Summary: Ms X complains about how the Council dealt with her application for the housing register. The Council is at fault as it did not respond to Ms X’s request for the Executive Director to consider if she had exceptional circumstances and failed to tell her that it would not consider her complaint. The Council has agreed to remedy the injustice to Ms X by sending a written apology, making a symbolic payment of £200 to acknowledge the distress caused and considering whether Ms X has exceptional circumstances to join the housing register.

The complaint

1. Ms X complains about how the Council has dealt with her application for the housing register. In particular, she complains that:

• Officers wrongly told her that the Head of Service would decide her application;
• The Council based its second stage review decision that she was not eligible for the housing register on incorrect information and did not take into account relevant information from her social worker;
• The Council failed to deal with her request of 25 July 2022 for her application to be considered under paragraph 10.1 (exceptional cases) of the Council’s housing allocations scheme.
• The Council failed to respond to her complaint.

2. As a result, Ms X cannot be satisfied that the Council has properly considered her housing application and she has been prevented from joining the housing register.

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The Ombudsman’s role and powers

3. 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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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. 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

6. I have:

• considered the complaint and the information provided by Ms X;
• discussed the issues with Ms X;
• made enquiries of the Council and considered the information provided;
• invited Ms X and the Council to comment on the draft decision. I considered the comments received before making a final decision.

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What I found

Law and guidance

7. 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))
8. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about whether they qualify for the housing register.

The Council’s housing allocation scheme

9. The Council’s housing allocations scheme sets out who does not qualify for its housing register. This includes:

• people who have a high level of household savings or assets including anyone who owns or recently owned a property or has an interest in a property;
• people with financial assets over £32000.

10. Paragraph 10.1 of the allocations scheme deals with exceptional cases. It provides there may be exceptional circumstances giving rise to a housing need not anticipated by the scheme. The Executive Director of Supporting People may take account of such needs in deciding if an applicant is entitled to qualify for the scheme.
11. The applicant can seek a review of the Council’s decision that they do not qualify for the housing register. The Council has a two stage review procedure.

What happened

12. The following is a summary of the key facts relevant to my consideration of the complaint. It does not include everything that happened.
13. Ms X jointly owns a property with her ex-partner and lives in the property with him and their children. Ms X applied to the Council’s housing register to enable her and her children to leave the property due to domestic abuse by her ex-partner.
14. The Council sought further information from Ms X to verify her application which she provided. Ms X then chased the Council for progress on her application. The officer dealing with the application advised that the Head of Service would need to make the decision as Ms X had a mortgage. Internal council emails show the officers dealing with the application decided to tell Ms X that the decision would be made by the Head of Service. This was incorrect as the head of service does not make decisions on individual applications.
15. The Council decided Ms X was not eligible to join the housing register as she had an interest in a property as a joint mortgage holder. The decision was made by the officer dealing with Ms X’s application. The Council has said the officer making the decision sought advice from the Head of Service about the decision.
16. Ms X requested a review of this decision. Ms X also asked if the Council would consider putting her case to the Executive Director of Supporting People to determine if she had exceptional circumstances in accordance with paragraph 10.1 of the allocations scheme. A senior officer advised Ms X that he could not recommend Ms X’s case was referred to the Executive Director before she had exhausted the review process.
17. The Council reviewed the decision at stage one of its review procedure. The Council noted Ms X’s circumstances including the domestic abuse by her ex partner. But it considered that as a homeowner with assets of over £32,000 she was not eligible to join the housing register. The Council referred Ms X to its homelessness prevention service due to the domestic abuse.
18. Ms X requested a second stage review as she considered she should be exempt from the assets test. This was because:

• her ex- partner refused to sell the property so she did not have financial assets of above £32000 and she could not afford the legal fees to force the sale of the property;
• the Council had not given sufficient weight to the fact she was fleeing domestic abuse;
• the Council misled her about who would make the decision on her application;
• the Council wrongly put weight on her not reporting the domestic abuse to the police;
• she had reasonable preference under the allocations scheme.

19. The Council’s records show it contacted Ms X’s social worker for additional information on the domestic abuse experienced by Ms X. The social worker said she considered it was in the best interests of the children to move from the property.
20. The Council responded to Ms X’s stage two review request in late July 2022. It said it would consider if Ms X’s case merited special consideration. The Council said:

• It accepted Ms X did not have savings over £32000 but she had an interest in a property. There was equity in the property above the assets threshold of £32000.
• It did not consider the information provided by Ms X on the costs of forcing the sale of the property were sufficient to show the costs of doing so or that she was serious about taking this action. It is also possible that Ms X could be supported financially in forcing the sale such as by legal aid.
• Ms X may be able to claim benefits if she rented privately.
• Ms X would have reasonable preference under the allocation scheme. However, paragraph 3.27 of the Government’s allocation guidance provides councils may wish to adopt criteria which would disqualify individuals who have reasonable preference. Section 3.29 provides councils should avoid allocating social housing to people who own their own homes except in exceptional circumstances. The Council did not consider Ms X’s circumstances meant she fell into the exceptional category.

21. The Council again provided details of its homelessness prevention service.
22. Ms X requested the Executive Director consider her circumstances under paragraph 10.1 of its allocations scheme. Some weeks later the Director acknowledged her request and advised he would speak to officers about her request. The Council did not make a decision in response to her request.
23. Ms X separately raised that the second stage reviewer did not refer to information from her social worker in her decision. The second stage reviewing officer replied to Ms X and advised she had taken account of the information from the social worker but it did not provide any information to affect her decision. The officer restated that she considered Ms X’s circumstances did not exempt her from the assets assessment.
24. Ms X believes the Council based its second stage review on incorrect information. This is because it refers to Ms X providing a different valuation and different costs for forcing a sale of the property. In response to my enquiries, the Council has said there was no intention to suggest Ms X had provided wrong information about the valuation of the property. The Council said it placed no weight on the difference between Ms X’s valuation and estimated legal costs.
25. Ms X also considers the Council wrongly considered she could seek legal aid to force the sale of the property. In response to my enquiries the Council has said it was not certain of the outcome should Ms X follow the steps in its review. There was limited scope in waiting for an enquiry into legal advice as Ms X wanted a decision as soon as possible.

Complaint

26. Ms X made a complaint to the Council about how it had dealt with her application and reviews. This included concerns that officers had colluded to prevent her from being accepted onto the housing register. The Council acknowledged the complaint but did not respond to it. In response to my enquiries the Council has said that this was because housing register decisions cannot be considered under the complaints procedure as there was a right to seek a review of the decision. It has acknowledged it wrongly advised Ms X that her complaint would be considered under the complaints procedure.
27. Ms X also contacted a senior councillor to complain the Council had not responded to her request for her application be considered under paragraph 10.1 of its allocations policy. Officers on behalf of the councillor eventually advised her the matter could not be dealt with as a member’s enquiry.

Analysis

28. It is not our role to reach our own decision on whether Ms X is eligible for the housing register. We examine whether the Council considered the application in accordance with its allocation scheme.

Council wrongly told Ms X that the Head of Service would decide her application

29. The Council has acknowledged officers wrongly told Ms X that the Head of Service would decide her application. This was misleading and raised Ms X’s expectations that a senior officer would consider her application. Ms X considers this shows officers colluded to prevent her application from being successful. There is no evidence to show this was the case. Ms X’s application was unsuccessful as her joint ownership of a property meant she did not qualify for the housing register in accordance with the Council’s allocations scheme.

Second stage review

30. The Council considered Ms X’s review requests through its two stage review process. The review decisions show the Council considered Ms X’s circumstances and reasons why she should be eligible for the housing register. This included Ms X’s position that she wanted to be on the housing register to enable her to flee domestic abuse. The second stage review letter did not refer to information from Ms X’s social worker. But the Council’s emails with Ms X show it considered the information and explained why it did not persuade the Council to allow Ms X’s application. So, on balance, I consider the Council took into account the information from the social worker.
31. Ms X considers the Council relied on incorrect information as the second stage review decision suggested her valuation was inaccurate. The Council commented on Ms X’s valuation but I am satisfied the Council did not rely on the differences in the valuation when making its decision. In any event, all the valuations showed there was equity of over £32000 in the property.
32. Ms X also believes the Council wrongly considered she could claim legal aid to force the sale of the property. The Council placed weight on its view that she could seek legal aid without knowing if this was possible. On balance, I consider this to be fault. The Council should have had some knowledge of whether Ms X could have claimed legal aid if it was relying on this as a reason for refusing her application. But this was not the sole reason why the Council considered Ms X did not have exceptional circumstances. I therefore do not consider this fault calls into question the Council’s decision.

Failure to consider Ms X’s request for her application to be considered in accordance with paragraph 10.1 of the allocations scheme.

33. The Council informed Ms X that it would ask officers for their views on Ms X’s request to be considered under paragraph 10.1 as an exceptional case. It then failed to take any further action even when Ms X complained. This is fault.
34. As a result, Ms X lost the opportunity to have her case considered under paragraph 10.1 of the allocations scheme. In order to put Ms X back in the position she would have been in, the Council should now consider if Ms X has an exceptional case in accordance with paragraph 10.1 of its allocations scheme.

Complaint

35. The Council has acknowledged that it failed to tell Ms X that it would not consider her complaint through the complaints procedure as the decision on her housing application had been reviewed. This is fault which put Ms X to avoidable time and trouble. Had the Council informed Ms X that it would not consider her complaint then it is unlikely that she would have contacted other officers and the senior councillor. Ms X would also have been able to complain to the Ombudsman sooner.

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Agreed action

36. That the Council will:
1. send a written apology and makes a symbolic payment of £200 to Ms X to acknowledge the distress and avoidable time and trouble caused by wrongly informing her that the Head of Service would consider her housing application, failing to consider her request for her application to be considered under paragraph 10.1 of its allocations scheme and failing to inform her that her complaint would not be considered under its complaints procedure. The Council should ensure the apology to Ms X is in accordance with our new guidance on remedies for Making an effective apology
2. consider whether Ms X has an exceptional case in accordance with paragraph 10.1 of its allocations scheme. The Council should fully explain its decision to Ms X in writing.
3. by training, or other means, remind officers of the provisions of its complaints procedure and that complaints about statutory reviews, such as eligibility for the housing register, will not be considered through the complaints process.
37. The Council should take the above action within one month of the final decision. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. Fault causing injustice.

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Investigator's decision on behalf of the Ombudsman