Summary: Mr X complained the Council treated his family with bias and did not fairly consider his housing application from 2019 to 2022. The Council failed to award the family emergency priority for housing allocation for 9 months. The Council also failed to properly consider Mr X’s appeal against its decision to remove his emergency priority banding. The Council agreed to pay Mr X £1350 pounds to recognise the distress caused to him and his wife by remaining in a property that was a risk to their daughter’s life. It agreed to offer them the next available suitable property. The Council will also reconsider its decision on Mr X’s appeal and carry out staff training.

The complaint

1. Mr X complained the Council treated his family with bias and did not fairly consider his housing application from 2019 to 2022. Mr X stated the Council:
• failed to identify his family had emergency priority for housing allocation due to the risks posed to his daughter by his current property until October 2021; and
• unfairly removed the emergency priority when he declined a property that was not suitable for the family’s needs.
2. Mr X stated this caused his family distress and his daughter remained at significant risk of harm in their current property.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)

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How I considered this complaint

6. I read the documents provided by Mr X and talked to him about the complaint on the telephone.
7. I considered the documents provided by the Council in response to my enquiries.
8. I considered our Guidance on Remedies and our Guidance of Effective Complaint Handling for Local authorities; both are available on our website.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legislation

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. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.
13. Statutory guidance on the allocation of accommodation says:
• review procedures should be clear and fair with timescales for each stage of the process; and
• the review should be conducted by an officer senior to the original decision maker, or by a panel not including the original decision maker.

The Council’s allocation scheme

14. The Council’s allocation scheme sets out how it decides applicant’s priority when considering housing allocations.
15. A lettings officer can award ‘ground floor priority’ under Band 1 Group A after a health assessment has been completed. The date of the award is backdated to when the application for a medical assessment was made.
16. The health advisor completing the health assessment, usually an occupational therapist, can make recommendations about specific housing needs such as number of bedrooms.
17. The highest priority award is emergencies under Band 1 Group A. A senior manager can award this priority in certain circumstances, one of which is if there is a risk to life.
18. The emergencies award applies from the date the award was made. Applicants awarded emergency status are considered first for any suitable homes.
19. The policy states that if someone with an emergency priority refuses one offer of suitable accommodation from the Council their emergency priority will be withdrawn. The applicant can ask the Council to review that decision. The review will be completed by a more senior officer than the one that made the decision.

Good complaint handling

20. Our guidance on complaint handling states that an expression of dissatisfaction should not need to say it is a formal complaint to be considered a complaint. It further states the council should make sure it understands the complaint from the complainant’s point of view.

What happened

21. Mr X lived with his wife and two children Y and Z. He had a tenancy for a Council owned property on the seventh floor of a block of flats. Each floor has an external walkway that gives access to the individual front doors. The walkway has a barrier that is 1.2 meters high but is otherwise open. In 2014 Mr X applied for a housing transfer due to medical conditions that he and Mrs X suffered from. The Council accepted the application and awarded Mr X Band 3 (the lowest banding) priority. Mr X was then able to bid on properties.
22. In August 2019 Mr X requested a medical assessment of the family’s housing needs. Mrs X had suffered an incident leaving her with physical difficulties and Y had been diagnosed with severe autism.
23. An occupational therapist (OT) completed an assessment in October 2019 and noted Y had no sense of danger and required constant adult supervision. It stated that the family had to keep all the doors and windows locked. The OT recommended the family needed an additional bedroom and a ground floor property without a lift, or a second-floor property with a lift.
24. The Council wrote to Mr X in December 2019 and said that the family had a priority medical need. It stated the family required a lifetime home and the OT would need to view any property offered as it may require adaptations. It awarded a Band 1B medical priority and told Mr X of his right to a review of that decision. Mr X states that he did not receive this letter and was told verbally he was on the highest banding.
25. The Council stated it offered Mr X a property on the second floor in October 2021. Mr X declined the property as it did not meet his family’s needs. Mr X informed the Council that as Y grew, he and Mrs X were less likely to be able to prevent her from climbing on and falling from the seventh-floor walkway. The OT assessed the property and agreed it was not suitable for the family’s needs.
26. The Council completed a further OT assessment to consider Mr X’s ground for refusal. It recorded that living above the ground floor was not safe for Y. The Council awarded ground floor priority under Band 1 Group A with a start date of August 2019.
27. In an email to the Council in December 2021 Mr X set out that Y was physically very strong, when she was unable to control her emotions, she needed to be restrained by adults and that she loved to climb. Mr X feared he and Mrs X would be unable to restrain Y and she would climb over the seventh-floor walkway and fall to her death.
28. In January 2022 Mr X contacted the Council about properties he had bid on in Street A. He stated his current property was an immediate high risk to Y’s life. The Council responded and stated it could not take in to account the information Mr X had supplied and that he could contact another team. He was not allocated a property on Street A
29. Mr X contacted the Council in February 2022 and said the Council had told him he was on the highest possible priority. He said he had just been told of the emergencies priority and there was a high risk of Y losing her life living on the seventh floor. Mr X asked the Council:
• why he had not been allocated one of the properties he bid for in Street A;
• to consider the risk to Y’s life and its duty of care; and
• what his next steps would be to solve the issue.
30. The Council responded the same day and stated the banding was correct. It stated Mr X had been advised to keep the doors and windows locked and it was his parental responsibility to supervise Y outside at all times.
31. Mr X complained to the Council. He provided additional information about the risk to Y’s life from the open balcony outside the seventh-floor property. Mr X repeated the requests he made in February and asked the Council to send him the policy and regulations about the emergencies priority category.
32. The Council acknowledge the complaint and stated it would provide a stage one response. Mr X replied and requested it considered the matter at stage two as he had already complained and received a response.
33. The Council responded to Mr X at stage one in March 2022. It referred to Y as Mr X’s son throughout the letter. The letter:
• said Mr X did not say his previous contact was a formal complaint;
• apologised for the use of the term parental responsibility in its previous response;
• explained it had allocated properties in Street A to families in the same band (Band 1 Group A) but with an earlier preference date than Mr X’s family; and
• stated the OT would reassess the case and report to the assessment manager who would consider whether to award him the emergencies priority.
34. The Council completed a further OT assessment in March 2022. It stated there was a risk to Y’s life on the communal walkway. It confirmed the previous recommendations. It recorded that Mrs X struggled to physically manage Y due to her own health conditions. It said Y could be unpredictable and may run after something while outside the home.
35. Mr X complained to the Council at stage two about some of the recommendations the OT made in their report.
36. The Council reviewed the OT report and awarded the family emergencies priority. It backdated the award to August 2019, the date Mr X originally applied for additional priority.
37. The Council responded to Mr X at stage two. It explained the reasoning behind the OT’s recommendations and confirmed it had awarded Mr X emergencies priority.
38. Dissatisfied with the Council’s response Mr X complained to us in May 2022.
39. Before I began my investigation Mr X bid on a property in Street B in June 2022. He viewed the property with the senior OT. The OT report stated it was suitable for the family’s needs with some adaptations which the Council would complete.
40. Mr X initially accepted the property. He later contacted the Council and withdrew his acceptance. He said the property was on the corner of a busy main road which Y may run into from the front door. He said the road had not been busy at the time he viewed it with the OT, but he had since returned at various times of the day and realised the risk to Y.
41. The Council wrote to Mr X in July 2022 and told him that as he had refused a reasonable offer of accommodation it had withdrawn the emergency banding. It told him of his right of review of that decision.
42. Mr X appealed. He said:
• the property was not suitable for the family’s needs;
• since he accepted the property, he had visited at different times and found the traffic on the adjacent road to be heavy;
• Mrs X struggled to physically restrain Y alone due to her health needs; and
• he had not known the property number before bidding and could not consider the traffic levels beforehand.
43. The Council reviewed its decision to remove Mr X’s emergency priority banding in August 2022. It wrote to Mr X and explained how it considered his representations. It upheld its decision to remove the emergency banding and said:
• the property had three bedrooms, a garden and was on the ground floor and so it met the family’s needs;
• there was little traffic at the time of viewing;
• there was railing to prevent direct pedestrian access to the road;
• Mr X should have visited the property before he bid for it; and
• there were few homes in the area where traffic would not be an issue to some extent.
44. Street B is a side street off a main road. At one end there is a dead end and houses with front gardens. The other end is a T-junction with a busy main road. The property Mr X bid on and was offered is the corner property on that T-junction. The front door leads directly on to the pavement and there is a small railing to one side of the front door.

Additional information

45. The Council told me that had Mr X been given emergencies priority in October 2021 he would have been in position 1 for 61 properties that in theory, would have met the family’s needs. This would have included one of the properties on Street A.
46. In response to my enquiries the Council stated the emergency priority was always considered as part of the health assessment process. It states it was clearly explained on the allocation policy which is available on its website.

My findings

47. Mr X has lived in fear that his daughter is likely to climb on to a seventh-floor balcony and fall to her death, and that he and his wife would be unable to prevent it because of Mrs X’s health conditions.

Banding and priority

48. Mr X applied for a medical assessment of his family’s housing needs in 2019 and the OT made recommendations. The Council increased the banding from Band 3 to Band 1B in December 2019 and then awarded priority Band 1 Group A in October 2021. Mr X provided information to the Council about the family’s needs and risk to Y’s life in the OT assessment in October 2021, and in December 2021, January 2022, February 2022 and March 2022. The Council only considered whether to award emergencies priority after Mr X complained, twice. There is no evidence a senior manager considered the emergency priority before that. This was fault. Had the Council properly considered the outcome of the October 2021 assessment, it would have awarded Mr X emergencies priority in October 2021.
49. The Council said if Mr X had had emergencies priority in October 2021, he would have been in position one for 61 properties. Therefore, if the Council had acted without fault, it is likely the family would have moved into a property that met their needs much earlier. Instead, the family remained in a property considered to be a risk to Y’s life for longer than was necessary; 9 months in total. This caused ongoing distress to Mr and Mrs X.

Removal of emergency banding

50. We are not an appeal body, and I cannot question the Council’s decision just because Mr X does not agree with it. We consider whether there is fault in the way the Council made its decisions. If there was no fault in the decision making, we cannot question the outcome.
51. Mr X bid for and accepted a property that the Council considered met the family’s needs. He later withdrew his acceptance and provided his reasons. The Council removed his emergency banding in line with its policy. There was no fault in the Council’s actions.
52. When Mr X appealed that decision, as is his right to do, he provided a further explanation of his reasons. The Council did not properly consider Mr X’s points as set out below. The Council stated:
• the road was not busy at the time of the viewing - Mr X stated this and it did not negate the fact it was busy at other times;
• there were railings to prevent direct pedestrian access on to Street B and the main road - this is not the case;
• Mr X should have viewed the property before bidding - the property number is not provided before bidding and therefore Mr X could not know where on the street the property was situated, one end of the street is markedly different from the other; and
• There were few homes in the Council area where traffic would not be an issue – although this may be the case it does not mean that this property was suitable.
53. The failure to properly consider Mr X’s appeal was fault. It caused Mr X uncertainty about whether he would have retained the emergency priority had the Council properly considered his appeal.

Complaint handling

54. Mr X complained to the Council in February 2022. He clearly requested the next steps he could take to find a solution to the issue. The Council was unhelpful in simply reconfirming its decision and failed to recognise the contact as a complaint. The Council’s stage two response referred to Y as Mr X’s son throughout. The Council’s poor complaint handling was not in line with our guidance and was fault. It caused Mr X’s further frustration and distress.

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Agreed action

55. Within one month the Council will:
• write to Mr and Mrs X and apologise for the injustice caused to them by the Council’s failure to consider emergency priority earlier, failing to consider Mr X’s appeal properly and failing to consider his complaint properly; and
• pay Mr and Mrs X £1350 to recognise the distress caused by the amount of time they remained in a property the Council later identified as a risk to Y’s life. I have calculated this, based on our Guidance on Remedies, at £150 per month for 9 months; and
• reconsider its decision to remove the emergency priority. It should write to Mr X and provide its decision and reasoning.
56. Within three months the Council will:
• offer Mr and Mrs X the next suitable property available;
• provide relevant staff with guidance on recognising and appropriately responding to complaints; and
• remind staff to properly consider all the available information when considering appeals against decisions it has made.
57. The Council will provide us evidence it has completed all of the recommendations.

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Final decision

58. I have completed my investigation. I found fault leading to injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman