Summary: The Council was at fault for failing to consider the impact of incidents of domestic abuse when deciding Ms X’s priority for rehousing. The Council was also at fault for having an unclear policy for assessing Ms X’s housing need resulting from overcrowding. This led Ms X to believe she was in the wrong priority band. The Council has agreed to apologise, award the higher priority to Ms X and others affected, make a payment to Ms X, and act to improve its services.

The complaint

1. Ms X complained that the Council:
1. Pressured her to accept an unsuitable property to end its homeless duty to her in October 2020.
2. Failed to consider incidents of domestic abuse and her physical health in deciding her priority for rehousing.
2. As a result, Ms X says she remains in a property unsuitable for her physical health needs, where she cannot have proper access to her children and where she remains in fear of domestic abuse.

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What I have not investigated

3. I have not investigated part a) of the complaint described in paragraph one. This is because the complaint is late and because Ms X had a statutory right to review the council’s decision to end its duty.

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The Ombudsman’s role and powers

4. 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)
5. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
7. 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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How I considered this complaint

8. I spoke to Ms X and considered the information she provided.
9. I made written enquiries of the Council and considered its response along with relevant law and guidance.
10. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
11. Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Allocations

12. Every local housing authority must publish an allocations scheme that sets out how it prioritises housing applicants, and its procedures for allocating properties.  All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
13. 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))
14. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.
15. The Council runs a choice-based lettings scheme. This means housing applicants can express an interest in available properties. This is called bidding.
16. The Council places applicants who qualify to join the housing register in a priority band from Band 1 (highest priority) to Band 3 (lowest priority). This priority is the first factor the Council uses to allocate a property.
17. So far as is relevant to this complaint, the Council awards Band 1 to applicants:
• suffering any form of harassment (including domestic abuse)
• who are tenants of the Council and need to move for management reasons
• with an underlying mental health condition where a recent traumatic event in the home or nearby area is causing significant mental distress, subject to confirmation from a relevant health professional.
18. So far as is relevant to this complaint, the Council awards Band 2 to applicants:
• who are tenants of the Council and are lacking two or more bedrooms
• with a mental health condition where the home is having a significant impact on their mental health, subject to confirmation from a relevant health professional
19. So far as is relevant to this complaint, the Council awards Band 3 to applicants:
• who are tenants of the Council lacking one bedroom
• who are not tenants of the Council and lacking one or more bedrooms
20. The Council’s scheme sets out its policy for applicants who have overnight staying access to children. This says such applicants will be eligible for a two-bedroom flat only. In exceptional cases where there are many children, the Council can allow applicants to bid for three-bedroom flats. However, for assessing housing need, the scheme says the Council will consider applicants for overcrowding priority as though the children lived there full-time.

Background

21. In May 2020, the Council awarded Ms X Band 1 priority on the housing register. This was because of harassment from her ex-partner. In October 2020, Ms X bid for a property on the Council’s housing register. The Council offered this property to end its homelessness duty to her. The property is a two-bedroom flat on the third floor. There is no lift in the building.
22. Ms X has five children. Her eldest child lives with her full-time. The other children spend around four nights a week with Ms X.
23. Ms X told the Council about her children staying with her at the property. The Council awarded Ms X Band 3 on the housing register. The Council says this is because she is overcrowded. Ms X can bid for three-bedroom properties under the Council’s rules about applicants with overnight contact with their children.
24. In November 2021, Ms X experienced an incident of harassment from her ex-partner. She reported this to the police and sought support from a specialist victim support service and a mental health service. Both services wrote to the Council to say that Ms X’s mental health was significantly affected by remaining in the property.
25. In June 2022, Ms X experienced a further incident of harassment from her ex-partner. She reported this to the police and alerted the Council.
26. Ms X complained to the Council in September 2022. The Council’s response said:
• The police completed a DASH (Domestic Abuse, Stalking, and Harassment) assessment following the incident in June 2022 which said there was a “standard risk”
• It did not, therefore, consider she needed to move to keep herself safe
• Although she has five children, four of them only stay part of the week so she can only bid for three-bedroom properties
• It had advised Ms X previously that to consider her health needs, she needed to provide evidence
• Band 3 was the correct priority based on the information Ms X had provided.

My findings

27. There are three areas Ms X says the Council has not properly considered in deciding her priority on the housing register. These are:
• Domestic abuse and mental health
• Physical health
• Overcrowding
28. I will consider each of these in turn.

Domestic Abuse

29. In response to my enquiries, the Council said that it considered whether to award Band 1 after Ms X reported the incident in June 2022. It said that because the police DASH assessment said the risk was “standard” there was no basis for it to consider urgent rehousing.
30. I have seen no evidence the Council considered whether to award Band 2 following Ms X’s report of the incident in November 2021 or the later incident in June 2022.
31. The Council’s scheme says it awards Band 2 when a mental health professional confirms the home has a significant impact on the applicant’s mental health. In November 2021, Ms X’s mental health service said her mental health condition was made worse by her living situation. It had recently stepped up her support to “High Intensity”. In December 2021, the specialist victim support service wrote to the Council. It said: “the living situation is continuously having an impact on her wellbeing and her day to day life.” The service said in its “professional opinion...we recommend a move away from her property to stop the impact on her safety and mental wellbeing."
32. Without evidence of whether and how the Council took this evidence in account, I cannot say it did so. The Council should have written to Ms X with a decision on her priority following receipt of the new evidence. This should have set out her right to ask for a review of the decision. I have seen no evidence it did so. This was fault.
33. As a result, there is uncertainty about whether the Council made a proper decision and Ms X could not use her right to review it. These are injustices to Ms X.

Physical health

34. Ms X says she has physical health conditions which make living in a third floor flat with no lift difficult and painful.
35. In response to Ms X’s complaint, the Council told Ms X it needed more information from her to consider the impact of her physical health on her housing need. Ms X did not provide this information.
36. Therefore, I do not find fault with how the Council considered the impact of Ms X’s physical health on her housing need.

Overcrowding

37. Ms X has five children. However, four of them only live with Ms X for part of the week. Under the Council’s scheme, this means Ms X can only bid for three-bedroom properties. This is not fault.
38. The Council’s scheme says when assessing housing need, applicants with overnight staying contact “will be considered for overcrowding priority as though the children were living there on a full time basis.”
39. The Council’s allocations scheme says it awards Band 2 to its own tenants who are lacking two or more bedrooms.
40. In response to my enquiries, the Council confirmed Ms X is a Council tenant. The age and gender of Ms X’s children means she has a four-bedroom need. She is therefore lacking two bedrooms.
41. On a plain reading of its allocations scheme, I understand this to mean the Council should have awarded Ms X Band 2 on the housing register to bid for a three-bedroom property.
42. The Council says this is not what its scheme means and is not how it is applied in practice. However, the Council accepts that the wording “could be misleading”, which is fault. This avoidably raised Ms X’s expectations, which is an injustice.
43. The Council says it intends to amend the allocations scheme to remove the confusion. This will prevent the same injustice occurring in future.
44. However, I asked the Council to tell me about other applicants who might have been affected by the current policy. It identified three other applicants in the same circumstances as Ms X.

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Agreed action

45. To remedy the injustice to Ms X from the faults I have identified, the Council has agreed to:
• Apologise to Ms X
• Pay Ms X £250 in recognition of her avoidable uncertainty and missed opportunity to review the Council’s decision.
• Award Ms X Band 2 on the housing register with the same priority band date she has now.
46. To remedy the injustice to the three other applicants who have not complained, the Council will award them Band 2 with the same priority band date they have now.
47. The Council should take these actions within four weeks of my final decision.
48. The Council should also take the following action to improve its services:
• Remind relevant staff that decisions about priority on the housing register, including assessment of new information or changes in circumstances, carry a statutory right of review and that all such decisions should be communicated to the applicant in writing and explain the review rights.
• Review and amend the allocations scheme to make clear how the Council assesses housing need for applicants with overnight staying contact with their children.
49. The Council should tell the Ombudsman about the action it has taken within eight weeks of my final decision.

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Final decision

50. I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman