The Ombudsman's final decision
Summary: there was no fault in the way the Council reassessed Mr X’s priority on the Housing Register when his circumstances changed.
The complaint
Mr X complained that the Council has not awarded sufficient priority to his Housing Register application to enable him to bid successfully for suitable social housing. His current home is overcrowded and unsuitable for Mrs X who has a disability which severely limits her mobility.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 have spoken to Mr X and considered all the information he provided.
I considered the Council’s published housing allocations policy and relevant housing records. This includes Mrs X’s medical evidence, two Occupational Therapist’s reports, and other supporting evidence about the family’s need for rehousing.
Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making the final decision.
What I found
The relevant law – statutory overcrowding There are two legal definitions of statutory overcrowding in the Housing Act 1985. These are: the room standard; and the space standard A property is statutorily overcrowded if either, or both, of these standards are breached.
When assessing the number of occupiers under the room and space standards: children aged under one are not counted; children under ten years old count as ½ a unit; rooms under 50 square feet are ignored; bedrooms and living rooms are counted as sleeping accommodation.
Under the room standard, the permitted number of occupiers for a property with two bedrooms and a living room is five (calculated as set out in paragraph 9).
The space standard is calculated by measuring the floor area of the bedrooms and living room.
The Council’s housing allocations scheme There are four priority bands in the Council’s scheme. Band 1 is the highest and Band 4 is the lowest.
Band 1 priority is awarded rarely and only in exceptional circumstances. This may happen when there is a threat to life, an emergency due to fire or flood, on the advice of the police or for reasons relating to child protection or severe domestic abuse.
Band 2 priority is awarded where there is an urgent and immediate need to move from the current accommodation due to a medical condition or disability.
Band 3 priority is awarded when there are not enough bedrooms for the household assessed under the bedroom standard. But a higher priority – Band 1 - is awarded when a household is statutorily overcrowded. This is because statutory overcrowding is regarded as a Category 1 hazard under the Housing Health and Safety Rating system.
Mr & Mrs X’s housing priority Mr & Mrs X are tenants of a two bedroom Housing Association flat. The flat is on the second floor with a lift. Mr X says the lift breaks down frequently and can be out of use for a long time. When this happens, they have to climb up two flights of 15 steps to reach their flat.
Mr & Mrs X live with their three children. Mrs X has a physical disability which severely limits her mobility. She also has mental health conditions. She receives a disability benefit and has a Blue Badge. Mr X is her main carer.
Mr X has been on the Council’s Housing Register for several years. For most of the time he had Band 3 priority for overcrowding.
In June 2022 an Environmental Health Officer inspected Mr & Mrs X’s flat to assess if it was statutorily overcrowded. At the time Mr X’s eldest son, who is a young adult, was living with them.
The Environmental Health Officer found the flat was not overcrowded under the room standard. Based on their ages, the family counted as five units which was the permitted number for a two bedroom flat with a living room. However she found they were statutorily overcrowded under the separate space standard. She measured the area of the two bedrooms and living room and found the flat could only accommodate 4.5 units under this standard.
In June 2023 Mr X requested a medical assessment for Mrs X. He said they needed to move because his flat was overcrowded and the property was unsuitable for Mrs X due to her mobility needs.
In August 2023 the Allocations team asked the Occupational Therapy service to visit Mrs X to assess her housing needs. The Occupational Therapist visited Mrs X in early September and sent her report to the housing service. She said Mrs X had an extremely urgent and immediate need to move for medical reasons. She found it extremely painful to climb the stairs when the lift was out of order. She used a crutch indoors and a walking stick outside. She was sleeping on a recliner settee in the living room due to the lack of space in the flat. She could not transfer into the bath without pain even when Mr X helped her and with the use of bathing aids. She needed to move to a stair-free property or one suitable for a stair lift. She also needed a parking space close to the property.
In mid-September 2023 the Council informed Mr X he was entitled to Band 1 priority. This was because the Environmental Health Officer had confirmed the family was statutorily overcrowded and Mrs X was entitled to medical priority. At this point, the household consisted of Mr & Mrs X, their three children and Mr X’s adult son.
In mid-October Mr X informed the Council that his adult son had permanently moved out. This change in the household’s circumstances prompted the Council to reassess their priority. Following the departure of Mr X’s eldest son, the number of units in the household reduced from 5 to 4 for the purpose of the statutory overcrowding assessment. As a result, they were no longer statutorily overcrowded because the permitted number was 5 under the room standard and 4.5 under the space standard. Although Mr & Mrs X still did not have enough bedrooms, and were overcrowded in the ordinary sense, they no longer met the strict legal definition for statutory overcrowding.
On 23 October 2023 the Council informed Mr X it had removed his adult son from his application. It had reassessed his application and changed his priority from Band 1 to Band 2 with effect from mid-September 2023. They qualified for Band 2 (urgent medical) due to Mrs X’s medical needs.
In late October Mr X requested a review of his priority band. He said he did not understand why it had changed from Band 1 to Band 2 when Mrs X needed to move on medical grounds and his family were still overcrowded. .
Mr X sent a letter of support from Mrs X’s GP in early November. The GP confirmed Mrs X used a walking stick to mobilise and took medication for pain relief. She found it very difficult to use the stairs and also had mental health conditions.
In mid-December a senior officer sent Mr X the review decision. He found the assessment officer had considered all the relevant evidence, followed the housing allocations policy and awarded the correct priority band. He said their priority had changed due to the departure of Mr X’s adult son.
There was a further Occupational Therapy assessment in February 2024. This confirmed Mrs X’s mental health had deteriorated since the last assessment. She no longer used the lift because she had panic attacks and claustrophobia. The lift was not working and stuck on the first floor on the day the Occupational Therapist visited.
When Mr X’s adult son lived with them, they needed a three bedroom parlour type property, or a four bedroom property suitable for a six person household. No suitable properties have been advertised on Bexley Homechoice in the past 12 months. When Mr X’s eldest son moved out, they needed a three bedroom property suitable for a five person household which also met the Occupational Therapist’s recommendation for level access or a lift. No suitable three bedroom properties were advertised in the past 12 months.
Mr X did place a bid for a three bedroom property in December 2023. But it was on the first floor with no lift so it did not meet the Occupational Therapist’s recommendations.
Analysis Understandably, Mr X was very disappointed when his priority decreased from Band 1 to Band 2. But changes in a household’s circumstances can result in a change to the priority band. In this case, I do not find the Council was at fault. It assessed the family’s circumstances properly and awarded the correct level of priority under its housing allocations policy. I shall explain how I reached this view.
Mr X was entitled to Band 1 priority while his eldest son lived with the family because they were statutorily overcrowded. When his son left, the family were still overcrowded in the ordinary sense because they still had one bedroom less than they need. But they no longer met the strict legal definition for statutory overcrowding. This led the Council to review their case and reduce their priority. The Council’s policy says ordinary overcrowding attracts Band 3 priority. But, in this case, the Council did not award Band 3 because Mr X had already requested a medical assessment for Mrs X and this had to be considered first.
The Occupational Therapist visited Mrs X in September 2023 and decided she had an urgent and immediate need to move because she could not manage the stairs when the lift broke down. She also commented on the lack of space in the flat and Mrs X’s difficulties with using the bath. Under the Council’s published housing allocations scheme, the correct priority for someone with an urgent and immediate need to move for medical or disability related reasons is Band 2. So the decision to award Band 2 priority was properly made.
Mr X and his family urgently need to move to a suitable property with more space and easier access for Mrs X. But no three bedroom properties with level access have been advertised in the past 12 months so Mr X has not been able to bid successfully for a suitable property. This situation is not due to fault by the Council. It reflects the severe shortage of social housing suitable to meet Mr & Mrs X’s assessed housing needs.
Final decision
I have completed the investigation and found no evidence of fault.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman