The Ombudsman's final decision
Summary: There was no fault in how the Council changed Ms X’s priority date on the housing register. The Council was at fault for telling Ms X to apply for a priority she would not qualify for, overlooking a bid, and delay dealing with reviews and complaints. The Council has already remedied some of the injustice caused. The Council has agreed to apologise and make a payment to Ms X. The Council is also at fault for failing to give reasonable preference in its allocations scheme to all the groups required by the Housing Act 1996.
The complaint
Ms X complained about the Council’s handling of her application for housing. In particular, she says the Council: Wrongly changed her priority date when it increased her priority band in 2022. She says the Council had all the evidence necessary to award higher priority when she first applied in 2016.
Lost a file containing documents relevant to her housing application, including medical letters and information about domestic abuse.
Told her to apply for additional social priority and then took two months to tell her she didn’t qualify for this.
Overlooked or skipped her bids, meaning she missed out on an offer of accommodation.
Took too long to respond to her review requests and complaints.
Ms X says as a result, she has lived longer than necessary in a property which does not meet her medical needs and where she is at risk of domestic abuse.
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended) We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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
I spoke to Ms X and considered the information she provided.
I made written enquiries of the Council and considered its response along with relevant law and guidance and its allocations policy.
I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
Ms X and the organisation 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 housing applicants, and its procedures for allocating properties. All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14)) The Council operates a choice-based lettings scheme. This means housing applicants can express an interest in available properties. This is called bidding.
The Council places applicants who qualify to join the housing register in a priority band from Band A (highest priority) to Band C (lowest priority). This priority is the first factor the Council uses to allocate a property.
The effective date is the date the Council receives a completed application form. This can change if an applicant already on the housing register has a change in circumstances attracting a higher priority band.
So far as is relevant to this complaint, the Council awards Band B to applicants who: Lack two or more bedrooms Have a significant medical need to move Have a significant social need to move and are an existing tenant. Significant social need includes cases of domestic abuse.
So far as is relevant to this complaint, the Council awards Band C to applicants who were on the housing register before September 2021, and at that time had priority for overcrowding as lacking one bedroom.
The Council’s previous allocations scheme The Council’s previous allocations scheme is from 2016. It placed applicants into one of five Bands: Emergency, Urgent, Priority, Homeless, and General.
The Band an applicant received depended on the number of points their circumstances attracted. Applicants with 10 to 30 points were awarded General Band.
So far as is relevant to this complaint, the Council awarded: 10 points if an applicant lacked one bedroom 10 points for medical priority if the need was urgent but not life threatening.
Points did not accumulate across different areas of need. So only the area of need generating the most points defined the priority Band. For example, if an applicant’s circumstances resulted in 10 points because of their medical needs and 10 points because they lacked one bedroom, the applicant would receive 10 points and be awarded General Band.
What happened At the time relevant to this complaint, Ms X lived with her parent in a council flat.
In 2017, the Council accepted that after Ms X had a child, she was overcrowded. Under its allocations scheme in place at the time, Ms X qualified for General priority because she lacked one bedroom. The Council wrote to Ms X telling her this and explaining how to seek a review of the decision.
Ms X asked for a review of her priority in 2018. She said the Council had not properly considered her medical needs and the impact on her mental health of living with her parent. Ms X’s GP wrote to the Council to say Ms X’s medical needs meant she needed to live on the ground floor. The letter also said Ms X needed to get away from her parent, who was abusive. Ms X told me that her parent has a substance misuse problem. Ms X felt unsafe there, especially after she became a mother. The Council told Ms X that it would not change her priority.
When the Council’s new allocations scheme came into force in 2021, Ms X received Band C for the reason explained in paragraph 16.
In late 2022, Ms X told the Council she had given birth to her second child. The Council amended Ms X’s priority to Band B as she was now lacking two bedrooms. Ms X says she also provided medical information about the impact of living on the fourth floor in a block where the lift was often broken. Ms X’s new priority date was December 2022.
Ms X asked for a review of this decision in May 2023. She said her priority date should be 2017 because the Council had all the information about her health then and failed to consider it.
Also in May 2023, Ms X filled in a form for social priority on the housing register on the advice of her housing officer. She provided supporting information from her GP, social worker, and domestic abuse worker. The housing officer kept paper copies of these to attach to the social priority application.
In July, Ms X complained to the Council. She said no one had responded to her review request about her band date. She said she had completed the form for social priority and provided supporting information but had not heard back about this.
The Council responded to Ms X’s complaint at stage one in late July. It said: Social priority was only available for tenants of the Council. As Ms X was not the tenant, her parent was, she did not qualify for this Even if she did get social priority, it would not result in a priority any higher than Band B Her band date changed because her priority increased.
Ms X asked the Council to consider her complaint at stage two. The Council said it would respond by a date in early September. At the beginning of September, the Council wrote to Ms X to say it would not be able to meet its original deadline. It gave a new deadline in mid-September. The Council responded five days after the new deadline. It did not uphold the complaint. It said Ms X told it about a change in her circumstances in December 2022, which led to an increase in priority and so a change in priority date.
In September, Ms X bid on a property. The Council decided to overlook her bid because the property was one bedroom smaller than Ms X needed. Ms X complained to the Council about this.
In October, the Council completed a new medical assessment of Ms X. It awarded medical need and said Ms X needed to live on the ground floor unless there was a lift. Its letter explained to Ms X that this did not change her priority because she was already in Band B. Ms X asked for a review of this decision.
In November, Ms X asked the Council to return the paper documents she had provided in support of her application for social priority. Ms X emailed the Council several times about this. She says she visited the housing offices several times to ask for it too.
In late November, the Council responded to Ms X’s complaint about the overlooked bid. It accepted that under its policy, Ms X could bid on properties one bedroom smaller than she needed. It should have considered this and discussed with her before overlooking the bid. The Council agreed to offer Ms X the next available one-bedroom property in her preferred areas.
The Council offered Ms X a suitable property the same month. Ms X signed her new tenancy in spring 2024.
My findings
I have set out my findings on the complaint in the order they appear in paragraph one.
Changed priority date The basis for Ms X’s change in priority band (and therefore priority date) was the birth of her second child, not her medical circumstances. There was no fault in the Council’s decision to change Ms X’s priority date when it awarded Band B.
The Council did award medical priority in October 2023, which would also have resulted in an award of Band B. Ms X says the Council had all this information available to it in 2018 and should have increased her priority then.
That the Council reached a different decision, under a different scheme, in 2023 than it did six years earlier is not evidence of fault in the earlier decision. Under the allocations scheme in place at the time of its decision in 2018, even if the Council had awarded Ms X medical priority, this would not have changed her priority band. She would have received 10 points for both her areas of need. Because the Council did not add the points together, Ms X would still have been awarded 10 points and placed in General band.
Lost records Ms X says the Council lost the records she provided in support of her application for social priority. In response to my enquiries, the Council said it has not lost these documents.
The evidence shows Ms X asking the Council to return these documents several times. However, the Information Commissioner is best placed to deal with complaints about personal data. I have not, therefore, made any findings about this part of the complaint.
Social priority In response to my enquiries, the Council accepted that it should not have told Ms X to apply for social priority. It said this was a learning need for its housing officers, which it has addressed.
It was fault for the Council to tell Ms X to apply for a priority she would not qualify for. Ms X went to significant time completing the application and providing supporting documents. This included very personal information about domestic abuse and her physical health. This caused Ms X avoidable distress, which is an injustice.
Overlooked bids The Council accepted in response to Ms X’s complaint that it should not have overlooked her bid for a one-bedroom property without discussing it with her first. This was fault.
The Council’s agreed to make a direct let of the next available suitable property. This was a suitable remedy for the injustice caused to Ms X by this fault.
Delay in reviews and complaints Ms X sought a review of her housing priority in May 2023 and of her medical priority in October 2023. There is no evidence the Council completed either of these reviews before Ms X moved into her new tenancy in March 2024. This delay was fault. It caused Ms X avoidable frustration and distress, which is an injustice.
The Council told Ms X it would not be able to respond to her stage two complaint on time and gave a new deadline. This is in line with the Ombudsman’s guidance on good complaint handling. However, the Council then failed to meet the new deadline and did not tell Ms X. This was fault. The delay was less than a week and so the injustice to Ms X is suitably remedied by an apology.
Matters coming to our attention The Ombudsman can investigate matters coming to our attention during an investigation if we consider others who have not complained may have suffered injustice as a result.
The law says allocations schemes must give reasonable preference to certain groups of applicants for social housing. 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)) For this purpose, homelessness includes applicants owed the prevention, relief, and main housing duties and those found to be intentionally homeless or not to have a priority need under Part VII of the Housing Act 1996.
In investigating this case, I considered the Council’s allocations scheme.
The allocations scheme says the Council awards Band B priority to applicants owed the main housing duty. The Council’s scheme does not give any reasonable preference to any other homeless applicant.
As a result, the Council’s allocations scheme fails to meet the statutory requirement to give reasonable preference to all applicants owed a homelessness duty. This is fault.
This fault may have caused injustice to people who have not complained. This would include any homeless applicant owed the prevention or relief duties and those found intentionally homeless or not in priority need who were not allowed to join the housing register.
The Council’s allocations scheme includes “social priority”. But this is restricted to existing tenants. As a result, the Council’s allocations scheme fails to meet the statutory requirement to give reasonable preference to all applicants who need to move on welfare grounds. This is fault. The scheme awards no priority to any applicant who needs to move to avoid hardship. This is fault.
This fault may have caused injustice to people who have not complained. This includes any applicant who is not a tenant of the Council who needs to move for welfare reasons and any applicant who needs to move to avoid hardship.
Agreed action
To remedy the injustice to Ms X from the fault I have identified, the Council has agreed to: Apologise to Ms X in line with our guidance on Making an effective apology Pay Ms X £200 in recognition of the avoidable distress and frustration caused by wrongly telling her to apply for social priority and delay dealing with review requests.
The Council should take this action within four weeks of my final decision.
To remedy potential injustice to others who have not complained the Council has agreed to review and amend the allocations policy to ensure that all those entitled to reasonable preference under the Housing Act 1996 receive such preference under the Council’s scheme.
The Council should tell the Ombudsman about the action it has taken within three months of my final decision.
Final decision
I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.
Investigator's decision on behalf of the Ombudsman