Summary: The Council failed to provide Mrs B with suitable accommodation when she was homeless. It also failed to review Mrs B’s housing priority when it introduced a new housing allocations scheme, which prevented Mrs B from being able to bid for social housing. The Council has agreed to apologise and make a payment to Mrs B. It has also agreed to make service improvements.

The complaint

1. Mrs B complains that there were failings in the way the Council dealt with her housing application. In particular, that the Council:
• Did not allow Mrs B to bid on properties between January and July 2021.
• Did not consider Mrs B for any social housing properties when it was looking to make a direct let between January and July 2021.
• Has not awarded enough housing priority since July 2021.
• Did not make sufficient efforts to secure suitable temporary accommodation between January and November 2021, when Mrs B was living in unsuitable temporary accommodation. In particular, that it did not consider any of the available social housing properties.
• Failed to properly assist Mrs B to secure her current accommodation, including refusing to act as guarantor to secure the property and incorrectly informing her that discretionary housing payments could only be granted for a limited period.
2. Mrs B also complains that the Council has continually failed to make reasonable adjustments to the way it engages with her. She considers this to be a safeguarding matter.
3. Mrs B says the Council’s actions have caused her significant distress and have affected her health and well-being. She considers she would be living in suitable social housing if there had been no fault by the Council, and she would not have had to pay an independent occupational therapist to carry out an assessment.

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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 cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
7. 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)
8. We cannot decide if a council has breached the Equality Act as this can only be done by the courts. However, we can find a council at fault for failing to take account of its duties under the Equality Act. Councils will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.
9. We cannot always respond to complaints in the level of detail people might want. We have limited resources and must investigate complaints in a proportionate manner, focusing on general themes and issues, rather than providing a response to every individual issue raised in a complaint.
10. 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

11. I have investigated the complaints detailed in paragraphs one and two of this statement.
12. Mrs B has also complained about earlier events relating to her housing situation which I have decided we should not investigate. As explained in paragraph five, we cannot normally investigate complaints about matters which the complainant has taken more than 12 months to complain to us about. Mrs B has explained why she did not complain about earlier matters sooner. I have decided that it is reasonable to exercise some discretion and investigate matters that Mrs B has become aware of since January 2021. I consider it would have been reasonable for Mrs B to complain to us sooner about matters she became aware of before January 2021, and have therefore decided not to investigate them now.
13. I have also not investigated Mrs B’s complaint that some of her belongings went missing whilst being stored in the Council’s storage facilities. This is because I consider it would have been reasonable and appropriate for Mrs B to take the matter to court.
14. I have not investigated Mrs B’s complaint that the Council breached the Data Protection Act when discussing her situation with a letting agent. This is because I do not consider this alleged failing caused Mrs B any significant injustice.

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How I considered this complaint

15. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Relevant legislation and government guidance

16. If a council is satisfied someone is eligible, homeless, in priority need and unintentionally homeless, it will owe them the main housing duty. (Housing Act 1996, section 193)
17. Under the main housing duty, housing authorities must ensure that suitable accommodation is available for the applicant and their household until the duty is brought to an end, usually through the offer of a settled home. A suitable offer of a settled home which would bring the main housing duty to an end includes an offer of a suitable tenancy for at least 12 months from a private landlord made by arrangement with the local authority. (Homelessness Code of Guidance 17)
18. 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. When the duty arises, the body is under a positive and proactive duty to take steps to remove or prevent obstacles to accessing its service. If the adjustments are reasonable, it must make them.

Background

19. Mrs B has complex physical and mental health needs which include mobility difficulties.
20. The Council placed Mrs B in temporary accommodation when she became homeless in 2017. She joined the Council’s housing register in 2018.
21. In 2019, the Council reviewed the suitability of the temporary accommodation and decided it was not suitable.
22. Following a review of Mrs B’s housing priority, she was awarded 1000 points (the maximum available) and placed in group 5, which meant she would be made a direct offer of accommodation.
23. Mrs B took legal action against the Council because she considered a direct offer was a breach of the Equality Act 2010. The judge did not consider there were arguable grounds that the Council acted unlawfully and refused permission for judicial review in January 2021.
24. Mrs B remained living in the temporary accommodation which had been deemed unsuitable until she moved into private rented accommodation in November 2021. The Council then discharged its homeless duties to Mrs B.

Key events and analysis

Housing priority

25. Before July 2021, Mrs B was unable to bid for social housing advertised by the Council. I have considered whether the Council should have allowed Mrs B to bid between January and July 2021.
26. The Council introduced a new housing allocations scheme in December 2020. The previous scheme placed applicants in groups according to their housing need. Mrs B had been placed in group 5, which was for applicants who needed accommodation which was on one level internally, had level access externally or had been adapted for mobility or wheelchair use. Applicants in group 5 were unable to bid and were instead made a direct offer of accommodation.
27. The new scheme introduced in December 2020 still made direct offers to applicants who needed wheelchair adapted accommodation, but applicants who needed accommodation on one level internally or with level access externally were able to bid for properties.
28. The Council wrote to Mrs B on 4 March 2021. It advised that she had been awarded a high health priority of 1000 points and that she would be offered a direct let of a suitable one-bedroom property.
29. Mrs B requested a review of the Council’s decision in April 2021. She said that she did not need a wheelchair adapted property and should be able to bid for social housing. Mrs B also stated that she needed an additional bedroom for an overnight carer.
30. The Council carried out a review of Mrs B’s bedroom eligibility and housing priority in July 2021. The review concluded that Mrs B was entitled to 200 points and her bedroom eligibility should increase from one bedroom to two bedrooms. It was satisfied that Mrs B did not need a wheelchair adapted property and so she would be able to bid for properties in future. It explained that the housing register decision letter sent on 4 March 2021 was auto generated after the implementation of the new scheme and was issued in error without any assessment of Mrs B’s circumstances using the new criteria.
31. The Council should have assessed Mrs B’s housing priority in accordance with the new housing allocations scheme shortly after it was implemented in December 2020. It did not do so; this was fault.
32. Where we find evidence of fault, we consider what would likely have happened if there had been no fault. If the Council had reassessed Mrs B’s housing priority shortly after the new scheme came into effect, as it should have done, I consider Mrs B would have been awarded 200 points and been able to bid for social housing from January 2021. However, I do not consider it likely that Mrs B would have successfully bid on a property. This is because I do not consider it likely that Mrs B would have bid on one-bedroom properties, and it is unlikely that she had enough points to secure a two-bedroom property.
33. Mrs B considers the Council was wrong to only award 200 points when it carried out the review in July 2021. She considers she should have been awarded health and well-being points.
34. The Council’s housing allocations scheme says that homeless applicants owed the main housing duty and living in temporary accommodation are awarded 200 points, and health and well-being points are not available to applicants who have points awarded as being homeless. I am satisfied that the Council’s decision to award 200 points was made in accordance with the scheme.
35. When Mrs B moved into a privately rented property in November 2021, the Council discharged its homeless duties to her. Mrs B considers she should have been awarded health and well-being points because she was no longer homeless.
36. The Council’s housing allocations scheme awards 250 points to applicants who were owed the main housing duty but have moved into private rented accommodation. As the accommodation must be suitable, the Council does not award additional health and well-being points. I am satisfied that the points awarded to Mrs B when she moved into the privately rented property in November 2021 accord with the Council’s housing allocations scheme.
37. While Mrs B appears to have accepted that the accommodation was suitable when she accepted the offer in November 2021, she did not consider it was suitable on a long-term basis.
38. In January 2023, Mrs B’s consultant psychiatrist wrote to the Council explaining how her accommodation was affecting her mental health. The Council’s housing allocations scheme says that 700 points will be awarded in the following circumstances:

“Applicant or member of the household has been diagnosed with either a mental health illness, learning disability, physical disability, sensory impairment or long-term condition. The individual:

• will receive support from social care services; or
• could be in need of social care services in the absence of settled accommodation; and
• has a significant need for a social tenancy because their current housing circumstances are having a severe negative impact on their health condition and wellbeing.”
1. If an applicant disagrees with the amount of housing priority they have been awarded, they can request a review. The Council has not considered whether Mrs B qualifies for this award because she has not requested a review. Mrs B may wish to consider doing so.

Temporary accommodation

40. The Council had a duty to provide Mrs B with suitable temporary accommodation when she was homeless. It has accepted that the accommodation Mrs B was living in before November 2021 was not suitable.
41. I have considered the Council’s efforts to find suitable temporary accommodation for Mrs B between January and November 2021.
42. The Council has not provided any evidence to show that it tried to move Mrs B to alternative temporary accommodation between January and September 2021.
43. The Council sourced alternative temporary accommodation in September and October 2021, which Mrs B considered to be unsuitable. Then on 10 November 2021, the Council offered Mrs B a privately rented property which her family had found.
44. The Council has provided its emergency accommodation team procedures along with information about the temporary accommodation which became available between January and November 2021. Some applicants who were moved to alternative temporary accommodation had less priority than Mrs B. There may have been a good reason for this, such as the accommodation not being suitable for Mrs B, but insufficient information has been provided to show whether this was the case. I am not satisfied from the information provided that the Council properly followed its procedures when allocating temporary accommodation. In any event, the Council failed to comply with its duty to provide Mrs B with suitable accommodation between January and November 2021. This was fault.
45. When the Council offered alternative temporary accommodation to Mrs B on 7 September 2021, it told Mrs B that she needed to respond within the hour and it asked her to confirm that she understood and accepted the conditions of the offer. It warned that if she refused the offer, the Council would end its duty to her and she would be evicted from her current accommodation. Mrs B considers the email was coercive and threatening and says it led to her becoming immediately unwell.
46. Mrs B viewed the property with a family member. She also appointed an independent occupational therapist who provided her view that the accommodation was unsuitable. The Council then withdrew the offer on 20 September.
47. The Council does not have to offer viewings of temporary accommodation. However, the accommodation must be suitable. Mrs B had been assessed as needing accommodation with level external access, which this property did not have. I consider the Council should not have made this offer to Mrs B as it was clearly unsuitable.
48. The Council was also wrong to suggest that if Mrs B did not accept this offer of accommodation within one hour, that she would be evicted from her current accommodation.
49. While the Council’s failings here caused Mrs B significant distress, I do not consider the Council needs to reimburse Mrs B for the cost of the independent occupational therapist. This is because the opinion of an occupational therapist should not have been necessary to show that the accommodation was not suitable for Mrs B.
50. On 28 October 2021, the Council contacted Mrs B about a two-bedroom ground floor flat in a sheltered housing block. The Council said it would arrange a viewing with an occupational therapist. Mrs B did not consider the flat was suitable because it did not have a bath and she had not been assessed as needing sheltered accommodation. I do not consider it was fault for the Council to suggest this accommodation to Mrs B.
51. When Mrs B’s family found a privately rented property which she considered to be suitable, she asked for assistance in securing the property. The Council initially said that it could not source the property if it was unaffordable and a discretionary housing payment (DHP) to cover the shortfall in rent could only be granted as a one off or for a limited period. The Council also told Mrs B that it could not act as her guarantor.
52. However, the Council did go on to secure the property around two weeks after Mrs B told the Council about it. The Council paid a company to act as Mrs B’s guarantor, it granted Mrs B’s application for a DHP, and it has continued to grant her subsequent applications.
53. I consider the information the Council initially provided was unhelpful and would have caused Mrs B avoidable distress.

Reasonable adjustments

54. As a public sector body, the Equality Act 2010 requires the Council to consider making adjustments if people with disabilities have problems using their service. If a person is placed at a substantial disadvantage because of their disability compared with a non-disabled person, the Council must take such steps as it is reasonable to have to take to avoid that disadvantage.
55. When the Council was considering whether Mrs B needed an additional bedroom in 2021, it asked Mrs B specific questions about her overnight care needs. Mrs B considers the Council failed to make reasonable adjustments because it required her to provide information which she had already provided.
56. Mrs B has provided several letters from medical professionals which recommend how professionals should engage with her, including not asking Mrs B to repeat historical information, particularly in relation to trauma. Mrs B has also previously asked that when carrying out Care Act assessments, the Council not ask for explanations for information it already holds.
57. The Council previously agreed to make some adjustments to the way it carried out Care Act and Occupational Therapy assessments, but I have found no evidence to show that it has agreed that it will never ask Mrs B to provide information she has already provided, or that it considers this to be a reasonable adjustment. I do not consider the Council contravened any agreed reasonable adjustments when asking Mrs B for information about her overnight care needs. I have found no evidence of fault here.
58. Mrs B also considers the Council failed to make reasonable adjustments or have regard to her disability when it emailed her in September 2021 warning that she would be evicted if she did not accept an offer of accommodation. The wording of the email was inappropriate and caused Mrs B distress. But I have seen nothing to suggest it contravened any agreed reasonable adjustments.

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Agreed action

59. Within four weeks of my final decision, the Council will take the following actions:
• Make a payment of £2750 to Mrs B to recognise that the accommodation it provided between January and November 2021 was unsuitable.
• Apologise to Mrs B for the failings identified in this case and makes a payment of £500 to recognise the avoidable distress caused by those failings. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
60. Within eight weeks of my final decision, the Council will review the way it records the allocation of temporary accommodation to ensure it can evidence that it has been allocated fairly in accordance with its procedures.
61. The Council will provide us with evidence it has complied with the above actions.

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Final decision

62. I have completed my investigation and uphold Mrs B’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman