Summary: Mr X complained about the way the Council handled his housing application. The Ombudsman finds the Council was at fault for delay in assessing the housing application, failing to assess medical evidence, failing to take a homeless application and failing to evidence its view that it was reasonable to expect Mr X to continue to occupy his current accommodation. The Council has now offered
Mr X accommodation which it considers ends its homeless relief duty to him. It has also agreed to assess Mr X’s medical evidence and pay him £450 to acknowledge the effect of the Council’s initial delay and the uncertainty, frustration and distress caused by its subsequent failures.

The complaint

1. Mr X complained the Council failed to handle his housing application form properly. He said the Council originally lost his application and also demonstrated it had already made up his mind about the application before anyone assessed it.
2. The Council then decided Mr X was not eligible to be on its housing register. Mr X said the Council did not assess his application properly to make that decision. He said had the Council not been at fault he would have been on the housing register soon after his application was first assessed.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)

Back to top

How I considered this complaint

6. I have considered information from:
• Mr X’s complaint, from a telephone conversation with him and further documents he has sent me;
• the Council’s responses to Mr X through its complaints procedure;
• the Council’s reviews of its housing decisions; and
• the Council’s responses to my enquiries.
7. I have investigated the period May 2018 to March 2019. This covers the period from Mr X’s original housing application to the Council’s last decision on the application before he complained to the Ombudsman.
8. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I considered their comments before making this final decision.

What I found

Housing applications

9. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants and its procedures for allocating housing. Councils must make all allocations in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
10. The Secretary of State has set eligibility criteria for council housing applicants focused on applicants’ immigration status. (Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2009)
11. 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))
12. The Localism Act 2011 introduced new freedoms to allow councils to better manage their waiting lists and to tailor their allocation priorities to meet local needs. As a result of this some councils have introduced policies which require applicants to have lived in their areas for a certain period before the councils will accept them on to their housing registers.
13. On receipt of a housing application the Council must first consider whether the applicant is eligible for housing. Once satisfied the applicant is eligible, the Council must decide if they qualify under its scheme to join the housing register. If they qualify, the Council must decide what housing priority, if any, to award, according to its allocation scheme.

The Council’s allocation policy

14. The Council’s policy sets out the eligibility criteria based on immigration status referred to in paragraph 10 above.
15. The policy says to qualify to join the housing register applicants must:
• be 18 years old or over;
• have been resident in the Borough continuously for the last three years;
• continue to reside in the Borough; and
• fall into one of the reasonable preference categories.
16. The Council’s reasonable preference categories include the statutory categories set out in paragraph 11. Regarding overcrowding, the Council says it will award reasonable preference to an applicant lacking a bedroom and also to an applicant sharing facilities with unassociated people where the Council assesses the living arrangements are not through personal choice. The Council gives further reasonable preference to people in the statutory categories who are also in employment.
17. The policy says the Council may give an applicant ‘additional preference’ if their circumstances fall within its reasonable preference categories and there is an urgent housing need which makes it virtually impossible for the applicant to remain in their present home. The policy gives this list of examples which the Council stresses is not exhaustive:
• Victims of domestic violence
• Victims of hate crime
• Victims of racial or sexual harassment
• Witnesses of crimes or victims of crime who would be at risk of intimidation
• Those who have an urgent medical or social reason.
18. An applicant awarded additional preference has more priority than an applicant with reasonable preference or a number of reasonable preferences.
19. The policy sets out when it may make exceptions to its qualifying persons criteria. One of the exceptions is where it is satisfied that, if an applicant was accepted on to the housing register, they would be assessed as having additional preference.
20. The policy says where it has a housing application from an eligible and qualifying person who lives with someone who is ineligible, the ineligible person will not be included on the application. The Council will not take into account an ineligible person’s circumstances when considering the qualification criteria.

Homelessness

21. If a council has ‘reason to believe’ someone may be homeless or threatened with homelessness, it must take a homelessness application and make enquiries to establish if the council has a duty to assist them. 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 18.5) 
22. A council must not treat someone as having accommodation unless it is accommodation which it would be reasonable for them to continue to occupy. (Housing Act 1996, Section 175(3)) There is no simple test of reasonableness and councils should judge each application on the facts of the case, taking into account all relevant factors. In determining reasonableness, councils may have regard to general housing circumstances in the area. So, councils may consider it reasonable for an applicant to be housed in relatively poor conditions (including overcrowding) if that is the norm locally. (Homelessness Code of Guidance paragraphs 6.23, 6.25, 6.26, 6.2, 6.40)
23. If a council is satisfied an applicant is homeless or threatened homelessness and eligible for assistance, it must make an assessment of their case. (Housing Act 1996, Section 189A). If a council is satisfied someone is threatened with homelessness and eligible for assistance it must take reasonable steps to secure that accommodation does not stop being available for their occupation. This is known as the council’s prevention duty. (Housing Act 1996, Section 195) If a council is satisfied someone is homeless and eligible for assistance it must take reasonable steps to secure accommodation for them. This is known as the council’s relief duty. (Housing Act 1996, section 189B)
24. A council can give notice to end its prevention duty where 56 days has passed since the prevention duty was accepted, whether or not the applicant is still threatened with homelessness. However, a council may not do this if the applicant has been given a valid Section 21 notice which will expire within 56 days, or has already expired, in respect of the only accommodation available for the applicant’s occupation. (Housing Act 1996, section 195) A Section 21 notice is a notice from a landlord seeking possession of their property, served under Section 21 of the Housing Act 1988. The Homelessness Code of Practice says, “This means an applicant in these circumstances cannot be ‘timed out’ of the prevention duty if they remain threatened with homelessness, and the authority must continue to help the applicant to retain or secure accommodation until the prevention duty ends in another way.”(Homelessness Code of Guidance paragraph 6.30)
25. Homeless applicants may request a review within 21 days of being notified of various decisions, including decisions about:
• what duty (if any) is owed to them if they are found to be homeless or threatened with homelessness; and

• the steps they are to take in their personalised housing plan at the prevention duty stage (Housing Act 1996, section 202)

26. If an applicant wishes to challenge a review decision, or if a council takes more than eight weeks to complete a review, the applicant may appeal on a point of law to the County Court (Housing Act 1996, section 204)

Background to Mr X’s housing application

27. Mr X and his partner, Ms Y, moved into the Council’s area in December 2016. They rented a bedroom in a shared house. They had no living room. They shared a bathroom, toilet and kitchen with people unconnected with them. While at the same house they had a baby. Later, circumstances led to Ms Y’s older child, B, and then, later still, Mr X’s older child, C, joining them.

Mr X’s original housing application

28. In May 2018 Mr X applied to go on the Council’s housing register. He completed a paper application form and handed it in at the Council’s office. His application said he shared his accommodation with his partner, their baby and his stepchild.
29. By July Mr X had heard nothing in response to his application so he emailed the Council for an update. He got no response so rang and emailed the Council in August. An officer told him his application had not been looked at yet. The next day Mr X made a complaint about the delay. A more senior officer, Officer B, responded to him later the same day.
30. Officer B said the Council had put Mr X’s supporting documents on to its housing system but it had not put his application on the system. The Council could not trace the application itself and no action had been taken to progress his application. Officer B apologised for the Council’s failure to deal with the application properly. He sent Mr X a new application form. He asked Mr X to complete the form and said the Council would fast-track its assessment of the application to minimise the effect of the Council’s delay. He confirmed the Council would backdate his application details to the date he originally handed in his application. However Officer B said the delay would have no impact on the outcome of the application. He explained this was because the overall housing situation in the Council’s area meant achieving a successful outcome would take a long time.
31. Mr X emailed Officer B, concerned about what may have been a loss of his personal information. Officer B replied in early September. He said his enquiries confirmed Mr X’s application form had not been scanned on to the housing system. He said it had been sent for storage and then, after a month, shredded in line with the Council’s document retention policy at the time. He said what had happened was down to staff error. He said the Council had changed its procedure to prevent this happening again. He said Mr X’s application form had not been disclosed to any third party. He apologised to Mr X for the distress caused by learning his application form could not be traced.
32. Mr X had further correspondence with Officer B about the form.
33. This led to the Council putting his complaint about what happened to the application form through its complaints procedure. In late November the Council sent Mr X a response through its complaints procedure. The Council said it had lost Mr X’s application form and there had been delay handling his application as a result. The Council offered Mr X £150 as compensation for the delay and his time raising issues about the Council’s procedural errors.
34. Mr X says he wanted a personal apology through a telephone call or a meeting. He feels he was misled by Officer B who said the form was shredded but later the Council referred to it as lost. Mr X has some concerns his personal information could have been accessed by people who had no right to see it. He also thinks Officer B should have formalised the complaint much earlier and not doing so delayed the final response unnecessarily.

Mr X’s resubmitted application

35. Mr X resubmitted his application form at the end of August 2018. Officer B acknowledged receipt of the form two days later. In the same email Officer B acknowledged, “that your current accommodation is not adequate to meet the needs of your family and that you are overcrowded …” The officer also pointed out the issues the Council would need to consider when assessing the application. These were:
• the residential qualification and when the Council could make an exception to it; and
• the immigration status of Ms Y and B.
36. The Council has told me, “in the absence of an obvious ‘homelessness argument’” it assumes a housing applicant’s current accommodation is suitable for them to continue living in.
37. The Council decided Mr X’s application in late October 2018. Its Choice Homes Team wrote to him. The Team explained he was not eligible to be on the housing register because he had not lived in the Council’s area for at least the three previous years. The Team said it had assessed his medical information and decided not to award additional preference on medical grounds. The Council says the information Mr X provided about his family’s medical conditions showed minor ailments, no formal diagnoses or investigations, and use of over the counter medication only. The Council says there was no case for award of reasonable preference either for one person or the family together. The Council also says it did not consider the property Mr X was living in was unsuitable because the family had secured the property themselves, knowing its size and shared facilities. It says the family had lived there for a year before approaching the Council and would have continued to live there, if they had got on to the Housing Register, while bidding for other properties.
38. Mr X immediately asked the Council to review its decision. His main reason for disagreeing with the decision was the Council’s failure to take into account his overcrowding. Mr X argued his overcrowded situation meant his case should be treated as an exception to the residential qualification. He said case law supported his view.
39. A Council officer responded to Mr X two days later. He decided to return
    Mr X’s application to the Choice Homes Team for reconsideration of the issue of overcrowding. Mr X replied the next day. He stressed the vulnerability of his children. He said, technically, he and his family were homeless. In the letter he did not expand on this comment but he told me he considered he was homeless because it was not reasonable for four people to live in one bedroom sharing all other facilities with people not part of their household.
40. At the end of November 2018 a Council officer wrote to Mr X. The officer confirmed the decision to disqualify Mr X’s application because Mr X had not lived in the area for at least three years. The officer confirmed that, in coming to his decision, he had taken into account overcrowding. He said he could not include Mr X’s step child (B) as part of the application because of their immigration status. He said had Mr X met the residence requirement he would have been awarded two reasonable preferences - one for overcrowding by one room (because of Mr X’s baby) and one for being a working resident. He said the Council had already considered Mr X’s medical information and decided it did not warrant the award of reasonable preference.
41. The letter also responded to Mr X’s statement about being ‘technically homeless’. It said “That is not, in fact, the case but if a threat of homelessness does arise, we would advise you to contact our Housing Options Team.” It gave the relevant contact details. In its response to my enquiries the Council said its view on Mr X’s alleged homelessness was backed up by its later decision after Mr X did make a homeless application.
42. In December 2018 Mr X asked the Council to review its decision not to allow him on the housing register. He sent the Council medical information which he considered showed the Council should award him preference on medical grounds. The medical evidence showed Mr X told his GP his anxiety was affected by the overcrowding at home. The GP had now prescribed an antidepressant and Mr X was due to have an initial assessment for counselling about his anxiety.
43. The Council sent Mr X a preliminary review decision in early January 2019. The preliminary view was to uphold the Council’s current decision. The Council explained why it considered the immigration status of Mr X’s stepchild (B) was legally a relevant consideration. It confirmed its decision was based on Mr X having not been resident in the area for a continuous period of three years. It explained it had considered exercising its discretion to exempt Mr X from the residency criterion on the basis it would grant the application additional preference. However it had decided his situation did not warrant this. The Council stressed that, even if the Council had decided to award additional preference, this would not address the family’s immediate housing need. It said this was because he would still have to wait possibly more than five years for housing given the number of people with additional preference already in front of him on the housing register. The Council asked Mr X to make any further representations he wanted to before it made a final review decision.
44. Mr X responded a week later. He still considered the Council was assessing his application wrongly and that he should not be excluded from the housing register. He and the Council exchanged further information about the case law each was basing their arguments on.
45. On 25 January 2019 Mr X told the Council difficult circumstances had led to his other child, C, joining the household.
46. The Council sent Mr X its review decision on 14 February 2019. The decision was to withdraw the previous decision and send the application back to the Choice Homes Team for reconsideration. In its response to my enquiries the Council said it returned the case because it felt the reasons for the second decision were too ambiguous. It has also said more recently it needed to consider more fully the issues around C. The Council’s letter to Mr X also said the case law Mr X was relying on did not help his case as his circumstances were altogether different. The decision did not say how the Council had considered the medical evidence Mr X provided in December 2018.
47. On 18 February 2019 the officer carrying out the review asked the Council’s Housing Options Team to contact Mr X to discuss his housing situation. The officer told the Team many people were living in one room in a house in multiple occupation. The officer apologised for the delay in making the referral. The Housing Options Team arranged to meet Mr X at the end of March.
48. An officer in the Team says at that meeting she explained the housing situation in the area and the options open to Mr X. She says Mr X said he did not want to make a homeless application. He said he could not afford rent in the private sector and would wait to see if his housing register review was successful. The Council says at this point Mr X did not want to go into temporary accommodation or be offered accommodation from the private sector. The Council says Mr X believed if his housing application was successful he would be in line for social housing which was his preferred option. Mr X disputes some of this. He says he did not say he did not want to make a homeless application. He says he told the officer he did not want hostel accommodation as temporary accommodation because it would be similar to what he was already in. He says council housing was his preferred option but he would live in private sector housing arranged by the Council if there was no other alternative.
49. On 28 March 2019 a Council officer wrote to Mr X with the outcome of the reconsideration. It said, had he been resident in the area for three years he would have been put on the register with reasonable preference awards for overcrowding and as a working resident. The Council had decided his medical information did not warrant an award of additional preference on medical or welfare grounds. The Council says it considered the medical information Mr X sent in December 2018 before making that decision but it has not provided any evidence of such consideration. The letter said without additional preference Mr X could not be registered as an exception to the residency criterion. It said it was difficult to reach a conclusion about whether his older child (C) was living with him as a permanent arrangement. But, even if the Council did conclude it was permanent, the application would still not merit additional preference and would still be disqualified because the residential qualification was not met.
50. On 29 March 2019 Mr X asked the Council to review this decision. A review decision in July 2018 again confirmed the Council’s decision not to allow Mr X on to the housing register.

Mr X’s homeless application

51. I have not investigated fully how the Council handled Mr X’s eventual homeless application. However, I needed some details about it in order to assess the potential impact on Mr X of the way the Council handled his original housing application.
52. Mr X made a homeless application in April 2019. By then he knew the Council would still not let him on the housing register and he had received a Section 21 notice from his landlord seeking possession of his home by mid May.
53. The Council considered it was reasonable for Mr X to continue to occupy his accommodation, pending rehousing. It has provided no records of making that decision but says the decision and its previous one in November 2018 (see paragraph 40) were based on precedents set by the courts about suitability of housing under Section 175(3) of the Housing Act 1996. The Council refers to case law which says:
• accommodation which may not be suitable in the long term could be suitable in the short term; and
• a council was entitled to take account of the fact there were many families in its area even more severely overcrowded than the applicant.
54. The Council has no data to show how many families of a similar size were living in one room with shared facilities at the point Mr X made his housing application or afterwards. It says its decisions in November 2018 and April 2019 were based on officers’ professional assessment of the facts.
55. In a letter of 10 April 2019 the Council explained to Mr X its decision that he was threatened with homelessness within 56 days and eligible for assistance. It said he could request a review of the outcome of the assessment. The letter also:
• explained the Council had a duty to take reasonable steps to help him to secure that accommodation did not cease being available for him to occupy.;
• included a personal housing plan drawn up in discussion with him. The plan said the Council required Mr X to act to find private rented property and get family and friends to support him. The Council said it would offer financial assistance once Mr X identified a suitable property. It considered Mr X’s income and expenditure to help Mr X identify what rent he could afford. The Council explained Mr X had a right to review the plan;
• explained the plan would remain in place for 56 days unless he had been served with a Section 21 notice that would expire in 56 days or had already expired.
56. Mr X did not ask for a review of the Council’s decision. Over two months later, on 20 June 2019, he made a new complaint to the Council. He said the Council had failed to trigger an investigation into his potential homelessness when he first approached the Council for rehousing. He said it was not reasonable for him and his family to continue to occupy the property they were in. On 5 July 2019 the Council addressed this issue in its review of the decision not to allow Mr X on its housing register. The Council said it considered it was reasonable to expect Mr X to continue living where he was because of local housing circumstances and the fact that somewhere which may be unsuitable in the long term may be suitable in the short term.
57. Mr X’s Section 21 notice has now expired.

Findings

Mr X’s original housing application

58. The Council accepts it did not handle Mr X’s original application properly. The Council originally explained what it thought happened to the form and then later referred to the form as ‘lost’. Specific investigation into how the Council handled Mr X’s personal information would be for the Information Commissioner. But the Council’s written apologies and offer of £150 are enough to acknowledge the avoidable delay in assessing his housing application and his time and trouble pursuing what had happened.

Mr X’s resubmitted housing application

59. There was no fault in the advice the Council gave Mr X immediately after receiving his application form. Mr X says the advice showed the Council had already made up its mind about the application before anyone had fully assessed his form. I consider the advice highlighted the areas of the application which might prove problematic and it was right to do that.
60. However, the Council should also have considered the possibility that, given the circumstances of Mr X and his family, they were homeless because it was not reasonable for them to continue to occupy their accommodation. The Council was right to continue to process Mr X’s housing application but it should have taken a homeless application as well. Its failure to take a homeless application in August 2018 was fault.
61. The Council is entitled to have a residential qualification in its allocations policy. The policy gives the Council discretion to consider whether an application should be exempted from the residency qualification. In its decisions and reviews the Council applied the residency qualification properly and then considered exercising discretion to exempt Mr X’s application from the rule. The Council’s general approach was correct. But the Council has not provided evidence it considered the further medical evidence Mr X provided in December 2018. Mr X’s further evidence showed Mr X’s medical condition had worsened and it was potentially linked to his housing conditions. The Council was at fault for not recording any consideration of this new evidence. As a result, when it decided in March 2019 that Mr X’s application still did not merit the award of additional preference, that decision was flawed. That caused Mr X uncertainty as he cannot know whether the decision would have been different had it been taken properly.

Related homelessness issues

62. At any point between August 2018 and March 2019 the Council could and should have taken a homeless application from Mr X, assessed his circumstances and decided if the Council had any duties towards him under the homelessness legislation. Its failure to do so was fault.
63. The Council has told me in August 2018 and onwards it considered it was reasonable for Mr X and his family to continue to occupy their current accommodation. However, the Council has no data to support its argument that other people in its area are in similar conditions. There is also a question mark over whether the Council could legitimately argue Mr X’s current accommodation is short term and therefore reasonable to occupy in the short term as opposed to the long term. Mr X first applied for housing in May 2018, is still in the same accommodation and the Section 21 notice has expired. The Council has failed to provide evidence that it has considered this issue properly and that is fault.

Case law

64. Mr X and the Council disagree about the interpretation of the case law involved in the Council’s decisions. But the Ombudsman cannot interpret the law – that is a matter for the courts.

The Council’s and Mr X’s actions after my draft decision

65. After receiving the draft decision the Council advanced Mr X’s current homeless application to the relief stage. It then offered Mr X a private sector rented house and said the offer ended its relief duty. The Council explained Mr X’s right to review the decision. Mr X has accepted the offer.
66. In my draft decision I made three recommendations, two of which have been affected by the Council’s and Mr X’s actions.
67. One recommendation was that within two weeks of a final decision the Council should take a new homeless application from Mr X and then process it in line with the statutory procedures and timescales. In coming to its decision on the application the Council should include consideration of all relevant evidence about how Mr X came to be living in his current circumstances, how short or long term his current circumstances are and how his housing situation compares with others’ in the Council’s area. The Council should send a copy of its decision letter to the Ombudsman as soon as it sends it to Mr X and at least within three months of the final decision.
68. The Council has already progressed Mr X’s homeless application and offered him accommodation which it considers ends its duty towards him, so there is no need to undertake the further consideration I recommended. Mr X has a decision he can have reviewed. The Council’s actions satisfy the recommendation I made.
69. The other recommendation affected by the Council’s actions was that within four weeks of a final decision the Council should consider the medical information
    Mr X provided in December 2018, record its views of how the information affects his housing application and write to Mr X to explain, with reasons, whether the information merits an award of reasonable or additional preference. The Council agreed it would do this.
70. Now Mr X has accepted the Council’s offer of accommodation, the medical information he supplied in December 2018 about how his overcrowding at home was affecting his anxiety is no longer relevant to his housing application. I have now withdrawn the recommendation to assess that information and write to Mr X.
71. The Council has agreed to the third recommendation as set out below.

Agreed action

72. The Council has agreed within four weeks of this decision it will pay Mr X the £150 it has already offered to acknowledge the avoidable delay in assessing his housing application and his time and trouble pursuing what happened. It will also pay Mr X £300 to acknowledge avoidable uncertainty, frustration and distress relating to the failures to consider his current circumstances properly.

Back to top

Final decision

73. I have now completed my investigation because the action already taken by the Council, and its agreed further action, will remedy the injustice caused to Mr X by the Council’s fault.

Back to top

Investigator's decision on behalf of the Ombudsman