Summary: The complainant, Miss X, complains about the Council’s decision to not grant her priority on its housing register. She said the Council has failed to properly consider her circumstances. The Ombudsman does not find fault by the Council.

The complaint

1. The complainant, Miss X, complains about the Council’s decision to not grant her priority on its housing register. She said the Council has failed to properly consider her circumstances.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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

4. I considered all the information provided by Miss X and the Council.
5. Miss X and the Council had an opportunity to comment on my revised draft decision. I considered their comments before making a final decision.

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What I found

The Council’s housing policy

6. The Council will use a banding based system to allocate accommodation. In assessing housing need the Council will give reasonable preference to those applicants who fall into defined categories.
7. The Council will use the banding system and time spent within the band to allocate accommodation. The Council recognises that there may be exceptional circumstances where the only way an exceptional housing need can be resolved is through the use of discretion.
8. The Council has four different bands:
• band a is for people who are considered to be in reasonable preference and have been granted an additional preference;
• band b is for people who have a housing need that places them into one or more of the reasonable preference categories and meet the Medway criteria for a community contribution;
• band c is for people that have a housing need that places them into a reasonable preference category, but do not meet the Medway criteria for a community contribution; and
• band d refers to cases that have a need to move and fall into a reasonable preference but have had their priority reduced.
9. Cases that qualify for the housing register but do not qualify to be in a reasonable preference group will be held on an inactive housing register. Applicants on the inactive housing register will not be permitted to bid for accommodation.
10. Medway care leavers are households that are under the care of Medway Council. They will be exempt from meeting the residency criteria, including if they have been placed out of borough by Medway Council. If they are ready to move on from a care environment or a supported accommodation, priority will be awarded.
11. Medical priority will be awarded according to the extent of which the health or welfare of one or more of the applying household is affected by their housing conditions and the expected benefits of providing suitable settled accommodation.
12. In the interests of fairness to all these applicants these circumstances are kept to a minimum. Discretion may be used for but not limited to, increasing banding priority, direct allocations, changing bedroom need or changing banding priority dates. Examples of exceptional circumstances include, but are not limited to:

• threat to life;

• emergency cases where homes are damaged by fire, flood or other disaster may be provided with another tenancy if it is not possible to repair the existing home, or if any work to repair is to take such a long period of time that there will be serious disruption to family life;

• households who, on Police advice, must be moved immediately due to serious threats to one or more members of the household, or whose continuing occupation would pose a threat to the community;

• cases nominated under the Police Witness Protection Scheme or other similar schemes that the Council has agreed to be part of;

• an applicant who has an exceptional need that is not covered in the Allocations Scheme. For example, where child or public protection issues require the applicant to be re-housed or in cases of severe domestic abuse where all other options to remain in the home have been exhausted; and

• other exceptional circumstances considered on a case-by-case basis.

13. If agreed, by management, such cases will be permitted access to the housing register and awarded a level of priority reflective of their circumstance and as far as possible in accordance with the banding scheme.

Human Rights Act

14. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, freedom of expression, freedom of religion, freedom from forced labour, and education. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
15. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.

Equality Act

16. 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.
17. 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. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty. The protected characteristics include pregnancy.
18. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.

Summary of the key events

19. A different council area, B, contacted the Council in May 2022. B asked if the Council could assist Miss X who was a care leaver of B’s area applying for housing. The Council advised B that Miss X could register to join its housing register. But said it was not sure whether she would be given priority as a care leaver.
20. The Council assessed Miss X’s application in July 2022 and advised her of its decision. It stated Miss X currently lived with her dad in the Council’s area. It was noted that:
• Miss X left foster care from B’s area when she went to live with her dad;
• as Miss X was not a Medway care leaver/not in a placement, it could not award priority;
• Miss X suffers with anxiety and depression and prefers to stay indoors;
• there was no indication that Miss X’s current accommodation was worsening her health and no priority was awarded; and
• Miss X did not meet the criteria for bands A-D and was placed onto the inactive register.
21. B contacted the Council in the same month. It said Miss X had been residing in Medway in excess of eight years. It also said she was a vulnerable care leaver making a transition into independent living.
22. The Council considered Miss X’s request for her banding to be reviewed in November 2022. It contacted Miss X and said:
• based on the information it had she did not meet criteria of bands A-D and was placed on the inactive register;
• as a care leaver from another local authority, priority would not be awarded as priority is only awarded to Medway council care leavers;
• it understands Miss X suffers with depression and anxiety. But said it could not award medical priority as no supporting medical evidence was provided; and
• Miss X may wish to look in the private rented sector.
23. B contacted the Council in the same month. B said Miss X met the criteria as a long-term resident of Medway. They asked the Council to consider its discretion to allow Miss X to secure social housing.
24. B chased a response in November, December 2022 and again in February 2023.
25. It was noted in February 2023 that Miss X had sent in a picture of her pregnancy scan.
26. The Council advised B Miss X did not meet the criteria for priority banding. It provided details of how to log a complaint.
27. The Council contacted Miss X’s representative in April 2023. It said:
• it needed to apply the policy fairly and said it could only consider priority banding for Medway council care leavers; and
• from the information provided, Miss X does not meet the criteria for any priority banding which meant she was placed onto the inactive register.
28. The Council’s notes state Miss X provided proof of her pregnancy in April 2023. But it was noted this did not affect the banding. It was also noted this would not have any effect on the banding when the baby is born. This is because Miss X would not meet the overcrowding criteria.

Complaint to the Council

29. Miss X’s representative complained in December 2023. They said:
• Miss X had lived in Medway for eight plus years and had a network of family and friends;
• the Council had rejected Miss X’s application;
• Miss X had her baby in March 2023 and is living in a small flat with her dad who has health issues; and
• the Council’s policy states that a level of discretion can be used in exceptional circumstances, but this has not been addressed or considered.
30. In response the Council said:
• it had assessed the application in line with its policy. As Miss X was not in Medway care or supported services, she did not qualify for priority; and
• the application was considered for exceptional circumstances, and it was deemed Miss X did not meet this criterion.
31. Miss X’s representative requested the complaint be escalated. They said:
• they strongly believed that the fact Miss X has lived in the area for so long and has her network there as well as her pregnancy, these were factors for the Council to use their discretion;
• the fact that Miss X was heavily pregnant in a small two-bedroom flat with her dad who was ill was an exceptional circumstance that should have been considered; and
• the Equality Act grants those with a protected characteristic such as pregnancy, legal protection from unlawful direct and indirect discrimination.
32. The Council responded at stage two of its complaints process in February 2024. It said:
• Miss X’s pregnancy was considered. But said whilst it may be a protected characteristic, it is not a criterion that alone awards priority for housing;
• it noted that Miss X would be lacking one bedroom when the baby was born. But in order to meet its criteria an applicant has to be lacking two bedrooms;
• it understands Miss X’s dad may be ill but its assessment is based on the applicants housing needs; and
• Miss X’s circumstances do not meet the threshold for discretion to be applied.

Analysis- was there fault by the Council causing injustice?

33. The Ombudsman’s role is to review councils’ adherence to procedure in making decisions.
34. The Council assessed Miss X’s housing application in July 2022. It said:
• Miss X met the residency criteria and she lived with her dad;
• as she was not a Medway care leaver it could not award this priority;
• it had no evidence to suggest Miss X’s accommodation was worsening her health; and
• Miss X did not meet the criteria for bands A-D. It placed her on the inactive register.
35. Miss X requested a review of this decision and the Council considered this. It reiterated its previous response.
36. The Council’s policy states it recognises that there may be exceptional circumstances where the only way an exceptional housing need can be resolved is through the use of discretion. The examples are detailed in paragraph 12.
37. We have to consider the information Miss X presented to the Council. In this case she said she had depression and anxiety, moved to her address from foster care, she became pregnant in June 2022 and lives in a small flat with her dad who has health issues.
38. In considering Miss X’s circumstance the Council considered:
• medical priority and consideration of the length of time Miss X had lived in the area- it said Miss X was living with her dad and could continue to live there. Therefore, she could continue to use the support available to her in Medway. The Council was aware Miss X was supported by her GP and leaving care coach from council area B. It said there was no reason why she could not continue to use this support or any other support available to her whilst in her current accommodation;
• overcrowding- these criteria require someone to be lacking two bedrooms, therefore Miss X did not meet its criteria as it said when the baby was born, she would be lacking one bedroom;
• eligibility for any banding- it said Miss X did not meet any of the priority bands for A-D;
• care leaver priority- it said as Miss X was not a Medway care leaver, and nor was she in a care placement, her application did not meet this criterion and no priority was awarded;
• Miss X’s dad’s health- it said applications for housing are assessed based on the applicants housing needs. As Miss X’s dad is not part of her application, his ill health was considered but does not allow for any additional priority to be awarded; and
• Miss X’s pregnancy- it said this was considered and it accepts pregnancy may be a protected characteristic. But it said it is not a criterion alone that awards priority for housing.
39. But it made the decision that no exceptional circumstances were identified which would need to be considered for management discretion. When a council has followed the correct process, considered all relevant information and given clear reasons for its decision, we cannot criticise it. We do not make decisions on a council’s behalf or provide a route of appeal against their decisions.
40. I acknowledge that B asked the Council for a house swap to enable Miss X to move into a new property. But the Council explained reciprocal agreements are usually made where a customer is already in social housing. As Miss X is not, it did not agree. There is no fault in how the Council reached this decision.
41. As stated in paragraphs 15 and 18, we can make decision about whether or not a council has had due regard to an individual’s human rights in their treatment of them. We can also decide whether a council has properly taken account of an individual's rights under the Equality Act.
42. In my view, as the Council has clearly evidenced how it has considered Miss X’s circumstances it has given consideration to the Equality Act and the Human Rights Act. The Council considered Miss X’s pregnancy as a protected characteristic. But it explained this was not a criterion alone that awards priority for housing.

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Final decision

43. I have completed my investigation on the basis there was no fault in the Council’s actions.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman