Summary: Ms Q complained about the Council’s handling of her housing application and assessment of medical priority. She said she experienced distress due to the impact her housing circumstances had on her. We found the Council at fault for causing significant delays in her 2022 request for medical priority, but no fault in the process it followed to reach its decision, it therefore reached decisions it was entitled to make. The Council will apologise to Ms Q, back date her medical priority start date, and make payment to acknowledge the injustice its delays caused.

The complaint

1. The complainant, Ms Q, complained about the Council’s handling of her housing register application. She said it wrongly:
• refused for her medical priority award to be backdated to Summer 2021 as it had failed to consider her request for medical priority and give her appeal rights:
• refused her request to be able to bid on houses with gardens due to the ages of her children; and
• refused her request to be allocated priority Band 1 under its housing allocations scheme.
2. Ms Q said, as a result, she experienced distress due to the impact her housing circumstances has had on her and her family.

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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. 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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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)

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How I considered this complaint

7. As part of my investigation, I have:
• considered Ms Q’s complaint and the Council’s responses;
• discussed the complaint with Ms Q and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• had regard to the relevant law, guidance, and policy to the complaint.
8. Ms Q and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Housing allocations

9. 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)).
10. 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))

Council’s housing allocations scheme

11. The Council’s scheme prioritises applicants in different bands depending on their circumstances. These are:
• Band 1 Emergency, which are the applicants with most urgent need to move or obtain housing;
• Band 2 High, which includes high medical priority;
• Band 3 Medium, which include applicants with medical priority or overcrowded with two bedrooms; and
• Band 4 Low, which includes applicants who are overcrowded with one bedroom.

Medical priority and changes of circumstances

12. Applicants who ask for medical priority are required to submit an online medical form. The Council’s medical advisor will consider the information and the supporting evidence provided and may contact medical or other professionals for further information. The policy says it will normally take six weeks to obtain a medical assessment.
13. If applicants are unhappy with the medical advisor’s decision, they can ask for a review which will be final. However, a reassessment should be requested in circumstances where an applicant’s circumstances change, or additional medical information not considered in the original decision is available.
14. The Scheme says houses with up to three bedrooms will be offered to families with children under the age of 11 years of age with an assessed need for a garden, or applicants who have Emergency Priority on the grounds of under occupation where they are already living in a house.

Management discretion

15. The Council’s scheme allows for a review under management discretion and its Emergency Housing Panel. This can award Band 1 priority in exceptional circumstances which includes circumstances were an applicant have been referred by another agency such as the police, landlords, multi-agency teams, or witness protection. Decisions reached cannot be reviewed.

What happened

16. Ms Q lives with her children in a two-bedroom property.
17. In Summer 2021 Ms Q was on the Council housing register with a Band 3 priority. She made an application to the Council for a transfer to a three-bedroom property with a garden. She said this was needed as one of her children had medical conditions.
18. The Council told Ms Q to provide all her supporting documents to ensure the correct priority was awarded. It explained her children were not yet 10 years old and therefore did not require their own bedrooms. It also explained the Council’s policy on allocating properties with gardens to families.
19. In September 2021 the Council’s medical advisor considered Ms Q’s request but found the family did not meet the criteria for medical priority. It told her this was because their living circumstances were not considered significantly detrimental to their health and functional ability based on the evidence available. However, the Council realised it had not updated her case when her children became eligible for their own bedrooms and corrected this by adding she was overcrowded by one bedroom. Her Band 3 priority remained unchanged.
20. In late 2021 Ms Q emailed the Council’s customer service team to find out more information about its decision and how to appeal it, but she received no response from the Council.
21. In April 2022 Ms Q again emailed the Council’s customer service team to appeal the Council’s decision. She explained she needed a three-bedroom property with a garden. In response, she was told she would have to contact its housing needs team and provide any medical evidence she had with her request.
22. In Summer 2022 Ms Q uploaded further medical evidence to her existing housing application. This was through an agent acting on behalf of the Council. A task was set for the Council’s medical adviser to consider the request.
23. In October 2022 the Council updated its Allocations Policy, which included amendments to the banding criteria. Applicants in Band 3 became Band 4 priority.
24. Ms Q chased the Council in November 2022 as she had not had a response to her request for medical priority. The Council’s medical advisor told the Customer service team the task had not been received in June 2022. A new task for a medical assessment was set to be completed.
25. In July 2023 Ms Q completed a change of circumstances form and shared this with the Council regarding her request for medical priority in Summer 2022. This also included reasons why a garden was needed for her child.
26. In October 2023 the Council’s medical advisor considered Ms Q’s request and awarded Band 2 medical priority, it found an outdoor space was needed but this could be communal. The start date of the priority was from the date of the Council’s decision.
27. Ms Q asked the Council for a review of its medical priority decision. However, this was refused by the Council as she had already received the highest medical priority available on its allocations scheme. It also explained its medical priority decisions and why no medical priority was awarded in September 2021.

Ms Q’s complaint

28. Ms Q was not satisfied with the Council’s handling of her housing application and wanted the Council to backdate her Band 2 medical priority. She said:
• her request for priority was refused in September 2021 based on incorrect understanding of her children’s ages, and her child’s medical conditions were not considered;
• she had requested medical priority again in Summer 2022, but did not receive a response and had to chase the Council in late 2022 for the outcome, and the assessment first took place in October 2023;
• her child needed a garden, but she was unable to bid for properties with gardens. This was because the Council’s policy did not allow this based on the ages of her children;
• the Council should give her Band 1 priority due to its breaches of its allocations policy and asked for a Management Discretion review; and
• she had made a subject access request to the Council regarding her housing file, but this had not been provided to her.
29. In its responses the Council accepted it had caused a short delay to update her application when her children were entitled to their own bedroom. It apologised and explained this did not change her priority banding. However, it found no other fault in its handling of her requests. It explained:
• its medical advisor considered the evidence available for her medical priority request in September 2021. Its decision and reasons were shared with her, and she did not request a review at the time;
• Ms Q uploaded further medical information to her housing application in Summer 2022. However, as its system does not automatically record this as a request and she did not submit a change of circumstances form until July 2023, her request was not actioned;
• it had considered her medical priority request in October 2023 and awarded Band 2 medical priority with a start date from the date of its decision. This could not be reviewed as this was the highest medical priority band available under its scheme and her circumstances did not meet the criteria for a management discretion review; and
• it had found an outdoor space was needed, but it was satisfied this could be a communal space or garden. It explained, in line with its allocations scheme, she could therefore only bid for properties with gardens from housing associations and not those advertised by the Council.
30. Ms Q remains dissatisfied with the Council’s responses and asked the Ombudsman to consider her complaint. I understand Ms Q provided further medical evidence to the Council in 2024 and made another request for priority under its housing allocation scheme.

Analysis and findings

31. Ms Q’s complaint includes matters which occurred more than 12 months before it was brought to our attention. Parts of her complaint is therefore late.
32. I have found it appropriate to consider her complaint from Summer 2021 when she made her request for medical priority under the allocations scheme to the Council. This is because she had continued to pursue challenge and request priority since with the Council.
33. I cannot consider the Council’s handling of Ms Q’s request for medical priority in 2024 as this was not part of her original complaint.

Ms Q’s 2021 medical priority request

34. Ms Q’s request for medical priority in Summer 2021 was considered and responded to by the Council in September 2021. It found she was in the correct priority band at the time, as based on the evidence provided to it, it was not satisfied their existing housing seriously affected a medical condition or disability.
35. I have found no fault in the process the Council followed to reach its view. The Council was therefore entitled to reach its decision. In reaching my view I was conscious it considered Ms Q’s child’s health conditions.
36. However, the Council’s medical priority decision did not provide any information to Ms Q about how she could request a review. She also subsequently asked the Council how she could request for it to review its medical priority decision, but she did not receive a response. I found this was fault. I would expect for the Council’s review process for medical priority decisions to be provided to applicants, and Ms Q should have been informed about the process when she asked the Council in late 2021.
37. As Ms Q did not submit further medical evidence until Summer 2022, I cannot say whether the outcome would have been the same. However, I am satisfied this was a missed opportunity for her to have her review request considered and she experienced some distress as a result.
38. Also, the Council agreed it had caused a short delay in updating her housing application when her children became entitled to an additional bedroom due to their ages. While this was fault, I am satisfied this did not cause a significant injustice to Ms Q. This is because the Council corrected its error soon after, apologised to Ms Q, and took steps to ensure staff was aware of the importance of updating its system in such circumstances.

Ms Q’s 2022 medical priority request

39. Ms Q uploaded further medical information to the Council’s through its agent in Summer 2022. She said this was to have her medical priority considered.
40. The Council said this was not a review request as this was new information and it was not a reassessment request as she did not complete a change of circumstances form and her request was managed by its agent. The Council was therefore unaware she had provided the information.
41. I found the Council was at fault for failing to assess Ms Q’s Summer 2022 medical information within six weeks as set out in its Allocations Scheme and reach a view whether she was entitled to medical priority. This is because:
• the Council is entitled to delegate services and functions to its agents. However, it remains responsible for the actions or inaction of its agents. This therefore includes the delay by its agent to pass Ms Q’s request to its medical assessor;
• I am satisfied the Council was aware Ms Q had provided new medical information and she wanted the Council to assess her medical priority. The evidence shows the Council, or its agent, had set a task for its medical advisor in Summer 2022 to consider Ms Q’s medical information. She was not informed to complete a medical form at the time;
• when Ms Q chased this in late 2022, the Council’s medical advisor confirmed no task had been set for her information to be assessed. The Council therefore intended to do so, but either no task was set for the medical advisor, or the medical advisor did not action the task;
• in November 2022 the Council set a task for its medical advisor to consider Ms Q’s medical information. It said it called Ms Q but could not reach her. It subsequently took no further action to assess her information or to contact her. She was not therefore informed to complete a medical form at the time;
• the Council first started its process of arranging for its medical advisor to consider Ms Q’s request in Summer 2023 when she submitted a change of circumstances form regarding her Summer 2022 medical information; and
• it took the Council over 15 weeks to reach its decision to award Ms Q Band 2 High medical priority.
42. Normally, I cannot say what the outcome of a council’s medical priority assessment would have been but for the delays. This is because the circumstances or evidence may have changed. However, in this case, the information the Council found to entitle Ms Q to Band 2 High medical priority was the same information Ms Q had provided in Summer 2022.
43. I am therefore satisfied the Council should have reached its decision to award her the medical priority by the 18 July 2022, which in line with its Allocations Scheme was six weeks after she provided her evidence.
44. I found, as a result, Ms Q experienced distress and had time and trouble to bring her concerns to the Council’s attention. She also had a loss of opportunity to bid for properties under her higher banding for over a year. However, considering the length of time it currently takes for applicants to obtain a successful bid under this priority band and number of bedrooms, I cannot say she missed out on a suitable property.
45. I have not made service improvement recommendations to the Council on this part of Ms Q’s complaint. This is because the Council has shared the actions it has taken to improve its handling of medical priority requests and delays in another investigation, and we were satisfied with the actions it has since taken.

Ms Q’s request for a property with a garden

46. I have not found fault in the process the Council’s medical advisor followed to reach his view on Ms Q’s housing need in relation to a garden. The Council found a communal garden or outdoor space would be appropriate. This was a decision the Council was entitled to make.
47. Also, the Council informed her she cannot bid for Council properties with gardens, but she may be able to apply to some housing associations. This was not fault as this was in line with its Allocations Scheme.
48. I understand Ms Q has made a new request to the Council and submitted further information for it to consider regarding this. This is therefore outside the scope of this investigation.

Priority dates

49. The Council confirmed its Allocations Scheme does not set out when the start date for medical priority or other banding decisions should start from. However, it is its practice to do so from the date its assessment or decision took place.
50. While the Council is entitled to make its own policy, this practice can clearly cause injustice to applicants in circumstances where the Council is causing a delay.
51. In addition, the Council’s practice also appears to be conflicting with its published policies:
• its Allocations Scheme refers to the priority date for housing applications starts from the date a person applies, not from the date the Council decides the applicant is entitled to join;
• its ‘Find You Home Policy’ says the priority date is the date the application was accepted, or the date of any change of circumstances that led to the change in the band. There is no reference to the Council’s assessment or decision date.
52. My findings mean Ms Q experienced an injustice as her priority date was set for October 2023 when the Council made its decision, instead of when she provided her change of circumstances form in Summer 2023. However, as I have found her Band 2 High medical priority should be backdated to Summer 2022, this has not caused a further injustice to her.

Management Discretion review

53. I have not found fault in the Council’s decision to refuse Ms Q’s request for Band 1 Emergency priority. This is because it was entitled to reach its view she did not meet the specific criteria set out in its Allocations Scheme for this banding.

Information request

54. Ms Q said she made a subject access request to the Council to obtain information in her housing file. The Council said it had processed her request.
55. Ms Q’s concerns relates to the Council’s handling of an information request. The body best placed to consider such concerns is the Information Commissioner Office (ICO). Ms Q should therefore direct any concerns she may have to the ICO’s attention.

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Agreed action

56. To remedy the injustice the Council caused to Ms Q, the Council should, within one month of the final decision:
1. write to Ms Q and apologise for the distress, uncertainty, and lost opportunity the Council’s delays and poor communication caused. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology;
2. pay Ms Q £300 to acknowledge the injustice its faults caused her; and
3. backdate the start date of Ms Q’s Band 2 High medical priority from October 2023 to June 2022 when she provided the relevant information to the Council.
57. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. review how it informs applicants about their rights of review following a medical priority decision, and ensure relevant staff are aware of the process to ensure they can provide the necessary information to applicants when decisions or requests are made.
5. review the Council’s practice for priority start dates when it completes assessments or processes information against its Housing Allocation Scheme and Find Your Home Policy. This is to ensure:
1. it is consistent in how the start date for priority is applied; and
2. applicants are not unfairly disadvantaged in circumstances where the Council causes delays in considering applicants reports of changes of circumstances or requests for medical priority.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. There was fault by the Council on parts of Ms Q’s complaint which caused her an injustice. The Council has agreed with my recommendations, and it is on this basis I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman