The Ombudsman's final decision
Summary: Miss Q complains the priority the Council has given her family on its housing register does not reflect their need to move because of overcrowding and medical needs. The Ombudsman upholds the complaint because of delay in looking at a request for medical priority. The Council has agreed to apologise for those delays.
The complaint
The complainant (whom I shall refer to as Miss Q) complains that: the Council delayed a review of its decision on her application for medical priority on her housing application; neither the original, nor review, decisions properly considered the effects of the property’s size, or anti-social behaviour from neighbours, on her and her family’s health; the Council has eventually granted them a social/welfare priority. But this was delayed as a Councillor first referred them to its panel in May 2021.
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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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) 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 the documents provided by Miss Q; made enquiries of the Council and considered its response; spoken to Miss Q; sent my draft decision to Miss Q and the Council and considered their responses.
What I found
Legal and administrative background – housing allocations The published scheme 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)) Reasonable preference 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)) Statutory overcrowding The 1985 Housing Act contains a definition of overcrowding, based on a calculation of the number of people that can occupy a property given the number of rooms available as sleeping accommodation. This is known as statutory overcrowding.
When applying this definition of statutory overcrowding, a local authority looks at how sleeping arrangements within the dwelling could be organised, rather than how they are organised.
This includes that living spaces usually count as spaces that could also be used as bedrooms. In one case a large kitchen was held to meet this definition of a suitable bedroom. (Zaitzeff v Olmi (1952) 102 LJ 416, CC) The Council’s Housing Allocations Policy The Council places applicants who qualify to join the housing register in a priority band from band 1 (highest priority) to band 4 (lowest priority). This priority is the first factor the Council uses to allocate a property.
Relevant to this complaint, the Council’s policy has the following provisions: Overcrowding: band 1 when an applicant occupies a property that meets the definition of statutory overcrowding; band 3 for other applicants living in a local definition of overcrowded accommodation; Medical: band 2 allocation for applicants who have an urgent need to move because their current house is so seriously affecting their heath or disability that it could lead to rapid deterioration; band 3 for applicants whose housing conditions exacerbates a serious medical condition or disability, but do not qualify for an award of band 2; assessing officers have the option of referring applications for medical priority to the Council’s independent medical advisor; Welfare grounds: band 2 for applicants with a need to move due to “exceptional impact on the applicant of a member of their households wellbeing”; such applications to be decided by a social welfare panel, which meets monthly.
The scheme the Council was using at the time of the events under complaint also included band 2 priority for “good tenants”. Applicants were expected to self-identify and make their own application.
What happened.
Miss Q has lived in a three bedroom housing association property for many years. Living with her are her partner, her adult daughter, and dependent children. In 2020 Miss Q applied to the Council’s housing register for a move. Her stated reasons were medical grounds (she and some of her children have a condition that leads to increased stress and anxiety), overcrowding and anti-social behaviour from their next-door neighbour. The Council placed them in band 3 on its register due to the overcrowding.
Miss Q’s adult daughter (whom I shall describe as Ms N) has made her own complaint about how the Council handled her separate application to the Council’s register.
In early 2021 Miss Q asked housing officers to look again at whether the family had a medical need for a move. The Council’s decision said that their accommodation was not ideal. But their medical needs did not give them an extra need to move. Miss Q asked for a review of the decision.
In May, a Councillor asked the Council to consider whether Ms N had a social or welfare need to move, due to the anti-social behaviour. The email also asked the Council to update her on Miss Q’s request for banding priority.
In July the Council provided its review response. It apologised for the delay. The review: accepted Miss Q and her household had disabilities; advised it had considered the assessment of its medical contractors and a letter from Miss Q’s GP. But its conclusion was their accommodation was not unsuitable on medical grounds; explained that its view was they had other options about how to use the available bedrooms. And, while not ideal, these were reasonable ways to use the space; and acknowledged the anti-social behaviour from their neighbour. But advised the correct way to deal with this was through contacting their landlord, or the Council’s Antisocial Behaviour Unit.
Later in July, Miss Q made a new medical priority request. The stated change was increased anxiety from one of her children, after a fire elsewhere in their block. The Council did not provide a decision on this application until the beginning of November. It did not give any extra priority. Miss Q asked the Council to review its decision.
In October, a Councillor asked that the Council’s social welfare panel considered both Miss Q’s and Ms N’s applications. The Council’s officer contacted Miss Q’s landlord. They advised of police and social services involvement. The Council made a referral to its multi-agency risk management meeting.
The Council says, as part of its consideration of Miss Q’s contacts, it looked at whether she might qualify for higher priority in other ways. So it also asked Miss Q’s landlord for evidence to support a good tenant award. This led it to awarding Miss Q a good tenant award in early December 2021. This increased her priority to band 2.
In January 2022 the Council’s social welfare panel decided Miss Q qualified for band 2 priority on welfare grounds, with effect from the beginning of December 2021. As Miss Q already qualified for band 2, this did not affect her priority.
While Miss Q was waiting for these later assessments, she had complained to the Ombudsman. We made enquiries. The Council’s response advised: it “apologise[d] greatly for the delay in processing the medical review…”; it had reminded its medical applications officers to check its medical advisers had considered all the medical issues; a social welfare panel referral needed a multi-agency approach. In Miss Q’s carse the relevant route to the panel was a serious risk of harm; as part of considering Miss Q’s contacts and complaints it had considered whether she might qualify for a good tenant award. Usually it expected tenants to make an application themselves for this award.
Was there fault by the Council?
We recognise that the demand for social housing far outstrips the supply of properties in many areas. We normally will 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.
The medical priority applications The Council has accepted a delay in considering Miss Q’s request for a review of its decision on her application for an increased medical priority. And then another delay in considering Miss Q’s second medical priority application. Those delays were fault.
When the Council did consider the applications, it did not increase Miss Q’s priority. Those were decisions for it to make on their merits, so are not ones we can criticise.
The overcrowding The Council has assessed the space Miss Q’s family needs against both its own local definition and the nationally set criteria. While this does not match how Miss Q and her family use the flat, the Council was not at fault in carrying out the assessment in this way. So I cannot uphold this part of the complaint.
The social welfare panel referral The Council accepts it did not act upon a referral from a Councillor in May 2021. That referral names Ms N, but not Miss Q.
The Councillor made a new referral in October 2021. That led the Council to granting Miss Q band 2 welfare priority. But the Council also sought evidence that allowed it to award Miss Q a good tenant status on its register before then. I see no fault in its consideration of that increased priority.
Did the fault cause an injustice?
The delay in the medical priority referral will have caused Miss Q some unnecessary time and trouble. It will also have been frustrating for her. But the injustice for this fault is limited by the fact that, when the Council did consider the extra information, it did not increase her priority.
Agreed action
I recommended that, within a month of my final decision, the Council should: apologise to Miss Q for the avoidable delays in looking at her medical priority applications; make Miss Q a symbolic payment of £100 as a recognition of the unnecessary time and trouble and frustration the delays will have likely caused her.
The Council has agreed to my recommendations
Final decision
I uphold the complaint. The Council has agreed to my recommendations, so I have ended my investigation.
Investigator's decision on behalf of the Ombudsman