The Ombudsman's final decision
Summary: Mr X complained the Council did not provide him with suitable accommodation. He said he needs a two-bedroom property on the ground floor due to his health conditions. Mr X said the Council’s actions negatively impacted his mental and physical health. We found fault by the Council. The Council has agreed to apologise to Mr X and provide a financial remedy.
The complaint
Mr X complained the Council did not provide him with suitable accommodation. Mr X was living in a one-bedroom, ground floor Council property. He said he needs 24-hour care because of his health conditions, and therefore needs a two-bedroom property, so a carer can stay with him. Mr X also said he needs a ground floor property because he has poor mobility and cannot manage stairs. He said the Council’s actions have meant he has had to delay undergoing an operation, and that this has left him in considerable pain. Mr X said this has also negatively impacted his mental health. He would like the Council to provide him with a two-bedroom property on the ground floor.
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) 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) The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6) When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what 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)
What I have and have not investigated Mr X said the matters complained about date back to 2021. I have exercised discretion to investigate the complaint back to May 2022. This is approximately 12 months before Mr X made his complaint to the Council. I have not investigated the complaint for the period before May 2022 as this is late.
Mr X moved to alternative accommodation in April 2024. He is unhappy with the accommodation as it is not on the ground floor. Mr X is also unhappy with bright lights in the property and with noise from his neighbours. I have not investigated these matters because they did not form part of Mr X’s initial complaint to the Council and the Council has not had an opportunity to investigate and reply.
How I considered this complaint
I discussed the complaint with Mr X and considered the information he provided.
I made enquiries to the Council and considered the information it provided.
Mr X and the Council have had the opportunity to comment on a draft of this decision. I considered their comments 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; people who need to move to avoid hardship to themselves or others; (Housing Act 1996, section 166A(3)) The Council operates a choice-based lettings scheme which enables housing applicants to bid for available properties which it advertises.
Homelessness legislation and statutory guidance Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
Someone is homeless if they have no accommodation or if they have accommodation, but it is not reasonable for them to continue to live there. (Housing Act 1996, Section 175) Councils must provide to anyone in their district information and advice free of charge on: preventing homelessness; securing accommodation when homeless; the rights of people who are homeless or threatened with homelessness; the duties of the authority; any help that is available from the authority or anyone else, for people in the council’s district who are homeless or may become homeless (whether or not they are threatened with homelessness); and how to access that help.
If someone contacts a council seeking accommodation or help to obtain accommodation and gives ‘reason to believe’ they ‘may be’ homeless or threatened with homelessness within 56 days, the council has a duty to make inquiries into what, if any, further duty it owes them. The threshold for triggering the duty to make inquiries is low. The person does not have to complete a specific form or approach a particular department of the council. (Housing Act 1996, section 184 and Homelessness Code of Guidance paragraphs 6.2 and 18.5)
Background
Mr X lived in a one-bedroom, ground floor Council property. Mr X has several health conditions and has reduced mobility. He uses crutches and experiences severe pain in his back and neck. Mr X says he cannot use stairs as a result of the pain and because of his reduced mobility.
In 2021, Mr X applied to the Council for a property transfer. That same year, Mr X underwent an Occupational Therapist’s (OT) assessment. Shortly after, the Council registered Mr X for a one-bedroom mobility category three property; this means a property with no more than three steps to access it and no internal stairs, although the property may be accessed by a lift.
In 2022, Mr X told the Council his health had deteriorated, and he needed assistance from a carer. In February that year, Mr X asked the Council to make him a direct offer of another property.
The Council carried out another OT assessment in March 2022; this acknowledged Mr X’s chronic health conditions and the fact he required surgery. The assessment recorded that one of Mr X’s relatives had moved in to provide care. It noted however, that his property had one bedroom which meant his relative had to sleep on the sofa. The assessment also recorded the internal door widths in the property were such that Mr X had to go through them sideways when using his crutches. The OT said this, together with Mr X’s poor balance, increased the risk of him falling; it said that due to the nature of his health conditions, this could be extremely detrimental to his health.
Shortly after the completion of the OT assessment, the Council approved Mr X for a two-bedroom mobility category three property.
What happened This chronology includes key events in this case and does not cover everything that happened.
In May 2022, the Council told Mr X it had declined his request for a direct offer of another property. It acknowledged Mr X required surgery but said it could not prioritise his move over the other applicants on the list, as they also had severe health and mobility issues and had been waiting longer.
The Council received further medical evidence regarding Mr X’s health condition in July 2022. It carried out a further OT assessment which identified Mr X’s relative had moved out as they were experiencing back pain from sleeping on the sofa. It said the Council had referred Mr X’s case to adult social care to carry out a care needs assessment. The OT assessment echoed the findings of the previous assessment and recommended Mr X was provided with accommodation on the ground floor, or a maximum third floor property with lift access. It also recommended wider internal door widths to allow Mr X to use his crutches.
In October 2022, Mr X asked the Council again for a direct offer of another property. Mr X provided further medical evidence to support his request.
The Council declined Mr X’s request for a direct offer.
Mr X submitted bids for properties during this period. The Council shortlisted him for several properties, but Mr X either subsequently declined them or was unsuccessful in the bidding process.
Mr X provided additional medical evidence to the Council in May 2023.
Mr X’s complaint Mr X complained to the Council in June 2023. He said he had asked the Council for the last two years for a property transfer because his current accommodation only had one bedroom. Mr X said he needed surgery as a result of his health conditions and said he would need 24-hour care following the operation; Mr X said he therefore required a second bedroom so a carer could stay. He said he had provided lots of medical evidence, but the Council had not moved him. Mr X said the Council’s actions were extremely detrimental to his mental health, and he asked again for the Council to approve a direct move.
The Council provided its complaint response in June 2023. It acknowledged Mr X’s health conditions and the medical evidence provided. It also acknowledged Mr X said he had delayed undergoing surgery because he would need 24-hour care, and therefore a two-bedroom property to accommodate a carer. The Council did not uphold Mr X’s complaint; it said it had approved Mr X’s transfer application on medical grounds in 2021 but had declined his requests for a direct offer out of turn. It said this was because it would be unfair to the applicants registered ahead of him on the list, who also have severe health issues. The Council said Mr X should continue to bid on properties via its letting scheme.
Mr X continued to bid on properties during this period. The Council shortlisted him for several properties, but Mr X either subsequently declined them or was unsuccessful in the bidding process.
As part of a medical assessment, the Council sought advice from health professionals regarding Mr X’s health conditions, including any post-surgery care requirements. The Council received confirmation of Mr X’s health issues, including confirmation he had been offered major surgery to minimise the risk of further injury as a result of a fall.
Following the medical assessment, the Council wrote to Mr X regarding his rehousing request. It said Mr X met the threshold for medical priority and it was satisfied his mobility category remained an accurate reflection of his mobility needs.
Mr X emailed the Council in October 2023. He said the Council held details of his medical conditions but it either offered him unsuitable accommodation or refused his requests for a transfer. Mr X said the Council’s actions were making his mental health worse and meant he had delayed having surgery because he needed a two-bedroom property.
The Council responded to Mr X and referred to its complaint response. It maintained that Mr X was registered on the medical transfer list to bid for a mobility category three, two-bedroom property, and encouraged him to keep bidding.
Mr X remained dissatisfied with the Council’s response and brought his complaint to us.
What happened next Mr X accepted a tenancy at an alternative property with two bedrooms and moved address in April 2024.
Analysis Mr X complained the Council did not provide him with suitable accommodation, as he needed a two-bedroom property so that a carer can stay with him. The Council says it has now rehoused Mr X to a two-bedroom property. It says the reason he was unsuccessful on previous bids was due to a lack of available properties and high demand.
I acknowledge the Council’s comments regarding the availability of properties; the Ombudsman recognises that the demand for social housing far outstrips the supply of properties in many areas. Nevertheless, I have reviewed how the Council considered Mr X’s requests for alternative accommodation from May 2022 onwards.
In its response to our enquiries, the Council says it accepted Mr X’s accommodation was not suitable for him in October 2021. The Council says it subsequently registered Mr X for a transfer on medical grounds.
As previously stated, section 175 of the Housing Act 1996 says someone is homeless if they have no accommodation, or if they have accommodation but it is not reasonable for them to continue to live there. As the Council accepted Mr X’s accommodation was not suitable for him, it should have considered whether it was reasonable for him to continue to occupy the property.
On the balance of probabilities, it is more likely than not the Council would have found it was not reasonable for Mr X to continue to occupy his accommodation at that time. This is because the OT assessment carried out in March 2022 identified a potential increased risk of Mr X falling, due to the widths of the internal doors and his use of crutches; it acknowledged that due to the nature of Mr X’s health condition, a fall would be extremely detrimental to his health. In addition, the OT assessment stated that without support from his relative, Mr X was at high risk of severe self-neglect and harm. As a result, it is more likely than not the Council would have considered it was not reasonable for Mr X to continue to occupy the property as it approved Mr X for a two-bedroom property following the findings of the OT assessment.
As a result, and having considered section 175 of the Housing Act 1996, the Council may have treated Mr X as not having accommodation.
On this basis, the Council should have therefore considered whether it owed any homelessness duty to Mr X. This is because section 184 of the Housing Act 1996 says councils have a duty to make inquiries into what, if any, duties it owes someone seeking accommodation, or help to obtain accommodation, and gives ‘reason to believe’ they ‘may be’ homeless. As previously stated, the threshold for triggering the duty to make inquiries is low, and the person does not have to complete a specific form or approach a particular department of the council.
We expect councils to employ joined-up working, whereby services communicate openly with each other; as a result, the housing register team should be alert to any information that might relate to a potential homelessness matter and should alert the homelessness team accordingly.
The Council says it did not make any homelessness inquiries. The Council’s failure to consider if it owed any homelessness duty to Mr X based on the accepted unsuitability of his then accommodation is fault.
The injustice to Mr X from the fault identified is the missed opportunity to explore whether he may have agreed to the Council making homelessness enquiries on his behalf, with a view to securing suitable alternative accommodation. There is also uncertainty as to whether the Council owed any duty to Mr X following its homelessness enquiries, based on the unsuitability of his then accommodation, and the missed opportunity for Mr X to consider his options once those enquiries had taken place.
Agreed action
To address the injustice identified, the Council has agreed to take the following action within one month of the final decision: Provide an apology to Mr X. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings; Make a symbolic payment of £400 to Mr X in recognition of the missed opportunity and uncertainty, and Remind staff to be alert to any information that might relate to a potential homelessness matter, and to alert the homelessness team where necessary.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have found fault by the Council and the Council has agreed to take the above action to resolve this complaint. I have therefore concluded my investigation.
Investigator's decision on behalf of the Ombudsman