Summary: Ms B complained about how the Council dealt with her housing application and medical assessment. We found fault with the Council’s actions which caused injustice to Ms B. The Council will apologise to Ms B, make a payment to her, offer her a new medical assessment and remind housing staff of the importance of properly explaining decisions in letters.

The complaint

1. The complainant, whom I shall refer to as Ms B complains the Council:

• housing allocations scheme favours people with a physical disability over those with a mental health disability, contrary to the Equality Act 2010;
• failed to reassess her medical application with further supporting evidence;
• failed to investigate her concern that she was denied a suitable property despite the Council’s system stating she was successful in her bid; and
• failed to address her complaint and took too long to respond.

2. Ms B says she lost an opportunity to secure suitable accommodation due to this fault. Ms B also says she has had to remain in a property that is making her health needs worse for longer than she otherwise should have due to these faults. Ms B says she is now receiving Personal Independent Payments (PIP) as her quality of life has declined because of this situation.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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What I have and have not investigated

6. We cannot usually investigate complaints about events that took place more than a year before the complainant contacted us. Ms B first brought her complaint to the Ombudsman in September 2023, meaning anything that took place before September 2022 is a late complaint.
7. Part of Ms B’s complaint is the Council failed to investigate her concern that she was denied a suitable property despite the Council’s system stating she was successful in her bid. These events were in September 2021.
8. However, I note that Ms B only became aware of this incident in April 2023 following a Subject Access Information request that she sent to the Council.
9. The Council has also provided me with the relevant information, and so I am satisfied I can still investigate Ms B’s complaint specific to this matter adequately.

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How I considered this complaint

10. I have discussed the complaint with Ms B and considered the information she provided. I also considered the information the Council provided in response to my enquiries.
11. Ms B and the Council had the opportunity to comment on my draft decision. I considered these comments before making a final decision.

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What I found

Legislation and guidance

The published scheme

12. 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))

Reasonable preference

13. 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))

Decisions and review rights

14. Councils must notify applicants in writing of the following decisions and give reasons:

• that the applicant is not eligible for an allocation;
• that the applicant is not a qualifying person;
• a decision not to award the applicant reasonable preference because of their unacceptable behaviour.
   

15. The Council must also notify the applicant of the right to request a review of these decisions. (Housing Act 1996, section 166A(9))
16. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.

The Council’s scheme

17. The Council’s allocation scheme (applicable at the time of Ms B’s complaint) says priority on health or disability grounds applies where an applicant or member of the household has a medical condition that may affect their application.
18. The scheme states the following levels of medical priority may be awarded;

• Emergency re-housing status: if the medical is so severe in that it is impossible for the applicant to live in their current home; or
• Reasonable Preference: where an applicant’s current home is unsuitable and impacting on their poor health and the applicant needs to be re-housed on medical grounds.

19. The Council says it will make a decision within 28 days of receiving a medical application or documents.
20. The scheme says applicants have a statutory right to request a review where there is a decision not to make an allocation. Applicants must make the request within 21 days of the letter telling them of the decision.
21. Following a request for a review, the Council has 56 days to make a new decision or stand by the original decision and give reasoning.

The Council’s complaint handling

22. The Council's complaints policy says it will respond to complaints within 20 working days.

Background information

23. Ms B lives in a one-bedroom flat with her three children. She has been on the housing register since 2008 bidding for larger properties.
24. Before December 2021, Ms B was registered as a Priority Homeseeker with an additional preference (or priority). This is because she met the additional preference criteria due to employment and also living in an overcrowded property.
25. However, the Council changed its allocations policy to remove the additional preference for applicants who met the employment criteria, which was usually for being in work.
26. This change negatively impacted Ms B. The Council wrote to her in February 2022 to tell her she no longer had additional preference status and would now be classed as a Priority Homeseeker only.
27. Before the period I have investigated, Ms B made previous medical applications to the Council.

Summary of key events

28. On 12 July, Ms B sent a medical application to the Council. In this, Ms B stated that she is registered disabled and provided details of several health conditions that she says stem from where she lives. Ms B said that she has Post Traumatic Stress Disorder (PTSD) resulting from an incident that she witnessed at home.
29. At the end of August, Ms B sent a Stage 1 complaint as the Council had failed to respond to the medical application form. The Council then responded on 1 September.
30. A week later, the Council’s medical advisors emailed the Council stating “the applicant’s mental health issue is not severe or unstable enough to warrant urgent, enhanced psychiatric care”. The medical advisor stated, “no medical priority applies therefore”.
31. On 29 September, the Council sent Ms B a letter explaining it had decided not to grant her medical priority. This letter stated “I have reached this conclusion because…” and failed to finish the sentence.
32. Ms B contacted the Council again on 19 October to seek a review of this decision and complained that she had waited many months for a response. Ms B stated that she did not believe the Council had assessed her health and welfare needs and that she found it insulting the rejection letter gave no reason for the decision.
33. On the same day, Ms B sent a further medical form to the Council. Ms B stated that she sent the medical form in July as there had been a significant decline in her health since her last medical application in September 2021. Ms B provided details around how she believes her home environment is negatively impacting her health. Ms B also presented information from her GP health record. This showed an entry titled “Post Traumatic Stress Disorder” from 2018. There is no further information documented to explain the context behind this entry.
34. In November, Ms B was awarded Personal Independence Payment (PIP) to include the standard rate for daily living needs and the standard rate for mobility.
35. On 5 January 2023, Ms B sent a complaint to the Council. She stated that she was unhappy the Council did not respond to the resubmitted medical application that she sent in October.
36. Internal council correspondence dated 11 January stated that Ms B had “submitted a review regarding the medical decision on her application which was not logged correctly”.
37. A council officer sent a request on 12 January for Ms B’s medical form to be sent to the Council’s medical advisors.
38. Ms B contacted the Council again mid January and again on 30 January to ask that her PIP award be taken into account when assessing her application.
39. The Council’s medical advisors contacted the Council on 18 January stating “they [Ms B] do not receive any care services we would normally associate with someone who has a severe inability to function on a daily basis because of their on-going diagnoses”. They concluded that no medical priority applied.
40. In late January, a senior council officer, not involved in the original decision wrote to Ms B upholding the Council’s decision on medical priority.
41. This letter was more comprehensive than the first and stated that consideration has been given to all evidence provided by Ms B apart from the Children’s Services report which is not referenced. The letter also stated that medical advice was gained from the Council’s medical advisors. This letter said there would be no review right on this decision.
42. In May, Ms B sent a Stage 1 complaint to the Council. Ms B complained:

• the new allocations scheme does not prioritise households that have multiple disadvantages, including overcrowding and personal and medical elements;
• the Council failed to consider the overcrowding and medical disability caused solely by where she lives;
• the housing allocations scheme does not take account of duties under the Equality Act 2010, the Housing Act 1996, the Public Sector Equality Duty and the Social Housing Allocations Guidance;
• the Council failed to provide reasonable preference for her disability as it should under the Housing Act 1996; and
• a Subject Access Review received in April 2023 showed that on 15 September 2021 Ms B was successful in a bid for a property. Ms B stated that despite this, she did not receive an offer for this property.

43. The Council responded to the complaint within a week stating the following:

• since implementation of current Allocations Scheme, those assessed as severely overcrowded with at least one other reasonable preference will be prioritised within the Priority Homeseeker Group.
• the medical assessment decision remains, however Ms B can complete a new medical application if her condition has significantly deteriorated since the last assessment.
• the case note about Ms B being successful in her bid for a property was added in error by the officer. The Council confirmed that Ms B did not “miss out on any offers”.

44. In an undated letter, Ms B asked the Council for a review of this complaint as she did not agree with the outcome. The Council says it received this letter on 22 June.
45. The Council responded on 1 August upholding the previous complaint decision.

Analysis

46. I will look at each of Ms B’s complaint points in turn.

The Council housing allocation scheme favours people with a physical disability over those with a mental health disability, contrary to the Equality Act 2010:

47. Ms B says the Council’s allocation scheme favours people with a physical disability over those with a mental health disability. There is no evidence to support this, and I note the Council has confirmed it accepts Ms B’s mental health condition amounts to a disability under the Equality Act 2010. There is no reason to believe Ms B has been disadvantaged by the Council’s policy, and therefore I am satisfied there is no fault here.

The Council failed to reassess Ms B’s medical application with further supporting evidence:

48. The Ombudsman’s role is to review how councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant information, or not properly explained a decision it has made. We call this fault, and, where we find it, we can consider any consequences of the fault and ask the relevant council to address these.
49. However, we do not make operational or policy decisions on councils’ behalf, provide a right of appeal against their decisions, or seek to replace their judgement with our own. If a council has made a decision without fault then we cannot criticise it, no matter how strongly a complainant feels it is wrong. We do not uphold complaints simply because someone feels a council should have done something different.
50. What that means in this particular case is that it is not for me to make my own judgement about whether Ms B should have been given medical priority. However, I can consider whether the Council properly made and explained its decisions about this.
51. When the Council wrote to Ms B in September 2022 to notify her of the assessment outcome, it failed to provide reasons as to why it did not award medical priority. This is not in line with the Council’s policy. It should have included reasons for the decision. The Council’s failure to communicate with Ms B is fault.
52. Additionally, the Council took 11 weeks to make this decision. The Council policy states it will decide within 28 days. The Council did not do this. The Council’s failure to provide this information on time is fault.
53. Ms B then asked for a review because she disagreed with the decision not to grant medical priority. The Council should have responded within 8 weeks but it took over 14 weeks to reply and this is fault. The Council have already apologised for the delay in responding to Ms B on this matter.
54. A senior officer completed the review and upheld the Council’s decision not to grant medical priority. This review decision letter failed to document that it had considered the letter provided from Children’s Services and it only quoted the allocations scheme around emergency rehousing, which Ms B would unlikely meet. The letter should have mentioned relevant policy about reasonable preference on medical grounds. Therefore, the Council has not properly explained its decision against all relevant parts of the policy and not properly reached its decision. This is fault.
55. I find fault causing injustice in this part of Ms B’s complaint. These faults have caused Ms B frustration and uncertainty.

The Council failed to investigate Ms B’s concern that she was denied a suitable property despite the Council’s system stating she was successful in her bid:

56. Ms B became aware of the case note stating that she was successful in her bid for a property in April 2023 following a Subject Access Request. Ms B complained about this point to the Council in May 2023.
57. The Council responded quickly within a week The Council stated the officer made the note on the system in error. The Council also confirmed that Ms B did not miss any offers of properties.
58. The Council’s response evidenced it had investigated this point and therefore I am satisfied there is no fault here.

The Council failed to address Ms B’s complaint and took too long to respond:

59. Ms B complained to the Council on 16 May 2023. The Council responded promptly to this complaint.
60. Ms B did not agree with the complaint response and escalated this to stage 2. The Council says it received this escalation on 22 June however failed to send it to the correct department until 23 July. The Council said it was unsure why there was a delay. The Council responded to this complaint on 1 August. The Council’s policy says it will respond to complaints within 20 working days. This did not happen and is fault.
61. In this complaint response, the Council responded to most of Ms B’s complaint points. However, the Council did not address Ms B’s complaint that the allocations scheme failed to take account of duties under the Equality Act 2010, the Housing Act 1996, the Public Sector Equality Duty and the Social Housing Allocations Guidance.
62. I find fault in the Council’s delayed response to Ms B’s complaint and that it failed to address all of the complaint points. This caused Ms B further frustration and uncertainty.

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Agreed action

63. Within one month of my final decision the Council agreed to:

• apologise to Ms B for the faults and injustice identified in this statement;
• make a payment of £150 to Ms B in recognition of the frustration and uncertainty caused by the Council’s failings;
• carry out a further medical assessment with Ms B and fully explain the reasons for its decision; and
• remind all housing staff dealing with medical assessments of the importance of properly explaining decisions in letters.

64. The Council should provide us with evidence it has complied with the above actions.

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Final decision

65. I have completed my investigation with a finding of fault causing injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman