Summary: Mr X complains that the Council is repeatedly bypassing his bids on properties and that its housing allocations scheme is discriminatory. The Council is at fault as its decision that Mr X is eligible for two and three-bedroom properties disadvantaged him. The Council also wrongly advertised and nominated Mr X for a property he was not eligible for which caused distress to him. The Council has agreed to remedy Mr X’s injustice by making a payment of £200 to him.

The complaint

1. Mr X complains that the Council is repeatedly bypassing his bids for properties as his children do not live with him on a full-time basis. Mr X considers the Council’s actions are preventing him from being made an offer and preventing him from having a home with his children. Mr X also considers the housing allocation scheme is discriminatory as he believes it favours women and this is preventing him from being offered a property.

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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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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)

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What I have and have not investigated

6. I have investigated the Council’s actions up to the nomination of Mr X to the housing providers. I have not investigated the actions of the housing providers as they are not within our jurisdiction once the Council has made the nomination.

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How I considered this complaint

7. I have:

• Considered the complaint and the information provided by Mr X;
• Discussed the issues with Mr X;
• Made enquiries of the Council and considered the information provided;
• Invited Mr X and the Council to comment on the draft decision. I considered the comments received before making a final decision.

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What I found

Law and guidance

8. 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. (Housing Act 1996, section 166A(1) & (14))
9. An allocations scheme must give reasonable preference to applicants in the following categories:

• 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;
  (Housing Act 1996, section 166A(3))
   

10. The Council is a partner in a local choice-based lettings scheme which enables housing applicants to bid for available properties which are advertised. The Council manages the housing register and the application process. The housing providers allocate their properties.
11. The Council’s housing allocations scheme states:

“The Council will record that an applicant has children that live with them part of the week, whether this arrangement is set by the court. Priority for larger properties will always be given to families with children living with them on a full-time basis, however shared access arrangements may result in the applicant being considered for larger accommodation and this will depend on the rules applied by each Housing Association”

12. Direct discrimination occurs when a person treats another less favourably than they treat or would treat others because of a protected characteristic. Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.
     

What happened

13. The following is a summary of the key facts relevant to the consideration of the complaint. It does not include everything that happened.
14. Mr X applied for the Council’s housing register in late 2022. Mr X was seeking a house for him, his partner and child. Mr X also intended that his two children would live part time with him. The Council decided Mr X qualified for the housing register and placed him in band B. It later increased his priority to band A.
15. The Council initially considered Mr X needed a two bedroom property. Following Mr X’s request for a review, the Council accepted Mr X’s two children lived with him on a part time basis. The Council therefore increased Mr X’s bedroom need to two to three bedrooms.
16. The Council’s records show Mr X placed bids on two and three bedroom properties. The Council’s records show Mr X was the top bidder for a large number of properties but the housing providers bypassed his nomination. The Council’s records show many of the bids were bypassed by the providers because they considered the property was too large for Mr X. The Council’s records also show providers bypassed bids for two bedroom properties as Mr X’s bedroom need was not exactly two bedrooms.
17. Mr X contacted the Council to raise concerns about the housing providers bypassing his bids. A senior officer responded to Mr X’s concerns. The officer said the Council had explained the risk that housing providers would bypass his bids for three bedroom properties in favour of families with full time care of their children. He suggested a way forward may be for Mr X to remove his children from his application so he would be eligible for two bedroom properties. The Council’s records note Mr X raised his concerns with another officer and said he expected his bid to be bypassed on some three bedroom properties but not all. The officer said they had discussed with Mr X that there was a strong possibility of this happening. The officer suggested Mr X consider if he could make a two bedroom property work for his family.
18. Mr X complained to the Council as he considered the Council’s allocations scheme discriminated against men. The Council did not uphold Mr X’s complaint. It explained to Mr X that it considered the scheme which favoured full time families over part time families for larger properties would affect men and women equally.
19. Mr X successfully bid and was nominated for a three bedroom property. The provider then withdrew the property. Mr X considered the Council instructed the provider to withdraw the property as it had a grudge against him. In response to my enquiries, the Council has said the provider’s advert from the property was inaccurate as it did not state it was an adapted property. The Council advised the provider to readvertise it to allow applicants who required an adapted property to bid on it. Mr X was not eligible to bid on the property as he did not require an adapted property.
20. Mr X has said a housing provider offered him another property but he considers the Council told the provider to withdraw it. The Council has said it is unable to determine which property was offered to Mr X as it appears to have been offered directly by the housing provider outside the allocations scheme.
21. A housing provider has now offered a property to Mr X which he has accepted.

Analysis

22. On balance, I consider there is fault in how the Council reached its decision that Mr X had two and three bedroom need instead of deciding if he has two bedroom need or three bedroom need. The evidence shows Mr X’s nominations for three bedroom properties have been bypassed by housing providers in favour of full time families. But some of Mr X’s bids or nominations for two bedroom properties were also bypassed as he does not meet the provider’s criteria for a two bedroom property. This is because he has two and three bedroom need rather than two bedroom need. So, the decision that Mr X has two and three bedroom significantly reduced the chance of a successful nomination for Mr X. This cannot have been the intention of the Council as it placed Mr X in band A so considered he had high priority for housing.
23. The Council clearly explained to Mr X that a nomination for a three bedroom property may be bypassed in favour of a full time family. But is no evidence to show the Council warned Mr X that a nomination for two bedroom properties may also be bypassed as Mr X did not have exact two bedroom need. There is no evidence to show the Council properly considered the consequences of awarding two and three bedroom need for Mr X.
24. But, on balance, I cannot say the decision that Mr X has two and three bedroom need has denied him an offer of a three bedroom property. Mr X’s chances of being successfully nominated for a three bedroom property were always reduced as he does not have full time care of his children. I also cannot know, even on balance, if Mr X would have accepted a two bedroom property if he had been successfully nominated for such a property.
25. Mr X considers the Council’s policy of prioritising full time families over part time families for larger properties is discriminatory as he considers it favours women. I do not consider the provision is directly or indirectly discriminatory. The policy will affect both men and women who have part time care of their children.
26. Mr X was nominated for a property but this had to be withdrawn as the housing provider had not advertised as an adapted property. Mr X was not eligible for an adapted property. The housing provider was responsible for the advert but the advertising of properties is part of administering the Council’s allocations scheme. So, the housing provider was acting on behalf of the Council when advertising the property. I therefore consider the incorrect advert to be fault. This fault raised Mr X’s expectations and caused distress to him as it led him to be nominated for a property he was not eligible for. The Council should remedy this injustice.
27. Mr X has said the Council told a housing provider to withdraw the offer of another property to him. The Council has been unable to identify the property Mr X refers to. But I do not consider further investigation is likely to find fault by the Council. I understand the property was offered directly to Mr X by the housing provider. So, any decision to withdraw the property is a matter for the housing provider.

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Agreed action

28. That the Council will:
1. Send a written apology to Mr X for the distress and uncertainty caused to him by wrongly advertising an adapted property which led to Mr X being nominated for a property he was not eligible for and for the reduced opportunity to be successfully nominated for a property by awarding two and three bedroom need. 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.
2. Make a symbolic payment of £200 to Mr X for the distress caused by wrongly advertising an adapted property and nominating him for the property.
3. By training, or other means, share the learning from this complaint with relevant officers.
29. The Council should take the action at a) and b) within one month of my final decision and the action at c) within six weeks of my final decision.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

Fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman