Summary: Mr X complains about how the Council assessed his priority for social housing. There was fault by the Council which caused avoidable distress, time, and trouble to Mr X. It also may have caused Mr X a missed opportunity to be allocated social housing that was suitable for him. The Council agreed to apologise, pay a financial remedy, and reconsider Mr X’s application, backdating this as needed. It will also introduce a checklist to ensure it properly records consideration of all factors outlined in its housing allocation policy, when considering housing applications.

The complaint

1. Mr X, who has a disability, complains about how the Council dealt with his family’s housing application from 2022 onwards. He says the Council:
• failed to process his application and lost documentation he provided. He had to apply again and missed housing opportunities for 12 months;
• did not consider the application properly and awarded him the wrong priority;
• delayed in responding to his complaint about these issues; and
• discriminated against him based on disability and issued a biased and unfair response to his complaint.
2. Because of this Mr X says his family remained in a private rental home which was overcrowded and not suitable for his accessibility needs. This caused the whole family distress, and worsened Mr X’s physical and mental health problems.
3. Mr X wants the Council to award him a higher priority, backdated to when he first applied.

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The Ombudsman’s role and powers

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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
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. 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

8. I considered:
• information provided by Mr X and discussed the complaint with him;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
9. Mr X and the Council had opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legislation and statutory guidance – housing allocations

10. 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))
11. 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; and
• people who need to move to avoid hardship to themselves or others;

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

12. Someone is homeless if they have no accommodation or if they have accommodation, but it is not reasonable for them and anyone who lives with them to continue to live there. (Housing Act 1996, Section 175)
13. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.
14. 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
• reviews should normally be completed within a set deadline - 8 weeks is suggested as reasonable.

Background

15. Mr X is disabled. He lives with his wife and four children. In 2020, he made his first housing application to the Council. He said his private landlord had served him with an eviction notice. The Council closed this application four months later because it decided Mr X:
• was still owed a homelessness duty by a different council, which had placed him in a private rental property within Great Yarmouth Borough Council’s area the previous year; and
• had not provided enough information for it to progress the application.
16. In 2021, Mr X and his family moved to a different private rental property within the Council’s area. Five months later, Mr X enquired with the Council again about making an application for social housing. He said his property was overcrowded and not suitable. The Council said it would send him a housing application form.
17. In April 2022, Mr X made a new social housing application. The Council at first decided Mr X was not eligible to join its housing register. However, following a review, it accepted Mr X onto the register in February 2023. There then followed further reviews because Mr X did not consider the Council awarded him the correct priority on its register.
18. In 2023 Mr X complained to the Council about how it had applied its housing allocation policy and dealt with his reviews. The Council responded to Mr X’s complaint in November 2023, and he then brought his complaint to the Ombudsman.
19. While we were investigating Mr X’s complaint, he continued to correspond with the Council about these issues and ask for reviews of his priority. The Council said its decision about Mr X’s priority remained the same.

The role of the Ombudsman

20. The Ombudsman is not an appeal body. It is not our role to decide what priority a housing applicant should be awarded. We investigate the processes a council followed, to assess whether it made its decisions properly. We may not find fault with a council’s assessment of a housing application, or a housing applicant’s priority, if it has carried this out in line with its published housing allocations scheme. The Ombudsman recognises that the demand for social housing far outstrips the supply of properties in many areas. We may not find fault with a council for failing to re-house someone, if it has prioritised applicants and allocated properties according to its published policy.

My findings

April 2022 – February 2023 decisions about eligibility for the housing register

21. Mr X made a new housing application to the Council in April 2022. In his application, Mr X said:
• his family’s home was overcrowded; and
• he was disabled and could not climb stairs so needed a suitable property with adaptations for this.
22. At that time, the Council’s housing allocation policy set out the circumstances in which applicants would not qualify for the Council’s housing register. This included if they:
• owed significant housing related debt to a council or other landlord, equivalent to eight weeks or more rent;
• had been convicted of illegal use of their home;
• had allowed the condition of their property to deteriorate beyond reasonable wear and tear; or
• did not have a “local connection” to the area. To have a local connection they must have been resident in the borough for the past three years continuously, or be owed a statutory homelessness duty by the Council under the Housing Act 1996. Applicants were not considered to be resident in the borough if they had been placed there by a different council to discharge a homelessness duty to them.
23. In August 2022, four months after Mr X applied, the Council reviewed the application. It asked Mr X for more supporting evidence, and asked his previous landlords for references about Mr X and his housing history.
24. In October 2022, nearly six months after Mr X applied, the Council decided he was not eligible for its social housing register. It told Mr X this was because a previous landlord provided evidence he owed significant rent arrears when leaving the property. The landlord also told the Council Mr X had damaged the property and used it illegally while living there.
25. I considered the Council’s records about how it considered this application, and its communications with Mr X about the outcome. I found the Council properly considered all the evidence available to it. I found no fault in how the Council made its decision which would cause me to question the outcome.
26. However, I found the Council took too long to consider the application. Its policy did not give a timescale for how long it should take to assess an application. It took nearly six months to do so, which I consider was too long. In response to our enquiries the Council accepted there was a delay in processing the application due to a backlog. This delay was fault.
27. A week after the Council said Mr X was not eligible, he sought a review of the Council’s decision. He disputed the claims of his previous landlord, and asked the Council to consider that his home was not suitable for his disability and his family were overcrowded. Six weeks later the Council responded to Mr X’s review request but did not change its decision that he was ineligible. I found the Council properly considered this decision. I found no fault in how the Council made the decision which would cause me to question the outcome.
28. Two weeks later, Mr X asked for a further review. He then provided new evidence to contradict the claims of his previous landlord about rent arrears, and property damage. Eight weeks later the Council responded and overturned its decision about Mr X’s eligibility. It said it would accept his family onto the housing register, and started to review the application details to decide what his priority on its register should be.

Changes to the Council’s housing allocation policy in March 2023

29. The Council updated its housing allocation policy during the period I investigated. The Council wrote to all live housing applicants on its register in December 2022 to explain the change of policy. It said all applicants must make a new application on its new online system by the end of March 2023 to remain on the register. Because the Council had not yet accepted Mr X onto the register in December 2022, and was still considering his review, it did not send him this communication. The new policy came into effect on 6 March 2023, four weeks after the Council decided Mr X was eligible to join its register, while it was still gathering evidence to decide his priority.
30. After it accepted Mr X onto the register, the Council took five weeks to tell him about the change of policy and that he must make a new online application. In the circumstances, I do not consider this to be fault. Mr X was able to make an online application before the end of March deadline and remained on the housing register.

The Council’s housing allocation policy from 6 March 2023

31. The Council assesses and places qualifying applicants in one of five priority bands, based on the urgency of their housing need. The policy describes its priority bands as follows, with the highest priority first.
• Priority Band. Immediate, emergency, or critical housing need, and needs to move within eight weeks. The Priority Band is temporary for three months but can be extended by exception where the Council has not yet offered an applicant a suitable property. An example given is an applicant in a property not suitable for their needs, with limited or no safe access to required facilities, where the property cannot be adapted to meet their needs, and there is a lack of available suitable properties which can meet their needs.
• Band A. This band includes applicants who:
1. the Council has determined are unintentionally homeless under The Housing Act 1996, and are in priority need, so are owed a duty by the Council to secure suitable accommodation for them. Examples of applicants in priority need include people with dependent children, and people who are vulnerable due to serious health problems or disability;
2. are occupying insanitary, overcrowded, or unsatisfactory housing, and have an urgent housing need. In cases of overcrowding, where an applicant is two or more bedrooms short, they will be in Band A; or
3. have an urgent need to move on medical or welfare grounds, including grounds related to a disability.
• Band B. This band includes applicants who:
1. the Council has determined are homeless under The Housing Act 1996 but are not in priority need (as described above for Band A), or are intentionally homeless;
2. are occupying insanitary, overcrowded, or unsatisfactory housing, but do not have an urgent housing need (as described above for Band A). In cases of overcrowding, where an applicant is one bedroom short, they will be in Band B; or
3. need to move on medical or welfare grounds, including grounds related to a disability, but this is not an urgent need (as described above for Band A). The Council describes this as “medium medical or welfare need”.
• Band C. This band includes applicants who:
1. are homeless under the meaning of The Housing Act 1996 but have not made a homeless application, or the Council is still deciding their application; or
2. need to move on medical or welfare grounds, including grounds related to a disability, but have “low medical or welfare need”.
• Band D. All other eligible applicants.
32. In deciding whether an applicant needs to move on medical or welfare grounds, the Council will consider:
• whether the applicant has a housing needs report prepared by an appropriate professional, setting out their needs for an adapted property; and
• the impact of their current housing on their physical and mental health.
33. In deciding whether an applicant has an urgent housing need, in all cases, the Council will consider the impact on the household should their housing circumstances not resolve within six months. Where it decides there would be a material impact, it will consider the need for a move to be urgent.
34. The Council will advise all applicants of the result of their application to join the housing register within ten working days of receipt. It will advise an applicant of their priority band within ten working days of receipt of any requested evidence.
35. Applicants may seek a review of a decision they do not qualify for the housing register, or about what their priority band should be. The policy says the review:
• must be by another council officer not involved in the original decision, senior to the officer who made the original decision; and
• should be complete within eight weeks of the review request, unless the Council has advised the applicant an extension is needed and the reasons. The Council will communicate the review outcome and reasons in writing to the applicant.
36. If an applicant feels the Council has not properly followed its housing allocation policy, or they are not satisfied with the outcome of a review, they can complain via the Council’s corporate complaints procedure.
37. Within each priority band, the Council awards each applicant with a ‘relevant priority date’, which is their date of application. If an applicant’s circumstances change and their priority band increases, their relevant date becomes the date they moved to that increased band. The applicant with the earliest date within each band is at the top of the list, because they have had that priority for a longer time.
38. Applicants to whom the Council owes a full homeless duty (in Band A), who are not already in temporary accommodation secured by the Council, will receive ‘additional preference’. The Council will backdate their relevant priority date by three months.
39. The Council allocates properties to the applicant in highest housing need, who needs the particular property. There is no bidding process, the applicant at the top of the waiting list is offered first refusal for a property that is suitable for their needs.
40. The Council may offer a ‘Direct Let’ to an applicant in Priority Band, Band A, or Band B, outside this allocation system, where agreed by a manager. The Council will only offer a Direct Let where there is a proven need to house an applicant quickly and they have a particular need for a property which is in limited supply.
41. For all adapted properties, and properties identified as potentially suitable for adaptation, the Council gives ‘additional preference’ to applicants that need adaptations. To get additional preference, the applicant must have a housing need report (by an appropriate professional, setting out their adaptation needs) within the last twelve months. The Council will prioritise their housing application above all other applicants in the same band who do not have a recent housing need report.

August 2023 priority band decision

42. In March 2023, after the Council introduced its new housing allocation policy, it told Mr X he had to make a new online application. The Council asked him to provide further evidence to support the application. It then closed the application two weeks later because he had not responded to this request. However, it then quickly reopened the application after Mr X clarified he had not received the evidence request. It backdated the date of Mr X’s application to his original April 2022 application date under its old system, so nothing changed for Mr X.
43. In August 2023, five months after the new online application, the Council finished assessing it. The Council awarded Mr X Band B priority due to medical needs and overcrowding by one bedroom, with a relevant date of April 2022. The Council took too long to consider this application, which was fault. The Council said it received an unprecedented number of applications after it launched the new online application service, which, combined with staff vacancies, led to a backlog.
44. I also found fault in the Council’s decision making which may call into question the outcome.
45. The Council’s policy gives examples of circumstances where it is likely to award Priority Band. This includes where “the applicant currently lives in accommodation which is not suitable for their needs so that they have limited or no safe access to some or all required facilities, the current property cannot be adapted to meet their needs, and for which there is a lack of available suitable properties which can meet their needs”.
46. The Council recorded in its considerations at the time that Mr X had no access to facilities for sleeping because he could not get upstairs in his current property due to his disabilities. It also recorded his bathing conditions were unsuitable. Given the language used by the Council aligned with an example in its policy where it said it would award Priority Band, there are insufficient records from the time to show why it decided Mr X had medium medical need, and so should be Band B priority, instead of a higher band.
47. The Council’s policy says the way it makes the distinction between medical priority at the different bands is by deciding how urgent the need to move is, that is:
• an immediate or critical need to move within eight weeks falls into the Priority Band;
• an urgent need to move on medical or welfare grounds falls into Band A; and
• a need to move on medical or welfare grounds where this is not urgent falls into Band B.
48. The policy also says that in all cases, to decide whether the need to move is urgent, it will consider the impact on the household should their housing circumstances not resolve within six months. If it decides there would be a material impact, it will consider the need to move to be urgent, and therefore to justify placement in Band A. There is no record from the time to show the Council considered this, so it is not clear why the Council decided this was Band B priority.
49. Therefore, there was fault in the process undertaken to make the decision, either through lack of consideration of all relevant factors, or poor record keeping to show this happened.

October 2023 priority band review outcome

50. After the Council decided to place Mr X in Band B in August 2023, he quickly asked it to review this decision. The Council decided to make a referral to an Occupational Therapist (OT), to produce a housing need report for Mr X. It then responded to Mr X’s review request, within the eight-week timescale set out in its policy. It said it had considered the OT housing needs report but its decision about Mr X’s priority remained the same and he should be in Band B.
51. Again, I found fault in the Council’s decision making which may call into question the outcome.
52. The OT report said Mr X could not safely access the property from the outside, did not have “safe, independent, and dignified access to appropriate facilities for personal care and toileting”, and could not safely access the upstairs where all the bedrooms were. This aligned with the notes the Council made when it considered its previous August 2023 decision. The Council’s records show it accepted Mr X lived in a property not suitable for his needs, with limited or no safe access to required facilities. The OT report also said Mr X’s landlord had refused adaptations to enable Mr X to get upstairs. It said even with stair adaptations, other adaptations needed to the outside-access and the bathroom would not be possible based on the property layout.
53. The only record the Council kept of the October 2023 review consideration was the outcome letter it sent to Mr X. Although this letter says the Council considered the OT report, it does not provide any further comment on the report. The Council did not make any record that it disagreed with the OT’s evaluation of Mr X’s living circumstances, or their recommendations; it appears the Council accepted the OT comments about access to bedrooms and bathing facilities. However, as with the previous August 2023 decision, there is no record to show the Council considered:
• the impact on the household should their housing circumstances not resolve within six months, to decide whether the need to move was urgent; or
• why it accepted Mr X could not access certain facilities, but decided this was a medium medical need, and so should be Band B priority, instead of a higher band.
54. Therefore, there was fault in the process undertaken to make the decision, either through lack of consideration of all relevant factors, or poor record keeping to show this happened.

February 2024 priority band review outcome

55. After the October 2023 review outcome, the Council accepted a complaint from Mr X about how it had applied its allocation policy and dealt with his reviews. It responded to the complaint in November 2023. In the complaint response it said it had checked with Mr X’s current landlord and found, contrary to the OT report, they were willing to adapt the stairs so Mr X could access the bedrooms. The Council accepted this would not meet all Mr X’s needs for adaptations.
56. During the complaint, Mr X had also told the Council his circumstances had changed because one of his children had moved out. This meant he now only needed a three-bedroom property. The Council re-assessed his housing application and decided that although he was no longer overcrowded, his priority remained the same at Band B based on his medical needs. Mr X then asked for another review as he still felt his priority band should be higher.
57. The Council responded to this review request three months later, in February 2024. It said its decision remained the same that Mr X should be in Band B. Again, I found fault in the Council’s decision making which may call into question the outcome, because there is no record to show the Council considered:
• the impact on the household should their housing circumstances not resolve within six months, to decide whether the need to move was urgent; or
• why it accepted Mr X’s property could not be adapted to meet all his needs, but decided this was a medium medical need, and so should be Band B priority, instead of a higher band.
58. Therefore, there was fault in the process undertaken to make the decision, either through lack of consideration of all relevant factors, or poor record keeping to show this happened.

Complaint handling delays

59. The Council said Mr X first complained about how the Council applied its allocation policy, and dealt with his reviews, in October 2023. Mr X said he complained much earlier than this, in July 2023, but the Council failed to respond to many of his complaints. I found Mr X first complained in July, about delays to consideration of his housing application and reviews. He chased this several times, but the Council did not accept a complaint from him via its complaints procedure until October 2023. This was fault.

The Equality Act 2010

60. Mr X says the Council discriminated against him based on disability and issued a biased and unfair response to his complaint.
61. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport, and the carrying out of public functions.
62. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. The ‘protected characteristics’ referred to in the Act are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
63. We cannot decide if an organisation has breached the Equality Act, or whether it has discriminated against an individual in its treatment of them. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
64. Mr X is disabled under the Equality Act 2010. I am not satisfied the Council had due regard to Mr X’s individual circumstances, or his disability, in the decisions it made about his housing. Therefore, it did not properly consider its duties to him under the Equality Act, which was fault.

Injustice caused to Mr X and his family

65. Had the Council acted without fault, I cannot say, even on the balance of probabilities, what priority band it would have awarded Mr X. This is a decision for the Council to make based on Mr X’s application, against all the criteria set out in its policy.
66. As it stands, Mr X was only considered for available Council properties from 4 August 2023, when the Council made its first decision about his priority band. From August 2023 onwards, he remained on the register at Band B, with a relevant priority date of 20 April 2022. From 5 October 2023, after the Council considered his OT report, he also had additional preference for adapted properties, allowing him priority over others in Band B without a recent housing need report.
67. The Council delayed in considering Mr X’s April 2022 application. At the time the Council’s allocation policy did not specify a timescale for this. In the absence of a specified timescale, I consider the Council should have responded to tell Mr X it did not consider him eligible within ten working days, in line with its current allocation policy. Had it considered this in good time, he could have sought a review sooner, and been accepted onto the housing register around five months sooner. The Council then delayed in deciding Mr X’s priority band once it accepted him onto the register. If it had not delayed, I decided Mr X would have been considered for available Council properties, at Band B, with a relevant priority date of 20 April 2022, from October 2022. Therefore, he may have missed out on properties for the ten months from October 2022 to August 2023.
68. Without the delays, Mr X also could have had an OT report sooner. If he had, he would have been awarded additional preference for adapted properties sooner. This adds to the uncertainty about what he may have missed out on.
69. I am also not satisfied the Council properly considered what Mr X’s priority band should be. This creates further uncertainty about whether he may have missed out on suitable properties from October 2022 onwards, because it may be his priority should have been higher for some or all of this period.
70. The Council should consider whether Mr X has missed out on any properties that were suitable for him (or could be adapted to be suitable for him). It should remedy any injustice caused, as set out in the ‘Recommended action’ section below.
71. Because of the Council’s fault in its handling of the application, the reviews, and the complaint, Mr X was caused avoidable distress, and avoidable time and trouble in bringing the complaint. The Council should remedy the injustice caused.

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Agreed action

72. Within one month of our final decision, the Council will:
1. apologise to Mr X for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making its apology;
2. pay Mr X £300 to recognise the avoidable distress caused by its poor handling of his housing application;
3. pay Mr X £150 to recognise the avoidable time and trouble caused in bringing his complaint; and
4. reconsider Mr X’s housing application, with all the available evidence it holds on file, against all the criteria set out in its published allocations policy. It will fully record, and communicate to Mr X, the reasons for its decision and what evidence it considered, and:
1. If the Council decides to increase Mr X’s priority from Band B, it will do so immediately, with a relevant priority date of when it first received the evidence on which this decision is based.
2. The Council will then review all properties it has allocated since 1 October 2022 which would have been suitable for Mr X (or could have been adapted to be suitable for him). If it finds it would have allocated Mr X a property if it had considered his application properly and without delay, it will pay him £750 to recognise the distress caused to him by this missed opportunity. It will also allocate Mr X the next available suitable property, if it finds he missed out on one previously.
73. Within three months of our final decision, the Council will introduce a checklist for staff considering housing applications, to ensure it properly records consideration of all factors outlined in its housing allocation policy, including the urgency of any need to move.
74. The Council will provide us with evidence it has complied with the above actions.

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Final decision

75. I have completed my investigation. There was fault by the Council which caused avoidable distress, time, and trouble to Mr X. It also may have caused Mr X a missed opportunity to be allocated social housing that was suitable for him. The Council agreed to our recommendations to remedy this injustice. It will also introduce a checklist to ensure it properly records consideration of all factors outlined in its housing allocation policy, when considering housing applications.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman