The Ombudsman's final decision:
Summary: The complainant says the Council failed to properly manage her homeless application wrongly deciding she did not have priority need and skipping properties she could bid on. The Council says it offered temporary accommodation while making enquiries, addressed issues arising from poor references and secured the complainant accommodation. The Ombudsman finds the Council not at fault in its discharge of its housing duty and offers of accommodation.
- The complainant whom I shall refer to as Miss X, complains the Council failed to properly manage her homeless application and secure her permanent accommodation by properly considering her vulnerability. Miss X says housing providers skipped bids she made for properties without telling her why and she feels the Council did not take a pro-active approach to finding her a home.
The Ombudsman’s role and powers
- 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)
- If 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)
How I considered this complaint
- In considering this complaint I have:
- Spoken with Miss X and read the information presented with her complaint;
- Put enquiries to the Council and reviewed its response;
- Researched relevant law, government guidance and policy;
- Shared with Miss X and the Council my draft decision and reflected on comments received.
What I found
- When a person applies to a council for accommodation and it has reason to believe they may be homeless or threatened with homelessness, several 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.
- people with dependant children;
- pregnant women;
- people with serious health problems;
- some elderly people.
“(i) a person who is vulnerable as a result of ceasing to occupy accommodation because of violence from another person or threats of violence from another person which are likely to be carried out.” Homelessness (Priority Need for Accommodation)(England) Order 2002 paragraphs 8.36 to 8.37)
- Where an applicant requests a review of a council’s decision this must be completed within eight weeks. 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.
- Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
- Councils can suggest alternative solutions in cases of potential homelessness where these would be suitable and acceptable to the applicant. However, councils must not do this to avoid their legal duties, especially the duty to make enquiries into the applicant’s homelessness. The Ombudsman has criticised councils for ‘gatekeeping’ practices, for example, failing to take a homelessness application at the earliest opportunity. (Homelessness Code of Guidance for Local Authorities, paragraphs 2.3 and 6.4)
- If a council has ‘reason to believe’ someone may be homeless or threatened with homelessness, it must take a homelessness application and make enquiries. The threshold for taking an application is low. The person does not have to complete a specific form or approach a particular council department. (Housing Act 1996, section 184 and Homelessness Code of Guidance paragraphs 6.2 and 6.6)
- A council will apply four tests to decide what, if any, duty it owes to a homeless applicant. Councils will make inquiries to find out if the applicant is:
- eligible for assistance;
- homeless or threatened with homelessness;
- in priority need (e.g. is vulnerable, has dependent children etc.);
- not intentionally homeless.
- Miss X had to leave her former home in a neighbouring council’s area due to threats of violence and harassment. Miss X approached the Council for help with housing having unsuccessfully sought help from her local council. Miss X made a homeless application on 2 May 2017. The Council noted Miss X had approached a neighbouring council and been found to be homeless, eligible for assistance but not in priority need.
- The Council considered Miss X’s application for homelessness assistance and says she presented with mental health problems. The Council decided its interim duty under Section 188 of the Housing Act had been triggered. Therefore, it offered Miss X temporary hotel accommodation (I shall call Property A) while it enquired into the application.
- Having considered the information presented by Miss X’s GP the Council says in response to my enquiries:
“After making enquiries with mental health and Miss X’s GP advice was sought by phone from our medical advisers with her condition described as mild mental health problems and the only medication being … for depression, the medical advisers advised that from their opinion the applicant was not in priority need.”
- In commenting on my draft decision, the Council says its response quoted previously was in error. It never consulted its medical advisers by telephone or through a direct reference to them. The Council says its response should have read the Council considered the medical advice presented by Miss X’s GP and other advice she presented to the Council when deciding if Miss X had priority.
- The Council issued a decision under Section 184 of the Housing Act on 19 May 2017 which found Miss X was not in priority need. Miss X asked for a review on 30 May 2017.
- The reviewing officer met with Miss X and her advocates. On 4 July 2017, the reviewing officer issued a decision finding Miss X to be in priority need, homeless and eligible for assistance. The Council’s welfare panel considered Miss X’s housing needs and awarded her the housing allocations policy’s highest priority, Band A.
- The Council manages a choice based lettings housing register through which applicants may bid for properties provided and managed by registered housing providers. The registered providers have their own local letting policies. The Council has no nomination rights. Some registered providers restrict offers to applicants they believe will not be vulnerable in areas where there is already a problem with anti-social behaviour or where the applicant has a history they believe might add to the problems in the area.
- The Council moved Miss X from her temporary accommodation (Property A) to a self-contained flat in September 2017 (Property B). This was under the Council’s full duty to house Miss X. The Council’s aim was to help Miss X show her ability to sustain a tenancy for six months so she could get a good reference from her landlord. This would help her in any bids for further housing from registered providers. Miss X achieved this aim.
- Miss X wanted to return to her home area. However, the neighbouring council would not accept her bids on housing because as a homeless applicant she could only be housed in the area which had accepted a duty to house her. The Council invited the neighbouring council to consider Miss X’s application because she had a local connection but it refused.
- While resident in the neighbouring council area Miss X had been subject to a court injunction for anti-social behaviour. This meant many registered providers would not accept Miss X’s bids for a home. Most of the registered providers have an allocation policy that does not accept someone with a history of anti-behaviour within the last five years. The Council said this meant Miss X could be without an offer of a permanent accommodation for five years. Therefore, it agreed with a local housing association on 27 March 2018 that it would not by-pass Miss X’s bids on this criterion but would discuss each bid on its own merits.
- In a senior housing officer’s words Miss X had been “…a model tenant over the last 12 months, she has an underserved reputation which is mostly untrue hearsay, we have spoken to [a housing association’s head office] and they were happy to work with us…” The officer recommended Miss X be granted a starter tenancy.
- This resulted in the housing association offering Miss X a starter tenancy for a property (Property C) in May 2018. The Council says that because of the injunction for anti-social behaviour Miss X needed to build up a good landlord reference to bid on further properties. Miss X remained in temporary accommodation for 10 months while the Council sought to help her achieve a successful bid on properties owned by registered providers who had skipped her bids because of the history of anti -social behaviour. The Council says with its support Miss X proved she could sustain a tenancy for more than six months in Property B. That enabled her to gain a good reference which countered the poor references from previous private rentals and the court injunction.
- Miss X says she was not guilty of anti-social behaviour and the history reflected the false testimony given by the letting agent of her former home who had harassed her. The Council and registered providers could not challenge the court injunction and so had to work with the fact this may count as evidence of anti-social behaviour. The Council says it had concerns for Miss X remaining in temporary accommodation for a long time. The Council wanted to help Miss X gain a good landlord history through housing her in appropriate permanent housing subject to the probationary tenancy.
- In May 2018 Miss X sent an email to the Council thanking the Council for its:
“…patience and assistance during what has been a turbulent and traumatic twelve months…”
Analysis – was there fault leading to injustice?
- My role is not to decide if Miss X was homeless and in priority need or eligible for housing, but to decide if the Council considered her application and acted without fault. If it acted with fault I must decide if that caused an injustice to Miss X and try and put her in the position she would have been but for that fault.
- The Council took the homeless application and placed Miss X in temporary accommodation while it made further enquiries. It followed correct procedure and offered temporary housing therefore I find that it acted without fault.
- In deciding whether Miss X met all the tests to trigger the Council’s duty to offer housing permanently the Council considered whether she was in priority need. The Council must consider all medical information presented and consider the severity and likely impact of an applicant’s medical condition. The Council’s housing officer, acting in its role as housing authority, must decide if all the evidence points to the application having priority. In my draft decision, I criticised the Council for relying on its medical advisers to decide priority. It has corrected the information on which I based that view. It has shown it did not take advice from its medical advisers and the medical advisers have confirmed that. Therefore, I find the Council decided Miss X’s housing priority having considered all relevant information and therefore without fault. Miss X disagreed with the Council’s decision and exercised her right of review.
- The reviewing officer spoke with Miss X and her advisers and reviewed the decision on homelessness and priority need. The reviewing officer decided Miss X had shown she had priority need and so changed the Council’s decision. Miss X had continued in the temporary accommodation provided for her and so the original decision while a shock did not mean she lost her place to live.
- The Council moved Miss X from the temporary hotel accommodation (Property A) to Property B which gave her an opportunity to build up a good history as a tenant with her landlord. The Council’s aim was to help Miss X overcome the poor references she previous landlords had given and the impact of the court injunction on her ability to bid for property with some registered providers. After living in Property B for nearly a year Miss X gained a starter tenancy with a housing association and the Council fulfilled its duty to offer housing for her.
- Clearly, living in Property A, from May to September 2017 was not ideal but it met the Council’s duty to provide temporary accommodation while enquiring into the homeless application. It also met the Council’s duty of finding accommodation once the duty to house had been accepted in July 2017. Miss X then lived in Property B until August 2018. This enabled her to bid for a more suitable property and establish a better tenancy record. I find the Council acted without fault in offering temporary accommodation to Miss X and in securing her more permanent housing with a housing association. It owed a duty to house and it met that duty while it could not challenge the references from previous private landlords or the court injunction it did work with a housing association to secure accommodation for Miss X.
- I find the Council acted without fault in reviewing its decision on priority and in discharging its housing duty to Miss X.
Investigator's decision on behalf of the Ombudsman