Suffolk County Council (18 003 899)

Category : Housing > Private housing

Decision : Upheld

Decision date : 25 Feb 2019

The Ombudsman's final decision:

Summary: Mr A’s complains about how the Council handled his application to the warm homes scheme. The Ombudsman has found fault in how the Council dealt with the application. However, we consider the Council has already taken sufficient steps to put things right.

The complaint

  1. Mr A complains Suffolk County Council (the Council) mishandled his application to the warm homes scheme.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. If we are satisfied with a council’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

  1. I considered Mr A’s complaint to the Ombudsman, the complaint correspondence and the Council’s response to my enquiries. Both parties received a draft of this statement and I took comments into account.

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What I found

  1. The Government introduced a legal obligation requiring energy companies to help the poorest households cut their energy bills and reduce carbon emissions. One of its objectives is to reduce fuel poverty (being unable to afford to keep the home heated properly because of low income and high heating costs).
  2. Guidance from the Department for Business, Energy and Industrial Strategy (‘Energy Company Obligation- Flexible Eligibility: Guidance for local authorities on engaging with energy suppliers to identify households that would benefit from energy efficiency improvements – ‘the Guidance’) says:
      1. There are two types of private householders intended to be eligible: fuel poor (those who cannot afford to heat their home adequately) including the 20% of fuel poor households not receiving any benefits
      2. Low income households vulnerable to the effects of living in a cold home.
  3. The Guidance is ‘not mandatory, but aims to help councils make informed decisions on the criteria to use when identifying households under flexible eligibility’ (paragraph 6.4)
  4. The Guidance requires councils who are following ‘flexible eligibility’ (explained below) to have:
    • A published statement of intent setting out the criteria they apply and a written declaration that a household is eligible. (the declaration is then given to the energy supplier.) The council can change the statement of intent (including the criteria) when it wants and if it did so it should be clear about which version applies and when.
    • A set of household eligibility criteria, targeting those who are fuel poor, on a low income and vulnerable to the cold or are in badly insulated properties. Councils have flexibility on the criteria they use to identify these households. There are some non-statutory guidelines included
    • Councils are supposed to retain evidence a household meets the criteria, for future evaluation and reporting back to the Government.
  5. Flexible eligibility aims to identify households who do not receive benefits but may still be appropriate to receive help. The Guidance refers to eligibility criteria used to identify such households including: high cost homes (e.g. lacking central heating) health conditions which make people vulnerable to cold and damp and household income. The Guidance includes thresholds of qualifying income after housing costs are deducted. In a property with two adults, this is £14,600. The Guidance also explains how to identify high fuel costs including: having a person at home most of the time, the size of the house, the date it was built, the type of house.
  6. The statement of intent at the time Mr A applied to the scheme said people were eligible if they:
    • Qualified under the ‘fuel poverty criteria’ which – among other things – meant they fell under an income threshold (which varied relating to the number of people living in the household), and lived in a property with an energy performance certificate rating between D and G.
    • Qualified as ‘low income and vulnerable to cold’, which meant they get Attendance Allowance or have a health condition worsened by cold including heart and lung conditions. And they have savings of less than £20,000
  7. The Council’s website gives information about its warm homes healthy people service for older and vulnerable people to keep warm in winter, including boiler replacements, which is subject to funding being available and a person being eligible. It gives a phone number and email address for any queries. www.greensuffolk.org has current and previous versions of the statement of intent.

Key facts

  1. Mr A received marketing materials from the Council about the scheme, and completed an initial application form. To help assess eligibility, the form asked whether anyone in the household suffered from a significant health condition, and whether the household’s annual income was above £25,700. As I understand matters, Mr A considered he may be eligible under the scheme in relation to health issues, as because his annual household income fell beneath the £25,700 threshold.
  2. The Council subsequently conducted a home visit to discuss the application. Mr A says that during the meeting, a number of intrusive questions were asked about health issues, and evidence was required about their financial situation. Following the meeting, Mr A sent information to the Council about his and his wife’s finances and health.
  3. The Council sent Mr A its decision letter around a week following the meeting. It said he did not qualify under the scheme as his ‘income exceeds the thresholds in each of our different criteria’.
  4. Mr A wrote to the Council and asked for all his personal data to be deleted (in line with his data retention policy) and so it had not retained any of his records other than the complaint.
  5. Mr A used both stages of the Council’s complaints procedure. His position is:
    • He was required to provide too much personal information without the Council having told him why
    • The form which accompanied the mailshot suggested he met the criteria. The mailshot should have contained more information about savings, income and details of the criteria (a copy of the statement of intent)
    • The real gainers are landlords who can benefit from the value added to their property and increased rent. The scheme is ill-conceived
    • The decision statement should have properly detailed the tests applied and figures. There should have been a right of appeal
    • The Council’s complaint responses added to his confusion
  6. The Council’s responses to Mr A’s complaint said:
    • It was sorry for Mr A’s inconvenience
    • Officers considered his application based on the statement of intent in place at the time he applied. His income was too high
    • Government guidance suggested the Council needed to collect health information but the Council decided it was not needed so it had stopped doing so (the statement of intent had been changed since Mr A applied and his case was decided based on the previous version)
    • It had changed one of the standard letters as the financial information on it was misleading
    • It did not give lots of detail about eligibility in the marketing material because this put some people off from applying. It had simplified the material further by removing questions about income on the initial form
    • The full criteria are on the website, except when the site is down for repairs or maintenance
    • Attendance allowance is not included in the income calculations
    • Information is treated in line with data protection law
    • There was no invasion of privacy
    • Mr A could reapply if he wished and the process would be less onerous because he would not have to provide health information.

Was there fault?

  1. The Council accepts the application form it originally supplied to Mr A was misleading, as it referred to an income threshold of £25700. The statement of intent explains this figure was an upper limit which only applied to households comprising two adults and four children. As I understand it, the annual income threshold applicable to Mr A’s household was £14,600, as the only residents were him and his wife.
  2. The Council says it no longer asks for any income details on the initial application form, and instead discusses this issue with applicants following receipt of an application.
  3. Mr A says the income test was irrelevant to his household as “The Statement of Intent makes no link between entitlement and income for those in receipt of Attendance Allowance. Only a savings limit applies”. I do not agree with this interpretation. The statement of intent says that an applicant will automaically qualify under the income test if they are in receipt of any means tested benefit. However, attendance allowance is not a means tested benefit. I therfore consider it was correct that the Council considered Mr A’s application with reference to the income thresholds.
  4. I find the decision letter to the Mr A was flawed, as it did not explain which income threshold applied to his circumstances. It also referred to Mr A’s income exceeding the threshold in ‘each of the eligibility criteria’. This was misleading, as an applicant’s income was only relevant to identifying fuel poverty, and was not relevant to the identifying vulnerabitliy to the cold (which took account of the applicant’s health and savings, rather than their income).
  5. In addition, I find the statement of intent was flawed, as it is unclear whether an applicant needed to satisfy the criteria for fuel poverty (the income test) as well as the criteira for vulnerablity to cold, or whether it was only necessary to qualify under one of the tests. However, it is implict from the Council’s decision letter that both tests needed to be satisifed.
  6. As the paperwork for Mr A’s application has since been destoryed, the Ombudsman cannot assess whether the Council’s decision was made correctly.
  7. I do not find fault with the other aspects of Mr A’s complaints for the following reasons:
    • The Guidance allows the Council discretion in drawing up eligibility criteria and it may also change criteria when it wishes as long as it retains all superseded versions of the statement of intent, which the Council has done.
    • It is not for the Ombudsman to tell the Council the best way to market a scheme or what information to include in letters about a discretionary scheme as long as information included is accurate. Those matters are for the Council
    • It is also not for the Ombudsman to comment on the merits of the scheme. The Guidance targets private tenants as well as homeowners and so it is implicit that landlords benefit from the scheme as well as their tenants
    • It answered Mr A’s questions about why the health information was needed and I consider it was appropriate the Council sought this information based on the policy at the time of Mr A’s application. However, the Council has since decided to remove questions about health to simplify the scheme.
    • There is no requirement in the Guidance for a right of appeal so there is no fault in the Council not having one. It was appropriate for the Council to deal with Mr A’s concerns through the complaints procedure
    • The Council has offered a chance for Mr A to reapply under the new policy.

Did the faults cause injustice?

  1. I consider Mr A’s expectations about the scheme were poorly managed, based on the information presented in the initial application form about the £25,700 income threshold. I also considered the statement of intent at the time of the events caused confusion, by not clearly stating how eligibility decisions would be reached. All this meant that Mr A provided a considerable amount of personal and sensitive information to the Council when he applied for the scheme. This could have been avoided had the Council’s literature being accurate and clear. Finally, the lack of information in the Council’s decision letter meant that Mr A was put to avoidable time and trouble in pursuing a complaint.
  2. However, I consider the Council has already taken steps to put things right by:
    • Apologising to Mr A for the inconvenience caused;
    • Destroying the personal information it collected about Mr and Mrs A’s finances and health;
    • Introducing a new statement of intent a with less onerous process for assessing eligibility;
    • Revising the initial application form to remove the questions about health and income; and
    • Inviting a new application from Mr A.
  3. I consider these steps are sufficient to put things right for Mr A, and I therefore do not intend to make further recommendations.

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Final decision

  1. I have found fault with the Council’s actions which caused a degree of injustice. However, I am satisfied it had already taken the necessary actions to put things right prior to the complaint to this Ombudsman.

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Investigator's decision on behalf of the Ombudsman

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