Summary: Ms K complains the Council has failed to award her medical priority for housing and give her a property which would be suitable to her needs. We found the Council failed to properly consider Ms K’s medical requests following its housing allocations policy. This meant the Council’s decisions not to give Ms K greater priority for housing were flawed. We also found fault by the Council for issues relating to disability and equality particularly with comments made to her by individual Council officers. These failings have caused Ms K a significant injustice. The Council has now agreed to remedy this.

The complaint

1. The complainant, who I refer to as Ms K, is making a complaint about her housing allocation application to the Council for a larger property. She is dissatisfied with the Council’s decision to not award her greater priority for housing she says is necessary to due to her medical needs. Specifically, Ms K alleges:
1. The Council gave misleading information about when it may reduce an applicant’s priority for housing due to council tax arrears. She is concerned the Council reduced and maintained banding priority despite her medical needs.
2. The Council did not properly consider her medical evidence when assessing whether she should receive greater priority for housing. She says the Council made inaccurate assumptions about her health problems by saying these did not amount to a disability. She therefore says the Council’s decision that her needs do not meet the threshold of having high level medical to warrant greater priority was flawed.
3. That Council officers dealing with her request for medical priority were rude and undermined her medical problems. She says the Council has shown a lack of understanding of what amounts to disability under equality legislation, as well as its own policies and housing scheme.
2. In summary, Ms K says the alleged fault means she has to remain in her current property which she explains is unsuitable for her medical needs. Further, she said the current property is causing her medical difficulties to worsen, as well as serious distress and hardship. As a desired outcome, Ms K wants the Council to award her medical priority and allocate a suitable property that meets her needs.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
5. We can consider complaints that concern the handling of an allocation for social housing under Part 6 of the Housing Act 1996. However, we cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. These are matters which fall under jurisdiction of the Housing Ombudsman (Local Government Act 1974, paragraph 5A schedule 5, 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).

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How I considered this complaint

7. I have read Ms K’s complaint correspondence with the Council and Ombudsman. I have produced this decision following examining relevant files and documents and making enquiries of the complainant and the Council. I have also reviewed applicable legislation, guidance and policies.
8. Ms K and the Council had an opportunity to comment on our draft decision. I considered any comments received before making a final decision.

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My findings

Background and legislative framework

Housing allocations

9. The relevant legal framework regarding the allocation of social housing is set out in Part VI of the Housing Act 1996. This requires councils by law to have an allocation scheme for determining priorities and setting out the procedure it will follow in allocating housing. The council must allocate accommodation in accordance with its allocations scheme. The law also says that the following categories of persons must be given 'reasonable preference' (meaning greater priority) through a council’s housing allocations scheme:
1. people who are homeless;
2. people owed a duty as a homeless person under certain sections of the Housing Act 1996;
3. people occupying insanitary, overcrowded or unsatisfactory housing and;
4. people who need to move on welfare or medical grounds.
10. The number of points or priority band a council will award depends on the individual allocations policy of that council. This policy should outline how that level of priority will be assessed and what information will be considered. In medical rehousing cases, a council may send out its own occupational therapist or ask a medical adviser to assess an applicant’s needs. The decision about priority is for the council to make. It should not simply adopt the recommendation of a third-party medical assessor. We expect a council to consider the occupational therapist or medical adviser’s report, as well as any supporting information from the applicant’s own doctor or other medical professional.
11. The government has produced a statutory code of guidance (the Guidance) which housing authorities must follow when developing housing allocations schemes and when allocating social housing. The Guidance is available online: Allocation of accommodation: guidance for local housing authorities in England (first published in June 2012).

The Council’s housing allocations policy

12. The Council priorities allocations in accordance with priority need by placing applicants into housing bands. The housing bands are summarised below and full details of what the criteria for individual cases will be are described in the Council’s housing allocations scheme:
1. Band 1: The highest level of priority. This should be given when the applicant has a verified high medical need and/or disability. It applies where the current property is so unsuitable in relation to their medical, welfare or disability needs that a move is essential.
2. Band 2: Where the application has a high housing need, such as households suffering with serious overcrowding (2 or more bedrooms lacking).
3. Band 3: Where the application has a medium housing need. This includes, but is not limited to, overcrowding due to lacking one bedroom, or households suffering with some minor disrepair.
4. Band 4: Applicants with reasonable preference but reduced banding. This includes, but is not to limited to, circumstances where households have deliberately worsened their circumstances to qualify for a greater banding, such as deliberate overcrowding.
5. Band 5: Applicants who do not meet any of the reasonable preference criteria, but do have a local connection the qualification criteria.
6. Band 6: The lowest level of priority where the applicant does not meet any of the reasonable preference criteria.
13. The Council must allocate housing in accordance with the above banding criteria. Once a band has been determined, the applicant’s application will be given an effective from date. This will be the date that the application is received or the date that an applicant is awarded reasonable preference. Normally, an applicant with an earlier effective from date to that of an applicant in the same banding will be matched to a property by the Council sooner.
14. The Council’s allocations policy outlies that an assessment to award Band 1 priority is not only of the applicant’s health, but how their health or welfare is adversely affected by their accommodation. It states that Council officers will gather sufficient information to understand the impact of the property on the health of the applicant or their family. The final decision for medical priority will be made by a Senior Officer in conjunction with the Council’s medical advisers, as well as its occupational therapists where appropriate and necessary.

Right of review

15. Any decision by the Council made about a housing application can be challenged by seeking a review with the Council. The Council’s allocations policy states the applicant will be notified of the outcome of the review including reasons. The Council will aim to determine the review within 56 days of the request. Reviews will be carried out by a senior officer within the Council and an officer who was not involved in the original decision.

Equality legislation

16. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions. This legislation makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination. The ‘protected characteristics’ include, but are not limited to, age, disability sex and race.

Chronology of events

17. In August 2022, Ms K made her first request for an assessment of her medical needs so these could be considered in her housing application. The Council sent Ms K a medical assessment form which she completed and returned several days later. The Council referred the form to its medical advisers who decided there was a lack of evidence to support awarding Ms K medical priority.
18. In September 2022, Ms K received the Council’s decision to decline extra preference of medical grounds. The Council says Ms K did not request a formal review of that specific decision.
19. In January 2023, Ms K made a second request for an assessment of her medical needs. She provided a letter from her doctor who said Ms K suffers significantly from post-traumatic stress disorder (PTSD). Her doctor asked the Council to consider moving Ms K to a bigger property because Ms K had reported that having to share a bedroom with one of her children was triggering her symptoms.
20. The same month, the Council wrote to Ms K asking for supporting evidence of her condition and specifically, how this affects her housing situation and needs. The Council asked Ms K to respond within two weeks. It says that while it did not receive any other information, Ms K had made repeated telephone calls to enquire whether evidence she sent online had been received.
21. In February 2023, the Council decided there was no change of circumstances from the last time it assessed Ms K’s needs only five months earlier. It noted that Ms K had not provided any supporting evidence in response to its request and therefore could not settle a need for a bigger property in line with its housing allocations policy. It therefore declined to award Ms K medical priority. Though the Council told Ms K of the decision by post, she initially received this information during a telephone call and asked for a formal review. The Council accepted the review, though mistakenly considered it under the Council’s complaints process.
22. In March 2023, the Council completed a review of its decision and sent this to Ms K. Dissatisfied with the review, she made a complaint to the Ombudsman.
23. In October 2023, the Council sent Ms K a letter responding to her complaints after it had carried out a parallel investigation to ours. The Council’s most recent response accepts failings for the complaints set out under Paragraph 1(b) and (c).

My assessment

Complaint outcome a): Reduced banding due to rent arrears

24. Though not raised by Ms K in her complaint to us, correspondence between her and the Council refers to the problem with advice she received about council tax payment arrears. This followed a decision in October 2021 by the Council to allocate Ms K Band 6 priority for housing due to payment arrears. Specifically, Ms K was told the Council can give less priority for housing to those with arrears. It explained however that a decision to award medical priority under Band 1 would override any reduction in priority banding for payment arrears. Ms K says she was later told by the Council that council tax arrears would prevent her being moved even if medical priority was awarded. The Council clarified to Ms K that medical priority does not necessarily have an overriding effect. It also confirmed its view that its reduction to Ms K’s priority banding was policy consistent.
25. I have reviewed the Council’s housing allocations policy. The Council can give lower priority to applicants with council tax arrears where there is no affordable repayment plan in place. However, it is not an absolute rule. The Council has a duty to consider exercising its discretion to not apply or remove the reduction due to individual and mitigating circumstances, or an urgent need to move. The available evidence does not show any attempt by the Council to contact Ms K about her council tax arrears and circumstances before it reduced her priority banding. I recognise it is not practical for the Council to assess an applicant’s reasons for payment arrears in every case and before giving reduced priority. That said, I am concerned the Council’s timeline does not show any band changes or review of the reduced banding decision since it was applied. Additional documents provided by the Council with its comments to our draft decision show that in August 2022 priority banding for Ms K’s application was changed from Band 5 to Band 3 and then reduced to Band 4.
26. The Council had since become aware of Ms K’s medical circumstances and that she was struggling. This was known information and appears relevant to the Council’s duty to examine circumstances on a case-by-case basis and not fetter its discretion. I am concerned there was not a proactive approach by the Council to scope whether Ms K’s assessed needs had any bearing on the reason she had been awarded reduced priority.

Complaint outcome b): Failure to award medical priority for housing

27. By law, I cannot question the Council’s decisions not to award priority for housing on medical grounds, unless there was fault in how those decisions were made. I have considered the Council’s latest response to Ms K on the matters relating to her complaint. This recognises various failings by the Council in how it has assessed Ms K’s needs and applied its housing allocations policy.
28. The Council says the way it considered Ms K’s request for priority for housing on medical grounds was flawed. First, the Council says the referral made to its medical advisers failed to ask how Ms K’s presenting medical symptoms impacted her housing needs in terms of suitability. It also says it did not carry out a visit to Ms K’s property to better understand her needs. This was fault as the Council did not take a proactive approach to gathering information to assess medical need following its policy. In summary, the Council accepts there was a level of bias in its original referral for medical advice as this did not seek to understand whether its policy grounds for medical priority were met. The Council explains the outcome of the medical referral, and the overall assessment, were flawed and that these were wrongly and repeatedly relied upon.
29. The medical advice the Council received was central to its decision making to its assessments and formal review outcomes. When Ms K requested a reassessment in January 2023, the Council admits this was dismissed too quickly and had failed to reconsider extra information provided. Based on the Council’s investigation of these issues, I find it was at fault. Further, the Council has said there is no evidence to show that its review of its housing decisions followed the proper process. Specifically, the Council says there was no formal acknowledgement of Ms K’s review request, opportunity for her to make representations and submissions of additional evidence before a final decision was made in March 2023.
30. The Council’s failings have caused a significant injustice to Ms K because flawed decision making has meant a delay in her receiving a satisfactory assessment. The Council has since carried out another assessment of Ms K’s housing and medical needs and awarded her Band 1 priority for housing on medical grounds. This means the Council has reached a conclusion that Ms K’s current property is not suitable for her medical needs and that, by law, she must be provided higher preference for housing. Besides, because the Council failed to carry out a satisfactory assessment since Ms K’s first request, this raises the strong likelihood she has missed out on being allocated a suitable property much sooner. I accept Ms K has also suffered distress and uncertainty due to these failings. I am therefore making recommendations to remedy these issues.

Compliant outcome c): Conduct and equality issues

31. During the time of Ms K’s housing assessment and reassessment, she had contact with several Council officers. The Council, following its recent investigation into Ms K’s concerns, has identified various failings relating to the standards of service and conduct. A key part of this is the Council confusing the application of its complaints and housing review processes. Each process follows a prescribed written procedure about what information is relevant to decision-making and what actions should be carried out, as well as by when. The Council gave Ms K incorrect advice repeatedly due to it confusing its two distinct policies. This meant that some of Ms K’s formal complaints were not considered and the Council’s housing review was subject to fault. In addition, this caused Ms K unnecessary time, trouble and frustration. This is because she was making repeated calls for updates on matters not being actioned, despite the Council giving expectations they would be.
32. The Council has also accepted making unjustified and inappropriate accusations that Ms K had fraudulently falsified medical evidence. This relates to a Council officer telling Ms K she “was not disabled” and that her supporting doctor’s letter had been “falsified”. This is because the photograph of the letter did not include the medical practice’s letterhead. This was a serious allegation by the Council which caused Ms K deep upset. Where the Council holds concerns about medical evidence, it should seek to verify that information in a non-hostile manner. The Council had other medical evidence about Ms K’s condition which verified the information in the letter and it could have made enquiries if it had any doubt. The Council has investigated these issues and has decided it subjected Ms K to disability discrimination, as defined in the Equality Act 2010. This was clear fault and the Council was right to investigate and hold itself accountable.
33. I fully accept Ms K’s view that conduct towards her had been discourteous, undermining and prejudicial. The service she received shows a failure by the Council to consider its principal duties under the Equality Act 2010. This is particularly the case in relation to having due regard to the need to eliminate discrimination and advance equality of opportunity. It is well established that a mental health condition, such as PTSD can, depending on the impact on the individual, be a legitimate and debilitating disability. As the Council has since recognised, the judgements it formed and applied to its decision-making showed bias and a lack of awareness to people living with mental health disabilities.
34. I welcome the Council’s proactive approach to address some of the problems faced by Ms K. I agree with its proposed actions to review aspects of the Councils housing allocations policy so to improve the standard of service and prevent similar failings. Responding to the draft decision the Council stated it had already started some service improvements, which is commendable.
35. The Ombudsman is not a court and cannot award nor enforce compensation or damages. We do not impose punitive fines for errors or take action to punish people. When someone has suffered an injustice, we try to put them back in the position they would have been had that error not occurred. My assessment is that fault by the Council has caused Ms K significant and prolonged distress, hardship and uncertainty. I have considered this impact in the context that she is a vulnerable person due to her medical needs. In my view, the Council’s actions against Ms K aggravated her vulnerabilities and mental health symptoms. It is not possible for the Council to fully remedy the impact on Ms K and I am therefore recommending a financial payment for her under our published guidance on remedies. I have also recommended the Council carry out a review to identify whether Ms K has suffered any other injustice, such as missing an earlier opportunity to move into suitable accommodation. The Council has now agreed to provide additional remedies for Ms K which I consider sufficient and proportionate to the impact of the Council’s failings on her.

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Agreed action

36. Within one month of my final decision, the Council should perform the following:
1. Provide a fresh written apology to Ms K which addresses each area of fault and injustice identified in this decision.
2. Pay Ms K £800 to serve as an acknowledgement of how she was treated based on disability and the significant injustice she has been caused. It should also pay Ms K £200 to put right the distress and uncertainty caused by various failings in its complaint handling and housing requests and review processes.
3. At a senior level, the Council should undertake a formal review of Ms K’s case. The purpose of the review is to identify injustice about Ms K’s housing situation and carry out actions to remedy this. The review should consider the following to inform the actions it takes and measures adopted:

• Had Ms K received an acceptable assessment when she first applied for medical priority, would the Council have awarded her Band 1 priority in August 2022. The latest reassessment suggests it would and should have.
• Had Ms K been awarded Band 1 in August 2022, by when would the Council have needed to secure suitable accommodation for her. This requires the Council to also consider if it was reasonable for Ms K to continue to occupy her property, and its legal duty to provide interim accommodation to those in priority need under the Housing Act 1996.
• Whether Ms K missed an earlier opportunity to be provided suitable accommodation. If so, the Council should identify the date of the first opportunity to move and how many months since that date Ms K has been living in accommodation now assessed as unsuitable to her needs.
• Where the Council identifies Ms K did miss out on an earlier opportunity to move into suitable accommodation, it should offer her the next suitable property which becomes available. The Council should also pay Ms K £200 for every month she lived in unsuitable accommodation. This should cover the period from the first missed opportunity up to the date the Council makes an offer of a suitable property which meets her medical needs.

37. Within three months of my final decision, the Council should also:
1. Review the Housing Register, Policy, and application process, specifically around medical priority applications and for:

• Reviewing an assessment process, including documents required, and a requirement to visit applicants in their home settings before any referral to third party assessors is considered.

• Training around making referrals to third party assessors, and quality and assurance checks of referrals, where they are necessary.

• Implementing overview and scrutiny of officer’s medical priority decisions via a panel of suitably qualified and experienced service managers.
2. Arrange structured a training for staff on internal processes around complaints and reviews.
3. Offer advocacy services to all applicants who want or need them for the application process.

38. The Council will provide us with evidence it has complied with the above actions.

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Final decision

39. I uphold the complaint. The Council has accepted it failed to properly consider Ms K’s medical requests under its housing allocations policy. This meant the Council’s decisions not to give Ms K greater priority for housing were flawed. It has also recognised there were serious issues relating to disability and equality laws, particularly with comments made to Ms K by individual Council officers. While the Council has offered some remedies, it has not considered the full impact of its failings on Ms K. The Council has now agreed to extra remedies in line with my recommendations. This investigation is at an end.

INVESTIGATOR’S FINAL DECISION ON BEHALF OF THE OMBUDSMAN

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Investigator's decision on behalf of the Ombudsman