The Ombudsman's final decision
Summary: Mrs X complained the Council did not properly apply its social housing allocation policy or respond to her communications in good time. There was no fault in how the Council applied its allocation policy. However, there was fault in how the Council communicated with Mrs X which caused avoidable distress. The Council agreed to apologise and pay a financial remedy to Mrs X and review relevant processes.
The complaint
Mrs X complains the Council did not apply its social housing allocation policy correctly from the point her family joined its allocation list over ten years ago, or when she asked it to review their priority in June 2021. She says the Council: did not properly consider what the family’s priority should be, or what date this should apply from; repeatedly asked the family to provide evidence of circumstances which had already been proven; did not respond to Mrs X’s queries or evidence submissions in good time and provided conflicting information; and failed to consider the family’s individual circumstances, exercise discretion, or meet its duties under The Equality Act in its application of its allocation policy.
Mrs X says because of this the family are living in accommodation which is unsuitable due to the medical needs of two of the family members. She says this has impacted on their health and caused distress to the family. Mrs X also says she has spent significant time and trouble trying to resolve the issues. She wants the Council to correct the family’s priority date and exercise discretion to re-house them in a suitably sized property.
What I have investigated Although Mrs X complains about the Council’s actions from the point her family joined its housing allocation list over ten years ago, I have only investigated: what happened from mid-2020 onwards; and what happened when Mrs X discussed one of her family member’s medical conditions with the Council in 2018, when the family were staying in temporary accommodation due to damage to their home.
The ‘my findings’ section and the final section of this statement explain my reasons for not investigating any other events before mid-2020.
The Ombudsman’s role and powers
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) 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) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) 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.
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
I considered: information provided by Mrs X and discussed the complaint with her; documentation and comments from the Council; relevant law, guidance, and Council policy; and the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies .
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Housing allocations 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)) 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; and people who need to move to avoid hardship to themselves or others.
(Housing Act 1996, section 166A(3)) The Localism Act 2011 introduced new freedoms to allow councils to better manage their waiting list and to tailor their allocation priorities to meet local needs.
The Ombudsman may not find fault with a council’s assessment of a housing application or a housing applicant’s priority if it has carried this out in line with its published allocations scheme. The Ombudsman recognises the demand for social housing far outstrips the supply of properties in many areas. We may 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.
Overcrowding in social housing The law sets out tests to decide whether living accommodation is ‘overcrowded’. (Housing Act 1985, sections 324-326) Councils may set their own definition of overcrowding for the purposes of allocating social housing, but the law says this must be at least that a home is overcrowded if either: two people of the opposite sex aged over 10 and who are not living together as a couple have to sleep in the same room; or more people live in the property than the number or size of rooms in the property can accommodate under the rules.
The Council’s allocation policy (July 2021) The Council is a partner in a local choice-based lettings scheme which enables housing applicants to bid for available properties which are advertised. The Council may make offers outside the choice-based lettings scheme in certain cases, as set out under section 6 of its policy.
A household’s application may include: partners, spouses, or civil partners of the main applicant; children under 18 where the main applicant is their sole legal guardian; and dependent relatives who cannot live independently and have no other suitable alternatives to house them.
The Council assesses how many bedrooms an applicant household is eligible for. So far as is relevant to this complaint, it allows one bedroom for: every adult couple; any two children of any sex, aged under 10; and any two children of the same sex, aged under 18.
The Council may allow more bedrooms than that specified in paragraph 20 above on the recommendation of a specialist advisor, such as the Council’s Medical Adviser or Occupational Therapy Service.
The Council assesses and places qualifying applicants in one of four priority bands, A to D, based on the urgency of their housing need. Band A is the highest priority band for applicants with an “emergency and very severe housing need”. The Council allocates each property to the bidder who has held the highest priority for the longest time, i.e., has the earliest ‘priority date’ within the highest banding.
The Council provides reasonable preference to applicants who it decides must move because they have medical needs and/or a disability, which is seriously affected by their current accommodation and would be improved by moving. Where an application is made on this basis it is assessed by the Council’s Medical Adviser. The Council will then decide based on the Medical Adviser’s recommendations whether the applicant needs medical priority. The banding for medical priority is as follows: Band A – Emergency Medical. A member of the household has a life-threatening condition that is seriously affected by their housing; Band B – Medical Hardship. Current housing conditions are having a major adverse effect on the medical condition of a member of the household; and Band C – Medical Need. Current housing conditions are having a moderate or variable adverse effect on the medical condition of a member of the household.
The Council awards additional priority in certain circumstances, to prioritise between applicants within the reasonable preference groups. This includes: 10 years continuous residency – applicants who have lived within the Council’s area continuously for at least ten years; and Working households – households who are in housing need and are working but are on a low income which makes it difficult to access low cost or outright home ownership. This applies where at least one household member is permanently employed or self-employed for a minimum of 24 hours per week and has been for 9 of the previous 12 months.
If the Council awards additional priority it will move the applicant to the band above. However, additional priority is not cumulative. For example, if an applicant’s reasonable preference group puts them in Band C and they qualify for additional priority, the Council will only increase their banding to Band B, even if they meet multiple criteria for additional priority.
The Equality Act The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty. The ‘ protected characteristics ’ referred to in the Act are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
The Public Sector Equality Duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to: Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010.
Advance equality of opportunity between people who share a protected characteristic and those who do not.
Foster good relations between people who share a protected characteristic and those who do not.
The broad purpose of the public sector equality duty is to consider equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.
What happened Mrs X has lived in social housing within the Council’s area since 1998. She has two children of the same sex, born in 1998 and 2006. Mrs X’s eldest child was diagnosed with a disability shortly after her second child was born. Since 2015, Mrs X’s husband has also lived in the house, having previously lived elsewhere to care for a relative. The family’s home has two bedrooms. Mrs X said due to her eldest child’s disability, her children cannot share a bedroom, so the youngest child shares with Mrs X and Mrs X’s husband sleeps in the living room.
In March 2017, following an appeal by Mrs X, the Council reinstated the family at Band C on its housing allocation list for medical need, as described at paragraph 23. The Council said the family also qualified for additional priority due to 10 years continuous residency in its area, as described at paragraph 24, so it increased their banding to Band B. At this point Mrs X’s children were aged 18 and 10, and the Council said it considered the family overcrowded as defined by its policy, and in need of three bedrooms.
Mrs X said in 2018 the family had to stay in temporary accommodation due to damage to their home. Mrs X said she rang the Council and told it the temporary accommodation was not suitable because her husband had recently been diagnosed with cancer and had surgery. She said she told the Council she would provide medical evidence of this, but the Council said she should not do so as it would not change the family’s banding.
In March 2021, Mrs X asked the Council why it had not offered her any three-bedroom properties despite her continuously bidding for these. Mrs X said the Council told her to send up-to-date medical evidence so it could re-assess the family’s reasonable preference banding. Mrs X said at this point she realised the information she had received from the Council in 2018 was wrong. Mrs X provided medical evidence to the Council about her eldest child and husband three months later. At this point Mrs X’s children were aged 22 and 15.
Three months after providing the evidence, Mrs X complained to the Council because it had not responded to her. The Council apologised to Mrs X for the delay and asked its Medical Adviser to assess her case. It also asked Mrs X to submit a ‘change of circumstances’ form via the choice-based lettings scheme’s online system, which she did.
Three weeks later the Council told Mrs X it had awarded the family Band B for medical hardship, as described at paragraph 23. As the family also qualified for additional priority due to 10 years continuous residency in the Council’s area, it increased their banding to Band A. The Council backdated this decision to the point it received the medical evidence from Mrs X, so the family’s ‘priority date’ within Band A was June 2021.
Around the same time as the Council awarded the family Band A, Mrs X told the Council she could not bid on three-bedroom properties using the online system. There followed various contact between Mrs X and the Council to try to resolve the issue over the next two weeks. Ultimately, the Council told Mrs X that when she submitted the change of circumstances form at its request, this triggered changes to her application within the online system which left her unable to bid. The Council said it had resolved the issue and Mrs X would now be able to bid for three-bedroom properties. It also asked her to provide evidence from social services that her eldest child could not live independently and so needed to remain on the family’s housing application. It said Mrs X’s eldest child could remain on the application while awaiting submission of the evidence. Mrs X contacted the Council several times over the next two months to tell it the online system would not allow her to bid on certain three-bedroom properties. The Council resolved one of these queries so Mrs X could bid on the property but did not respond to all the queries.
Mrs X provided evidence her eldest child could not live independently three weeks after the Council asked for it. Six weeks later the Council had not responded to Mrs X so she complained. The Council contacted Mrs X within four days to confirm it had considered the evidence and her eldest child would remain on the family’s application. Mrs X complained again two days later that the Council had not correctly applied its allocation policy to her family. The Council treated this as a formal complaint and responded within two weeks. A month later, Mrs X came to the Ombudsman.
My findings
How the Council applied its policy and communicated with Mrs X As described at paragraph 15, we may not find fault with a council’s assessment of a housing application or an applicant’s priority if it has carried this out in line with its published allocations scheme. I considered all available evidence, and the Council’s policy, and could find no evidence the Council had applied its policy incorrectly to Mrs X’s family’s application during the period I investigated.
Mrs X said the Council repeatedly asked her to provide evidence of her child’s disability even though she had already done so. Mrs X provided medical evidence for her child and her husband in June 2021. The last time she had provided evidence about her child before this was 2016. She had never previously provided evidence about her husband. I have not investigated how the Council considered any medical evidence submitted before mid-2020, as this is outside of the scope of my investigation, for the reasons explained in the final section of this statement. In October 2021, the Council asked Mrs X to provide more evidence to prove her child could not live independently. The evidence provided in June 2021 from the family’s General Practitioner explained Mrs X’s child had a disability, and said, “They have requested if their housing situation could be looked into as current house is not adequate for their needs”. This evidence did not address Mrs X’s eldest child’s ability to live independently. Therefore, I do not think the Council was at fault for asking for more specific evidence of this in October 2021.
When Mrs X provided medical evidence in June 2021, the Council took four months to respond, and only did so after Mrs X complained. This delay was fault. Because of this delay, Mrs X was bidding for properties during those four months with a recorded priority of Band B. The Council eventually changed this to Band A when it considered the evidence. I therefore considered whether the Council would have offered Mrs X any three-bedroom properties during that period had she been able to bid at Band A with a June 2021 priority date. I considered the Council’s records of the houses available during this period, and the banding and priority date of the successful bidder in each case. The evidence showed Mrs X did not miss any properties because of this delay. However, I think the delay caused Mrs X distress, for which the Council should provide a remedy.
When Mrs X complained the Council had taken too long to consider the June 2021 medical evidence, it asked her to submit an online change of circumstances form. Because of the system issues this caused, she then could not bid on properties for one month. Based on the evidence available, I cannot say whether the issues caused by the form were a result of error by the Council’s systems, or error by Mrs X in completing the form. However, it is clear confusion was caused to Mrs X and she could not bid during this time. The Council had taken no action to consider Mrs X’s medical evidence for three months before it asked her to submit the form. Had it not asked her to do so, she would have been able to continue bidding at Band B until it had considered the medical evidence. As above, I therefore considered whether the Council would have offered Mrs X any three-bedroom properties during that period had she been able to bid. The evidence showed Mrs X did not miss any properties because of this system issue. However, I consider Mrs X had to repeatedly query this for the issue to be resolved which caused her confusion and frustration. The Council should act to remedy this injustice.
After the system issues caused by the change of circumstances form were resolved, Mrs X continued to tell the Council the online system would not allow her to bid on certain three-bedroom properties. The Council investigated one of these queries and liaised with the relevant housing association to resolve the issue. However, the Council did not investigate or respond to all Mrs X’s queries about bidding issues. I consider this poor communication caused frustration to Mrs X for which the Council should provide a remedy.
When Mrs X provided evidence her eldest child could not live independently in November 2021, the Council again took too long to consider this. Despite Mrs X chasing the Council, it only responded seven weeks later, after Mrs X complained again. Council records showed this was because the staff member initially allocated to respond to Mrs X’s queries left the Council’s employment. This delay was fault. However, it did not affect Mrs X’s ability to bid for houses because the Council had kept her child on the application while awaiting submission of the evidence. It also did not affect Mrs X’s priority in bidding because the Council had already awarded her Band A in October, backdated to June. However, I think the Council’s failure to respond to Mrs X about this until she complained caused her distress, as she did not know what the Council would decide once it considered the further evidence. The Council should act to remedy this injustice.
Information given to Mrs X in 2018 about medical evidence Although I did not investigate what happened before mid-2020, I decided I should consider what happened when Mrs X discussed her husband’s medical circumstances with the Council in 2018, when the family were staying in temporary accommodation due to damage to their home. Mrs X said the Council told her in 2018 not to provide evidence of her husband’s condition because it would not affect the family’s banding. She said she did not realise this information may be wrong until she spoke to the Council again in March 2021 and it told her to provide up-to-date medical evidence. I consider Mrs X only became aware of this problem in March 2021, so her complaint about this is not late.
The Council held no records of the 2018 conversation Mrs X described. The Council’s records of the March 2021 conversation were brief and did not include enough detail to verify what Mrs X said. I do not think there is enough evidence the Council gave Mrs X wrong information or advice about her application. I cannot say, even on the balance of probabilities, what was discussed on either occasion or the context of these discussions, for example whether the Council’s advice in 2018 was about the temporary accommodation, or Mrs X’s banding more generally.
The Council’s assessment in 2021 was based on up-to-date medical evidence. Even if Mrs X had provided evidence of her husband’s circumstances in 2018, I cannot say whether the Council would have changed Mrs X’s banding at that point based on any evidence provided at the time. Therefore, even if there had been fault in how the Council advised Mrs X in 2018, I cannot say this would have changed Mrs X’s housing situation.
The Equality Act Mrs X said the Council’s allocation policy discriminated against her family because it gave priority to overcrowded families with more children, over those with disabilities or medical needs. She said the Council did not consider her family’s individual circumstances and whether it should apply its discretion to re-house them. The Ombudsman can find an organisation at fault for failing to take account of its duties under the Equality Act, as described at paragraphs 26 – 29.
There was no evidence the Council failed to properly consider its duties under the Equality Act, because: the Council’s policy allows it to give reasonable preference to those with the protected characteristic of disability where this is affected by their housing; as described at paragraph 21, the Council’s policy allows it to permit a household more than the standard number of bedrooms per person on the recommendation of a specialist advisor; the Council’s policy allows it to give greater priority based on the effect of the housing on disability or medical condition than it does for overcrowding. An applicant cannot be awarded Band A based on overcrowding alone, but can be awarded Band A solely based on how their disability or medical condition is affected by their housing; as described at paragraph 18, section 6 of the Council’s allocation policy allows it to exercise discretion and make offers outside the choice-based lettings scheme in certain circumstances.
The Council said Mrs X’s family did not meet any of the criteria under section 6 of its policy for an offer to be made outside the normal rules of the scheme. I have seen no evidence the Council had any information which should have led it to believe it should consider making Mrs X a direct offer under this section of the policy.
Agreed action
Within one month of my final decision, the Council will apologise to Mrs X and pay her £250 to recognise the distress and confusion caused by delays and poor communication.
Within three months of my final decision, the Council will review its processes for: considering allocation priority evidence from social housing applicants, to ensure relevant staff are aware of the process and expected timescales for completion; and responding to emails from social housing applicants, to ensure that when staff members are absent or leave the Council’s employment, emails are responded to in good time by other appropriate staff.
Final decision
I have completed my investigation. There was fault by the Council which caused Mrs X avoidable distress. The Council agreed to our recommendations to remedy this injustice and review relevant processes.
Parts of the complaint that I did not investigate Although Mrs X said the Council did not apply its social housing allocation policy correctly from the point her family joined its allocation list over ten years ago, I did not investigate events before mid-2020.
The law says we cannot investigate events which happened more than 12 months before somebody complains to us, unless we decide there are good reasons to do so.
Mrs X complained to us in February 2022. I decided the delays caused by the Council were good reason to go back to mid-2020. However, there were no good reasons why Mrs X could not have complained earlier about events that happened before this. However, as explained in the ‘my findings’ section of this statement, I considered what happened when Mrs X discussed her husband’s medical circumstances with the Council in 2018, when staying in temporary accommodation.
Investigator's decision on behalf of the Ombudsman