The Ombudsman's final decision
Summary: Miss E complained the Council failed to properly deal with her housing situation. She says it said it would provide her with a direct housing offer in response to her complaint, but this has not happened. She also says the Council has not properly considered the occupational therapy report when completing the medical assessment. We find the Council’s failure to provide a proper housing allocations service has caused Miss E some uncertainty over whether she would have secured more suitable accommodation sooner. The Council was also misleading in its complaints response about whether she would have been the highest bidder for a property she identified. The Council has agreed to our recommendations to address the injustice caused by fault.
The complaint
Miss E complained the Council failed to properly deal with her housing situation. She says the Council said it would provide her with a direct housing offer in response to her complaint, but this has not happened. She also says the Council has not properly considered the occupational therapy (OT) report when completing the medical assessment.
Miss E says the Council’s failings have caused her significant distress.
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) 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 considered information from Miss E. I made written enquiries of the Council and considered information it sent in response.
Miss E 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 previous lettings policy The Council’s previous lettings policy came into effect on 1 July 2016 and ended on 30 September 2021.
The lowest priority applicants were placed in the General band. Applicants who were assessed as lacking two or more bedrooms were placed in the Urgent band.
The Council’s current lettings policy The Council’s current lettings policy came into effect on 1 October 2021.
Applicants that have a significant housing need, such as living in overcrowded accommodation, will be placed in Band B.
The Council may award medical priority when there are long term medical conditions. The applicant will need to demonstrate their medical condition is being caused or made worse by their housing conditions, the current property cannot be improved at a reasonable cost and rehousing is likely to significantly improve their medical needs.
Officers will take an evidence-based approach and seek the input of independent medical practitioners. The existence of a medical condition is not in itself enough to qualify for medical priority; the key issue is whether the current accommodation is significantly amplifying the impact of the condition.
What happened Miss E is a council tenant. She was in the General band on the Council’s previous lettings policy and was eligible to bid for two-bedroom properties.
Miss E was living in a one-bedroom property with her two children. She contacted the Council in October 2020 and provided information about the birth of her third child.
The Council was subject to a cyber-attack a few days later. It lost access to its systems and therefore could not update Miss E’s change in circumstances.
Miss E complained to the Ombudsman about the Council’s failure to update her change in circumstances. We found the Council failed to provide a proper housing allocations service as it could not update her application and she could not submit her medical information for assessment. However, we said there was no evidence she missed out on any suitable properties.
Miss E complained to the Council again after we issued our final decision. She said it had delayed dealing with her medical information.
The Council responded to Miss E’s complaint. It said it had received her medical information and it would send it to the medical adviser. It also explained the cyber-attack had caused significant disruption to its day-to-day services.
Miss E referred her complaint to stage two of the Council’s complaints procedure. She identified two properties she felt it was likely she would have been eligible for if it had updated her change in circumstances.
Miss E sent the Council further information about her children’s health issues in January 2022. She also sent an OT report. The therapist stated her son was at risk of falling in the property. She said he had limited safety awareness, but it was being managed by constant parental supervision. She recommended for Miss E and her children to ideally live on the ground floor, but if there were stairs there should be lift access. She also said the next property should have no access to balconies, walkways with open balconies or stairwells.
The Council wrote to Miss E on 1 February. It said it had now updated her housing application and she needed a three-bedroom property. It placed her in Band B under its new lettings policy, with a band date of 8 July 2020.
The Council sent a further letter to Miss E on the same day. It said her application for medical priority was unsuccessful. The medical adviser did not refer to the OT report in her assessment.
Miss E emailed the Council and asked why it had not referred to the OT report. The Council agreed to complete a reassessment.
The Council responded to Miss E’s complaint on 10 February. It said if it had updated her details on the waiting list sooner, and she had placed a bid for the property she referred to in her complaint, it is likely she would have been the highest bidder. It agreed to make a direct offer for a similar property (three-bedroom property located on the second floor or above) within the same area. It said she should contact its performance offer if she was interested in the direct offer.
The Council re-assessed Miss E’s medical information. The medical adviser referred to the OT report and said although there was a high level of risk in the property, it was not likely to occur in normal circumstances. She also noted locks were being placed on the windows to prevent accidents. She said there were no compelling reasons to award medical priority.
Miss E contacted the Council in April about the direct offer. The Council asked which officer discussed the direct offer with her. Miss E replied with the information. She said she was concerned her communication with the performance officer was not sent to relevant officers.
The Council responded to Miss E. It said the agreement of a direct offer placed her on a list and an offer would be made in line with her band date and the availability of suitable accommodation. It also confirmed the direct offer would be similar to the property she may have missed out on. It sent a further email and said she was in sixth place on the direct offer list and the estimated waiting time for residents on the direct offer list needing a three-bedroom property was 12 to 18 months.
Miss E sent the Council properties she was interested in. The Council responded and set out the direct offer process. It said when a direct offer is agreed, it will categorise the applicant according to assessed need. It places applicants in order of when the direct offer was agreed.
Miss E sent the Council further medical information. The Council reviewed it and issued a further assessment report. It did not award medical priority.
Analysis When the Council responded to Miss E’s complaint it said if she had bid on the property referred to, it is likely she would have been the highest bidder. The Council also re-iterated the same thing to me when it responded to my enquiries. The Council’s phrasing suggests it is likely she would have secured the property if it had been able to update her change in circumstances sooner.
The Council now says other residents were similarly affected by the cyber-attack and there is no certainty Miss E would have been the highest bidder if their applications or change in circumstances had been processed in a timely way. It says estimated waiting times for households in Band B needing a three-bedroom property is nine years. Miss E has been waiting just over two years.
I agree with the Council’s explanation there is no certainty Miss E would have been the highest bidder as other applicants were also affected by the cyber-attack. However, I find its complaints response was misleading. Its letter suggests it is likely Miss E would have been successful. This has raised Miss E’s expectations, which is fault.
The Council’s agreement to provide a direct offer goes some way in addressing Miss E’s injustice. However, it should also make a payment to Miss E. It suggested £500 during my investigation which I consider is suitable and in line with the Ombudsman’s guidance on remedies.
Miss E says it is likely she would have secured a property sooner if the cyber-attack had not happened. She says in the Council’s social housing consultation document from 2020 it said the wait for a three-bedroom property for applicants in the Urgent band was one year. She also says the Council told her in March 2021 she would be waiting approximately one year and five months from the date of its email for a property. She says she has now been waiting longer than this.
The waiting times for social housing are an estimate and fluctuate depending on the supply of available housing.
The document Miss E refers to from 2020 was based on the number of properties that became available from 2018/2019. This changed the following year as the number of properties that became available reduced, and therefore the waiting times increased. The Council also explained in its email from March 2021 that it did not have the accurate number of properties that became available in 2019/2020 and therefore it based its estimated waiting times on the number of available properties from 2018/2019. Therefore, its figures were simply a forecast. I do not accept from the available evidence there is any guarantee Miss E would have secured a property sooner.
Miss E says she is unhappy the Council has not provided her with a direct offer as agreed. The Council has explained there are five other residents ahead of Miss E on the direct offer list. Its lettings manager carries out weekly checks to see if there are any suitable three-bedroom properties available. The Council must award a direct offer in date order. Although I appreciate this is frustrating for Miss E, I find no fault with the Council’s approach.
Miss E says the Council has not properly considered the OT report when it completed the medical assessment. The medical adviser did not initially consider the report. It completed the assessment in December 2021, but it did not send it to Miss E until after she had sent the OT report. When Miss E asked for a reassessment, the medical adviser considered the report. The Council’s view is there are no compelling reasons to award medical priority. Although there are risks in the property, its view is it is being managed by parental supervision and with locks on the windows that have now been installed. This is a decision it is entitled to take.
Miss E says she wants the direct offer to match the therapist’s recommendations. The therapist said a ground floor property would be ideal, but if there are stairs there should be lift access. When the Council responded to Miss E’s complaint, it said the direct offer would be similar to the property she may have missed out on. This is a property on the second floor or above. As a result, the Council is putting Miss E in the position she would have been in had the service failure not occurred. As I have stated above, the Council considered the OT report but did not consider further recommendations or medical priority was required. If the Council makes Miss E a direct offer she is not happy with, she can ask for a suitability review.
Agreed action
To address the injustice caused by fault, by 7 December 2022 the Council has agreed to: Apologise to Miss E.
Pay Miss E £500 for her uncertainty and raised expectations.
Final decision
There was fault by the Council, which caused Miss E an injustice. The Council has agreed to my recommendations and so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman