The Ombudsman's final decision
Summary: Ms N complains the Council has not given her enough priority on its housing register to reflect her medical need to move. She also complains about delays in dealing with referrals. The Ombudsman upholds the complaint because the Council delayed acting on her request to give her medical priority. And not acting on a referral from a Councillor. The fault caused some avoidable uncertainty and time and trouble. The Council has agreed to our recommendations to apologise and make a payment to recognise the injustice to her.
The complaint
The complainant (whom I shall refer to as Ms N) complains that: the Council repeatedly delayed carrying out a review of her request for a medical priority on her housing register application; the Council (first its contractor and then through its review) did not give adequate consideration to the way her housing situation exacerbated the effects of her disabilities; a Councillor referred her for consideration by the Council’s social welfare panel. But the consideration by the panel was delayed.
The Ombudsman’s role and powers
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) 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) 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)
How I considered this complaint
As part of the investigation, I have: considered the complaint and the documents provided by Ms N; made enquiries of the Council and considered its response; spoken to Ms N; sent my draft decision to Ms N and the Council and considered their responses.
What I found
Legal and administrative background – housing allocations The published scheme 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)) Reasonable preference 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)) Statutory overcrowding The 1985 Housing Act contains a definition of overcrowding, based on a calculation of the number of people that can occupy a property given the rooms available as sleeping accommodation. This is known as statutory overcrowding.
When applying this definition of statutory overcrowding, a local authority looks at how sleeping arrangements within the dwelling could be organised, rather than how they are organised.
This includes that living spaces usually count as spaces that could also be used as bedrooms. In one case a large kitchen was held to meet this definition of a suitable bedroom. (Zaitzeff v Olmi (1952) 102 LJ 416, CC) The Council’s Housing Allocation Policy Priority band: The Council places applicants who qualify to join the housing register in a priority band from band 1 (highest priority) to band 4 (lowest priority). This priority is the first factor the Council uses to allocate a property.
Priority band date: This is the date on which the Council placed the application into the priority band. This can be different from the registration date if an applicant’s circumstances change, and they attract a higher priority band after registration. This date is important because the Council uses it to decide priority within a band. For example, if there are three bids for a property from applicants with band 1 priority, the applicant with the oldest priority band date will be highest on the list.
Relevant to this complaint are the following provisions: Overcrowding: band 1 allocation when an applicant occupies a property that meets the definition of statutory overcrowding; band 3 for other applicants living in overcrowded accommodation; Medical: band 2 allocation for applicants who have an urgent need to move because their current home is so seriously affecting their heath or disability that it could led to rapid deterioration; band 3 for applicants whose housing conditions exacerbates a serious medical condition or disability but do not qualify for an award of band 2; assessing officers have the option of referring applications for medical priority to the Council’s independent medical advisor.
Welfare grounds: band 2 for applicants with a need to move due to “exceptional impact on the applicant of a member of their households wellbeing”; a social welfare panel, which meets monthly, to decide such applications.
What happened
Background
Ms N lives at home with her parents and siblings in a housing association flat. Ms N reports years of anti-social behaviour from a near neighbour.
Ms N and other family members have a genetic condition. One of the consequences of the condition is the likelihood of increased levels of stress and anxiety.
The initial assessment and overcrowding priority In early 2020 Ms N and her family submitted separate applications to the Council’s housing register, due to overcrowding, medical reasons and anti-social behaviour from the neighbour. The Council placed Ms N in band 3 on its register due to the overcrowding.
Medical priority In October 2020 Ms N submitted an application for an increased priority on the housing register, on medical grounds. This was because of the effects of the overcrowding and anti-social behaviour on her health. She submitted a letter from her GP to support the application. The Council sent the application to its medical advisors. Their view was the overcrowding and anti-social behaviour were not primarily medical matters. So the Council did not increase Ms N’s priority for a move.
In early 2021 Ms N approached a Councillor who asked housing officers to look again at whether Ms N had a medical need for a move. In March the Council decided to not increase Ms N’s medical priority.
The Council reviewed the decision in May 2021. In June, Ms N complained at the second stage of the Council’s complaints procedure, when she did not receive a response. The Council responded in August. It apologised for the delay. It acknowledged that its advisor’s earlier consideration of her application for increased medical priority had not considered all the information she had sent. It agreed that it would ask for the advisors to review the information. It apologised that an earlier response had stated Ms N did not have a disability.
In October, after further chasing by Ms N and the Councillors acting on her behalf, the Council’s advisors provided its report on its consideration of the medical application. On 8 November 2021, the Council advised Ms N it had not found any medical reasons for increased priority.
Referrals to the social welfare panel In May 2021, a Councillor was in contact with Ms N. She emailed a Council housing manager asking for the Council’s panel to consider whether there were welfare grounds for awarding Ms N an increased priority. In response to my enquiries, the Council advised it had not been able to find that it took any action in response to that email. It accepted that represented a delay.
In October 2021 a Councillor asked again for consideration by the Council’s social welfare panel.
The panel considered Ms N’s application at the end of January 2022. It increased her priority banding to band 2. The Council’s record notes the reason for granting the social/welfare priority was because of anti-social behaviour Ms N and her family were experiencing from a close neighbour and the consequent increased stress and anxiety levels. The effective start date of the increased priority was 20 January 2022.
The Council’s response to my enquiries Ms N complained to the Ombudsman. In response to my enquiries, the Council advised: it accepted it should have dealt with the May 2021 Councillor referral. But: a request for consideration by its social welfare panel needed input from several agencies; its view was incidents with Ms N’s neighbour escalated after September 2021; it received a risk assessment in December 2021 and findings of a multi-agency panel in early 2022; its view was the threshold of risk and harm to Ms N had not been reached until December 2021. So its panel would not likely have granted increased priority in May 2021; if its welfare panel had increased Ms N’s priority earlier, she might have been the successful applicant on some of the properties she bid for; it would remind its officers who dealt with medical applications “…to ensure that all medical issues have been assessed by not only the advisor, but themselves as it is not the advisor who completes the assessment of medical need, but us.”
Was there fault by the Council?
We recognise that the demand for social housing far outstrips the supply of properties in many areas. We normally will not find fault with a council for failing to re-house someone, if it has prioritised applicants and allocated properties according to its published lettings scheme policy.
The overcrowding priority The Council placed Ms N in band 3 on its housing register because of its local definition of overcrowding. As that fits with what the Council’s Allocations Policy says, this is not something the Ombudsman can criticise.
The assessment of Ms N’s applications for medical priority Ms N first applied for medical priority in October 2020. The Council delayed until March 2021 making its initial decision. She did not get a review response until November. That represents a significant delay in the initial and review decisions. Part of the delay was because the Council’s medical advisor did not consider all the medical information Ms N sent. That should not have happened and is also fault.
However, the Council did eventually make a decision on all the evidence sent to it. The Ombudsman cannot question the merits of that decision.
Referral to the social welfare panel A Councillor first asked officers to consider a referral to the Council’s panel in May 2021. But the Council did not consider the application until January 2022, after the Councillor made a new referral in October 2021. Not acting on the first email was fault.
Did the fault cause an injustice?
The delay in the medical priority referral will have caused Ms N some unnecessary time and trouble. It will also have been frustrating for her. But the injustice for this fault is limited by the fact that, when the Council did consider the extra information, it did not increase her priority.
Not acting on the first Councillor referral will have also caused Ms N some extra time and trouble. It will have also led to some frustration. The Council says it was the worsening of the anti-social behaviour after September 2021 that led to the successful referral to the panel. But we cannot be sure what would have happened if the Council had considered an earlier referral. There is an uncertainty whether, but for the fault, Ms N might have made a successful bid for a property. That uncertainty is a significant injustice.
Agreed action
I recommended that, within a month of my final decision, the Council: write to Ms N apologising for the faults I have identified; make a payment of £100 to recognise the injustice caused by the frustration, resulting from the delay in the Council acting on Ms N’s request for a medical priority; make a payment of £100 to recognise the injustice caused by the frustration, resulting from the delay in the Council acting on the request for a referral to its social welfare panel; make a payment of £500 to recognise the injustice caused by the uncertainty about whether things might have been different if the Council had acted on the earlier Councillor request for a referral to its social welfare panel; make a payment of £100 to recognise the unnecessary time and trouble the faults caused Ms N; backdate Ms N’s Band 2 priority by three months to 6 September 2021, as a recognition of the uncertainty of whether things might have been different, but for the fault.
The Council has agreed to the first five of my recommendations. But it advised the backdating of Ms N’s priority was no longer needed, as she had made a successful bid for housing, so was no longer on the Council’s housing register.
Final decision
I uphold the complaint. The Council has agreed to my recommendations, so I have ended my investigation.
Investigator's decision on behalf of the Ombudsman