Summary: The Ombudsman found fault by the Council on Ms L’s complaint about how it processed her housing application. It delayed processing it, has an allocation scheme which does not explain whether officers assess studio flats as a bedroom, failed to consider whether her accommodation was statutory overcrowded or whether officers should take a homeless application from her. It failed to properly consider all her circumstances when removing her housing and well-being points. The agreed action remedies the injustice caused.

The complaint

1. Ms L complains the Council failed to:
1. follow the correct process when assessing her housing need and allocations priority; and
2. explain the reasons for its decision making.
2. As a result, she and her son live in overcrowded conditions which affects their wellbeing.

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The Ombudsman’s role and powers

3. If we are satisfied with a council’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)
4. 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)

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Council housing allocation policy (Amended December 2020)

5. The Council uses a point system for assessing applications for housing. Points are awarded to measure an applicant’s housing priority by their circumstances. Due to a severe shortage of housing, only applicants with 100 points or more can bid for accommodation.
6. The Council assesses the number of bedrooms a household needs and compares this with the number of rooms currently available for the sole use of the applicant which could be used as bedrooms in their existing accommodation. It counts any other room as a bedroom apart from bathrooms, toilets, and kitchens for example. It excludes one living room per property so any additional room such as a secondary living room/dining room will be counted as a bedroom. (paragraph 9.3)
7. The Council works out the size of the home suitable for an applicant and their household. It calculates the number of bedrooms a household needs by awarding one bedroom for the applicant and one for any additional person. (paragraph 3.2)
8. Health and wellbeing priority is considered where an applicant, or household member, has a long-term health and wellbeing issue affected by their current housing. It is not considered where this a temporary health or common wellbeing issue, such as asthma. (paragraph 9.4)
9. The level of health and wellbeing priority is assessed as ‘high’ (where an applicant has an urgent need to move because housing conditions could put their life at risk otherwise, for example), ‘medium’ (where the need to move is less urgent and not life threatening but living conditions are unsuitable and if left unresolved, their quality of life will deteriorate) and ‘low’ (where living conditions cause them difficulty in carrying out their daily activities but is not life threatening nor would cause greater harm or progression of the illness if they did not move). No health and wellbeing points are given if the applicant or member of their household is waiting for the outcome of a medical condition if it is unclear how they will be affected in the long term. (Appendix B)
10. Under the Council’s Points Summary Table, applicants who meet the following criteria qualify for specific points:

• Homeless or threatened with homelessness: 50 points for those owed the main homelessness duty; and
• Overcrowding: 150 points where 2 bedrooms are lacking. (Appendix A)

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How I considered this complaint

11. I considered all the information received from Ms L, the notes a colleague and I made of our telephone conversations, and the Council’s response to our enquiries, a copy of which I sent Ms L. I sent a copy of my draft decision to Ms L and the Council. I considered their responses.

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What I found

12. Ms L joined the Council’s housing register in June 2020. The Council assessed her as lacking a bedroom. She is unhappy because despite living in a privately rented studio flat with her 11-year-old son, the Council decided to award her no points under its allocation scheme for overcrowding. Nor is she happy with the award of 50 points for low medical priority or the accommodation being more than 2 miles from her son’s school.
13. The overcrowding affects her son particularly because he has no other room in which to study or socialise with friends. Ms L says she sleeps on the floor which does not help her medical condition for which she is likely to need surgery.
14. In August, records show her documents were waiting to be checked. The following month these were checked, and the Council asked Ms L to provide bank statements. It also needed to carry out a medical assessment.
15. In October, a medical assessment awarded her 50 points for low health and wellbeing priority under its allocation scheme. It said an extra bedroom was not essential and a bedsit was suitable.
16. The case notes for November records her application as ‘case authorised’ and as ‘one bedroom lacking as resides in studio’.
17. In December, the Council introduced a new housing allocation scheme. It re-assessed her under it and confirmed her award of 50 points. It explained under its new scheme, she could only bid for accommodation if she had more than 100 points. As she had fewer than this, it suspended her application. The Council also explained her medical evidence was considered by its medical assessment officer. It does not contract out medical assessments but has its own in-house medical assessment officer who decides health and wellbeing assessments.
18. In January 2021, the Council decided her review request of its decision to only award her 50 points. It did not uphold it.
19. The following month, Ms L confirmed she was waiting for surgery and was still sleeping on the floor. She told the Council that after surgery, she would not manage the stairs to her first floor flat or continue to sleep on the floor.
20. In April, the Council decided to no longer class studio flats as a bedroom but as a living room instead. This meant Ms L was eligible for points for lacking 2 bedrooms rather than just one bedroom.
21. In June, her application was referred to the Council’s medical officer for assessment as she sent further medical information. The same month, it increased her housing points to 200 points, made up of 50 points (low health and welfare) and 150 points (lacking 2 bedrooms). This meant Ms L could now bid for accommodation as it took her over the 100-point threshold.
22. The same month, when verifying her change of circumstances, the Council took all the points off but added them back. It notes when updating the system to show her lacking 2 bedrooms, this removed the 50 points for a short period.
23. In response to our enquiries about why it changed its position about studios, the Council explained neither the previous nor current allocation policy gave guidance about how to consider studio flats. It always viewed them as a bedroom, rather than a living room. When the new allocation was introduced, several applicants questioned this approach.
24. The Strategic Housing Allocations Board considered this issue in March. It decided single applicants and couples are adequately housed in a studio flat but applicants with children will now be assessed as needing at least 2 bedrooms. The Council confirmed no reports or documentary evidence was presented to the Board. It was a discussion based on issues reported by staff.
25. In September, the medical assessment officer carried out a health and wellbeing outcome assessment. This took account of the medical evidence she sent between April and August 2021. The assessment recorded her waiting for the outcome of a medical condition, and it was unclear how she will be affected in the long term. The Council awarded no additional points but instead, removed the 50 health and wellbeing points leaving her with 150 points.
26. It did this because points are not awarded where an applicant is waiting the outcome of a medical condition if it is unclear how long they will be affected in the long term.
27. In response to our enquiries, the Council accepted failing to promptly respond to some of her correspondence and delayed assessing her application for which it apologised.

Analysis

Delay

28. Ms L applied to go on the housing register in June 2020. She provided copy documents the Council asked her for in August. The following month, the Council asked her for more documents and asked the medical assessment officer to consider her needs. In October, the medical assessment awarded her 50 points and the following month, Ms L provided the Council with copy bank statements it asked for. It took the Council until November to decide her application.
29. The Council explained delays happened with her application because it was still adjusting to new working practices because of Covid-19 restrictions at the time, the introduction of the new IT system, staff shortages, all of which led to a large number of applications to process. It took on 2 temporary workers to help clear the backlog in October. The Council accepts there were delays dealing with her application and responding to correspondence.
30. I am satisfied the Council delayed processing her application. It took 5 months (about 20 weeks) for it to reach a decision on it. I would normally expect a council to process a housing application within 4-6 weeks. I am satisfied the delay caused Ms L an injustice in the form of distress (frustration and inconvenience, for example). In considering her injustice, I took account of the impact the Covid-19 restrictions had on the Council as well.

Overcrowding

31. I make the following findings on this complaint:
1. When Ms L applied for housing, the Council’s previous Housing Allocation Scheme (November 2015) was in place. This said a single parent with a child of any age is entitled to two bedrooms. When setting out information about the bedroom size of homes in the borough, it referred to ‘Studios and one bedroom homes’. I consider this supports what the Council said about viewing studios as one-bedroom homes.
2. Under the new allocation scheme, Ms L was entitled to 2 bedrooms, one for her and one for her son. The scheme says it will count any room as a bedroom except bathrooms, toilets, kitchens, and utility rooms. It excludes counting one living room in a property as a bedroom. The Council decided the studio flat counted as one bedroom which meant she lacked one bedroom. Under the new scheme, Ms L received no points for lacking one bedroom as a private tenant. She would only qualify for points if she lacked 2 bedrooms.
3. I consider the new scheme failed to make clear how it assesses studios. The current scheme is silent about how it deals with studio flats in terms of bedrooms available to an applicant. Studios, by their very nature, are a hybrid of a kitchen, living room, and bedroom.
4. This lack of clarity resulted in officers counting Ms L’s studio as a bedroom even though this was not set out in the new scheme. I consider the lack of clarity caused her an injustice. Ms L lost the opportunity to bid for properties earlier than she did.
5. The Council explained it writes to landlords to ask for confirmation of the size of a property, checks with the revenues and benefits team about who occupies it, and if necessary, carries out a home visit. The Council provided no evidence of contacting the landlord to assess the size of Ms L’s studio flat to decide whether it was statutory overcrowding, for example.
6. Calculating whether there is statutory overcrowding involves looking at the room standard and the sex of those sleeping in the same room. A home is overcrowded by law if:

• 2 people of different sex must sleep in the same room, and they are both aged 10 or over. Any room they can sleep in counts, not just bedrooms. Ms L only had a studio flat which is a combined kitchen/lounge/bedroom; and
• the space standard is breached. To calculate this, the number of people are counted (anyone over 10 counts as 1 person), and the number of rooms. Rooms under 4.6 square metres do not count, and nor does a bedroom or living room.
7. The law says no 2 people over 10 years of age, of the opposite sex unless a couple, should have to sleep in the same room. I found no evidence of the Council considering whether Ms L and her son met the statutory overcrowding standards. This is fault. I am satisfied this caused her an injustice. She has the uncertainty of not knowing whether her accommodation meets the statutory overcrowding standards.
8. I am also satisfied the Council failed, when it received her application to join the housing register, to consider whether it needed to take a homeless application from her. This is because an applicant must be treated as homeless, regardless of availability and legal rights to occupy accommodation, if it is unreasonable for them to continue to occupy the accommodation. (section 175 (3) Housing Act 1996)
9. Accommodation can be unreasonable to continue for a number of reasons, including overcrowding. Whether it is reasonable to occupy accommodation is not limited to statutory overcrowding but, to non-statutory overcrowding too. (R v Westminster CC ex parte Alouat [1989)
10. The Homelessness Code of Guidance for Local Authorities (February 2018) says overcrowding needs considering within the context of the general housing circumstances in the area. (paragraph 6.27)
11. I consider the Council’s failure to consider whether it needed to take a homeless application from Ms L caused her an injustice. She has the uncertainty of not knowing whether the Council might have decided she was homeless and owed a duty to find her accommodation.

Health

32. I make the following findings on this complaint:
1. I am satisfied the Council considered the medical evidence Ms L provided, sent it to the medical assessment officer, and initially decided to award her 50 points for low medical priority. It was entitled to reach this conclusion after properly considering the evidence.
2. The Council accepts there was an error which led to the brief removal of these points when it updated her application. This was fault but was put right relatively promptly.
3. I also considered Ms L’s complaint about the removal of 50 points by the Council in September 2021. The medical officer decided she had no health and wellbeing priority because she is waiting, ‘the outcome of a medical condition if is unclear how they will be affected in the long term’. This decision was made a couple of weeks before an appointment she had at hospital for further treatment.
4. I saw the evidence on which the Council reached its decision. This is in the health and well-being outcome form completed by the medical assessment officer. This noted the treatment Ms L had received a few months before. A consultant said conditions like Ms L’s resolved themselves over time but hers was taking longer than usual. The hospital would repeat her treatment again and if nothing further was needed, she had the option of surgery. The evidence also noted, ‘Treatments are ongoing outcomes are not known’.
5. I consider the decision to remove the 50 points failed to properly consider Ms L’s circumstances will only change if the treatment she is receiving succeeds. It also failed to consider how long it might take for the outcome to become known.
6. If the treatment fails, which is possible as the hospital has tried it twice already, she may need an operation. Should she need an operation, Ms L may well face a long wait for this to take place. In addition, the evidence noted her consultant saying an operation resolves the condition in 95% of patients. Even with an operation, therefore, there is a chance she could still suffer from this condition in the long term.
7. I consider the decision failed to properly consider Ms L’s circumstances will only have changed should the treatment or operation succeed. At this point, she would lose entitlement to the 50 points because the outcome of her condition would then be known. Her condition may never get resolved or may take a long period of time to resolve with the help of an operation. I consider her situation is different to a person who broke a leg in an accident, for example, as the outcome of that condition could be known much sooner than Ms L’s might. Nor have I seen any guidance about how medical assessment officers should consider applying this part of the scheme.
8. I am satisfied this decision amounts to fault and causes Ms L an injustice. She has the uncertainty of not knowing whether she would have successfully bid for a property but for this decision. She has also lost the opportunity to bid for some properties because of this reduction in the number of points awarded which has caused her some stress and frustration.

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Agreed action

33. I considered our guidance on remedies. I also considered the impact the Covid-19 restrictions had on the Council, the new computer system it introduced, and staff shortages.
34. The Council agreed to carry out the following within 4 weeks of the final decision on this complaint:
1. Send Ms L a written apology for its failures to: process her housing application without unnecessary delay; ensure its housing allocation scheme provided proper guidance about how to assess studios; consider whether she might be in statutory overcrowded accommodation; consider whether it should take a homeless application from her; properly consider her circumstances when removing the housing and well-being points.
2. Pay £750 to Ms L for the injustice the identified fault caused.
3. Consider what additional action it might need to take to avoid future delays with the processing of housing applications.
4. Consider whether it needs to include a reference to how it assesses studios when it next reviews and amends its housing allocation scheme.
5. Ensure officers are reminded of the need to consider and show, where appropriate, whether an applicant’s accommodation and circumstances meet the statutory overcrowding standards.
6. Officers should consider whether her accommodation and circumstances meet the statutory overcrowding standards.
7. Remind officers of the need to consider whether an applicant’s circumstances and accommodation justifies the taking of a homeless application.
8. Officers should consider whether Ms L’s circumstances justifies taking a homeless application from her.
9. Reconsider its decision about removing her housing and wellbeing points.
35. I have noted the following having received the Council’s response to my draft decision:

• The Council does not currently have a backlog of housing applications;
• In terms of the homeless application, the Council confirmed it raised an application for Ms L and an officer will shortly be in touch with her; and
• It has reviewed its practice and provided guidance to officers about not removing housing and wellbeing points from applicants before their long-term condition is known.

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Final decision

36. The Ombudsman found fault on Ms L’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman