Summary: Mrs X complained about the way the Council dealt with her housing application and medical assessment. The Council was at fault for failing to explain the reasons for its decision, failing to evidence it had considered all of the medical evidence and failing to consider if Mrs X was homeless. This caused Mrs X uncertainty about whether the Council had completed the assessment process properly. The Council will apologise, complete a new medical assessment, consider if Mrs X is homeless and make a payment to her to remedy the injustice caused.

The complaint

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

• failed to follow its allocations policy for medical need by ignoring medical evidence about her husband, Mr X;
• wrongly awarded her Band 2 instead of Band 1; and
• wrongly prioritises homeless home seekers, in lower bands over her.

2. Mrs X says the Council’s decision is putting Mr X’s health at serious risk as there is no room for him to isolate away from unwell family members. Mrs X says this is also causing her distress.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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

6. We cannot usually investigate complaints about events that took place more than a year before the complainant contacted us. Mrs X first brought her complaint to the Ombudsman in October 2024, meaning anything that took place before October 2023 is a late complaint. I have therefore only investigated matters after October 2023.

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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legislation and guidance

The published scheme

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))

Reasonable preference

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))

Additional preference

11. 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.

Decisions and review rights

12. Councils must notify applicants in writing of the following decisions and give reasons:

• that the applicant is not eligible for an allocation;
• that the applicant is not a qualifying person;
• a decision not to award the applicant reasonable preference because of their unacceptable behaviour.

13. The Council must also notify the applicant of the right to request a review of these decisions. (Housing Act 1996, section 166A(9))
14. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.

Banding

15. The Council uses a banding system to identify those in greatest housing need.
16. The Council assesses applications and places applicants in one of four bands, Bands 1-4.
17. Band 1 is for emergency priority. The Council’s scheme says this is reserved for when an applicants need to move is extremely pressing, may have a time limit attached to it or have very grave implications if a move is not possible.
18. The scheme says Band 1 applies where an applicant or a member of their household suffers from a serious medical problem which is adversely affected by their current housing situation, to such a degree that their health is at a high risk of being severely affected.
19. Band 2 is for urgent priority. This is awarded where an applicants need to move is urgent. Applicants in this band will be experiencing serious difficulties in their current housing requiring a high level of priority. Band 2 will be awarded where an applicant or member of their household is suffering from a serious medical condition which is being seriously affected by their current housing situation, and that would be improved by moving to appropriate accommodation.

Homeless definition, including if not reasonable to remain in current accommodation

20. Someone is homeless if they have no accommodation or if they have accommodation, but it is not reasonable for them [and anyone who lives with them] to continue to live there. (Housing Act 1996, Section 175)

Decisions and review rights

21. Councils must notify applicants in writing of the following decisions and give reasons that the applicant is not eligible for an allocation or that the applicant is not a qualifying person.
22. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.

Choice based lettings and direct offers

23. The Council allocates properties using choice-based lettings and direct offers. Choice-based lettings is a system for allocating social housing, or council housing, where eligible applicants can bid for properties they are interested in. A direct offer is when a council finds a specific, suitable home for an applicant instead of them bidding on advertised properties.
24. The Council’s allocation scheme says that it does not advertise all available properties through the choice-based lettings scheme. There may be circumstances where, for operational or financial reasons, it will need to make a direct offer of housing instead. This includes in circumstances of where an applicant is homeless and in temporary accommodation.

Localism Act

25. The Localism Act 2011 introduced new freedoms to allow councils to better manage their waiting list and to tailor their allocation priorities to meet local needs.

Summary of key events

26. Mrs X and her household were on the housing register. They were awarded Band 3 for medical reasons related to Mr X and some of their children.
27. In mid-January 2024, Mrs X sent new medical evidence, which was an adult social care occupational health assessment, to the Council and asked for a review of her banding.
28. Five weeks later, the Council sent this evidence to its medical advisors to complete a medical assessment.
29. The medical advisors replied to the Council in late February. They noted they had considered Mr X’s medical evidence. Their report concluded that medical priority Band 2 should apply because of Mr X’s situation.
30. The Council provided me with a copy of an internal form called ‘direct let prescription’ from around this time. On this, a Council officer noted Mrs X was eligible for Band 2 because of ‘urgent medical reasons’. They mentioned Mrs X’s children’s health conditions, but did not refer to Mr X or any of his medical evidence.
31. At the end of February, the Council sent a medical decision letter to Mrs X awarding her Band 2 – severe medical. It explained this was because of the diagnoses of two of her children. It did not mention Mr X in the letter.
32. The same day, Mrs X wrote to the Council. She was dissatisfied that the Council failed to mention Mr X’s medical conditions in its decision letter. She asked the Council to review its decision to award Band 2 and she thought she should be awarded Band 1.
33. At the end of April, the Council sent Mrs X a letter with the outcome of its review. It said it had awarded priority Band 2 because according to the housing allocation scheme Mr X had been ‘assessed as suffering from a serious medical condition which is being seriously affected by their current housing situation and that would be improved by moving to appropriate accommodation’.
34. It explained it considered Mr X’s medical information, Mrs X’s diagnoses and her children’s diagnoses and in doing so it awarded Band 2 correctly.
35. The letter acknowledged that the earlier letter, awarding Mrs X Band 2, did not mention Mr X or his health conditions. It said this was a mistake, but confirmed that Mr X’s situation had been taken into account when making the original decision.
36. The Council noted it had considered whether Mrs X was eligible for Band 1 on medical grounds and listed some circumstances it can be awarded. It concluded she did not meet the criteria for Band 1.
37. In mid-October, the Council wrote to Mrs X a complaint she had raised about the availability and allocation of homes in its area. It explained some properties were only advertised for people who were homeless. It noted that because it was under serious financial pressure, it was focussing on moving people out of temporary accommodation. As a result, these homes were not open for bidding by anyone who did not qualify as homeless.
38. In November, Mrs X asked for her complaint to be escalated to stage two of the complaint’s procedure. She said:

• her property exposes her household to many health risks and she should be awarded a higher priority;
• there was a lack of properties on the housing register for her to bid on; and
• the Council’s allocation policy is discriminatory against disabled households.

39. The Council responded mid-December. It repeated that Band 1 is only given in emergencies or very exceptional situations, and that it had correctly awarded her Band 2. This was because the Council had assessed the household as ‘suffering from a serious medical condition which is being seriously affected by their current housing situation and would be improved by moving to appropriate accommodation’.
40. The Council accepted there was a limited number of available properties for applicants to bid on. In terms of Mrs X’s complaint that its allocations policy is discriminatory against disabled households, the Council said the Housing Act 1996, Part 6 and the Localism Act 2011 allow a Council to adopt its own allocation policy as long as it gives reasonable preference to a certain list of circumstances.

Response to enquiries

41. I asked the Council if it had considered if Mrs X and her household might be homeless under Housing Act 1996 section 175. The Council said it had not considered this point, and she would need to make a homelessness application if she was threatened with homelessness.

Analysis

The Council failed to follow its allocations policy for medical need by ignoring medical evidence

42. When the Council wrote to Mrs X in February 2024 to notify her of the assessment outcome, it failed to mention it had considered Mr X’s medical evidence despite this being one of the reasons Mrs X had requested a change in banding. We expect a council to fully explain its reasons for a decision; the Council did not do this here. This was fault which caused Mrs X uncertainty about whether the Council had considered all the information in assessing her application.
43. I accept the Council’s review in April 2024 acknowledged it made a mistake by not mentioning Mr X’s medical condition and evidence, though it said it still considered all the information. The Council did ask its medical advisor to look at Mr X’s medical evidence, and so I am satisfied that it did consider this information as part of its assessment. But, I also note the Council failed to mention Mr X and his medical evidence in an internal form. We expect a council to consider all of the evidence at all parts of the assessment process. The Council did not evidence that it had done this which is fault, and caused Mrs X uncertainty about whether it had properly completed the medical assessment.
44. I also note that the Council did not consider whether Mrs 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 Mrs 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.

The Council wrongly awarded Mrs X Band 2 instead of Band 1

45. 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.
46. 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.
47. What that means in this particular case is that it is not for me to make my own judgement about whether Mrs X should have been awarded Band 1, but I can consider whether the Council properly made and explained its decision about this.
48. When the Council wrote to Mrs X in April 2024 with its review decision, it just quoted part of the paragraph from its allocation policy about Band 1 medical priority. It failed to explain the difference between Band 1 and Band 2 and the reasons why Mrs X met the criteria for Band 2 (a medical condition ‘seriously affected’ by current housing) and not Band 1 (a medical condition ‘adversely affected by current housing so their health is at high risk of being severely affected’).
49. We expect a council to fully explain its decisions, in line with the housing allocations scheme. The Council did not fully explain to Mrs X why her specific application did not meet the criteria of Band 1. This was fault, which caused Mrs X uncertainty about the reasons for the Councill’s decision.

The Council wrongly prioritises homeless home seekers, in lower bands over Mrs X

50. The Localism Act 2011, gives a council discretion to adopt its own allocation scheme, as long as it gives reasonable preference to a specific set of circumstances. The Council’s allocation scheme allows for certain circumstances where a homeless applicant will be offered a direct offer rather than have to bid through the choice-based lettings scheme.
51. This is a decision the Council is entitled to make, and one it has made without fault and is in line with the Localism Act 2011.

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Action

52. Within four weeks of our final decision, the Council will:
• apologise to Mrs X for the identified faults. 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 its apology;

• carry out a further medical assessment for the household using the original medical evidence and fully explain the reasons for its banding decision, including information about Mr X;
• remind all housing staff dealing with medical assessments of the importance of properly explaining decisions in letters;
• consider Mrs X’s case under Housing Act 1996 section 175 to determine if she should be deemed as homeless and inform Mrs X of the outcome of this; and
• make a payment of £250 to Mrs X in recognition of the uncertainty caused by the Council’s failings.

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

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Decision

I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman