Summary: Miss X complains the Council did not consider all the relevant information when completing a review of her priority for housing. We find fault with the Council for errors with Miss X’s priority date and bedroom entitlement, delay in completing the review, and failing to consider all the evidence presented. We have agreed the Council will carry out another review.

The complaint

1. Miss X had to move out of her property in 2021 due to the landlord selling. She told the Council she would be homeless, but it failed to respond within the required 56 days and she got a private rental property.
2. Miss X was given a new banding and priority date in April 2022 and complains the Council have not properly considered all her family’s medical evidence.
3. She would like the Council to properly consider all her information and change the banding from Band C to Band B.

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The Ombudsman’s role and powers

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)
5. 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)
6. 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)

What I have and have not investigated

7. I have investigated the complaint in relation to the banding and priority date (paragraph two).
8. I have not investigated the homelessness issues in this case. This is because it is late and Miss X could have raised a complaint at the time (paragraph one).

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How I considered this complaint

9. I considered information provided by Miss X and discussed the complaint with her. I also considered the Council’s comments on the complaint and the supporting information it provided.
10. I considered the relevant parts of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities.
11. Miss 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 and statutory guidance

Housing allocations

12. 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))
13. 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))

14. 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.
15. The Ombudsman normally will not find fault with a council’s assessment of a housing applicant’s priority if it has carried this out in line with its published allocations scheme.

The Council’s revised allocation policy 2013

16. The Council operates a choice-based lettings scheme. This means housing applicants can express an interest in available properties. This is called bidding.
17. The Council places applicants who qualify to join the housing register in a priority band from Band A (highest priority) to Band D (lowest priority). This priority is the first factor the Council uses to allocate a property.
18. The priority date is the date on which the Council placed the application into the priority band. This can change if an applicant moves to a different band. This date is important because the Council uses it to decide priority within a band. For example, if there are three bids for a property from applicants with Band A priority, the applicant with the oldest priority band date will be highest on the list.
19. Applicants who indicate they have an illness or disability which is affected by their current home can be considered for medical priority banding. The Council asks a medical adviser to assess the applicant, or members of their household. The assessment is of the effect of the present housing on their health. Band A is a medical emergency, where the applicant has a life-threatening condition.
20. Band B is urgent medical, where current housing conditions are having a major adverse effect on the medical condition of the applicant or member of the household.
21. Band C is medical need, to be recommended where housing conditions are having an adverse effect of the medical condition of the applicant which creates a particular need for them to move.
22. Where re-assessments due to a change of circumstances lead to an applicant being awarded a different priority status the Council must update the applicant’s records on its system. It will be the date of moving into the different priority banding that will be treated as the priority date.

What happened

23. Miss X has two children, Y is nine years old and Z is 13 years old. Y is severely disabled with a rare genetic disease and epilepsy. He is reliant on Miss X to move and feed him. He is also doubly incontinent. Z is autistic and has anxiety.
24. Miss X had to move in September 2021 as the owner of her rented property was selling it. Miss X told the Council she would be made homeless. The Council agreed to help under the prevention duty but instead of getting back to her within 56 days it took 73 days.
25. Miss X says she found the place she is renting as the Council took too long to help her. The property is on the ground and first floor, and the landlord will not allow any adaptation to it, so there are many risks to Y. The rent is also higher than Miss X can afford long term.
26. Before she moved, Miss X was in Band B with a three-bedroom need and priority date of October 2016. Miss X says she was told this over the telephone and did not receive a letter from the Council with this decision.
27. In March 2022 Miss X asked the Council for help or signposting as she found a property online but wanted to make a direct bid as it was an ideal property. She explained she tried to gain help from the homeless unit previously but it took over 70 days by which time she found her current rental place.
28. In April Miss X filed a change of circumstances form. The Council wrote to her advising that she was Band C with a priority date 13/04/22 and could bid for three-bedroom properties. The Council advised she had a right to request a review within 21 days.
29. In May Miss X told the Council she could not bid on three-bedroom properties. The Council said the extra bedroom applied when she was living at her old two-bedroom property. Her most recent assessment is Band C and two bedrooms, so the letter was wrong.
30. Miss X asked the Council to send an amended letter but it refused, saying she had to request a review to amend the number of bedrooms.
31. The Council told Miss X if she did a review now the result would be the same. She had to provide fresh supporting documentation, which she did.
32. Miss X asked for a review of banding and bedroom entitlement. She said she met the criteria for Band B and asked for details of the complaints procedure as she felt the medical assessment had not looked at all her evidence properly.
33. Miss X provided medical evidence to the Council to support her review request:
• Letter from an Occupational Therapist outlining Y’s needs. He is on a waiting list for spinal surgery (he uses a spinal brace) but cannot have the surgery unless he has the proper adaptations at his home. He needs a mobile hoist but there is no room for anything other than a bed in his accommodation. He has no awareness of safety and pulls things down, he has frequent seizures but the landlord will not allow adaptations which would reduce the impact of the seizures, or to drill holes in the wall to put furniture and the television up securely. Miss X is a single parent with chronic back pain. She has also been recommended for surgery but does not have the space for her proper recovery. She is in a lot of pain as she has to carry Y, who is nearly as big as her. Her health needs to be considered as she will likely be a lifelong carer for him.
• The list of diagnoses for Y, with his allergies and medications.
• Assessment report for Z, giving his diagnosis of Autism.
34. On 15 May, the medical advisor recommended Band C and supported separate bedrooms for Y and Z. The Council wrote to Miss X on the same date giving her moderate medical priority and an extra bedroom, still Band C. It had reviewed the number of bedrooms but not the banding.
35. The Council says Miss X was awarded Band B when she lived in her previous two-bedroom property as there was a more urgent need for the extra bedroom. Now she has three bedrooms, it changed her banding to Band C.
36. Miss X wanted her priority date to go back to 2016, as it was only changed due to the Council’s error about the bedrooms. She sent a review request to the Council on 24 May attaching the medical evidence again, with further medical evidence:
• Occupational Therapist housing support letter. This said Miss X rented her current three-bedroom property as a temporary solution as they were going to be homeless. It is detached which means Y cannot disturb the neighbours. His brother’s bedroom is further away which means his sleep is less disturbed, which is having a positive impact on his educational performance. The bedrooms and bathrooms are on the first floor. Y cannot use the stairs so his Mum has to help or carry him up and down. The bathroom is small and doesn’t allow for Y to use his specialist bath equipment. Recommend a property where Y will not disturb the neighbours that has ground floor access, a suitable size bedroom for Y that fits his bed, specialist chair and monthly supplies, a suitable size bathroom, a property that has or will accept handrails, and a car parking space.
• Supporting letter from Miss X’s GP, confirming Y’s diagnoses, and the fact he needs his own bedroom as he receives care throughout the night, which disturbs his brother.
• Hospital letter giving details of Miss X’s mobility problems, with treatment options. She had been referred to an orthopaedic surgeon.
• Various letters from Consultants and GP outlining Miss X’s back pain and Y’s needs.
37. Miss X contacted her MP who contacted the Council on her behalf. The MP told Miss X the response from the Council said her banding changed from Band B to Band C as she has moved twice and her most recent address is used to assess her current banding. Miss X said this was wrong, she has not moved twice, she has sent in medical evidence twice.
38. The review was due in July. In September the MP asked the Council the reason for the delay. The Council said it was due to staff shortages and it was waiting to hear back from its benefits teams.
39. The Council spoke with Miss X on 30 November. Records of the conversation show Miss X gave details of why their needs made living in the property difficult. This included:
• Y needing constant supervision, she has to hold him up and down the stairs, she has a bad back and has to lift him in and out of the bath. He is getting bigger and it is becoming harder for her to manage;
• He is on the waiting list for spinal surgery but they cannot do any adaptations to the house, which are needed for his recovery;
• He has aggressive and unpredictable epilepsy, his seizures are violent;
• There are three steps to the front door and no railings. Miss X has already fallen while trying to balance with Y; and
• Her sons need two separate bedrooms as Z has his own sensory issues.
40. On 30 November the Council wrote to the MP saying Miss X would get the result of her review that day or the next. On 14 December the MP chased the Council as Miss X still had not received the decision letter. The Council said the review was completed on 2 December and the original decision of Band C medical priority was upheld.
41. The housing review decision letter dated 2 December reiterated the current situation and needs of the family as in the Occupational Therapist support letter. It agreed with the medical advisor’s view that Band C is suitable and separate bedrooms are needed for the two boys.
42. It also said the Council “accepts the property is having an adverse impact on Miss X but are satisfied the issues faced are not so urgent and serious to warrant a move to a higher band on the housing register”. It also suggested Miss X use a bath board for transferring Y into the bath. “There is no immediate danger of death or serious injury when carrying out these activities.”
43. Miss X sent a review request to the Council. She said the review decision assumes Y will only go upstairs once a day, when he tires quickly and sleeps throughout the day, and she needs to wash and clean him in the bathroom which is upstairs. She said it is unreasonable to suggest keeping him downstairs all day.
44. Y cannot sleep downstairs as he has a specialist profiling bed, and if he has a seizure Miss X needs to carry him upstairs. She said she discussed this on the phone with the Council but it was not referred to in the decision letter.
45. Further Y cannot use a bath board as suggested by the Council. He has a specialist bath chair as he needs postural and head support.
46. The decision letter also failed to consider that Y needs spinal surgery and cannot have it until he has space for a hoist for his recovery.
47. Miss X brought her complaint to the Ombudsman in January 2023 as she felt the Council failed to properly consider all her evidence.
48. In our enquiries I asked the Council to provide all the information provided to the medical officer and evidence of how it considered the medical advisor’s opinion, while still coming to its own decision.
49. In response to our enquiries the Council apologised for the error on the priority date, which should be September 2016 and not April 2022. It has now amended the priority date for Miss X.

Analysis

50. The Council sent a letter to Miss X in April 2022 saying she could bid on three-bedroom properties when in fact she could only bid on two-bedroom properties. This was fault.
51. The Council refused to change the letter unless she sent a review request, which she did in May. This was also fault; the only reason she wanted a new letter was because the first letter was incorrect.
52. When Miss X asked for a further review of her banding the decision was due in July but the Council did not send its response until December. This was five months late. This was a significant delay, and it was fault.
53. Miss X’s priority date was also wrong, which the Council have now amended. This was fault.
54. These faults caused Miss X distress, frustration and uncertainty, and the loss of opportunity to bid on suitable properties.
55. In response to my enquiries the Council provided me with information from the medical adviser. However there is no evidence of how the Council considered the medical advisors opinion, other than accepting it. This is fault as the Council need to arrive at its own assessment of the priority need and not adopt the medical advisors opinion without considering all the evidence.
56. This is illustrated in April, when the medical adviser’s advice was for a two-bedroom and Band C (see paragraph 29), which the Council accepted and told Miss X could not then bid on three-bedroom properties, despite it previously agreeing she needed three bedrooms.
57. The decision letter, although listing most of the issues Miss X faces, does not mention all the factors Miss X wants the Council to consider. It makes reference to there being “no immediate danger of death or serious injury” which would mean Miss X does not meet the criteria for Band A. It also says “this does not indicate there is an urgent and serious need to be moved” which would be the criteria for Band B.
58. However, although the fact Y is on the waiting list for spinal surgery is mentioned, the details of his recovery are not, and Miss X’s surgery is not mentioned.
59. I therefore propose the Council reassess Miss X considering all the information she has provided, provide its own view on the medical advisor’s advice, and clearly state how she meets the criteria for the Band the Council awards her. If the Council considers the detail of her previous property are relevant it should explain why.

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Agreed action

60. Within one month of the Ombudsman’s final decision, the Council should:
• Write a personalised apology to Miss X for the injustice caused by faults identified above;
• Pay Miss X £300 for the frustration, distress and loss of opportunity due to its errors and delay; and
• Thoroughly review Miss X’s Banding and give its decision with sufficient explanation about how the decision was reached. (If the review results in a higher priority band, the Council should backdate this to the appropriate date in line with Council policy).
61. Within three months of the Ombudsman’s final decision the Council should:
• Remind staff of deadlines for responding to review requests, and fully note and demonstrate how decisions are reached when considering advice from medical advisors, for example the weight given to the advice, and what other considerations were taken into account.
62. The Council should provide us with evidence it has complied with the above actions.

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Final decision

I find fault with the Council for errors with Miss X’s priority date and bedrooms, delay in completing the housing review, and failing to consider all Miss X’s evidence. I recommend a further review be carried out.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman