Summary: Miss X complained the Council decided she should not have medical priority on her housing application and that it took too long considering her request for a review of that decision. The Council was at fault. This caused Miss X avoidable frustration, upset and uncertainty. To remedy her injustice, the Council will apologise, pay Miss X £400, carry out a new review and inspect Miss X’s home for health hazards. The Council was also at fault for delay considering the review requests of 46 other applicants in a six-month period. The Council will apologise to those applicants, backdate their priority banding if their reviews were upheld and carry out service improvements to prevent this fault happening again.

The complaint

1. Miss X complained the Council decided she should not have medical priority on her housing application and that it took too long considering her request for a review of that decision, only completing it when she complained. Miss X said damp and mould in her house was harming her and her son’s health and the wait for the review decision caused her unnecessary distress.

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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 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 may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
4. 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

5. I have considered:
• all the information Miss X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
6. 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

Relevant law and guidance

Housing allocations

7. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing. All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
8. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.
9. The Council’s allocation scheme sets out that applicants will be placed in one of three bands. Band 1 applicants have the highest priority and band 3 the lowest. Band 1 includes applicants with a priority medical award. This award is given when the applicant or someone in their household has:
• a severe long-term limiting illness, or a permanent and substantial disability, and
• their health or quality of life is severely affected by the home they live in.
10. The scheme sets out that applicants can ask for a review of their priority award decision. The Council aims to complete reviews within 56 days of the request.

Disrepair

11. Local authorities have powers under the Housing Health and Safety Rating System (introduced by the Housing Act 2004, Part 1) to take enforcement action against private landlords where the council has identified a hazard which puts the health and safety of the tenant at risk.
12. If a council considers a category 1 hazard exists in residential premises they must take appropriate enforcement action in accordance with section 5 of the Act. Councils have discretion to take enforcement action if a category 2 hazard is identified. Damp and mould and structural cracks are issues which may amount to a Category 1 or 2 hazard.

What happened

13. Miss X rents from a private landlord and is in band 2a on the Council’s allocation scheme. In 2019, construction work on a property next to Miss X’s resulted in large cracks to her external walls. These allow water into the property, which a 2021 inspection by the Council’s environmental service (ES) concluded was the likely cause of the mould and damp in Miss X’s home. The ES also noted Miss X’s home needed repairs to a damp proof course and window seals to prevent the mould.
14. Following that inspection, the Council asked Miss X’s landlord to carry out repairs.
15. In late February 2023, Miss X submitted a medical priority application form to the Council saying her son, Y, had frequent chest infections and had a cough for the past two years. Miss X included the following evidence:
• the April 2021 inspection report;
• a recent letter from Y’s paediatrician who said they were treating Y for a chronic cough. The doctor said they believed the cause of Y’s recurrent infections was a sensitivity or allergy to mould caused by her home;
• copies of contact from 2019 between her and her landlord about the mould; and
• a letter from 2022 from Y’s GP which noted Y attended the practice regularly, currently had a chest infection and needed an inhaler.
16. In early March 2023, a legal advisor working with Miss X told the Council:
• Miss X’s landlord had been slow to repair the cracks in the external walls and the repair work had ultimately failed;
• the landlord had not fixed the window seals because they were joint owned with another landlord;
• the landlord had told Miss X she would be evicted if she continued to report disrepair; and
• the impact of the mould was severe enough that doctors had suspected Miss X’s child had tuberculosis. This was fortunately not proven after tests.
17. The Council sought the views of a medical advisor who concluded Miss X’s case did not meet either criteria for medical priority. They said the damp in Miss X’s property needed repairing urgently.
18. The Council decided, in late March 2023, that Miss X did not have medical priority. Its decision letter noted that while it agreed an individual in Miss X’s household had a severe long-term limiting illness or a permanent or substantial disability, it did not conclude their health or quality of life was being severely affected by their home. It confirmed Miss X continued to receive band 2a priority.
19. Miss X asked for a review in mid-April 2023.
20. Miss X complained at stage one of the Council’s complaints procedure in late July. Her complaint included that it had taken too long to answer her review request. Two days later, the Council’s health advisor asked ES for more information about the damp and mould in Miss X’s property, to decide whether it was suitable to live in.
21. In early September 2023, the Council’s housing service told the health advisor there was no need for a report from ES on the suitability of Miss X’s home for living in because she is not a council tenant.
22. The health advisor responded to explain that given Miss X had reported the damp and mould was causing health issues, they needed a damp report including details of how severe the issues were and about the potential for repair. The advisor noted ES do inspect private properties if they may be unfit to occupy.
23. In mid-October 2023, Miss X asked for a stage two response to her complaint. The following day, the health advisor completed their assessment. They advised the landlord make repairs to Miss X’s home as soon as possible and that she may want to contact its environmental health service for enforcement action if needed.
24. The Council issued its review decision the following day. It did not give Miss X medical priority.
25. The Council’s stage two response dated from mid-February 2024 included that:
• it was sorry for the delay in responding to Miss X’s housing priority review; and
• it was also sorry for the delay answering her stage two complaint.
26. In response to my enquiries, the Council said that between January and July 2024, 46 applicants had waited longer than 56 days for their review outcome. The Council said three of those reviews were upheld, resulting in a higher priority banding.

Findings

Medical priority

27. In coming to its March 2023 decision not to award Miss X medical priority, the Council relied in part on the medical advisor’s opinion. In their assessment, the advisor noted they had read the letter from Y’s paediatrician which stated they were treating Y for a chronic cough and shared their view that her property was the cause her Y’s repeated chest infections and affecting their wellbeing. However, it is not clear how the advisor decided the letter did not indicate the property was having a severe impact on Y’s quality of life or health. This was fault and meant the Council’s decision to refuse medical priority was at least in part, based on a flawed consideration of Miss X’s circumstances.
28. In addition, I am not satisfied the Council’s decision letter gave Miss X enough information to allow her to understand its decision making and make an effective review request, which was fault. The Council’s letter only stated that while it was satisfied Miss X’s household met the first criteria (that someone in the house had a severe long-term limiting illness or a permanent and substantial disability), the evidence did not show she met the second criteria (that her home was having a severe impact on the health or quality of life of people in the home). It should have explained why Miss X’s medical information was discounted or was insufficient to demonstrate a need for medical priority.
29. Miss X asked for a review of the Council’s decision in mid-April 2023. As part of the review, the medical advisor asked for more information on Miss X’s home. The Council’s housing department tried to argue that information was not necessary, but the advisor remained satisfied it was, in order for them to give adequate advice. However, the advisor later completed their assessment without the information, and the Council issued its review outcome the same day. This was one day after Miss X made her stage two complaint request. This suggests Miss X’s complaint prompted the Council to make its decision, without the necessary information. This was fault.
30. The Council’s decision letter again failed to explain how it came to the decision not to uphold her review. This was further fault.
31. In addition, the review decision was significantly overdue. In accordance with its allocation scheme, the Council should have responded by early June 2023. It did not respond until mid-October, over four months late. This delay was fault.
32. Further, despite issuing its decision in mid-October, the Council did not respond to Miss X’s stage two complaint about the review delay until February 2024. This was a further delay and was fault.
33. Overall, the faults set out in this section caused Miss X avoidable frustration and distress. They also caused her uncertainty about what the Council would have decided had it considered her February 2023 application and review request properly.

Fault affecting others

34. The Council was also at fault for delay in making 46 people’s review decisions between January and July 2024. For 43 of those people, the delay only caused frustration and uncertainty because their reviews were not upheld. However, in three cases, the reviews were upheld, resulting in increased priority. The injustice to those individuals was greater. I have made a recommendation below to address the injustice experienced by all 46 individuals below.

Disrepair

35. In her priority application Miss X told the Council her home had been in disrepair for some time and had not improved despite a Council inspection in 2021. The letter from her legal advisor noted a previous attempt to fix the wall cracks had not worked and Miss X’s landlord was unable to repair the windows without agreement from another landlord.
36. This should have prompted the Council housing department to pass the information to its ES to consider whether they should carry out a new inspection to decide if the issues were hazards under the Housing Health and Safety Rating System. The Council did not do this, which was fault. Instead, it recommended Miss X’s landlord complete the repairs recommended by ES in 2021 urgently and noted she could return to the ES service if enforcement was needed.
37. The Council had information to indicate Miss X may be living in a home with a health hazard and had been for some time despite its previous involvement; it should have proactively considered whether to inspect. This caused Miss X further unnecessary upset and frustration.

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Agreed action

38. We have the power to make recommendations to remedy the injustice experienced by complainants and members of the public affected by fault we identify. (Local Government Act 1974 s 31(2B)). I have set out below the actions the Council should take to remedy the injustice to Miss X and those people who are also caused an injustice by the Council’s fault.
39. Within one month of the date of my final decision, the Council will take the following actions:
1. Apologise to Miss X for the frustration, upset and uncertainty she experienced due to its failure to properly consider her application for medical priority or her review request, its poor decision letters, its delay in responding to her review request and complaint and its failure to consider if it should inspect her home for health hazards. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
2. Pay Miss X £400 in recognition of her injustice.
3. Carry out a fresh review of Miss X’s medical priority application. The review should consider Miss X’s original review request alongside any new information Miss X to support her application. The review should be carried out by someone not previously involved in Miss X’s case. If the review is upheld, the Council should backdate Miss X’s new priority band to the date of her application in February 2023.
4. Carry out an inspection of Miss X’s home to assess for category 1 and 2 health hazards and clearly record its reasons.
40. If the Council has not already done so, it will, within one month of the date of my final decision, take the following actions.
1. Apologise to the 46 applicants whose priority review requests were delayed. The apologies should meet the standards set out in the Ombudsman’s guidance on remedies.
2. Backdate the priority banding of the three applicants whose reviews were upheld to the date they applied for medical priority.
41. Within three months of the date of my final decision, the Council will take the following actions.
1. Review the template letter it uses for medical priority decisions and review outcomes. The review letter should ensure that where staff are refusing an application, they are prompted to explain, in enough detail, how they considered medical information and why the information was either discounted or insufficient to demonstrate a need for medical priority. The Council may want to consider the Ombudsman’s recent focus report ‘Medical assessments for housing applications’ as part of the review.
2. Remind housing staff that where they become aware a person may be living in a home with a category 1 or 2 hazard, they should share the details of its Environmental Services team, who carry out health hazard inspections, with the applicant.
3. Send the Ombudsman an action plan setting out how it will reduce the wait time for priority banding reviews. The plan should set out the steps the Council will take, who will complete them and by when.
42. The Council will provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman