Summary: The complaint is about the lack of communication from the Council about a decision on a housing register application. And that, because the Council’s Housing Allocations Policy gives preference to working households, it makes it discriminatory: against women who are pregnant or on maternity leave. Our decision is the Council was at fault in its communications. It has proposed a remedy, which is suitable. We do not uphold the complaint about discrimination. The Council has shown it considered the issue. Its view is it has measures to alleviate any indirect discrimination. Only the courts can decide if any discrimination is a proportionate means of the Council achieving the aim of its Policy.

The complaint

1. Miss H complains:
• the Council’s Housing Allocations’ Policy is discriminatory, as it has a working hours requirement. Miss H says she could not meet that requirement as, when she applied, she had a five-month-old baby and had been signed off work for 29 weeks;
• from May 21 to June 24 the Council did not tell Miss H her application was unsuccessful – even though she contacted it.

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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(1), as amended)

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How I considered this complaint

4. I considered evidence provided by Miss H and the Council and relevant law, policy and guidance.
5. Miss H 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

Legal and administrative background

Housing Allocations - the published scheme

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. 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))

8. Councils, including the one this complaint is about, often use a banding scheme to award priority for housing.
9. The Ministry of Housing, Communities and Local Government publishes guidance for housing authorities on framing a housing allocation scheme. The guidance “urges” local authorities to consider how they can use their allocation policies to support households who want to work, or are making a community contribution. One example given suggests giving some preference to households who are in low paid work or employment-related training.
10. The Council’s Housing Allocation Policy says that, in relation to a band 3 priority due to overcrowding or shared facilities, an applicant needs to meet provisions about being in work for a defined period prior to the application. It does not have this provision for band 1 or 2 (higher) priority due to overcrowding, or for other routes to achieving a priority.

Equality Act 2010

11. 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.
12. 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. The protected characteristics referred to in the Act include pregnancy and maternity.

Indirect discrimination

13. Indirect discrimination may occur when a service provider applies an apparently neutral policy or practice which puts persons with a protected characteristic at a particular disadvantage.
14. The Equality Act says sometimes a policy that indirectly discriminates against a protected group may be legal if it is “a proportionate means of achieving a legitimate aim”. (Equality Act 2010 (Section 19(2)(d)))
15. In one case, the Court of Appeal considered a council’s housing allocations scheme that allowed a proportion of lettings to be reserved for working households and model tenants. The legality of the scheme was challenged on the grounds it gave rise to unlawful discrimination against women, disabled and elderly persons.
16. The Court of Appeal decided:
1. the scheme indirectly discriminated against disabled people, the elderly and women;  
2. the Court also needed to consider the impact of the scheme as a whole on the various protected groups to decide whether the discrimination could be justified. It also had to consider the various other ways the protected groups were given priority;
3. the Court found the discrimination in that case was justified. (R (H) v Ealing LBC [2017] EWCA Civ 1127)

What happened

17. In 2022 Miss H applied to join the Council’s housing register. She also contacted the Council to advise it she was facing homelessness, as her mother had asked her to leave. The Council accepted she was homeless and accepted it had a duty towards her. Due to the homeless application, it cancelled Miss H’s housing register application.
18. In May 2024, Miss H contacted the Council about her housing register application. At that time she was pregnant, had other children and was living with her mother. The Council told her it had cancelled her application in 2022. It advised her she could not make a new application as she was not working.
19. Miss H complained. The Council’s first complaint response advised:
• it had closed her housing register application due to her homelessness application, which took priority. It apologised it had not told her it had closed her application;
• it would not have likely accepted her onto its housing register then, as she was unemployed at the time;
• she could ask for a discretionary review of its decision to close her application;
• she could reapply for the register at any time.
20. Miss H escalated her complaint. The Council’s second complaint response:
• noted the section restricting access to its housing register to those in employment was only a one specific part of being awarded a band 3 (the lowest banding) on its Housing Allocations Policy ;
• noted she did not appear to qualify for band 3, nor had she noted any exceptional circumstances;
• said, after the birth of her children, she might qualify as living in overcrowded accommodation;
• reminded Miss H again that she could ask for a discretionary review;
• advised its view is its policy did not breach its equalities duties; it had carried out an equalities impact assessment. It had framed the policy to ensure ‘reasonable preference’ (which means giving more priority) to some types of applicants”.
21. Miss H complained to the Ombudsman. We asked the Council for its equality impact assessment for the last review of its Housing Allocation Policy. In relation to pregnancy and maternity, this noted this might be an issue. So the Council would consider such applications:

“The medical and social factors relevant to an applicant’s specific needs, including stage of term of pregnancy, birth, social and familial support will be taken into consideration as relevant to each individual, balanced against the pragmatic need to consider the demand and supply of housing and cost.”

22. In response to our contacts with the Council, it advised:
• “It [was] extremely unlikely that an applicant in band 3 would receive an offer of a 3 bed social housing property, regardless of how long they waited in that band”;
• it proposed presenting Miss H’s application to its Exceptional Needs Referral Panel;
• noted it was in the process of reviewing its Housing Allocations Policy. And Miss H could contribute to that consultation;
• noted the part of its Policy Miss H complained about was designed to benefit low income working households.

Analysis

23. The Council has accepted fault for not advising Miss H it had closed her housing application. I agree.
24. Miss H’s other complaint is about the Council’s housing application policy. Only a court can decide if an organisation has breached the Equality Act. But we can make decisions about whether an organisation has properly taken account of an individual’s rights in its treatment of them.
25. Organisations 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.
26. The Council has provided us with its equality impact assessment. It has also referred to its Exceptional Needs Referral Panel as a route for it to consider Miss H’s specific circumstances. As noted at paragraphs 13-16, the law says that, even if part of a scheme indirectly discriminates against a protected group, this might be justified, when considering the entirety of the scheme.
27. Applying that law to this complaint, I cannot find fault for the following reasons.
• Government guidance encourages housing authorities to consider extra priority for working households.
• The Council did consider the equalities implications of its policy in an assessment.
• The Council says its Exceptional Needs Referral Panel is an alternative route for it to consider Miss H’s application with reference to her protected characteristics.
• It is not for the Ombudsman to decide if the Council’s Policy, when taken as a whole, breaches the Equality Act. A court would need to consider that issue.

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Agreed action

28. I do find fault with the Council’s lack of communication with Miss H. It has apologised and offered that its Exceptional Needs Referral Panel should consider her application. My decision is those are suitable remedies. The Council should, within a month of my final decision, write to Miss H offering her the opportunity to apply to the Panel. It should advise her of any information it considers would be useful in its consideration of that application.
29. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman