes4U) , an applicant must qualify to join the Housing Register and be placed in one of five bands – A to E. Band A is the highest priority and E is the lowest. There is a fifth band – Band F – but applicants in this band are not allowed to bid for properties.
13. If the applicant (or a member of their household) has a physical or mental health condition which is made worse by their current housing situation, they can apply for a medical assessment. This will decide whether they qualify for medical priority under the allocations scheme.
14. The applicant can also ask the Council to consider the need for separate bedrooms for household members who would normally be expected to share a bedroom.
15. The law says the Council must decide whether the applicant is eligible for medical priority, and the level of priority, on the basis of its allocations scheme and all the evidence provided. It cannot simply defer to its medical adviser.
16. The Council’s scheme has three levels of medical priority:

Urgent medical factors– the applicant or a member of their household has a medical condition that will not improve and is so severe that it makes it impossible, or nearly impossible, for them to continue to occupy their current accommodation. Continued occupation will result in an intolerably low quality of life for the patient and the medical adviser has recommended urgent rehousing. This group is placed in Band A.

Significant medical factors – where the applicant or a member of their household has a medical condition which makes it difficult, but not impossible, to continue to occupy the current accommodation and the medical adviser has recommended early rehousing. This group is placed in Band C.

Moderate medical factors – it is difficult but not impossible to continue to occupy the current accommodation and the medical adviser has recommended eventual rehousing is desirable. This group is placed in Band D.

17. The Council’s scheme also gives extra priority to applicants who qualify for medical priority in addition to other housing needs. So if the applicant is already in Band D, and is then awarded moderate medical priority, the application moves up to Band C. If an applicant already has Band C or D, and is then awarded significant medical priority, the application is moved to Band B.

Bedroom need

18. The Council’s allocations scheme sets out the number of bedrooms an applicant can bid for according to the size and composition of their household. Two children aged under 16 of the same sex are generally expected to share a bedroom.
19. A family with three children can bid for:
• A three bedroom property; or
• A four bedroom property but only when none of the children can share a bedroom.

A family with four children can bid for:

A three bedroom property; or

A large three bedroom property (a property with three double bedrooms); or

A four bedroom property (with two double and two single bedrooms)

20. Separate bedrooms may be awarded on the advice of the medical adviser where there is an assessed medical need. The scheme refers to separate bedrooms for a couple but this would also apply to two siblings who would normally be expected to share a bedroom.

Good practice in medical assessments

21. We are developing guidance which sets out our expectations about good practice in medical assessments. In our view councils should:

• consider all the medical evidence the applicant provided, as well as the medical adviser or OT’s assessment;

• keep a proper record to show how it considered the evidence in the context of its allocations scheme, and how it has weighed any conflicting evidence;

• make its own decision and make this clear in its decision letter. (For example, it should not say its medical adviser has decided);

• explain its reasons in the decision letter sent to the applicant. In the case of a refusal, the decision letter should explain why the medical evidence the applicant provided was discounted or was not sufficient to award priority.

We are not an appeal body. It is not our role to assess someone’s medical priority and we cannot substitute our view for the council’s. If we find fault in the decision-making process, we may ask the council to reconsider the request and make a fresh decision.

What happened

Miss X’s circumstances

22. Miss X is a Council tenant who lives with her four young children in a two bedroom flat. Her two eldest children, who are both under ten years old, would normally be expected to share a bedroom. I shall refer to her eldest child as P and to other child as J.
23. Miss X says P and J cannot share a bedroom. P has extreme anxiety and the GP has referred him to the Child and Adolescent Mental Health Service (CAMHS). He is also on a waiting list for a separate assessment for a neurodiverse condition.
24. J has already been diagnosed with a neurodiverse condition and a sensory processing disorder. He is waiting for an assessment for autism. He can behave aggressively and Miss X says he cannot be left alone with P. He breaks P’s belongings when he has an outburst. He tends to be noisy, has night terrors and disturbed sleep which means he wakes his sibling. He also wets the bed.
25. Miss X has arranged the flat so P and J have separate bedrooms. Miss X and her third child sleep on a sofa in the living room. At the time of these events, Miss X was expecting her fourth child. Her baby was born after the Council made the review decision in March 2023.
26. Miss X also has long-term medical conditions which affect her physical and mental health.

The first medical assessment for J and P

27. Miss X was already in Band D on the Housing Register due to overcrowding. She was entitled to bid for three bedroom properties.
28. In late October 2022 she completed three separate medical assessment forms for herself, J and P.
29. She explained she did not have her own bedroom and was sleeping in the living room with her youngest child. She explained why J and P needed separate bedrooms and provided information about their medical conditions and the pending assessments.
30. In early December 2022 Miss X sent supporting evidence for J and P to an officer in the Lettings Service. This included a letter from the Special Educational Needs Coordinator (SENCO) at J and P’s primary school. The SENCO said P has high anxiety which he displays through impulsive and challenging behaviour at home. He is extremely sensitive to noise. Because of J’s sensory processing disorder, his behaviour is triggered by noise. She said it would be beneficial for J and P to have separate bedrooms and more space due to their high needs.
31. Miss X said she was waiting for medical evidence from the GP about her own needs.
32. In late December an officer in the Lettings Service sent the medical assessment forms and supporting evidence for J and P to the Council’s external medical adviser. She explained she was waiting for Miss X to send in evidence about her own medical conditions.
33. In early January the medical adviser sent his advice to the Lettings Officer. Although he had not been asked to assess Miss X’s needs, he said her mental health issue was not severe or unstable enough to warrant urgent, enhanced psychiatric care. He said the evidence did not suggest J and P had severe behavioural issues which required urgent specialist treatment or intervention. He said “no medical priority applies therefore”.
34. In mid-January the Lettings Officer wrote to tell Miss X the outcome of the medical assessment. She directly quoted the advice from the medical adviser. The letter said she had considered that advice and Miss X's supporting evidence and decided not to award medical priority. She explained Miss X’s right to request a review of her decision and the process.

Miss X’s review request

35. Miss X wrote promptly to request a review. She gave more detailed information about how her mental health conditions affected her daily life. She disputed the medical adviser’s statement that there had been no interventions for P. She said CAMHS and the school were giving him extra support. She also said she was on a waiting list for therapy. She stressed the need for J and P to have their own space to regulate their behaviour and stay safe. She said J and P were in a crisis situation. The lack of space and privacy was making all their conditions worse.
36. On 31 January Miss X submitted further letters from her GP, the SENCO and her midwife about her and her sons’ needs.

The second medical assessment - for Miss X

37. On 30 January the Lettings Officer asked the medical adviser to carry out a separate medical assessment for Miss X. She sent Miss X’s medical assessment form and a supporting letter. It is not clear from the Council’s records which letter this was. It may have been an undated letter from Miss X’s midwife which confirmed her pregnancy. The midwife also said Miss X was receiving counselling from the mental wellbeing team. She said she did not feel the flat was helping her mental wellbeing and it was having a severe detrimental impact on her mental health conditions.
38. In early February the medical adviser sent his advice to the Lettings Officer. He said overcrowding was given separate priority under the Council’s allocations scheme. He said there was no other substantive medical evidence to preclude use of the current home and therefore “no medical priority applies”.
39. In late February a lettings officer informed Miss X of the decision on medical priority. She said she had considered the medical advice and Miss X’s supporting evidence and decided not to award any medical priority. The letter explained her right to request a review.

The review decision

40. On 10 March 2023 a manager completed the review and wrote to tell Miss X her decision. She said she had considered all the supporting evidence Miss X sent and decided to award Band C priority. The letter did not explain the reasons for the decision or refer to the banding criteria in the housing allocations scheme.
41. The manager said the banding decision would not change following the birth of Miss X’s baby because she had already taken this into account. She encouraged Miss X to bid on all advertised three bedroom properties. She said Miss X could seek legal advice or contact the Ombudsman if she felt the review decision was incorrect.

Miss X’s complaint to the Council

42. Miss X complained to the Council in late April 2023. She said the review decision letter did not make it clear whether the Council had assessed all their needs. She referred to the evidence about J and P’s need for separate bedrooms and supporting evidence from professionals. She also referred to her newborn baby’s admission to hospital with a respiratory condition and the damp and mould in the flat. (This was new information and not known at the time of the review) Miss X said she was sleeping on a sofa in the living room with her newborn baby and third child.
43. In response to my enquiries, the Council explained the manager had increased the banding from Band D to Band C on review because there were “moderate medical factors”. The allocations scheme says an existing Band D applicant who has been assessed by the medical adviser as having moderate medical factors is awarded Band C. The Council says it is reviewing the wording in the allocations policy to make it clear that it is the Council, and not the medical adviser, who is responsible for making the decision.
44. The Council told me it rarely awards Band A priority for medical needs. The last time it was awarded was to an applicant whose property could not be adapted to meet their disability-related needs and was not wheelchair accessible. The applicant was confined to one room and could only leave the property with assistance.
45. The Council confirmed that the medical adviser had not given advice on J and P’s need for separate bedrooms. It says the supporting letters said it would be beneficial for J and P to have separate bedrooms but did not say it was essential. Furthermore, as four bedroom homes are in very short supply, the lettings team did not want to reduce Miss X’s chances by restricting her bids to four bedroom properties. However, following the birth of her fourth child, Miss X can now bid for four bedroom properties due to the increased size of her household.

Miss X’s views

46. Miss X says her situation has got worse since her baby was born. She now sleeps in the living room with the two youngest children. She has not sent in any new medical evidence since the review decision in March. She keeps bidding for properties but, with Band C priority, she is never ranked high enough to get on the shortlist. She considers her family’s medical needs meet the criteria for Band A medical priority. She says she has no chance of being rehoused to a four bedroom property unless the Council awards Band A.

My analysis

47. The Council asked the medical adviser to consider all the medical assessment forms and supporting evidence Miss X sent for herself, J and P. The lettings officer made separate referrals to the medical adviser in late December 2022 for J and P and in late January 2023 for Miss X.
48. In both assessments, the medical adviser stated in clear terms that no medical priority applies. This was not expressed as advice or an opinion. It seems to be directing the officer about what decision to make. In both assessments, the lettings officer accepted the medical advice. I have seen no records to show how it was considered in the context of all the evidence and with reference to the allocations scheme. This was fault.
49. Miss X requested a review because she disagreed with the decision not to award medical priority. She sent in more medical evidence. At this stage, a senior officer considered all the evidence afresh and decided to award moderate medical priority. As Miss X already had Band D priority for overcrowding, her priority increased to Band C . Any injustice caused by the fault at the original decision-making process was put right at the review stage. I say this because the manager reconsidered the evidence, reached a different conclusion and decided some medical priority was justified. The purpose of the review process is to reconsider a challenged decision and, in this case, it led to a different outcome. I see no fault in the way the review decision was made.
50. It would have been helpful if the review decision letter had explained the reasons for the decision to award Band C priority. If it had referred to the criteria for the priority bands in the allocations scheme, that may have helped Miss X understand why the manager did not consider a higher medical priority was justified.
51. Miss X disagrees with the review outcome. But we cannot question the manager’s decision to award Band C priority, rather than Band B or A, when there is no evidence of fault in the way the decision was made at the review stage. Miss X believes her only chance of getting rehoused is to be awarded Band A priority. I understand that but we are not an appeal body so we cannot decide on the appropriate level of medical priority. The Council has to make that decision.
52. It was fault not to make a decision on Miss X’s request for separate bedrooms for P and J. She presented evidence from professionals who supported her request. Although one professional used the word beneficial rather than essential, that should not have prevented an assessment. If the Council did not consider there was sufficiently strong evidence to support J and P’s need for separate bedrooms, it could have explained its reasoning in the decision letter. Following the birth of her fourth child, Miss X can now bid for any four bedroom properties advertised on the choice-based lettings scheme. For this reason there is no need to ask the Council to reconsider J & P’s need for separate bedrooms.
53. To sum up, I found fault in the way the original decision was made but this fault was put right at the review stage when medical priority was reconsidered and awarded. So there is no outstanding injustice. It was fault not to make a decision on Miss X’s request for separate bedrooms for P and J. However there is no point asking the Council to reconsider this now because Miss X can bid for any four bedroom properties advertised following the birth of her baby. We cannot question the decision made at the review stage to award moderate medical priority and Band C when there is no evidence of fault in the way it was made.

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Final decision

54. I have completed the investigation and found the Council was at fault but this did not cause injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman