Summary: Mr X complained the Council delayed deciding his application to join the housing register and wrongly decided he did not meet its local connection requirement. Mr X says he could not bid for advertised properties and has lived with his family in unsuitable conditions for longer than necessary. We have found fault by the Council but consider the agreed action of an apology, symbolic payment and new decision provides a suitable remedy.

The complaint

1. The complainant, Mr X, complains the Council delayed in deciding his application to join the housing register and has wrongly decided he does not meet its local connection requirement. Mr X says because of the Council’s fault he cannot bid for advertised properties and has lived with his family in unsuitable conditions for longer than necessary.
2. Mr X also raised a new issue about his potential homelessness situation following his landlord issuing him with a section 21 notice.

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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 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)
4. 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)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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)
7. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

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What I have and have not investigated

8. I have investigated Mr X’s complaint about his housing register application only.
9. I have not investigated the part of Mr X’s complaint about the Council’s response to his potential homelessness situation following the serving of a section 21 notice by his landlord. This is because this is a new issue which Mr X would need to complain to the Council about in the first instance. We provided Mr X with the details of Shelter to assist with this issue.

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How I considered this complaint

10. I read the papers provided by Mr X and discussed the complaint with him. I have also considered information from the Council. I have explained my draft decision to Mr X and the Council and provided an opportunity for comment.

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What I found

Background and legislation

The published scheme

11. 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))
12. The Council is a partner in a local choice-based lettings scheme which enables housing applicants to bid for available properties which are advertised.

Reasonable preference

13. 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))

Decisions and review rights

14. Councils must notify applicants in writing of the following decisions and give reasons:

• that the applicant is not eligible for an allocation;
• that the applicant is not a qualifying person;
• a decision not to award the applicant reasonable preference because of their unacceptable behaviour.

15. The Council must also notify the applicant of the right to request a review of these decisions. (Housing Act 1996, section 166A(9))
16. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.

Review procedures

17. 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; and
• reviews should normally be completed within a set deadline - 8 weeks is suggested as reasonable.

Key events

18. Mr X completed an online application to join the Council’s housing register on 25 December 2022. As required by the form, Mr X provided his address history for the previous five years. This included a period in Bangladesh.
19. The Council wrote to Mr X at the end of November 2023. This letter sets out that applicants were required to meet the Council’s local connection criteria which included:

• residence within the borough for the last five years
• engaging in paid employment in the borough and have a housing need
• receiving or providing health related supportive care for a borough resident.

20. The Council confirmed Mr X did not qualify to join the housing register as based on the information provided with his application form he did not meet the continuous five year residence criteria. The Council suggested he may qualify if he engaged in paid employment in the borough and had a housing need or was receiving or providing health-related care or support to a borough resident. The Council advised Mr X to inform it if this was the case. The letter set out Mr X’s right to request a review of the decision within 21 days.
21. The Council’s allocation policy at 3.3.3 (c) says “you want to live near to a close relative who has lived in Southwark for more than 5 years and receive or provide support/care.” There is no reference to this support being restricted to medical/health needs. On balance, I consider the inaccurate wording in the Council’s decision letter constitutes fault. The Council has acknowledged that there may be other support or care reasons than health needs and has confirmed it will provide guidance to officers about the wording in its future decision and review decision letters.
22. Mr X has told the Ombudsman he has lived in the brough continuously since 2015 and it was his wife who had lived abroad during the relevant period but he is the main applicant. Mr X also suggests he needs to remain in the borough due to the support received from family especially for his wife and children. It is likely Mr X would have wished to provide such information to the Council in his subsequent review request if it had used the correct wording from its allocation policy in its decision letter above and expressly referred to Mr X living in Bangladesh. Although I cannot say what the outcome would have been in these circumstances, I am satisfied Mr X has missed the opportunity to raise relevant information as part of his review request.
23. Mr X emailed the Council on 14 December 2023 to say he had sent an appeal about the Council’s decision on his housing application by both email and post but had not received a reply. The Council sent a same day reply to say the matter had been referred to the team which operated the review process. There is no evidence the Council actioned Mr X’s appeal at that time. The Council was also unable to provide a copy of Mr X’s review request to the Ombudsman. The failure to ensure a proper record is kept of such requests is fault. The Council has confirmed to the Ombudsman it is reviewing its process to ensure review requests are properly recorded.
24. The Council completed the review during the course of my investigation and sent the outcome to Mr X on 22 May 2024. The Council’s review letter refers to Mr X’s email of 14 December 2023 seeking a review of its decision to remove him from its bidding scheme on 27 November 2023. The Council apologised for the delay but did not provide any reason for the time taken. The Council confirmed the outcome was that Mr X’s application would remain closed.
25. In its review letter, the Council set out the relevant part of its housing allocations policy, the information it had considered and the reasons for its decision. The information considered included Mr X’s online Housing Application form of 25 December 2022, the information he provided with his review request and supporting medical information and the information on Mr X’s housing file. The Council referred to the address history Mr X had previously provided and credit checks in March 2022 and May 2024 which confirmed Mr X was not registered as living in the borough until April 2021. The Council noted Mr X had not provided any evidence he was employed in the borough and so it could not conclude he met the employment local connection criteria. The Council also noted Mr X had not provided any supporting information to suggest he had medical needs to live in the borough to receive or provide essential care for someone in the borough and so could not conclude he met this local connection criteria. The Council also considered if there were any exceptional circumstances to include Mr X but found there was no information that indicated this was the case. The Council determined it could not conclude Mr X had a local connection to the borough. The Council also considered Mr X had provided false and misleading information about his housing circumstances and had closed his application correctly in line with its allocation scheme. The Council referred to 3.3.3 of the allocation scheme but I note the situation where an applicant has provided incorrect information is dealt with at 3.6.15 and 3.6.17 where they have failed to demonstrate they live where they are supposed to. The review decision letter repeats the inaccurate wording in relation to paragraph 3.3.3 (c). This is fault.
26. The Council has acknowledged the significant delay in processing Mr X’s housing application and has offered to provide an apology. There was also a significant delay between December 2023 and May 2024 in providing an outcome to Mr X’s review request. The Council’s policy says at 3.15.2 that such a review will be carried out and the decision and the reasons for it will be given to the applicant in writing within 28 days of the request being received. The delay here in relation to both application and review was excessive and constitutes fault.
27. Mr X complained to the Council in October 2023. The Council’s reply in early November at stage 1 of its complaints procedure sets out the complaint as being that Mr X had made a housing register application a year ago but had still not received a reply. This upheld the complaint suggested the matter would be addressed within 28 working days. Mr X remained unhappy with the outcome.
28. The Council sent a reply at the stage 2 of its procedure in early January 2024. This referred to some misunderstandings with regard to the advice provided in its stage 1 response and historical homeless applications. The Council says the application made to join the housing register Mr X had made in December 2022 had been caught in the significant backlogs the applications team had been experiencing for some time. The Council apologised for the delay but had now determined Mr X failed to meet the local connection criteria. The Council highlighted that Mr X’s original application form suggested he was living in Bangladesh for part of the relevant period. This information is not expressly included in the Council’s earlier November 2023 decision letter or May 2024 review letter (which refers instead to an out of borough address in the RM12 postcode rather than Bangladesh). I consider taken together the poor communication constitutes fault.

My consideration

29. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether you disagree with the decision the organisation made.
30. I should also explain the Ombudsman recognises that the demand for social housing far outstrips the supply of properties in many areas. She may not find fault with a council for failing to re-house someone, if it has prioritised applicants and allocated properties according to its published lettings scheme policy.
31. However, I am satisfied the various faults identified above in the Council’s decision-making process will have caused Mr X avoidable frustration and uncertainty about how his application and subsequent review were considered.
32. In these circumstances, I consider the Council should re-take its decision on Mr X’s housing register application and ensure it provides accurate information about its allocation policy in relation to establishing a local connection and clearly sets out its reasons if it remans of the view Mr X does not meet its five year residency requirement including the period and location of any out of Borough residency the Council is relying on. The Council should also ensure its decision letter sets out Mr X’s right to request a review and that any subsequent review request is dealt with in accordance with the timescales set out in its policy.
33. The Council has also recently provided details to the Ombudsman of its action to address the backlog highlighted in this complaint including providing additional resources. The Ombudsman would welcome this action and I have not made a service improvement recommendation about this issue accordingly. However, the Council has acknowledged further work is required to address this issue and it is likely we would wish to have further details if the issues remain in any subsequent complaints we receive. This would likely include an action plan, with targets, to clear any backlog.

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Agreed action

34. The Council will take the following action within one month of my final decision to provide a suitable remedy to Mr X:
1. write to Mr X to apologise for his avoidable frustration and uncertainty caused by the fault in the way it dealt with his housing register application and subsequent review request;
2. make a symbolic payment of £200 to Mr X to recognise his avoidable frustration and uncertainty;
3. write to Mr X with a fresh decision on his housing register application ensuring this accurately sets out the relevant wording of its allocation policy and provides clear details about the information it is relying on if it considers he does not meet the five-year residency requirement; and
4. consider any subsequent review request in accordance with the timescales set out in its policy.
35. Although the Ombudsman cannot say what the outcome of any such application and/or review request by Mr X will be, in the event the application (or any subsequent appeal) is successful the Council should backdate the date of joining the housing register to March 2023.
36. In the circumstances of a successful application or review request the Council should also complete a review from March 2023 to identify any missed opportunities for Mr X to have made a successful bid for a property and provide this information to the Ombudsman.
37. If such a review identified any such missed opportunity, the Council should advise Mr X and consider a payment for living in overcrowded conditions for longer than necessary in accordance with the Ombudsman’s guidance on remedies.
38. It would remain open to Mr X to make a new complaint to the Ombudsman about the outcome of any such bidding history review by the Council.
39. 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.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I have completed my investigation as we have found fault by the Council but consider the agreed action above provides a suitable outcome.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman