Summary: Miss X complained the Council has incorrectly assessed her priority on the housing register and failed to properly consider the extent of their overcrowding and how many bedrooms her family is short of their assessed need. The Council’s failure to have proper regard to the statutory overcrowding standards in this instance is fault. As is the significant delay in responding to Miss X’s complaint. These faults have caused an injustice. The Council has agreed to apologise to Miss X, make her a payment and re-assess her request for increased priority. It has also agreed to make service improvements.

The complaint

1. The complainant, Miss X complained the Council has incorrectly assessed her priority on the housing register and failed to properly consider the extent of their overcrowding and how many bedrooms her family is short of their assessed need.

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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. 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. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Miss X; and
• sent a statement setting out my draft decision to Miss X and the Council and considered the comments received before issuing this final decision.

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What I found

Housing allocations

5. 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))
6. An allocations scheme must give reasonable preference to applicants in the following categories:

• homeless people;
• people in insanitary, overcrowded or unsatisfactory housing;
• people who need to move on medical or welfare grounds;
• people who need to move to avoid hardship to themselves or others;
  (Housing Act 1996, section 166A(3))

7. The Council operates a choice-based lettings scheme which enables housing applicants to bid for available properties which it advertises. It uses a banding scheme to prioritise applications. Those with the highest priority will be awarded Band 1, and those with the lowest priority are awarded Band 5.
8. The policy uses the Department for Work and Pensions Bedroom Standard to determine overcrowding. Applicants living in overcrowded conditions who have been assessed as being two bedrooms short of what they need are awarded Band 2. While households who are overcrowded and require one further bedroom are awarded Band 3.
9. Applicants with an extremely urgent and immediate need to move for medical reasons, or due to a disability, which are being exacerbated by their current housing situation will also be awarded additional priority.

What happened here

10. Miss X has lived at her current property for over 10 years. In that time her family has grown and Miss X says the property is now too small.
11. In 2021 Miss X asked for priority on the housing register based on overcrowding. The Council placed Miss X in Band 3 on the basis she was overcrowded by one bedroom as she needed a four bedroom property. Miss X appealed the decision but the panel upheld the original decision and she remained in Band 3.
12. Miss X also applied for medical priority on the housing register in July 2021 based on her daughter’s medical condition. The Council did not award urgent medical priority. It advised Miss X to await the outcome of further hospital tests and to consider re-applying if future medical evidence supports this.
13. Miss X made a further request for medical priority in early 2022. In March 2022 the Council told Miss X its medical assessment panel had decided she did not warrant an urgent medical priority and would remain in Band 3.
14. In April 2022 Miss X made a formal complaint about the size of the small box room in her property. She said the minimum size for a bedroom for a child over the age of 10 should be 6.51 m² and for a child under the age of 10 should be 4.64 m². The box room in Miss X’s property does not meet this requirement.
15. Miss X told the Council her daughter had had to move out of the box room and now shared Miss X’s bedroom. Miss X’s daughter has epilepsy and she said the small bedroom did not allow enough space if her daughter had a seizure.
16. In its response the Council said the measurements Miss X had provided were recommendations for new build properties and houses of multiple occupation (HMOs) from 2015. Miss X’s property was built many years before that as a three bedroom house and there had been no alterations since it was built. The Council had measured the third bedroom and said it was 4.64m² gross. The fitted box in the room which accommodates headroom on the stairwell measures 0.48 m².
17. The Council did not uphold Miss X’s complaint. It said she had moved into the property knowing it had always been known as a three-bedroom property and that this was its intentional usage. The Council said the third bedroom was small but provided privacy, heat, ventilation and natural and electrical light, and would not be disregarded for benefit purposes. In addition the Council said there were lots of examples on line of smart, small living area ideas for storage, in order to make the most of the space available.
18. Miss X was not satisfied with the Council’s response and in mid-May 2022 asked the Council to consider her complaint further. She said that when she moved to the property she had two young children and the third bedroom was not really needed. Her children were now much older and she had had a third child who was almost 10.
19. Miss X said the living arrangements had affected her own and her daughter’s health and well-being.
20. In addition Miss X noted the extensive worked carried out at the property due to damp and mould. Work had been carried out in a number of rooms in the property, including reboarding and plastering two walls in the small room which had further reduced the size. Miss X said further work was needed to the small room and questioned whether the level of disrepair could be the reason for her daughter’s seizures.
21. The Council responded to Miss X’s complaint almost a year later in March 2023. It apologised for the delay in responding and said officers believed others would respond to the complaint and acknowledged it had not managed the complaint properly. The Council noted the crux of Miss X’s complaint was the need to move to a larger home and that having her current property reassessed as a two bedroom property would increase her priority on the housing register.
22. In considering the bedroom size the Council said its assessment started by considering the original intended purpose for the room. In this case it was clearly designed as a bedroom. It then considered whether any alterations had been made to the space. Although work to overboard the room had reduced the space by a small amount, it noted the room still accommodated a bed and a small amount of furniture. It also had privacy, ventilation and natural light as originally designed.
23. The Council was not persuaded the room had changed substantially from its original design to warrant no longer being classed as a bedroom.
24. It said that room size as an area of confusion and that there were two standards used to work out overcrowding. The Council referred Miss X to information on a housing advice website for an explanation of statutory overcrowding. And to an industry website which notes there’s no statutory definition of a ‘bedroom’. The term is used to describe a room used for sleeping in where you would expect to find a bed or other such piece of furniture designed for sleeping on.
25. The Council advised Miss X if she remained unhappy she could complain to the Housing Ombudsman Service (HOS). Miss X complained to HOS who then referred the complaint to us to investigate.
26. Since complaining to the Ombudsman Miss X has again asked the Council to consider the extent of their overcrowding. In March 2024 Miss X said the box room was too small for her daughter if she were to have a seizure and was still covered in mould even though it had been reboarded.
27. Miss X also made a further request for medical priority on the housing register based on her daughter’s medical condition and needs. Miss X said her daughter’s bedroom did not allow enough safe space for her if she were to have a seizure. In addition, if Miss X’s daughter did have a seizure in her bedroom Miss X would not be able to get into the bedroom to assist her without causing her harm.
28. The Council noted Miss X’s daughter had been weaned off all medication and the medical evidence showed the epilepsy appeared to be resolved. On this basis it decided not to award urgent medical priority.
29. Miss X says her daughter has subsequently seen her consultant and counsellor again regarding her depression. And Miss X’s own health has worsened. She has not made a further request for medical priority based on these changes in her own and her daughter’s health but will consider doing so.

Analysis

30. The Housing Act 1985 sets out two standards for statutory overcrowding. The room standard and the space standard. A dwelling is overcrowded if either is contravened. The Act says that in considering these standards, no account is taken of a room having a floor area of less than 50 square feet. (4.65 m²).
31. The Council’s allocation policy only considers overcrowding in terms of the number of bedrooms available. It makes no reference to the size of the rooms. However in considering whether, and the extent to which, Miss X and her family are overcrowded we would expect the Council to have regard to the Housing Act standards.
32. These standards do not just apply to new build properties and HMOs as the Council’s initial complaint response claims.
33. The Council has measured the box room in Miss X’s property as 4.64 m2, which is slightly smaller than the minimum standard. However, this is further reduced as 0.48m2 of the room is taken up to accommodate the headroom on the stairwell. This would leave a floor space of 4.16 m2, which is clearly below the minimum space standard. On this basis the Council should not take account of this room when considering overcrowding.
34. I recognise that for other purposes, such as benefit calculations, a room of this size would not automatically be disregarded. However the issue here is not what the room’s original purpose was when built, or whether the Councill as landlord, treats it as a three bedroom property for rent purposes, or whether it is a bedroom for housing benefit purposes.
35. The issue for the Council to determine is whether to award Miss X reasonable preference for overcrowded housing based on the number of bedrooms she was short of her assessed need. I am not persuaded the Council has properly considered this issue. Miss X has an assessed need for four bedrooms. In her current property only two bedrooms meet the statutory overcrowding space standards.
36. The Council has awarded Miss X Band 3 priority based on the original intended purpose for the room, and the fact this has not changed so it would still be classified as a bedroom. It has not properly considered the size of the room.
37. I consider the Council’s view that a member of Miss X’s family can sleep in a room that is too small for statutory overcrowding purposes is flawed. The failure to have proper regard to the statutory overcrowding standards in this instance is fault.
38. The Council has considered Miss X’s requests for medical priority together with the evidence she has provided and has determined this is not warranted. This is a decision the Council is entitled to make and is in line with its allocation policy.
39. The significant delay in responding to Miss X’s complaint at each stage of its process is fault. The Council’s complaints process say it will respond to complaints at stage two within 20 working days. In this instance the Council took 10 months. This is clearly unacceptable and amounts to fault.
40. Having identified fault, I must then consider whether this has caused Miss X a significant injustice. The failure to properly consider and address the size of the small bedroom caused Miss X distress, frustration and upset. It also led to uncertainty about the level of priority Miss X should have on the housing register and whether with increased priority she may have been able to successfully bid on a property. This was then compounded by the delay in considering Miss X’s complaint, which also put her to unnecessary time and trouble

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Agreed action

41. The Council has agreed to;
• Apologise to Miss X for the distress, upset and uncertainty caused by the fault identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• pay Miss X £500 in recognition of the distress, upset and uncertainty she experienced and time and trouble she was put to as a result of the fault identified;
• reconsider Miss X’s request for increased priority based on overcrowding at her home. In assessing Miss X’s request the Council should have regard to the standards for statutory overcrowding in the Housing Act 1985.
• If following this new assessment the Council increases Miss X’s priority on the housing register the Council should:
1. backdate this priority to her initial request for overcrowding priority; and
2. consider whether this increased priority would have affected any bids Miss X has made for properties under the choice-based lettings scheme. If Miss X has missed out on an offer of alternative accommodation the Council should seek to redress this in line with our guidance on remedies by way of a direct offer or symbolic payment
42. Council has also agreed to:
• review the way it considers overcrowding and bedroom need, and ensures relevant staff are aware of and take account of the statutory overcrowding standards; and
• ensure relevant staff signpost complainants to the correct ombudsman.
43. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Final decision

44. The Council’s failure to have proper regard to the statutory overcrowding standards in this instance is fault. As is the significant delay in responding to Miss X’s complaint. These faults have caused an injustice. The Council has agreed to my recommendations, so I have completed my investigation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman