Is the Council’s Housing Allocation Policy Lawful?

Folkestone & Hythe District Council is, without doubt, a hard-pressed council with extremely high levels of housing need, insufficient accommodation to meet that need, but who with an engaged staff do their best with the assets they have. 

To be offered a Council home is not as easy as one might think. It is not just rock up, fill in a form, and hey presto, there you go, have the keys to a council home. Oh no, it is a little bit more complicated than that. 

There are currently around 1,500 applicants on the housing list but only approximately 300 homes become available each year. This is why we need more social housing. 

But for all the good work the Housing team do, they have so the publicly available evidence would strongly suggest, made a silly procedural error of considerable significance. In summary, they have been getting external doctors to do their allocations medical assessments, and have done so for the last five years, according to the payment data. It is probably a cost-effective solution. However, the problem for Folkestone & Hythe District Council is that their Housing Allocation Policy states:

Assessments of medical priority will be carried out by by the Council’s Medical Panel which consists of two senior officers and using all information available at the time and using the above guide.

The problem for the Council is, their allocations policy states that allocations medical assessments are to be done in-house by the Council’s Medical Panel, or in more complex situations referred to the Kent Agency Assessment, not to any external doctors, such as those at Nowmedical, who we’ve written about not once but twice. The Council have not altered the element of their policy that allows them to contract with external doctors.

Nowmedical charge the Council £30 per case plus VAT for full advice with reasons in an individual report, or £20 per case plus VAT for priority and housing needs advice.

To date the Council have spent £26,172 pounds with Nowmedical, according to their payment to supplier data. 

There is case law on the issue of external doctors, such as Nowmedical, providing medical advice under the medical assessment part of the Housing Allocation Policy, by way of a judicial review.

What the Council’s Housing Policy should say is something along the lines of: 

Applications involving a health related issue will be assessed by the council with advice from either the applicant’s doctor and/or the council’s medical advisor(s) as appropriate.

Such wording can be found in the London Borough of Wandsworth Allocation Policy.

East Cambridgeshire District Council Housing Allocations Policy states:

Medical assessments will be carried out for any applicants who believe that their medical condition or disability is being affected by their current accommodation… These forms will be assessed by either a medical professional or an officer within Sanctuary Hereward.

And Lewes District Council Housing Allocations Policy states they’ll seek

an independent medical assessment

Many other Councils Housing allocation policy around the country also cover themselves by using similar wording, but not Folkestone & Hythe District Council.

We honestly believe, given the evidence available, our Council’s position is hugely problematic – any allocations medical assessments for priority which any external doctor has done – such as the ones done by Nowmedical – are we honestly believe judicially reviewable, as the policy, as it stands is unlawful.

So what’s the solution? Well that is simple, amend the Housing Allocation Policy to allow for independent/external medical advisors to profer advice & assistance, and do so urgently. 

Also for those of you who are not aware, Cllrs can be involved in Housing Allocation under certain circumstances.

The Allocation of Housing (Procedure) Regulations 1997 (SI 1997/483)  do prevent an elected Cllr from being part of a decision making body at the time an allocation decision is made, when either:

• the accommodation concerned is situated in their division or electoral ward, or
• the person subject to the decision has their sole or main residence there

This can be found in the latest statutory guidance for allocation of accommodation guidance for local authorities.

However, the regulations do not prevent an elected Cllr from another ward representing constituents in front of the decision making body, or from participating in the decision making body’s deliberations prior to its decision. If you have, or if you are making a housing application, and have had, or will need a medical assessment, then we strongly advise you get a Cllr involved to help and assist. But do remember they are not experts in housing law.

The regulations also do not prevent elected Cllrs’ involvement in policy decisions that affect the generality of housing accommodation in their division or electoral ward rather than individual allocations; for example, a decision that certain types of property should be prioritised for older people.

The person for overall responsibility for Housing is Andy Blaszkowicz. The Council’s Chief Officer for Housing is Gill Butler, both of them are responsible for the Housing Allocation Policy.

Now given that the Housing Allocation Policy appears from the evidence available, to be unlawful, the monitoring officer of our Council – Amandeep Khroud –  who is appointed under section 5 of the Local Government and Housing Act 1989, is required to report to the council where it appears to her the authority has done, or is about to do, anything which would contravene the law or which would constitute maladministration. Given the case law, and the fact external medical advice has been obtained from Nowmedical, in breach of the policy, we believe a s5 report is necessary. But will one be forthcoming? 

We’ll leave you to ponder that.

We are NOT Housing lawyers. As such, you should not rely upon this blogpost as legal or professional advice, or as a substitute for it. We do not accept any liability whatsoever for any errors, omissions or misstatements contained herein. You should consult a suitably qualified professional if you require specific advice or information, please use a legal aid soliticor who deals with housing, Shelter, or the Citizens Advice Bureau. 

The Shepway Vox Team

Dissent is NOT a Crime