Taunton Deane Borough Council (18 010 686)

Category : Benefits and tax > Housing benefit and council tax benefit

Decision : Upheld

Decision date : 31 May 2019

The Ombudsman's final decision:

Summary: There was fault in how the Council dealt with Mrs B’s housing situation. It did not do enough to make sure her emergency accommodation was suitable. This meant that Mrs B’s father found and paid for her emergency accommodation. The Council also failed to set out how she could appeal against decisions on her housing benefit or escalate her complaint. The Council has agreed to pay Mrs B in recognition of the distress it caused her, pay her father the accommodation costs it would have met, and review its processes to make sure this does not recur.

The complaint

  1. Mr X complains on behalf of his daughter, Mrs B about how the Council handled her housing benefit (HB) and homelessness problems. In particular he says the Council:
    • Provided unsuitable emergency accommodation at both a hotel and a guest house;
    • Wrongly found her intentionally homeless when she refused to stay at the guest house;
    • Did not pay her HB on her home address when she had to flee to escape domestic violence;
    • Did not pay HB when she returned to a hotel because it treated this as hotel accommodation rather than emergency accommodation;
    • Did not inform her of her appeal rights when it did not change its HB decisions on review; and
    • Took too long to deal with her complaint about its actions, did not tell her how to escalate her complaint, and did not take into account her disability and vulnerability in its dealings with her.
  2. Mr X says that as a result, he and Mrs B had to pay for emergency accommodation. He says the Council’s actions caused him and Mrs B distress which made her disability worse and in turn, made it harder for her to deal with her housing problems.

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What I have investigated

  1. I have investigated whether the Council advised Mrs B of her right to appeal its decisions, whether it made sure her emergency accommodation was suitable and how it dealt with her complaint. I have not investigated whether Mrs B was entitled to HB for the reasons set out below.

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The Ombudsman’s role and powers

  1. 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)
  2. If we are satisfied with a council’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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How I considered this complaint

  1. I have considered the information supplied by Mrs B and discussed the complaint with Mr X. I have considered the Council’s file documents, its response to my enquiries and its own policies. I have also considered the law and the government guidance in force at the time. Both parties have had the opportunity to comment on a draft of this statement and I have considered their comments before issuing my final decision.

Law and Guidance

  1. The HB regulations say:
    • Councils must make housing benefit decisions in writing.
    • Decision notices about HB should set out how the claimant can appeal.
    • If the decision has appeal rights the claimant can first ask the Council to reconsider its decision. If the Council reconsiders its decision but decides the claimant is still not eligible for HB, she has the right to appeal. The Council’s letter refusing the reconsideration should set out how to appeal to the tribunal about this. (Housing Benefit (General) Regulations 1987)
  2. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities 2006 (the Guidance) set out councils’ powers and duties to people who are homeless or threatened with homelessness.
  3. If the Council thinks someone is homeless and in priority need, it must, if the person asks for it, provide emergency accommodation until it has finished assessing the homelessness application.  A person with serious health problems will normally be in priority need.
  4. 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 emergency accommodation and accommodation provided under the main homelessness duty. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)
  5. The Guidance says that councils will need to carefully consider the suitability of accommodation for applicants with particular medical or physical disabilities. The Council should take into account the individual’s needs as well as access to and around the home and mobility needs. (Homelessness Code of Guidance 17.2). The applicant has no right to ask the Council to review its decision that emergency accommodation is suitable.
  6. The courts have said that if the applicant refuses an offer of emergency accommodation, she cannot require the council to make a further offer. (R (Brooks) v Islington LBC [2015] EWHC 2657 (Admin0, [2016] HLR 2)
  7. If having made its enquiries, a council is satisfied someone is eligible, homeless, in priority need and unintentionally homeless it will owe them the main homelessness duty. Generally, the Council carries out the duty by arranging temporary accommodation until it makes a suitable offer of social housing or private rented accommodation. (Housing Act 1996, section 193)

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What I found

  1. Mrs B has a chronic and degenerative disability at an advanced stage. She uses an electric wheelchair full time. In December 2017, she suffered domestic abuse and was in fear of her safety. She contacted the Council and fled her home. The Council housed her in a hotel as emergency accommodation while it assessed her homelessness application. This was a wheelchair accessible room and was all that was available.
  2. The Council found that it had a full homelessness duty to Mrs B, and so it needed to find her accommodation that would meet her needs. In the meantime, she would need to stay in the hotel. Mr X told the Council the hotel was not suitable to meet Mrs B’s disability. There were no cooking facilities or a restaurant and it was impacting on her mental health. The Council offered her different emergency accommodation at a guest house, until it could find her better accommodation. Mrs B initially turned this down because she could not smoke or drink alcohol there, but Mr X says an Occupational Therapist (OT) confirmed that the guest house was not suitable because Mrs B could not get over the front step and could not reach the shower controls.
  3. Mrs B moved in with a friend, but this was only possible for a few weeks and Mr X contacted the Council for help again in January 2018. The Council said that Mrs B would have to find her own accommodation because she had refused to move to the guest house. In desperation, Mr X paid for her to go back to the hotel. The Council’s records show there was no room available for her at the guest house in any case.
  4. In January 2018, the Council decided that it would not pay HB on Mrs B’s original home because she had not intended to return. It also would not pay HB on the hotel where she was currently staying because this was hotel accommodation. In both circumstances, the rules say that the claimant is not entitled to HB. The Council wrote to Mrs B notifying her of both decisions. The letters say that she can appeal against the decision and the Council will see if it can change it. If the Council cannot change the decision then an independent tribunal will hear her case.
  5. The Council placed Mrs B on the housing register meaning that she could bid on available properties. She was placed in a high band but no properties with disabled access became available. Mrs B’s family paid for her to move into a privately rented flat.
  6. In the meantime, Mrs B asked the Council to review its HB decisions. The Council decided it could not change its decisions. Its letter to Mrs B dated 16 February 2018 did not set out her right to appeal to a tribunal if she disagreed. Mrs B’s housing costs were met by Universal Credit from 5 February.
  7. Mrs B complained to the Council on 10 May. She sought the advice of the Citizens’ Advice Bureau (CAB) and it wrote to the Council on 27 June. The Council received the letter of complaint on 10 July and responded on 4 September. This was outside its normal timeframe due to an internal reorganisation. The Council did not tell Mrs B what to do if she was still unhappy with the Council’s response to her complaint. Following her complaint, the Council says its HB Appeals Officer spoke to the CAB which confirmed there were no outstanding HB issues.
  8. Mr X complained to the Ombudsman on Mrs B’s behalf. In the course of my investigation, the Council has explained that it does not inspect emergency accommodation. It is guided by the fact that hotels and guest houses are regulated by equality legislation and expected to meet certain standards of accessibility. The Council said the hotel room was an accessible room and it has placed other wheelchair users in the guest house with no issues of accessibility.
  9. The Council has explained that it routinely includes information about how to appeal HB decisions in its review letters and the failure to do so in Mrs B’s case was human error.

Was there fault by the Council?

Housing Benefit

  1. The Council did not inform Mrs B of her right to appeal to the tribunal against HB decisions in its review decision letter dated 16 February 2018. It may have discussed the right to appeal with the CAB, later in the year when it dealt with her complaint. However, the Council should have made the appeal rights clear when it refused to reconsider its decisions. This was contrary to the HB regulations and fault by the Council.

Suitability of emergency accommodation

  1. The Council did not do enough to make sure the guest house was suitable. Although the suitability requirements are less for emergency accommodation as it is intended to be a very short-term stay, the Council should at least make sure it is accessible and can meet the applicant’s personal care needs. The Council has relied on that guest houses are subject to equality law. However, this does not mean that all guest houses and the washing facilities will be accessible by wheelchair. Mrs B says the guest house was not accessible and the Council has not given me any evidence that it verified this.
  2. Although Mrs B said she did not want to stay there because of the rules, if the Council did not establish that the guest house was suitable, then it retained the duty to provide her with emergency accommodation until it discharged its homelessness duty. I can see that the Council was not aware that Mrs B thought the guest house was inaccessible, but the Council should have done more to establish this. As such it should have not told Mrs B that she had to find and pay for her own accommodation when she asked it for help again in January 2018.
  3. Mrs B also says the hotel was unsuitable. The OT assessment found that the hotel doors were difficult for Mrs B to manage and staying there was impacting on her physical and mental health. The Council appears to have concluded that the fire doors would not make the hotel unsuitable for Mrs B. However, there is again no evidence that the Council did enough to make sure the hotel met her needs. It did not consider how she would source all meals outside of the hotel, for example. To be clear, I am not saying that the hotel was necessarily unsuitable but that the Council did not consider Mrs B’s individual needs when it placed her there in contrary to the Guidance.
  4. In January 2018, when Mrs B needed help again, the guest house was not available in any case and so it is likely that the hotel, although not ideal, was the only viable option. Had the Council placed Mrs B here, then it would have met the cost of the room, as it had in December 2017.

Complaint handling

  1. The Council has explained why it took longer than normal to deal with Mrs B’s complaint. The Council should have set out how Mrs B could have taken her complaint further if she remained dissatisfied.

Other matters

  1. The Council did not decide that Mrs B was intentionally homeless but rather that it did not have to find her emergency accommodation when she left the hotel and refused to move to the guesthouse.
  2. There is no evidence that the Council took account of how the stressful situation was impacting on Mrs B’s ability to make decisions, it merely referred her to Adult Care Services. I would have expected it to do more, given Mrs B’s disability.

How has the Council’s shortcomings affected Mrs B and her family?

  1. Mrs B and her family were caused distress and frustration by its dealings with the Council. It would have been particularly distressing when they had to find accommodation in January 2018 with no help from the Council.
  2. Mr X had to meet the full cost of the hotel from 4 January until 5 February 2018, because it was not classed as emergency accommodation provided by the Council.
  3. It is unlikely that Mrs B would have been housed much sooner. The Council accepted it had a full homelessness duty and Mrs B was also able to bid on properties on the Council’s housing system, but no suitable properties became available. The Council was completing work on an adapted property but in the event, this was not available for nine months after the Council accepted it had a duty to house her.
  4. Mrs B lost the opportunity to appeal against the HB decisions because the Council did not set out her appeal rights. She was also caused frustration when the Council did not tell her how to escalate her complaint against it.

Agreed action

  1. The Council has agreed that within one month of this decision, it will show the Ombudsman it has:
    • Paid Mr X, the amount it would have contributed to her housing costs from 4 January to 5 February 2018;
    • Paid Mr X £150 in recognition of the distress it caused him;
    • Paid Mrs B £400 in recognition that it did not take account of her individual needs when it offered her emergency accommodation, did not establish that the guest house was accessible, and did not properly take account of vulnerability when it dealt with her; and
    • Shared this decision with its staff.
  2. Within three months of this decision the Council will show the Ombudsman it has:
    • Reviewed its processes so that it can ensure that it considers whether emergency accommodation is suitable for individual needs;
    • Reviewed its complaint responses so that it is clear how the complainant can take matters further.

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Final decision

  1. I have completed my investigation. There was fault by the Council causing Mrs B and her family injustice.

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Parts of the complaint that I did not investigate

  1. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
  2. The Social Entitlement Chamber (also known as the Social Security Appeal Tribunal) is a tribunal that considers housing benefit appeals. (The Social Entitlement Chamber of the First Tier Tribunal)
  3. I have considered whether it was reasonable to expect Mrs B to appeal to the Tribunal that the Council had refused to pay her HB, given that she is disabled and was for part of that time homeless. However, Mrs B had the help of the CAB and the Council says it spoke to the CAB about her appeal rights. It would have been reasonable to expect Mrs B to appeal with this is assistance. For this reason, I have not investigated the Council’s decisions about HB.

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Investigator's decision on behalf of the Ombudsman

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