Summary: Miss X complained about the way the Council dealt with her housing application. We found no fault in the way the Council made its decision. However, we found fault with the Council’s failure to assess if she was homeless. This caused uncertainty to Miss X. The Council will apologise for this and consider her case again.

The complaint

1. Miss X complains about the way the Council dealt with her housing application. She says the Council:

• wrongly decided she was not eligible for a two-bedroom house;
• failed to consider advice from adult social care; and
• failed to consider her medical need for a private and safe garden.

2. Miss X says that having to stay in her current property is causing her great distress and is impacting on her mental health. Miss X says her current property is unsuitable on medical grounds which makes it unsafe for her and her young children.

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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 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. I have considered the information Miss X and the Council provided.
6. Miss X and the Council had the opportunity to comment on my draft decision. I considered these comments before making a final decision.

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What I found

Legislation and guidance

The published scheme

7. 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))

Reasonable preference

8. 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))

Additional preference

9. Local authorities may also give an additional preference to people who fall within the reasonable preference groups and have an urgent housing need, for example those who need to move for urgent medical reasons.

The Council’s scheme (applicable at the time of Miss X’s complaint)

10. The Council’s allocation scheme priority on health or disability grounds applies where an applicant or member of the household has a medical condition that may affect their application.
11. The scheme says a tenant who holds an introductory tenancy will not be eligible for a transfer other than for a new or worsening medical condition, deemed to have priority by the Council’s independent medical assessor.
12. The scheme also says that where there is an exceptional circumstance, any person who is not a qualifying person to be eligible for a transfer may be deemed eligible by a senior manager at head of service level or above in order to ensure that the council is complying with its statutory duties under the Housing Act 1996, s166A(3), or under the Equality Act 2010, s149.

Banding

13. The Council uses a banding system to identify those in greatest housing need.
14. Applicants who have an active application, can bid under choice-based lettings and be considered for an allocation of accommodation. They will be assessed and placed into one of five bands, A-E.
15. Applicants who have an inactive application and cannot bid under choice-based lettings will be placed in band F.
16. The Council’s housing allocation scheme says that band B is awarded where there is very high priority, for example where there is severe overcrowding and an unadaptable property. Band F refers to no priority and applicants are not entitled to be made an offer of accommodation under the terms and will be unable to bid under choice based lettings.

Housing related debt

17. Applicants who have housing related debt will not be entitled to be made an allocation of housing and their application will be placed in band F. The applicant will remain in band F until such time as they have made a repayment commitment to clear the debt and making regular payments for a specified period of time without missing a single payment.

Homelessness

18. Someone is homeless if they have no accommodation or if they have accommodation, but it is not reasonable for them to continue to live there. (Housing Act 1996, Section 175)

What happened?

19. Miss X moved into a one-bedroom first floor council owned flat in early 2023. She was pregnant with her first child. Miss X applied to join the housing register in late 2023 as she said she wanted to move to a more suitable property.
20. The Council held a panel meeting in December 2023 to discuss Miss X’s application. The panel was made up of council staff. In this meeting, the Council said it had extended Miss X’s introductory tenancy to 18 months as she had rent and council tax arrears. The Council said because of the arrears she was not eligible to join the housing register as she was not a secure tenant.
21. The panel discussed that Miss X had several medical conditions which contributed to her poor mobility and made it difficult to leave her first-floor property.
22. The panel considered information from an adult social care housing needs report which said the following:

• Miss X needed support from her family to leave the property;
• adaptations had been made to the bathroom to support her to care for her child;
• Miss X had requested her new property to not be a flat due to her high levels of anxiety over having neighbours because of previous anti-social behaviour; and
• adult social care supported a move to a two-bedroom bungalow or house which would make it easier for Miss X to leave the property.

23. The panel agreed to make an exception to its allocations policy and allow Miss X to join the housing register while on an introductory tenancy. However, because of the debt, it placed her in band F.
24. The Council wrote to Miss X a week later with the outcome of the panel meeting. It explained that if she made consistent payments for three months or cleared the debts then it would reassess her application. The Council would then consider putting Miss X in the relevant band in line with the allocations policy.
25. The letter also explained the lead officer of the panel had refused the request of a direct let of a ground floor two-bedroom property, but did not provide reasons for this. The Council encouraged Miss X to complete a medical form so the Council could consider her medical needs if it were to complete a reassessment.
26. Miss X disagreed with the Council’s decision to place her in band F and so appealed. Miss X also sent a medical form to the Council in which she detailed her medical conditions.
27. In January 2024, the Council sent Miss X’s medical form to its medical advisors for comment. The medical advisors noted Miss X had generalised mobility issues, however said she was not dependant on the permanent use of significant types of mobility aids. They also said that Miss X did not receive care services they would normally associate with someone who has a severe inability to function daily because of their diagnoses. They decided there was no other “detailed compelling medical evidence given about why Miss X’s present home was unacceptable for health reasons”.
28. Alongside the advice from the medical advisors, the Council also said it considered the following when making its decision on Miss X’s housing priority on medical grounds:

• adult social care housing needs report;
• letter from the hospital;
• letter from a health visitor; and
• letter from a midwife.

29. The Council said it wrote to Miss X mid-January with the outcome of her medical assessment. The Council decided that Miss X’s application would not be awarded any medical priority and that her application would remain in band F. The Council provided Miss X with her right to a review of this decision if she disagreed. Miss X did not exercise her right to review the medical decision because she did not receive this letter.
30. Shortly after this, a midwife contacted the Council on behalf of Miss X. They said that Miss X was pregnant again and they were concerned that her housing situation was inappropriate and unsafe for Miss X, her unborn child, and her baby.
31. The housing panel met again mid-January to discuss Miss X’s appeal for the decision to place her in band F. It discussed:

• Miss X’s application could be placed in band B once arrears were cleared as her current housing was deemed unadaptable based on the housing needs report;
• Miss X explained her medical needs were being worsened by her current property and this was also negatively impacting on her mental health;
• the panel asked Miss X if she would consider a 2-bedroom flat on a different floor. Miss X said she had previously experienced anti-social behaviour in her current property and would be worried that if the lift broke, she would not be able to exit safely;
• Miss X said she wanted to have access to a garden and said this would be beneficial to keep her and her children safe and secure;
• the panel discussed the low availability of 2-bedroom bungalows and houses and the length of time Miss X may be waiting for these in band B;
• the panel noted the concerns around Miss X’s health at the time and said that it wanted to consider a property that would also be suitable for Miss X in the future should she require any further treatment; and
• the panel concluded that it would award Miss X a direct let of the next available 2-bedroom flat. It made this decision as it was concerned about the waiting time for a 2-bedroom house or bungalow and the length of time this could take. It said this was based on the perceived health risks at Miss X’s current property and would facilitate a move as quickly as possible.

32. A few months later, Miss X gave birth to her second child.
33. The Council said it offered Miss X a 2-bedroom ground floor flat in July and it considered that this met Miss X’s needs as it had four bed spaces.
34. Miss X declined this property mid-August. The Council said Miss X declined this as she felt the flat was too small as she now had two children. The Council said that Miss X said, “the Ombudsman is now pushing for a 3-bed house”. As a result of this, the Council asked Miss X to update her housing application, which she did.
35. The Council said that Miss X could refuse the offer of a direct let if she felt the urgency for a property was no longer there and she could place bids for other properties like other applicants.
36. The Council however added that this would only be until its new allocations policy goes live in late 2024, as within the new policy she would only be able to bid on 2-bedroom properties.

Analysis

Eligibility of a two-bedroom house

37. The Ombudsman’s role is to review how councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant information, or not properly explained a decision it has made. We call this fault, and, where we find it, we can consider any consequences of the fault and ask the relevant council to address these.
38. However, we do not make operational or policy decisions on councils’ behalf, provide a right of appeal against their decisions, or seek to replace their judgement with our own. If a council has made a decision without fault then we cannot criticise it, no matter how strongly a complainant feels it is wrong. We do not uphold complaints simply because someone feels a council should have done something different.
39. What that means in this particular case is that it is not for me to make my own judgement about whether Miss X should have been given a direct let of a two-bedroom house rather than a two-bedroom flat. However, I can consider whether the Council properly made its decision about this.
40. The Council made the decision in January 2024 that Miss X could be placed in band B if she either made three months of consistent payments towards her arrears or paid them off in full. This is in line with its allocations scheme. The Council said if Miss X did this, she would then be eligible for the next two-bedroom ground floor flat.
41. Miss X says the Council wrongly decided she was not eligible for a two-bedroom house. The Council did not say that Miss X was ineligible for a two-bedroom house. Instead, it offered a direct let of a flat and Miss X could bid for two-bedroom houses, like any other applicants. Miss X has provided information to show that she has been bidding for properties.
42. I have looked at the information the Council considered to reach the decision to offer Miss X a flat rather than a house. The Council considered the adult social care housing needs report within both the panel and review panel meetings.
43. The Council also consulted with its independent medical advisors and sent all the information, including the adult social care needs report for them to consider. The medical advisor stated there was “no other detailed, compelling medical evidence given as to why the present abode would be unacceptable for health reasons”. This gives support to the decision reached by the Council that a two-bedroom ground floor flat would be suitable.
44. The Council said it decided to offer a two-bedroom flat based on the perceived health risks at Miss X’s current property and to facilitate a move as quickly as possible. It said this was because there is a significant lack of two-bedroom houses within its stock.
45. The Council has evidenced that it considered all the information Miss X provided in making this decision and this is a decision it was entitled to make. There is no fault here.
46. If Miss X is unhappy with this decision, she can continue to bid on properties that she would consider to be more suitable, as has been confirmed by the Council.
47. However, I do note that the Council did not consider whether Miss X was homeless under the Housing Act 1996 section 175. A council must consider if someone is homeless if they have accommodation, but it is not reasonable for them to continue to live there. The Council did not consider this, and this is fault. This has caused Miss X uncertainty on whether the Council properly considered all the circumstances of her situation under all legislation and guidance. I will recommend a remedy in relation to this.
48. In response to this fault, the Council said it has updated its process so that when any case is referred to panel, the referring officer will need to check with colleagues in housing options for their opinion on this element. I will therefore not recommend any further service improvements.

Council’s consideration of advice from adult social care

49. The Council has evidenced that it considered the information within the adult social care housing needs report.
50. The Council considered the assessment at both panel meetings and sent the report to the independent medical advisor for them to consider.
51. The Council also evidenced its consideration of the report in its decision to award Miss X a band B. It said it would do this once Miss X’s arrears were cleared, as her current housing was deemed unadaptable based on the content of the housing needs report.
52. Therefore, there is no fault here.

Medical need for a private and safe garden

53. The adult social care housing needs report says Miss X has had problems with neighbours in the past which impacted on her mood and anxiety. The report goes on to say, “ideally a secured private garden is required”. The report does not give a medical reason as to why this is needed or back this up with any evidence.
54. In the December housing panel, Miss X had said she wished to have access to a garden and an outdoor space for her two children to be able to play safely. Miss X expressed her anxiety around people due to previous experiences with her neighbours.
55. I have viewed Miss X’s medical form together with the evidence Miss X provided for the medical assessment including hospital, midwife, and health visitor letters. None of these documents make any reference for any medical need for a private garden.
56. I find no fault of the council related to this matter. If Miss X disagreed with the medical assessment completed by the Council, it would have been reasonable for her to have asked for a review of this decision. Miss X said she did not do this as she did not receive the medical outcome letter giving her the outcome nor a right to review. However, it would have been reasonable for Miss X to have contacted the Council to ask for the outcome of her medical assessment, which would have provided her with a right of review. Miss X is also able to bid on properties with a garden, which she has confirmed she is doing.

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Agreed action

57. Within four weeks of the final decision, the Council will:

• apologise to Miss X for the uncertainty caused by not considering her case under Housing Act 1996 section 175 to determine if she should be deemed as homeless; and
• consider Miss X’s case under Housing Act 1996 section 175 to determine if she should be deemed as homeless and inform Miss X of the outcome of this.

58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I have completed my investigation with a finding of fault causing injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman