Summary: Ms C says the Council failed to place her in the correct category for housing allocation. Ms C says she suffered injustice as she is in unsuitable housing. The Council was at fault for a failure to apply the guidance on housing for local people. This caused her injustice. The Council has agreed to reconsider its decision. It has also agreed to review its procedures.

The complaint

1. Ms C has lifelong connections with the Council’s area. She has never lived elsewhere in the UK. She says she went abroad in 2015 and was prevented from returning by a relative who forced her to undergo treatment for a mental condition.
2. Ms C says the Council, through the local housing association, was at fault for:
1. Refusing to place her in the highest priority band for housing allocations and fettering its own discretion to do so given her exceptional circumstances;
2. Various failings to repair the property she currently resides in such as:
1. There is mould in the kitchen and bathroom
2. There is no shower curtain
3. There is no current electrical safety certificate;
4. The electricity account was £30 in debit of when she moved in; and
5. It is too noisy.
3. The behaviour of officers who were rude to her; and
4. Refusing to allow her to bring an emotional support dog into the flat or move her to a flat where she could have one.

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The Ombudsman’s role and powers

3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
8. When a council commissions another organisation to provide services on its behalf, it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions/service of Barnet Homes, I have made recommendations to the Council.
9. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
10. 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)
11. 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)
12. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

13. I considered the material provided by Ms C and wrote an enquiry letter to the Council. I considered its response alongside the relevant law and guidance before making my decision.

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What I found

What should happen

Council’s duty to house

14. The Housing Act 1996 says councils must house the homeless who are in ‘priority need’ in suitable accommodation. While those found eligible wait for permanent housing, they must be housed in temporary accommodation.
15. Every council must establish a housing allocation scheme to decide how to allocate available housing to those found to be eligible. They will ask those seeking permanent housing to apply setting out the severity of their need. The Ombudsman has jurisdiction to handle complaints about allocations schemes.
16. Councils assess applications and place applicants in one of several ‘bands’. Those in the highest band will be housed most urgently while those in the lowest bands, particularly in London, where the Council in this case is, may find that permanent housing never becomes available due to a shortage of stock.
17. Some councils no longer own any ‘council housing’. Many have set up housing associations to administer their stock. Nonetheless, they retain statutory responsibility for allocating permanent accommodation to those in need.

The housing allocation scheme

18. The Council has set up an arm’s length management organisation, Barnet Homes, (‘BH’) to administer its housing stock. BH considers whether applicants:
• Have a ‘reasonable preference’: they are homeless or facing homelessness or living in unsatisfactory housing conditions.
• Qualify for the ‘positive community contribution criteria’: being in work, training or volunteering or living in supported housing and ready for independent living.
19. BH then places applicants for housing in four bands:
• Band 1: People who have reasonable preference and are granted additional preference for some reason (such as urgent need);
• Band 2: People with reasonable preference who also qualify for the community contribution criteria
• Band 3: People with reasonable preference but who do not qualify for the positive community contribution criteria
• Band 4: People who have reasonable preference but have had their preference reduced for reasons such as having ‘no local connection’.
20. The Council defines a person with a residential connection as someone who has lived in its area continuously for five years.

Right to request review

21. An applicant has a right to request a review of the suitability of any offer of temporary housing made under s.193 of the Housing Act. (s.202, Housing Act 1996)

Government guidance on providing social housing for local people

22. The Department for Communities and Local Government has issued guidance on providing social housing for local people. It says: The Secretary of State believes that including a residency requirement is appropriate and strongly encourages all housing authorities to adopt such an approach. The Secretary of State believes that a reasonable period of residency would be at least two years….
23. Housing authorities may wish to consider whether there is a need to adopt other qualification criteria alongside residency …. Housing authorities should consider the need to provide for exceptions from their residency requirement…. It is important that housing authorities retain the flexibility to take proper account of special circumstances…. authorities retain a discretion to deal with individual cases where there are exceptional circumstances. (Providing Housing for Local People, Department for Communities and Local Government, 2013)

BH’s discretionary policy

24. BH has a policy on the use of discretion in housing allocation cases. It says, in the ‘residential connection’ section, ‘Residential connection … will normally mean that an applicant currently lives in the borough and has continuously done so for a minimum of 5 years’.

Suitability of accommodation

25. The Housing Act 1996, s.206 says accommodation supplied by local authorities must be ‘suitable’. There is no definition of ‘suitable but the accommodation must be suitable for the service user concerned.
26. Where a service user believes the accommodation is unsuitable, they can ask for a review.

Repairs

27. BH sources some of its social housing properties from private sector landlords. Ms C’s flat is one such property. BH inspects these properties once a quarter and then sends a list of necessary repairs to the landlord. It will also make recommendations where repairs might be advisable but are not necessary. Landlords do not have to carry out recommendations.

The Autism Act 2009

28. The Autism Act 2009 required the government to publish an autism strategy and to periodically review it. The Secretary of State for Health had to publish guidance for local authorities. Local authorities must follow this guidance unless there is good reason to depart from it.
29. Since 2015, the Care Act 2014 works in conjunction with the Autism Act to regulate the assessment and provision of care for those with autism spectrum disorders (‘ASDs’).
30. The government last published statutory guidance under the Autism Act in 2014. It said, among other provisions that Councils must:
• Ensure that training is available for all staff particularly those likely to come into contact with those with ASDs;
• Ensure that they take a personalised approach to recognise the impact autism has on people with ASDs;
• Cooperate with other local bodies to provide cohesive care and support services;
• Gather information and statistics about the local population with ASDs;
• Ensure that they devise local autism plans or strategies on how people can access local autism advice and information easily; and
• Ensure that people with autism and complex needs can live as independently as possible in the community.

What happened

31. Ms C says she grew up in the Council’s area and has never lived elsewhere in the UK. She says a family member suggested, in September 2015, she should go for a short holiday to another country. Once there, she says, the relative prevented her from leaving and subjected her to unwanted medical treatment.
32. Ms C returned to the UK in July 2016 and returned to live in the Council’s area. Her doctor and other medical practitioners lived there (and she is in need of medical treatment) as is her family.
33. Ms C has been diagnosed with an autism spectrum disorder (ASD). She has asked the Council to make reasonable adjustments for her by contacting her only by email and text.
34. In late 2017, Ms C’s landlord wrote to her to warn her he would be terminating her tenancy. She wrote to the Council asking for assistance in finding alternative accommodation.
35. The Council housed her in interim accommodation for a short period from April 2018. It assessed her and found to be eligible for housing. It placed her in Band 4 because she had not been resident in the borough for the last five year because she had been abroad for nine months while receiving medical treatment.
36. BH assessed Ms C as vulnerable and agreed to house her in a property with few steps in the Council’s area. It placed her in long-term temporary accommodation in a flat it deemed suitable in June 2018. Ms C did not like the flat and sought help in making BH move her. Ms C failed to attend at least one appointment to view alternative accommodation.
37. A homelessness charity took on Ms C’s case and wrote to BH in late-May 2018 saying she should be placed in Band 1 because, although she had lived abroad for nine months, this had been against her will.
38. BH asked for proof that Ms C had been detained abroad against her wishes. Ms C said she had no proof as she had kept this at a relative’s flat (which she was able to show was burnt down in June 2017). BH maintained its decision that Ms C did not qualify for Band 1.

Repairs

39. Ms C has claimed since moving in that the accommodation is unsuitable. She did not request a review of suitability. She has made numerous complaints about this to BH. She says, among other things that:
• her shower had no door for a year;
• some of the electrics were faulty and had no safety certificate; and
• There was mould in places.

Electrical installation condition report

40. Landlords should commission an electrical installation condition report at least once every five years.
41. Ms C also says that work on her house was carried out by an unqualified electrician.

Emotional support animal

42. Ms C complains about the fact that she cannot keep an emotional support pet at the property due to the terms of her rental agreement. BH says the first record of her request to keep an emotional support animal was in March 2019. She sent a GP’s letter dated August 2018.
43. BH said she could not have an animal in her current flat because of the terms of the lease. It also did not accept the medical evidence that such an animal was vital for her wellbeing.

Complaints

44. Ms C complained to the Council about various issues connected to her housing in January 2019. The Council responded in February apologising for its failures in complaint handling but otherwise dismissing her complaint. She escalated the complaint to stage two where her complaint was again dismissed.
45. She later complained to the Council again in May 2019. The Council again dismissed her complaints. She came to the Ombudsman.

Was there fault causing injustice?

Failure to put Ms C in Band 1/fettering discretion

46. BH’s housing allocation policy grants priority to those who have resided in its area continuously for five years.
47. When Ms C asked to be housed in 2018, she told BH she had lived in the Council’s area throughout her life but for one nine-month period when she was abroad and had been prevented from returning by a relative.
48. The Council accepted that, if she had been detained against her will during this period, this would have amounted to an exceptional circumstance which would allow her to be placed in Band 1. It asked her for evidence.
49. Ms C said her documents had been burned in a recent fire which had destroyed a relative’s flat and provided proof that the fire had occurred. She said she had become estranged from the relative who organised the treatment. Nonetheless, BH had a right to insist on evidence to support Ms C’s claim of being held against her wishes.
50. However, I find BH was at fault for a failure to consider whether Ms C met the residence requirement because of her deep and obvious links to the borough.
51. Providing Housing for Local People says councils should use residence as a factor in setting allocation priority. It suggests a residency period of at least two years as reasonable. The Council’s period is five years.
52. The same guidance says councils should consider ‘other appropriate exceptions in the light of local circumstances’ and says ‘authorities retain a discretion to deal with individual cases where there are exceptional circumstances’. From this it is clear that a rigid, time-based definition of residency is not envisaged. Residency and ‘localness’ are more complex matters.
53. BH’s guidance says continuous residence in the borough for five years would ‘normally’ meet the residential requirement. This implicitly accepts there is a discretionary element as to whether this five-year period is necessary.
54. There is no evidence the Council considered whether to use that discretion and its response to my enquiries indicates it did not do so. It said, ‘we carried out enquires as to whether [Ms C] has lived in the borough of Barnet for 5 continuous years. This would determine whether [Ms C] satisfies the Residential Connection criteria and would be thereby placed into a housing band with higher priority. We found that due to a period of absence when she was [abroad] she did not qualify as having continuous residence’.
55. The guidance is clear that residence is a complex question where discretion will frequently need to be applied. It cannot be reduced to a bare calculation of the duration of an individual’s continuous physical presence in an area. Ms C’s entire family lives or lived in the Council’s area. She has never lived anywhere else. Her doctors and remaining family live there. She has an ASD and may have other associated health problems. These factors should all be considered when deciding whether an individual qualifies as a resident.

Problems with accommodation introduction

56. Ms C has complained that the accommodation was unsuitable from the outset. However, she did not request a review, which she could have done, as BH advised her in a letter of 6 June 2018.
57. Ms C has provided photographs but I cannot draw conclusions from these. BH carried out regular inspections and passed action points and recommendations on to the landlord.

It therefore seems to have acted properly.

Problems with accommodation a) mould

58. Officers visited the flat on several occasions and the records suggest that there is a condensation problem in the flat. The landlord has sought to deal with this by way of a fan in the bathroom.
59. In June 2019, BH recommended to the landlord that they should service the bathroom fan and install a fan in the kitchen as the mould was getting worse. These were recommendations only and it is, therefore, a matter for the landlord whether to comply. However, if the problem gets worse, it remains open to Ms C to complain about this and any other problems in the flat. The Council has a duty to ensure that necessary repairs are carried out.

Problems with accommodation b) shower curtain

60. The records show that there was no shower curtain in July 2018 and there was still none in June 2019. This was fault. BH has made recommendation for a new shower curtain to be installed on several occasions but Ms S says there is still no curtain. This is fault. The Council should ensure that a shower curtain is installed.
61. However, the injustice caused is small because the damage caused; damp spreading into the woodwork, is damage to the landlord’s own property. BH has asked the landlord to repair this too.

Problems with accommodation c) no current electrical safety certificate

62. Ms C says she believes the electrics are unsafe because she does not believe the electrician who has done the electrics in the flat for many years is qualified. She has also complained to the Council that there is no current IECR.
63. This complaint is speculative. The flat received an EICR in 2017. BH sent Ms C a copy in December 2018. I have seen no evidence to suggest that the tradesman employed by the landlord to install the shower was incapable of or unqualified. Indeed, if, as Ms C says, he has done the electrics at the flat for many years, he seems to be competent as the flat has an EICR. I do not find fault.

Problems with accommodation d) electricity account

64. Ms C says the electric account was £30 in debit when she moved in. I have seen no evidence to support this so cannot make a decision on this point.

Problems with accommodation e) noise

65. Ms C says that building works have started in the area since she moved in. The Council has refused to move her saying she has provided no medical evidence that she should be in a quiet place. Any decision to move her must be based on evidence. Therefore, I do not find fault.

Behaviour of officers

66. Ms C says officers were rude to her on numerous occasions from June 2018 onwards. There is no evidence to support many of these claims and BH and the Council deny them. Therefore we cannot uphold this part of the complaint.
67. Ms C and BH have provided me with a great deal of correspondence which shows that relations between them frequently became strained. I have seen no evidence that officers were to blame for this.

Refusal to allow emotional support animal

68. Ms C first asked about being allowed an emotional support dog in August 2018. She provided a GP’s letter which said that a support animal would be helpful for her and information from an ASD charity about her condition.
69. BH quickly told her the lease did not allow animals. It could have arranged for Ms C to move to another flat where an animal would have been allowed if her condition required it. However, it says it does not do this unless there is evidence, such as a GP’s letter, which states that an emotional support animal is vital. The GP’s letter in this case did not. It merely stated she would ‘benefit from having a pet, such as a dog’. Therefore, I do not find fault.
70. A psychiatrist interviewed Ms C in 2019. She told the psychiatrist she would like a pet. The psychiatrist told BH. BH refused to move her because ‘the medical team advised that it appears you yourself informed the specialist that you want a pet dog. This is not therefore a recommendation’. This was a decision it was entitled to make. I do not find fault.

Matters coming to attention – autism policy

71. The Council said, in response to my enquiries, that it has no autism policy. It has agreed to look into the way it provides services which might impact people with autism spectrum disorders within the next three months and report back to the Ombudsman.

Agreed action

72. The Council has already apologised to Ms C and agreed, as I recommended, within one month, to:
1. Pay her £300 in recognition of the injustice she suffered;
2. Reconsider her housing band bearing in mind her individual circumstances as set out in the Providing Housing for Local People guidance – If she is placed in another band, she should be considered to have been in this band since the date of her original application;
3. Ensure that necessary repairs are carried out in a timely fashion;
4. Write to the Ombudsman to explain that it has done the above.
73. The Council has agreed to write to the Ombudsman within three months setting out how it currently complies with the Autism Act 2009 and what steps it intends to take in future to ensure compliance with the statutory guidance.

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Final decision

74. I have found the Council at fault. The Council has accepted this and has accepted my recommendations for a suitable remedy. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman