Summary: Mr O complained on behalf of Ms X that the Council removed her from its housing register without properly considering her medical needs. Mr O said Ms X’s property has a severely negative impact on her due to past traumas and is impacting her mental health significantly. We find the Council at fault and this caused injustice. The Council has agreed to make a fresh decision.

The complaint

1. Mr O complained on behalf of Ms X that the Council removed her from the housing register without properly considering her medical needs.
2. Mr O said Ms X has been living with family which has become challenging, and she sleeps on the sofa. Mr O said Ms X’s property has a severely negative impact on her due to past traumas. He said it is impacting her mental health significantly.

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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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)

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How I considered this complaint

7. Ms X has given written consent for Mr O to represent this complaint on her behalf. I therefore consider Mr O is a suitable person to represent this complaint on Ms X’s behalf.
8. I considered the information and documents provided by Mr O and the Council. I spoke to Mr O about Ms X’s complaint. Mr O and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
9. I considered the relevant legislation, statutory guidance, and policies, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Housing applications

10. 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))
11. 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; and,
• people who need to move to avoid hardship to themselves or others.
  (Housing Act 1996, section 166A(3))

The Council’s policy

12. The Council’s housing allocations policy says applicants who indicate they have a medical illness or disability which is affected by their current home, or who may be vulnerable due to physical and mental health grounds, and in need of settled accommodation, can be considered for medical priority banding.
13. The policy says it is important that the applicant is able to demonstrate that:
• the medical illness or disability is being worsened by the conditions of the accommodation;
• the current accommodation cannot be improved to mitigate the impact on the medical conditions; and,
• being moved to alternative accommodation will significantly improve the medical conditions.
14. The policy says applicants need to provide supporting evidence from qualified clinicians and health care professionals which clearly shows the relationship and the impact of the medical conditions and current accommodation.
15. The Council’s medical advisor will assess the evidence and give the Council their recommendation. This recommendation will inform the Council’s decision.
16. The Council has different medical priority bands.
17. Band B is where an applicant’s housing circumstances are not suitable and are having a major adverse effect on their medical condition/s, and this can be alleviated by rehousing, supported by clinical evidence. It will not apply where the effect of housing conditions on health is comparatively moderate, slight or variable.
18. Band C is where an applicant’s housing circumstances are not suitable and are having a moderate effect on their medical condition/s and this can be alleviated by rehousing, supported by clinical evidence.

Human Rights

19. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to.
20. Article 14 says human rights are owed to all regardless of sex, race, colour language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
21. It says discrimination can occur if an individual is disadvantaged by being treated the same as another person when their circumstances are different (for example if they are disabled or pregnant).
22. The Ombudsman’s remit does not extend to making decisions on whether a council has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether a council has had due regard to an individual’s human rights in its treatment of them, as part of our consideration of a complaint.

Equality Act

23. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
24. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty. The ‘protected characteristics’ referred to in the Act include disability.
25. We cannot find that a council has breached the Equality Act. However, we can find a council at fault for failing to take account of its duties under the Equality Act. And we can make decisions about whether a council has properly taken account of an individual’s rights in its treatment of them.
26. Councils will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected.

What happened

27. Ms X has severe and enduring mental illnesses which affect her day-to-day life. She had a tenancy with a housing association and had been living there for a number of years. In 2022 she was burgled. She felt unable to remain living there so moved in with her sister.
28. In 2023, Ms X applied to the Council for medical priority on its housing register. She provided medical evidence from her GP, a psychiatrist, and a mental health service. All of these professionals explained the disproportionate impact of the burglary on Ms X and her ability to remain living there because of her mental health conditions. They explained the risk Ms X posed to herself if she remained living there, and that she was unable to remain living in the accommodation. They said if Ms X remained living there, it would cause her health to further deteriorate.
29. The Council’s medical advisor reported to the Council that there was no medical evidence provided to show Ms X’s accommodation itself was causing significant medical harm. For this reason, the medical advisor said Ms X did not qualify for medical priority.
30. The Council told Ms X that it decided she did not qualify for medical priority because she was adequately housed. Mr O asked for a review of this decision on Ms X’s behalf.
31. Mr O highlighted the assessments of the medical professionals. He said someone who did not have Ms X’s mental health conditions could return to the accommodation, but Ms X could not. He said the consequences of the burglary were much greater for her than someone without her difficulties.
32. The Council’s review decided to uphold its decision that Ms X was not eligible for medical priority. It said it did not believe Ms X’s property had any adverse effects on her medical issues. The Council said it was difficult to understand why Ms X had moved in with her sister and did not want to return to her property.
33. The Council said it could only award medical priority if Ms X’s property was having an adverse impact on her medical conditions. It said Ms X’s pre-existing mental health conditions seemed to be affecting her perception of risk in her own property. The Council said it was not satisfied Ms X would be at risk if she returned there. It also said it was not satisfied there was anything about the property itself that would reasonably be expected to impact on Ms X’s mental health.
34. Mr O then brought Ms X’s complaint to the Ombudsman.

Analysis

35. The Council told the Ombudsman that the medical evidence “did not provide any material evidence to support that [Ms X’s] current home is adversely affecting her mental state.” The Council said it found the medical evidence “vague”.
36. The Council said:

“Presumably the opinions expressed in the medical letters were based on what [Ms X] had said about how she felt about her situation rather than on an objective assessment that her mental health had deteriorated due to her continuing to live in the property. We took the view that it was safe for her to return to her property and to manage her mental health symptoms by continuing to access any treatment and support she was receiving or speaking to her GP if she needed additional support.”

37. The Council’s policy says applicants need to provide supporting evidence from qualified clinicians and health care professionals which clearly shows the relationship and the impact of the medical conditions and current accommodation.
38. Ms X provided supporting medical evidence from three different qualified clinicians and health care professionals. All of these medical professionals shared the same objective and clinical assessments:
• Ms X’s accommodation worsened her medical illness and disability;
• Ms X’s accommodation could not be improved to mitigate the impact on the medical conditions; and,
• being moved to alternative accommodation would significantly improve Ms X’s medical conditions.
39. The Council commented that it was difficult to understand why Ms X does not want to return to her own flat. It is hard to understand how the Council came to that conclusion taking into account the supporting medical evidence. The Council’s comments persuade me that it did not properly consider Ms X’s supporting medical evidence when making its decision.
40. The Council’s medical advisor said there was no medical evidence that Ms X’s property was causing significant medical harm. The medical advisor did not mention any of the medical information provided, and did not mention any assessment of that evidence.
41. The Council said its medical advisor considered all the medical evidence Ms X provided. However, the Council accepts it does not have details on how the medical advisor considered the evidence.
42. I am not persuaded the medical advisor properly considered all the relevant evidence when making their assessment.
43. Taking these factors into account, I cannot find that the Council made its decision without fault. I therefore find the Council at fault. This caused Ms X injustice.

Human Rights and the Equality Act

44. As I have said above, we can make decisions about whether a council has had due regard to an individual’s rights in its treatment of them, and whether a council has taken account of its duties.
45. In its review decision, the Council said:

“Unfortunately, burglaries are quite common and in most cases the victims do not leave their home nor are they at personal risk from the burglars.”

46. The Council referred to the impact of burglaries on most victims. However, most victims do not have the severe and enduring mental illnesses Ms X lives with. Therefore, most victims would not have been affected in the same way Ms X was.
47. The Council also said: “It is … difficult to understand why [Ms X] decided to move in with her sister and does not want to return to her own flat.”
48. As I have said above, discrimination can also occur if an individual is disadvantaged by being treated the same as another person when their circumstances are different (for example if they are disabled or pregnant).
49. In this case, the Council appears to have treated Ms X in the same way it would treat someone who does not have Ms X’s disability or severe and enduring illnesses. I am therefore not persuaded that the Council has properly considered Ms X’s disability when making its decision.
50. I therefore find the Council failed to have due regard to its duties under the Human Rights Act and the Equality Act.

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Action

51. The Council has agreed to look at Ms X’s application again and make a fresh decision. It has agreed to refer Ms X’s case to its social welfare panel, which is chaired by a senior manager. The panel will consider all the relevant medical evidence and will decide whether to award medical priority.
52. The Council said its panel will consider Ms X’s case within a week of the date of this decision, when the panel is next held. The Council will provide Ms X with a written decision. If it decides to award medical priority, and the decision is based on medical evidence the Council already had rather than on new evidence, it will backdate Ms X’s priority.
53. If the panel makes a decision that Ms X is dissatisfied with, she will have a right to request a review. A review decision would be made by another senior manager.
54. The Council should provide us with evidence it has complied with the above action.

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Decision

55. I find fault causing injustice. The Council has agreed to take action to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman