The Ombudsman's final decision
Summary: Ms X complained about the way the Council reviewed its decision on her housing application and its refusal to award a medical priority. There is no evidence of fault in the way the Council reviewed Ms X’s housing needs banding or in the decision not to award medical priority.
The complaint
The complainant, whom I shall refer to as Ms X complained about the way the Council reviewed its decision on her housing application and its refusal to award a medical priority.
Ms X also complained about poor service, poor record keeping and a failure to follow the relevant law and statutory guidance.
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 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) 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 Ms X complains about a lack of communication, poor service and delays as well as a failure to take action, follow the law and statutory guidance or adhere to the Public Sector Equality Duty in relation to applications made in 2012, 2018 and 2019, and the cancellation of her application in July 2021. These issues do not form part of my investigation as they occurred significantly more than 12 months ago. It was open to Ms X to complain about these issues much earlier.
How I considered this complaint
As part of the investigation, I have: considered the complaint and the documents provided by Ms X; made enquiries of the Council and considered the comments and documents the Council provided; Ms 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; people who need to move to avoid hardship to themselves or others; (Housing Act 1996, section 166A(3)) The Council’s allocation policy states that all applicants will be placed in the appropriate housing needs band based on an assessment of their needs. In line with the law, applicants who need to move on medical grounds are given reasonable preference.
The Council uses a banding scheme where Band A has the highest housing need and Band C has the lowest housing need. The scheme sets out the criteria for each band. Applicants who do not meet the minimum threshold for Band C cannot join the housing register.
Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing needs band.
What happened here In July 2022 the Council considered Ms X’s change in circumstances and placed her in Band C on the housing register. Ms X disputed this decision and requested a review. She was unhappy her medical evidence had not been considered by the Council’s medical assessment team. Ms X requested an assessment of her housing needs based on her family’s medical conditions.
Ms X has previously complained to the Ombudsman about a delay in carrying out this review. The original decision and the delay in carrying out the review do not form part of my investigation.
The Council started a review in July 2023 and wrote to Ms X in early August 2023. It told Ms X it was ‘minded to’ find that she was not entitled to be on the housing register. This was on the basis neither Ms X nor her family members needed to move on medical grounds. And the Council was satisfied they did not meet any of the other banding criteria. The Council invited Ms X’s comments before it made a final decision.
In her response, Ms X asserted the officer was not suitably qualified to comment on the medical evidence and noted she had requested an Occupational Therapist (OT) assessment in 2019 which had still not taken place. She expected this to take place before the Council made a final decision. Ms X also told the Council she was awaiting further recommendations and reports from medical professionals in relation to her children’s medical conditions.
The Council made a referral for an OT assessment of each of Ms X’s children’s housing needs. An OT visited to carry out these assessments in October 2023. They noted the family currently lived in two separate units within a shared house which could not be adapted as there was a corridor between the rooms. The OT suggested grab rails could be installed in the showers and that if the family was relocated they would benefit from having a low profile or walk in shower or wet room.
In addition the OT considered the current set up was unsuitable as it was unsafe for the children to be living separate from Ms X.
Having received the OTs reports the Council then sought further advice from its medical advisors. The medical advisor considered the accommodation was suitable and medical priority did not apply. They noted overcrowding attracted its own priority and recommended any disrepair be repaired as soon as practicable.
In November 2023 the Council completed its review and wrote to Ms X upholding the original decision to place Ms X in Band C. The Council set out all of the documentation it has considered as part of the review. This included the representations from Ms X and her solicitors, the OT assessments and medical advisor’s opinions and the medical evidence Ms X had provided in relation to her own and her children’s medical conditions.
It also set out how the allocation scheme awarded medical priority in each of the Bands. This says applicants who need to move urgently because of a critical medical or welfare need, including emergencies are awarded Band A. While applicants who need to move because they have been assessed as having a serious medical or welfare need are awarded Band B. Band C priority is given to applicants who need to move because they have been assessed as having a moderate medical or welfare need.
Having considered the medical evidence for each of them, the Council was not satisfied Ms X or her family needed to move on medical grounds. The Council then went on to consider whether Ms X met the criteria for any of the Bands on other grounds. It was not satisfied Ms X met any of the criteria for Band A or Band B but accepted she met the criteria for Band C as they were lacking two bedrooms.
In addition the Council confirmed it had had regard to the principles of the Equality Act 2010 and the Public Sector Equality Duty (PSED) and was satisfied Ms X should be placed in Band C.
Ms X disagreed with the Council’s decision which she said did not address her representations or the medical evidence she had provided. She asked the Council to reconsider its decision and address all outstanding issues. Ms X identified 21 issues she wanted the Council to consider. A number of these related to earlier homelessness decisions and homelessness duties. Ms X also referenced legislation and case law related to provision, criterion or practice (PCP) leading to discrimination and the PSED.
The Council advised Ms X it had taken account of all relevant matters and would not withdraw its decision.
As Ms X remains unhappy with the review decision she has asked the Ombudsman to investigate her complaint. Ms X says she and her children have been in unsuitable accommodation since February 2022. She would like the Council to offer her suitable accommodation and to show how the allocation scheme is monitored to ensure compliance with the Equality Act and PSED.
Ms X refers to the Council’s allocation policy which says applications for medical priority will be considered by the Council’s specialist housing teams. The teams will assess the extent to which the applicant’s health is affected by their housing conditions and the expected benefits of providing suitable alternative housing. Ms X complains her application was not considered by a specialist team and that the Council was wrong to refer it to a medical advisor instead.
Ms X has recently notified the Council of a further change in circumstances and asked for a review of her Banding. These recent events do not form part of my investigation.
Analysis The Ombudsman does not act as an appeal body. It is not the Ombudsman’s role to decide whether Ms X can join the housing register, or what Band she should be placed in; that is the Council’s job. We can only consider whether the Council assessed her application correctly. The Ombudsman may not find fault with a council’s review of a housing application/ a housing applicant’s priority if it has carried this out in line with its published allocations scheme.
The Council’s allocation policy refers to Reviewing Officers, but does not specify how reviews will be conducted, other than to say there will be a written response in 56 days. As set out above, I am not investigating the time taken to complete this review.
Ms X disagrees with the decision to place her in Band C, but I am satisfied the Council took account of all the relevant evidence and followed a proper decision-making process. The Council’s letter setting out its review decision is detailed and reasoned. It shows the Council considered Ms X’s family’s current accommodation, their individual medical conditions and housing needs, and took appropriate advice. The letter also lists all of the documentation reviewed in reaching this decision.
There is no dispute that Ms X’s children are disabled. However this is not the test for awarding medical priority. Applicants are awarded medical priority because they have a medical condition or disability that is made worse by their current housing. Where an applicant has a medical condition or disability but the Council decides this is not made worse by their current housing the Council will not award a medical priority.
The Council noted their medical conditions but was satisfied neither Ms X nor her children met the criteria for medical priority in any band. It did not consider the evidence showed the current accommodation was having a significant impact on their medical conditions or that they needed to move on medical grounds. This is a decision the Council is entitled to reach.
Ms X is unhappy the Council obtained external medical advice in relation to her own and her children’s medical conditions. Although the Council’s allocation policy does not specifically provide for this, nor does it say the Council cannot obtain medical advice. Given the extent of Ms X and her children’s medical conditions we could not criticise the Council for obtaining medical advice. The Council provided the medical advisor with copies of relevant correspondence, assessments, and medical reports to inform their advice.
In considering whether Ms X or her children met the other criteria for any of the housing needs bands the Council noted the observations and recommendations in the OT’s report. The Council was not satisfied there was a critical welfare need to move or a need to move because of safeguarding issues. It noted there were issues of disrepair and suggested Ms X contact her landlord to resolve these issues. Again this is a decision the Council can make and is properly explained in the decision letter.
The Council set out the criteria for each of the three Bands and noted none of the criteria in Band A or Band B applied to Ms X or her family. But it accepted Ms X met the overcrowded criteria for Band C.
While I recognise Ms X is disappointed by the review decision, there is no evidence of fault in the way it was taken.
Ms X suggests the Council has breached the PSED and that the Council’s allocation policy discriminates against her and her disabled children.
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; and 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.
Ms X says the Council has breach the PSED toward her and her family in relation to several of their protected characteristics. But she has not provided any details. Nor has she referred to any particular sections of the policy which she believes discriminate either directly or indirectly on grounds of race, sex, or disability or that put disabled people at a disadvantage.
The Council accepts Ms X has two disabled children and confirmed, in reaching its decision it had regard to the Equality Act 2010. It also confirmed it had advanced equality of opportunity and considered the possible need to treat them more favourably than another.
Final decision
There is no evidence of fault in the way the Council reviewed Ms X’s housing needs banding or in the decision not to award medical priority.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman