The Ombudsman's final decision
Summary: Mrs X says the Council failed to move her to a suitable property despite accepting the current property is unsuitable for her family. The Council failed to consider the information Mrs X provided about the safety of the eldest child remaining in the property when awarding her banding. Consideration of whether Mrs X qualifies for emergency rehousing, payment to Mrs X and reminder to officers is satisfactory remedy.
The complaint
The complainant, whom I shall refer to as Mrs X, complained the Council failed to move her to a suitable property despite accepting the current property is unsuitable for her family.
Mrs X says as a result the eldest child is falling down every day and is at risk. Mrs X says this is having a significant impact on the rest of the family.
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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
As part of the investigation, I have: considered the complaint and Mrs X's comments; made enquiries of the Council and considered the comments and documents the Council provided.
Mrs 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
The Council’s allocations policy The Council’s allocations policy (the policy) says to be considered as severely overcrowded a household must need two or more bedrooms (or rooms that can be used as bedrooms) than currently available.
The existence of a medical condition is not in itself enough to qualify for a medical priority; the key issue is whether the current accommodation is significantly amplifying the impact of the condition.
As part of the assessment process for applications to the housing register, officers will undertake a risk assessment of the home where practicable. This will examine the level of risk associated with the property as it relates to the medical needs and whether these risks can be significantly reduced by other measures.
Band A is for those accepted as needing emergency rehousing; households where a move is imperative to alleviate the immediate risk to the applicant's wellbeing or the wellbeing of a member of their household and there is no alternative but to rehouse that household in housing in Hackney. In all cases, these households will be made a direct offer of accommodation.
Appendix 3 of the policy then lists the categories that qualify for Band A: You are in hospital and cannot be discharged because you have nowhere to go and there is no suitable temporary accommodation; You are a police witness and your life is at risk as a consequence of providing assistance to the police or a law enforcement body; You are a current Council tenant and your current property has become uninhabitable because of fire, flood or a roof collapse; Where a Local Authority Ombudsman has ordered that emergency rehousing is appropriate; You have applied to the Administrative Court and a judicial review has decided that your housing need is such that it constitutes an emergency; You are a connected carer for children that are unable to live with their parents and as a result of this need more rooms.
Band B is for those who have demonstrated they have a significant housing need. That includes: those living in significantly over-crowded accommodation lacking two or more bedrooms for a household of that size; where the applicant or a member of their household has a significant medical need which is being made significantly worse by the accommodation and it is not reasonable to adapt or improve the accommodation. An alternative property would need to significantly improve the medical condition.
What happened Mrs X and her family live in a two-bedroom property first floor property with their four children. The eldest son has mental and physical health issues.
In October 2020 an occupational therapist (OT) completed a housing assessment. The occupational therapist said the eldest son should not share a room. The OT recommended a ground floor flat with more than one bathing and toileting facility or a house with no restricted features at the front access or which is adaptable and has all the essential amenities close by.
Mrs X applied for medical priority in 2022. The assessment agreed the eldest son had a medical need to have his own bedroom and the Council awarded band B priority.
Mrs X applied for a further medical assessment in 2023 and provided some supporting evidence. Mrs X said the eldest son fell down every day, had visual difficulties and struggled to access the property due to the stairs. Mrs X also gave details of her own medical conditions where she referred to having depression due to the current housing conditions. Mrs X provided supporting evidence. The Council reached the same view that the eldest son needed his own bedroom and Mrs X remained in band B.
Mrs X’s representative emailed the Council again in October 2023. He told the Council the eldest son had a retinal tear following a fall and could no longer see anything. He said the eldest son could no longer use the stairs, the current accommodation was a risk for him and it was not appropriate for him to share with his siblings. He asked the Council to reconsider the case.
The Council carried out a medical assessment and decided the previous medical outcome still applied.
Analysis Mrs X says the Council failed to move her to a suitable property despite accepting her current property is unsuitable for her family. Mrs X says the property is severely overcrowded and the eldest child has learning disabilities and a visual impairment which means the property is unsuitable for his needs.
The evidence I have seen satisfies me the Council has considered the family’s circumstances: in 2022 following an occupational therapy assessment and in 2023. The evidence I have seen satisfies me the Council accepts the property is severely overcrowded and the eldest child needs his own room. I am satisfied that is why the Council allocated band B priority. According to the Council’s allocations policy band B priority is appropriate for households where the accommodation is having a significant impact on a family member’s medical conditions. I am therefore satisfied the Council has recognised Mrs X has a medical need to be rehoused as that is why it has allocated band B priority. Band B is the usual category granted to those whose accommodation is affecting their medical condition. So, in allocating band B to Mrs X the Council has recognised the impact the accommodation is having on Mrs X and her family.
I have some concerns with how the 2023 medical assessment was carried out though. In that medical assessment the Council said it did not have any evidence about why the eldest child fell down every day. The Council also said it had not received any details of a history of injuries. However, as part of the application for medical priority in 2023 Mrs X provided a letter from the GP. That letter said inadequate space in the property caused trip hazards, resulting in recurrent falls and a potentially serious injury to the eldest child.
Although the medical assessment lists the GP letter as a document considered there is no reference in the assessment to what that document said about space in the property. Nor does the medical assessment refer to the information Mrs X’s representative provided in October 2023. In that email Mrs X’s representative referred to the fact the eldest son had experienced another fall and now had a retinal tear which meant he had no vision and could not safely use the stairs to access the property. The medical assessment does not refer to any of that. I therefore cannot be satisfied when carrying out the 2023 medical assessment the Council properly considered the information Mrs X provided. That is fault.
I have considered whether fault by the Council affected the banding allocated to Mrs X. The Council made clear in its response to my enquiry that band B is the only category Mrs X could get to reflect a medical need. The Council says Mrs X does not satisfy any of the categories to qualify for band A. Having considered the Council’s allocations policy I am satisfied band A is for households where the Council accepts they need housing to reduce the immediate risk to the well-being of a member of the household. I have seen no evidence to suggest the Council considered whether the information Mrs X provided about the eldest son experiencing falls because of living in an overcrowded property, alongside his inability to use the stairs now that he has lost his sight, means there is an immediate risk to his well-being to warrant band A priority. That is fault.
I recognise the Council says band A is not suitable, listing the criteria I refer to in paragraph 12. I am satisfied that criteria is set out in the appendices to the allocations policy. However, I would still expect the Council to consider in each case whether the applicant had enough reason to be awarded band A priority. To rigidly stick to the examples given in the Council’s allocations policy amounts to a fettering of the Council’s discretion. Mrs X has put forward reasons as to why she considers the property a risk to the well-being of her eldest son and has provided medical evidence to support that. Failure to consider that is fault.
It is not my role to say whether the Council should award band A priority. However, as I am not satisfied the Council properly considered the evidence Mrs X provided I recommended it carry out a further medical assessment. As part of that medical assessment the Council should consider whether the information Mrs X provided shows a move is needed to reduce the immediate risk to the applicant’s well-being or the well-being of a member of their household, in accordance with the requirements for Band A priority. The Council should then write to Mrs X to explain its decision. I also recommended the Council apologise to Mrs X and pay her £150 to reflect her uncertainty and distress. The Council has agreed to my recommendations.
I further recommended the Council remind officers dealing with banding decisions about the need to ensure the circumstances of each case are considered. That should make clear band A should not automatically be refused if the applicant does not meet the specific examples set out in the Council’s allocations policy. Instead, in each case the Council should decide whether a move is imperative to alleviate an immediate risk to the applicant or a member of their household’s well-being where there is no alternative but to rehouse them in Hackney. The Council has agreed to my recommendation.
Agreed action
Within one month of my decision the Council should: apologise to Mrs X for the distress and uncertainty she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet; pay Mrs X £150; carry out a further assessment to decide whether Mrs X qualifies for band A priority, taking into account the evidence she provided; and send a reminder to officers dealing with banding decisions about the need to consider the individual circumstances of each case where band A priority is requested.
Final decision
I have completed my investigation and uphold the complaint.
Investigator's decision on behalf of the Ombudsman