Summary: Mr X complained the Council’s housing allocations policy discriminated against him as a disabled person. We did not find the Council to be at fault. Government guidance allowed councils to include preference criteria that may favour certain groups over others.

The complaint

1. Mr X complains about the Council’s application of its housing allocations policy. Specifically, he says the Council:
1. treated him unfairly in respect of its ‘working priority’ element of the housing allocations policy;
2. took too long to review his priority; and
3. failed to consider his complaint properly.

Mr X says the matter has caused significant distress and deterioration in his health. He says any bids he made on properties over 2 ½ years were futile. He says that although the Council has now updated the allocations policy after accepting it was unfair, the injustice to him has not been remedied.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. 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)
3. We provide a free service, but must use public money carefully. We do not start or continue an investigation, or part of it, if we decide:

• there is not enough evidence of fault to justify investigating; or
• we could not add to any previous investigation by the organisation; or
• further investigation would not lead to a different outcome; or
• there is no worthwhile outcome achievable by our investigation.
  (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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(1), as amended)

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What I have and have not investigated

5. I did not investigate 1 (b) above. Mr X made a separate complaint to the Ombudsman about his banding priority. Because the Ombudsman decided not to investigate this complaint, it is not appropriate or proportionate to consider this as part of this investigation, especially as my review of the case records suggest it is highly unlikely I would make a finding of fault.

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How I considered this complaint

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. Mr 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

Housing allocations - relevant law, guidance and policy

Housing allocations

8. 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))
9. Government guidance allows councils to consider how they can use their allocation policies to support those households who want to work, as well as those who – while unable to engage in paid employment - are contributing to their community in other ways, for example, through voluntary work. This might involve, for example, framing an allocation scheme to give some preference to households who are in low paid work or employment-related training, even where they are not in the reasonable preference categories; or to give greater priority to those households in the reasonable preference categories who are also in work or who can demonstrate that they are actively seeking work. (Allocation for accommodation: a guidance for local housing authorities in England, paragraph 4.27).

The Council’s allocations policy (relevant during the time period I am investigating)

10. The Council operates a choice-based lettings scheme which enables housing applicants to bid for available properties which it advertises. The Council places housing applicants into one of three bands according to their housing need. Band A is the highest priority and Band D is the lowest.
11. Additional preference will be awarded in certain circumstances, including if the applicant is in employment.
12. Applicants awarded additional preference are given priority over an applicant in the same priority band who does not have it.
13. This additional preference has been removed from the Council’s current allocation policy.

What happened

14. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.
15. Mr X lives in private rented accommodation. He has several medical conditions and says his current home environment has a detrimental impact on his health and well-being. In 2022, Mr X applied to join the housing register. He was accepted and awarded Band C priority.
16. Following a deterioration in his mental health, Mr X asked the Council to review and increase his banding priority in November 2024.
17. In November 2024, Mr X unsuccessfully bid four properties.
18. Shortly afterwards, Mr X made a complaint about the Council’s allocations policy because it unfairly discriminated against him. This was because he is unable to work due to his disability. This meant, should he be the joint highest bidder, someone in work would always have priority over him. His complaint was not upheld.
19. In response to Mr X’s complaint and the Ombudsman’s enquiries about this issue, the Council said:

• since joining the housing register in 2022, Mr X did not bid on any properties until November 2024. The average waiting time for a studio/one bedroom property is 1.2 years. It is not possible to determine whether Mr X was disadvantaged by the allocations policy, due to some homes being more popular than others;
• between April 2024 and January 2025, 69 one-bedroom properties were listed for bidding. Taking into account Mr X’s bidding history, it is likely he will be successful in time; and
• the working household preference criteria had been removed from the allocations policy following a scheduled review of the policy.

Analysis

20. The Ombudsman recognises that the demand for social housing far outstrips the supply of properties in many areas, including that of the Council. The Ombudsman may not find fault with a council for its decision about eligibility and priority if it has properly considered the information provided by the applicant and applied its allocations scheme correctly.
21. Both government guidance and the Council’s allocations policy allowed for preference to be given to working households. Similar criteria have been the subject of legal challenge. The courts found that preference categories are, by their very nature, discriminatory towards other applicants. But such potential discrimination is justified by the legitimate aim of the criteria.
22. Before introducing the policy, the Council carried out an equality impact screening exercise. This found the policy to be non-discriminatory because the banding system already allowed disabled applicants to be awarded higher priority.
23. Mr X had been awarded Band C because of his medical needs. When the 2021 policy was amended and the working household preference removed his banding did not change. So the existence of the working household preference did not cause Mr X an injustice.
24. My overall assessment is there was no fault by the Council in applying its allocations policy in the way it did. Preference criteria, such as that given to working households, are encouraged by government guidance, and the Council properly considered the potential impact on disabled people before implementing the policy.
25. Nor did I find fault with the Council’s complaint handling over this matter. The complaint was responded to within the time frame set out in the Council’s complaint handling policy and the reasons for Mr X’s complaint not being upheld were properly explained.

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Final decision

26. I found no fault. On this basis, I have ended my investigation.

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Investigator's decision on behalf of the Ombudsman