Summary: Mr and Mrs B say the Council delayed awarding them medical priority on the housing register, gave them incorrect information about their priority date and the properties they could bid on, failed to consider whether they had exceptional circumstances and delayed considering their complaint. The Council delayed awarding medical priority and in backdating Mr and Mrs B’s priority on the housing register, gave Mr and Mrs B conflicting information about the status of their application and delayed considering their complaint. That caused Mr and Mrs B uncertainty, frustration and distress. An apology, payment to Mr and Mrs B, referral to the case review panel, a review of the Council’s complaints policy and reminder to officers is satisfactory remedy.

The complaint

1. The complainants, Mr and Mrs B, complained the Council:
• delayed awarding them medical priority on the Council’s housing register;
• gave them wrong information about the date of registration for medical priority and the types of properties they could bid on;
• failed to consider whether they had exceptional circumstances to warrant a direct offer;
• failed to offer them a suitable remedy to reflect the failures the Council had identified; and
• delayed considering their complaint.
2. Mr and Mrs B say the Council’s actions have left them living in unsuitable housing conditions which has impacted significantly on their families’ health.

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The Ombudsman’s role and powers

3. 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)
4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. 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.
7. 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

8. I have investigated Mr and Mrs B’s concerns about what has happened since 2023. I have not investigated the earlier period as I see no reason why Mr and Mrs B could not have complained to the Ombudsman at the time if they were dissatisfied with the medical assessments the Council completed. However, as the Council has accepted fault in how some of those medical assessments were completed I have considered what remedy would be appropriate for that.

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How I considered this complaint

9. As part of the investigation, I have:
• considered the complaint and Mr and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
10. Mr and Mrs B and the organisation 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

The Council’s allocations scheme (the allocations scheme)

11. This records the Council’s responsibility to provide 'reasonable preference' to certain categories of people in accordance with the Housing Act 1996.
12. Reasonable preference means providing certain applicants with an advantage or head start compared to other applicants who do not have reasonable preference according to the law.
13. It lists the categories that qualify for reasonable preference, which includes:
• people occupying unsanitary or overcrowded housing or otherwise unsatisfactory housing conditions and
• people who need to move on medical or welfare grounds, including disability.
14. Applicants are housed in date order from when they received priority or were first registered.
15. Band A is for applicants with reasonable preference because of unsatisfactory housing conditions who the Council needs to house and for under occupiers needing to downsize.
16. Bands B1 and B2 are for applicants with reasonable preference who the Council must prioritise for housing. Applicants in these bands are housed in date order from when the priority was awarded. Band B1 applicants will be shortlisted before Band B2.
17. Band C is for all applicants on the housing register. Applicants in Band C do not attract any priority and will be housed in date order from the date their application was registered.
18. Band B1 includes:
• households with medical needs seriously affected by the design of the home;
• those who need to move to avoid racial, faith, homophobic or disability harassment.
19. Applicants can ask for a review on any decision that has been made about their application. The review must be requested within 21 days of the decision being notified to the applicant.
20. Applicants with exceptional urgent needs are referred to a case review panel. If the need to move urgently is proven, the applicant is given appropriate assistance through the award of priority within the banding scheme.
21. Some properties are offered directly to applicants without being advertised. When making direct offers the Council always tries to meet applicant's preferences for the areas where they want to live, and for the sort of property they are interested in. However, in a borough where there is very high demand for social housing and a lot of priority needs to meet, applicants in Bands A, B1 and B2 are expected to consider a wide area of choice. The allocations scheme then gives examples of where the Council may consider making a direct offer or bid for the applicant.
22. The rules allow one bedroom for:
• every adult couple (married or unmarried);
• any other adult aged 16 or over;
• any two children of the same sex aged under 16;
• any two children aged under 10;
• any other child (other than a child whose main home is elsewhere);
• children who cannot share because of a disability or medical condition;
• a carer (or team of carers) providing overnight care;
• a foster carer approved by the LA, to have separate bedroom for a child who is in Local Authority (LA's) care or would be otherwise.

The Council’s corporate complaint policy

23. This says the Council’s will acknowledge complaints within five working days and respond at stage one within 10 working days of the acknowledgement.
24. The Council will acknowledge stage two complaints within 5 working days and respond within 20 working days of the acknowledgement.
25. For complex complaints the timescales can be extended for a further 10 working days or 20 working days at stage two. Any extension must be communicated to the complainant before the due date and must explain why the extension is required.
26. If a complaint is going to be responded to late the service should issue a holding response to tell them the response is delayed. That should include an indication about when the complainant can expect a response or agree a timetable to keep them up-to-date on the progress of the investigation.

The Ombudsman’s guide for complaint managers: Designing and delivering effective complaint systems

27. In February 2025 the Ombudsman issued a guide for designing and delivering effective complaint systems. This said we would not expect complainants to have to go through a review process with an organisation and then the complaints procedure before coming to the Ombudsman where there is a right of review or appeal which does not then carry with it a right of appeal to a tribunal, court or government minister.
28. The guide said in those circumstances if organisations decide to consider these matters as complaints following an appeal or review, complaints should be dealt with at stage two. That was to ensure complainants did not have to navigate multiple staged processes before coming to the Ombudsman.

What happened

29. Mr and Mrs B are living in a Council owned property with their three daughters. They live on the fourth floor and two of their daughters, who have various diagnoses, share a bedroom.
30. In 2020 Mr and Mrs B applied for alternative housing. That was due to cramped living conditions, needing a separate bedroom for their disabled daughters and because one of their daughters needed a therapy space and private play area. The Council placed Mr and Mrs B in band C, which is a non-priority band. Mr and Mrs B sought a review of that banding on several occasions but the Council did not change the banding.
31. In November 2022 Mr and Mrs B asked the Council to award additional medical priority and outlined the difficulty their daughters experienced in the property. Mr and Mrs B said their two younger daughters needed a separate bedroom.
32. Following a medical assessment the Council wrote to Mr and Mrs B on 2 March 2023 to confirm it had awarded medical priority. The Council told Mr and Mrs B it had placed them in band B1 and they could bid on three-bedroom properties.
33. Mr and Mrs B asked the Council to backdate their B1 priority and to register them for four-bedroom properties. The Council told Mr and Mrs B it had backdated medical priority to November 2022, when they had provided medical evidence. The Council said because its medical adviser had recommended one of their daughters needed their own room Mr and Mrs B could bid for four-bedroom accommodation. The Council accepts it gave Mr and Mrs B wrong information about what the medical adviser had recommended in that letter.
34. Following a complaint the Council wrote to Mr and Mrs B in November 2023 to say it had backdated their B1 priority to June 2021.
35. An incident took place at Mr and Mrs B’s property in April 2024 and they contacted the Council to ask it to provide them with additional priority. The Council declined and Mr and Mrs B raised concerns about the Council not referring the case to its case review panel. The Council wrote to Mr and Mrs B again to say it had placed them in the highest band possible. Mr and Mrs B raised concerns about that decision and the Council referred the case to the case review panel.
36. The case review panel considered the case and decided not to award additional preference. That is because it was satisfied the incident had not been because of Mr and Mrs B’s family being targeted, which Mr and Mrs B dispute. The Council wrote to Mr and Mrs B to tell them that on 10 September 2024. That letter told Mr and Mrs B they could bid for four-bedroom properties.
37. Later in September when responding to a complaint the Council told Mr and Mrs B it had incorrectly registered them for four bedrooms when they could only bid on three bedroom properties. The Council told Mr and Mrs B they could bid for four-bedroom accommodation from December 2024 when one of their daughters turned 16.
38. On 18 December the Council wrote to Mr and Mrs B to tell them their housing priority date had been backdated to 7 June 2021, as confirmed originally by the Council on 10 March 2023. The Council apologised for failing to backdate the priority date previously.

Analysis

39. Mr and Mrs B say the Council delayed considering the medical evidence they provided which denied them suitable priority on the housing register. For the reasons set out in paragraph 8 I am not investigating the Council’s assessment of Mr and Mrs B’s priority before 2023. I have, however, considered the Council’s decision-making from when the Council placed Mr and Mrs B in band B1.
40. The Council accepts it had medical evidence from Mr and Mrs B in June 2021 which should have enabled it to award B1 priority. The Council accepts it did not place Mr and Mrs B in band B1 until 2 March 2023. The Council also accepts it failed to backdate Mr and Mrs B’s medical priority to June 2021 until November 2023. Those delays are fault.
41. I am also concerned the Council’s communications with Mr and Mrs B gave them different information both about the number of bedrooms they could bid for and the date from which they were registered for band B1. In complaint correspondence in 2024 the Council referred to band B1 applying from November 2022, which is incorrect. Giving Mr and Mrs B conflicting information is fault.
42. I am also satisfied the Council has given Mr and Mrs B conflicting information about the size of the property they can bid on. At one point in 2023 the Council said Mr and Mrs B could bid on four-bedroom properties. The Council then referred to them bidding on three-bedroom properties before again saying in 2024 they could bid on four-bedroom properties. The Council corrected that again in September 2024. Giving Mr and Mrs B conflicting information about the size of property they could bid on is fault.
43. The Council accepts Mr and Mrs B qualify for a four-bedroom property from December 2024, when their eldest child turned 16. Before that the Council says Mr and Mrs B only qualified for a three-bedroom property. Mr and Mrs B dispute that because they say they provided the Council with medical evidence to show one of their daughters needed a separate bedroom. The Council accepts that is the case but does not agree this means they qualified for a four bedroom property before one of their daughters turned 16.
44. Having considered the documentary evidence, the first time the Council told Mr and Mrs B they could bid on four-bedroom properties was on 11 July 2023. At that point the Council told Mr and Mrs B they could bid on four-bedroom properties on the basis the Council had agreed in 2021 their youngest daughter needed her own bedroom due to medical issues. The Council accepts that information was incorrect as its medical adviser had not recommended a separate bedroom for the complainant’s youngest daughter in 2021. That is accurate based on the evidence I have seen.
45. According to the Council’s allocations scheme, which I refer to in paragraph 22, Mr and Mrs B were entitled to a three-bedroom property when the Council awarded medical priority in 2023. That is because Mr and Mrs B were entitled to a bedroom for themselves, a bedroom for two of their daughters to share and a separate bedroom for the eldest daughter who was over 16. I therefore consider the Council at fault to tell Mr and Mrs B they qualified for a four-bedroom property before their middle daughter turned 16 in December 2024.
46. I understand Mr and Mrs B’s frustration though given the different information the Council has given them. Giving Mr and Mrs B incorrect information is fault but it was not fault for the Council to register Mr and Mrs B for three-bedroom properties until their middle daughter turned 16.
47. Mr and Mrs B say although the Council accepted it was at fault for how it dealt with the case it has not offered them a satisfactory remedy. Mr and Mrs B are seeking a direct offer of a four-bedroom property to reflect the impact of the fault in this case.
48. I do not consider it likely the delay awarding Mr and Mrs B band B1, delay backdating that banding to June 2021 or the confusion around whether they could bid for three or four-bedroom properties caused them to miss out on securing a four bedroom property. That is because I am satisfied Mr and Mrs B did not qualify for a four-bedroom property until their middle daughter turned 16 in December 2024. I also note that despite having increased priority with a start date of June 2021 Mr and Mrs B are still nowhere near being able to secure a four-bedroom property on the Council’s housing register. The list of four-bedroom properties the Council has allocated also show Mr and Mrs B would not have secured any of those properties as all were allocated to those with an earlier registration date, with the exception of any direct lets. I therefore cannot recommend the Council make a direct offer of a four bedroom property to reflect the impact of the fault.
49. However, the Council has provided me with a list of three-bedroom properties Mr and Mrs B could have bid on between June 2021 and December 2024. I am satisfied a number of those properties were allocated to people with a later start date than Mr and Mrs B had once the Council backdated their priority. It is therefore possible if the Council had awarded Mr and Mrs B priority in June 2021 when it should have done they could have secured one of those properties had they bid on them. I therefore consider Mr and Mrs B missed out on an opportunity to secure a more suitable three bedroom property and are left with some uncertainty.
50. I have no doubt living in a property which is too small for their assessed needs is having a significant impact on Mr and Mrs B and their children. However, although Mr and Mrs B may have missed out on a more suitable three-bedroom property due to the Council’s fault I am satisfied they have not missed out on a four-bedroom property. I cannot recommend the Council make a direct offer to Mr and Mrs B because they now need a four-bedroom property and they have not missed out on securing a four-bedroom property because of fault by the Council.
51. Mr and Mrs B say the Council’s allocations scheme is discriminatory because it prioritises physically disabled applicants. Mr and Mrs B say it does not provide any way to assess an applicant with mental health disabilities. Mr and Mrs B are referring here to the section of the Council’s allocations scheme which deals with occupational therapy assessments. I am satisfied though this section of the Council’s allocations scheme concerns applications from disabled people who need adapted or accessible housing, for which an occupational therapy assessment is usually needed.
52. I am satisfied the Council’s allocations scheme provides for those with mental health disabilities to be considered for medical priority. The allocations scheme says a medical adviser will consider those with medical needs, which includes mental health needs. The Council’s allocations scheme also provides for referral of cases to its case review panel. I am therefore satisfied the Council’s allocations scheme provides for assessments for those with mental health disabilities.
53. In Mr and Mrs B’s case the Council has awarded them medical priority to reflect the mental health needs of their daughters. I therefore could not say the Council had adopted a discriminatory approach or that it had ignored any duties under the Equality Act in Mr and Mrs B’s case.
54. Mr and Mrs B say the Council’s allocations scheme lacks transparency as it does not provide any guidance about what qualifies as additional preference, which Mr and Mrs B refer to as exceptional circumstances.
55. The Council’s allocations scheme says it can award additional preference to people who have to move due to threats of violence or for urgent medical reasons. I appreciate Mr and Mrs B say that is open to interpretation. However, if the Council listed all the specific issues which would warrant additional preference it would likely open itself to a finding that it had fettered its discretion. I therefore do not criticise the Council for the way in which it sets out additional preference in its allocations scheme. The point for me is whether the Council properly considered Mr and Mrs B’s case when deciding whether to award additional preference.
56. Mr and Mrs B say the Council failed to consider the safety issue about the raised access to the property and the impact on their daughters having to share a room. I note the Council considered Mr and Mrs B’s case at the case review panel. However, I am satisfied that related to an incident that occurred, rather than the safety issues with the property. Given Mr and Mrs B have raised concerns about whether their daughters are safe in the property I recommended the Council refer the case to its case review panel to consider whether additional priority should be awarded. The Council has agreed to do that.
57. Mr and Mrs B say the Council delayed responding to their complaint and unreasonably refused to take the complaint to stage two to reflect those concerns. The Council accepts it delayed responding to the complaint. That is fault.
58. The Council’s complaints procedure does not provide for complaints to be escalated to stage two following a delay. However, as I said in paragraphs 27 and 28, the Ombudsman has issued guidance to councils on how to manage complaints procedures. As I say in those paragraphs, where the person complaining has been through the review process and the Council then accepts a complaint the Ombudsman says councils should deal with the complaint at stage two. In this case Mr and Mrs B had been through the review process several times and I would have expected the Council to consider putting the complaint through stage two rather than stage one as that delayed the process further. I have seen no evidence the Council considered that and that is fault.
59. I now have to consider an appropriate remedy for Mr and Mrs B to reflect the impact of the fault I have found in this case. As I said earlier, I do not consider it likely, on the balance of probability, Mr and Mrs B missed out on a four bedroom property due to the Council’s fault. However, Mr and Mrs B are left with some uncertainty about whether they could have secured a more suitable three-bedroom property had the Council awarded them medical priority when it should have done. I also consider Mr and Mrs B have experienced frustration and distress as well as having to go to considerable time and trouble to get the Council to correct its errors. As remedy for that I recommended the Council apologise to Mr and Mrs B and pay them £750. The Council has agreed to do that.
60. I also recommended the Council review its complaints procedure in light of the Ombudsman’s guidance around considering complaints where a right of review has already been exercised to ensure complainants do not have to do go through the review process and two stages of the Council’s complaints procedure before bringing a complaint to the Ombudsman. The Council should also put in place a process to ensure where delays responding to complaints occur there is oversight to ensure delays are acted on. The Council has agreed to that.
61. I further recommended the Council remind officers dealing with housing register medical priority assessments of the need to ensure a note is kept of the date from which medical priority applies if it is given. The Council should also remind officers of the need to check previous correspondence on a case when dealing with requests for review or complaints to ensure its responses are consistent. The Council has agreed to that.

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Action

62. Within one month of my decision the Council should:
• apologise to Mr and Mrs B for the distress and frustration they experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mr and Mrs B £750;
• refer Mr and Mrs B’s case to the case review panel to consider whether to award additional priority;
• review the Council’s complaints policy in light of the Ombudsman’s guidance referred to in paragraphs 27 and 28;
• put in place a process to ensure proper management of complaints so where a delay occurs it is identified and acted on;
• remind officers dealing with medical assessments of:
1. the need to ensure a note is kept of the date from which medical priority applies, based on when the relevant medical evidence has been submitted;
2. the need to check previous correspondence on a case when dealing with requests for review or complaints to ensure responses are consistent.
63. The Council should provide us with evidence it has complied with the above actions.

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Final decision

64. I find fault causing injustice. The Council has agreed actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman