Summary: Mr X complained about the Council’s delay in completing his medical assessment and re-assessing his priority band on the housing register. He also complained it failed to act on an adjudicator’s recommendations. We have found fault by the Council, causing injustice, in its delay in completing Mr X’s medical assessment and its failures to: consider expediting the assessment; act on the adjudicator’s recommendations; and inform Mr X of his review rights. The Council has agreed to remedy this injustice by apologising, making a payment to reflect Mr X’s distress and uncertainty, considering the exercise of management discretion about his priority band, and making service improvements.

The complaint

1. The complainant, Mr X, complains about the Council’s delay in completing his medical assessment and re-assessing his priority band on the housing register.
2. Mr X says the Council:

• knows his situation is urgent, and he and his family, which includes two young children, are living in accommodation with damp and mould;
• also knows he has severe asthma which is being made worse by the damp and mould; but
• as at March 2024, had still not completed his medical assessment and made a decision, more than six months after he submitted the request, in September 2023.

3. He also complains the Council failed to implement the adjudicator’s recommendations in the stage 3 complaint report issued in December 2023.
4. Mr X asked that the Council to complete its medical assessment and re-assessment of his priority banding without any further delay. He also wants the Council to move him to suitable accommodation, free of damp and mould, as a matter of urgency.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these.
6. 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)
7. 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)
8. 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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What I have and have not investigated

9. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
10. These complaints may be investigated by the Housing Ombudsman Service.
11. I have not investigated the parts of the complaint which concern the Council’s actions regarding the management of Mr X’s home as his landlord.

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How I considered this complaint

12. I spoke to Mr X, made enquiries of the Council and read the information Mr X and the Council provided about the complaint.
13. I invited Mr X and the Council to comment on a draft version of this decision. considered their responses before making my final decision.

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What I found

What should have happened

Housing allocations policy

14. 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))
15. 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))

Review rights

16. Housing applicants can ask councils to review a wide range of decisions about their applications, including decisions about their housing priority.
17. Statutory guidance on the allocation of accommodation says councils must inform applicants that they have the right to information about certain decisions which are taken in respect of their application and the right to review those decisions (section 166(1A)).

The Council’s allocations policy

18. The policy says the Council will assess and place housing register applicants into one of the following four priority bands:

• Band 1: Emergency – this includes Management Discretion Band 1
• Band 2: High – this includes high medical priority cases, and Management Discretion Band 2
• Band 3: Medium – this includes medical priority cases
• Band 4: Low – this is for applicants overcrowded by one bedroom

The procedure for medical assessments

19. Applicants with medical issues should complete an online medical form. The policy says:

• the Council’s Medical Advisor will then consider the information provided and may recommend Emergency, High or Medium Priority on medical grounds;
• a decision not to award priority means the Council has assessed the case as not meeting the criteria set out in the policy. It does not mean the applicant does not have medical needs. and
• medical assessments normally take up to six weeks.

20. If an applicant is unhappy with the decision reached as a result of the Medical Advisor’s recommendation, they may ask for a review of the decision. The policy says:

• the review request must be made within 21 days of the notification of the decision. It should be in writing and sent to the email address set out at paragraph 1.6; and
• the Council aims to reach a decision on a review within 56 days of receiving the request. The review will be carried out by someone who did not make the original decision. It will tell the applicant how it made the review decision.

The Council’s housing complaints procedure

21. The Council offers its tenants an optional Stage 3 Adjudication as the final stage of its housing complaints process. It says, under this process:

• the Stage 3 adjudicator will consider both sides of the complaint. If they find fault by the Council, they may make recommendations about the action the Council should take to put things right;
• the adjudicator’s recommendations are binding on the Council; and
• if the tenant remains dissatisfied following the adjudication, they can pursue their complaint with the Housing Ombudsman.

What happened

22. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Complaint background

23. Mr X is a Council tenant. He, his partner and their two young children live in a one-bedroom property.
24. The property is too small now for the family’s housing needs. Mr X is on the housing register for a move to a larger property. He was placed in Band 4, on the basis of overcrowding and lacking one bedroom.
25. Mr X says there has been recurring damp and mould at the property for the last ten years. His complaint to the Housing Ombudsman about damp and mould at the property was upheld in 2019. The Council has carried out remedial work since then, but the issues have not been resolved.

2023: The impact of the damp and mould on Mr X’s health

26. Mr X was diagnosed with severe asthma in 2023. His medical consultants advised the damp and mould in his home were exacerbating his illness.
27. Mr X, and his MP, contacted the Council about the continuing damp and mould in his home, the impact on his health and concerns about the effect on his young children.
28. The Council told Mr X’s MP, it did not take damp and mould into consideration as a reason for rehousing a council tenant. This was because it would carry out the repairs needed to address the issues. And, if significant work was required, it would temporarily rehouse tenants while the repairs were completed. It also said medical assessments were currently taking about 26 weeks due to a backlog.

August 2023: further remedial work

29. The Council carried out some further remedial work at Mr X’s home.
30. The work did not resolve the problems. In September Mr X complained to the Council about the recurring damp and mould in his home.

Council’s response to Mr X’s complaint

31. The Council partially upheld his complaint. It accepted remedial work to address the damp and mould was outstanding. It said this further work had been arranged.
32. Mr X was not satisfied with this response. He asked the Council to escalate his complaint to stage 2 of its complaints procedure.
33. The Council confirmed, in its stage 2 response, what it had said in its first response, and that arrangements were being made to carry out the further work.

September 2023: Mr X’s application for a medical assessment

34. Mr X spoke to a housing officer about his concerns. He was advised to complete a change of circumstances form about his medical needs, but told medical assessments were currently taking about 26 weeks to complete.
35. Mr X submitted his change of circumstances form with information about his medical condition on 26 September. The Council asked its Housing Medical Adviser (HMA) to complete a medical assessment.
36. Mr X sent the Council further medical information in support of his application. This included a medical report dated October 2023 from his hospital respiratory nurse. The report said the test results were suggestive of severe airway inflammation. It was strongly felt moving Mr X away from his current property was crucial. The mould and dampness were exacerbating his asthma symptoms.
37. In December, the HMA asked the Council’s repair service for its inspection report for Mr X’s property and details of remedial work completed or scheduled.

December 2023: Stage 3 adjudication

38. Mr X was not satisfied with the Council’s stage 2 response to his complaint. He asked for an investigation by a stage 3 adjudicator.
39. The adjudicator upheld Mr X’s complaint. They said:

• time was of the essence. The medical consultant made clear the connection between the condition of Mr X’s home and his health. This should have prompted the Council to prioritise its assessment of the change in Mr X’s circumstances and request for medical priority so that he didn’t have to wait 26 weeks for a decision; but
• the Council had failed to address the damp and mould issues in Mr X’s home, and the consultant’s view of the impact of this on his health, with sufficient urgency. This was not good enough.

40. The adjudicator recommended the Council:

• apologise to Mr X;
• pay him £250 to acknowledge his distress;
• consider whether the consultant’s comments justified exercising its management discretion to move Mr X’s application into Band 1 or Band 2, and tell Mr X its decision with reasons; and
• carry out an urgent inspection of Mr X’s home, including the operation of the fans, to establish the causes of the damp and mould, and how this should be addressed.

41. The adjudicator also recommended the Council make the following service improvements:

• review its records of damp and mould inspections and processes for arranging work to prevent long delays between an inspection and the completion of remedial works. It should not be left to residents to prompt the Council about the work needed; and
• remind officers of the process they should follow when they receive medical information which may justify a transfer or increased priority.

Mr X’s complaint to us

42. Mr X did not hear from the Council further to the adjudicator’s report. It did not contact him about the recommendations. It did not contact him about its decision on his request for medical priority.
43. So Mr X brought his complaint to us.

2024: Council’s decision about Mr X’s medical priority

44. The Council’s repair service carried out an inspection of Mr X’s home in February 2024, which confirmed the continued presence of damp and mould. It arranged to check the condition and operation of the fans and ventilation unit.
45. The HMA chased the repair service in March for the information requested in December. This information was provided and the HMA completed Mr X’s medical assessment in April.
46. The Council told Mr X, by email on 9 April, about its decision on his request for medical priority. It said:
1. the assessment had been carried out in accordance with its allocations policy; and
2. it did not recommend an award of medical priority because:

• the repairs service advised the mould had developed due to the failure of the heating element in the ventilation unit. This was being replaced. A washout to treat the current damp and mould was being scheduled; and
• it would not recommend medical priority where the HMA is satisfied a person’s living circumstances are not considered significantly detrimental to their health and functional ability.

47. The Council sent Mr X a further email on 15 April with a link to the allocations policy on its website.

April 2024: Mr X’s request for a review

48. Mr X asked the Council to review its decision about his medical priority.
49. His request was made on 15 April. The review should have been completed by 10 June - within 56 days of his request.
50. The Council completed the review on 28 June and notified Mr X about the outcome. It upheld the original decision not to award him medical priority on the housing register.

The Council’s response to my enquiries about Mr X’s complaint

51. I asked the Council what action it had taken in response to the adjudicator’s report. It said:

• housing managers had considered the processes for urgent cases. They felt there were already procedures in place for decisions to be made about moving tenants either permanently or temporarily while repairs were being carried out. There were also procedures for expediting medical assessments if it was not applicable to exercise management discretion; and
• it had not considered whether to prioritise Mr X’s medical assessment.

52. In response to my enquiry about the time taken to complete medical assessments, it said:

• in November 2023 the wait for medical assessments was 52 weeks; and
• by April 2024, this had been reduced to six weeks. It had cleared the backlog by employing an additional HMA in October 2023 and was now achieving its target of completing assessments within six weeks.

53. In response to my enquiry about how it informs applicants of their right to request reviews, it said;

• its allocations policy and website tell applicants what they should do if they disagree with a decision about their housing application; and
• it referred Mr X to the policy and its website in its email of 15 April.

My view – was there fault by the Council causing injustice?

Delay assessing Mr X’s medical priority request

54. Mr X made his request for medical priority in September 2023. The Council’s policy says medical assessments should normally be completed within six weeks. Mr X’s assessment should have been completed by November 2023. It was not completed until April 2024, a five-month delay.
55. I consider this delay was fault which caused Mr X avoidable distress and uncertainty while waiting longer than he should have done for the outcome of the assessment.
56. I am pleased to note the action the Council has taken to clear the backlog – which was the reason for the delay, and its confirmation assessments are currently being completed within a reasonable timescale and in accordance with its policy.

Failure to consider expediting Mr X’s medical assessment

57. The Council says it has a process for expediting medical assessments in urgent cases.
58. But it did not consider whether Mr X’s assessment should be prioritised even though:

• it knew Mr X was suffering from severe asthma which medical consultants said was being caused by his housing conditions; and
• the adjudicator said in their report time was of the essence and the medical information should have prompted the Council to prioritise its assessment.

59. In my view the failure to consider whether to expedite Mr X’s medical assessment was fault. Because of this, Mr X lost the opportunity to have his assessment completed more quickly.

Failure to respond to the adjudicator’s recommendations

60. The adjudicator’s recommendations were binding under the Council’s own complaints process.
61. I have not seen any evidence the Council carried out the adjudicator’s recommendations it should:
1. apologise to Mr X and pay him redress of £250;
2. consider whether the consultant’s comments justified exercising its management discretion to move Mr X’s application into Band 1 or Band 2 and tell Mr X its decision with reasons;
3. review its processes to prevent long delays between an inspection showing the presence of damp and mould and the completion of remedial works; and
4. remind officers of the process they should follow when they receive medical information which may justify a transfer or increased priority.
62. I also note, although the adjudicator recommended the Council carry out an urgent inspection of Mr X’s home, it took more than two months for this to happen.
63. Some of the recommendations concern the Council’s actions as a social landlord. But the recommendations at b) and d) concern the Council’s actions when assessing priority in accordance with its allocations policy. I consider the Council’s failure to respond to these recommendations was fault.
64. Because of this, Mr X lost the opportunity for his application to be considered for a move to Bands 1 or 2 under the Council’s management discretion.

Mr X’s right to a review

65. The Council was required to inform Mr X he had the right to ask for a review of its decision about his medical priority. There was no reference in the emails of 9 and 15 April to his right to ask for a review of its decision.
66. I don’t consider including a link to the allocations policy on its website, without any further information about a right to ask for a review or where to find the relevant information, meets this requirement. The Council’s failure to inform Mr X about his review right was fault.
67. Fortunately, in this case, Mr X found out about the review right and the process for requesting a review. But other applicants may not be able to do so without being properly informed about this by the Council, as it is required to do under the Housing Act.

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Agreed action

68. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mr X for its delay in completing his medical assessment and its failures to: consider expediting the assessment; act on the adjudicator’s recommendations; and inform him of his review rights. This apology should be in line with our guidance on Making an effective apology;
2. pay Mr X £500 to reflect the distress, worry and uncertainty caused by its delays and failures. This is a symbolic amount based on our guidance on remedies, and separate to the adjudicator’s recommendation in their report; and
3. review Mr X’s circumstances and medical reports and consider whether a management discretion case should be presented for a decision on whether his case warrants an increase in priority banding in line with the Council’s allocations policy and notify Mr X of its decision.
69. And within three months from the date of our final decision, the Council has agreed to:
1. remind officers of the process they should follow when they receive medical information which may justify a transfer or increased priority, and the process for expediting a medical assessment; and
2. review its procedures for notifying applicants of decisions about their housing applications to ensure they are informed of their right to request a review of these decisions.
70. The Council should provide us with evidence it has complied with the above actions.

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Final decision

71. I have completed my investigation and found fault by the Council causing injustice. The Council has agreed to take the above action as a suitable way to remedy this injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman