London Borough of Lambeth (19 014 439)

Category : Housing > Allocations

Decision : Upheld

Decision date : 11 Nov 2020

The Ombudsman's final decision:

Summary: Miss X complains about the way the Council handled her application for emergency rehousing after she fled her home due to domestic violence. Miss X and her children suffered injustice due to fault by the Council and its failure to consider making a direct offer of accommodation. The Council has accepted our recommendations for a suitable remedy.

The complaint

  1. Miss X complains about the way the Council handled her housing application after she and her children fled their Council home in May 2016 following incidents of domestic violence.
  2. In particular Miss X complains that:
    • when the Council awarded emergency housing priority in August 2016, it said it would make a direct offer if she had not made a successful bid for housing within six months – however it did not do that;
    • she was not informed of a decision made in August 2017 to remove her from the emergency priority band and put her in Band A instead – she did not find out until May 2018 when a charity contacted the Council on her behalf;
    • she did not realise the Council expected her to bid for properties in areas she considered unsafe due to previous incidents of domestic violence;
    • overall the Council took far too long to make her a suitable offer of accommodation.
  3. Miss X and her three children stayed with three different relatives after they left the Council property in May 2016. For much of this time, they were living in overcrowded conditions where they had to share rooms. The lack of settled and suitable housing was unsettling and disruptive for Miss X and her children.

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons to do so. A complaint is late 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)
  2. 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)
  3. 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

  1. I discussed the complaint with Miss X and considered all the information she provided. I considered the Council’s response to my enquiries and the relevant housing records and correspondence. I have referred to relevant parts of the Council’s housing allocations policy.
  2. I exercised discretion to investigate the handling of the housing application from May 2016 onwards. There were good reasons for Miss X’s delay in making the complaint to the Ombudsman. She was vulnerable due to her experiences of domestic abuse and health issues. She was also involved in legal proceedings brought against her ex-partner.
  3. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

  1. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing.  All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
  2. 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))

 

The Council’s housing allocations scheme – priority bands, choice based lettings and direct offers

  1. There are four priority bands – A to D - in the Council’s housing allocations scheme. Band A is the highest and includes the following groups of applicants:
    • Emergency transfers due to risk of violence;
    • Decants of council tenants (where there are planned major repairs, refurbishment, demolition or redevelopment of a housing estate)
  2. Within Band A there are two levels of priority: Level 1 and Level 2. The scheme says all applicants in Band A are in emergency situations or have very high priority, and generally have a similar, very high level of need. Applicants will therefore be placed on Level 2.
  3. When the Council regards a case as exceptionally urgent (bearing in mind that all Band A cases are emergencies or very high priority), it has discretion to place the applicant on Level 1.
  4. The Council operates a choice-based lettings system for allocating Council and Housing Association properties. Applicants express an interest in advertised properties by making a bid for them. Applicants are not generally considered for properties for which they have not bid unless they are being made a direct offer.
  5. At the relevant time, the allocations scheme said the Council reserved the right to make a direct offer of a property when it considered this would be advantageous to the Council. It also said applicants in Band A are normally given a time limit within which to make bids, and the Council may make a direct offer if they have not received a suitable offer of housing within that time.

What happened

  1. Miss X was a Council tenant. She lived in a two bedroom flat with her three children. In May 2016 Miss X’s partner assaulted Miss X and one of her children outside their home. There had been previous incidents of domestic abuse over many years. This assault was so serious that Miss X reported it to the police. For their own safety, Miss X and her children left the flat immediately and went to stay with relatives. There was a further incident in June 2016 when Miss X returned to collect some belongings. Miss X’s partner was later convicted of a criminal offence and given a suspended sentence.
  2. The police and the Council referred Miss X to a local support service for people who have experienced gender-based violence. The Multi-Agency Risk Assessment Conference (MARAC) carried out a risk assessment and drew up an action plan. MARAC said Miss X was at high risk of further violence and it supported a move to suitable permanent accommodation. The Independent Domestic Violence Advocate (IDVA) from the support service also wrote a letter supporting the need for rehousing.

Emergency housing – the award of Band A

  1. In August 2016 the Emergency Housing Panel considered a report from a housing support worker, a statement from Miss X and the information from the IDVA and MARAC. It awarded Miss X Band A2 emergency priority for rehousing. The effective date of the award was 25 July 2016 (the date of the emergency housing application).
  2. In early August the Council wrote to Miss X to confirm the Band A award. It explained she could bid for any two bedroom properties in Lambeth advertised on the choice-based lettings scheme. She was only excluded from bidding for properties in the same road as her former home.
  3. The letter also said:

“The Council is now placing a time limit on how long emergency applicants can freely bid. You can freely bid for six months from today’s date. If you have not been rehoused by that time, we will make you a direct offer. We will make only one reasonable direct offer and it may not match all your choices although it will meet your needs as we have assessed them. Therefore please bid realistically while you have the opportunity to get a home that matches your choices. Don’t restrict your bids to only the most desirable properties as you may well not be rehoused in six months if you do”

  1. The Council also sent Miss X a copy of the form she had signed in July 2016 when she applied for emergency rehousing. It said she would normally get an offer of alternative accommodation after bidding for a property through the Choice Based Lettings scheme. It continued:

“However, if I do not bid successfully I will, after six months in Band A, be made one reasonable direct offer of alternative accommodation.”

  1. Miss X remained the tenant of the Council property while she waited to be rehoused.

Miss X’s bids

  1. The Council provided Miss X’s bidding history. The records show she bid for five properties in the six months from late July 2016 to late January 2017. Although she was invited to view one of these properties, none of the bids were successful. The properties were allocated to applicants with higher priority or they were withdrawn from letting.
  2. By 25 January 2017 Miss X had been bidding for properties in Band A for six months. She had not made any successful bids. The Council did not make her a direct offer.
  3. Some months later, Miss X says she spoke to the housing support worker who had written the emergency rehousing report for the Panel. She says the support worker said she would speak to the Allocations Manager who would review Miss X’s case and bidding history and decide whether to make a direct offer. Miss X heard nothing more and continued bidding.
  4. Miss X explained that she and her children had moved from place to place while they stayed with different relatives. She had health issues and was giving evidence in court proceedings against her ex-partner. She assumed the Council would contact her when it found a suitable property for a direct offer.
  5. The Council’s records show Miss X bid for 36 properties between August 2016 and November 2019 but none of these bids were successful. The Council says 423 suitable properties were advertised on the choice-based lettings scheme in that period. Miss X says most of these properties were in areas she considered to be unsafe for her and her family.
  6. When it commented on a draft version of this decision, the Council said it rarely makes a direct offer after six months to emergency cases.  It says it is not in the interests of the applicant or the Council to try to force someone to accept a property they do not want. If it had reviewed Miss X’s case after six months, the most likely outcome would have been to extend the time she could bid and repeat the advice for her not to be too selective when making bids.
  7. In January 2020 Miss X made a successful bid for a three bedroom property. She moved to the property in March 2020 after works were completed.

Change in priority band

  1. Miss X says the Council did not inform her that it had removed her emergency priority band on 23 August 2017 and moved her to Band A. She only discovered this in May 2018 when the Council replied to enquiries a charity made on her behalf. She says the Council’s response quoted an entry in her case records which said EMPL2 emergency priority had been removed because she was now a “descentee” and could for three bedroom properties in Band A. (This is a reference to the decanting of tenants from properties on the Council estate where Miss X used to live).
  2. The Council has confirmed there is no EMPL2 priority band in its housing allocations scheme. The reference to EMPL2 is simply a shorthand term to indicate that the Emergency Panel (EMPL) had awarded Band A priority Level 2. Band A has always been the highest priority band in the Council’s scheme. So Miss X’s priority was not reduced in August 2017. She stayed in Band A but became eligible for a three bedroom property because her Council property was on an estate that was being decanted.
  3. The Council provided a spreadsheet listing all Miss X’s bids. It shows she remained in the same priority band - Band A2 – from July 2016 until the end of 2019.
  4. The Council says the only factor which affected Miss X’s housing application was that her Council property was on a regeneration estate. Tenants on the estate were given Band A priority for rehousing as part of a “decant” scheme.
  5. Tenants with decant status, and tenants approved for an emergency transfer due to violence, are both in Band A. In practical terms, the only difference is that tenants decanted from a regeneration estate can bid for properties with the number of bedrooms their household needs. Whereas tenants approved for an emergency transfer get a “like for like” move to a property with the same number of bedrooms. As Miss X’s Council home was on a regeneration estate, the decant status allowed her to bid for three bedroom properties. But there was no change to her priority.

Miss X’s complaint to the Council

  1. In May 2019 Miss X made a complaint to the Council and raised several concerns about the way her housing application had been handled and the delay in rehousing her.
  2. A senior officer in the Neighbourhood Housing Office met Miss X and replied to her complaint in July. He apologised for the poor service she had received. He said several opportunities had been missed and he acknowledged that the Council’s poor communication had caused her anxiety and distress. He did not identify the missed opportunities. He confirmed Miss X’s application was in the correct priority band and she should continue to bid. The option of a direct offer appears not to have been considered at that time.
  3. The Council told me the senior officer no longer works for the Council. So it cannot shed any light on the specific faults or missed opportunities he had in mind.

Homelessness

  1. The Council says it did not consider whether Miss X was homeless on the grounds that it was not reasonable for her to continue to occupy her home due to the violence and threats of violence.
  2. Homeless applicants owed a housing duty are placed in a lower priority band - Band C – so it takes longer for them to be rehoused. It says neither MARAC nor the IDVA had asked the Council to arrange temporary accommodation for Miss X and her children because they were able to stay temporarily with relatives.

The impact on Miss X and her children

  1. Miss X says she and her three children moved around and stayed with three different relatives after they left the Council property in May 2016.
  2. At first they stayed with a relative in a two bedroom flat in a neighbouring borough. They then went to stay with a close relative for 18 months in a house where they each had their own bedroom. But tensions between family members led the relative to ask them to leave at short notice. They then went to stay for two years with another close relative in a two bedroom flat in a neighbouring London borough. Miss X and her youngest child shared a bedroom in that flat and her two older children slept in the living room.
  3. Miss X said her children did not have to change schools and colleges. But two of them have medical conditions which she says deteriorated because of the stress and unsuitable living conditions.
  4. Miss X says she attended counselling sessions. She had to approach several services to get help. She does not consider the Council provided timely support to her as a survivor of domestic abuse and violence. She said she felt fearful all the time during this period. On one occasion her ex-partner found out she was staying with a relative and made further threats.
  5. Miss X remained the tenant of the Council property while she waited to be rehoused. She built up substantial rent and Council Tax arrears because her entitlement to Housing Benefit and Council Tax Support ended in late May 2017. By then she had been absent from the property for 52 weeks and no further benefit could be paid.

Analysis

  1. The Council gave Miss X a clear written undertaking in August 2016 that it would make a direct offer if she had not made a successful bid for housing within six months. The Council did not review her bidding history after six months and it did not make a direct offer. It was fault not to honour this undertaking.
  2. The form and letter sent to Miss X were not consistent with what it said in the housing allocations scheme. They said the Council will make a direct offer after six months. But the published housing allocations scheme says the Council may make a direct offer after the initial bidding period expires. So the letter and form did not accurately reflect what it said in the housing allocations scheme. That is also fault.
  3. The Council did not review Miss X’s case and consider whether she needed further advice and support with bidding, or a direct offer, when she was not rehoused within six months. That was fault. I understand the Council prefers applicants to use the choice-based lettings scheme to give them control over where they are rehoused. But Miss X had an emergency housing need and she and her children were staying in unsettled and unsatisfactory accommodation for far too long. The Council should have been more pro-active and reviewed her case after six months. The only reason for imposing a time limit on bidding is to carry out a review if the applicant is not rehoused within a reasonable time. It appears Miss X’s case was simply overlooked. She was badly let down and she did not get adequate and timely support at a very difficult time in her life.
  4. I consider the Council should have considered making a direct offer in the first half of 2017 if it had reviewed the case after six months. The letter sent to Miss X was very clear on this point. Although a direct offer property would have met the assessed needs of Miss X’s household, it may not have met all her preferences. The Council says Miss X could have bid for more properties to improve her prospects of getting rehoused. She disagrees. In any event this does not absolve the Council. It was at fault because it did not consider making a direct offer to resolve Miss X’s urgent housing needs sooner. So Miss X and her children remained for a further three years in unsettled and sometimes cramped accommodation. Furthermore, the rent and Council Tax arrears on Miss X’s Council property would not have reached such a high level if the Council had reviewed her case and made a direct offer in the first half of 2017.
  5. The evidence I have seen shows Miss X remained in the same priority band – Band A2 – and the Council did not reduce her priority in August 2017. So I find no evidence of fault in relation to this part of the complaint.
  6. The letter sent to Miss X in August 2016 said she was free to bid for any properties in the borough except for the road where she had previously lived. So I do not consider she was subject to any restrictions on the areas where she could bid or that the Council expected her to bid for properties in areas of the borough she considered unsafe. It was up to Miss X to decide which properties to bid for. I therefore find no evidence of fault and had not upheld this part of the complaint.

Agreed action

  1. Within one month of my final decision the Council will:
    • Apologise to Miss X for the faults identified in this statement;
    • Write off the rent and Council Tax arrears for her former Council tenancy from late May 2017 (when Housing Benefit and Council Tax Support stopped) until the end of her tenancy. If Miss X has already repaid some of this debt, the Council will make a refund;
    • Pay Miss X £2,000 to recognise the distress caused to her and her children by its failure to review her case and consider making a direct offer when the initial six month bidding period ended in early 2017;
    • Review the wording in the decision letter and Appendix 2 form it sends to applicants who are approved for emergency housing to ensure they accurately convey what it says in the housing allocations scheme about bidding and direct offers for Band A applicants.

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Final decision

  1. I have completed the investigation and upheld Miss X’s complaint. The Council’s fault caused significant injustice to her and her family.

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Investigator's decision on behalf of the Ombudsman

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