Summary: Mrs B complains about the Council’s failure to make adequate enquiry into her disability when she asked for help with housing. She also complains about the way it handled her challenges to its decisions. The Ombudsman finds the Council delayed in reviewing the suitability of the temporary accommodation provided to Mrs B which meant she had to live in unsuitable temporary accommodation for longer than necessary. The Ombudsman has recommended a remedy for the injustice caused. The Council delayed in referring Mrs B’s case to the panel for consideration and in informing her of the outcome of her appeal against the panel’s decision. But these delays did not cause her a significant injustice.

The complaint

1. Mrs B complains that the Council:
• failed to make adequate inquiry into her disability to assess what was suitable accommodation. As a result, she was placed in unsuitable interim and temporary accommodation;
• failed to refer her application to the housing options panel;
• delayed unreasonably in reviewing its decision that its housing duty to her could be discharged by placing her in private rented accommodation;
• delayed unreasonably in reaching a decision on her appeal;
• failed to respond to her complaints; and
• failed to explain the procedure on review of the decision on discharge.
2. Mrs B also complains that the Council’s allocations policy is misleading and confusing.

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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. 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

4. I have considered all the information provided by Mrs B, made enquiries of the Council and considered its comments and the documents it provided, including its housing allocations scheme.
5. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Homelessness

6. Part 7 of the Housing Act 1996 (‘the 1996 Act’) and the homelessness code of guidance for local authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
7. A council must provide interim accommodation while it considers a homelessness application if it has reason to believe the applicant may be homeless, eligible for assistance and in priority need.
8. The law says councils must ensure all accommodation arranged for homeless applicants is suitable for the needs of the applicant and any household members. This duty applies to interim accommodation and accommodation provided under the main housing duty. (Housing Act 1996, section 208)
9. Councils must carefully consider the suitability of accommodation where applicants have particular medical and/or physical needs. Statutory guidance says councils should consider the physical access to and around the home, space, bathroom and kitchen facilities when the applicant is disabled. (Homelessness code of guidance July 2006 paragraph 17.5)
10. Section 202 of the Housing Act 1996 provides the applicant with a right to request an internal review of the suitability of accommodation offered by the council when it accepts a homelessness duty to the applicant. The review decision must be made by a more senior officer not involved in the first decision. The applicant must be notified of the review decision within eight weeks unless otherwise agreed. If the applicant is dissatisfied with the review decision they may appeal to the County Court on a point of law.

The Council’s allocations scheme

11. The law requires all local authorities to have an allocations scheme for determining priorities and a procedure to be followed in allocating social rented housing in their area.
12. The Council’s housing allocations scheme explains how it determines priority for allocating properties to applicants on the housing register. It uses a points system for assessing applications. All applicants for social rented housing will be placed into one of six groups:
• Group 3 (special applications and quotas requiring homes with 2+ bedrooms) includes applicants who have been awarded a high or medium health and well-being priority and homeless applicants in temporary accommodation provided by the Council owed a full housing duty and assessed as not suitable for living in the private rented sector;
• Group 4 (households in accommodation provided by Enfield Council owed a full housing duty under the homelessness law) includes households placed in temporary accommodation pending being made an offer of a private rented home to discharge the Council’s duty;
• Group 5 (mobility applicants) includes households needing accommodation with one or more of the following features: all on one level internally; level access from the street; adapted for mobility or wheelchair use.

Group 5

13. In relation to mobility applicants the allocation policy states:

“This demand group enables the Council to make best use of special and adaptable Council and housing association homes in the borough for people that need them.

Applicants in this group include:

• Those who live in the private rented sector and it has been agreed by the Exceptions and Special Applications Housing Panel that a social rented home is the best option for the household.
• Households in accommodation provided by Enfield Council owed a full housing duty under the homelessness law

and they need a home which has one or more of the following features:

• is all on one level internally
• has level access from the street/outside
• is adapted for mobility or wheelchair use.

Homes of the type outlined are in very short supply and applicants for them will be housed in date order unless the Exceptions and Special Applications Housing Panel decides otherwise.

Access to this type of accommodation will be decided by:

• A Health and Well-Being Assessment which results in a medium or high rating

and

• an assessment by an Occupational Therapist confirms the need for a home of the type offered to Mobility applicants”.

Assessment of health and well-being issues

14. The Council’s allocation policy states that applicants wishing to be assessed for health and well-being points are required to complete a Health and Well-Being Assessment Form.
15. The Health and Well-Being Assessment will be carried out by a Medical Assessment Officer and will be based on the information completed on the Self-Assessment form. The Council may request supporting evidence from the applicant’s GP, hospital consultant, social worker or other relevant professional.
16. Issues to be considered by a Medical Assessment Officer during the assessment include:
• how and to what extent the applicant’s current living conditions affect their illness/disability or well-being;
• an applicant’s housing need;
• how a current health issue affects the applicant or member of the household;
• the severity of the health issue and how long it has lasted; and
• the reasonableness of putting in place solutions such as aids and adaptations to enable the applicant to continue living in their present home.
17. The medical assessment officer may recommend a particular type of home that is suitable for the applicant.
18. A housing officer will consider:
• an applicant’s financial and other resources;
• the availability of solutions such as aids and adaptations to enable the applicant to continue living in their present home; and
• the availability of alternative housing solutions, including private rented homes.

Key facts

19. Mrs B suffers from various health conditions causing mobility problems. In March 2017 she and her family became homeless when they were evicted from their private rented accommodation. Mrs B approached the Council for help.
20. The Council’s initial assessment states ‘Y’ in answer to the question “disability or health condition that is affected by your [accommodation]?”. It also completed a Request for Emergency/Temporary Accommodation Allocation form. Under the heading “suitability” the question “Are there any mobility restrictions/medical recommendations?” was not answered.
21. The Council provided interim accommodation for Mrs B under part 7 of the Housing Act 1996 in a first floor flat. It completed a suitability checklist which stated that Mrs B’s medical issues were “incisional hernia, hypertension, asthma, diabetic”. Under the heading “suitable Y/N” the officer has entered “Y”.
22. On 2 April 2017 the Council made a decision on Mrs B’s homelessness application. It decided it owed her the full duty under the 1996 Act and intended to discharge this duty by offering her a tenancy in the private rented sector. Mrs B’s housing application was placed in Group 4 on the housing register.
23. On 18 May 2017 Mrs B’s solicitors requested a review of the decision to place her in private rented accommodation and a review of the suitability of the temporary accommodation provided. They explained that Mrs B suffered mobility problems including: being unable to use the bath without assistance and adaptations; sometimes being housebound due to being unable to go down the stairs; and having to sit on the steps to go downstairs.
24. On 26 May 2017 the solicitors requested a health and well-being assessment, again referring to Mrs B’s mobility problems.
25. On 29 June 2017 the Council responded to the solicitors’ letter of 18 May 2017 stating there was no statutory right of review of the decision to discharge its duty to Mrs B by providing accommodation in the private sector. However it said “the Council’s allocation scheme recognises that, in some exceptional circumstances, private-sector accommodation will not be suitable. If an applicant believes this is the case they can request that the Council’s Exceptions and Special Applications Panel consider this situation”. The Council explained the review officer could not make this decision and the solicitors should make a request to the housing assessments team.
26. Mrs B’s solicitors considered she met the criteria to be placed in Group 5 (mobility applicants) of the Council’s housing allocations policy. But the Council said this was not substantiated by the medical evidence provided. It said its medical assessment officer “has advised that the severity of the symptoms described by the client do not match the health issues she has been diagnosed with so a medical report would need to be obtained from her GP before a health and well-being assessment was completed”.
27. On 18 July 2017 the Council confirmed Mrs B’s request for a health and well-being assessment was being considered by the medical assessment officer.
28. On 29 July 2017 the solicitors wrote to the Council stating they intended to issue a judicial review claim against its decision to discharge its duty to Mrs B under the 1996 Act in the private rented sector.
29. The Council responded stating, “As advised in my previous email, the decision as to whether there is an exceptional reason why your client should not be discharged into the private sector needs to be taken by the Exceptions and Special Applications Panel (ESAP). There is an internal review process for all panel decisions.” The letter went on to state, “You have not yet requested that the assessments team make a panel referral nor have you made submissions as to why your client’s circumstances are so exceptional that private-sector accommodation is unsuitable. You have simply outlined that your client has some mobility issues”.
30. On 27 August 2017 the Council received a medical report from Mrs B’s GP. It stated that in July 2017 she had complained of shortness of breath, chest pain, problems walking even short distances and difficulty climbing stairs. The letter went on to state that Mrs B had not reported any inability to stand, sit, bathe or undress herself without assistance.
31. In September 2017 Mrs B solicitors sent the housing assessments team further evidence including an occupational therapist’s report they had commissioned and an occupational therapist’s report prepared on behalf of the Council’s social services department. Both reports said Mrs B needed ground floor accommodation or access via a lift; level access internally; and a level access shower. The solicitors argued that, in light of this information, Mrs B’s application met the criteria for Group 5.
32. On 19 September 2017 the Council reviewed the suitability of Mrs B’s temporary accommodation. It decided the property was not suitable for her continued occupation and rehoused the family in alternative temporary accommodation in a two-bedroom ground floor garden flat.
33. In October 2017 the housing assessment team wrote to Mrs B’s solicitors stating the medical officer’s recommendations were either a ground floor or level access flat in a lifted block and a walk-in shower. The medical officer decided Mrs B did not meet the criteria for Group 5 because she only required minor adaptations.
34. On 12 October 2017 the solicitors requested a reconsideration of the Council’s decision that Mrs B did not meet the Group 5 criteria and its decision that its duty under the 1996 Act could be discharged by placing her in private rented accommodation. The solicitors argued it was unlikely a private landlord would agree to adaptations being made to their property.
35. In November 2017 the solicitors wrote to the Council stating they intended to apply for judicial review of the decision to place Mrs B in temporary accommodation in the private sector.
36. The Council and the solicitors agreed a number of internal processes would be carried out first as an alternative to judicial review. These included the case being placed before the ESAP to consider whether Mrs B had exceptional needs which meant she was not suitable for living in the private rented sector. The Council also agreed to review whether Mrs B was correctly placed in Group 4 or whether she met the criteria for Group 5. In order for such a review to take place an occupational therapist’s (OT) assessment was required.
37. On 25 January 2018 Mrs B’s application was considered by the ESAP which meets on a monthly basis to discuss applications needing further consideration and a decision on whether there are exceptional reasons to place an applicant on the housing register or change the group they have been placed in.
38. The panel was asked to consider whether the following statement from the Council’s housing allocation scheme applied to Mrs B: “Post 9th November 2012 homeless applicants: households in accommodation provided by Enfield Council owed a full housing duty under the homelessness law that are assessed as not suitable for living in the private rented sector”.
39. The panel decided Mrs B’s circumstances were not so exceptional that it would not be suitable for her to live in the private rented sector. It decided her needs could be met in the private rented sector with minor adaptations. In reaching this decision the panel considered representations by Mrs B’s solicitors and medical information, including the OT reports.
40. The Council did not notify Mrs B or her solicitors of the panel’s decision. On 1 March 2018, the solicitors submitted a complaint about the Council’s failure to carry out adequate enquiries about the suitability of Mrs B’s temporary accommodation and its continuing delay in reviewing its decision about whether she should be discharged into the private rented sector.
41. The Council wrote to Mrs B on 18 April 2018 explaining the ESAP’s decision and the right of appeal. It also wrote to the solicitors confirming the outcome of the housing register review and in response to their judicial review pre-action protocol letter.
42. On 9 May 2018 Mrs B appealed against the ESAP’s decision. Her solicitors made further representations in support of the appeal on 29 May and 26 September 2018.
43. On 14 December 2018 an Assistant Director considered the appeal including the case file, correspondence and the OT assessments. She upheld the ESAP’s decision. She was satisfied that, with the support of housing officers, the Council would be able to work with two providers of private rented accommodation with which it had nomination agreements, to source accommodation in the private rented sector that would meet Mrs B’s needs immediately or which could be adapted. Mrs B was notified of the decision on 14 December 2018. The solicitors say Mrs B did not receive the letter and they did not receive a copy until 19 March 2019.
44. On 26 March 2019 Mrs B was offered alternative private rented sector accommodation which was considered suitable for her needs.

Analysis

Suitability of the temporary accommodation

45. Mrs B’s solicitors say the Council failed to make adequate enquiries at the outset to ascertain her medical conditions and decide what was suitable accommodation for her. They say that, as a result, she was placed in unsuitable interim and temporary accommodation causing significant discomfort, inconvenience and suffering.
46. The Council says when Mrs B was placed in interim accommodation in early March 2017 there was no medical evidence to suggest she could not manage stairs or had any other special requirements. It says there was nothing to suggest a different allocation was required or that further enquiries were necessary.
47. Mrs B’s solicitors refer to the record of the homelessness interview which shows Mrs B told the Council she: was able to bath/wash/shower with help; was able to go shopping with help; and had a disability or health condition that was affected by her accommodation. They also refer to two letters Mrs B gave the Council in March 2017. The first was from her consultant dated December 2016 which refers to Mrs B suffering from a hernia “which gives her pain mainly when she walks”. The second was from her GP dated January 2017 which also refers to this and to Mrs B’s asthma and varicose veins which the solicitors argue affect mobility.
48. The Council had a legal duty to ensure Mrs B’s accommodation was suitable for her needs. It completed a suitability checklist which listed the medical issues referred to in the GP’s letter and stated that the accommodation was suitable.
49. The checklist is not detailed but I am satisfied the Council properly considered the suitability of the accommodation at the outset. The initial information provided by Mrs B contained insufficient evidence of mobility problems to suggest it needed to make further enquiries at that stage.
50. There is no statutory right of review against the suitability of interim accommodation but the Council should make every effort to ensure it is suitable. When a Council accepts the main housing duty the accommodation becomes temporary rather than interim and it then has duty to consider a review of suitability.
51. The Council accepted a full housing duty to Mrs B on 2 April 2017 but, at this stage, there was nothing to suggest it should review suitability as Mrs B did not raise any concerns about the temporary accommodation until her solicitors requested a suitability review on 18 May 2017. At this point the Council should have completed a review and a medical assessment within eight weeks, that is by 13 July 2017. The Council did not do this until 19 September 2017. This was fault and caused Mrs B a significant injustice because she was forced to live in unsuitable temporary accommodation for two months longer than necessary.

Failure to refer Mrs B’s application to the housing options panel

52. Mrs B’s solicitors say the Council failed to refer her application for consideration by the housing options panel in respect of the decision as to whether she met the Group 5 criteria (mobility applicants).
53. A housing officer and a medical assessment officer considered Mrs B’s application. The medical officer’s view was that she did not meet the criteria for Group 5 because she only required minor adaptations. The solicitors requested a reconsideration of this decision in December 2017. The decision was reviewed by the review officer. This was in accordance with the Council’s allocations scheme which states that, where the applicant considers facts have not been taken into account in assessing their housing application, the review will be carried out by a team leader or review officer.
54. The process for deciding Group 5 applicants is set out in paragraph 14 above. Access to this type of accommodation is decided by a health and well-being assessment which results in a medium or high rating and an assessment by an OT confirming the need for a home of the type offered to mobility applicants. The process does not involve a referral to the housing options panel. Neither does the medical assessment process require referral to the housing options panel.
55. The allocations policy explains that referral to the housing options panel is restricted to those situations where there is debate about whether a tenant can remain in their home with adaptations or needs to move to different accommodation because adaptation is not possible. That did not apply in this case.
56. I find no grounds to criticise the Council for failing to refer Mrs B’s application to the housing options panel because there was no requirement to do so.

Discharge of the Council’s duty to Mrs B by placing her in private rented accommodation

57. In accordance with the Council’s allocations scheme, Group 4 applicants can be discharged into the private rented sector unless they have exceptional housing needs which mean they are not suitable for the private rented sector.
58. On 18 May 2017 Mrs B’s solicitors requested a review of the Council’s decision to discharge its duty towards her by placing her into private rented accommodation. The Council correctly informed the solicitors there is no statutory right of review against such a decision but they could ask the ESAP to consider the matter by making a request to the housing assessments team. The solicitors did not follow this advice initially but, instead, sent a letter stating they intended to apply for judicial review.
59. On 11 July 2017 the solicitors wrote to the housing assessment team requesting that Mrs B’s application be referred to the ESAP. The Council failed to act on this request.
60. On 13 November 2017 the solicitors sent a further judicial review pre-action protocol letter to the Council in respect of its decision to place Mrs B in temporary accommodation in the private sector. The Council and the solicitors agreed the case would be considered by the ESAP.
61. The panel considered Mrs B’s application on 25 January 2018 and the outcome was notified to the officer dealing with the Group 5 review.
62. I find no fault in the Council failing to pass the matter to the ESAP when requested to do so by the solicitors in July 2017. This is because the medical assessment process should have been completed first. As explained above, the Council should have completed this in July 2017 but did not do so until September 2017. At that point the Council could have passed the matter to the ESAP but it did not do so until November 2017. This was fault.
63. However, I do not consider the delay in passing the case to the ESAP caused Mrs B a significant injustice because the Council did not make any private rented sector offers during this period and it confirmed on 7 December 2017 that no offer would be made to discharge its duty into the private rented sector pending the outcome of the panel and the Group 5 review.
64. There was a delay in informing Mrs B of the panel’s decision. The Council says this was because it decided to wait until the Group 5 review was completed and communicate the outcome of the ESAP and the Group 5 review with its response to the judicial review letter of 13 November 2017. It says this was a litigation decision made at a time when it was under threat of judicial review. It says that, if the outcome of the review had been in Mrs B’s favour, it would have rendered the panel’s decision academic as she would have been placed in Group 5. One of the requirements of the judicial review pre-action protocol is to avoid legal proceedings if possible and limit the number of issues in dispute. The Council says its decision to wait until the internal review process was completed was directly related to the threat of legal proceedings and an attempt to reach an outcome without litigation.
65. I find no fault on the Council’s part. It was entitled to take account of its legal strategy in deciding to wait until the internal review process was completed before informing Mrs B of the Panel’s decision.

Delay in reaching a decision on Mrs B’s appeal

66. Ms B appealed against the ESAP’s decision on 9 May 2018. Her solicitors submitted further representations and documents on 29 May and 26 September 2018. On 1 October 2018 they told the Council they had requested an updated Care Act assessment, so the Council was expecting more information to arrive. It received the completed assessment on 5 December 2018.
67. The Assistant Director made a decision on Mrs B’s appeal on 14 December 2018 but, as the matter had already been subject to threats of legal challenge by Mrs B’s solicitors, the written outcome was sent to the legal department for review.
68. The Council does not accept there was a delay in reaching the decision because of the amount of documentation and new information it had to consider. It also had to wait for the Care Act assessment as, to ignore this, could have resulted in a legal challenge.
69. I agree with the Council’s arguments. There was significant information to consider and it was obliged to wait for the Care Act assessment which it did not receive until 5 December 2018. The Assistant Director made a decision on the appeal within 10 days of this. For these reasons, I do not consider there was an unnecessary delay in reaching the decision.
70. There was, however, a three-month delay in informing Mrs B of the decision. This was fault. The Council accepts this and has explained this was because of a key officer’s absence.
71. I do not consider the delay caused Mrs B a significant injustice because she was living in suitable accommodation and was aware the Council would not make any offers of private rented accommodation until after the appeal was decided.

Failure to respond to Mrs B’s complaints

72. Mrs B’s solicitors say the Council failed to respond to her complaints. The Council says the complaints raised by the solicitors formed part of the judicial review correspondence so were dealt with by the legal department instead of through the complaints process. Litigation issues and matters involving the Council’s legal department are exempt from the Council’s complaints process.
73. Mrs B solicitors disagree. They say the judicial review and the formal complaint were separate issues and the Council should have replied separately to its complaint of March 2018 and chasing emails of 18 April and 15 May 2018.
74. I find the Council was not at fault in treating the complaints raised by the solicitors as part of the judicial review correspondence and responding accordingly.

Failure to explain the procedure on review of the decision on discharge

75. Mrs B’s solicitors say the Council failed to explain the procedure on review of the decision to discharge its duty by placing her in the private rented sector. They say the Council told them on 29 June 2017 that a review officer could not review the decision on discharge and this could only be done by the ESAP. But on 30 June 2017 it suggested the decision could be made by a review officer because it stated, “As you have not received a decision from either the Panel or the reviewing officer your threat of judicial review was premature”.
76. This is a misunderstanding by the solicitors. The Council’s comment relates to two separate procedures: the panel review of the decision to discharge into private rented accommodation; and the internal review procedure regarding eligibility for Group 5 carried out by the review officer.
77. The solicitors say the Council’s legal advisers told them in November 2017 that a review officer did not have the power to make a decision on review but could refer the matter to the panel. They say this contradicts the Council’s demand that the solicitors request a referral to the ESAP themselves.
78. The Council says there was no obligation on the review officer to make the referral to panel and it was correct for her to require Mrs B’s solicitors to refer it themselves to maintain impartiality and ensure her role as review officer was kept completely separate from any decision that could only be made by the panel. I agree with this.
79. The solicitors also say the Council’s legal advisers told them the allocations scheme covers the process of a review on discharge by referring to a review where “facts have not been taken into account”. If so, the review would need to be dealt with by a team leader or review officer. The solicitors say this also contradicts previous information given. The Council denies this and refers to its email of 29 November 2017.
80. This email makes it clear that there are two separate procedures:
1. the internal review of the decision that Mrs B did not meet Group 5 criteria; and
2. the decision reserved for the ESAP as to whether the Council’s duty to Mrs B could be discharged by providing private rented accommodation. The Council’s email stated, “a review officer could refer it to panel as the review officer does not have power to decide this aspect”.
81. I am therefore satisfied the information provided by the Council was not conflicting.
82. The solicitors say the Council required them to request a referral to the ESAP, but its allocations scheme does not suggest that such decisions would be made by the ESAP.
83. I disagree. The allocations scheme does state that such decisions would be dealt with by the ESAP. It refers to “Group 3 – post 9 November 2012 homeless applicants: households in accommodation provided by Enfield Council owed a full housing duty under homelessness law that are assessed as not suitable for living in the private rented sector” and states that the relevant date for this category of applicant would be the date agreed by the ESAP. This confirms it is for the panel to make a decision on this point.

The Council’s housing allocations scheme

84. The solicitors say the scheme is misleading and confusing in that: the “Rights of Information, Review and Complaints” section of the scheme states: applicants have a right to know the facts taken into account by the Council when it makes them an offer of a ‘social rented home’; and homeless applicants have a statutory right of review in respect of the suitability of any offer of a ‘social rented home’. They say that, as Mrs B was discharged into private rented accommodation, she appears to be excluded from this right to information even though she is entitled to it under data protection legislation and under section 202 of the 1996 Act.
85. I have not investigated this point. Mrs B has not suffered a significant personal injustice as she had the benefit of legal advice throughout and was therefore informed of her rights.

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Agreed action

86. In recognition of the injustice caused to Mrs B, the Council has agreed that, within one month of this decision, it will:
• send Mrs B a written apology; and
• pay her £500 in recognition of the fact that she was living in unsuitable temporary accommodation for two months longer than necessary.

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Final decision

87. I find the Council was at fault in that it delayed in reviewing the suitability of Mrs B’s temporary accommodation as a result of which she had to live in unsuitable accommodation for two months longer than necessary.
88. The Council was also at fault in that it delayed in referring Mrs B’s case to the ESAP for consideration and in informing her of the outcome of her appeal against the panel’s decision. But I do not consider these delays caused Mrs B a significant injustice.
89. I do not uphold the remainder of Mrs B’s complaints.
90. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman