• The complaint
• What I have investigated
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision
• Parts of the complaint that I did not investigate

The Ombudsman's final decision:

Summary: Mr C complains the Council failed to respond to his housing register application in a timely manner. He complains the Council failed to fully consider whether he should be awarded priority on medical or overcrowded grounds. We find the Council at fault. This caused Mr C distress and uncertainty. To remedy the injustice, the Council has agreed to apologise to Mr C, make him a payment and review its decision. The Council has also agreed to make several service improvements.

The complaint

1. The complainant, who I shall refer to here as Mr C, complains about the Council’s handling of his housing register application. He says the Council:
   • 1. failed to respond to his housing register application in a timely manner. He said he sent his application in July 2019 and it took the Council two years to provide its response;
     2. incorrectly refused his housing register application. He said he applied due to overcrowded living conditions and also for priority on health and medical grounds;
     3. lost his request for a review of the decision made about his application. To date, he says he has still not received a review decision from the Council; and,
     4. failed to consider the overcrowded living conditions that he and his family are living in.
2. Mr C says he is living in overcrowded living conditions, which means he sleeps in the living room. His brother, who Mr C says is deaf and vulnerable, lives with them and Mr C’s mother is his brother’s carer. He says his living conditions and the Council’s decisions have affected his existing mental health conditions.
3. Mr C says he has gone to time and trouble complaining to the Council and chasing it for a response.

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What I have investigated

4. Mr B complains about matters dating back to July 2019. The last section of this decision explains the reasons why I have decided to investigate matters from January 2020 to May 2021.

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The Ombudsman’s role and powers

5. 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)
6. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. 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)

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How I considered this complaint

8. I have considered all the information Mr C and the Council sent me.
9. Mr C and the Council had an opportunity to comment on my draft decision. I considered all comments received before making a final decision.

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What I found

What should have happened

Housing allocations

10. 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))
11. 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))

12. The council must write to the applicant with its decision, setting out its reasons and explaining their right to request a review of the decision.

The Council’s housing allocations scheme (2016 and 2020)

13. This Council prioritises applications to its housing register using three priority bands.
14. Band 1 is the highest priority and includes those who are prioritised for housing based on medical needs. Band 2 is the next priority level and includes those who live in overcrowded accommodation or who are homeless. Both of these bands are divided into groups A and B. Those in group A within the band have priority over those in group B.
15. The Council’s scheme says Band 1 and Band 2 are considered its housing needs bands. They must be given to applicants who have “reasonable preference” or have been given “additional preference” because of serious medical, emergency or social and welfare problems. Examples of the types of banding and groups awarded are as follows:

• Band 1, Group A - emergency priority: this may be awarded by a senior manager or the Housing Management Panel based on the individual circumstances of the household. It will usually consist of a combination of exceptional social/welfare/safety/ medical and urgency factors affecting an applicant or their household that cannot be adequately dealt with within the normal rules of the Allocations Scheme.
• Band 1, Group B – medical priority: a decision is made by a lettings officer following a health assessment and recommendation by a Health Advisor.
• Band 2, Group A – overcrowded: a decision will be made by a lettings officer based on an assessment and check of the applicant’s circumstances. Single applicants lacking a room of their own will be included in this category. This includes applicants who have been found to be homeless, but who are not considered in priority need.

16. Band 3 may be given to applicants with no defined housing need. This means they are mainly registered for housing advice as the chance of successfully bidding on social housing is small. The Council’s scheme says:

the Council permits some homes to be made available to applicants in Band 3 … to meet local Tower Hamlets needs. The law allows for this as long as the amount of property set aside for this purpose does not dominate the scheme.

Local connection requirement

17. The Council’s housing allocations scheme says applicants should normally have a local connection. This means the applicant should have lived in the borough continuously for the last three years at the point of registration. The scheme says the applicant cannot claim a local connection because they have employment or relatives in the borough.
18. Where an applicant in housing need does not meet the three-year continuous residence requirement, their application can be accepted and placed in Band 2, Group B. An example would be a homeless applicant in priority need where the Council has accepted a duty to assist them, but they have not been resident in the borough for three years continuously.
19. When applicants in Band 2, Group B have lived continuously in the borough for three years, their application will be moved to Band 2, Group A and given a new preference date. This will be the date they qualified for Band 2, Group A.

What happened

20. In July 2019, Mr C first applied to join the Council’s housing register. He said he was sleeping in the living room of his mother’s two-bedroom property, which she was privately renting. He said he had moved there in June 2014. Mr C said he had depression and chronic anxiety, which were seriously affected by where he was living.
21. At the beginning of January 2020, Mr C complained to the Council about the handling of his housing register application from July 2019. He said he had sent all documents requested by the Council many times, but the Council said it could not access the electronic files in the format Mr C had sent them in. He said the Council then asked him to send hard copies of the documents instead. Mr C complained the Council still had not responded to his medical priority application.
22. At the end of January, the Council sent its stage one complaint response to Mr C. It said it still needed certain proof of residency from Mr C. It gave Mr C a list of documents it had received and clarified the additional documents it still needed from him. It said it could not proceed with assessing his application until it had received the requested documents.
23. In March, Mr C applied to the Council’s housing register again. He said:

• he had depression and chronic anxiety;
• he was living in a severely overcrowded two-bedroom property. He lived with his mother and brother who was disabled. He said his mother provided fulltime care for both Mr C and his brother;
• he said his housing situation was significantly affecting his health. He said having his own home with a carer would help improve this; and,
• he provided his GP’s contact details.

24. At the beginning of April, the Council confirmed it had received Mr C’s application and would aim to make a decision in eight weeks.
25. At the end of April, the Council wrote to Mr C. The Council said:

• it had decided not to award housing priority on medical grounds;
• it was still waiting for more proof of residency from Mr C’s.

26. In May, Mr C sent the Council a second piece of proof of identity that the Council had asked for. He sent a bank statement to support his proof of residence.
27. At the beginning of June, the Council wrote to Mr C to say it still needed certain documents to assess his application. It said it needed:

• two more documents for the period between July 2018 to July 2019;
• one document for the period between July 2017 to July 2018; and,
• one document for the period between July 2016 to July 2017, but this should not be a bank statement.

28. Two days later, Mr C sent the Council a bank statement and a payslip.
29. At the end of June, the Council said the documents provided were not sufficient. It said Mr C still needed to send it one document for each of the above time periods to show continuous residency.
30. Mr C replied to ask what kind of documents the Council needed to confirm proof of residency. He said he only had payslips and bank statements, which he said he had already provided the Council for the time periods covered.
31. The Council replied with a list of other document types to send.
32. At the beginning of July, the Council wrote to Mr C to say his application had been cancelled. This was because it said Mr C had not provided the necessary information to show three years continuous residence. It said Mr C had 28 days to request a review of this decision.
33. In August, Mr C requested a review of the Council’s decision to cancel his housing application. He said he had explained to the Council that he could not provide certain documents, such as utility bills, as the tenancy was in his mother’s name. He said the Council had failed to consider and make a decision on his medical application.
34. In February 2021, the Council sent Mr C its review decision. It apologised for the unacceptable length of time it had taken the Council to carry out the review. However, the Council upheld its decision to cancel Mr C’s application. The Council provided details of an online tool that would give him information about housing options in the Council’s area.
35. In March, Mr C replied to the Council to say the Council had failed to review his medical priority application.
36. Three days later, the Council replied to Mr C. It said it had not reviewed Mr C’s medical application decision because he no longer had an active housing application.
37. In April, Mr C asked the Council to consider his complaint under stage two. He complained about the Council’s handling of his housing register application.
38. In May, the Council sent its stage two complaint response. It said a stage two complaint should not be used as a way of overturning a decision that has its own appeal process. This is why, in July 2020, the Council told Mr C he should consider requesting a review of the Council’s decision to cancel his application.
39. However, the Council accepted there had been unacceptable delays in sending Mr C the appeal decision. It said this was due to staff shortages caused by sickness absences. The Council apologised for this.
40. Mr C complained to the Ombudsman.

Analysis – was there fault by the Council causing injustice?

Council’s decision on local connection

41. In February 2021, the Council sent Mr C its review decision.
42. The Council upheld its decision to cancel Mr C’s application. It said this was because it had received an undated letter from Mr C’s mother saying Mr C had left her property in 2017 and returned in October 2019. The Council said Mr C had said on his application form that he had been continuously resident at his mother’s address since 2014, but the evidence the Council had did not support this. It said Mr C was unable to prove, based on the letter from his mother, that he had been resident in the Council area for three years since July 2017. This is a decision the Council was entitled to make. It had received conflicting evidence about Mr C continuous three years residency in its area. However, it fully explained to Mr C why, after considering all evidence provided and its own checks on residency, it could not accept that Mr C had met the residency requirements. I do not find the Council at fault here.
43. However, the Council was at fault for the time it took to make this decision.
44. The Council apologised in February 2021 for the time it took to respond to Mr C’s review request from August 2020. This delay is fault which the Council has accepted. This delay caused Mr C uncertainty.
45. The Council has explained the delays in its review decision were due to sickness absences. I have seen no evidence that the Council lost Mr C’s review request from August 2020. I do not find the Council at fault here (part c of the complaint).
46. Based on the evidence I have seen, the Council received confirmation from a benefits advisor in November 2019 that Mr C had returned to lived with his mother in October 2019. The letter from his mother confirming this and that Mr C had left her home in 2017 is undated. However, in my view, the Council had sufficient information by the time of Mr C’s complaint in January 2020 to make enquiries with Mr C’s mother about any time period he was not living with her prior to October 2019. By this point, it was clear Mr C was struggling to provide the necessary proof of residence. If the Council had carried out its own checks in a timely manner, then, on balance, it is likely the Council would have made its decision on residency much sooner. The Council’s failure to do so is fault, which caused Mr C uncertainty. He was put to unnecessary time and trouble providing documents over 2020 that would not change the Council’s decision (part a of the complaint).

Council’s decision on medical priority and overcrowding

47. In January 2020, Mr C complained the Council had failed to make a decision about his application for priority on health grounds.
48. At the end of January, the Council replied to say it still needed documents confirming Mr C’s continuous residency. However, the Council failed to respond to Mr C’s complaint about its failure to decide on his medical priority. This is fault.
49. As explained above, under the Council’s housing allocations scheme, where the Council decides an applicant is in housing need, but does not meet the three-year continuous residence requirement, their application may be accepted and placed in Band 2, Group B.
50. It is my understanding, therefore, that when the Council first received Mr C’s housing register application, it should have considered whether Mr C had a housing need, which meant he could be place in Band 2, Group B. The Council should have made this decision while it decided on Mr C’s continuous residency or when refusing this. I have seen no evidence the Council considered this when making decisions about Mr C’s housing register application. This is fault. This caused Mr C uncertainty and distress.
51. In March 2020, Mr C sent the Council a fresh housing register application. In my view, Mr C applied on two grounds that required the Council to consider whether he had a housing need and so could potentially be placed in Band 2, Group B in the absence of proving a local connection.
52. Firstly, Mr C applied for medical priority. Mr C provided information on his mental health conditions.
53. In April 2020, the Council wrote to Mr C to say it had decided not to award housing priority on medical grounds. It said its medical advisor had made the following recommendations: “Matters relating to overcrowding, noise/environmental factors, anti-social behaviour, lift breakdowns, disrepair and damp are not health issues and usually will not be considered when and assessment is made by the Health Advisor for medical priority. … The applicant has a history of depression and anxiety. There is no evidence of a permanent disability or severe long-term limiting illness in this case and hence no priority applies.”
54. The Council’s housing allocations scheme says a lettings officer will make decisions on medical priority applications. However, the Council’s decision here does not show whether it assessed how Mr C’s mental health or disability affects Mr C on a day-to-day basis and how his housing affects his health or quality of life, which is required under its scheme. This also states the letting officer may take into account other non-medical factors affecting Mr C or members of his family. Mr C said he is sleeping in the living room, but it is not clear whether the Council has considered this when making its decision.
55. The Council should have reached its own view, based on all the circumstances of Mr C’s case. Instead, the Council has adopted the medical adviser’s advice as its own. This is fault. This caused Mr C distress and uncertainty.
56. The Council told me Mr C had not provided evidence of any treatment, including specialist treatment, or prescribed medication to support his anxiety and depression. It said Mr C, therefore, did not meet its threshold for having a severe, long-term limiting illness or permanent and substantial disability.
57. However, I find the Council failed to include these reasons when it made its decision in April 2020. This is fault. This meant Mr C missed out on key information that could have helped him understand the decision and consider what further evidence he could provide when requesting a review of this decision.
58. Secondly, Mr C applied for overcrowded priority. Mr C explained on his application that he lived in a two-bedroom property with his mother and brother. He said he was sleeping in the living room and did not have access to his own bedroom.
59. As explained above, Band 2, Group A potentially includes single applicants lacking a room of their own. As it is Band 2, this is considered a housing need that should be considered for Band 2, Group B priority when a local connection is not proven. I have seen no evidence the Council has considered this part of Mr C’s application. There is no evidence a lettings officer carried out an assessment and check of Mr C’s circumstances, as stated in his housing application, to decide whether Mr C fell within this housing need. This is fault. Mr C has missed out on the Council considering his application for overcrowded priority. This has caused him distress and uncertainty.
60. Based on the above identified fault by the Council causing injustice, I have decided to uphold parts b and d of Mr C’s complaint.

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Agreed action

61. Within four weeks of my final decision, the Council has agreed to:
    • 1. apologise in writing to Mr C for the fault causing injustice;
      2. review Mr C’s housing register application for medical priority and overcrowded priority. The Council should ask Mr C if he wishes to submit any new evidence about his medical conditions or provide details of health care professionals he would like the Council to consider contacting. The reviewing officer should also be given a copy of this decision statement and all the evidence already submitted by Mr C. It should inform Mr C in writing of its decision, explain the reasons, and send us a copy of the letter. If the Council decides to award Band 2, Group B priority, the Council should consider backdating this to an appropriate priority date and consider whether Mr C has missed out on any offers of accommodation. If so, the Council should make Mr C an offer; and,
      3. make a payment to Mr C of £200 to recognise the distress and uncertainty caused. I have considered the Ombudsman’s published guidance on remedies when recommending this.
62. Within three months of my final decision, the Council has also agreed to:

• circulate guidance to staff on the need to provide clear reasons to applicants on medical priority decisions, which explains how it has weighed any conflicting evidence from applicants or health professionals involved with the applicant’s care and its own medical advisers. The Council should review any template letters to ensure there are clear directions on when it is necessary for staff to include such reasons;
• circulate a reminder to staff on the need to consider whether an applicant has a housing need under its allocations scheme and may qualify for Band 2, Group B priority while an applicant has not proven a local connection; and,
• share this decision with relevant staff.

63. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

64. I have completed my investigation.
65. I have decided to uphold parts a, b and d of Mr C’s complaint. This is because there is evidence of fault by the Council causing injustice. The above recommendations are suitable ways for the Council to remedy this, which it has agreed to.
66. I do not uphold part c of Mr C’s complaint. This is because I have not seen evidence of fault by the Council causing injustice.

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Parts of the complaint that I did not investigate

67. Mr B complains about the Council’s actions dating back to July 2019.
68. The law says we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
69. Mr C complained to the Ombudsman in May 2021. In Mr C’s case, I consider he could have complained to the Ombudsman sooner if he wished to raise matters dating back to July 2019 and the handling of the documents he had tried to send the Council in support of his housing register application.
70. However, given the delays in the Council making its review decision in February 2021 (see above), I consider an investigation from January 2020 is justified and fair.

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Investigator's decision on behalf of the Ombudsman

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