Summary: Mrs C complained about the priority given to her housing application. We upheld the complaint, finding fault in how the Council had considered her banding priority and the type of accommodation she could bid for. This caused her injustice through creating uncertainty and other distress. The Council has accepted our findings and agreed a series of actions to remedy this injustice detailed at the end of this statement.

The complaint

1. I have called the complainant ‘Mrs C’. She complains about the priority the Council has given to her housing application. Mrs C also complains the Council has placed unnecessary limits on the type of property she can bid for.
2. Mrs C says as a result she has lived in unsuitable accommodation for several years and faces a continued long wait for re-housing. This causes distress and continuing harm to her mental health.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. 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 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)
6. 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

7. Before issuing this decision statement I considered:

• Mrs C’s complaint to the Ombudsman and any supporting information provided;
• correspondence exchanged between Mrs C and the Council pre-dating our investigation;
• information provided by the Council in reply to my written enquiries;
• any relevant law, Government guidance, local policy or Ombudsman guidance referred to below.

8. I also gave Mrs C and the Council a draft version of this decision statement and invited them to comment and provide any further evidence relevant to the complaint. I took account of their responses to the draft decision before finalising this statement.

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What I found

Key legal and administrative considerations

Housing Allocations

9. Every local housing authority must publish an allocations scheme that sets out its procedures for allocating housing and how it prioritises applications. (Housing Act 1996, section 166A(1) & (14))
10. Allocations schemes 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))

11. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.

Homelessness

12. In addition, Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness. Someone is homeless if they have no accommodation or if they have accommodation, but it is not reasonable for them to continue to live there. (Housing Act 1996, Section 175)
13. If someone contacts a council seeking help to obtain accommodation and gives it ‘reason to believe’ they ‘may be’ homeless, the council has a duty to make inquiries into what, if any, duty it owes them. The threshold for triggering the duty to make inquiries is low. The person does not have to complete a specific form or approach a particular department of the council. (Housing Act 1996, section 184 and Homelessness Code of Guidance paragraphs 6.2 and 18.5)

Council Allocation policy

14. I consider the following extracts of the Council’s housing allocation policy relevant to this complaint:

• Section 3.1 and Appendix 2 which explain how the Council prioritises applications by placing applicants in bands. The Council awards Band A to those with urgent housing needs including urgent medical or welfare needs. These include applicants whose household includes “a person who is housebound due to stairs or steps” and / or “any person that is unable to access essential kitchen or bathroom facilities within their home”. It awards Band C for most homeless households and people who need to move on medical or welfare grounds.
• Section 3.2 which explains the length of time on the waiting list will determine priority for those households in the same priority band.
• Section 3.3 which explains more about how the Council assesses medical need. It says that it will ask applicants to complete a welfare and medical assessment form. Independent medical advisers will then assess the form. They will offer advice on priority and type of housing needed.
• Section 3.4 explains the County Council can refer applicants to the Council who need extra care or specialist accommodation. It says that for households whose property needs adaptations then “a housing needs assessment should be completed by a health professional or social services professional or equivalent”.
• Section 3.5 says that it will allocate a three-bedroom property to “families with three children regardless of age”. In comments during the investigation the Council says this applies to dependent children (i.e., those aged under 18).
• Section 3.8 says that it will give priority for three bed houses with two living rooms to larger families (i.e., those it assesses as needing four bedrooms).
• Section 10.6 covers changes in circumstance affecting priority and says this can include “the health of any member [...] on the application getting better or worse”.
• Section 12.1 gives applicants a right to review a decision made under the policy. It gives them 21 days to use this.

15. The Council is a partner in a local choice-based lettings scheme which enables housing applicants to bid for available properties advertised via a website.

Background and key facts

16. Mrs C lives in a private rented house in the Council’s area and has done so for several years. Her household includes her husband and three children, one of whom is aged over 18. The house has three floors. Its kitchen is on the ground floor, its living room on the first floor and Mrs C’s bedroom (with en-suite bathroom) on the second floor.
17. Mrs C has a disability. She can climb stairs but only with difficulty and pain. Because of the layout of her house, she does not often go downstairs but stays in her bedroom so she has access to the en-suite bathroom. Her husband will leave drink and meals for her every day he goes to work. If Mrs C goes to the kitchen, she cannot carry items such as a drink, back up the stairs.
18. In July 2020 Mrs C applied to join the Council’s housing register. On her application Mrs C explained her disability and that she could not walk far and needed a property with fewer stairs. The Council says it considered this information sufficient to award Band C status. It decided Mrs C did not need to complete a health and welfare form.
19. Mrs C contacted the Council in April 2022 about the progress of her application. The Council asked her then to complete a health and welfare form. This did not change its view of her priority. It also advised Mrs C she could contact the County Council to undertake a housing needs assessment.
20. In July 2023, Mrs C contacted the Council saying she was very unwell and suffering because of her limited mobility. She went on to ask the Council to review her priority banding. The Council said it could not do that as Mrs C was out of time to request a review. But she should let it know if there had been a change in her circumstances.
21. Next, Mrs C contacted a local Councillor (‘Councillor X’) who contacted the housing service, raising Mrs C's case. Officers advised Councillor X they considered Mrs C’s application in the correct banding. But they said she could request a housing needs assessment from social services. Mrs C says that Councillor X did not give her this information.
22. In August 2023, Mrs C’s GP surgery wrote in support of Mrs C’s application. The Council also gave it the advice that Mrs C could seek a housing needs assessment.
23. In September 2023 Mrs C complained at the Council’s continuing refusal to give her housing application a higher priority. In reply, the Council reaffirmed its position. It said that Mrs C was out of time to ask it to review its decision.
24. In October 2023 Mrs C asked the Council to consider her complaint at stage two of its complaint procedure. Also in October 2023, Mrs C asked if she could bid for three-bedroom properties. By this time the Council had assessed Mrs C needed a four-bedroom property to meet her housing need, as her eldest child was now 18. It also said that property had to be single storey because of her disability.
25. In their earlier correspondence Councillor X had also asked about properties Mrs C could bid for, noting the scarcity of four-bed properties. In response the Council said it could not support Mrs C bidding for properties that would not meet her needs. In later correspondence, in February 2024, the Council told Mrs C she could not bid for three-bed properties with two living rooms as “we do not advertise properties with reception rooms that could be utilised as bedrooms”.
26. In its final reply to Mrs C’s complaint (November 2023) the Council said that it had advised Councillor X and the GP surgery on how Mrs C could ask for a housing needs assessment. It said other information provided by Mrs C had not changed its view that her application was in the correct band.
27. Subsequently, Mrs C has provided:

• A further letter of support from a specialist mental health provider. This says Mrs C’s inability to move around her three storey home due to severe and chronic pain worsens her mental health;
• a housing needs assessment completed by an Occupational Therapist. This noted Mrs C’s current living conditions and that Mrs C’s landlord will not agree to any home adaptations. It says Mrs C needs a property with one flight of stairs with stair rails. It says Mrs C needs the property to have a ground floor lounge, kitchen and toilet to promote her independence and improve her mental health.

28. The Council has acknowledged receiving this information but maintains Mrs C’s housing application remains in the correct banding.
29. During this investigation, in answer to our enquiries, the Council has said:

• that it will review its process to ask for a medical and welfare form in all cases to ensure a ‘more complete record’ of applicant’s needs;
• that there are just four, four-bed single-floor properties available for letting via the allocation scheme;
• that it has no reason to believe Mrs C is homeless on the basis her home is not reasonable for her to occupy;
• that it continues to consider Mrs C’s housing application correctly prioritised. It notes Mrs C has some mobility and can manage a single flight of stairs. It does not consider she meets the Band A priority criteria. It has consulted its medical adviser again and wrote to Mrs C again in June 2024 to confirm its position;
• that it has now allowed Mrs C to bid for all four-bedroom properties.

Findings

Jurisdiction considerations

30. The term jurisdiction refers to our legal powers to investigate a complaint. A key consideration in this case is that of time and how far back our investigation should extend.
31. I have decided to only investigate events since July 2023. I have not investigated the Council’s decision in June 2020, to award Mrs C’s housing application ‘Band C’ status. Nor have I investigated how it responded to her contacts in 2022.
32. This is because I consider any complaint about these actions is a late complaint. And I do not consider there are special reasons that would justify my investigating those actions so long after the event.

The Council’s action since July 2023

33. I do not find fault with the Council’s decision in July 2023 to decline to review Mrs C’s housing application. I do not consider Mrs C provided evidence with that suggesting there had been any change in her circumstances since June 2020. So, the Council could choose not to review the case.
34. However, by December 2023, Mrs C had provided new evidence. First, the medical evidence linking the condition of the property to her mental health. Second, the housing needs assessment which provided an independent, expert view on Mrs C’s current housing.
35. I note the statements made in these documents may also have been applicable to Mrs C’s circumstances in 2020. So, they may not describe a change in her circumstances. But they contain new evidence which should lead the Council to consider the priority awarded to her housing application.
36. The Council replies to Mrs C (including that in June 2024) and our enquiries suggests it has done this. However, I am not satisfied that it has applied itself properly to the question of priority. I should stress it is not my role to decide what priority Mrs C’s application should have. But I have seen no evidence of how the Council has considered the information contained in Mrs C’s housing needs assessment and how this might affect its assessment of her priority. Its housing allocation policy says it will give Band A priority to those who are ‘housebound’ or those who cannot access essential bathroom or kitchen facilities. But I do not find evidence the Council has applied itself to:

• what is meant by the term ‘housebound’ and whether Mrs C meets that definition. The fact a person may have limited mobility within a house, does not mean they are necessarily able to leave it;
• what evidence the Council has that Mrs C can access both her kitchen and bathroom facilities. The housing needs assessment may suggest Mrs C cannot, to all intent, use her kitchen because of the number of stairs involved.

37. I am also not satisfied the Council has properly considered if Mrs C may be homeless. I set out above the threshold for making inquiries into this possibility is low. Where a person reports an inability to use essential features such as a kitchen or bathroom, the Council should be asking itself if this makes the property reasonable for that person to occupy. While finding Mrs C homeless, would not lead the Council to increase the priority given to her application it would require the Council to consider if it should offer emergency or temporary accommodation elsewhere.
38. The considerations in paragraphs 37 and 38 lead me to find fault therefore in how the Council has considered Mrs C’s housing need since July 2023.
39. I consider this complaint has also highlighted wider flaws in the Council’s housing allocation policy. First, it does not adequately explain the onus is on the applicant to request a housing needs assessment from County social services. However, I recognise it did advise Mrs C of this during the events covered by her complaint.
40. Second, it does not adequately explain the potential importance of such an assessment. Because while such an assessment will look at the possibility of adapting a disabled person’s home, it can also address how they use or access their home. In turn this could inform a decision on priority. A brief statement advising the Council will take account of such assessments in deciding or reviewing priority would therefore be welcomed.
41. Third, there is a disconnect between the housing allocation policy and the Council's practice when it comes to how it advertises and allocates three bed homes with two living rooms. Section 3.8 of the policy explains it will give priority in allocating three-bed properties with two living rooms to larger families with a four-bedroom need. The clear implication of this, is that those families may then use a living room as a fourth bedroom.
42. But at the same time, the Council does not indicate which properties meet this description. And while during the investigation the Council has amended its position to allow Mrs C to bid on any four-bedroom property, it has continued to prevent her bidding on a three-bedroom property. I find its position here at odds with Section 3.8 of its housing allocation policy. I consider the restriction, which blocks Mrs C bidding for a property that might meet her needs, a further fault.
43. The injustice caused to Mrs C as a result of the faults identified above is as follows:

• she has uncertainty, which we consider a form of distress, about whether her application is in the correct priority band;
• she has uncertainty about whether the Council should treat her as homeless, which may open an alternative route for temporary re-housing elsewhere;
• she has suffered unnecessary frustration and distress in being prevented from bidding for three-bedroom properties which might meet her needs.

44. I am unable to go further and say any of the above has resulted in Mrs C being unable to successfully bid on a property which may meet her needs. I am aware the reality for many households in need, is that the demand for social housing far outstrips supply and long waits are the norm. But I made recommendations, which the Council has accepted, to address the consequences of the above.

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Agreed action

45. To remedy the injustice caused, the Council has agreed that within 20 working days of this decision, it will:
1. provide a written apology to Mrs C, accepting the findings of this investigation, and in line with section 3.2 of our published guidance on remedies; Guidance on remedies - Local Government and Social Care Ombudsman
2. make a symbolic payment to Mrs C of £500 in recognition of her distress;
3. lift the restriction on Mrs C bidding for three-bedroom properties on the understanding Mrs C only intends bidding on properties that meet the needs set out in her housing needs assessment to the extent she can identify those properties;
4. review Mrs C’s housing priority and consider also whether she is homeless. The review should be conducted by a senior housing officer with no previous involvement in the case. The review should take account of the comments at paragraph 37 above. The Council should put the outcome of the review in writing to Mrs C. The review should complete within 20 working days subject to any necessary enquiries the Council needs to make with Mrs C or any third party. If as a result of those enquiries, it will take longer to complete, the Council will write to Mrs C to explain;
5. if the review identifies that Mrs C’s housing priority should be changed to Band A the Council should consider backdating that and provide reasons for any decision it reaches on this in writing to Mrs C;
6. if the review identifies that Mrs C’s housing priority should be changed to Band A and applies a priority date earlier than the date of the review completing; then it should identify if Mrs C will have missed out on being able to bid for suitable properties as a result. The Council will then consider making a further symbolic payment to Mrs C in line with Part 8 of our guidance on remedies. The Council will again put its thinking in writing to Mrs C.
46. Mrs C will have the right to make a further complaint to this office in the event she is dissatisfied with any reviews completed by the Council at 46 d) to f) above. We would not expect her complaint to first go through the Council’s complaint procedure in these circumstances.
47. In addition, the Council has agreed service improvements as a result of this complaint. Within three months of this decision, it will:
1. revise section 3.4 of its housing allocation policy to explain how an applicant can request a housing needs assessment and what account the Council will take of such assessments;
2. revise section 3.5 of its housing allocation policy to make clear this applies only to dependent children;
3. conduct a feasibility study to identify if it can amend the information it publicises about properties available to let to include information on the number of living rooms. This will make it easier for applicants affected by section 3.8 of the allocation policy to identify properties referred to in that clause. It will write to us and advise if it proposes changing the details it publishes and if so, by when. If it does not propose changing this practice it will give reasons;
48. The Council will provide us with evidence it has complied with the above actions.

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Final decision

49. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mrs C. The Council has agreed action that I consider will remedy that injustice. Consequently, I can now complete my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman