Summary: Ms X complained the Council failed to award her the correct priority on its housing register. The Council was not at fault in deciding her priority. However, it failed to properly consider whether Ms X was homeless. Ms X also complained about the Council’s refusal of a discretionary housing payment. Based on information seen, there was fault in the way it considered this, and it failed to properly consider a request for reasonable adjustments when Ms X challenged its decision. The Council should apologise for the distress and uncertainty caused and take steps to prevent recurrence.

The complaint

1. Ms X complained the Council failed to award her the correct priority on its housing register to reflect she is vulnerable and a victim of domestic abuse. She said this meant she has been left in unsafe accommodation, which has caused considerable distress and she cannot work or access treatment as a result.
2. Ms X also complained the Council refused to agree a discretionary housing payment (DHP) to cover rent in advance on an alternative property, which she said meant she lost the housing offer.
3. When dealing with her complaint about the DHP refusal, the Council sent Ms X a written record of a conversation with a housing association but removed the parts showing what the housing association officer said. The Council said this was because the housing association had not given its permission to share the record with Ms X.

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The Ombudsman’s role and powers

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 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
7. The Information Commissioner's Office considers complaints about freedom of information and subject access requests. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about these, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
8. 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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What I have and have not investigated

9. I have not investigated Ms X’s complaint that the Council should have shared its record of a conversation with the housing association in full. It is not our role to say whether a council has complied with data protection law. It is more appropriate for either the Information Commissioner’s office or the courts to consider this.

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How I considered this complaint

10. I considered:
• the information Ms X provided;
• the information the Council provided in response to our enquiries;
• relevant law and guidance, as set out below;
• our guidance on remedies, available on our website.
11. Ms X and the Council 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

Relevant law and guidance

Homelessness

12. Where the council has reason to believe an applicant may be homeless or threatened with homelessness, it should make enquiries to enable it to decide if they are eligible for assistance and, if so, what duty it owes them. (Housing Act 1996, section 184)
13. If, after making enquiries, a council is satisfied an applicant is eligible for assistance and homeless then the council will owe the ‘relief duty’. This requires the council to take reasonable steps to help to secure suitable accommodation for any eligible homeless person for at least six months. The relief duty usually lasts for 56 days. (Housing Act 1999, section 189(b))
14. A person who has accommodation is to be treated as homeless where it would not be reasonable for them to continue to occupy that accommodation. (Housing Act 1996 section 175(3) and Homelessness Code of Guidance, paragraph 6.4)
15. It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic abuse or other violence against the applicant or anyone who might reasonably be expected to live with them. (Housing Act 1996 section 177(1) and Homelessness Code of Guidance, paragraph 6.24)
16. If the council has reason to believe the applicant may be homeless, eligible for assistance and in priority need, it must provide emergency accommodation until it has finished assessing the homelessness application if the applicant asks for it. An applicant who is fleeing domestic abuse will be in priority need.

Housing register

17. The demand for social housing far outstrips the supply of properties in many areas. To manage the demand, every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing. Most councils operate a housing register, which records the details of those waiting for housing. All housing allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
18. 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 medial or welfare grounds;
• people who need to move to avoid hardship to themselves or others.

(Housing Act 1996, section 166A(3))

19. At the relevant time, the Council’s scheme prioritised applicants using four priority bands, with band 1 being the highest priority and band 4 the lowest priority. Within the priority band, applicants are prioritised by the date they were accepted into the priority band.
20. The scheme says the Council will write to applicants with its decision about priority band and they will have the right to ask for a review within 21 days. The Council will complete the review within 56 days and provide a decision in writing.
21. Band 1 (now Band A) includes:
• applicants who are homeless, where the Council has accepted a relief duty and arranged interim accommodation;
• applicants who are homeless, where the Council has accepted a main housing duty (after the end of the relief duty period);
• victims of domestic abuse, “who are homeless or owed any homelessness duty and/or have been identified as high-risk victims of domestic abuse at a local MARAC within the last 3 months”.
22. Band 2 (now Band B) includes:
• homeless applicants where the Council has accepted a relief duty;
• homeless applications owed a prevention duty;
• applicants who are intentionally homeless and in priority need;
• applicants who need to move for medical or welfare reasons, including those suffering with mental health issues and victims of domestic abuse.

Discretionary housing payments (DHP)

23. A council may award discretionary housing payments (DHP) when someone needs help with housing costs and is claiming Housing Benefit or Universal Credit which includes housing costs towards rent. (Discretionary Housing Payments guidance manual February 2021, section 1.7, as amended)
24. Government guidance gives councils choice (discretion) about when to offer a DHP; there is no statutory right to payment. However, guidance stresses that DHP decisions must follow the ordinary principles of good decision making. Councils must act fairly, reasonably, and consistently, and must decide each case on its merits. Councils can exercise discretion in questions asked of applicants and decisions made. (Discretionary Housing Payments guidance manual February 2021, sections 1.11 and 5.1, as amended)
25. The Council’s scheme says, applicants must be:
• receiving housing benefit, local housing allowance or the housing element of universal credit;
• live in its area; and
• be able to demonstrate financial need.
26. It says, in certain circumstances, it may be able to pay a DHP to cover a rent deposit, rent in advance or removal expenses. To be eligible for this, the applicant must have a valid reason to move, the property they are moving to must be affordable for them and the deposit must be reasonable.
27. The Council will reconsider a refusal decision if the applicant provides new information, their circumstances change or where it considers it is appropriate to do so.

Reasonable adjustments for people with disabilities

28. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
29. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
30. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services but must think in advance about what disabled people with a range of impairments might reasonably need.

What happened

31. Miss X lived alone at property 1.

Housing register application

32. She applied to join the Council’s housing register on 11 January 2022. She said she had an exceptional need to move. Ms X did not provide any supporting evidence and the Council asked her to provide this on 4 March 2022.
33. Ms X provided supporting evidence on 11 March 2022. This included:
• a letter from a charity supporting women affected by domestic abuse, charity A. This stated Ms X was in a suitable home but “feels unsafe” as a result of being harassed for nearly a year: her car windows had been smashed and tyres slashed. The behaviour had escalated to a window of property 1 being broken. Charity A said Ms X was fearful this could happen again, and that the perpetrator may gain access to her home. Charity A said the perpetrator had not yet been identified, which caused a “high significant risk” for Ms X, who wanted to move to a new area to an address the perpetrator was not aware of;
• a letter from her GP with information about Ms X’s background, including that she was the victim of serious crime as a child, which had had an enduring impact, and she was prescribed medication to help with her mood and sleep. The GP explained how current incidents were affecting her mental health and supported her request to move to another area; and
• reports indicating Ms X had previously been looked after by the Council due to her experiences as a child, that she was suffering ongoing trauma, and that she was diagnosed with post traumatic stress disorder.
34. The Council accepted her application on 21 March 2022. It awarded band 2 priority due to her medical needs and the threat of abuse, violence or harassment. It assessed her as needing a property with one bedroom. It wrote to her with its decision and information about how to bid for properties.
35. On 12 June, in response to Ms X’s complaint about her priority on the housing register, the Council said her application was assessed in line with its allocations scheme, based on the evidence provided. It was satisfied that band B (formerly level 2) was appropriate. It repeated its view that band B was appropriate in its stage 2 complaint response on 10 July.
36. In response to my enquiries, the Council said:
• it receives frequent letters from charity A, which will expressly say if it considers their client needs temporary accommodation or should be treated as homeless, but did not do so on this occasion;
• the officer considering the letter did not conclude Ms X was threatened with homelessness, regardless of it not being stated directly;
• it has since made enquiries with the police, which identified reports of criminal damage in 2021 and harassment in 2022, but nothing since then. The police make referrals to the Council for housing assistance on a daily basis where a person consents to this, but have not made a referral for Ms X; and
• it would now consider whether Ms X was homeless.

My findings – housing

37. There is no evidence of fault in the way the Council considered Ms X’s priority on the housing register. Its decision to award band B was in line with its allocations scheme and the evidence Ms X provided. There was also no undue delay in reaching its decision.
38. However, on receiving evidence from Ms X on 11 March 2022, the Council should have considered whether Ms X was homeless on the basis it was not reasonable for her to continue to live at property 1 in light of the risk of violence. There is no record to show it did so, which was fault.
39. On balance, I find if it had properly considered this, it would have decided it had reason to believe Ms X may be homeless, eligible for assistance and in priority need. This is because reason to believe is a low bar and the Code says is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic abuse or other violence. Therefore, the Council had a duty to make enquiries and a duty to consider arranging interim accommodation whilst it did so.
40. I cannot say, even on balance, what the outcome would have been if enquiries had been made because there are a number of possible options, including improving the security at property 1. However, Ms X is left with uncertainty about whether she would have been accommodated elsewhere but for the Council’s fault, and this is an injustice to her.
41. It is appropriate for the Council to consider whether it owes a homelessness duty to her now, although this does not address the uncertainty referred to, because her position has changed as there have been no recent reports.
42. There was no fault in the complaints handling in relation to the housing allocations complaint.

Discretionary housing payment (DHP)

43. On 13 March 2023, the Council nominated Miss X for a housing association property, property 2. The housing association formally offered property 2 to Ms X on 12 May and said she would need to pay rent in advance of £416.70 on the day the tenancy started. It expected property 2 would be available for occupation on 25 May 2023.
44. Ms X was worried about the overlap of rent. She was receiving Universal Credit for the rent at property 1 and would need to pay the rent there during the notice period, but also needed to pay rent in advance for property 2. She understood she could not claim benefits for two properties at the same time. In her later complaint she told the Council she had been assured “multiple times” that she should apply for a DHP as was eligible for this to cover the shortfall in rent. She applied for a DHP on 9 April 2023.
45. In her DHP application, she said she had been stalked and harassed at property 1 and her application for rehousing was granted on that basis. For a short period, she would have two tenancies and could not afford to pay both rents. She also said her GP had signed her off work with stress as a result of her fear that property 1 was unsafe. She provided evidence she had been offered property 2 and evidence she had been asked to pay rent in advance.
46. Ms X did not hear from the Council and raised concerns about the delay. On 23 May, the Council refused a DHP and wrote to her with its decision. Its reason for refusing was that the landlord for property 2 was a social landlord and therefore her rent should be covered from the start of the tenancy by Universal Credit.
47. Case notes for the housing register team dated 23 May 2023, show Ms X contacted the Council to say property 2 could not be offered to her as she needed to pay rent in advance and a DHP had been refused. A further record on the same day, stated the bid had been “skipped” because, despite “a lot of toing and froing” Ms X “did not have the rent in advance for the property”.
48. Also on 23 May, Ms X telephoned the Council to challenge the DHP decision. The record shows she asked the Council to treat her email as a complaint. She also asked for verbal communications as she explained she had mental health issues and learning difficulties.
49. The Council reconsidered its decision but upheld it on 30 May 2023. Its email to Ms X said registered social landlords do not require deposits or rent in advance as housing costs will be paid from the tenancy start date through Universal Credit. Ms X would need to contact Universal Credit for help with overlapping housing costs.
50. Ms X remained unhappy and sent several emails in response. The Council responded to Ms X by email in June. It acknowledged there was some delay in making its initial refusal decision, for which it apologised. It also said:
• the housing association’s website said new tenants did not need to pay a deposit but did need to pay one months’ rent in advance, but a degree of discretion may be applied according to individual circumstances;
• the leaflet the housing association had sent Ms X said alternative options may be available to those who were unable to pay the full month’s rent in advance;
• the housing association had confirmed the payment was to cover the first month’s rent and was not kept separately as a security. It had advised Ms X could have started the tenancy on 25 May and it would have waited for Ms X to receive her Universal Credit payment on 10 June, which would have covered the first month’s rent without the need for a DHP;
• DHPs were intended to cover costs that were not covered by Housing Benefit or the housing costs element of Universal Credit;
• its decision to refuse the DHP was upheld.
51. After further emails from Ms X, the Council spoke to the housing association on 7 July, which told the Council it had offered her the tenancy without payment of rent in advance, but Ms X felt unable to accept the offer, so it was withdrawn. The Council spoke to Ms X on 10 July and wrote to her to confirm its position on 12 July. It said:
• the housing association had confirmed she did not need to pay any rent until 10 June when she received her next Universal Credit payment, but withdrew the offer when Ms X continued to insist she could not afford the rent;
• it understood that, provided Ms X told the Department of Work and Pensions (DWP) she was moving, her housing costs claim would be updated from the date of the change so the rent for property 2 would be covered;
• whilst she may have had arrears at property 1, a DHP could not be used to assist with that, because it was intended to assist people to remain in their home or pay upfront costs to secure a new property;
• a DHP can only be used to pay rent in advance in rare circumstances where duplicate payments (payments of Universal Credit housing costs and DHP for the same period) cannot be avoided, for example, where a landlord insists on a payment in advance to secure the tenancy, which was not the case here.
52. Ms X remain unhappy. She said she had contacted DWP’s Universal Credit team, which had advised it would only cover property 2 after the tenancy at property 1 ended and would not cover a period of rent on both properties. She also said she had asked for verbal contact as a reasonable adjustment due to her mental health and learning disabilities, and the Council’s refusal to agree her requests for reasonable adjustments had led her to attempt suicide.
53. The Council sent a further response on 18 August and a final response on 12 September 2023. It said it was satisfied it had responded appropriately to requests for reasonable adjustments and an officer would call her to ensure support was in place. It provided a telephone number for its benefits team if she needed further clarification.

My findings – DHP

54. The Council accepts there was a delay in considering the DHP request and making an initial decision, which was fault. Although its scheme does not set out how quickly it will make DHP decisions, the Council was aware the payment was needed for a tenancy that was due to start on 25 May. It took over six weeks to consider the application and only did so after Ms X chased it. When a manager escalated the application, the Council was able to make its initial decision the same day. The delay caused Ms X frustration and she was put to avoidable time and trouble pursuing the Council for a decision.
55. It is not our role to say whether the Council should have awarded a DHP. However, we can consider whether there was fault in the way it made its decision.
56. When making the initial decision, the DHP team did not enquire whether the housing association tenancy could proceed without rent in advance. It assumed that, because it was a social housing provider, rent in advance would not be needed. This was despite evidence that the landlord was asking for rent in advance. It did not check this until July 2023, after protracted communications with Ms X. Therefore, when it made its initial decision, it had not established that the payment requested was not needed to secure the tenancy. This means there was fault in its decision-making.
57. The DHP team also failed to understand Ms X’s point about the two tenancies overlapping because her Universal Credit for the rent on property 1 was paid in arrears and there was a notice period during which rent had to be paid and the housing association was asking for rent in advance for property 2. In addition, it also failed to liaise with the allocations team to see whether the allocations team could assist Ms X with this, for example, by exploring whether she could secure Universal Credit for two properties for a short period in her specific circumstances or whether her current landlord would forgo the rent for the notice period.
58. The DHP team also failed to address the issue of the overlap of the tenancies in its complaint responses up to 12 July, at which point it acknowledged Ms X may have incurred arrears at property 1 in relation to the notice period. The failure to address the central point in Ms X’s communications was further fault.
59. The DHP team also failed to communicate with Ms X verbally, despite her having requested this as a reasonable adjustment in her complaint on 23 May 2023, and in later emails. There is no record to show how the Council considered the request for a reasonable adjustment and, despite a considerable number of emails, the Council did not telephone Ms X to discuss the situation until 10 July 2023. On this basis, I find the Council failed to have due regard to its responsibilities under the Equality Act 2010.
60. The allocations team was aware Ms X needed to pay rent in advance for property 2, and rent during the notice period on property 1. It was also aware Ms X was vulnerable and the reasons she needed to move to a new area. In those circumstances, I would have expected it to provide advice and assistance to support that move. There is no record it did so, and that was fault.
61. I cannot say, even on balance, whether but for the faults identified the Council would have agreed a DHP or whether some other solution could have been found, but Ms X is left with uncertainty about whether the outcome would have been different, which is an injustice to her. She was also put to considerable disadvantage in resolving the matter due to the Council’s reluctance to communicate verbally.

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Agreed action

62. Within one month of the date of the final decision, the Council will:
• apologise to Ms X for not properly considering whether she was homeless in March 2022, for failings in the way it considered the DHP application and responded to its request for reasonable adjustments, and for the failure of its allocations team to offer advice and support about securing tenancy 2;
• pay her £300 to remedy the distress and uncertainty caused; and
• provide evidence to show how it has considered whether Ms X is currently homeless, including a copy of its decision letter to Ms X.
63. Within one month of the date of the final decision, the Council will:
• share the decision with relevant staff in the allocations and DHP teams to ensure that lessons are learned from what went wrong in this case and, if appropriate, processes are changed to avoid a recurrence;
• remind all staff of the importance of considering reasonable adjustments where service users have a disability, and of recording how this has been considered, particularly where a request for reasonable adjustments has been made.
64. The Council will provide us with evidence it has complied with the above actions.

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Final decision

65. I have completed my investigation. I found fault causing personal injustice. I have recommended action to remedy the injustice and prevent recurrence of the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman