The Ombudsman's final decision
Summary: Mrs X complained that the Council failed to support her when she was threatened with homelessness and failed to respond to her complaints about its failure to provide a service for her and her young family. We consider the Council is at fault and that this caused her an injustice because of the distress caused by the risk of becoming homeless. We have made recommendations to address the injustice caused.
The complaint
Mrs X complained that the Council: Failed to support her and her young family when she became threatened with homelessness, and Failed to respond to her complaints about its lack of service.
She says this has caused her and her young family distress because of the anxiety caused by the risk of imminent homelessness with no support.
She considers the Council should consider her circumstances to have been exceptional and award her a house under a direct offer.
The Ombudsman’s role and powers
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) 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)
How I considered this complaint
I spoke with Miss X.
I researched the relevant law and guidance.
Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. Someone is considered threatened with homelessness if, when asking for assistance from the Council on or after 3 April 2018, he or she is likely to become homeless within 56 days, or has been served with a valid section 21 notice which will expire within 56 days. (Housing Act 1996, section 175(4) & (5) The Code of Guidance says, rather than advise the applicant to return when homelessness is more imminent, the housing authority may wish to accept a prevention duty (see below) and begin to take reasonable steps to prevent homelessness. Councils must notify the applicant of the assessment. Councils should work with applicants to identify practical and reasonable steps for the council and the applicant to take to help the applicant keep or secure suitable accommodation. These steps should be tailored to the household, and follow from the findings of the assessment, and must be provided to the applicant in writing as their personalised housing plan. (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.18) A council’s duty to those threatened with homelessness is called the prevention duty and is set out in section 195 of the Housing Act.
Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness.
The assessment must include an assessment of: The circumstances that caused the applicant to become homeless or threatened with homelessness The housing needs of the applicant, including what accommodation would be suitable for the applicant, and What support would be necessary for the applicant to have and retain suitable accommodation.
The authority must notify the applicant, in writing, of the assessment. (Section 189A, Housing Act 1996) The relief duty requires housing authorities to help people who are homeless to secure accommodation. It is set out in section 189B of the Housing Act 1996.
Under this duty a local housing authority is subject to a duty to take reasonable steps to help an applicant secure accommodation that will be available for at least six months. Like the prevention duty, this duty arises whether the applicant is in priority need or not and does not mean the authority actually has to secure accommodation for an applicant (although it may choose to do so and if it has reason to believe a person also has a priority need at this stage, the Council must provide interim accommodation, under its interim accommodation duty, as set out in section 188 of the Housing act 1996).
A person may be considered to be in priority need for a number of reasons, one of which is if they are considered to be vulnerable, for example, for medical reasons or households where there are dependent children.
The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of his or her household. This duty applies to interim accommodation and accommodation provided under the main homelessness duty. (Housing Act 1996, section 206 and (from 3 April 2018) Homelessness Code of Guidance 17.2) Housing Allocations 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)) 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)) The Ombudsman may not find fault with a council’s assessment of a housing application/ a housing applicant’s priority if it has carried this out in line with its published allocations scheme.
The Ombudsman recognises that the demand for social housing far outstrips the supply of properties in many areas. He may not find fault with a council for failing to re-house someone, if it has prioritised applicants and allocated properties according to its published lettings scheme policy.
In this case, the Council operates a banding system. Those applicants the Council considers to be emergencies and strategic priorities are in Band A. This includes those threatened with a life-threatening medical emergency, and those whom the court or the Ombudsman has recommended be urgently rehoused.
Those in Band B are considered high priority cases, including those threatened with homelessness who are working with the Council to prevent homelessness.
The Council has the right to make a direct offer of a property at any time to an applicant in exceptional circumstances, or where it considers this would be advantageous to the Council.
What happened
Background
Miss X and her three children currently live in accommodation previously found for her by the Council.
Last year Miss X complained to the Ombudsman that the Council had wrongly stopped making Discretionary Housing Payments to cover the shortfall between her benefits and rent. In January 2022 the Ombudsman found that the Council was at fault for failing to properly consider if Miss X’s property was affordable before ending its relief homelessness duty and for failing to consider if it owed Miss X a new homelessness duty when she accrued significant rent arrears.
The Council agreed to the Ombudsman’s recommendations, which included: “As soon as possible, and no later than within a month of the date of [our] final decision, the Council will decide whether it owes Miss X a homelessness duty and write to her with its decision” and, “Within one month of the date of [our] final decision, the Council will pay Miss X’s rent arrears. It should continue to pay her rent shortfall until the end of her tenancy in June 2022, or until it is able to move her to new suitable accommodation; whichever comes first”.
In mid-January 2022, Miss X’s landlord had issued her with a section 8 notice for rent arrears. However, following the above Ombudsman decision and the Council contacting Miss X’s landlord, the notice was not pursued. Miss X was able to remain at the property.
In mid-February 2022 the Council apologised to Miss X for the fault found in the Ombudsman decision. It said, among other things, that it was at fault for failing to take a new homelessness application early on when Miss X had informed it of its mistakes. It offered an assurance that what happened in her situation had been taken very seriously and that staff would receive training to ensure it would not happen again. It booked a housing appointment for Miss X to assess if it owed a homelessness duty Miss X for mid-February 2022.
Miss X was not able to attend the first appointment and the assessing officer was unwell and unable to complete the rescheduled appointment in early March 2022.
Twice during March 2022, we asked the Council for an update on the assessment. We were concerned that it was over a month since the date of our final decision and the assessment should have been completed by the end of February 2022. We said if we did not receive a response by 5 April 2022 we would escalate the matter.
On 5 April 2022 the Council confirmed it had accepted a relief duty on 1 April 2022 and completed a personalised housing plan (“PHP”) on or around the same time.
What happened in relation to this complaint As mentioned above, in March 2022, the Council records show that Miss X contacted the Council again. She believed the Council should review her housing allocation banding to band A.
At or around this time, Miss X was served a section 21 notice from her landlord. Section 21 notices can be used by landlords to evict tenants but certain formalities and conditions apply.
The Council contacted the landlord to inform her that it was an invalid notice. She was reminded that Miss X’s tenancy should not end until 25 June 2022 and so it was not appropriate to serve the notice.
As set out above, on or around 1 April 2022, the Council sent Miss X a letter saying it accepted that she was homeless, eligible for assistance and in priority need. It said it therefore had a duty to help Miss X find somewhere else to live.
The records show that on 1 April 2022 an officer also spoke to Miss X. It was noted that Miss X would apply for a new discretionary housing payment for the new financial year and she was referred to an agency called BEAM to aid her search for employment. The records show Miss X did not engage with BEAM and so that file was closed.
On 4 April 2022, the records show Miss X contacted the Council asking to be put through to the private sector team and allocation team to have her housing band reviewed and be placed in band A or given a direct offer of social housing. The officer recording the conversation said he informed Miss X that this had not been recommended by the Ombudsman.
The records also show that, in line with the Ombudsman recommendations, through the provision of a discretionary housing payment, the Council topped up Miss X’s rent to avoid arrears until 4 July 2022.
On 16 August 2022, the Council says it was informed that Miss X’s landlord had issued another section 21 notice. This gave Miss X until the 24 August 2022 to leave her property. The Council says it contacted Miss X. It says Miss X did not want to speak to the housing officer. It said it therefore arranged for a homelessness prevention manager to contact her. Miss X said she had no contact and had to instruct solicitors to contact the Council to encourage it to take some action with regards to her housing situation.
On 23 August 2022, the Council informed the Ombudsman that it had arranged temporary accommodation for Miss X and her family. The email thread it provided to show the action taken showed that it was twice prompted by Miss X’s solicitors before taking steps to arrange temporary accommodation, which appears to have happened late in the day on 23 August 2022.
Miss X says the accommodation offered is unsuitable. At the time of writing my draft decision, in September 2022, she was still in the accommodation that was subject to an eviction notice. This is an issue that arose since I made enquiries on this complaint. For that reason, I cannot investigate it. The law says that councils must have an opportunity to respond to complaints before we consider them. If it is not resolved to Miss X’s satisfaction, she can make a complaint to the Council.
Miss X’s complaint(s) to the Council.
On 26 January 2022, Miss X wrote to the Council to remind it of our recommendations. She also referred the Council to its allocation policy, which she quoted as saying that, “…applicants will be placed in Band A to comply with a Court or Ombudsman recommendation for urgent rehousing.”
Miss X viewed that in order to comply with the Ombudsman’s recommendations, the Council should move her banding to band A to urgently rehouse her.
The Council responded to this correspondence as set out above, contacting her landlord to urge reconsideration of the notice of eviction, which was effective in allowing Miss X to remain in the property for longer.
In May 2022, Miss X complained to the Council. She said that she had not received a response about her previous housing request. She said she considered that the Council was not interested in her situation. She said she made a verbal complaint about her housing officer in April 2022 because he was rude to her on two occasions. However, she had not, despite her request, had contact from a new housing advisor.
Miss X did not receive a response to her complaint and, by the end of June 2022, she came to the Ombudsman. She said the Council had been ignoring her complaints and requests for help. She said she was concerned that she and her family would be made homeless and that she considered the Council should make a direct offer of a property to her because of her exceptional circumstances.
The Council accepts it did not respond to Miss X’s complaint. However, it says that it did help to address Miss X’s situation in other ways. It says: Miss X’s concerns about her housing allocation banding were addressed in the telephone call of 4 April 2022.
The Council’s tenancy sustainment team continued to work with Miss X in extending her DHP entitlement until 4 July 2022, and It was now in contact with Miss X with a view to arranging appropriate accommodation.
The Council’s response to enquiries about Miss X’s complaint On 20 and 28 June 2022 we asked the Council if it had received and or responded to Miss X’s complaint(s) and made some initial enquiries about Miss X’s case. We did not receive a response and, on 5 July 2022 we again asked the Council to respond.
We did not receive a response and, on 11 July 2022, we sent a letter to the Council’s chief executive and asked again for a response, this time by 14 July 2022.
When the Council failed to respond again, we sent the case to our investigation team for further enquiries to be made. We again made preliminary enquiries about Miss X’s case and asked for a response within four weeks.
On 19 July 2022, we informed the Council that we proposed to investigate and asked again for the Council to respond to our enquiries by 29 July 2022. We said we were treating the complaint as urgent. We also sent a further, more detailed, letter of enquiry to the Council asking for a response as soon as possible and, at the latest by 16 August 2022. We stressed that Miss X was due to be evicted on 24 August 2022.
We did not receive a response so, on 18 August 2022, we again asked the Council for a response. We stressed that, if we did not receive a response by 25 August 2022, we would escalate the matter.
On 23 August 2022, the Council responded. It provided an email thread showing that, on 16 August 2022, Miss X’s solicitors had emailed the Council with a letter before action in which her solicitors asked whether the Council had taken action to prevent Miss X’s homelessness and threatening to judicially review the Council.
On the available evidence, it seems the Council did not respond to this letter until Miss X’s solicitors sent another email on 23 August 2022, threatening to take the Council to court for failing to comply with its duties under the Housing Act 1996.
The next day, the Council arranged an appointment for Miss X to consider placing her in new accommodation.
The Council informed the Ombudsman on the same day that it had arranged temporary accommodation for Miss X.
Analysis When Miss X first received a section 21 notice in January 2022, the Council took appropriate action to stop Miss X becoming homeless; by contacting Miss X’s landlord and putting a stop to the eviction. It also, in accordance with our previous decision, paid Miss X’s arrears and made arrangements to ensure Miss X’s rent payments were topped up with discretionary housing payments until after the end of the fixed term tenancy.
However, there were delays in responding to our recommendation to assess Miss X’s current housing situation to see if the Council owed a duty to Miss X. We had to press the Council to respond. It was over a month late in completing the assessment. This is fault.
From 1 April 2022, the Council accepted Miss X was still threatened with homelessness because, once her tenancy ended, her landlord had made it clear that she wanted Miss X to leave. Miss X could not afford the tenancy. It also accepted that Miss X (and her young family) were in priority need.
The Ombudsman asked the Council, several times, to provide evidence of its response to Miss X’s complaints but it failed to respond. Miss X said she felt the Council was not interested in her situation. Given the Council’s failure to respond to either the Ombudsman or Miss X, it is understandable that Miss X has been left with this impression.
The Council has not shown that it took appropriate steps to help Miss X secure accommodation. It accepted, from 1 April 2022 onwards, that it had a duty to do so but there is little or no evidence to suggest it took any meaningful action, until the day before a potential eviction. In its previous apology to Miss X it said it regretted not acting more quickly when Miss X had had problems in 2021. It said it would do what it could to ensure these sorts of errors do not happen again. However, the evidence indicates that it failed to act within a reasonable period of time to address Miss X’s threatened homelessness again. This is fault. It will have caused Miss X significant distress. She has a young family and expressed a real and understandable fear of being made homeless.
The Council says it did take steps to prevent Miss X becoming homeless. It says, for instance, that it referred Miss X to an agency to help her find work. However, this approach was more than likely to fail as Miss X has three young children and no childcare. The Council’s records show that it had previously recognised that finding work was not a realistic answer to Miss X’s situation. Since her situation had not changed, it is hard to see how it would have been helpful.
The other steps the Council says it took were to arrange an appointment to consider temporary accommodation. But, as noted above, this appointment was for the day before Miss X’s eviction was due to take place. Since the Council had known Miss X was threatened with homelessness since 1 April 2022, it should have taken effective steps at a much earlier stage, which would have allowed it to be sure that any accommodation it arranged for Miss X was suitable. I have not seen any evidence that it took reasonable, appropriate or timely steps to do so. This is fault causing injustice.
I cannot comment on the accommodation the Council informed the Ombudsman had been “arranged for” Miss X. However, this statement implies that Miss X’s situation had been remedied while Miss X says it has not. The email thread provided by the Council to show that accommodation had been arranged also fails to show that this was the case. Instead, it simply refers to an appointment to discuss a placement. This too was fault causing injustice.
I have made recommendations to acknowledge the distress the Council’s fault has caused.
Failure to consider Miss X’s case for an increase in banding and a direct offer of housing.
Miss X appeared to be under the impression that, because the Ombudsman has had previous involvement in her case and had recommended that the Council complete a housing assessment, the Council should urgently rehouse her under Band A. This is not the case. The Ombudsman had not asked the Council to urgently rehouse Miss X but to assess whether it had a homelessness duty to her.
I have not seen any evidence that the Council has placed Miss X in the wrong band for housing. It does have a discretion to change Miss X’s banding if it considers it appropriate but that is a matter for the Council. I do not find the Council at fault in this regard.
However, even if the Council did not have a duty to rehouse Miss X urgently because of the previous Ombudsman recommendations, it should have properly considered her request for it to consider using its discretion. The records show that she was simply told this was not part of the Ombudsman’s recommendations. This does not show that the Council properly considered her request. It is fault and I have made a recommendation to address this.
Recommended action As soon as possible, and, at the latest, within a month of our final decision, the Council should: Apologise to Miss X for the fault identified.
Contact Miss X and ensure it is taking steps in line with the relevant statutory provisions to ensure Miss X and her family secure suitable accommodation. It should also set out its considered response to Miss X’s request to be housed urgently because of what she considers to be her exceptional circumstances. It should provide evidence to the Ombudsman of its actions.
Make a payment of £500 to Miss X to acknowledge the distress caused to Miss X and her family by the Council’s unresponsiveness in relation to her complaints about her housing situation and failure to take effective steps to try and ensure Miss X and her family avoid homelessness in line with its statutory duty.
Final decision
I have found the Council at fault and made recommendations to remedy the injustice identified. I have now concluded my investigation.
Investigator's decision on behalf of the Ombudsman