Summary: Miss D says the Council has not been fair in the way it calculated her family’s income in its housing allocations assessment. Miss D’s partner is self-employed with a variable income. But in its calculation of their income, the Council made no allowances for holidays, sickness of other seasonal variations. We uphold the complaint. The Council has agreed to our recommendations of a remedy for the uncertainty this led to.

The complaint

1. The complainant (Miss D) says the Council was unfair in the way it calculated her family’s income in its housing allocations assessment. Miss D’s partner is self-employed with a variable (seasonal) income. But in its calculation of their income, the Council has made no allowances for holidays, sickness of other seasonal variations. Instead it used the wage slips provided to calculate a 52-week figure. This was unrealistic: there will be periods without work and therefore without pay.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)

Back to top

How I considered this complaint

4. I considered evidence provided by Miss D and the Council as well as relevant law, policy and guidance.
5. Miss D and the Council had an opportunity to comment on my draft decision. I have considered their comments before making a final decision.

Back to top

What I found

Legal and administrative background

Housing allocations

6. 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))
7. The Council’s Allocation Policy (that applied at the time this complaint relates to) had a clause about affordability. It said an applicant would not qualify for the housing waiting list if their income was above income limits named in the policy.

What happened

8. Miss D lives with her partner (Mr E) and children in a housing association property. Miss D is an employee. Mr E works for a main contractor, but is self-employed.
9. Miss D made an application to the Council’s housing allocation list, as their home was too small for them. The Council’s decision was their income was above the threshold on its waiting list, so they did not qualify for the register.
10. Miss D asked the Council to review its decision. She noted some details about the family’s income.
11. The Council asked for some more information, including more payslips. It reviewed its decision but did not change it. Miss D complained to the Ombudsman.
12. We asked the Council what information it had used in its calculation of Mr E’s income, as Miss D told us it was variable and seasonable – if it rained he could not work. And, for example, he took three weeks’ unpaid leave at Christmas. The Council advised it had used an average of the amounts in Mr E’s payslips Miss D had given it and from there arrived at an annual income.
13. Miss D’s income also fluctuated during the year, as she went on maternity leave from work.
14. We made enquiries to the Council. Its response advised:
• it calculated income based on the evidence provided;
• it was in the process of rolling out a new Allocations Policy and it would also write a policy on assessing self-employed income;
• in the future, for self-employed applications, it would ask applicants for a copy of their self-assessment form that is submitted for the previous tax year. It would deduct allowable expenses from the gross profit and divide by 52 weeks for a weekly income figure.
• since their complaint, Miss D and Mr E had completed a new application and been successfully placed on the waiting list.

Analysis

15. It is for councils to decide their own method for how to calculate income for applicants to its housing register, including self-employed applicants. It is not for the Ombudsman to criticise the merits of properly made decisions. But the Ombudsman can make findings when there is evidence of, for example, some arbitrariness, inaccurate or inattentive decision making.
16. With this application, the Council’s calculation arrived at a 52-week figure by multiplying the information Mr E provided. My decision is this calculation likely arrived at an inaccurate figure and so was fault. It was likely inaccurate as it unrealistically took no account of weeks when Mr E might be without, or have reduced, income. For example through sickness, holiday or inclement weather.
17. The injustice to Miss D and Mr E is some uncertainty about whether things might have been different, but for the fault. I cannot now say, even on the balance of probabilities, whether Miss D and Mr E might have qualified for the register but for the fault. That is because there are too many variables in terms of the extra information the Council might have needed to have made a more accurate calculation.
18. The Council’s proposed new way of calculating income would overcome that issue as it would be based on an actual annual income figure, so would, by definition, include periods of inactivity.

Back to top

Agreed Action

19. Within one month of my final decision, I recommended the Council:
• apologise to Miss D for the fault I have identified. 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.
• make Miss D a symbolic payment of £200 as a recognition of the uncertainty they will have, as a result of the fault.
20. As the Council is introducing a new policy, I am not making any service improvement recommendations.
21. The Council has agreed to my recommendations. It should provide us with evidence it has complied with the above actions.

Back to top

Final decision

22. I find fault causing injustice. The Council has agreed to my recommendations, so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman