The Ombudsman's final decision
Summary: Mr and Mrs Y complain about how the Council dealt with their application to its housing register. Their main concern is that the Council went against medical professionals’ opinion that they need a second bedroom. The Ombudsman’s view is the Council sought clarification about the medical need for the extra bedroom before reaching its decision. So we cannot question the merits of the decision. But we have found fault that the Council did not adequately explain the reasons for the decision.
The complaint
The complainant, whom I shall refer to as Mr Y, complains about how the Council has dealt with his and his wife’s (Mrs Y) application to its housing register. Specifically he complains that: the Council has not followed an occupational therapist’s (OT) recommendation that they needed a second bedroom, because of infection risk; the Council has also not followed their GP’s recommendation that they needed a second bedroom to allow Mr Y (as Mrs Y’s main carer) to get restful sleep; it is not appropriate to expect them, as a middle-aged couple, to move to sheltered accommodation, as the Council suggested; the Council has disregarded Mrs Y’s medical needs and disabilities.
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) If we find fault, we must also consider whether it 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 Mr Y; made enquiries of the Council and considered its response; considered the Council’s housing allocation policy; spoken to Mr Y; sent my draft decision to Mr Y and the Council and invited their comments.
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 accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14)) The Council’s allocation policy The Council’s allocation policy says: it would prioritise adapted homes for “…medical need applicants who require specific adaptations in a property”. It would assess medical priority via an occupational therapy (OT) assessment.
it needed to ensure the size of a property was suitable for the applicants; making best use of its housing stock; a couple would be eligible for one-bedroom properties; or two-bedrooms if a property was deemed hard to let; it might allocate an extra bedroom on medical needs, “if recommended and evidenced as part of the medical need”, and: “you, or someone in your household, has either a permanent and substantial disability, or a severe long term limiting illness, or the severest form of learning disabilities or behaviour problems and it is unreasonable for you to share a bedroom as it would seriously affect the sleep of those you would normally share with, to the severe detriment of their or your health.”
The policy uses a banding scheme, with band one being the highest band.
Decisions Although councils often seek expert opinions and assessments when assessing housing priority, the final decision about banding rests with a council as the housing authority.
Choice based lettings The Council is a partner in a local choice-based lettings scheme which enables housing applicants to bid for available properties which are advertised.
What happened Mr and Mrs Y have lived in their private rented home for several years. Mrs Y has increasingly found living in the property difficult due to her disabilities (which include arthritis, cough and pre-diabetes hypertension). So they applied to the Council to join its housing register.
The Council started Mr and Mrs Y’s housing register application in April 2021, with a band three need to move, on medical grounds. The Council allowed them to bid for one-bedroom properties, according to the rules set out in its allocation policy.
Mr and Mrs Y challenged the Council’s decision to say they only needed a one-bedroom property. They provided a letter from their GP who said Mrs Y’s cough would disturb Mr Y’s sleep. And he needed to wake up refreshed, as he was Mrs Y’s carer. So he needed a separate bedroom.
the Council asked an OT from another council to carry out an assessment of Mr and Mrs Y’s housing need. She produced her report in July. This noted: the letter from the GP letter supporting a two-bedroom need; it was essential the property had two bedrooms, as Mrs Y needed to begin immunosuppressant medication. And that it was not safe for her to share a bedroom while taking this medication, due to risk from even mild infections; ideally Mrs Y needed a wet room to meet her long-term needs. But in the short-term, she could manage with a standard bathroom, provided there was the possibility of an adaptation in the future.
A few weeks after receiving the OT report, a Housing Officer from the Council telephoned the OT. The Council’s records of that conversation note the OT confirmed she did not know: what Mrs Y’s medication or therapy was; how long it would be going on for; or how it might affect her.
The Council’s decision was: Mrs and Mrs Y did not need a second bedroom because: it was not an extra infection risk for Mr and Mrs Y to share a bedroom. That was because, as Mr Y helped Mrs Y with her care needs, he was close to her during waking hours; the letter from the GP did not provide enough information to confirm the need for an extra bedroom; Mrs Y did need an accessible property, with a level access or wet room.
Mr and Mrs Y asked for a review of the Council’s decision. Mr Y asked for the Council to speak to a named doctor at their GP practice. The reviewing manager spoke to the GP.
The Council provided its review response in December 2021. It apologised for the delay. It said it had paused the review because Mr and Mrs Y were top of the shortlist for a property (which by then had fallen through).
The review decision was that the original decision had correctly banded Mr and Mrs Y’s application. But, from recent discussions with them, the reviewer’s view was Mrs Y’s mobility had worsened. So they now qualified for a band two priority. The Council confirmed Mr and Mrs Y’s bedroom need. But it said, as well as one-bedroom general needs properties, they could also bid for two-bedroom sheltered accommodation.
Mr and Mrs Y continued to disagree with the Council’s decision, in particular the Council’s view they could only apply for two-bedroom properties in sheltered housing. They complained to the Ombudsman. In response to my enquiries, the Council provided the following information.
The reason the Council had allowed Mr and Mrs Y to bid for two-bedroom sheltered properties was because they were not in as high demand as general stock. So the Council allowed “…greater access to our 2 bed sheltered properties and make sure 2 bed general are fully utilised”.
It did not feel the effect of Mrs Y’s cough met the threshold (see paragraph 7) for an extra bedroom, as set out in its allocation policy.
“The term sheltered accommodation … covers a wide range of properties within our stock. Sheltered accommodation, whilst we still refer to it as ‘sheltered,’ has changed significantly in recent years. There is now no warden support and much of the stock is merely general stock but reserved by the landlords for those over 55 or sometimes 60 years of age.”
It had taken the start of Mr and Mrs Y’s band two priority as 1 October 2021. That was the date it was provided with new information.
“…the system does not allow Mr and Mrs [Y] to bid for any two bedroom bungalows (general needs or sheltered). However, we discussed with Mr [Y] that we are willing to consider a suitable adapted two bedroom general needs property if one becomes available and if there were no families (or applicants which have been assessed as having an essential need for two bedrooms) who require those adaptions. We can manually place a bid and speak to the landlord regarding a manual shortlist.”
“Where we have not been able to give an additional bedroom, despite a recommendation by a GP, we should have been clear, in the assessment letter, regarding the reasons for this.”
Analysis The Ombudsman may not find fault with a council’s assessment of a housing applicant’s priority if it has carried this out in line with its published allocations scheme.
Mr and Mrs Y’s key complaint is the Council’s decision they could only apply for one-bedroom properties from the area’s social housing general needs stock. The Council’s records show it considered the opinion of Mr and Mrs Y’s GP. But its view was Mr and Mrs Y’s needs did not meet the threshold as set out in its policy.
The policy says it would only grant an extra bedroom when not doing so would be “to the severe detriment” of the health of somebody in the household. That is a high threshold. It is for the Council, not the Ombudsman, to decide what its policy should be. And, as the Council’s decision is not inconsistent with its policy, it was entitled to reach the decision it did. Its records show it did consider all the evidence. So the decision is not one the Ombudsman can criticise.
The Council also questioned the OT’s view that Mr and Mrs Y needed an extra bedroom due to an increased infection risk. It checked this both with the OT and the GP. It decided there was no extra infection risk, due to Mr and Mrs Y’s closeness during the day. I have not seen any evidence to question that view. So the outcome is not something the Ombudsman criticise.
But I agree with the Council that its decision letter should have set out its reasons with more detail, as it went against the opinion of both a GP and OT. So I do find fault with the communication with Mr and Mrs Y.
Despite this, the Council allowed Mr and Mrs Y some scope for bidding for two-bedroom ‘sheltered’ accommodation, as it is harder to let than general needs accommodation. I can understand why Mr and Mrs Y might not want to move to the type of accommodation they understand sheltered to be. (The Council says its definition of ‘sheltered’ accommodation is much wider than Mr and Mrs Y’s understanding). But the Council’s allocation policy allows it to give different allowances on bedroom size for harder to let properties. And the way the choice based letting system works means Mr and Ms Y have choice over what accommodation to bid for. I do not see any evidence of fault.
The Council has also said, on a case by case basis, it would consider an application by Mr and Mrs Y’s for adapted two-bedroom general needs properties. It would need to balance Mr and Mrs Y’s need for that property with the needs of other bidders. Again, that is a reasonable way to deal with competing needs. I see no evidence of fault with that approach.
Final decision
I uphold the complaint due to the poor communication of the reasons for the Council’s decision. But I do not see evidence of fault in how the Council reached its decision. So the Council’s decision is not something the Ombudsman can criticise. I have ended my investigation.
Investigator's decision on behalf of the Ombudsman