The Ombudsman's final decision
Summary: We will not investigate this complaint about homelessness. The Council has put right the injustice its fault caused. There is not enough evidence of fault to warrant investigating other points.
The complaint
Mr X complained to us about his homelessness, especially: the Council’s scheme for emergency assistance with household items was ambiguously worded; the Council wrongly refused to help Mr X under that scheme; a Council complaint response wrongly said Mr X had not been registered as homeless; and the Council did not include Mr X’s child on his social housing application, so it did not offer a property with a bedroom for the child. Mr X said this damaged his mental health, causing him to need medication.
While we were considering the complaint, the Council realised it had twice failed to review its decision to end its homelessness duty. The Council offered a remedy for that. Mr X has commented on that offer. As this point concerns the handling of Mr X’s homelessness overall, I have also considered this.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended) We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide: there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement, or there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B)) We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Claimed damage to Mr X’s mental health The alleged effect on Mr X’s health is a claim of personal injury. The courts can consider that, so the restriction in paragraph 3 applies to this point. The possible cost of court action does not in itself automatically mean we should investigate instead. Liability and compensation for injury are not straightforward legally. It is more proper for the courts than the Ombudsman to decide this. So, it would be reasonable for Mr X to go to court for a decision on this point.
The emergency assistance scheme This scheme gave help with getting some essential household items to some people in housing need. The relevant section of the scheme said: “This applies to people who have experienced an unsettled way of life prior to securing permanent accommodation and prolonged period of homelessness. This would include people who have been a user of hostels, night shelters or similar. Consideration will also be given to people who had been placed in emergency accommodation by the Housing department, for example in a Bed & Breakfast, before being rehoused.”
Those examples did not apply to Mr X. He argues “This would include…” meant the examples were not an exhaustive list, so the Council should have considered his homelessness circumstances could qualify him for the scheme. The Council said it interpreted the wording as meaning applicants had to have been in one of the listed circumstances to get help. It said this was because it could verify those circumstances, which it should do to use public money properly.
I do not consider the wording is so ambiguous as to amount to fault. Nor does the Council’s interpretation amount to fault. There is scope for disagreement about the meaning, but that does not mean the Council was at fault.
A Council complaint response after it refused Mr X help under this scheme wrongly said the Council had not accepted Mr X as homeless at a particular time. However, as noted above, Mr X’s application to this scheme would have failed anyway because the Council considered he did not meet the other criteria. So any error in a later complaint response did not in itself significantly disadvantage Mr X.
The Council not giving Mr X a property with a bedroom for his child The Council did not include Mr X’s child on the housing application, so it only offered Mr X a one-bedroom home. It said this was because Mr X was not the child’s primary carer. Mr X argued that was wrong, as the child stays with him two or three nights per week. The Council’s housing allocation policy says: “Applicants who are separated from an ex-partner, and whose child or children mainly live with them or have shared care, will qualify for properties as above. Proof of circumstances will be required, for example a copy of Child Benefit entitlement or Residency Order…If an applicant’s child or children mainly live with an ex-partner and visit, the applicant will not be entitled to additional bedrooms.”
The circumstances Mr X described did not suggest his child mainly lived with him. Nor did the Council appear to have evidence any benefit for the child was paid to Mr X. Just sharing parental responsibility does not automatically give a right to a bedroom for a child. Investigation is unlikely to find fault on this point.
The Council’s failure to review its decision about Mr X’s homelessness The Council recognises it twice failed to act on Mr X’s requests for it to review its decision to end its homelessness duty. Mr X wanted the review, which is a legal right, because he argued the property the Council had offered him was unsuitable, mainly due to disrepair and not having a bedroom for his child. The Council has now apologised for not doing the review, undertaken to try to reduce the chance of a recurrence, and offered Mr X £1,000. Mr X argues £1,000 is not enough for how the failure to do the review affected him.
If we were to investigate, it is unlikely we could conclude now, after events have moved on, that the property was unsuitable in homelessness terms. Disrepair does not automatically make a property unsuitable. It would depend on the degree of disrepair, the likelihood of repairs in a reasonable time and the individual’s needs. Any investigation now is unlikely to reach a clear enough view. A homelessness review is unlikely, on balance, to have decided the Council should have offered Mr X a home with an extra bedroom, for the reasons given above. Nor is it likely we would decide Mr X lost out on the Council providing interim accommodation while it conducted any review. That would have been purely discretionary; councils need not provide any accommodation during a review. The Council would have been entitled to take account that Mr X already had accommodation and even if he considered it unsuitable it might have been acceptable to remain there at least during the review. So, any investigation by us would be unlikely to find enough evidence the failure to do the review disadvantaged Mr X with his housing situation.
Instead, the injustice to Mr X is a missed opportunity to have his legal right to a review when it might have affected his housing situation and uncertainty about whether a review might have led to a different housing situation for him. Mr X also had to ask the Council a second time when it had not acted on his first review request. Mr X says he also had to take the matter to the Ombudsman. However, as described above, his complaint to the Ombudsman covered other matters. So, Mr X might well have complained to us anyway. I agree the injustice merits a symbolic payment. The £1,000 the Council offered is, if anything, more than the Ombudsman would typically recommend in similar circumstances. I am not persuaded there are strong enough reasons to ask the Council for more.
Final decision
We will not investigate Mr X’s complaint because there is not enough evidence of fault causing significant injustice on some points. On other points, the Council has done enough to put right the injustice its faults caused.
Investigator's decision on behalf of the Ombudsman