London Borough of Hammersmith & Fulham (18 016 920)
The Ombudsman's final decision:
Summary: The Council wrongly changed Ms X’s housing priority, for which it apologised. However, neither the change of housing priority nor the information the Council provided about waiting times, led Ms X to miss an offer for suitable permanent housing.
The complaint
- Ms X says the Council misled her as it said she would be in temporary accommodation for up to 22 months but, it recently told her it would be 60 months. Ms X says it is difficult for her and her children to settle as they do not have a permanent home. Ms X wants the Council to offer her a suitable permanent home as she has been in temporary accommodation for three years.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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)
- We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
- 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)
How I considered this complaint
- I have:
- considered Ms X’s written complaint and supporting papers;
- talked to Ms X about the complaint;
- asked for and considered the Council’s comments on the complaint;
- shared, where possible, the Council’s comments with Ms X; and
- shared a draft of this statement with Ms X and the Council and considered their responses.
What I found
Homelessness
- For applications made before April 2018, if a council is satisfied a person is eligible, homeless, in priority need and unintentionally homeless, it owes them ‘the main homelessness duty’. Generally, a council carries out this duty by arranging temporary accommodation until it makes that person a suitable offer of social housing or private rented accommodation.
- A council must give people written notice of its decision on their homelessness application. People then have 21 days to ask for a review of the decision, including of the suitability of temporary accommodation where the main homelessness duty applies.
Housing allocations
- A council must publish an ‘allocations scheme’ setting out both how it will prioritise housing applicants and, its procedures for allocating housing. The law says allocation schemes must give ‘reasonable preference’ to some housing applicants, for example, homeless people. All allocations must be in strict accordance with the published scheme.
- People have review rights for many council housing allocation decisions, including decisions about their housing priority.
- The Council has a ‘property pool and assisted choice’ allocations scheme (‘the Scheme’). The Scheme has four ‘priority bands’. Band 1 applicants have the greatest priority and Band 4 applicants the lowest priority. For this complaint, the relevant bands are: Band 2 - need to move – reasonable preference and a community contribution; and Band 3 - need to move – reasonable preference but no community contribution. (A ‘community contribution’ may apply, for example, if the applicant works in the borough.) Within each Band 1 to 4, priority is by ‘date order’, that is, the date the applicant was placed in that Band 1 to 4.
- Section 4 of the Scheme explains how the Council allocates homes and says, at paragraph 4.2:
“Properties available from the property pool will be matched to applicants’ preferences and, taking into account the suitability of the accommodation against applicants’ needs, offers will be made by Housing Officers, based on the housing supply available. The Council will seek to make a maximum of two offers to applicants, with discretion to make a third offer. If an applicant turns down offers made by the Council, they will be demoted a band for twelve months. Where applicants are in Band 4 and turn down a second offer, they will be removed from the Housing Register altogether and not be able to re-apply for a year. Homeless applicants will normally receive one suitable offer. In the event that homeless applicants turn down an offer made by the Council, they will be removed from the register.”
- Paragraph 4.26 of the Scheme says the Council’s website will set out the average waiting times for housing applicants based on Bands 1 to 4 and the number of bedrooms needed. Currently, the Council’s website says:
“It’s difficult to estimate when you will receive an offer of housing – it depends on the number of properties available to let, the level of priority you are based on your application and the length of time you have been on the register. This can be up to 10 years!
We know how distressing it can be if you’re waiting for social housing. We really appreciate that delays are likely to make a bad situation worse for many people and we’ll always do everything we can to help.
We try hard to keep waiting times to a minimum, but there are always more people than places. And the pressure to find homes for people who badly need them has increased over recent years, especially in London.
To help you manage in these difficult circumstances, we try to let everyone know how long they are likely to have to wait, but these are only our best guess, because circumstances change all the time. Here are our current best estimates of likely waiting times…
Band 2 – three bed properties – 22 to 60 months.”
- The Ombudsman recognises that demand for social housing far outstrips the supply of properties in many areas. He may not find fault with a council for failing to re-house someone, if it has prioritised applicants and allocated properties according to its published allocation scheme.
What happened
- Over three years ago, Ms X made a homelessness application to the Council. The Council considered Ms X’s application and decided it owed her the main homelessness duty (see paragraph 7). The Council wrote to Ms X with its decision. The Council’s letter also said:
“given the shortage of social housing in the borough, it may take some considerable time for you to receive an offer of social housing. You also have the option of securing your own alternative accommodation to resolve your housing need.”
- The same day, the Council wrote to Ms X saying it added her name to its housing register (‘the Letter’). The Letter said Ms X had Band 2 priority because, as well as her housing need, the ‘community contribution’ applied to her application. The Letter said Ms X was assessed as needing a three-bedroom property. The Letter told Ms X about her right to ask for a review of the decision within 21 days.
- Ms X moved into temporary accommodation and then asked the Council how long she would be there. The Council replied:
“The current average waiting time for a three-bedroom property in Band 2 is 20 months. Please be advised this is an approximation.”
- About three months later, Ms X again contacted the Council and asked how long she would be in her temporary accommodation. In reply, the Council said the ‘approximate waiting time in Band 2 is 22 months for a three-bedroom property’.
- Ms X then moved to another temporary home. It was about 21 months since the Council had written to Ms X with its decision on her homelessness application and added her name to its housing register.
- Ms X had problems with her second temporary home, which the Council took time to resolve and led to Ms X making a complaint. In her complaint, Ms X asked where she was on the housing waiting list. The Council replied that Ms X had a ‘priority date’ from the previous month and a Band 3 priority. And:
“The current waiting time for a 3-bed in [Band 3] is 3.5 years from your priority date. This period could be longer or shorter depending on how many people are on the housing register.”
- Ms X acted immediately and the next day the Council wrote to her confirming:
“…your application for housing has been registered for a 3-bedroom property in Band 2 from [the date of the Letter].”
(The Council explained there had been a ‘banding error’, for which it apologised, that had led to her receiving wrong information about having a Band 3 priority. The Council’s records show Ms X’s application as wrongly recorded as a Band 3 priority for 40 days.
- Ms X recognised the Council had corrected its error about her housing priority band but said it had not responded to her concern about the waiting time. Ms X also contacted her local councillor. After seeking information from Council officers, Ms X’s councillor told her:
“The average waiting time is 60 months, so [housing] expect an offer to be made in the summer of 2021. I am very sorry to give news of such a long wait, but unfortunately very few homes become available every year.”
- The following month, the Council wrote to all 2600 households on its housing register, including Ms X, to update them on waiting times. The letter gave the ‘current best estimate of likely waiting time’ for a Band 2 applicant seeking a three-bedroom home as “22-60 months”.
- Ms X came to the Ombudsman saying it was very misleading for the Council to repeatedly say the waiting time was 20-22 months and then to suddenly significantly increase it to 60 months.
The Council’s response to the Ombudsman
- The Council says it cannot, and does not, give housing applicants definitive waiting times as receiving a housing offer depends on many considerations outside its control. For example, how many people join the housing register; what housing preferences people have; and what properties become available for letting. The Council therefore gives people a broad guideline about waiting times.
- However, the Council realised that how it estimated waiting times was not properly reflecting the time many people were waiting for housing. The Council says this was because it looked back to how long people had waited over the previous five years and then ‘averaged’ their waiting times. But, the waiting list was increasing by 400 to 500 people each year. The number of available properties were not similarly increasing. So, taking account of how long people had waited five years earlier reduced the average waiting time when, in fact, waiting times were constantly increasing.
- So, in 2018, the Council changed how it estimated waiting times and now gives a ‘range’ of waiting times, for example, 22 to 60 months for Band 2, three-bedroom applicants. The Council says a range recognises, for example, if an applicant has no housing preferences, they may receive an offer sooner than an applicant wanting to live in a specific part of the borough. Having changed how it estimated waiting times, it then wrote to everyone on the housing register to update them (see paragraph 23). The Council intends to provide applicants with a waiting times update each year. The Council says estimating waiting times is complex and it recognises applicants’ concerns about waiting times. The Council is taking part in national research into how best to present waiting time information.
- The Council says it became aware of a computer problem affecting its records for applicants moving between ‘temporary’ homes. It was trying to resolve this, by testing changes to its computer system, when Ms X moved to her current temporary home. In response to Ms X’s complaint, the Council says it is auditing its records to check if the test affected other applicants.
- The Council says fourteen three-bedroom homes became available in the ‘property pool’ during the 40 days Ms X’s application was wrongly in Band 3. The Council says Ms X’s application was not considered for six of these homes because they were housing association properties. A further five homes were in an area Ms X had excluded in expressing her housing preferences. The remaining three homes were allocated to people that had priority Band 1 or longer waiting time than Ms X’s wait since the Letter.
- The Council has allocated a further 38 three-bedroom homes since correcting its computer records to show Ms X’s application with a Band 2 priority. With one exception, which arose because of the applicant household’s medical/care circumstances, the successful applicants had Band 1 priority or a longer waiting time than Ms X.
Consideration
- Ms X says the Council repeatedly gave her misleading information about how long she would wait for a suitable permanent home. The Council did write to Ms X about a 20-22 month wait. I therefore recognise Ms X’s concern that, after waiting about two years, she was told the wait might be 60 months. And yet, in writing to Ms X, the Council always qualified the waiting time by using words like ‘approximate’. I do not therefore find the Council gave Ms X any definite waiting time. And, the Council was giving Ms X, and other housing applicants, its then ‘best’ estimate based on the previous five years’ of allocations.
- However, as Ms X points out, a change from 22 to 60 months is significant. And yet, the evidence shows this change arose from the Council’s concern that ‘approximate’ waiting times given to applicants were increasingly unrealistic. In such circumstances, I would expect a council to review how it estimated waiting times and, therefore, what ‘approximate’ information it passed to housing applicants. And, this is what the Council did in 2018.
- The Council’s 2018 review led it to change how it estimated waiting times and to introduce a broad range of waiting times. In Ms X’s case, the relevant ‘broad range’ was 22 to 60 months. A, currently, estimated waiting time of 22 to 60 months does not mean that all applicants now in Band 2 needing a three-bedroom home will wait 60 months for an offer of housing. So, while introducing ‘to 60 months’ was significant, as part of a ‘range’ it ought better reflect waiting times experienced by current housing applicants.
- Of potential greater concern, is the admitted Council error in reducing Ms X’s housing priority from Band 2 to Band 3. Fortunately, due to Ms X’s vigilance, the error lasted 40 days. And, the evidence does not show that Ms X missed an opportunity for an offer of permanent housing during these 40 days. The Council has already apologised to Ms X for this error.
- I recognise Ms X’s frustration and disappointment at not, after three years, yet having a suitable permanent home. And yet, I do not find this due to fault by the Council. The Council has an increasing housing waiting list but limited properties to allocate. The more accurate ‘range’ of waiting times now published by the Council may be disheartening for applicants, including Ms X. But, the Council’s current published information about estimated waiting times has not affected Ms X’s housing application and neither has the 40-day banding error.
Agreed action
- The Council’s ‘computer trial’ did not affect Ms X’s opportunity for permanent housing. And, the Council has already suitably put matters right by correcting her housing priority and apologising. But, the Council’s audit (see paragraph 28) found eight other applicants whose housing priority changed because of its ‘computer trial’. The Council corrected the priority banding for these eight cases. The Council also agreed to review those cases to see if the applicants missed an opportunity for permanent housing while their applications held the wrong band priority. On issuing this decision, the Council has already completed the agreed review of the eight cases: none of the eight applicants missed an opportunity for permanent housing. I thank the Council for its prompt response.
Final decision
- I completed my investigation because the Council has already:
Investigator's decision on behalf of the Ombudsman