Summary: there was fault in the way the Council considered Miss X’s request for a review of the medical priority awarded to her Housing Register application and delay in making the review decision. This caused Miss X avoidable distress, uncertainty and frustration. The Council has agreed to provide a suitable remedy.

The complaint

1. Miss X complained there was fault in the way the Council considered her request for a review of the medical priority awarded for her daughter, Y. She says it wrongly assumed Y did not have a lifelong condition and it would improve over time with therapy. When it considered her request for emergency medical priority, it applied a higher threshold of being a wheelchair user when that is not one of the specified criteria in the housing allocations policy. She also complained about delay in making the review decision.
2. Miss X lives with her two children in private rented accommodation. She carries Y up a steep flight of internal stairs to the flat which puts them at risk of injury and falls.

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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 consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

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How I considered this complaint

6. I have spoken to Miss X and considered:
• the evidence and photographs she sent me:
• the Council’s published housing allocations policy;
• the Council’s comments and relevant documents from its housing records, including the medical advice it received and a letter from Y’s healthcare professional.
7. Miss X and the council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law

8. 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))
9. An allocations scheme must give reasonable preference to applicants in the following categories:

• homeless people;
• people in insanitary, overcrowded or unsatisfactory housing;
• people who need to move on medical or welfare grounds;
• people who need to move to avoid hardship to themselves or others;
  (Housing Act 1996, section 166A(3))
   

10. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority. 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;
• reviews should normally be completed within a set deadline - 8 weeks is suggested as reasonable.

The Council’s housing allocations scheme

11. The Council’s scheme has two levels of medical priority. The highest priority is:

Emergency rehousing status (Group A): this applies if the applicant, or a member of their household, has a medical condition that is so severe it makes it impossible for them to live in their current home and

• the property requires adaptations that cannot be carried out or are technically feasible but cannot be done at a reasonable cost; or

• the applicant is in a hospital or residential care and can only be discharged if they are rehoused to suitable accommodation.

Reasonable preference: this applies where the applicant’s current home is unsuitable and impacting on their poor health and the applicant needs to be rehoused on medical grounds.

(This priority can also be awarded when a member of the applicant’s household meets these criteria).

12. The applicant must complete a medical application form for each person with a medical need affected by the current accommodation. The Council may make a referral for an assessment by adult or children’s services where someone has complex needs and this may inform the medical assessment.

13. The Council has a contract with a company which engages medical professionals to give advice to housing officers on requests for medical priority.

14. The Council’s scheme says applicants must request a review within 21 days of being informed of the decision. It does not give a timescale for making review decisions.

Miss X’s circumstances

15. Miss X and her two young children live in a two bedroom private rented first floor flat. Miss X told me the Council’s property licensing team has inspected the flat and found the second bedroom does not meet the minimum space requirement so it must be disregarded. Immediately inside the entrance door, there are 14 steep steps up to the flat. There is a handrail on one wall in the hallway. There is also a single step inside the flat.

16. Miss X told me she has fallen on the stairs and her youngest child, Y, has also had falls and cannot safely use the stairs due to a lower limb disability. Miss X has installed a custom-made stairgate at the top of the stairs to stop Y falling downstairs. Miss X said she must carry Y up and down to prevent falls.

17. Miss X says there is not enough space in the hallway to install a stairlift even if her landlord was willing to consent to this adaptation. Miss X says in the event of a fire, it would take longer to evacuate safely because she has to carry Y down the stairs. Miss X is very concerned that, as Y grows older and heavier, it will become increasingly difficult to carry her up and down the stairs.

18. In mid-March 2022 Miss X sent a medical application form for Y to the Council. She explained that Y cannot climb the 14 stairs to access and exit the property. She said Y had fallen down the single step in the flat many times and hurt herself. She gave contact details for Y’s physiotherapist and gave permission for the Council to contact her. She also explained that in the event of a fire or other emergency, Y would not be able to get out of the property due to the access issue.

19. In late April 2022 Miss X sent a letter of support from Y’s physiotherapist. She provided the following information:
• Details of Y’s condition which makes her prone to falls and creates a risk of injury;
• Y cannot walk far, tires easily and finds the stairs challenging;
• Y’s current therapy plan;
• The impact on Miss X who has back pain from carrying Y up and down the stairs four times daily on school days;
• The impact on the whole family as it limits the number of times they go out.

The physiotherapist included her contact number and email address and invited the Council to contact her if it needed more information.

20. In late June 2022 an officer in the Council’s Lettings Agency sent the medical application form and letter to the Council’s external medical advisers. The medical adviser sent his advice the following day. He noted Y’s mobility issues and need for physiotherapy. He commented:

“Urgent specialist interventions are not needed. Reasonable preference applies.”

He recommended rehousing to a ground floor property if there was no lift or to a property on any floor in a building with lift access. The property should be step-free. The adviser said Y did not need a separate bedroom.

21. On the same day, an officer in the Lettings Agency informed Miss X the Council had decided to award reasonable preference medical priority for Y. She also explained the decision on the accessibility of the property and enclosed information about the right to request a review.  
22. Miss X immediately requested a review. She said she had not asked for a separate bedroom for Y and the application was based on Y’s difficulties with the stairs and access to the flat. She argued that Y met the criteria for emergency medical priority because she could not climb the stairs to access the flat. She said this was a health and safety issue because Y fell on the single step inside the flat and she could not block this off. She attached the physiotherapist’s April 2022 letter and asked the Council to reconsider the evidence. Miss X did not submit any new medical evidence at this stage.
23. The Council acknowledged Miss X’s review request on 30 June. It said the review would be completed by 24 August and she should get the decision letter a few days later.

24. The Council sent Miss X the review decision on 18 November 2022. The reviewing officer explained he had considered Miss X’s review request, the information on file and the letter from Y’s physiotherapist. He accepted Y’s medical condition was challenging but did not believe Y met the criteria for emergency medical priority. He said:

“This is because persons who are disabled and permanently in a wheelchair for the use within or outside the home would be considered eligible. We would in such instance consider accessibility, the presence of stairs and whether the property could be adapted [to] include having a wet room. We would only consider a property is unsuitable if adaptations could not [be] made, then we would assess how it will be affecting [the] health of the disabled person.

From the information and evidence gathered, I understand that [Y’s] condition varies from person to person depending on number of factors; however, I understand that your daughter’s condition is expected to correct itself over time with the aid of physiotherapy”.

25. The review officer upheld the decision to award reasonable preference medical priority.
26. On the advice of her MP, Miss X complained to us in November 2023. Among other points, she disputed the accuracy of the reviewing officer’s statement that Y’s condition was expected to correct itself over time.
27. In response to our enquiries the Council said the reviewing officer had tried to call the Children’s physiotherapy team on 12 November but was not able to speak to Y’s physiotherapist or anyone else in the team. This call is not logged in the case notes the Council sent me. It seems the reviewing officer did not follow this up with an email to Y’s physiotherapist to explain the reason for his enquiry and ask her to contact him.
28. On the same day the reviewing officer spoke to a charity which supports people affected by childhood lower limb conditions. As I understand it, the charity had no direct knowledge of Y’s case, her therapy plan and prognosis. The reviewing officer also did some online research about the medical condition and potential therapy and treatment options, including corrective surgery. On the basis of these enquiries, he concluded Y did not have a lifelong or permanent disability and it could be corrected over time with therapy.
29. The reviewing officer accepts, with the benefit of hindsight, that he could have expressed the point about eligibility for emergency priority and wheelchair users differently in the review decision letter. Emergency medical priority is not restricted to people who are wheelchair users but the letter implied this. However he does not consider this affected his review decision. In his view, Y did not meet the criteria for emergency medical priority and no new medical evidence had been presented. He considered Y’s condition would change over time because she was trialling aids to help correct her posture. His enquiries had indicated the condition could be corrected with extensive physiotherapy.
30. When the Council responded to a draft of this decision in April 2024, it said it had eliminated the backlog of review requests. It had only three cases over eight weeks old. All of these were cases where the applicants’ solicitors had requested extra time to make representations.

My analysis

31. The Council was at fault for the following reasons:
• It took more than three months to make a referral to its medical adviser, complete the medical assessment and inform Miss X of the decision on medical priority. This unreasonable delay is fault;
• The statutory guidance says councils should normally complete reviews within eight weeks. In this case it took just over 20 weeks to make the review decision. That was far too long and prolonged Miss X’s uncertainty.
• The reviewing officer recognised that Y’s physiotherapist could provide relevant information about her condition, prognosis and treatment options because he attempted to call her. But, when she was not available, he did not follow this up with an email asking her to contact him. It was important to contact the physiotherapist in view of Miss X’s statement in the review request that Y’s condition would not improve. Furthermore, six months had passed since the physiotherapist wrote the April 2022 letter, and Y’s condition and treatment plan may well have changed in the intervening period.
• Instead the reviewing officer based his decision that Y’s condition would improve with extensive physiotherapy or corrective surgery on enquiries he made to a charity and his own online research. Although these sources provided general information, they were not based on an assessment and knowledge of Y’s individual needs, prognosis and therapy plan. Y’s physiotherapist had this information and the reviewing officer should have consulted her. The review decision was flawed because the reviewing officer made certain assumptions about Y’s condition and treatment rather than establishing the views of the healthcare professional responsible for her treatment. And even if corrective surgery or intensive therapy had been an option, the reviewing officer did not know how long it may take before Y would be able to benefit from this.
• there is no evidence that the feasibility of carrying out adaptations to Miss X’s property to meet Y’s mobility needs was considered although this was a relevant factor when deciding whether to award emergency medical priority.
32. These delays, and the failure to seek relevant up to date evidence from Y’s physiotherapist, means the review decision was flawed. This caused Miss X considerable stress and frustration. She cannot be confident that the Council reached the review decision after proper consideration of all the relevant evidence.

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Agreed action

33. Within one month of my final decision, the Council will:
• Apologise to Miss X for the faults identified in this statement;
• Pay her £300 to recognise the distress and uncertainty caused by the delay and its flawed decision-making;
• Arrange for a different senior officer to carry out a fresh review of Y’s medical priority. The officer should take account of the most recent evidence from Y’s physiotherapist and give Miss X the opportunity to make further representations and submit new evidence from healthcare professionals who care for Y about any new diagnoses;
• If the new review should result in the award of higher medical priority, the Council should backdate this to 24 August 2022 (the date by which it should have made the first review decision)
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have completed the investigation with a finding of fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman