Summary: The Council was at fault, because a communication error meant a delay in confirming the complainant’s family’s housing allocation band, which in turn meant they missed out on their preferred property. The Council has agreed to offer the complainant a financial remedy, and also to consider whether they should be allowed to rejoin the housing register. The Council was also at fault because it did not address some points of Mrs C’s complaint, but this did not cause an injustice. We have therefore completed our investigation.

The complaint

1. I will refer to the complainant as Mrs C.
2. Mrs C complains the Council did not promptly recognise her family’s housing need, which meant it delayed agreeing a change to their priority on the housing register, with the result that they missed out on a suitable property. Due to Mrs C’s youngest son’s medical situation, this means her two older children must inappropriately share a room. Mrs C also complains the Council delayed taking a homelessness application from her.

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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. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
6. 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.
7. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)

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How I considered this complaint

8. I reviewed Mrs C’s correspondence with the Council and the Council’s allocation policy.
9. I also shared a draft copy of this decision with each party for their comments.

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What I found

10. The following is intended only to set out the key events relevant to this complaint. It will not detail everything which happened.
11. Mrs C lives with her husband, her teenage daughter, and her two younger sons. The youngest child, to whom I will refer as P, has very significant care needs, which includes the constant use of bulky medical equipment.
12. The family were living in a small social housing property, but after a deterioration in P’s health he was admitted to hospital in 2022, where he remained for several months. Although his health improved, he was unable to be discharged from hospital because there was no space for his care and equipment in the family’s current property.
13. Mrs C made an application to the Council’s choice-based letting scheme in October 2022. In November, the Council wrote to Mrs C to explain it had placed the family in Band 3 of its scheme, because a member of the family had a medical condition which was affected by their current property. The Council also explained it had assessed the family as needing a 3-bed property.
14. In December the family’s support worker requested a review of this decision on Mrs C’s behalf. She explained the family’s current living situation was significantly detrimental and unsuitable, and said the family should be placed in Band 1 (emergency rehousing) for a 4-bed property.
15. The Council arranged for an occupational therapist (OT) to visit the family as part of the review process. The Council considered the OT report, and decided to change the family’s banding to Band 2, due to severe overcrowding and urgent medical need. However, it said it could not agree to Band 1 on the current information. The Council also suggested the family could make a homelessness application, on the basis their current property was not reasonable to continue occupying.
16. In January 2023 Mrs C wrote to the Council to say she had been unable to bid on any property since the change in banding, and reiterated the family’s situation. She explained P was still unable to come home from hospital and was repeatedly catching infections there.
17. The Council reconsidered the situation on the basis of this information and agreed the family may be eligible for Band 1. Under the Council’s allocation policy, such decisions must be confirmed by its Emergency Cases Rehousing Panel, which sits once per month. Due to an internal communication error, Mrs C’s case was not put to the February panel. It was subsequently discussed by the March panel, which agreed the family should be in Band 1.
18. Separately, in January Mrs C contacted the Council to make a homelessness application. The Council requested some documentation from her and provided her a link to complete the application form. It later accepted the relief duty for the family and issued a personal housing plan (PHP), encouraging Mrs C to seek a property in the private rented sector and explaining it could offer assistance with a deposit for this purpose.
19. In April the Council offered Mrs C a 3-bed property under its allocation policy. After further correspondence, it confirmed the family would have been offered a different, 4-bed property, had it not been for the delay in presenting their case to the panel. It explained this property had now been accepted by another family and it could therefore not offer it again to Mrs C. It reconfirmed its offer of the 3-bed property and urged Mrs C to accept it, which she subsequently did.
20. Between April and August, Mrs C pursued a complaint with the Council about these matters (on which I will provide more detail in the ‘Analysis’ section). The Council upheld her complaint on a number of points, in particular with regard to the delay in presenting her case to the panel and the fact the family then missed out on their preferred property. It explained, however, that its normal remedy under such circumstances was to offer the next available property, which it had done anyway.
21. In September, Mrs C referred her complaint to the Ombudsman.

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Legislative background

Housing allocations

22. 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))
23. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.
24. Statutory guidance on the allocation of accommodation says:

• review procedures should be clear and fair with timescales for each stage of the process;
• there should be a timescale for requesting a review - 21 days is suggested as reasonable;
• the review should be carried out by an officer senior to the original decision maker, or by a panel not including the original decision maker; and that
• reviews should normally be completed within a set deadline - 8 weeks is suggested as reasonable.

Homelessness

25. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. This is called the ‘relief duty’. When a council decides this duty has come to an end, it must notify the applicant in writing (Housing Act 1996, section 189B)
26. If the relief duty has come to an end, and the council is satisfied an applicant is homeless, eligible for assistance, and has a priority need the council has a duty to secure that accommodation is available for their occupation. This is called the ‘main housing duty’. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)

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Analysis

27. In her original complaint to the Council in April 2023, Mrs C listed various points of complaint about its handling of her housing and homelessness matters, and explained how she considered this had affected her and her family. She added several more points in her stage 2 complaint in May.
28. The Council issued its stage 2 complaint response in August, responding to her points individually. For clarity and ease, I will also consider Mrs C’s complaint by addressing each of these points in turn, as they are listed in the Council’s stage 2 response.
29. First, I will explain that he 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.
30. 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.

The Council tried to misdirect Mrs C’s case in line with a relief duty, despite being reminded of its duty under the Equality Act 2010

31. As I have explained in the previous section, the law says that, where a council is satisfied a person is homeless and eligible for assistance, it will owe them the relief duty. This is a duty to help them secure suitable accommodation. The relief duty lasts for a maximum of 56 days, at which point, if the person is still homeless, the Council will owe them the full housing duty.
32. This being so, it is not clear to me what Mrs C means by ‘misdirection’ here. She made a homelessness application on 31 January, and after the Council sought further information from her and considered it, it accepted she was homeless and owed the relief duty on 22 February. This is precisely what the Council is supposed to do under these circumstances, and so I see no evidence of fault here.
33. The relief duty was due to end on 19 April, but by this point, the Council had already made a permanent offer of social housing, and so it did not need to take any further action under its homelessness duties.
34. Mrs C also implies the Council failed to adhere to its duty under the Equality Act 2010, specifically the Public Sector Equality Duty (PSED).
35. The broad purpose of the PSED is to consider equality and good relations in the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.
36. However, the PSED does not require an authority to make a specific operational decision to suit a particular applicant, simply because they have a protected characteristic. It is, again, unclear therefore why Mrs C considers the PSED to be relevant here, even putting to one side the fact I see no evidence of fault in this element of her complaint.
37. I find no fault in this element of Mrs C’s complaint.

The Council prevented Mrs C from making a homelessness application between October 2022 and February 2023

38. In response to this complaint, the Council acknowledged it has a duty to identify that someone is in need of homelessness assistance, but said there must be a clear desire on the applicant’s part, and not simply that they are seeking assistance through the housing register or general advice. The Council noted it had expressly suggested that Mrs C make a homelessness application when it advised her of the banding decision in December, but she had not made an application until the end of January,
39. I share the Council’s view here. I have seen nothing to suggest Mrs C wished to make a homelessness application sooner than she did, much less that the Council had prevented her from doing so; and this is despite the Council advising her it may be beneficial when it provided the review decision in December.
40. And indeed, in her email to the Council of mid-January, Mrs C explicitly said she was “not willing to become homeless as [the Council] advised”. It is not possible to reconcile this statement with her complaint that the Council had been preventing her from making a homelessness application at this point.
41. I find no fault in this element of Mrs C’s complaint.

The Council deliberately delayed Mrs C’s housing register application by not originally placing it in Band 1

42. The Council has explained, when it originally reviewed Mrs C’s banding in December, it agreed she had medical priority, but on the basis of the OT report did not consider this met the threshold for Band 1. It was only when she provided more information in January that it became clear Band 1 might be appropriate. The Council also noted this was still within the 56-day deadline set out in its policy for review decisions.
43. I appreciate why Mrs C feels the family should have been placed in Band 1 after the original review decision in December. However, as I have explained, it is not for us to make this type of operational decision on the Council’s behalf, and this remains so, even accepting the Council later changed its decision. It explained, at that time, that the OT report indicated the family could accommodate P’s medical equipment with some rearrangement of the current property, and it could therefore not agree they needed emergency rehousing. This was a decision the Council was entitled to make at the time, and I have no grounds to criticise it.
44. However, the Council has acknowledged there was then a delay in presenting Mrs C’s case to the panel. Had the case been heard in February, as it should, then Mrs C would have been granted Band 1 in time to make the shortlist for the 4-bed property; and the Council has confirmed it would then have offered her the property.
45. The Council has accepted it was at fault for this, but considers it has remedied the injustice to Mrs C from this fault by offering her the next available property, a 3-bed house, which she then accepted. And, as the Council has assessed Mrs C’s family as needing only a 3-bed property, in the narrow sense this would appear to have resolved the matter.
46. I appreciate a family of the size and makeup of Mrs C’s would normally qualify for a 3-bed property under the Council’s allocation policy; with one bedroom for Mrs C and her husband, one for her daughter, and one shared between her two sons.
47. However, the Council’s policy also says it may assess a person as requiring their own bedroom on medical or care grounds. Because of P’s medical conditions, he requires a significant amount of bulky medical equipment, including oxygen tanks, as well as constant care. Mrs C has explained it is therefore not practical for him to share a room, which means her daughter and elder son must share instead. But, because Mrs C’s daughter is over 10 years old, under the Council’s policy she should not be sharing a room with her brother.
48. I should note again it is not for me to make own decision what size property Mrs C’s family should qualify for. But the circumstances described in the Council’s policy, under which they would need an extra bedroom, certainly appear to apply here; this being so, I would expect the Council to be able to show it had considered this, and to give a clear explanation why it had decided otherwise. I have seen no such consideration here though, and so I am not satisfied the Council has properly applied its policy.
49. This being so, I do not consider it can safely be said the Council has remedied the injustice arising from this fault yet. In order to do so, the Council needs to reconsider the family’s bedroom requirement, in line with its allocation policy. If it decides the family should qualify for an additional bedroom, it should then allow them to rejoin the housing register, at an appropriate band, with their priority backdated to February 2023. I make a recommendation to this effect.
50. Separately, although I cannot say the Council should accept Mrs C’s family needs a 4-bed property, there is no question the family would have been offered the 4-bed property if there had been no fault. Regardless of any decision the Council makes about future rehousing, therefore, I consider Mrs C has been caused a significant amount of distress by this, and for this reason the Council should also offer her a financial remedy.
51. Our published guidance on remedies says:

“Where we decide it is appropriate, we will normally recommend a remedy payment for distress of up to £500. We can recommend higher payments to remedy distress where we decide it was especially severe and/or prolonged and/or taking account of personal vulnerability of those affected.”

52. In this case, I consider a higher remedy payment to be appropriate. This is because the family have now been living in a smaller property than they would have been for nearly a year, and (if the Council subsequently decides they are entitled to a 4-bed property) there is no certainty when this situation will be materially resolved. I also consider that P’s medical situation and the ages of the children involved create an element of vulnerability.
53. Taking this together, I consider £1000 to be an appropriate financial remedy. I also make a recommendation to this effect.
54. I find fault causing injustice in this element of Mrs C’s complaint.

The homelessness case officer failed to deal with Mrs C’s application properly

55. Mrs C says, in particular, that the officer asked for irrelevant information as part of the application process, delayed progressing the case, and was rude, dismissive and unprofessional to Mrs C and others.
56. The Council originally dealt with Mrs C’s complaint about this officer outside of the formal complaints process. The officer’s line manager emailed Mrs C to say she had spoken to the officer, and explained there was a delay after the case was allocated to her because the officer was on leave. The manager also explained the questions the officer had asked were important parts of the application process, and not irrelevant as Mrs C had perceived.
57. In the Council’s stage 2 response, it expanded on this slightly, by explaining it needed to ask the questions Mrs C had objected to in order to establish her eligibility. It acknowledged Mrs C’s distress at this, but said it was satisfied the officer had asked the questions in good faith and not in an attempt to delay the application.
58. However, the Council did acknowledge it should have had staff in place to cover the officer’s leave, which would have prevented the delay in Mrs C’s initial appointment. It explained it was in the process of recruiting more staff to address its capacity issues.
59. The Council apologised to Mrs C for this, but noted the delay was only for 12 days and said it did not consider this would have had a significant impact on the case.
60. Again I share the Council’s view on these points. It is unfortunately the case that assessing eligibility for homelessness assistance can involve asking personal questions of application, and while I appreciate why Mrs C might have found this offensive, I have seen nothing to suggest the officer’s questions were inappropriate.
61. I also do not consider the delay in Mrs C’s initial appointment to be significant. This is because the Council did not ultimately take any substantive action under its homelessness powers anyway, as it offered Mrs C a property under the housing register instead, and so I cannot see what meaningful injustice arose from the delay.
62. However, in her stage 1 complaint, Mrs C made other allegations about the officer, including that she took personal phone calls while speaking to Mrs C, and failed to respond to other professionals who had contributed information about Mrs C’s case. I cannot see that the Council addressed these points, in either its stage 1 or 2 responses.
63. I am not in a position to make my own judgement whether Mrs C’s complaints about the officer are merited. I was not present during her conversation with the officer, and nor is there any objective evidence available which would allow me to judge whether the officer responded promptly to contact from other professionals. But, either way, I consider the Council should have responded to these complaints.
64. On balance I also find fault for this reason. However, even accepting the Council should have responded to these points, I am not persuaded this fault amounts to a significant injustice to Mrs C. This is because, again, her homelessness application became academic before the Council had to take any substantive action; and so, while it may have caused Mrs C some frustration, no wider impact arose because of this.
65. Separately, I will note the outcome Mrs C desires from this element of her complaint is for the officer to be subject to a disciplinary investigation, and for her to informed of the outcome of this. The law prevents us from becoming involved in personnel matters, and this means we cannot recommend a council take disciplinary proceedings against a staff member. Regardless of any other findings, therefore, this is not a recommendation I could make.
66. We also would not expect a council to share the findings of a disciplinary investigation with a third party, even the original complainant, as such matters are confidential and subject to strict data protection.
67. I find fault which did not cause injustice in this element of Mrs C’s complaint.

The Council wrongly categorised Mrs C’s family as a having a 3/4-bed size requirement, rather than 4/5

68. As I have explained in a previous section, this is not a judgement I can make, although I recommend the Council reconsider this for the reasons I have set out. As I have already made a relevant finding though, I will not make a separate finding on this element of Mrs C’s complaint.
69. I have discontinued my investigation of this element of Mrs C’s complaint.

The family have been forced to accept a 3-bed property as a result of the Council’s fault

70. Again, I have addressed this element of Mrs C’s complaint in a previous section, and so I will not repeat my finding here.
71. I have discontinued my investigation of this element of Mrs C’s complaint.

Mrs C had to pay rent for the original property between 12 April and 15 July 2023 due to failings by the Council

72. It is unclear to me what failings Mrs C is referring to here. I can see there was some delay in the family moving to the 3-bed property after they had accepted it, because of problems with the boiler which the landlord (a housing association) needed to rectify. This meant they had to remain in the original, unsuitable property for some time longer, which also meant P could not be discharged from hospital.
73. However, while the Council is responsible for operating the allocations scheme, it is not Mrs C’s landlord and was not responsible for carrying out the repairs to the property. I cannot, therefore, criticise the Council for this delay, and we have no jurisdiction to consider complaints about housing associations.
74. Even putting this aside though, I do not consider the fact Mrs C had to continue paying rent for the original property could conceivably be an injustice. This is because she would have had to pay rent whichever property she was occupying at the time.
75. I find no fault in this element of Mrs C’s complaint.

The boiler at the 3-bed property was not working when the family moved in, despite the work on it being the reason for the delay in the moving-in date

76. Again, the Council was not responsible for this, as the property is owned by a housing association, and we have no jurisdiction to consider such complaints.
77. I find no fault in this element of Mrs C’s complaint.

The Council advised Mrs C to give final notice to the landlord of the original property on 12 April, which led to the landlord seeking possession

78. The Council has explained its offer letter instructed Mrs C to share its contents with the landlord, not to give notice, although it accepted the letter was ambiguous. It noted Mrs C had not actually accepted the offer of the 3-bed property at that point, and that, although she would eventually have needed to give notice to the landlord, it was obviously not advisable to give up her tenancy until the move was confirmed.
79. I have not seen a copy of this letter and so I cannot say precisely how it was worded, but even so I can appreciate how some confusion could arise here.
80. However, I am not persuaded this is a significant matter. The landlord did not evict the family from the original property and they were not homeless at any point. There was approximately two months between the date of this letter and the family moving home, and it is improbable the landlord would have succeeded in gaining possession in such a short period; and, as the Council has observed, Mrs C would need to have given notice during that time anyway.
81. As I do not consider there is any potential for injustice in this matter, I will not investigate it any further.
82. I have discontinued my investigation of this element of Mrs C’s complaint.

Conclusions

83. The Council was at fault, because it caused an error which meant there was a delay in confirming the family’s Band 1 status. In turn, this meant the family missed out on a property they were seeking, and instead had to settle for a smaller property.
84. Although the Council has accepted this fault and the consequent injustice, I do not consider it has taken adequate steps to remedy it. It should reconsider the family’s bedroom requirements in line with its allocation policy; and, if it agrees the family needs at least four bedrooms, it should allow them to rejoin the housing register, at an appropriate band, and with their priority backdated to February 2023.
85. The Council should also offer Mrs C £1000 to reflect her distress at its fault.
86. The Council was also at fault because it did not address two points of complaint Mrs C’s made about the conduct of the homelessness case officer. However, this fault did not cause significant injustice and so I make no recommendation.
87. I have found no fault, or have discontinued my investigation, in the other elements of Mrs C’s complaint.
88. Finally, I should also note here that Mrs C has made a significant general point that P was unable to be discharged from hospital until the family moved to a suitable property. She considers this caused him to pick up repeated infections in hospital, and also caused trauma to her older children, as she was absent from home for extended periods of time while she was tending to P.
89. I do not, in any way, seek to minimise or dismiss the distress this has caused to Mrs C or her family. However, I cannot say this arose because of any of the fault I have identified here. As I have explained, I have no grounds to criticise the Council for not originally agreeing Band 1 status for the family. While the Council’s fault meant the family missed out on a 4-bed property, it did not cause any significant delay in the family receiving an offer of a more suitable property, which (once they have moved into it) allowed P to finally be discharged from hospital.
90. I therefore cannot find this situation was an injustice caused by Council fault, or recommend the Council offer a remedy for it.

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Agreed action

91. Within one month of the date of my final decision, the Council has agreed to:

• offer Mrs C £1000 to reflect her distress at missing out on her preferred property due to Council fault;
• reconsider whether Mrs C’s family has a four-bedroom need under its allocation policy. If it decides they do, then it should allow them to rejoin the housing register, with an appropriate band, and with their priority backdated to February 2023.

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

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Final decision

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

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Investigator's decision on behalf of the Ombudsman