Summary: We found fault in the way the Council dealt with the complainant’s (Ms X) application for the change of her housing register priority banding, how it reviewed her Personalised Housing Plan and addressed her needs for reasonable adjustments. We also found fault in the Council’s refusal to let Ms X view a property she bid for. The Council agreed to apologise and make a symbolic payment to Ms X to recognise her distress and a delay in offering her a suitable property. The Council also agreed to include in Ms X’s housing records agreed reasonable adjustments for any written communication with her. The Council agreed to improve its record keeping and provide staff with the training on reasonable adjustments.

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
8. 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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What I have and have not investigated

9. I have not investigated how the Council dealt with the damp and mould issues in Ms X’s property in autumn 2023. The Council said it had not had a chance to consider and respond to them through its complaint process. They were not part of Ms X’s complaint to the Council. As pointed out in paragraph five of this decision the Council should have an opportunity to investigate and reply to Ms X’s concerns about the state of her accommodation.

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How I considered this complaint

10. I considered the information Ms X provided.
11. I made enquiries with the Council and considered the information it provided.
12. I reviewed the Council’s Housing Allocation Scheme and the Council’s Equality and Diversity Strategy.
13. Ms 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

Legal and administrative background

Housing allocations

14. The relevant legal framework on 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.
15. 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.
16. 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

17. The Council ranks 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: Emergency
2. Band 2: Urgent
3. Band 3: Priority
4. Band 4: Reduced priority
18. Urgent medical priority will be awarded where an applicant or a member of their household is assessed as suffering from a serious medical condition which is being seriously affected by their current housing situation and that would be improved by moving to appropriate accommodation. The level of priority awarded will depend on the extent to which their health or disability is adversely affected by their current housing situation.
19. Applicants that wish to be assessed for priority on medical grounds should complete an online medical assessment form and provide any supporting evidence. The onus is on the applicant to provide the information needed for the assessment.
20. The Council will seek advice from the Council’s Housing Medical Advisor (CHMA). Information provided by the CHMA is an advice and the decision will be taken by a relevant officer in the housing service. The Council will confirm in writing the outcome of the assessment about medical priority within eight weeks.
21. Any decision by the Council made about a housing application can be challenged by seeking a review with the Council. The Council will aim to determine the review within 56 days of the request.
22. The Council will only undertake a further assessment for priority on medical grounds following a decision or review decision when it is satisfied there has been a change in circumstances relevant to the assessment or significant new information is available.

Personalised Housing Plans

23. Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness.
24. Councils should work with applicants to identify practical and reasonable steps for the council and the applicant to take to help them keep or secure suitable accommodation. These steps should be tailored to the household, and follow from the findings of the assessment, and must be provided to the applicant in writing as their personalised housing plan. (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.18)

Equality Act

25. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to anybody which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
26. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
27. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.

What happened

Previous complaint 22014961

28. When investigating Ms X’s previous housing complaint we issued our decision at the beginning of September 2023. We found fault with the Council for:
• Leaving Ms X and her family in an unsuitable accommodation after April 2022;
• Failing to reassess Ms X’s case after deciding her accommodation was not suitable;
• Failing to issue her with a PHP.

Background

29. In summer 2021 the Council accepted a relief duty to Ms X and issued her with a PHP. A month later the Council offered Ms X an accommodation which she accepted.
30. An Occupational Therapist (OT) working for the Council carried out an assessment of Ms X’s housing needs in April 2022. This assessment recommended a change of the property.
31. From April 2022 the Council accepted the accommodation where Ms X lived with her family was not suitable. In November 2022, with the Council’s agreement, a charity provided Ms X with an interim ground-floor accommodation in the area of a different council.

Housing register

32. In September 2022 Ms X asked the Council to change the priority in her housing register application from the priority banding three to the priority banding two. She referred to the new medical and OT evidence.
33. At the end of January 2023 an organisation used by the Council to assess its residents’ medical needs for the housing purposes (CHMA), recommended awarding the priority banding three to Ms X’s application. The following day the Council told Ms X of its decision in line with this recommendation.
34. Ms X asked the Council to review this decision and provided further medical evidence.
35. In April 2023 CHMA confirmed its recommendation for a priority banding three.
36. The Council issued a review decision on Ms X’s housing register priority banding at the beginning of June 2023. The Council upheld priority banding three stating the OT report was not available for the review office to consider.
37. Ms X asked the Council to send her the review decision in an “easy read” format. A few weeks later the Council sent Ms X this document in a bigger font size. Ms X was not happy with this and asked a review team leader for a telephone call.
38. During a telephone conversation with Ms X at the end of July the review team leader explained the Council’s reasons for not awarding Ms X’s application the priority banding two. No OT report was found on Ms X’s housing file. The Council said that before the end of the telephone call Ms X had confirmed she had understood everything and had been aware of the next steps. In her comments to my draft decision Ms X opposed this statement saying that she did not find the telephone call helpful and at the end of it still could not understand the Council’s decision letter.
39. In mid-August 2023 Ms X’s OT report from April 2022 was saved to her housing file and considered by a review team leader. The Council withdrew its previous priority banding decision and awarded the priority banding two to Ms X’s application. The Council confirmed it would only offer her a ground floor or lift-assisted property.
40. In its response to my enquiries the Council said it had received Ms X’s OT report and medical documentation in mid-September 2022.
41. In September Ms X bid for two properties, but the Council did not make them available for viewing.
42. The Council explained one property was not suitable for Ms X’s medical needs and could not be adapted.
43. Another one, the Council said, should have been offered for Ms X to view, but the Council had considered in error Ms X’s application at the priority banding three, which meant she had not been at the top of the Council’s shortlist. This happened because the Council normally assesses the suitability of the applicants’ accommodation before progressing with their application. In this case the Council agreed with the charity which offered Ms X a property not to change her priority banding. As a result of the Council’s failure to adhere to this agreement, until the second week of October 2023 Ms X was placed in the priority banding three and the property she bid for got offered to another applicant.
44. Ms X was not happy with the way the Council communicated with her in September 2023. Although the Council sent some information and references to the websites and the Council’s Allocation scheme, this was not in an “easy read” format. Ms X had some queries about the bidding process and availability of the properties which would be suitable for her and her family.

Complaint

45. In mid-August 2023 Ms X asked the Council to consider her complaint at stage two.
46. The Council responded to Ms X’s complaint in mid-September. This letter was not dated and was not in an “easy read” format. The Council:
• Apologised for the delay in awarding the priority banding two to Ms X’s housing register application. The Council confirmed the relevant officers would be reminded of the importance of saving all personal data to the applicants’ housing files. The Council said the delay did not affect Ms X’s situation as due to the shortage in the social housing properties the average waiting time for a two-bedroom property in the priority bands one or two was nearly four years.
• Apologised for not providing a review decision letter in an “easy read” format but said it did not consider it a reasonable adjustment. The Council said it may not be possible or proportionate to translate legal documents into an “easy read” format. It was exploring the ways of improving accessibility of decision letters but meanwhile considered a telephone conversation explaining the decision enough.
47. At the beginning of October Ms X told the Council her accommodation had severe damp and ventilation issues, which was affecting health of her family members. She said the landlord had not been addressing them quickly enough.
48. In its response to our enquiries the Council said Ms X did not raise any issues of disrepair as part of her complaint so the Council did not have an opportunity to consider them. Before complaining, the Council said, Ms X would be expected to raise the issues with the Council’s contract management team.
49. In the second week of January 2024 the Council offered Ms X a property, which she accepted.

Personal Housing Plan

50. At the beginning of October 2023 Ms X and the Council communicated about her PHP. The Council repeatedly asked for Ms X’s current address which she failed to provide. Ms X also failed to provide any updates on her housing circumstances.
51. Responding to my enquiries the Council admitted when asking for Ms X’s new address it should have explained it was needed for Ms X’s PHP. Besides the Council recognised Ms X had already provided her new address to a different service in the housing team so this should have been checked. The Council apologised for this oversight and any frustration it might have caused.

Analysis

Housing register

52. I cannot look at the merits of the Council decision about Ms X’s priority banding but have reviewed the Council’s process. The Council delayed considering Ms X’s application for a change in the priority banding. The Council had 56 days to consider it. After receiving Ms X’s application in September 2022 the Council made its decision at the end of January 2023. The delay of over two months is fault.
53. Besides when making its decision and reviewing it the Council failed to consider the OT and medical evidence which it had received in mid-September 2022. The Council had misfiled this evidence and only found it in August 2023. Based on the OT report and medical evidence, in August 2023 the Council changed Ms X’s priority banding from three to two. If the Council had considered the OT and medical evidence after Ms X’s application in September 2022, on the balance of probability it is more likely than not it would have placed her in the priority banding two at the time, avoiding the need to ask for a review of the Council’s decision. This is fault, which the Council recognised, backdated Ms X’s priority banding two to the end of August 2022 and undertook some service improvements.
54. The faults named above caused injustice to Ms X. She was confused by the process and the Council’s claims it did not have evidence needed for the change of Ms X’s priority banding. Ms X spent much time communicating with the Council as part of the review process and complaining. It is unlikely, however, that but for the Council’s fault Ms X would have been offered an accommodation through the bidding process sooner than in January 2024. As suggested in the Council’s correspondence the average waiting time for a property of the type needed by Ms X is just under four years. The Council backdated Ms X priority banding to the end of August 2022 and she got an offer of an accommodation in January 2024. In view of the average waiting time it is highly unlikely Ms X would have been offered a property any earlier than January 2024.

Viewing of the property

55. In September 2023 Ms X bid for two properties. She complained the Council had not allowed her to view them.
56. Bidding for the property does not give an automatic right to view. The Council found one of the properties could not be adapted to suit Ms X’s medical needs, therefore there is no fault in not offering to Ms X to view it.
57. The Council accepted another property should have been offered to Ms X for viewing if not for the Council’s error in Ms X’s priority banding. The Council failed to follow its agreement that Ms X would retain her priority banding when living in the accommodation offered by the charity in November 2022. This is fault, which caused Ms X injustice. On the balance of probabilities the Council would have been likely to offer the property to Ms X in September 2023, after allowing her to view it. It was offered to another applicant instead. Because of the Council’s fault Ms X remained uncertain whether, if not for the Council’s failing, she could have moved to the property she bid for. Ms X complained about mould and damp of the accommodation offered to her by the charity and was keen to move to the Council’s property as soon as possible. Ms X had to wait for the Council’s offer until January 2024, which meant the delay of four months.

Personalised Housing Plan

58. In September 2023 we found fault with the Council for its failure to issue a PHP for Ms X. The Council told us it would do so.
59. At the beginning of October 2023 the Council communicated with Ms X about her PHP and asked for her current address. Ms X failed to respond to the Council’s request.
60. I recognise the Council had some difficulties in getting the information necessary to update Ms X’s PHP. The Council told me, however, it had failed to explain to Ms X why it was asking for her address. Besides the Council admitted another part of the housing service had already had Ms X’s address and it was available on her housing file.
61. The Council’s failure to update Ms X’s PHP after our decision in September 2023 is fault, which caused Ms X injustice. She was distressed by the lack of plan and uncertainty about her prospects for getting accommodation suitable for her medical needs.

Reasonable adjustments

62. One of the objectives of the Council’s Equality and Diversity Strategy is to ensure that services are accessible and welcoming to all communities.
63. Ms X consistently asked the Council to provide her with the documents in an “easy read” format. She asked this for the Council’s priority banding review decision, Allocation scheme and the Council’s response to her complaint. The Council told us it did not consider it was reasonable to translate its review decision into an “easy read” format. The Council considered there was a risk the meaning of the review decision could be affected by summarising or simplifying it. Besides the cost of the service would be too much.
64. The Council sent Ms X its review decision in large font instead and offered her a telephone call to explain the decision. At this stage I have not seen any response to Ms X’s requests for a complaint response and an Allocation scheme in an “easy read” format.
65. I do not criticise the Council’s decision that providing Ms X with the priority banding review decision in an “easy read” format would not be reasonable. The Council explained why it had decided so and offered alternative ways of ensuring Ms X understood its decision. This is what we would expect.
66. The Council’s refusal, however, to engage with Ms X’s other requests for simplified documents suggests a blanket approach to this form of adjustments. As pointed out in paragraph four of this decision this is not acceptable and is fault. This fault caused Ms X injustice as she remained confused about the housing processes. She spent much time contacting the Council and seeking clarity about the bidding process and viewing of the properties she bid for.

Agreed action

67. To remedy the injustice caused by the faults identified we recommend the Council within four weeks of my final decision complete the following:
• Apologise to Ms X following our Guidance on remedies;
• Settle through a discussion with Ms X what adjustments for the written correspondence she needs and the Council considers reasonable. The Council will ensure there is a note with the agreed reasonable adjustments on Ms X’s file;
• Pay Ms X £500 for the uncertainty caused by the Council’s failing in allowing her to view the property she bid for in September 2023;
• Pay Ms X £300 for the distress experienced as a result of the Council’s other failings.
68. We also recommend the Council within three months of my final decision complete the following:
• Review the record keeping for its service users on the social housing register to ensure the record keeping is orderly and the documents are easily accessible;
• Promote a better understanding of the Council’s duty to make reasonable adjustments for its service users by ensuring the staff from the Council’s housing and complaint teams review our Focus Report ‘Equal access: Getting it right for people with disabilities’ issued in May 2022.

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

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Final decision

69. I uphold this complaint. For the reasons explained in the Analysis section I found fault in the way the Council dealt with Ms X’s application for the change of her housing register priority banding, reviewed her Personalised Housing Plan and addressed her need for reasonable adjustments. I also found fault in the Council’s refusal for Ms X to view the property she bid for in September 2023. The Council has accepted my recommendations, so 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