The Ombudsman's final decision
Summary: There was a lengthy delay in the Council deciding a review on the complainant’s housing register application, but the evidence shows this was not due to fault by the Council. There was also no fault in the Council’s decision on the review. We have therefore completed our investigation.
The complaint
I will refer to the complainant as Mr J.
Mr J complains there was a lengthy delay in the Council’s decision on his housing register review, and that it did not properly explain the reasons for this delay at the time. Mr J also complains the Council’s decision on his review does not take proper account of the evidence he submitted about his medical situation.
Mr J wishes for the Council to now rehouse him in a particular area of the borough, on either a ground floor or first floor property.
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. 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 reviewed Mr J’s correspondence with the Council, including the Council’s review decision letter and its complaint responses, the Council’s allocation scheme, and I sought clarification from the Council on a particular point.
I also shared a draft copy of this decision with each party for their comments.
What I found
The following chronology will provide a summary of the key events relevant to this complaint. It is not intended to include every detail of what happened.
Mr J lives in a one-bedroom property, with his wife and three children. He is on the Council’s housing register because he seeks to be rehoused in a more suitable property. Under the Council’s allocation scheme, Mr J has been granted 200 points for overcrowding, and 50 points because he works.
Mr J also has a range of physical and mental health problems. Due, in particular, to his physical health, Mr J says he struggles to access his current property, as it is on the third floor and there is no lift. In 2022, he applied to the Council to be awarded the additional 900 points available under the ‘supporting health and independence’ category, but in April 2023 the Council refused this. Mr J therefore applied for a review on 2 May.
The Council allocated Mr J’s case to a review officer on the same day, and she wrote to Mr J on 12 May to explain the review process, and that she would aim to complete the review within 56 days (by 27 June). Following this, Mr J emailed the review officer several times to provide supporting evidence. The review officer acknowledged these submissions on 23 May, having been on sick leave for a few days.
Mr J then submitted additional supporting evidence, which the review officer acknowledged on 16 June; and again on 20 June, after even more submissions by Mr J.
Mr J’s additional submissions continued through July, with the review officer acknowledging these again on 26 July. As the original target date had now passed, the review officer also proposed a new date of 9 August. However, Mr J’s solicitor then wrote to the review officer and asked for the deadline to be extended, to allow them to make yet more submissions, and to request a copy of Mr J’s housing file. Because of technical difficulties, the Council could not comply with this request until 17 August.
The review officer asked the solicitor to make their submissions by 31 August, and said she would then complete the review within two weeks. Unfortunately the review officer then needed to take a further few days of sick leave.
Mr J’s solicitor made their submissions and asked the review officer to proceed on 11 September. The review officer replied to say she would now aim to complete the review by 25 September, but explained the review deadline had been extended by each set of additional submissions Mr J and his solicitor had made.
The review officer finally completed the review on 12 October. She decided to uphold the Council’s original decision not to award Mr J the additional points.
The review officer described in detail the supporting medical evidence Mr J had provided, and the reasons for the Council’s original decision in April. She explained the ‘supporting health and independence’ category was intended for people who “are unable to access essential facilities in the home, or are unable to enter and leave the home”, but said the evidence did not indicate this applied to Mr J.
The review officer noted Mr J had complained about anti-social behaviour (ASB) by his neighbour, but said this was not relevant to the ‘supporting health and independence’ category. She also noted Mr J’s landlord (a housing association) had visited him in 2022 to discuss the alleged ASB, and that it had told the Council it had received no further reports from Mr J since then.
Between October and November Mr J pursued a formal complaint with the Council. He complained about the length of time it had taken for the Council to complete the review, including the repeated missed deadlines, and a failure by the review officer to keep him updated or respond to his correspondence. He also alleged the review officer had only refused his review because he had complained about the delay and had referred the matter to his MP.
In response, the Council acknowledged the delay and that it had missed the target date. It also acknowledged that some of the delay was due to the review officer taking sick leave. However, it explained the main reason the review had taken so long was because Mr J had repeatedly submitted further information, all of which the officer was required to consider, and because his solicitor had asked for the decision to be delayed. It denied the review officer had made her decision and bad faith, and said her work was subject to quality assurance checks.
In November, Mr J referred his complaint to the Ombudsman.
Legislative background 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)) Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.
Statutory guidance on the allocation of accommodation says: review procedures should be clear and fair with timescales for each stage of the process; there should be a timescale for requesting a review - 21 days is suggested as reasonable; the review should be carried out by an officer senior to the original decision maker, or by a panel not including the original decision maker; and reviews should normally be completed within a set deadline - 8 weeks is suggested as reasonable.
The Ombudsman recognises that the demand for social housing far outstrips the supply of properties in many areas. The Ombudsman 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.
Analysis There are two broad strands to Mr J’s complaint – the length of time it took the Council to complete the review, and the fact it upheld the original decision. I will address each point in turn.
The Council’s allocation scheme says it will aim to complete a review within 56 days, which is the eight weeks recommended by the statutory guidance. Mr J’s review took from 2 May to 12 October, more than 23 weeks, which is nearly three times the Council’s stated target.
I should reiterate, at this point, there is no formal statutory deadline for completing a review, and the eight-week target date stated in both the guidance and the Council’s policy is only an aim. However, we consider councils should adhere to statutory guidance and their own policies unless there is a good reason not to, and so we can still find fault if a council misses a target date like this.
In this case though, I am conscious of the effect of the repeated submissions by Mr J and his solicitor during the review process, as well as the delay agreed at the solicitor’s request. As the Council has explained, the review officer was required to consider each of these submissions, which were detailed and very technical. It appears inevitable this was going to cause a significant delay in the review officer’s decision.
Mr J says the Council did not tell him that each submission of further evidence meant its deadline would be pushed back by two weeks. I note the Council says the review officer wrote to Mr J’s solicitor to explain this, but not until the end of September. I agree it would have been better if the Council had explained this sooner.
But I also consider it should have been obvious to Mr J that the more information he gave the review officer to consider, the longer it would take her to make a decision.
In hindsight, I consider it would have been better if the review officer had given Mr J a firm deadline to submit all information he wished her to consider, rather than allowing him to do so piecemeal over a period of months. However, I raise this simply as an observation and not a finding of fault – especially as, by not setting him a deadline, Mr J was able to continually submit new information, which was arguably to his benefit.
In discussing this matter with me, Mr J took the view the main reason for the delay was the review officer’s periods of sick leave, which he says happened on three occasions. He considers the Council should have reallocated his case to another officer in light of this.
The Council’s complaint response explains the officer took two periods of sick leave during the review, not three – one in May and one in August/September – and that each was approximately one week in length. I do not agree this contributed significantly to the delay in the review decision. Nor do I agree it would have been proportionate, or reasonable, for the Council to have reallocated Mr J’s case because of such short periods of leave.
Mr J also complains the Council upheld his complaint about the delay in its stage 1 response, but not in its stage 2 response, which he says is contradictory. However, in the stage 1 response the Council merely acknowledged it had missed the target date and apologised for this. I do not consider this means the Council accepted it was at fault for the delay, which it had already explained was mostly because of Mr J’s repeated submissions of evidence.
Taking all these points together, and while I also acknowledge the review was significantly delayed, I do not consider this delay arose because of any fault by the Council.
I therefore do not find fault in this element of Mr J’s complaint.
Turning to the second strand of Mr J’s complaint, I will first explain that the Ombudsman’s role is to review the way councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not taken into account relevant information, or not properly explained a decision. We call this ‘fault’ and, where we find it, we can consider the consequences of the fault and ask the relevant council to address these.
However, we do not provide a right of appeal against council decisions, and we do not make operational or policy decisions on councils’ behalf. If a council has made its decision without fault, then we cannot criticise it, no matter how strongly a complainant believes it is wrong. We do not uphold complaints simply because someone thinks a council should have done something different.
In Mr J’s case, this means it is not for me to re-examine the evidence he submitted as part of the review and draw my own conclusions about his eligibility for the ‘supporting health and independence’ category, but simply to ensure the review officer made her decision properly.
The officer’s decision letter sets out in detail the evidence he submitted, and considered the Council’s reasons for its original decision on Mr J’s application. She explained clearly why she shared the original decision-maker’s view, given the precise purpose of the ‘supporting health and independence’ category.
Given the volume and technical nature of the evidence Mr J submitted, I asked the Council to explain under what circumstances a review officer is expected to seek expert advice, and whether the officer did so in this case. In response, the Council said: “Every case is different, and it is for the Review Officer to decide on the reasonable enquiries. The courts have made clear that the decision lies solely with the local authority, it is not for any other agency, expert, or professional to determine. In this case, our Housing Health & Disability Team (HHDT) [which made the decision on Mr J’s original application] had already considered a large amount of medical evidence, which can be seen listed in the decision letter. Detailed considerations had been given to this medical information and the Review Officer was satisfied that the decision reached by the HHDT was reasonable and lawful based on our policy … “In this case, the Review Officer did go back to the HHDT officer on 10/10/23, to ask if the documents the client had provided on review had any new information. However, the officer advised that there was nothing substantially different that would affect their previous recommendations. On considering this opinion, the [review officer] was in agreement.”
I am satisfied, therefore, the review officer approached her decision appropriately, took account of the relevant information, and properly explained her reasoning to Mr J. There is no evidence of fault here.
Mr J has complained particularly the review officer commented in her letter that climbing stairs was beneficial for him, given the nature of his conditions. He says this was offensive and inappropriate, as this was not a judgement for the officer to make.
In fact this comment was made by the original decision-maker, not the review officer, who merely quoted it in her decision letter. Regardless, I can appreciate why Mr J might take offence at it.
However, the precise wording of the comment was: “There is also no clinical evidence to state that flights of stairs are contra-indicated [this means something which should not be done, given a person’s health condition]. Furthermore, given your deconditioning and recommendations, exercise on stairs may be helpful.”
The letter also makes clear the Council based this view on an assessment of the evidence Mr J had submitted. On balance, therefore, I consider this to be a matter of professional judgement, and not inappropriate. I should stress this is not to say I agree with the Council’s view, nor that Mr J should accept it, but simply that it was not fault for the decision-maker to make this comment.
Separately, I also note that, as part of Mr J’s application, he raised allegations of ASB by his neighbour.
The review officer explained this was not a factor which the Council could consider under the ‘supporting health and independence’ category. However, she commented Mr J had reported these allegations both to the police and housing association. The police had declined to share any information with the Council for data protection reasons, but the housing association had told the Council it had visited Mr J in 2022 and given him advice, and that since then it had received no further reports of ASB from him.
Given Mr J’s application was to receive additional points under the ‘supporting health and independence’, I do not consider this to be strictly relevant to his complaint (and indeed, I note he did not mention this element in his complaint to the Ombudsman). Either way I am satisfied the review officer was clearly correct to say the Council could not award these points on the basis Mr J was an alleged victim of ASB, because this is covered by a different part of the allocation scheme.
Again, taking these points together therefore, I do not consider there is any evidence of fault in how the Council considered and decided Mr J’s review.
In his complaint form, Mr J says he would like the Council to recommend he be rehoused on the ground floor or first floor (and not the second floor, as it currently says). He also says he would like to be rehoused away from a particular area of the borough, as he experienced historical trauma there and returning would negatively affect his mental health. Mr J also commented he has been waiting since 2019 to be rehoused.
These are decisions for the Council to make, and so, even putting to one side I have found no fault here, this is not something the Ombudsman is able to influence. I do acknowledge that Mr J has been waiting for a long time in overcrowded conditions to be rehoused though, and I do not dismiss the impact this has on him and his family.
However, as I have noted, there is a far greater demand for social housing than there is supply, particularly in London, and for this reason people typically wait for a very long time to be rehoused. This is not something which is unique to Mr J, and it is not a reason for me to find fault by the Council.
Final decision
I have completed my investigation with a finding of no fault.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman