Summary: The Council failed to properly consider Mr X’s evidence and Government guidance before refusing his application for a two-bedroom property and delayed considering his review request. That caused Mr X frustration and uncertainty. An apology, payment to Mr X and agreement to reconsider his circumstances, alongside a review of the Council’s allocation scheme and guidance for officers is satisfactory remedy.

The complaint

1. The complainant, Mr X, complained the Council:
• unreasonably refused to agree he needs a two-bedroom property despite the evidence he provided to show he has a medical condition which means he sometimes needs 24-hour care; and
• delayed responding to his request for a review of its decision.
2. Mr X says the Council’s actions have caused him significant distress.

Back to top

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 an injustice, 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)

Back to top

How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and Mr X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

What should have happened

The Council's allocation scheme

7. You can only include the people who live or who would normally live with you, and who are eligible to join the housing register.
8. For other adults who need to live with you, this usually means someone who adult social care have assessed as needing to live with you as part of a care package typically requiring overnight and or 24/7 care. In these cases, we will need proof that this person needs to live with you and does not have other accommodation available.

Allocation of accommodation: guidance for local authorities

9. Housing authorities are required by section 166A(1) of the Housing Act 1996 (the Act) to have an allocation scheme for determining priorities, and for defining the procedures to be followed in allocating housing accommodation; and they must allocate in accordance with that scheme. All aspects of the allocation process must be covered in the scheme, including the people by whom decisions are taken. (section 4.1)
10. In making accommodation offers to applicants who receive support from carers who do not reside with them but may need to stay overnight, housing authorities should, wherever possible, take account of the applicant's need for a spare bedroom. (section 4.35)

What happened

11. Mr X has various medical conditions and lives in a one-bedroom property. Mr X applied for medical priority in August 2024. In that application Mr X told the Council he needed an extra bedroom for a carer. The Council asked Mr X to provide evidence he needed full-time/overnight care such as a care plan from social services. Mr X provided the Council with a copy of his care plan. The Council also sent Mr X’s GP a medical assessment questionnaire to complete, which it returned.
12. After considering Mr X’s application the Council wrote to him to tell him it had refused his application for medical priority. The Council recognised Mr X said he needed an extra bedroom for a carer. The Council noted though Mr X did not have a formal care team or carer in place. The Council said it had no evidence Mr X’s accommodation was unsuited to his medical needs.
13. Mr X asked the Council to review that decision on 28 September, pointing out he did not have a carer because he needed a separate bedroom first. On 3 October the Council acknowledged receipt of the review request and told Mr X it would respond within 56 days.
14. Mr X chased the Council in January 2025 as he had not received a response to his review request. The Council identified it had failed to register the review on the system and reregistered it.
15. Mr X chased the Council again on 14 March. The Council responded on 21 March and upheld the original decision not to award priority. That letter told Mr X the Council’s allocation scheme said it would only award an extra bedroom for a carer if social services had assessed an applicant as needing 24-hour care, seven days a week. The letter explained although Mr X’s GP had said he may need overnight care and, on occasion, 24-hour care, the Council did not have any evidence social services had assessed him as needing 24-hour care.

Analysis

16. Mr X says the Council unreasonably refused to agree he had a medical need for a two-bedroom property. Mr X says he provided the Council with evidence to show his medical conditions meant he needed regular overnight care 24 hours a day and the Council failed to take that into account.
17. The Council’s allocation scheme says it will usually only consider an extra bedroom for a carer if social services has assessed an applicant as requiring 24-hour care, seven days a week. The Government has also issued guidance as outlined in paragraph 10. The wording used in the Council’s allocation scheme is more restrictive than the wording in Government guidance.
18. I recognise the Council has considerable discretion when deciding what to include in its allocations policy. However, we would expect councils to follow Government guidance. If a council decides not to follow Government guidance we would expect it to record its reasoning for not doing so.
19. In this case Government guidance is clear housing authorities should take account of an applicant’s need for a spare bedroom for a carer even if that person does not live with them. The Council’s allocation scheme though implies it will only consider a separate bedroom for a carer if the carer needs to live with the adult and does not have any other accommodation available. That is clearly different to Government guidance.
20. I recognise the use of the word ‘usually’ suggests the Council has discretion. However, the allocation scheme goes on to say the Council needs proof a person needs to live with the adult and does not have other accommodation available. I am therefore not satisfied the discretionary element reflects Government guidance. The Council has not provided any evidence to show it has taken Government guidance into account when framing its allocation scheme. That is fault.
21. I also have concerns about how the Council considered Mr X’s case. I am satisfied Mr X provided the Council with medical information which included a medical form from his GP. In that medical form the GP said Mr X may need overnight care in certain circumstances at night and 24-hour continuous care when he is unwell. The Council’s decision letter referred to the evidence Mr X provided, which included the letter from Mr X’s GP.
22. However, there is no evidence in the decision letter the Council gave any consideration whether the GP saying Mr X sometimes needed overnight care was sufficient to give him medical priority for an extra bedroom. Instead, the implication of the letter is because Mr X did not need a 24-hour carer, seven days a week he did not qualify. I am therefore not satisfied the Council properly considered Mr X’s evidence and that is fault.
23. I am also concerned about the Council’s approach to the review of the decision. I note the letter following the review recorded the information the GP provided about Mr X sometimes needing overnight care. It is clear from the review decision though the Council turned down Mr X’s application solely because he had not provided evidence social services had assessed him as requiring 24-hour care. That amounts to a fettering of the Council’s discretion and is fault.
24. In its response to my enquiries the Council points out it has 2,200 people waiting for two-bedroom properties and allocates around 200 each year. I appreciate the pressure the Council is under. I also recognise even if the Council awarded Mr X medical priority for a two-bedroom property it could still be many years before he can move. The Council has also pointed out Mr X has a separate living room where a carer can sleep on the times when he needs overnight care.
25. I understand the points the Council makes. However, there is no evidence the Council considered the availability of a separate living room when refusing to agree Mr X can bid on two bedroom properties. Also, in his representations to the Council Mr X explained why a carer would need a separate bedroom. He refers in his comments to the fact any carer is likely to be female and will therefore need her own private space. I have seen no evidence the Council took that into account. Instead, I am satisfied the Council relied on the fact Mr X does not have a social care assessment saying he needs 24-hour care, despite the Council’s allocation scheme providing for discretion and what Government guidance says.
26. I am therefore not satisfied the Council properly considered Mr X’s circumstances when refusing him medical priority for a two-bedroom property. I am also not satisfied the Council properly considered Government guidance when framing its allocation scheme or when considering Mr X’s case.
27. It is not for me to say whether Mr X should receive medical priority. That is a matter for the Council to decide. I therefore recommended as remedy for the complaint the Council apologise to Mr X and carry out a further assessment to decide whether Mr X’s circumstances warrant medical priority for a two-bedroom property. When making that decision the Council should make sure it considers any medical evidence Mr X has provided, as well as Government guidance. Following that the Council should write to Mr X to confirm its decision. I further recommended the Council pay Mr X £250 to reflect his frustration and uncertainty. The Council has agreed to my recommendations.
28. I also recommended the Council review what its allocation scheme says about allocating a separate bedroom for a carer, taking into account Government guidance. If the Council does not make any changes to its allocation scheme it should make clear its reasoning for departing from Government guidance. Following that the Council should provide guidance to officers carrying out medical assessments around how to decide if an applicant needs a separate bedroom for a carer. The Council has agreed to my recommendations.
29. The Council delayed carrying out a review of the decision to refuse medical priority. The Council should have completed that review within 56 days of the request on 28 September 2024. However, the Council did not complete the review until March 2025. That delay is fault. I am also concerned the Council gave itself an extra 56 days from when it identified an issue with recording the original review request rather than prioritising it as already out of time. That is also fault. As remedy for this part of the complaint I recommended the Council apologise to Mr X. The Council should also identify the reason for the administrative error registering the review and then address that so it does not happen again. The Council has agreed to my recommendations.

Back to top

Action

30. Within one month of my decision the Council should:
• apologise to Mr X for the uncertainty and frustration he experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mr X £250;
• obtain any further medical evidence from Mr X and reconsider whether he has evidence that he needs an additional bedroom for a carer, taking into account Government guidance. The Council should then write to him to confirm its decision.
31. Within three months of my decision the Council should:
• review what its allocation scheme says about awarding a separate bedroom for a carer, taking into account Government guidance. If the Council does not make any changes to its allocation scheme it should record its reasoning for departing from Government guidance. Following that the Council should provide guidance to officers completing assessments; and
• investigate the reason for the administrative error in the delay registering the request for a review and take action to ensure that does not happen again.
32. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

33. I find fault causing injustice. The Council will take action to remedy the injustice

Back to top

Investigator's decision on behalf of the Ombudsman