Summary: Miss X complained the Council failed to award her housing application the correct priority banding. We found fault in how the Council awarded bedroom eligibility to Miss X’s application, but this did not prevent her from bidding for properties she was eligible to bid on. We did not find fault in how it considered medical information provided by Miss X. The Council agreed to apologise to Miss X for the fault we found.

The complaint

1. Miss X complained the Council failed to award her housing application the correct priority banding. She says the Council did not consider her and her child’s disabilities and that her household are statutorily overcrowded. As a result, she and her family are living in accommodation which is damaging to their physical and mental health.

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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. 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. 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

5. As part of my investigation I have:
• discussed the complaint with Miss X and considered her complaint;
• made enquiries of the Council and considered its response;
• had regard to the relevant legislation and guidance; and
• set out my initial thoughts on the complaint in a draft decision statement and invited Miss X and the Council to comment.

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What I found

The Council’s housing allocations scheme

6. 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))
7. An allocations scheme must give reasonable preference to certain applicants, including:
• people in insanitary, overcrowded or unsatisfactory housing; and
• people who need to move on medical or welfare grounds.

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

8. The Council’s allocations policy sets bands for all eligible and qualifying applicants. It assesses an applicant’s circumstances and awards them a priority needs banding. Those with the highest priority are awarded Band 1. This includes applicants who are statutorily overcrowded as defined by Part X of the Housing Act 1985 and have not caused this statutory overcrowding by a deliberate act.
9. Band 2 includes those who have a severe medical, welfare or disability need where their current accommodation is unsuitable, or it is unreasonable for them to remain living there.
10. Band 3 includes those who are overcrowded but not statutorily overcrowded as defined by Part X of the 1985 Housing Act.
11. Within each band, applicants are prioritised first by reference to a priority star system. Priority stars can be awarded to applicants occupying unsanitary or statutory overcrowded housing (as defined by Part X of the Housing Act 1985) or otherwise living in unsatisfactory housing conditions in accordance with hazards identified through the Housing Health Safety Rating Scheme.
12. The Council operates a choice-based lettings scheme which enables housing applicants to bid for available properties which it advertises. Applicants are ranked according to their banding on the housing register and the property is allocated to the person with highest priority.

Statutory overcrowding

13. There are two legal definitions of statutory overcrowding - the room and the space standards.
14. The room standard is based on the number and gender of people who must sleep in one room. The room standard is contravened in a situation where two people of the opposite sex must sleep in the same room, unless they are:
• cohabiting or married couples, who can live in the same room without causing overcrowding; and
• children under the age of ten, who are completely ignored in the calculation.

15. All living rooms and bedrooms are included in the calculation (this could include a large kitchen). The standard does not limit the number of people of the same sex who can live in the same room. Two children aged under 16 of the same sex are generally expected to share a bedroom.
16. The space standard is based on the maximum number of people who may sleep in a dwelling of a particular size. The permitted number of people depends on the size of the room, the number of living rooms and bedrooms in the dwelling, and the age of the occupants. Children who are under 10 years of age but more than one year old count as half a person.

Medical assessments

17. The Council will consider applications for those who need to move on medical or welfare grounds where their health is being affected by their current property. The Council will refer such cases to its independent medical adviser for an assessment.
18. The applicant can provide their own medical evidence if appropriate along with a medical/welfare assessment form, which will be sent to the independent advisor. Applicants do not have to submit any medical evidence in support of their application. Where required, the independent advisor will request the necessary information from the relevant medical professional.
19. If the independent advisor advises the Council that reasonable preference should be awarded then it will award either:
1. Severe medical award where it can be demonstrated that, due to an illness or disability, it is unacceptable for the applicant to remain in their current dwelling, or
2. Moderate medical award where it can be demonstrated that due to an illness or disability the applicant finds living in their current dwelling difficult and it is clear that remaining in that dwelling will contribute to deterioration in their health. Or it would be beneficial for the applicant to move to alternative accommodation but, at present, the applicant can manage in their present dwelling, or

Where appropriate, the medical advisor will also recommend the type of property most appropriate to the medical needs.

What happened

20. Miss X lives in a ground floor, two bedroom flat with her three children. Her son is under 10 and her two daughters are under 16. Miss X’s housing application was in band 4.
21. In March 2021 Miss X put in a medical assessment to the Council. She said her accommodation is overcrowded and negatively affecting her mental health as she has obsessive compulsive disorder (OCD) and anxiety. She said she shared a bedroom with her son which disrupts her sleep.
22. The Council’s asked its independent adviser to assess the information Miss X sent. The result of the assessment was Miss X did not have a medical need to move. It said the main issue was overcrowding which attracts its own priority. The Council awarded Miss X’s application band 3 priority because her accommodation was overcrowded.
23. In spring and summer 2022 Miss X put in medical assessments for the Council to consider. The forms said:

• Miss X has a worn tendon in her shoulder which causes her pain. She has difficultly using the kitchen and bathroom.
• Miss X can only climb a few steps at a time.
• Miss X’s son is autistic and non-verbal. He has no sense of danger and has problems sleeping.
• Miss X’s oldest daughter is receiving help from the Children Adolescent Mental Health Service (CAMHS) and she needs her own space. She is using the living room as a bedroom, and this means there is no family space or place for her son to play.

24. The Council asked its independent adviser to assess the information. The result of the assessment was Miss X did not have medical need to move. Her application stayed in band 3. The Council said it would be helpful if Miss X sent more evidence about the medical needs of her children to help her application.
25. In September 2022 Miss X sent more evidence, as sought by the Council. Its independent adviser considered the information. The result of the assessment was Miss X had a moderate need to move. It said any future accommodation should be no higher than the second floor, should have locks on the doors and windows so it is safe for her son, should have a garden or be near a park and her son should have his own bedroom. The Council awarded Miss X’s application band 2 because she needed to move on both medical grounds and because her accommodation was overcrowded.
26. In summer 2023 Miss X presented further information to support her application. She explained that she had fibromyalgia, and limited mobility. She cannot use the bathroom because there are no handrails nor can she stand to cook. She can only climb three stairs.
27. The Council asked its independent adviser to assess the information. The result was that Miss X did not have a medical need to move. It said she may want to ask an Occupational Therapist about adapting her home.
28. Miss X was unhappy with the decision, and she challenged the result of the assessment. The result of the review was that Miss X had a moderate need to move. It said any future accommodation should be on the ground floor or have a lift, have an adapted shower and be a three-bedroom property so her son could have his own room. There was no change in the priority awarded to Miss X’s application.
29. In early 2024 Miss X bid for a four-bedroom property. She was the first placed bidder. However, the Council said it had made an error and that Miss X was not eligible to bid on four-bedroom properties. It explained her daughters could share a room until the oldest was 16. Therefore, Miss X only needed three bedrooms to allow her son to have his own room as recommended by its medical adviser.
30. In March 2024 Miss X sent more medical information including details of her son’s autism diagnosis and her diagnosis of fibromyalgia. The Council’s independent adviser assessed the information. The result was Miss X had a moderate need to move and her application remained in band 3 priority.
31. Also, in March Miss X told the Council her landlord had issued her with a Section 21 notice and so she was threatened with homelessness. As part of its consideration of Miss X’s case it awarded her a severe medical star. However, this was an error because homelessness cannot lead to an award of a severe medical need to move.
32. Unhappy with the Councils handing of her medical priority Miss X complained at both stages of the Council’s complaints process. She said it had failed to award her housing application the correct priority banding despite her providing evidence of her medical need to move and being statutorily overcrowded. The Council said its medical adviser had correctly assessed her medical evidence. It did not uphold her complaints.
33. Miss X remained unhappy, and she complained to the Ombudsman.
34. During our investigation the Council rehoused Miss X and her family.

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Finding

Stautory overcrowding.

35. Miss X says her housing application should have been in a higher priority band because her household was statutorily overcrowded. I do not agree. In Miss X’s case the room standard was not contravened. This is because children under 10 are ignored and her other two children were of the same sex.
36. The space standard is based on the number of people who can sleep in a property of that size. Miss X’s home has two bedrooms and one living room. A property with three rooms can accommodate five people under the space standard. Another way of calculating the space standard is to calculate the floor space of any bedrooms and living rooms. Miss X provided a floor plan of the property containing these details. The floor space of the bedrooms and living combined allowed for 5 people to live in the property.

Medical priority

37. Miss X says the Council did not properly consider medical information she provided. The information was considered by the Council’s independent medical advisor, and I have seen no evidence of fault in the way it was considered. Therefore, I cannot challenge the Council’s decisions on medical priority.

Bedroom eligibility

38. The Council wrongly said Miss X could bid for four-bedroom properties. This is fault. As a result, Miss X’s expectations about which properties, she could bid for were raised. She was also caused frustration and disappointment when she was the first placed bidder on a four-bedroom property but later told she was not eligible. This is an injustice.
39. I note Miss X says her eldest daughter will soon be 16 and so she should have been able to bid on the four-bedroom property. While I appreciate Miss X’s view it is the case that her eldest daughter was not 16 at the time, she bid for the four-bedroom property. Therefore, the Council’s decision was correctly made and in keeping with its housing allocation scheme.
40. I also note the Council wrongly awarded Miss X’s application a medical star in April 2024. While I am not aware this affected any bids made by Miss X it remains that it should be awarding housing applications the correct priority banding according to its housing allocations scheme. Failure to do so reduces confidence in the Council’s handling of applications.

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Agreed action

41. Within one month of my final decision the Council should apologise to Miss X for the confusion caused by the fault identified.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed my investigation and found fault by the Council causing injustice. The Council has agreed to take the above action to remedy the injustice caused to Miss X.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman