Exeter City Council (13 011 643)

Category : Housing > Allocations

Decision : Upheld

Decision date : 31 Mar 2015

The Ombudsman's final decision:

Summary: The Council did not handle Ms J’s homelessness application correctly, so she suffered the avoidable distress of being street homeless, and was at times without suitable accommodation while she waited for the outcome of the Council’s review. The Council should apologise and pay Ms J £1,600 to acknowledge the impact on her of its faults. The Council should also apologise to her sons and pay them £200 each, to acknowledge the opportunity they lost to make an informed decision about their future.

The complaint

  1. The complainant, whom I shall call Ms J, complains about the way Exeter City Council (‘the Council’) handled her homelessness application in June 2013, and its subsequent review of its homelessness decision.

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The Ombudsman’s role and powers

  1. The law says the Ombudsman cannot normally investigate a complaint when someone could take the matter to court. However, she may decide to investigate if she considers it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c))
  2. In this case, Ms J’s mental health presented a significant barrier to taking such action once the Council had completed its review. And she could not take the matter to court sooner, because it was not clear what process the Council was following. So I have exercised discretion to investigate her complaint.
  3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. If the Ombudsman is satisfied with a council’s actions or proposed actions, she can complete her investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i))

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How I considered this complaint

  1. In reaching my view I have
    • discussed the complaint with Ms J and considered the information she sent with her complaint
    • considered the comments and documents provided by the Council in response to my enquiries
    • considered information provided by Ms J’s home council and the councils of other areas where she stayed.
  2. I have given both Ms J and the Council the opportunity to comment on the draft decision.

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What I found

  1. When a person applies to a council for accommodation and it has reason to believe they may be homeless or threatened with homelessness, a number of duties arise, including:
    • to make enquiries;
    • to secure suitable accommodation for certain applicants pending the outcome of the enquiries;
    • to notify the applicant of the decision in writing and the right to request a review of the decision.
  2. There are no statutory time limits for completing enquiries, however the Homelessness Code of Guidance (‘the Code’), issued by the Government in 2006, recommends councils aim to complete their enquiries within 33 working days.
  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. Examples of priority need are:
    • people with dependent children;
    • pregnant women;
    • people with serious health problems;
    • some elderly people.
  4. Where an applicant requests a review of a council’s decision this must be completed within eight weeks. In reviewing a decision, housing authorities will need to have regard to any information relevant to the period before the decision (even if only obtained afterwards) as well as any new relevant information obtained since the decision. (Code 19.6)
  5. If the applicant is dissatisfied with the review decision or if a council fails to reach a decision within eight weeks the applicant can appeal to the County Court on a point of law. The Ombudsman would normally expect someone to appeal to the County Court but I have exercised discretion to investigate for the reasons given in paragraph 3.
  6. The Code recognises that applications may be made to more than one council simultaneously. In such cases it suggests that councils may contact one another to decide who will take responsibility for making enquiries. There is nothing to stop applicants applying to other councils after a negative decision by a first council. Although a council may have regard to another council’s decision, it may not rely solely on it and will need to reach its own independent decision in response to the application (Code 6.7).

Duty to safeguard and promote the welfare of children

  1. Section 11 of the Children Act 1989 places duties on a range of individuals and organisations, including housing authorities, to have regard to the need to safeguard and promote the welfare of children. In practice this may mean making a referral to local children’s services for family support, when an authority becomes aware of a child affected by homelessness.

Events leading to the complaint

Ms J’s arrival in the Council’s area

  1. Ms J is under the care of a consultant for her mental health. She has two teenage sons who were her dependents at the time of these events.
  2. Ms J left her home in December 2012 because of domestic violence. She stayed in a refuge in her home council’s area. She made a homelessness application to her home council. Her home council accepted it had a homelessness duty towards her. Ms J said she wanted to move with her sons to another part of the country. Her home council said it could not help her to do this.
  3. The refuge in Ms J’s home area helped her and her youngest son to transfer to a refuge in Area Z. Ms J made a homelessness application to Council Z. Council Z accepted it had a homelessness duty towards her. But before Ms J could bid on properties in Area Z, an incident at the refuge caused her to fear for her safety there. She moved to a refuge in Exeter in June 2013.
  4. Ms J did not make a homelessness application to the Council straight away. She says staff at the refuge were supposed to help her to do this. But while she was staying there, Ms J was involved in an incident attended by the police and the refuge said she had to leave. Ms J presented to the Council as homeless on 27 June.

Ms J’s homelessness application

  1. A council officer interviewed Ms J and decided she was not homeless, because she had a home she could return to in her home area. The officer printed off a decision letter and gave it to Ms J together with a leaflet about sleeping on the street.
  2. Ms J returned to her home area. There was a domestic violence incident recorded by the police the next day. Ms J contacted the Council to ask it to review its decision. She left her home area and presented as homeless to Council Y. Council Y placed Ms J in temporary accommodation while it made enquiries.
  3. Ms J returned to Exeter. The Council agreed to provide Ms J with temporary accommodation while it reviewed its decision about her homelessness application. Ms J withdrew her homelessness application to Council Y.

The Council’s review of its decision

  1. Ms J first challenged the Council’s decision on 28 June. On 15 July the Council contacted the social worker for Ms J’s youngest son in their home area. The social worker confirmed that:
    • the youngest son was on a ‘child in need’ plan
    • the refuge to which Ms J had moved in her home area could not accommodate her sons, who remained in the family home alone
    • while Ms J remained in her home area she had regularly visited them to check their welfare, but felt very unsafe doing this
    • The family urgently needed to be reunited.
  2. Ms J’s aunt offered to take her on holiday. Ms J wanted to discuss this with the Council. She visited the Council’s offices on 26 and 29 July and left messages asking for a call. She emailed the Council on 29 July when she had not received a response. The Council contacted the manager of Ms J’s temporary accommodation and asked him to find out more from Ms J about the holiday.
  3. On 30 July the Council sent a letter to Ms J saying it would complete its review of the decision by 24 August, and inviting her to an interview on 7 August. Ms J did not receive this letter and left the temporary accommodation on 6 August to go on holiday with her aunt. The Council closed Ms J’s case on 13 August.
  4. Ms J contacted the Council when she returned to the area on 26 August. She asked for the outcome of the Council’s review as it was now after 24 August. The Council re-opened the case and provided accommodation for Ms J and her two sons. The Council began the review of its decision again and said it would complete this by 23 October. Ms J did not receive the letter explaining this until 23 September.
  5. Ms J returned to her home area on 30 September and asked an advocacy service for help. The advocacy service told the Council it needed more time to submit evidence for the review of the homelessness decision. The Council agreed a new deadline of 1 November for submitting extra evidence and said it would then issue a decision letter on 15 November.
  6. The Council did not send the advocacy service all the information it had asked for. The advocacy service sent the Council extra evidence on 11 November. On 21 December the Council sent the advocacy service a letter saying it was ‘minded to’ decide that Ms J was not homeless. The advocacy service responded in early January and the Council issued its final decision on 5 February 2014.
  7. The Council upheld its original decision that Ms J was not homeless because she could return to her home in her home area. It said:
    • Her youngest son’s social worker had confirmed Ms J regularly visited the property after moving out, and such visits were evidence she was not at risk of violence there
    • The police could not provide any records of domestic violence incidents at that address
    • The police did have a record for an incident at that address in December 2013, in which the police described Ms J as the aggressor
    • Ms J had stayed in the area for four months before moving to Area Z, which suggested she was not in immediate danger.
  8. The Council had contacted Area Z as part of its enquiries for this review. Area Z asked for the Council to send a copy of Ms J’s consent to disclose information. It did not hear anything further from the Council. In its letter the Council said it had asked Area Z for information which Area Z had not provided.

Where Ms J stayed, July 2013 to August 2014

  1. The Council placed Ms J in temporary accommodation (placement 1) when it agreed to review its homelessness decision in July 2013. Ms J stayed in placement 1 for five nights. She was the only female resident and felt vulnerable, particularly as the other residents included drug users. She asked the Council to move her.
  2. Ms J then moved to supported temporary accommodation (placement 2). She stayed here for three weeks before returning to her home area to collect her sons, when their father was no longer able to care for them. They then went on holiday with Ms J’s aunt.
  3. When Ms J returned to Exeter in late August, with her sons, and re-presented as homeless, the Council placed her in temporary accommodation (placement 3). They shared a room here for two nights, before moving to supported temporary accommodation (placement 4). At placement 4 they were again sharing a room. This had its own bathroom, fridge and microwave.
  4. Ms J moved to different temporary accommodation (placement 5) in mid September 2013. Although she and her sons were still sharing a room, it was a larger room with a kitchen area and its own bathroom. It was still, however, stressful sharing this living space, and Ms J’s sons wanted settled accommodation so they could sort out school and college places. After some significant arguments, including a physical fight, Ms J agreed her sons could return to their home area.
  5. Ms J then found placement 5 had evicted her, because of the arguments and damage to the room during the fight. The Council would not help Ms J further with temporary accommodation or travel costs. A local charity gave her the train fare back to her home area and Ms J returned there on 30 September.
  6. Ms J’s sons had returned to live at their previous address, where Ms J still had the tenancy. Ms J did not return to live there herself, because she did not feel safe there. She stayed with friends, moving on as needed, and sometimes spending the night on the streets. She avoided going outside if possible as she was concerned that this would put her at risk of violence if her former partner saw her.
  7. Ms J’s sons got training placements in the area, so Ms J decided she should not try to relocate to another part of the country. In August 2014 Ms J successfully bid on a property which is within her home area but far enough from her previous home that she feels relatively safe. She has transferred her tenancy and is now settled, although many of her possessions have been lost or sold.

The Council’s response to Ms J’s complaint

  1. In response to my enquiries, the Council said it had conducted an internal review of the case and identified a number of areas for improvement.
    • It has reminded officers that it is not for the applicant to prove allegations of domestic violence. Officers should make robust enquiries of all relevant agencies and record the outcome of those enquiries.
    • It was wrong to close the review in August when Ms J left placement 2 without first checking that Ms J no longer needed the Council’s assistance.
    • It took too long to issue its ‘minded to’ letter, even allowing for the interim correspondence with Ms J’s advocacy service.
  2. The Council is satisfied that
    • Its original ‘not homeless’ decision was correct
    • It provided discretionary accommodation for Ms J.
  3. The Council confirmed that it had waived the service charges Ms J accrued while living in its area. It also offered to make a payment to her to acknowledge the inconvenience and anxiety she had suffered. It agreed to my suggestion to retrieve Ms J’s belongings from storage and send them to her new address.

Findings

Fault

  1. The Council:
    • Did not make enquiries before issuing its ‘not homeless’ decision of 27 June
    • Did not make enquiries when it began to review this decision in July
    • Did not contact Ms J when she requested this to discuss her aunt’s offer of a holiday
    • Closed the case prematurely when Ms J did not attend an interview, without considering her known temporary absence from the area or her vulnerability
    • Did not identify Ms J’s sons as children ‘in need’ or make a referral to local children’s services
    • Took too long to complete its review of the homelessness decision
    • Did not seek or take account of all relevant information when carrying out this review. In particular:
      1. The Council did not respond to Area Z’s request for Ms J’s consent to release information. If the Council believed such consent was not necessary it should have said so to Area Z. But it was wrong of the Council to treat Area Z’s request for consent as a failure to provide information.
      2. The Council did not properly consider information Ms J provided about her mental health. It noted Ms J had ‘some mental health problems’ but said Ms J had not stated how these affected her decision-making. This took no account of information Ms J had already provided to keyworkers about a previous suicide attempt, her mental health diagnoses, and her alcohol dependence.
      3. The Council assessed the ‘current and immediate’ risk of domestic violence if Ms J returned to her former home, rather than the ‘probable’ risk of domestic violence (which includes both physical and emotional abuse).
      4. The Council gave greater weight to police records of an incident at the house in late December 2013 and did not properly consider incidents which Ms J said she had not reported to the police, or earlier incidents which had prompted her to leave the house in December 2012.

Injustice

  1. When the Ombudsman finds fault she must consider how this affected the person making the complaint. We do this by looking at the position the complainant would now be in, if there had been no fault.
  2. Other authorities were involved in supporting Ms J before she presented as homeless in the Council’s area. We have not investigated their actions because it was Ms J’s fear for her own safety after an incident at the refuge which prompted her to travel to Exeter. And when Ms J sought safety in Exeter, events should have gone differently.
    • At the point Ms J first presented as homeless, in June 2013, the Council should have provided her with accommodation while it made enquiries. If it had done so, Ms J would not have had to return to her home area and suffer an incident of abuse.
    • Ms J should then have had a clear decision by August 2013. And given the information available at that time from:
      1. Her son’s social worker
      2. The police in her home area
      3. The refuge in her home area which had originally supported her
      4. Area Y and Area Z

it is likely the Council’s decision would have been that she was homeless and in priority need. The Council would therefore have had a duty towards her.

    • Ms J would then have had suitable temporary accommodation and the opportunity to bid on local properties.
  1. That does not necessarily mean that if there had been no fault, Ms J would now be living in the Council’s area (or nearby). Her sons clearly had local connections to Ms J’s home area which were important to them. So it is likely in the longer term that Ms J would have chosen to live nearer to them, rather than staying in the Council’s area. But in the short term, Ms J would have had:
    • Stability in her housing situation, rather than being overcrowded in temporary accommodation, reliant on the willingness of friends to put her up, or street homeless
    • A significantly reduced risk of domestic violence
    • Access to the health support services necessary to manage her mental health condition
    • Access to the full range of financial support to which she was entitled
  2. Ms J did not achieve these things until August 2014. But she could have sought help in her home area as soon as she had the Council’s final decision in February 2014. So the Council’s fault caused her the stress, distress and frustration of being without suitable accommodation for a period of six months.
  3. The Council did provide accommodation for a total of two of those months. It was not ideal once Ms J’s sons were with her. But it was family accommodation with a private bathroom and basic kitchen facilities. So it was suitable for three people to share.
  4. Ms J was therefore without suitable accommodation for a total of four months. The Ombudsman’s guidance on remedies gives a range of £150 to £350 a month for remedying this injustice, dependent on the vulnerability of the complainant and the adequacy of the accommodation.
    • Ms J was vulnerable because of her mental health difficulties. So the impact on her of the Council’s fault was greater because it meant she could not access the health support she needed.
    • Ms J had no accommodation – she was reliant on friends and sometimes spent the night on the street.
    • Where a complainant has no option but to sleep on the street, we consider this causes extra avoidable distress.
  5. Ms J’s sons were also affected by the Council’s fault, but to a much lesser degree. The involvement of Ms J’s home authority in safeguarding their welfare also means that the disruption they have suffered in their lives cannot be laid at the Council’s door. However, their hopes that they could settle with Ms J in a new area were not realised. I have already acknowledged that it is likely they would have returned to their home area. But because of the Council’s fault, they did so without having the opportunity to make a considered choice about this. That lost opportunity is a further injustice.

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Agreed action

  1. To acknowledge the impact on Ms J, the Council should:
    • Apologise
    • Pay Ms J £1,400 to reflect the four months she was without suitable accommodation as a result of its faults
    • Pay Ms J a further £200 to acknowledge the additional distress caused by the occasions she was street homeless as a result of its faults. This figure takes account of the action the Council has already taken to put matters right, by returning Ms J’s belongings to her from storage.
  2. To acknowledge the impact on Ms J’s sons, the Council should:
    • Apologise
    • Pay them £200 each to reflect the opportunity they lost as a result of the Council’s fault
  3. I note the Council has already confirmed it is reviewing procedures to improve consistency in decision-making and service standards.

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Final decision

  1. The Council has agreed to my recommendations. So I have completed my investigation on the basis that it has agreed to take action which satisfactorily remedies the injustice arising from the fault I have identified.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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