Southampton City Council (18 014 227)

Category : Children's care services > Other

Decision : Upheld

Decision date : 06 Nov 2020

The Ombudsman's final decision:

Summary: Since December 2016 the Council failed properly to consider the housing situation of a severely overcrowded family. The Council also failed to make adequate enquiries before deciding the children in the family were not in need. The Council has now carried out a proper housing assessment and rehoused the family. It will pay a financial remedy to the complainant for the delay.

The complaint

  1. Mr Y represents Mr X. Mr Y complaints the Council failed to:
  • Give Mr X enough points on his housing application
  • Take a homelessness application from Mr X
  • Carry out an assessment of need for Mr X’s children.

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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. 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)
  3. 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)
  4. 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 read the complaint and information provided by Mr Y and discussed this with him. I asked the Council for information and considered what it provided.
  2. I have exercised discretion to look at the housing complaint from December 2016 when Mr X made a new application for housing. A homelessness applicant can appeal to court on decisions about their homelessness application. I have exercised discretion to consider the homelessness complaint as Mr X did not have a decision on his application.
  3. Mr Y and the Council had the opportunity to comment on a draft version of my decision. I considered their comments before I made a final decision.

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What I found

Children in need and the statutory complaints procedure

  1. The Council has a duty to safeguard and promote the welfare of children in its area and, as far as possible, promote the upbringing of a child within its family. If a child is in need the Council can meet the needs by providing services itself or facilitating services from others. The Council should, where possible, find out the child’s wishes. (Children Act 1989 part 3 section 17)
  2. Anyone who has concerns about a child’s welfare can make a referral to local authority children’s social care. The council should make initial enquiries of agencies involved with the child and family, for example, health visitor, GP, schools and nurseries. The information gathering at this stage enables the council to assess the nature and level of any harm the child may be facing.  The assessment may result in:
  • No further action
  • A decision to carry out a more detailed assessment of the child’s needs
  • A decision to call a strategy meeting.
  1. The council has a maximum timeframe of 45 days to complete the assessment. Assessors should consider the child’s developmental needs, the parent’s capacity and family and environmental factors. The child’s interests come first.
  2. A parent can make a complaint to the Council about an unwelcome decision under part 3 of the Children Act. The Council should then consider the complaint under the statutory procedure in the Act and accompanying Regulations. These set out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Investigating Officer and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review panel.

Homelessness

  1. A person is homeless if he does not have accommodation which it would be reasonable for him to continue to occupy. (Housing Act 1996, section 175)
  2. A homeless application can be made to any council department and does not need to be on a particular form. (Homelessness Code of Guidance paragraph 18.5)
  3. Guidance says, if the applicant is not yet threatened with homelessness, the council can still accept a prevention duty and begin to take reasonable steps to prevent homelessness.
  4. If the council believes the applicant has a priority need (which includes applicants with dependent children), and is homeless, it has a duty to secure suitable accommodation. While the council considers the application, this is called interim accommodation. If the council has made a final decision and owes the applicant the main homelessness duty, this is called temporary accommodation.
  5. If a council decides an applicant is not homeless, it must send written notice of this and its reasons. It must tell the applicant of his review rights. (Housing Act 1996 section 202)
  6. A council must complete an assessment if it has reason to believe an applicant is homeless or threatened with homelessness within 56 days.
  7. 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 personal housing plan. (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.8)
  8. Where someone applied as homeless because it is not reasonable to continue living in their accommodation, a council may find that accommodation suitable as interim accommodation. The applicant then becomes “homeless at home”.
  9. The Courts have found it is unlawful for a council’s allocation scheme to give higher preference to accepted homeless applicants it has placed in temporary accommodation than applicants who are homeless at home. (Birmingham City Council V Ali [2009] UKHL 36)

The Council’s allocation scheme

  1. 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))
  2. 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))

  1. The Council is a partner in a local choice-based lettings scheme which enables housing applicants to bid for available properties advertised by the Council and its partner Housing Associations.
  2. The scheme says a single parent needs a bedroom of their own. It says two children of the same gender can share a bedroom as can two children of different genders if under 10.
  3. The Council uses a points system to decide who has the greater housing need. It gives:
  • 90 points to applicants with reasonable preference, and an extra 5 points if an applicant has a second reasonable preference.
  • 30 points if someone needs to move on medical or welfare grounds with an extra 5 points if a second household member has a medical or welfare need to move
  • 30 points if an applicant needs to live in a particular area.
  • It adds 1 point for every month the applicant is on the waiting list.
  1. The Council’s policy allows an extra 100 points for urgent homeless applications.
  2. The Council’s policy says it will give an extra 100 points to applicants who have a notice under section 10 of the 1985 Housing Act (overcrowding) or where the Council has taken action for a category 1 hazard.
  3. The Council’s policy says if specialist officers decide there is an urgent need to move on medical or welfare grounds, it can award 100 points.

The Housing Health and Safety Rating System

  1. Private tenants can complain to a council about disrepair in their homes. The council will then inspect for hazards. If the council finds a category 1 hazard, it must act. One action it can take is to serve an improvement notice on the landlord. If the council finds any category 2 hazards it can take action against the landlord. (Housing Act 2004 sections 5 to 7)
  2. Government guidance says if the landlord agrees to do the work in a reasonable time, a council can wait before serving a notice. (ODPM Housing Health and Safety Rating System Enforcement Guidance 2006)

Statutory overcrowding

  1. The Housing Act 1985 says the size of the room restricts the number of people who can sleep in it. A room with a floor area of less than 50 square feet does not count as a room available to sleep in. 0.5 people can sleep in a room with a floor measurement between 50 and 70 square feet. 1 person can sleep in a room with a floor measurement between 70 and 90 square feet. 1.5 people can sleep in a room with a floor measurement between 90 and 110 square feet. 2 people can sleep in a room with a floor measurement of over 110 square feet.
  2. The Act ignores children under a year old for the calculation and counts children aged between a year and ten years old as half a unit. Therefore, a room that can sleep 1.5 units can sleep an adult and a child under ten. A room that can sleep a half unit provides sleeping space for a child under ten.
  3. Under the Act rooms that count for assessing statutory overcrowding include living rooms, bedrooms and large kitchens but ignores rooms under 50 square feet.
  4. Statutory overcrowding is a category 1 hazard.

The Council’s Persistent and Vexatious Customer policy

  1. The policy says the Council distinguishes between people in regular contact because of genuine and ongoing concerns and those whose contact is unreasonable. The policy includes the following descriptions of unreasonable behaviour:
  • Pursuing an enquiry with several service areas in the Council or with other organisations at the same time.
  • Making unnecessarily excessive demands on the time and resources of employees, for example, telephoning or sending emails daily and/or several times a day to council employees, writing lengthy complex letters frequently e.g. every few days.
  • Submitting repeat complaints, essentially about the same issue, after the Council has completed the complaint procedure.
  1. When the Council considers a customer’s contact is not reasonable, a service manager will tell the customer this and confirm in writing what steps the Council and customer can take. If the customer’s behaviour does not change the manager can refer the problem to the Customer Relations Manager. If the Customer Services Manager considers there is evidence of unreasonable behaviour by the customer, the Council will invoke the policy. The Council will write to the customer saying what action it is taking, why, for how long and how to appeal.

Background to the complaint

  1. Mr X has four children A and B teenage girls, C a teenage boy and D a younger boy. In 2015 Mr X’s relationship broke down. Mr X’s partner applied to court for the tenancy of their home and an interim residency order for B, C and D. A wanted to live with Mr X.
  2. In February 2016 the Council’s Social Care Team received a referral about the children. It allocated an Engagement Worker to work with the family.
  3. Mr X applied to the Council for help with housing. Mr X got a one-bedroom private rented flat with the help of a £500 deposit from the Council. A moved in with him. Mr X applied to go on the waiting list. On his housing application he said he could not afford larger private rented accommodation and he struggled with his current private rent.
  4. In November 2016 the Court granted the final child arrangement order with the consent of both parties. The final order said A, B and C would live with Mr X and D with his ex-partner from 25 November 2016. It said Mr X would seek help from the Council in finding suitable accommodation. The order also says if the parents do not do what the order says they may be sent to prison, made to do unpaid work or fined.

What happened

  1. In December 2016 Mr X made a new housing application to the Council, adding A, B and C to the application.
  2. The Council registered the application in February 2017. It gave Mr X 90 points for lack of bed spaces; 35 points for a welfare need to move; and, 30 points to stay in the area because of the children’s schools. The Council gave the welfare points because of severe overcrowding following the Court placing the children in Mr X’s care.
  3. The Council said Mr X needed 3 bedrooms, but he should bid for 2 bedroom properties as this might be quicker. It said if he accepted a 2 bedroom property he could keep his waiting points for 3 bedrooms.
  4. In March 2017 the Early Help Worker stopped working with the family.
  5. On 6 April 2017 a Support Worker from a charity supporting fathers wrote to the Council. He said Mr X had a residency order for 3 children, but D also spends 97% of the time with him. He said B has asthma and the flat was damp. He said Mr X struggled with his mental health. He wanted the Council to talk to Mr X and reassess his housing application. He said the overcrowding was not Mr X’s fault and resulted from a court order.
  6. Officer 1, an assessment officer, replied on 10 April. She said she would refer the application to senior management, but said it was unlikely they would award Mr X more points. She also said Mr X had been close to succeeding with a bid for a three bedroom maisonette. She said Mr X usually made bids on houses but that might be because of a lack of three bedroom flats and maisonettes.
  7. On 21 April Mr X’s GP wrote to the Council. She said D usually lived with Mr X despite what the court order says. She said Mr X had mental health problems caused by his housing situation. A council officer has written on the letter the Council has already given priority and Officer 1 will take action “as per our discussion”.
  8. In May the Support Worker twice contacted Officer 1 for an update saying how difficult things were in the flat. There is an unsigned post-it note attached to this, possibly written by Officer 1. This says: “please can you look at this case, 35 medical points and hardship awarded. Requesting urgent. I do not feel it is urgent. 3 bed need.”
  9. The Council says on 12 June 2017 a Senior Officer and Manager discussed the referral from Officer 1. They did not add any points to Mr X’s application. The note provided by the Council says it restated Mr X should bid for 2 bedrooms and could keep his waiting time points for a 3 bed. The Council did not write to Mr X or his Support Worker.
  10. The Support Worker telephoned the Council on 13 July. The Council says it wrongly told the Support Worker it had not yet considered Mr X’s medical evidence. The Council told the Support Worker Mr X should bid on flats and maisonettes as well as houses. The Support Worker said D stayed with Mr X. The Council said it could only consider children who lived full time at the property as part of the application.
  11. In August 2017 Mr X telephoned the Council. It told him to bid for 2 bedroom properties. Mr X said he wanted to wait for 3 bedrooms.
  12. In 2018 Mr X contacted a debt advice service Mr Y works for. Mr Y took up Mr X’s case.
  13. On 15 April 2018 Mr Y wrote to the Council and included Mr X’s signed consent. He made a homeless application for Mr X as he did not consider it reasonable for Mr X and his children to continue living at the flat. He said the bedroom measures 9.49 square metres (102 square feet) and the living room 3.84 square metres (41.5 square feet). He said Mr X, C and D slept in the living room, he said B slept in the bedroom, which she shares with A when A not at university.
  14. The Council replied to Mr Y on 18 April saying Mr X was not imminently threatened with homelessness. It said Mr X could make a homeless application by email or telephone. Mr Y again asked the Council to take a homeless application. The Council again queried if Mr X was threatened with homelessness.
  15. Mr Y also made a referral to Environmental Health. He said the property was damp and making B’s asthma worse.
  16. Mr Y made a referral to Children’s Social Care asking it to undertake a section 17 children in need assessment because of the overcrowding and the effect on the children. Children’s Social Care noted the last time it had contact, the mother had care of the children. It would check this with the mother as the referral did not seem accurate.
  17. Social Care sent Mr Y’s referral to Housing, as it saw it as a housing issue. Mr Y objected to this. He wanted Social Care to talk to the children and visit the home. The Council then asked the Multi Agency Safeguarding Hub (MASH) to reply to Mr Y, the referral says Mr X might not be truthful about the children living with him. A MASH Officer, (Officer 2) telephoned Mr X’s ex-partner and noted she said D lived with her and A split her holidays between her and Mr X. Officer 2 said Mr X had ignored the advice to bid for two bedroom properties. He said there had been no concerns raised about the children after Early Help intervention finished. He said there was no role for Children’s Social Care. Social Care decided to take no action.
  18. On 29 April Mr Y asked the Council for a copy of the MASH report.
  19. On 1 May 2018 an Environment Health Officer (Officer 3) inspected Mr X’s flat. On 14 May Officer 3 sent an email to the Housing Department. Officer 3 said the flat had inadequate heating and damp. He said the lounge appeared to be occupied by Mr X and his two sons C and D. He said there was a double mattress and bedding on the floor and evidence someone slept on the sofa. He saw two single beds in the bedroom, one for B and one for A when she was not at university. He said nothing he picked up indicated that B, C and D were not living with Mr X.
  20. Officer 3 wrote to the landlord about the hazards in the flat. He told the landlord if he did not attend to the problems he would serve an improvement notice. The Council says the excess cold in the flat was a category one hazard.
  21. Mr Y introduced Mr X to a legal aid Solicitor to advise Mr X about his homelessness application. On 1 May 2018 the Solicitor wrote to the Council. The Solicitor wrote again on 23 May asking the Council to urgently interview Mr X.
  22. The Council replied to the Solicitor on 31 May. It said Mr X had not bid on a three bedroom maisonette, instead he used his bids for houses. It said if Mr X had made a bid for the maisonette he would have succeeded. It said Mr X was not threatened with homelessness as there was no possession order. It said Mr X should bid for two bedroom properties.
  23. On 4 June 2018 two Homeless Prevention Officers visited Mr X at home; Mr Y was there. The Officers’ notes say Mr X’s ex-partner has alcohol problems. That Mr X wants to be treated as homeless at home because of overcrowding. That Mr X is in debt following a stay in hospital. That Mr X needs three bedrooms but should bid for two bedrooms.
  24. On 6 June the Council wrote to Mr X saying he was not homeless or threatened with homelessness as his landlord had not served a section 21 notice to quit. It said because of this Mr X could not make a homeless application. It gave Mr X a plan to say he should look for private rented housing and the Council could top up the £500 deposit it gave him in 2016. It said Mr X needed three bedrooms but should bid for two bedrooms and in a wider area to improve his chance of social housing. The letter did not mention any review rights.
  25. On 22 June 2018 Mr X’s Solicitor sent a letter before action to the Council. She challenged the Council’s decision Mr X could not make a homeless application and its decision not to accept the application Mr X made on 15 April. The Solicitor said Mr X would appeal to the County Court because the Council had failed to make enquiries to establish if it was reasonable for the family to stay at a grossly overcrowded property. The Solicitor asked the Council to accept a homeless application and increase Mr X’s housing points.
  26. On 7 July the Solicitor telephoned the Council. The Officer she spoke to (Officer 4), emailed his manager and said he advised the Solicitor a homeless application would not provide a better outcome for Mr X. Officer 4 said he made it clear if the Council took a homeless application it would offer Mr X interim accommodation. He said the Solicitor replied Mr X would refuse this. Officer 4 said the next step was private rented or temporary two bedroom accommodation and then private rented or three bedroom. He said it was a much better idea to take a two bedroom property now and wait for three bedrooms. He said this was not gatekeeping.
  27. The Council says Officer 4 told the Solicitor the Council gave homeless points to people who had lived in temporary accommodation for 6-9 months to boost their priority. It says it would not give these points to Mr X as he lives in private rented property.
  28. On 10 July Officer 3 told the Housing Department that Environment Health did not serve people with notices of statutory overcrowding, to avoid making the tenant homeless.
  29. On 14 August the Solicitor wrote to the Council to say Mr X did not want to pursue a homeless application as he did not want to move to temporary accommodation or to another private rented property. The Solicitor said Officer 4 told her Mr X would only get additional housing points if he moved into temporary accommodation. She said this is not what the allocation scheme says. She said Mr X’s home is statutorily overcrowded and asked the Council to award Mr X’s housing application the 100 additional homelessness points.
  30. The Solicitor said Mr X did not want to move to two bedroom property as this would mean the upheaval and cost of moving twice.
  31. The Solicitor said if the Council did not give a satisfactory answer, Mr X would complain to us.
  32. The Council replied to ask if Mr X intended to start legal proceedings or complain to us. The Council said we would not accept the complaint unless Mr X had exhausted the Council’s complaints procedure. The Council asked what Mr X wanted.
  33. The Solicitor wrote again to the Council on 18 September 2018. She said Mr X had told her not to start legal proceedings. She said she was making a formal complaint and Mr X wanted extra housing points to reflect his living conditions. The Solicitor wrote again on 3 December 2018 asking the Council to deal with the complaint.
  34. The Council replied to the complaint on 17 December 2018. It did not uphold the complaint, it said Mr X only had two dependent children on his application, B and C and A only stayed when not at university. It said Mr X kept bidding for three bedroom houses, often in areas he had not registered for and had ignored the Council’s advice to bid for 2 bedrooms.
  35. The Council said in 2016 and 2017 Mr X was in contact with the Allocations service and did not mention he was potentially homeless. It said had he done so, or if officers had assessed potential homelessness, the Council would have referred Mr X to the Homelessness unit. It said on the facts such a referral was not relevant or necessary.
  36. Mr Y made a complaint for Mr X to Social Care on 2 November 2018 about the Council’s failure to assess the children’s needs.
  37. The Council replied to Mr Y’s Social Care complaint on 28 November. It said it treated the complaint under the corporate complaints procedure as it related to a housing problem. It did not uphold the complaint. It said there were no safeguarding concerns. It said the home conditions caused a problem for the children; resolving the housing problem would resolve the children’s problems. It accepted it had not sent Mr X the MASH report but said the MASH team had not produced one as they did not find the children in need.
  38. The Council said Officer 2 had tried to contact Mr X by telephone several times but got no answer. It said Officer 2 had then contacted Mr X’s ex-partner who confirmed D lived with her. It said it confirmed D’s address from education records.
  39. The Council accepts it has no records of an officer trying to contact Mr X.
  40. The letter said this was the end of the Council’s complaints procedure and Mr Y could complain to us.
  41. On 31 January 2019 Mr Y made a further complaint. He said the Council had a duty to assess Mr X’s circumstances. He said he had told the Council about the gross overcrowding, but the Council had not treated Mr X as homeless. He said Mr X was homeless at home because of the overcrowding. He said what Officer 4 said about the extra homelessness points was wrong. He pointed to the case law saying it was unlawful for the Council to give extra priority to homeless people in temporary accommodation over those in same situation but not in temporary accommodation.
  42. The Council replied that Mr Y should challenge the Council in court if he thought it had acted unlawfully.
  43. In February 2019 the Council started to place bids for two bedroom flats for Mr X.
  44. On 20 February Mr X, Mr Y and the support worker met with an Allocations Manager.
  45. The Council replied to Mr Y’s complaint on 28 February 2019. It said it would not investigate the homelessness complaint as Mr X instructed a Solicitor to start legal proceedings, and the Council could not deal with legal matters in the complaints process. It said it would not consider the complaint against Social Care as it concerned the same matters as in the Housing complaint. It said Mr Y had exhausted all stages of the Council’s complaint procedure for the Social Care complaint.
  46. The Council explained what points it had given to Mr X’s housing application and said this was in line with its policy. It said Mr X could not have homeless points because he was not homeless and had withdrawn his homeless application. It did not uphold the complaint, except for the delay in replying to the complaint made in September 2018. It said Mr X contributed to this delay by instructing different advocates to address the complaint from different perspectives.
  47. On 3 April the Allocations Manager wrote to Mr X to confirm the advice he gave on 20 February. He said Mr X could continue to bid for three bedroom properties but it would take a long time. He advised Mr X to bid for two bedroom properties, all of which are flats or maisonettes. He said Mr X could only bid for two bedroom council properties as housing associations would not accept a bid because of the size of his family. He said if Mr X was successful, he would need to make a new housing application and the Council would let him keep the 90 reasonable preference points and waiting points. He said it would not necessarily let Mr X keep the welfare points as the Council would need to reassess.
  48. He said Mr X should bid for three bedroom maisonettes. He said the Council could help Mr X with the deposit for a three bedroom private rented property.
  49. He said the Council would assist Mr X by checking his bidding history to see if he had missed a property he might get. He said the Council would only place bids for three bedroomed properties.
  50. The Council continued to place bids for two bedroom properties for Mr X.
  51. Mr Y made a further complaint on 17 April 2019. He said the Council still failed to recognise Mr X is homeless because he lives in accommodation it was not reasonable to continue to occupy. He said as Mr X was unintentionally homeless and had a priority need the Council should give his application the extra 100 points.
  52. The Council decided to treat Mr X as an unreasonably persistent and vexatious complainant and by default Mr Y and the Support Worker as his representatives. On 29 April it sent two letters to all three, both from the Complaints Resolution Manager.
  53. The first letter said the Council had made its position clear on Mr X’s housing application. It said Mr X continued to raise the same issue and had done so through solicitors, two councillors and two advocates. It said Mr X had involved Social Care and the Legal Department as well as Housing. It said Mr X had taken up substantial staff time only to confirm the original decision it made. It said Mr X had made two formal complaints which had now been through the complaints procedure and now intended to complain to us.
  54. It said it had applied the persistent and vexatious policy to Mr X and his advocates from 29 April. It said if it received any further referrals from outside agencies, Councillors or MPs it would only send them a copy of this letter. It said Mr X could only contact the general housing allocations email address about his housing situation. It told Mr X how he could appeal against the decision. It said it would review the decision on request from Allocations Officers.
  55. The second letter said it would not investigate Mr Y’s complaint of 17 April. It said the Council had already dealt with the issues through the complaints process and during the legal action Mr X started against the Council in 2018.
  56. In May 2019 the Council made a provisional offer of a two bedroom flat to Mr X. The Council placed the bid itself. Mr X did not accept the flat.

The Council’s original response to us

  1. The Council says Mr X’s situation is not urgent. It says if it was urgent Mr X would have accepted solutions the Council put forward and not insisted on a three bedroom social rented house. It says treating Mr X as urgent is detrimental to other applicants.
  2. The Council says the child arrangement order was given by the Court with the consent of both parents. The Council says the order says B and C could live with Mr X once he had obtained suitable accommodation. It says the children could return to live with their mother.
  3. It says Mr X was not threatened with homelessness as his landlord had not served notice to quit or started possession proceedings. It says despite that it continued to give advice and assistance to Mr X and because of that assistance Mr X decided to withdraw his homelessness application.
  4. The Council says even if it could have taken a homeless application in 2017, this caused Mr X no injustice as he later withdrew his homeless application.
  5. The Council says the flat is not statutorily overcrowded as there are two rooms to sleep in. It says the size of the household means different genders can sleep in separate rooms. It says when considering the reasonableness of accommodation, it must consider how long the applicant will continue to live there. It says Mr X had readily available alternatives so it would not give any additional priority.
  6. It says on the measurements Mr Y provided, and as only three people are required to live in the property, the flat is not statutorily overcrowded. It says A is at university and D lives elsewhere.
  7. It says if Mr X was statutorily overcrowded it might take action again the landlord leading to Mr X’s eviction. It says it could also take legal action against Mr X for allowing the overcrowding. It says Mr X did this by not making B and C live elsewhere until he had larger accommodation and his failure to bid for two bedroom properties.
  8. The Council says it did not give Mr X’s application the 100 points for statutory overcrowding because the Council had not served a notice about this. It says it did not give the 100 extra points as the Council did not serve a category 1 hazard notice. It says after Environmental Health visited the landlord did the work within one month. The Council says in the last year it has not awarded these points to any applicant.
  9. The Council says its criteria for awarding the 100 additional homeless points is that it owes the applicant the main homelessness duty and the applicant is in temporary accommodation it secured. The Council says in the last year it gave 198 applicants the extra 100 homelessness points.
  10. The Council says its Social Care officers did not speak to the children as their prevalent need was for housing and the Housing Department had told Mr X how to address this.
  11. The Council says it did not put Mr X’s Social Care complaint through the statutory Children Act complaints procedure because it was actually a complaint about Housing. It says therefore s17 assessment of need did not apply.

The Council’s further response.

  1. The Council has accepted it should have awarded Mr X’s housing application 100 points for overcrowding. It says it is reviewing its processes to prevent this happening again. The Council rehoused Mr X into a three bedroom property in February 2020.
  2. The Council says if it had accepted a homelessness duty to Mr X it could have discharged this by an offer of private sector accommodation. It says Mr X did not want this.
  3. The Council says as it never accepted Mr X as homeless the Court’s decision in Birmingham and Ali does not apply.
  4. The Council remains of the view that it tried to assist Mr X by offering help with a deposit and advising him to bid for two bedroom properties. It says if Mr X accepted a two bedroom property he would not have been statutorily overcrowded. It also says a move into a two bedroom council would educe Mr X’s chance of a successful for a three bedroom property. It says even if he lost his welfare points he would get points for being a council tenant.

Findings

  1. Mr X was statutorily overcrowded. All his children are older than 10. The living room was not suitable for sleeping in as it measures less than 50 square feet. The bedroom can sleep one person over ten and one person under ten. Even if D does not live with Mr X and if A stays away, Mr X only had sleeping space suitable for one person over ten. The Council has now accepted this

The housing application.

  1. The Council should have realised Mr X was potentially homeless because of overcrowding when he made his application in December 2016. It said Mr X was severely overcrowded but did not take a homeless application. This is fault. The Council missed further opportunities to take a homeless application when Mr X’s Support Worker and GP told it about the overcrowding and its effect on the family.
  2. In April 2017 the Support Worker told Allocations about the damp in the flat. Allocations did not refer this to Environmental Health or advise the Support Worker to do this. This is fault. It was a year before Environmental Health became involved. It was June 2018 before the landlord dealt with hazards. This delay caused injustice to Mr X and his family as they lived with category 1 and 2 hazards for a year longer than necessary.
  3. From April 2017 people asked the Council to reassess Mr X’s application and provide more points. Before we investigated the complaint, the only reconsideration the Council carried out was in June 2017 and the note gives no reasons for the decision. The Council then did not tell Mr X or his advisors about the outcome of the reconsideration. This is fault.
  4. Mr X was statutorily overcrowded and lived in a home with a category 1 hazard. The Council says it did not give extra points for either because it had not served a formal notice.
  5. The Council’s policy is that it will try informally to resolve category 1 hazards before serving a formal notice, therefore Mr X could not get a notice. The Council says this did not cause injustice as the landlord did the work within a month. This overlooks the fact Mr X lived with that hazard before this because the Council failed to involve Environmental Health in 2017.
  6. Environmental Health says it does not serve formal notice for statutory overcrowding to avoid the landlord evicting the tenant. Therefore, there was no possibility of an applicant getting these extra points. However, Environmental Health told Housing Mr X’s home was overcrowded and this should have been enough to award the points. If the Council had given Mr X 100 extra points for overcrowding, he would have received an offer of housing earlier. The Council says it is now working to address this.
  7. The Council did not give Mr X the 100 points for urgent homelessness as it did not assess a homeless application from him. It says the Birmingham and Ali case is not relevant. As the Council has now given Mr A 100 points for a different reason and rehoused him, I see no reason to pursue this further for Mr X.
  8. I have some concerns about the urgent homelessness points. Its policy does not specify the reason it will give these points. The Council says it gives the extra points to homeless applicants who it had a duty for and who is in temporary accommodation. The Council should not have criteria not mentioned in its allocation policy. The reason the Council gives these points appears at odds with courts decision in Ali v Birmingham City Council (previously Awey v Birmingham City Council.)
  9. Mr Y raised this point several times with the Council and the Council did not address it. The Council told Mr Y to challenge it in court. This is not a proportionate response to an advice worker making a legitimate point.
  10. The Council suggests Mr X is the author of his own misfortune as he does not want a private sector property and does not bid for two bedroom council properties. Mr X does not want a private sector property as he works and thinks it will be too expensive.
  11. The Council should only offer suitable accommodation. Under its own policy Mr X needs three bedrooms. The Council says Mr X cannot bid for two bedroom housing association properties as the association would say it was not big enough for his family.
  12. The Council said if Mr X took a two bedroom property, he could keep his time points and continue bidding for three bedrooms. This would not help Mr X in getting a three bedroom property. The Council said Mr X had little chance of getting a three bedroom property with his previous points. Mr X’s decision he does not want a two bedroom flat is rational. The Council should not hold Mr X responsible for asking for what it has assessed him as needing.
  13. The Council also says Mr X should not have let B and C move in until he had found larger accommodation. It says A does not have to live with Mr X as she is an adult. It also says B and C could live with their mother. This is not what the court order says. It says B and C will move in with Mr X immediately. It says Mr X may commit a criminal offence if he does not comply with the order. It also recognises A as part of Mr X’s household and says he should seek help from the Council for accommodation for himself, A, B and C. The Council has no power to suggest Mr X should not let A stay with him.

The homeless application

  1. Mr Y made a homeless application for Mr X on 15 April 2018. The Council should have started enquiries to establish if it had any duty to Mr X. It did not do this. This is fault.
  2. Mr X claimed homelessness on the grounds it was not reasonable for the family to live in the property. The Council insisted he was not homeless or threatened with homelessness because the landlord was not trying to evict him. This is irrelevant to the application Mr X made.
  3. Mr X had to instruct a solicitor before the Council agreed to interview him. The Officers’ notes of the interview clearly say Mr X was making a homeless application because of overcrowding. Two days later the Council said Mr X could not make a homeless application as his landlord had not served notice on him. The Council’s decision was flawed. If the Council found Mr X not homeless it had to give him a right to ask for a review of this decision, It did not do this. This is fault. The Council had not investigated Mr X’s claim to be homeless due to overcrowding. This is fault.
  4. The Council says Mr X withdrew his homeless application because of the advice it gave him. I agree, but that advice was flawed. A homeless applicant does not have to accept interim housing. Mr X could have stayed in the flat and be homeless at home.
  5. The Council has caused injustice to Mr X as it did at the time consider if he is homeless at home or if he should get the extra points.

The Social Care complaint

  1. The Council’s decision not to undertake a children in need assessment is flawed. The Council must put the children first. In this case the Council only considered where D lived. It did not consider B and C at all.
  2. The Council did not have enough information to decide to take no action. It only asked D’s mother where D lived and looked at the LEA database. It decided D lived with his mother.
  3. The Council had many other people telling it D lived with his father. It had a Solicitor, two advocates, Mr X’s GP and its own Environmental Health Officer saying D lived with Mr X. It refused to talk to the children or Mr X. It did not visit either home. It should have established where D lived. If D was living mostly with his father, contrary to the Court Order, it should have established why.
  4. The Council should have found out what effect the overcrowding had on B and C. It did not.
  5. The Council said it was a housing problem and Mr X could resolve this by taking a two bedroom flat. Social Care must consider the children. Mr X did not want a two bedroom flat and the children remained in overcrowded conditions. It is not enough to say Mr X could resolve this. The Council should have considered what the situation was for the children, not what it could be if Mr X had made a different decision. This is fault.
  6. Mr X made a complaint about Social Care’s failure to assess the children. This complaint falls within the statutory Children Act complaint procedure. The Council is at fault for considering the complaint under its corporate procedure. The Council said it considered the complaint was about housing. The referral arose because of the living conditions of the children but concerned the Council’s failure to assess the needs of the children when living in the conditions.
  7. The Council caused injustice as Mr X’s children missed the opportunity of help and support from Social Care. The Council caused injustice to Mr X as he missed the opportunity of an independent investigator considering his complaint. As the family have moved to suitable accommodation there is no longer a need for assessment.

The Council response to Mr X’s complaints.

  1. The Council delayed from August to December 2018 in replying to Mr X’s housing complaint. This is fault.
  2. The Council has never addressed Mr X’s complaint that he is homeless at home due to overcrowding. It says this is because Mr X started legal action and it cannot consider a complaint that is the subject of legal action. Mr X did not start legal action. His Solicitor sent a letter before action. The Solicitor then told the Council Mr X had decided not to start legal action and wanted the complaint considered as possible maladministration.
  3. The Solicitor and Mr Y consistently said the Council was acting outside its allocations policy by only giving 100 homeless points to people in temporary accommodation. Mr Y pointed to the case law saying why the Council could not do this. Save for telling Mr Y to take it to Court, the Council has not addressed this complaint.
  4. When Mr Y tried again to get answers to these two issues, the Council deemed Mr X a vexatious complainant and said it would not respond further to Mr Y. As the Council had not addressed these issues, these were genuine and ongoing concerns. It was fault for the Council not to reply to these issues. It was not a proper use of the vexatious complainant procedure to use it to shut down a complaint with some issues outstanding.
  5. The Council did not follow its policy when applying the policy to Mr X. A Service Manager did not contact Mr X before applying the policy and tell him what behaviour the Council objected to. It did not tell Mr X how long it would impose the restrictions on contact from him. This is fault.
  6. The Council caused injustice to Mr X and Mr Y by not properly considering the points they made and refusing to correspond further,

Agreed action

  1. The Council has already agreed to provide 100 points for overcrowding and rehoused Mr X. In addition, to put matters right within one month of my final decision the Council will:
  • Apologise to Mr X and Mr Y.
  • Pay Mr X £2,000 for not referring the disrepair in the flat to Environmental Health in 2017, meaning his family lived with cold and damp for a year longer than necessary.
  • Pay Mr X £5,000 for the delay since December 2016 in properly considering if he is statutorily overcrowded and how that affects his family, his housing application and homeless status.
  • Pay Mr X £900 for Mr X to use for B, C and D for the failure to assess then when in the overcrowded flat. (This is £300 per child).
  • It should remove Mr X’s status as an unreasonably persistent and vexatious complainant.
  • The Council will seek Counsel’s advice on whether awarding 100 extra points to homeless households it has placed in temporary accommodation complies with Birmingham and Ali judgement.

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Final decision

  1. The Council is at fault and had caused injustice. I have recommended a remedy. Which the Council has accepted. I have completed my investigation and closed the complaint

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Investigator's decision on behalf of the Ombudsman

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