Summary: We found fault in the way the Council handled the complainant’s (Miss X) housing register application and how it dealt with her complaint. This fault caused Miss X injustice. The Council agreed to apologise, consider backdating Miss X’s housing application and consider whether Miss X’s individual circumstances justify applying exceptions from the Council’s Housing Allocation policy. The Council has also agreed the time and trouble payment.

The complaint

1. Miss X complains about the Council’s failure to:
• Offer her and her four children suitable accommodation while her ex-partner lives in a three-bedroom Council’s house on his own;
• Provide her with accommodation within reasonable time;
• Explain the reasons for changing the Council’s position on her eligibility for a property when she was fourth on the waiting list;
• Respond to her complaint.
2. Miss X says the Council’s failings impacted her mental health and she is now taking medication. They caused her stress and anxiety.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused 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)
4. 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)
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. 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.
7. 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.
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. As explained in paragraph five we would normally investigate only the events which happened within twelve months from when the complainant came to us. Miss X brought her complaint to us in February 2024. I have decided there are good reasons for extending my investigation to October 2022 as the Council significantly delayed responding to Miss X’s complaint. She should not bear negative consequences of the Council’s failings.

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How I considered this complaint

10. I spoke with Miss X and considered the information she provided.
11. I made enquiries with the Council and considered the information it provided.
12. 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

Legal and administrative framework

Housing allocations

13. 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.
14. 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.
15. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority. (Housing Act 1996, section 166A(9))
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.
17. Statutory guidance on the allocation of accommodation says:
• review procedures should be clear and fair with timescales for each stage of the process;
• there should be a timescale for requesting a review - 21 days is suggested as reasonable;
• the review should be carried out by an officer senior to the original decision maker, or by a panel not including the original decision maker;
• reviews should normally be completed within a set deadline - 8 weeks is suggested as reasonable.

The Council’s housing allocations policy

18. The Council uses a banding scheme to prioritise applications for housing. There are five bands representing different levels of need, different degrees of urgency and the reduced preference given to certain applications.
1. Band 1: people the Council needs to move
2. Band 2: people with urgent needs
3. Band 3: people with more than one need
4. Band 4: people with one needs
5. Band 5: reserve band
19. Overcrowding priority is awarded at two levels. Applicants who are short of one bedroom will be placed in Band 4, and applicants who are short of two or more bedrooms in Band 2. The assessment is conducted as follows, and the priority given may only be used to move to a larger property or one whose layout will address the overcrowding including a move from a flat or maisonette to a house with the same number of bedrooms. There must be satisfactory evidence of the existence of each member of the household. Lodgers or non-dependants will not be included unless they are the adult children of the family who have not yet left home or they are living permanently within the household because of a specific social care need.
20. Persons who are already in Band 1 or 2 need not apply for medical assessment unless an adapted property may be required (level access shower, stairlift, vertical lift).
21. Exceptions to policy in the following areas may be agreed by the authorised officers where there are exceptional circumstances:
1. To allow reasonable preference to an applicant who would otherwise have less or no preference due to financial resources, out of borough status or previous tenancy history or allow an application or allocation where the applicant is not sold subject to contract – authorised by Team Manager (Housing Options) or Head of Service
2. To accept a request for transfer within two years or with arrears or other breaches of tenancy, or allow a joint tenancy or mutual exchange that would not otherwise be allowed, or an allocation of a property to a former joint tenant, an under-occupying successor, a non-successor, or other lodger left in occupation of that property – authorised by Team Manager (Estates & Communities) or Head of Service
3. To allow an allocation outside the usual occupancy standards or designation or restriction on property types – authorised by Team Manager (Housing Occupational Therapy), Team Manager (Housing Options) or Head of Service
4. To accept an application and allow reasonable or additional preference to applicants in order to meet the needs of vulnerable adults or children – authorised by a Housing Management Head of Service.
22. The process for letting new Council homes differs from the usual process because a number of homes will be let simultaneously, and it is important that a sustainable community is established. There is an overarching Lettings Plan for new homes, and individual Lettings Plans are produced for each scheme and displayed on the Council website. All lettings are subject to home visits and affordability assessments.
23. Applicants who disagree with a decision that the Council should generally request a review within 21 days of the date of the letter that informed them of that decision. The Council is required to respond to it within 56 days, unless a longer timescale is agreed.

The Council’s complaint procedure

24. The Council’s corporate complaint procedure consists of two stages:
• Stage one – the Council will acknowledge complaint within five working days and will aim to provide its response within a maximum of 20 working days;
• Stage two – if unhappy with the outcome of the Council’s investigation the complainant can ask the Council to escalate their complaint, setting out their reasons for dissatisfaction. The Council will provide a response with a detailed outcome within 20 working days from acknowledgement. If the complainant remains unhappy at the end of this process, they can contact the Ombudsman.

What happened

Background

25. Miss X joined the Council housing register in October 2019. She included her daughter in the application. The Council placed her application in band four as she was living in the property rented by her father.
26. In May 2022 Miss X told the Council her three sons moved in with her to her father’s property. Until then they had lived with their father (Mr Y). The Council asked Miss X for the evidence she was a full-time carer for her children.

Housing register application

27. At the beginning of October 2022 the Council told Miss X her housing application was due for re-registration. To stay on the housing register Miss X needed to complete the form.
28. In mid-November Miss X sent some documents about her children. The Council asked for the details of the access arrangements between her and Mr Y.
29. The Council received a form signed by the children’s parents at the beginning of December 2022. The form confirmed all three younger children of Miss X lived with her and there were no formal access arrangements. The children would only stay with Mr Z overnight once a week, provided he was not working on Sunday.
30. The internal correspondence in the Council followed to clarify Miss X’s biddings rights since Mr Y lived in the Council’s three-bedroom house.
31. After some chasing from Miss X, the Council contacted her in the second week of January 2023.The Council explained her three younger children could be added to her application but she would only be able to bid for flats or maisonettes as Mr X was a tenant of the Council’s house which her children would still be using. The Council quoted its policy which prevents the Council to give tenancy in the Council’s houses to two parents with shared care of their children.
32. At the same time the Council told Miss X it changed the banding of her housing application to band five as her daughter became an adult. The Council asked for extra information about the daughter’s circumstances. The Council says it did not receive a response to its request for information.
33. In mid-March 2023 Miss X asked her Member of Parliament for help in resolving her problem with housing.
34. At the beginning of April the Council re-sent a request for extra information about Miss X’s grown-up daughter. Miss X responded she had called the Council immediately after receiving its correspondence in January and asked it to send her a hard copy of the form attached to the email. The Council had failed, she said, to send her the form.
35. Once the Council received the evidence and an occupancy form, the Council stated it placed Miss X’s application in banding two for severe overcrowding from the second week of April 2023. The Council again told Miss X she could only bid for flats or maisonettes.
36. Miss X was unhappy with the Council’s position. She told the Council her children needed a garden. She also explained Mr Y had offered to give up his Council house if the Council offered her a house. She said she wanted to appeal the Council’s decision and complain.
37. The Council again stated it had to follow its housing policy. It could not make arrangements outside this policy as had to ensure fairness and transparency. To make it possible for Miss X to bid for houses, Mr Y would need to apply for transfer and be rehoused. Mr Y could enquire with the housing manager whether the Council could assign his tenancy to Miss X and the children. The Council provided details of the appeal and complaint processes.

Bidding for the property in autumn 2023

38. At the end of July 2023, after adding Miss X’s daughter to her housing application, the Council assessed the family needed at least four bedrooms.
39. In the early autumn 2023 Miss X bid for a three-bedroom house. Miss X was fourth on the bidding list but the Council offered the house to an applicant with band three. Miss X received information the property was newly built by a housing association and its allocation would be in line with the Local Lettings Plan which may not be a top bid. The reason Miss X was not successful was that she did not meet the Local Lettings Plan criteria.
40. In its response to my enquiries the Council said when making an offer of this property the Council had to consider criteria within the Local Lettings Plan. The three-bedroom houses on this site were for families with two or more children where the children could share, within a maximum household size of five. As Miss X’s children were not of sharing age, the housing association would not accept Miss X’s family for this property.
41. Responding to my further enquiries the Council said even if Miss X had met the occupancy criteria of the Local Lettings Plan, she would not have been eligible for the three-bedroom house she bid for as she was only eligible for flats or maisonettes.

Complaint

42. Miss X complained to the Council at the end of August 2023.
43. Throughout autumn 2023 Miss X several times contacted the Council to ask for a response. She turned to her Member of Parliament for help, which resulted in his letter to the Council.
44. In February 2024 Miss X brought her complaint to us. The Council told us it was still reviewing Miss X’s complaint. It could not provide a definite date for a response. At the beginning of April 2024 the Council told us the investigation into Miss X’s complaint continued. The matter was escalated to the Director for Housing and Communities to investigate.
45. On the same day the Council’s responded to us, Miss X contacted us to say she received a telephone call from the Council. The Council’s officer told her:
• The delay in responding to Miss X’s complaint was caused by the need to seek advice from the Council’s legal team.
• There is no way Mr Y could assign the tenancy of his house to her as she was not eligible to succeed to his tenancy.
• As Mr Y occupied the Council’s house, Miss X was not eligible for a house only a flat or maisonette.
• If Miss X had accepted an offer of a flat or a maisonette, she could consider a mutual exchange later. Miss X was not happy with this suggestion as she did not think living in a flat was suitable for her autistic child.
• The Council was prepared to talk to Mr Y about his tenancy but Miss X did not wish for this to happen. In her comments to my draft decision Miss X said she could not remember telling the Council not to contact Mr Y as it was his initiative to arrange exchanging tenancies.
46. The Council told us it had orally responded to Miss X’s complaint in April 2024.

Analysis

Housing register application

47. I looked at the process followed by the Council from October 2022. Once the Council received forms signed by Miss X and Mr Y about access arrangements for their three children in the early December 2022, it told Miss X she was only eligible for flats or maisonettes. This is in line with the Council’s policy.
48. In January 2023 the Council asked Miss X to explain the circumstances of her daughter who became an adult. Miss X told me she had called the Council and asked for this form to be sent by post. This is confirmed by Miss X’s email to the Council from the beginning of April 2023. The Council claimed as it had not received the form needed, it could not progress Miss X’s application.
49. On the balance of probabilities I find it is more likely than not that Miss X asked the Council to send her a bedroom occupancy form in January 2023, which it failed to do. This is because Miss X mentioned it in her correspondence to the Council at the beginning of April 2023. Besides there is evidence Miss X tended to send the documents needed by the Council without much delay.
50. The Council’s failure to send Miss X a hard copy of the occupancy is fault. This fault caused Miss X injustice as once she had sent an occupancy form to the Council in April 2023, her banding was changed from band four to band two. Miss X’s circumstances did not change between January and April 2023.
51. When reviewing the Council’s decision-making process for Miss X’s housing eligibility I did not find any evidence the Council considered whether her individual circumstances were exceptional and would justify departing from the Council’s Housing Allocation policy. According to the policy Miss X was only eligible for flats or maisonettes. When asking for a property with a garden Miss X mentioned one of her children was autistic and needed outdoor space. At this stage I have not seen any evidence the Council looked into this as part of its decision making. This suggests fettering the Council’s discretion as explained in paragraph six of this decision and is fault.
52. The Council’s fault caused uncertainty for Miss X of what the Council’s decision would have been if it had considered all her and her children’s individual circumstances.

Bidding for the property in autumn 2023

53. I did not find any failings in the way the Council handled Miss X’s bidding for a three-bedroom house in the autumn 2023. Although Miss X was fourth on the waiting list in her band, she did not meet the Local Lettings Plan criteria for the property. Besides she was only eligible for flats or maisonettes, which the Council explained to her in January 2023.

Complaint

54. The Council significantly delayed its response to Miss X’s complaint from August 2023. After multiple contacts, involving correspondence from a Member of Parliament, the Council’s officer called Miss X which the Council considered a sufficient response to Miss X’s complaint.
55. When handling Miss X’s complaint the Council failed to follow its corporate complaint process by:
• Significantly delaying its response. The Council should have responded within 20 working days which would be in September 2023. The Council did not address Miss X’s concerns until April 2024 so seven months later.
• Failing to provide its response in writing.
56. The Council’s fault within its complaint handling caused injustice to Miss X. She contacted the Council many times and sought a Member of Parliament’s help in reaching resolution with the Council. She spent much time trying to get her concerns addressed.
57. In its comments to my draft decision the Council explained that Miss X’s communication was erroneously registered as a service request rather than stage one complaint. The Council can respond to service requests either by telephone call, by email or by letter. This is why the Council considered a telephone call enough to respond to Miss X’s concerns.
58. The Council told me it had already addressed the delays in handling Miss X’s complaint with individual members of the Council’s staff.
59. The Council said in February 2024 its complaint team attended a training on a new complaint handling code delivered by the Housing Ombudsman. Additionally the Council is in the process of putting together its own internal complaint handling training package.

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Agreed action

60. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Miss X for the injustice caused to ger by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
• consider changing the start date of Miss X’s housing register application from April 2023 to the date when the Council would have been likely to have made the decision on Miss X’s housing application banding if it had not delayed sending Miss X a hard copy of the occupancy form. To establish this date the Council will calculate how long it took Miss X to send back the occupancy form from the date she received it and how long the Council took to make its banding decision.
• consider whether Miss X’s and her children’s individual circumstances justify applying exceptions from the Council’s Housing Allocation policy. It is accepted the Council will need extra information from Miss X to make its decision.
• pay Mrs X £200 to recognise time and trouble caused to Miss X by the Council’s failings in the way it handled her complaint.

The Council will provide the evidence that this has happened.

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Final decision

61. I uphold this complaint. For the reasons explained in the Analysis section I found fault in the way the Council dealt with Miss X’s housing register application and considered her complaint. This fault caused her injustice. 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