Summary: the Council delayed telling Miss X about the residency requirement to be included on the housing register, delayed considering whether to exercise the Council’s discretion to waive that requirement, failed to properly consider Miss X’s representations when deciding not to waive the requirement, carried out a review when Miss X had not asked for one and delayed considering her complaint. An apology, payment to Miss X, reconsideration of whether to exercise discretion to waive the residency requirement and a reminder to officers is satisfactory remedy.

The complaint

1. The complainant, Miss X, complained the Council:
• misled her into believing she did not have to satisfy the residency requirement as she needed to move into the Council’s area for medical treatment;
• delayed telling her about the residency requirement;
• misled her into believing the Council had completed a review to help and assist her case when she had not asked for a review;
• failed to properly consider whether to exercise the Council’s discretion to waive the residency requirement;
• delayed responding to her complaint;
• wrongly refused to consider part of her complaint as out of time when she had complained within 12 months; and
• relied on incorrect information when responding to the complaint.
2. Miss X says the Council’s actions have caused her significant distress and have left her having to travel to her medical appointments on the train when she has significant medical difficulties. Miss X also says the Council’s actions have prevented her obtaining medical treatment she needs.

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The Ombudsman’s role and powers

3. 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)
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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. 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. As part of the investigation, I have:
• considered the complaint and Miss X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Miss X and the organisation 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

What should have happened

9. The Council’s housing allocations scheme says:
• From time to time the scheme refers to the existence of a discretion or general discretion. Except when otherwise provided, this refers to a discretion to be exercised by the Director of Housing or by a duly delegated person(s) and shall allow the person exercising the decision to take account of all circumstances considered appropriate and/or relevant by that person including (when considered appropriate and relevant) the demand for and supply of accommodation and the general housing circumstances within the City of Westminster.
• Applicants who have not been continually resident in Westminster for three years at the date of application cannot be included on the housing register.
• Applicants with less than three years' residence in Westminster can provide relevant information/evidence so their housing need can be determined and inclusion on the housing register will be at the Director's Discretion.

What happened

10. Miss X has inflammatory bowel disease and lives outside the Council’s area. Miss X receives her medical care in Westminster and has to travel on the train to her medical appointments. Miss X says the trains from her area to Westminster do not have on-board toilet facilities.
11. Miss X applied to go on the Council’s housing register on medical grounds in September 2022. Miss X explained the difficulties she had using the train to get to her hospital appointments due to her medical issues. That included incontinence, blood loss and disorientation. The Council asked Miss X for further medical information which she provided on 13 October.
12. On 24 October the Council wrote to Miss X to explain it did not consider she met the criteria for awarding medical priority. That letter told Miss X she could provide new medical information for the Council to reconsider the decision and asked her to provide proof of the medical treatment she received in Westminster.
13. Miss X telephoned the Council on 9 November. The officer Miss X spoke to told her she could request a review of the decision. Miss X told the adviser she needed more time to get medical evidence.
14. Miss X provided further medical documents on 14 November.
15. The Council wrote Miss X on 17 November to tell her it had registered her request for a review and would reconsider the decision. The Council asked Miss X to provide any evidence she wanted the Council to consider within 14 days. The Council said it would make the decision on the review within 56 days.
16. Miss X provided further medical information on 30 November and 23 January 2023. Miss X then chased the Council for an update on 31 January and 30 March.
17. The Council wrote to Miss X on 31 March to tell her the outcome of the review. The Council explained under the housing allocations scheme Miss X did not qualify to go on to the housing register as she had not lived in Westminster for three years at the date of the application.
18. Miss X contacted the Council on 15 May 2023 to point out she had not asked for a review and had instead provided medical evidence the Council had requested. Miss X raised concerns about the lack of time given to provide supporting medical documentation before the Council closed her case. Miss X raised concerns the Council had not told her she did not qualify to go on the housing register before March 2023. Miss X said she could not change her treatment in Westminster and asked the Council to reopen her application as she had received conflicting information.
19. Miss X spoke to a Council officer on 19 June. That Council officer then emailed Miss X on 20 June to confirm what they had discussed. The Council’s officer pointed out housing applicants needed a strong local connection for the Council to accept them on to the housing register. The Council’s officer told Miss X she should provide evidence she receives specialist treatment for a severe condition in Westminster and can only receive that treatment in Westminster. The officer told her the Council could then consider whether to place her on the housing register on a discretionary basis. The officer managed her expectations about whether that would be accepted and said it was not clear from the information provided why Miss X could not attend a hospital where she lived.
20. Miss X provided the Council with further documentation for her case on 27 July and 2 August.
21. Miss X wrote to the Council on 30 August to raise concerns about how the Council had dealt with her application. Miss X raised concerns again on 4 October.
22. On 12 January 2024 the Council emailed Miss X to tell her the Council had declined her housing register application because she did not live in Westminster and was not eligible to join the Council’s housing register. The Council explained if Miss X wanted it could present her case to the next professional reviews meeting to consider whether to exercise discretion to waive that requirement. The Council asked Miss X to provide more information about the treatment she received in Westminster. The Council explained the meeting would consider whether to exercise discretion to disregard the residency criteria and, if so, the Council would then decide whether she met the criteria for rehousing on medical grounds. The Council explained for her concerns about the administration of her application it could either register a formal complaint or the officer could respond to the issues she had raised. Miss X responded to ask the Council to consider exercising discretion to waive the residency requirement.
23. On 26 January 2024 the Council’s professional reviews meeting considered the case and decided Miss X did not have exceptional reasons to exercise discretion to include her on the housing register. The Council told Miss X that on 5 February by email. In that email the Council said the hardship Miss X faced travelling to appointments by public transport could be overcome by, for example, using incontinence pads.
24. On 6 and 27 February Miss X raised concerns about the Council’s failure to take into account the difficulties she experienced when reaching that decision.
25. Following a referral from the Ombudsman in April 2024 the Council responded to the complaint. The Council partially upheld the complaint as it accepted it had made an error in assessing the housing application for medical priority when Miss X did not meet the eligibility criteria. The Council apologised and offered her £210 to reflect the delay completing the review and the distress and inconvenience she experienced. The Council increased that to £260 at stage two.

Analysis

26. I am exercising the Ombudsman’s discretion to investigate what has happened since Miss X put in her housing register application in September 2022. That is because I am satisfied Miss X did not know about the residency qualification until after the review decision in 2023 and therefore had no reason to query the Council’s actions before that. Miss X put in her complaint to the Ombudsman slightly later than 12 months after the review decision. However, there is evidence Miss X had raised a complaint with the Council within 12 months and had not received a response which is why she had approached the Ombudsman.
27. Miss X says the Council misled her into believing she did not have to satisfy the residency requirement as she was looking to move into the Council's area due to medical reasons. Miss X says the officer she was dealing with told her once she provided medical information the Council would include her on the waiting list with medical priority.
28. Having considered the documentary records I have found no evidence to suggest the Council told Miss X at the outset of her application she did not have to satisfy the residency requirement as she was seeking housing on medical grounds. In fact, none of the Council's communications with Miss X before March 2023 referred to the residency requirement. I therefore could not say the Council told Miss X once she provided medical information it would include her on the housing register.
29. It is clear though when the Council wrote to Miss X to tell her the outcome of her application in October 2022 it only referred to her medical conditions. That letter did not refer to the residency condition. Instead, the letter told Miss X the Council was not satisfied it had evidence to show Miss X's medical care and treatments could only be undertaken in Westminster and not where she was living at that point. Given the letter did not refer to any concerns about the residency condition it was not unreasonable for Miss X to have believed this was not an issue and all she needed to do was provide the Council with medical evidence to show she could only undertake her treatments in Westminster.
30. The Council accepts it delayed telling Miss X about the residency requirement. That is fault. I have seen no evidence the Council mentioned the residency requirement as an issue for Miss X until it responded to the review in March 2023. That delay is also fault.
31. I am also concerned the Council failed to consider whether Miss X had exceptional circumstances to warrant it exercising its discretion to waive the residency requirement until 2024. That is despite the fact Miss X wrote to the Council repeatedly in 2023 to raise concerns about it applying the residency requirement. The documentary evidence I have seen shows the Council recognised by June 2023 it may have grounds to refer the case to consider waiving the residency requirement. I am therefore concerned the Council failed to do that until January 2024. I consider if the Council had acted as it should have done it would have told Miss X about the residency restriction in October 2022 and considered at that point whether to exercise its discretion.
32. Miss X is also concerned about the Council's decision to carry out a review on her housing case. Miss X says she did not ask for a review. The documentary evidence is not clear on the circumstances which led to the Council registering the review. Based on what I have seen I consider it likely there was a misunderstanding about whether Miss X wanted a review. I say that because the Council officer Miss X spoke to on 9 November told her she had the right to request a review. During that telephone conversation the officer also asked Miss X if she needed more time to provide evidence to support her review request. I therefore consider it likely while Miss X believed she was providing medical evidence to support her original application the officer she was dealing with believed it was to support a request for a review of the decision. The Council delayed in completing the review though. That is fault and added to the overall delay reaching the point where the Council considered whether it should exercise its discretion.
33. Miss X says the Council failed to properly consider her case when deciding not to exercise its discretion to waive the residency requirement. As I say in paragraph 9, the Council's allocations scheme makes clear the decision about whether to waive the residency requirement is a decision the Director of Housing will consider. I am satisfied though the Council's allocations scheme also allows a duly delegated person(s) to make the decision. I do not have any evidence to show the professional reviews meeting has delegated authority to take this decision on the Director of Housing's behalf. I am therefore not in a position to say the professional reviews meeting had authority to make a decision on Miss X's case.
34. However, the evidence from the professional reviews meeting I have seen does not satisfy me the Council properly considered the representations Miss X made about having the residency condition waived. Miss X had set out in detail the reasons why she felt the Council should waive the residency condition. The only document the Council has provided detailing its consideration of Miss X's case does not list any of the reasons Miss X put forward. Nor does the record of the decision record why participants at the meeting were not satisfied Miss X had exceptional reasons to waive the residency criteria. Failure to properly consider Miss X's representations and record the reasons for the Council's decision is fault. I am also concerned the Council did not write to Miss X formally following that meeting to set out why it did not consider exceptional circumstances applied. That is also fault.
35. The Council says members of the meeting were satisfied Miss X could address the issues with travelling to the hospital on a train without toilet facilities by wearing incontinence pads as the reasoning for its decision. That was not recorded in the notes from the decision meeting though. Instead, the notes only record members of the meeting were satisfied the difficulties Miss X experienced travelling to appointments could be overcome. The meeting did not record anything about how those difficulties could be overcome. Miss X had also referred to many difficulties travelling, only one of which related to her incontinence. In those circumstances I am not satisfied the Council properly considered whether to exercise its discretion to waive the residency requirement.
36. In its response to my enquiry the Council said part of the reasoning for not exercising discretion to waive the residency requirement was because it was satisfied Miss X could access medical provision in her own area and therefore avoid travelling. Again, that is not a matter recorded in the notes from the professional reviews meeting. Nor is it something the Council mentioned in its correspondence with Miss X after the meeting. I am therefore not satisfied this formed part of the decision not to exercise discretion to waive the residency requirement.
37. It is not for me to say whether the Council should waive the residency requirement. That remains a decision for the Council. As part of the remedy for this complaint I recommended the Council consider again the representations Miss X made and any updated information about why the residency requirement should be waived. If the Council decides to waive the residency requirement it should consider whether to backdate Miss X’s registration date to September 2022. The Council should then write to Miss X to tell her its decision. The Council should ensure it keeps detailed notes of what it considered and the reasons for any decision reached. Should the Council not have evidence the professional reviews meeting has delegated authority to take the decision it should be considered by the Director of Housing.
38. I am also concerned about the delay in considering Miss X's complaint. The Council says it did not receive a complaint from Miss X until the Ombudsman referred it back in April 2024. However, the documentary evidence shows Miss X repeatedly raised concerns about the Council's handling of her housing application in May 2023, August 2023, October 2023 and February 2024. While Miss X did not head any of those communications as a complaint I am satisfied it was clear from the content of those communications she was complaining about how her case had been dealt with. I therefore consider the Council at fault for failing to identify those communications as a complaint.
39. I am also concerned when responding to the complaint at stage two the Council said it would only consider how it had handled the reviews as the earlier issues were more than 12 months before the complaint. I do not consider that reflects the documentary evidence. As I said in the previous paragraph, Miss X had raised concerns about how the Council had dealt with her application since May 2023. That was within 12 months of the decision on her housing register application. The Council was therefore at fault for failing to identify that and for ruling part of the complaint out of time.
40. The Council accepts when responding to the complaint it included incorrect dates. That again is fault.
41. I am satisfied the faults I have identified caused a significant delay in reviewing Miss X's case and in considering whether to exercise discretion to waive the residency requirement. Had the Council acted as it should have done it could have completed the process within a matter of months. Instead, it took from October 2022 until January 2024 for the Council to consider whether to exercise its discretion to waive the residency requirement.
42. I am satisfied that has caused Miss X significant distress as well as leading to her having to go to considerable time and trouble to pursue the matter with the Council and then the Ombudsman. I am also satisfied Miss X is left with uncertainty about whether the situation could have concluded earlier. Miss X is also left with uncertainty about whether she would have been in a different position had the Council properly considered her representations.
43. I do not consider it likely though Miss X missed out on a property even if the Council changes its decision and exercises discretion to waive the residency requirement. That is because it is clear from the figures the Council has provided that there are currently 75 applicants on the housing register with medical priority waiting for the type of property Miss X would be considered for. The Council has made clear it makes around nine lettings to the medical priority waiting list group each year. I am therefore satisfied even if the Council had placed Miss X on its housing register with medical priority it is unlikely she would have secured a property between 2022 and 2024. I therefore consider Ms X’s injustice is limited to her distress and uncertainty. As remedy for that I recommended, in addition to a reconsideration of whether to exercise its discretion, the Council apologise to Miss X and pay her £600.
44. I also recommended the Council
• remind officers dealing with housing register applications of the need to consider the residency requirement before considering whether to award medical priority to an application;
• remind officers dealing with housing register applications of the need to consider whether to refer a case for consideration about whether discretion should be exercised in relation to the residency requirement;
• carry out a training session for officers on how to identify a complaint, noting that the person submitting representations may not have referred in the letter/email to wanting to submit a complaint.
45. The Council has agreed to my recommendations.

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Action

46. Within one month of my decision the Council should:
• apologise to Miss X for the distress, uncertainty and frustration she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Miss X £600;
• carry out a further consideration of whether to exercise the Council’s discretion to waive the residency requirement in Miss X’s case. If the review decides Miss X can join the housing register, the Council should consider whether to backdate her registration to September 2022. The Council should then write to Miss X to tell her its decision;
• remind officers dealing with housing register applications of the need to consider the residency requirement before considering whether to award medical priority to an application;
• remind officers dealing with housing register applications of the need to consider whether to refer a case for consideration about whether to exercise the Council’s discretion to waive the residency requirement;
• carry out a training session for officers on how to identify a complaint, noting that the person submitting representations may not have referred in the letter/email to wanting to submit a complaint. The Council may wish to use the Ombudsman’s Complaint Handling Code as a basis for that training.

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Final decision

47. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman