Summary: Ms D complains the Council failed to follow the correct process for a direct offer of housing. We have found evidence of serious and ongoing failings by the Council. We have upheld the complaint and completed the investigation if the Council agrees to pay redress and clarify its procedures.

The complaint

1. The complainant (who I refer to as Ms D) says the Council failed to follow the correct process for a direct offer of accommodation in from 2022 onwards.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have spoken to Ms D and considered the information she supplied. I asked the Council three sets of enquiries. I have examined its responses including its case file records.
5. I shared my draft decision with both parties and considered their comments.

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What I found

What happened

Background

6. Ms D lives in a two bedroom property with a family member and has three children. She had a fourth child in 2021 (child A). That child has complex medical needs and had to remain in hospital for its first 19 months because Ms D’s home was deemed unsuitable by medical/ healthcare professionals caring for child A. The hospital told the Council that child A would need their own bedroom and space for large and essential medical equipment.

Events I have investigated

7. On 9 November 2021 the Council noted Ms D had been approved for an “out of turn offer [a direct offer] of the next available four bed property”. She had ‘additional preference’. The Council’s Relationship Manager notified Ms D by email on 10 November that a direct offer status had been approved, he said Ms D’s application would “be considered for an out of turn offer [a direct offer] of the next four bedroom property which becomes available for letting”. As soon as a property was available the Council would contact Ms D “to confirm an offer”.
8. In February 2022 the Council made Ms D a direct offer for a property which was declined because it was unsuitable. On 4 April Ms D’s sister (Ms E) emailed the Council asking it look at any three bedroom homes that might be available. The Council said it had a limited availability of properties. There is no evidence the Council considered whether three bedroom homes should be offered. I understand that Ms E sent the Relationship Manager a WhatsApp message sometime in April or May stating child A had been sent home and including photographs of the living conditions. I do not have a record of that message and cannot verify whether it was received by the Council.
9. On 29 August Ms D emailed the Relationship Manager asking for an update on the case. She said, “as you are aware [child A] came home in April”. She set out the difficulties with her accommodation and that it was unsuitable for child A and her other children. She asked to be considered for a specific property (House 1). The Council says this email was not placed on the housing file. On 1 September Ms D repeated her request to the Council for House 1. On 5 September the Council noted Ms D’s interest and that House 1 was due to be empty later that month. On 13 September the Health Visitor emailed the Council explaining child A had complex medical needs, “it was recognised [Ms D’s home] was not big enough to meet [child A’s] complex needs, however [the hospital] could not keep [the child] any longer…they were hoping the Council would rehouse the family soon”. She asked the Council to assist the family so child A could be “looked after in a safe and non-overcrowded accommodation”. The Relationship Manager replied the same day. The Council’s Lettings Team was aware Ms D was interested in House 1. House 1 became empty in September and repairs were needed before it could be let. The property was adapted for use by a disabled person, and a direct offer made to an eligible applicant.
10. On 11 November Ms E emailed the Relationship Manager. Another property (House 2) was going to become available to let and she asked if it could be allocated to Ms D. Child A was having to sleep in a crowded living room full of medical equipment. On 30 November Ms E repeated her request to the Council. On 1 December the Relationship Manager replied the house had five bedrooms so it might go to someone needing a larger home, but it was for the Lettings Team to decide. On 9 December Ms D emailed the Relationship Manager that House 2 had four bedrooms and was next to family members. Child A was now becoming mobile, and it was “impossible for [them] to walk” in the flat due to limited space and medical equipment. Ms D contacted the Council again a few days later and the Relationship Manager told her on 12 December that if House 2 had four bedrooms, then other applicants would also be considered for the allocation. Ms D had been approved for a direct offer of a three bedroom property. The Officer subsequently emailed Ms D later that day apologising for an error. She was approved for a four bedroom direct offer, therefore if House 2 was four bedroom the Lettings Team “would have to consider that out of turn offer decision in relation to the property”.
11. On January 2023 the Council told Ms E that House 2 was a four bedroom property but required substantial repairs before it would be let to anyone. The Council’s Property and Contract Manager then emailed Officers including the Service Manager for advice about the allocation of House 2. The property had been placed on a list of empty properties in early December 2022. An Officer was considering a different applicant with alternative priority housing status for the house. The Manager asked Officers who the property should be allocated to because the direct offer for Ms D said she should receive the next four bedroom home.
12. On 12 January the Service Manager emailed other Council Officers about the allocation of House 2. He was aware Ms D had a direct offer approved to enable child A to be discharged from hospital. He noted communications between the Council and family that child A was home “some time between April and November 2022”. He said that “while the property does remain unsuitable the delegated authority [direct offer] should have been reviewed when [child A] returned home”. The family “appear to be managing to an extent with the help of family and carers” in the current property. A three bedroom home would be an improvement on the current accommodation. He then stated the decision about allocating House 2 was not based on whether the direct offer “should have been reviewed, or not, however, considering this change” House 2 should go to a different applicant who had a higher priority status (under the Choice Based Lettings system).
13. On 14 February the Council asked Ms E if child A was at home or in hospital. Ms E confirmed the child was at home. On 3 March Ms D emailed the Relationships Manager, she was shocked House 2 had been allocated to another family. She asked how that decision had been made. The Council said the Lettings Team would consider this and asked for details about a serious medical condition one of her other children had developed. Ms D provided information the same day. Ms D also contacted the Lettings Team on 13 March reiterating her complaint about the allocation of House 2. The next day the Council said it needed information about the occupancy of Ms D’s home and medical information. Ms D again replied the same day with details of the care and equipment needed for child A. Ms D chased up her complaint on 23 March. Child A had outgrown their cot and there was no room for a modified bed in the flat.
14. On 3 April Ms D submitted a formal complaint about the handling of her case and the allocation of House 2. The Council responded on 27 April. It said Ms D was considered for House 2. Information showed the direct offer was to allow child A to be discharged from hospital. In a “communication” of 11 November 2022 it noted child A had been discharged “although it was unclear when this happened as no previous communications outlined this new information”. The Council had decided to allocate to another applicant because Ms D’s direct offer was solely to allow child A to live at home. The Council asked Ms D for more information about the occupancy of her home. On 16 May Ms D asked to escalate her complaint and questioned why the Council had not contacted her before deciding on House 2. She set out details of her accommodation, occupancy and medical needs. On 3 July the Council issued its second stage complaint reply. It had “not been informed before December 2022” that child A was home. Because of this change in circumstances House 2 was allocated to a family with “higher needs…deemed more suitable for the accommodation”. The Council also said Ms D had not yet supplied occupancy information.
15. In January 2024 the Health Visitor confirmed that child A will continue to require 24 hour support. She has a full time care assistant, needs space for breathing machines, oxygen cylinders, feeding equipment, a special bed and medical supplies. The Health Visitor said child A “needs her own room and space for her carer to be able to have a workstation and chair and they must have access to a bathroom”. Also, in January the Council emailed Ms D after she sent a copy of the Health Visitor letter. It told Ms D she was eligible “to bid for a four bedroom” property “as they become available”. It could not say “whether [Ms D] would immediately be successfully considered as there may be other households who also bid for the property who may have a similar or higher level of priority”.

What should have happened

16. Usually, the Council will allocate its properties using the Choice Based Lettings system where it advertises properties that are available to let, and housing register applicants will place a bid. The Council then assesses which applicant has the highest priority for the property. The Allocations Policy sets out the priority system, applicants who have ‘decant’ status have the highest priority followed by applicants with ‘additional preference’ when bidding for a property.
17. In exceptional circumstances the Council can decide to award a direct offer status to an applicant. The Allocations Policy says the Council “can make an offer of one particular property” to an applicant. It does not set out any details about how the system works or state that the priority system used for regular Choice Based Lettings properties applies. I asked the Council for more information about how the process works. It has not provided any further written guidance for officers. It says a direct offer status does “not automatically provide the applicant the next available property”, if there are other direct offer applicants interested in the same property the Council will look at who has the highest priority. The Council also told me that when an applicant is awarded a direct offer status their banding category is updated on the Council’s case system. There are Officers who consider what properties are becoming available for direct offers. Those Officers look at the pool of direct offer status applicants to identify who should receive an offer for the property. They look at the applicant’s banding date and priority. Where there are two applicants with the same priority the case is progressed to a senior officer for “further discussion” and to decide who should receive a housing offer. Again, there is no guidance setting out how a decision is reached on who a property should be allocated to.
18. I asked the Council about how it notifies applicants when they are awarded direct offer status. It appears the Council sends a brief email to the applicant; it does not send them details about how the process operates. When a direct offer of housing is made to an applicant the Council will provide some additional information, I have not been provided with a copy of what that contains.
19. Where a housing register applicant has a change of circumstances, including a change to who is occupying a property, they should notify the Council. The Council will then review that applicant’s housing priority to see if it needs to be altered. This also applies to applicants who have direct offer status. Where the Council is aware of a significant change of circumstances a review should be carried out to assess if the direct offer status remains applicable. The Council says a review should be completed within 56 days and the outcome shared with the applicant.

Was there fault by the Council

20. The Council has accepted there are some faults in its handling of this case. It has told me:
• The 29 August 2022 email from Ms D was not put onto the case file and considered. As a result, it failed to review the change of circumstances (after child A came home from hospital) and the information was not available for Officers to view “when the case was reviewed and the out of turn offer [direct offer] was removed in November/ December 2022”. The Council says, “it should have triggered a review that involved expanding the search to include larger three bed properties”.
• It had sufficient details from Ms D by 16 May 2023 about the sleeping arrangement/ occupancy at the property to update the case records, but this email was not added to the case file. The Council says “we acknowledge that information [Ms D] provided in May 2023 could have been verified as part of the review that should have been undertaken in August 2022. The failure to establish the facts or update the case with information that had been in our possession for several months has contributed to the problem”.
21. I have found evidence of additional and significant fault by the Council. I set out below all the fault I have found including comments on those errors accepted by the Council at the start of my investigation.
22. When the Council notified Ms D in November 2021, that she had been awarded the direct offer status it only told her she would “be considered for an out of turn offer [a direct offer] of the next four bedroom property which becomes available for letting”. There was no explanation of how the process worked or that, in reality, Ms D might be considered for available properties alongside other applicants. At no point have I seen the Council clearly explain to Ms D how the direct offer process operated. Its Allocations Policy also fails to clarify that a direct offer does not necessarily mean an applicant will receive an offer of the next available property. It does not set out that priority bands used in regular Choice Based Lettings may be a factor. The Council has told me the information provided to Ms D was “adequate”: I do not agree. Ms D was left with raised expectations from November 2022 onwards. In addition, I have not seen any of the actual procedures for the direct offer system set out in writing in the form of staff guidance. There was confusion, even amongst senior officers, which a lack of written guidance would exacerbate. For example the Property and Contract Manager had to seek clarification in the case in January 2023 when they asked Officers who House 2 should be allocated to because the direct offer for Ms D said she should receive the next four bedroom home.
23. In April Ms E asked the Council to consider three bedroom homes for Ms D to improve her chances of being rehoused. There is no evidence this request was actioned. The Council accepts it should have broadened its property search to include large three bedroom homes. The Council has also shown me there were a number of three bedroom properties let to direct offer status applicants during the period I am investigating. There were ten three bedroom houses let. Whilst I cannot say which of those properties may have been suitable for Ms D it is more likely than not that some of them would have been accepted by Ms D had she been considered. This means Ms D lost an opportunity to be rehoused by August 2022.
24. By the end of August 2022, the Council was aware child A had been returned home by the hospital. This should have triggered a review of the direct offer status which would have been completed by the end of October. Instead, no action was taken. To compound the error the Council failed to place the email on the housing file for Officers to view. The Council accepts that had the fault not occurred Ms D would have been accepted as still requiring a direct offer and that she would have been considered for larger three bedroom properties as well as four bedroom homes.
25. The Council failed to notify Ms D about the outcome of her expression of interest in House 1. In addition, the Council told me that when there are two interested parties for a direct offer property the case should be decided by a senior officer. I cannot see any such consideration happened in this case. Given the successful applicant’s circumstances I have not found any fault in who the property was allocated to, however there are procedural failings in how the case was handled. Also, the Council should have notified Ms D about the outcome as a matter of good practice.
26. I have significant concerns about the handling of the House 2 allocation. The case was rereferred to a Service Manager because there were two interested applicants. The appraisal of Ms D’s case by the Service Manager was based on incomplete information (the August email from Ms D had not been seen) and he made unverified assumptions about the family. He stated the family were “managing to an extent” in their current home. That was the opposite of all the evidence provided to the Council at that point. The Health Visitor email in September stated, “it was recognised [Ms D’s home] was not big enough to meet [child A’s] complex needs” and emails from Ms D set out how the current property was having a detrimental impact on child A’s wellbeing and on the rest of the family. There is no evidence to show the Service Manager took this into account. He then stated his decision to allocate House 2 to another applicant was not based on whether Ms D’s direct offer status should have been reviewed but “considering this change” (that child A was home) the property should go to the other applicant with higher priority. The decision clearly infers that Ms D was not eligible because child A was back home. This is further confirmed by the Council’s complaint response in April 2023 which stated it had allocated House 2 to another applicant because Ms D’s direct offer status was solely to allow child A to live at home. The Council has subsequently told me the decision was made because the successful applicant had a higher level priority than Ms D. That is not reflected in any of the contemporaneous evidence.
27. Furthermore, if the Council had awarded House 2 to an applicant because they had higher level priority under the Choice Based Lettings system (as the Council has recently told me) this would not be a correct use of a direct offer. The direct offer system exists for councils to make a decision about housing allocations outside of the usual restraints posed by the Choice Based Lettings system and the use of priority levels. When considering a direct offer, the Council should be looking at an applicant’s needs and not simply at priority status. In this case the evidence shows me the Council is taking the incorrect approach towards direct offers which is further compounded by a lack of clear guidance and policy. The decision was made to award House 2 based on an incorrect and badly informed understanding of Ms D’s circumstances. I am of the view the decision made by the Council was unsound. There is a likelihood that, had the various faults identified in this document not occurred, Ms D could and should have been offered House 2.
28. The complaint responses by the Council were poor and reached incorrect conclusions. I cannot see there was a considered appraisal of the case particularly given some key fault was easily identifiable. In addition, I have seen no evidence of when the Council actually undertook a review of the case, it would appear this happened as a result of this investigation. The Council told me that Ms D was still eligible for a direct offer of three and four bedroom homes. It should have set out this information to Ms D by the end of 2022, instead she had to wait for me to clarify matters for her at the end of 2023.
29. To further exacerbate the errors in this case the Council has recently emailed Ms D about her housing in January 2024. The email fails to clarify that she has direct offer status and shows that a lack of clear communication remains an ongoing problem. This has caused Ms D additional distress.

Did the fault cause an injustice

30. The faults by the Council have caused a serious injustice to Ms D, her family and to child A.
31. The family could have been adequately rehoused by August 2022 had the faults set out not occurred. This means they have spent 17 months longer in unsuitable accommodation and continue to live in an overcrowded property. Three of the children share bedrooms and are without a separate space to do their homework or eat. Child A does not have room to move around and there is insufficient space for the care team. As child A grows and develops the detrimental impact caused by their home will only increase making the need for rehousing even more pressing.

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Agreed action

32. In its initial response to my enquiries the Council offered to pay £2,000 for time, trouble and distress to Ms D. Whilst I welcomed that offer it only addressed the two points of fault already accepted by the Council. It did not remedy the additional and substantial failings identified. The Council has now agreed to pay further financial redress. This redress is in two parts, to address the injustice to Ms D and also the impact on child A:
• Pay Ms D £150 per month redress for each month spent unnecessarily in unsuitable accommodation to recognise the significant distress caring for child A in an unsuitable environment. That totals £2,550 for 17 months to date. The redress is ongoing and so a further £150 should be paid each month (from February 2024 onwards) the family remain in their current home.
• Pay Ms D, for the benefit of child A, £350 per month redress for each month spent in unsuitable accommodation where they have been denied the dignity to be able to move freely around and fully accommodate their specialised medical bed and equipment. That totals £5,950 for 17 months to date. This is an ongoing payment so a further £350 per month should be paid while child A remains in the current home.
33. The financial redress, including the distress payment already offered by the Council, totals £10,500. It will be paid within four weeks of this case closing with the ongoing monthly payments then being processed.
34. The Council has also agreed that a senior officer should meet Ms D at the property, within four weeks of this case closing, to confirm the Council’s understanding of what housing is required by the family, for example whether a larger three bedroom home would suffice for the current and future needs of child A. This should be documented and shared with Ms D. The Council should also confirm it will allow any property offered to be assessed for suitability by the relevant healthcare professionals assisting child A. The senior officer also oversee the handling of Ms D’s case to ensure there are no further errors.
35. In addition, the Council accepts it will address the problems I flagged up about its failure to clearly document its policy and procedures for direct offers. The Council will provide staff guidance and information for applicants on how the direct offer system operates. This should be completed within the next six months and copies of the guidance provided to the Ombudsman.
36. The Council must provide us with evidence it has complied with the above actions.

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Final decision

37. I have upheld the complaint and completed the investigation because the Council accepts the remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman