Summary: Miss X complained about the Council’s handling of her daughter, Miss Y’s housing application. The Council was at fault for an initial delay in processing the application, for which it has apologised. This is a sufficient remedy for the time and trouble caused. There was no fault in the way the Council decided the appropriate priority band.

The complaint

1. Miss X complained, on behalf of her daughter, Miss Y, about the way the Council considered Miss Y’s housing application. She said the Council had incorrectly awarded band C, based on advice from a medical adviser, who had not seen all the evidence provided. She said the Council did not explain how 26 pages of evidence were lost. Nor has it properly explained why it does not consider Miss Y needs an extra bedroom for an overnight carer.
2. Miss X said the failing had caused significant distress to both of them, and Miss X was put to significant additional time and trouble pursuing the Council. The incorrect banding will mean Miss Y has to wait longer for suitable housing.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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

7. I considered:
• the information Miss X provided, and discussed the complaint with her;
• the information the Council provided in response to our enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our website.
8. Miss X and the Council 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

Relevant law and guidance

9. The demand for social housing far outstrips the supply of properties in many areas. To manage the demand, 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.
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))
   

11. After considering the application, the council should send the applicant a decision in writing. Applicants can ask the council to review its decision about their housing priority.
12. Statutory guidance on the allocation of accommodation says:

• review procedures should be clear and fair with timescales for each stage of the process;
• there should be a timescale for requesting a review - 21 days is suggested as reasonable;
• the review should be carried out by an officer senior to the original decision maker, or by a panel not including the original decision maker;
• reviews should normally be completed within a set deadline - 8 weeks is suggested as reasonable.
   

This Council’s allocations policy

13. This Council’s policy, which it calls its Letting’s Policy, was last reviewed in July 2021. It uses a banding system to prioritise applicants, as follows:

Band A: Urgent need to move. This includes cases where:

• the applicant’s current housing is assessed as unsafe, or where there is an imminent risk of harm, which cannot be remedied in a reasonable time; and
• the applicant has a severe medical condition or disability that is made substantially worse by their current housing, including those whose life is at risk due to their current housing conditions or who are completely housebound because of it, including disabled people with restricted mobility who are unable to carry out day to day activities or have difficulties accessing facilities, such as the bathroom or kitchen, safely and the housing cannot be reasonably adapted.

Band B: High need to move. This includes cases where:

• the current housing poses a high health and safety risk, which cannot be remedied in a reasonable period of time;
• the applicant has a serious medical condition that is made substantially worse by their current housing, but who are not housebound and whose life is not at risk due to their housing. Documentary evidence will be required and a referral to a relevant health professional may be needed;
• the applicant is a victim of harassment, violence or abuse that will be improved by a move to alternative accommodation;
• the applicant is assessed as having three or more band C needs.

Band C: Medium need to move. This includes cases where:

• the applicant has a medical condition or disability that is affected significantly by their housing circumstances, not at a critical or serious impact level but a move would be likely to improve their quality of life; and
• the applicant needs to move for social reasons, such as where they need to move to receive support, and a proven level of support is required.

Band D: low need to move

14. Applicants are placed within a band in date order. For new applications this is the date of registration. Where a change of circumstances results in a higher band, the date used is the date the applicant provided evidence of the change that led to an award of higher priority.

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What happened

15. This decision statement sets out the key events only. It does not describe everything that happened and does not set out all the records reviewed during this investigation.
16. Miss Y lives with her mother, Miss X, in a three bedroom property owned by the Council. Miss Y has physical disabilities, which cause fatigue and mobility issues. These mean she struggles to manage the stairs, and spends most of the time in her bedroom, which is on the same level as the bathroom. She sleeps for much of the time and may wake during the night needing food, but the kitchen is difficult for her to access because it is downstairs. Sometimes she starts cooking but is too tired to complete the task, and pans have been left on the stove, which is a fire risk. She sometimes has night terrors and needs help managing her anxiety. Miss X also has some mental health and learning difficulties, and is waiting for an autism assessment.
17. Miss X is her daughter’s main carer. She says she is struggling to provide the care Miss Y needs due to her own health issues, and is assisted by another family member, Ms S.
18. In early November 2020, Miss X, on behalf of Miss Y, made an application for Miss Y to join the Council’s housing register. The plan was for Miss Y to move into housing on her own, supported by paid carers.
19. In support of the application, Miss X provided evidence of Miss Y’s physical and mental health diagnoses. She said Miss Y’s mental health difficulties were made worse by bad memories of violence from her brother, Mr Z. She said Mr Z, who has significant mental health difficulties, visited regularly, and this made Miss Y feel unsafe. She also reported serious historical violence related to the property, which she said had resulted in multiple visits to the property by police, and provided evidence of a non-molestation order preventing another adult male from visiting the property and attempting to contact Miss X.
20. Miss X did not hear from the Council. In April 2021, she complained about its delay in deciding the application. The Council responded two weeks later. It said it had reviewed the medical information provided. It said it would make the application live so they could start bidding on ground floor housing or properties with a lift, based on band C. However, it would need to carry out an occupational health (OT) and medical assessment to confirm the correct band.
21. In its response to my enquiries, the Council accepted it took too long to process the application, for which it has already apologised. It explained this was in part because it was experiencing a high volume of applications at the time and staff sickness. It has taken steps to address the issue and is currently processing applications within seven weeks. In respect of this specific application, the Council said there was a delay in receiving the supporting information from Miss X because it could not access this in its original form. Miss X had to resend the information across a number of emails, and it did not receive all the information until 23 February 2021. It also said the complexities of this application meant it would take longer than usual to process in any event.
22. The OT assessment took place in May 2021. The report says it was carried out by video call due to Miss Y’s anxiety. The report:
• set out the mobility difficulties Miss Y reported, including her ankles and hips dislocating during movement, which meant she rarely left the house;
• stated Miss Y was only able to shower once a fortnight, although may be able to do so more often if she had equipment to help her;
• confirmed Miss Y had a blue badge and was receiving an enhanced Personal Independent Payment (PIP);
• noted that Miss Y wanted a two bedroom property as at times a carer may need to stay overnight; and
• concluded Miss Y’s current home no longer suited her physical and mental health needs, and she would benefit from a move to an accessible property on one level. She was assessed at mobility level 2.
23. The Council referred the application to its medical adviser for a view on Miss Y’s medical needs. The medical adviser said:

“Reading the OT report its highly unlikely anyone’s joints would dislocate as mentioned in the report. There is no medical need for two bedrooms. The vast majority of this client’s issues will be psychological not organic, and needs intense therapy to help her. Moving accommodation is really only enabling her”.

24. The Council wrote to confirm the applicant was assessed as Band C based on housing conditions and medium medical needs, with a mobility level 2, and a priority date of November 2020.
25. Miss X appealed the decision. She provided further evidence to support the application and said:
• evidence from the hospital showed Miss Y’s joints do “pop in and out”;
• that the medical adviser had been discriminatory in referring to Miss Y’s needs as “psychological”; and
• the medical adviser had ignored relevant medical evidence, including the OT report, which noted Miss Y used a wheelchair when outside the house, the impact of having ME in addition to the physical diagnoses, and Miss Y’s overnight care needs, as evidenced by the PIP payment.
26. Miss X asked for an update in late August. The Council officer responded they were waiting for a response from the medical adviser, and that they “work to the policy and apply whatever medical banding she sees appropriate [within the allocations policy] based on her professional expertise”.
27. In late September 2021 the Council said the medical assessment team had reviewed the information and concluded the housing need was correct. It said the medical adviser had concluded that Miss Y had multiple issues and a difficult life but this was not on the whole due to her housing, but was due to her mental health issues and coping strategies. “I have therefore left the band as MEDIUM at this time and not recommended a separate bedroom [for an overnight carer]”
28. Miss X sent further evidence and sought support from a local councillor. The Council referred the case to its Senior Officer Review Panel (SORP). This is a panel made up of senior officers who have no involvement with the application, who can assess the application against its lettings policy and exercise discretion to depart from the policy, if appropriate.
29. SORP considered the case in November 2021. I have seen a copy of the SORP referral on which the chair made notes about how the case was considered. This indicates the panel’s view that:
• some evidence, which related to Miss X, and not Miss Y, should be disregarded when considering Miss Y’s sole application;
• Miss Y’s personal independence payment (PIP) alone did not meet the criteria for an extra bedroom – what she needed to demonstrate was a need for regular overnight care, for example, through an adult social care needs assessment;
• higher priority should be given in relation to the Domestic Abuse Act 2021, which recognised children witnessing or experience abuse are victims but to award band B the abuse must be ongoing, which was not demonstrated. It recognised there may be ongoing trauma, which it said would need to be reviewed as part of a further medical assessment.
30. The Council asked the medical advisor to reconsider the case. The medical adviser said their view was that Miss Y’s mental health will not be significantly improved by a move and they confirmed that Medium medical award was correct. They said there was no current overnight care so they could not support an additional bedroom requirement.
31. Miss X complained. She said there was a delay in making its decision and the Council had not considered all the evidence provided. She said a Subject Access Request (SAR) had identified 26 pages of evidence were missing. In its complaint response the Council said three medical assessments had confirmed Medium medical needs was correct, and there was no evidence Miss Y had overnight care needs that justified an additional bedroom.
32. There was further correspondence between Miss X and the officer at stage 1, which explored whether the PIP payment was sufficient evidence of overnight care needs and noted another Council team had accepted the need for an extra bedroom in relation to housing benefit entitlement. Miss X said that they could not secure paid overnight carers due to the risks associated with the house and provided evidence that overnight care was shared between her and Ms S. The Council concluded there was no independence evidence to indicate overnight care needs and that the third medical assessment had considered all the information available at the time of the assessment.
33. Miss X remained unhappy and escalated the complaint to stage 2 of the complaints process. She was not satisfied the Council had considered all the evidence provided and said she had provided evidence of overnight care needs. She also said the Council had not properly considered the impact of Mr Z’s visits and that the medical adviser’s comments were discriminatory.
34. The Council responded in April 2022. It said:
• it was satisfied that all aspects of the complaint were addressed either in the stage 1 response, or the correspondence following it;
• 53 pages of medical evidence were scanned and saved on its system, to which the medical adviser had access;
• there were no examples of direct harassment towards Miss Y in the previous 12 months so it was correct not to award extra priority based on harassment; and
• it accepted the medical adviser’s comments were “somewhat insensitive” for which it apologised, but not that they were discriminatory or unprofessional. Otherwise, the complaint was not upheld.
35. Miss X remained unhappy and complained to us. In response to my enquiries the Council:
• explained that its used independent medical advisers, including a GP and an OT, to assess the medical needs of applicants, following which it decided on the appropriate band, in line with its lettings policy;
• confirmed the medical adviser saw all the information uploaded to its system at the time of each medical assessment. This is sent to them using specialist software that compresses and encrypts the information, following which it is auto-deleted;
• it is not aware that any documents were missing from its SAR response, and it believes this issue arose from the need to rescan the information and renumber the pages, following the difficulties in getting the initial information, and because subsequent submissions contained duplicate pieces of information, which were removed;
• confirmed that, as shown in the correspondence, it fully accepts Miss Y’s life is difficult and that the family as a whole is facing a range of challenges. And it agrees that for medical and social reasons Miss Y would benefit from a move to independent accommodation. However, its view of the evidence is that her need is of a medium level, warranting band C; and
• since the complaint to us the Council had considered a further OT report dated 19 April 2022 and a letter from a medical charity dated 17 May 2022, but neither of these raised issues not already considered by the medical adviser nor any information that indicated the need is greater than band C. It has, however, written to the medical charity to clarify the information it sent it.
36. In response to my draft decision, Miss X said she accepts the medical adviser saw all the information uploaded to the Council’s system at each point but says not all of the information she sent it was uploaded. She provided a copy of a communication with the Council in May 2022, in which she listed 40 documents (totalling 76 pages) that she said were missing from the bundle of documents the Council provided to her in April 2022.

My findings

Delay

37. The Council accepts there was a delay in processing the application between November 2020 and April 2021, and although it did not receive all the supporting information until 23 February 2021, I consider the delay amounts to fault. The Council has already apologised for this delay. This fault caused an injustice to Miss X who was put to avoidable time and trouble chasing the Council in April 2021. I am satisfied the Council’s apology was a sufficient remedy for the injustice caused to Miss X.
38. Miss Y has not suffered a significant injustice because, when the Council accepted the application, it backdated her priority to November 2020, the date the application was made, and she did not miss an offer between November 2020 and April 2021 when she was first able to bid for housing.
39. In addition, I am satisfied the Council took appropriate steps to address the processing delays and therefore no further recommendations are needed.
40. I have not identified any periods of avoidable delay after April 2021.

Decision-making

41. It is not my role to say whether the decisions made by the Council about the appropriate band were correct. My role is to consider the decision-making process and, in the absence of fault in the decision-making process, I cannot comment on the decision reached.
42. The Council’s lettings policy explains that medical priority is considered in relation to how the applicant’s medical condition is affected by their current housing. The assessed medical need then determines the type of housing the applicant needs. In this case, the Council sought advice from medical professionals about the impact of her housing on her medical conditions because a specialist medical judgement was needed. I am unable to confirm the documents seen by the medical adviser at the point of each assessment but on balance I am satisfied the medical adviser has considered the relevant issues.
43. The Council considered the information Miss X provided, the advice it received from the medical adviser, and the advice from two OTs when deciding on the appropriate band, in line with its lettings policy. Its records show it considered the impact of Miss Y’s current housing on her physical health and disabilities, and her mental health. When doing so, it was entitled to decide how much weight to give to the different elements of evidence provided.
44. Specifically, it considered:
• the request for a second bedroom for an overnight carer. It decided the application did not demonstrate a clinical need for overnight care to justify a second bedroom. In relation to this it also considered whether the receipt of a PIP entitled Miss Y to a second bedroom but decided this did not evidence a need for regular overnight care;
• evidence about Mr Z’s visits and other visitors to the current property that Miss Y said she found difficult, although it concluded some of this evidence related to Miss X and not Miss Y and was not, therefore, relevant to Miss Y’s sole application. It also noted there were no examples of direct harassment towards Miss Y in the previous 12 months; and
• whether higher priority should be given on the grounds Miss Y had suffered domestic abuse. It was decided the criteria was not met because the abuse was not demonstrated to be ongoing.
45. When Miss X challenged its decisions, it reviewed the additional information she provided and sought further medical assessments, as needed. It referred the case to SORP for an independent view. It also considered her concerns through its complaints process and provided detailed explanations of the reasons for its view on the various aspects Miss X raised. There is no evidence of fault in the way it reached its decisions.
46. I understand Miss X has recently sent the Council a recently completed needs assessment and further medical evidence in support of Miss Y’s application. The Council has confirmed it will reassess the application if it receives further evidence that indicates Miss Y may have a greater need than her current band C priority.

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Final decision

47. I have completed my investigation. I have found fault in relation to the Council’s initial delay in processing the housing application. The Council has already remedied the injustice caused by apologising and it has taken appropriate steps to prevent recurrence. No further recommendations are needed.

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Investigator's decision on behalf of the Ombudsman