Summary: There was fault by the Council. It took too long to decide that it had a relief duty to help Miss K secure alternative accommodation. It also has not shown that it considered whether the fact that she could not afford her rent meant that she was homeless. However, the impact on Miss K is limited to uncertainty about the Council’s responsibility to her and whether she should get higher priority on its housing register. The Council’s actions to find Miss K alternative accommodation are unlikely to have been very different had it accepted sooner that it owed her a relief duty. I have recommended the Council apologise to Miss K, make a small payment and review her priority on its housing register, as well as review how it might improve its service.

The complaint

1. Miss K complains about how the Council dealt with her housing situation. In particular, she says the Council failed to:
• Act in accordance with homelessness law and did not give her a Personal Housing Plan for six months;
• Safeguard her, given that she is disabled and vulnerable, and suggested that she move out of the area in which she receives medical care;
• Lost her housing applications and personal information in breach of data protection legislation, and an officer saved her documents to a personal drive on the computer;
• Did not properly consider her medical condition; and
• First told her it would help with a Discretionary Housing Payment and other payments from its prevention fund, and then that it would not.
2. Miss K says that as a result of the Council’s failings, she has faced uncertainty about where she will live, and what health services she will be able to access, and this has impacted on her health.

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What I have investigated

3. I have investigated Miss K’s complaints about how the Council dealt with her housing situation and Discretionary Housing Payment. I have not investigated how the Council dealt with her personal data for the reasons set out below.

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The Ombudsman’s role and powers

4. 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)
5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I considered the information provided by Miss K and her representative. I considered the information provided by the Council including correspondence between the parties. I also considered the law and guidance set out below. Both parties have commented on a draft of this statement and I have taken their comments into account before issuing my final decision.

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What I found

The law and guidance

7. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
8. Someone is threatened with homelessness if, when asking for assistance from the Council:
• he or she is likely to become homeless within 56 days; or
• he or she has been served with a valid Section 21 notice which will expire within 56 days. (Housing Act 1996, section 175(4) & (5))
9. Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. The Code of Guidance says, rather than advise the applicant to return when homelessness is more imminent, the housing authority may wish to accept a prevention duty and begin to take reasonable steps to prevent homelessness. Councils must notify the applicant of the assessment. Councils should work with applicants to identify practical and reasonable steps for the council and the applicant to take to help the applicant keep or secure suitable accommodation. These steps should be tailored to the household, and follow from the findings of the assessment, and must be provided to the applicant in writing as their personalised housing plan (PHP). (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.18)
10. If councils are satisfied applicants are threatened with homelessness and eligible for assistance, they must help them to secure that accommodation does not stop being available for their occupation. In deciding what steps they are to take, councils must have regard to their assessments of the applicants’ case. This is known as the prevention duty. (Housing Act 1996, section 195)
11. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. This is known as the relief duty. (Housing Act 1996, section 189B)
12. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need the council has a duty to secure that accommodation is available for their occupation. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)
13. The Code of Guidance says that after a landlord’s notice has expired, Councils should consider whether it is reasonable for the tenant to stay in that property. If it is not reasonable then the Council should consider the tenant homeless. The Code says that where an applicant has a notice; the council is satisfied that the landlord intends to seek possession and its efforts to persuade the landlord to allow the tenant to stay are unlikely to be successful; and there would be no defence to a possession order, then it is unlikely to be reasonable for the applicant to continue to occupy the premises.
14. The Code also says that affordability of accommodation must be considered in all cases. The Homelessness (Suitability of Accommodation) Order 1996 requires the authority to consider the affordability of the accommodation for the applicant. In particular, authorities must take account of the costs of the accommodation, and the applicant’s financial resources and other reasonable living expenses. (Homelessness Code of Guidance for Local Authorities, paragraph 6.23)

Discretionary Housing Payments

15. Councils can make Discretionary Housing Payments (DHP) to help with housing costs for those receiving housing benefit. The Council’s DHP policy says a payment can cover rent shortfall to prevent a person becoming homeless whilst the Council explored alternative options. The Policy says that when deciding a DHP application, the Council will take into account whether the tenant could afford the rent when they took the property on, and whether a DHP could make the property affordable, allowing the tenant to find alternative accommodation.
16. The tenant can challenge the Council’s decision not to award a DHP by asking the Council to review it. There is no right of appeal to an independent tribunal to challenge a DHP decision.

The Council’s housing allocations policy

17. The Council’s policy divides applicants into bands from Band A for urgent cases, to Band D for lower priority cases. The law requires to give reasonable preference to people with high levels of housing need.
18. The Council’s policy says it will place applicants in the highest Band A where they have an urgent need to move. This includes applicants who are statutorily homeless. In Band B, the Council includes applicants who are homeless or threatened with homelessness in the next 12 weeks, are likely to be in priority need and are acting upon advice from the Council to prevent homelessness. The Council also includes in Band B, those who have high medical needs relating to their accommodation.

What happened

19. Miss K has a rare condition which means she has a physical disability. She lives in private rented accommodation and has a carer who stays overnight. This means that Miss K needs a two-bedroom property. Miss K receives housing benefit to help pay her rent. The Council also paid Miss K a DHP because the housing benefit did not cover her rent.
20. In February 2020, Miss K asked the Council for help with her housing situation. She had received a notice to quit from her landlord because he wanted to sell the property. However, she had the opportunity to move to another flat in the same block.
21. In accordance with the law, the Council assessed Miss K’s situation at a meeting with her and her carer. Miss K had asked for a further DHP to help pay her rent at the current property but this had been refused. She had appealed this decision. The carer’s notes say that the Council told them it could use its Prevention Fund to pay the shortfall in rent at her current property and if she moved to the new property it could also pay the shortfall there.
22. The Council’s files show its proposed solution was to top up the rent for six months to give Miss K time to find more affordable accommodation. It wrote to Miss K on 9 March, stating that it accepted it owed her a prevention duty. The letter says it enclosed her PHP.
23. The Council liaised with its housing benefit service about the DHP. The service advised that it was unlikely to make a further DHP because it had been doing this for some time, and Miss K’s rent was unaffordable. The Council told Miss K that this meant using the Prevention Fund long term would also not be sustainable and the solution would be to find affordable accommodation. The Council said it would make a one-off payment to Miss K’s landlord to ensure the rent was met until 10 May so that the Council and Miss K had more time to find alternative accommodation.
24. Miss K told the Council she could not move away from her GP who provided her care. She gave the Council a letter from her GP confirming that continuity of care is extremely important.
25. The Council contacted Adult Care Services to explore supported living accommodation due to Miss K’s health needs. It advised that it would have to review Miss K’s needs to see if supported living accommodation would be possible.
26. The Council also contacted the GP to ask whether the surgery could continue with Miss K’s care if she moved from the area as it would be difficult to find affordable accommodation within the surgery’s catchment area. However, the surgery said it could not do so.
27. Miss K’s carer told the Council that family and friends had raised funds so that she could stay for longer. She asked the Council to reconsider a smaller DHP to make up the shortfall between the rent and her benefits and contribution from her family.
28. On 27 March, Miss K’s landlord confirmed he was no longer selling the property and that Miss K could remain there at a rent of £1340pcm. The Council proposed that she use the funds raised from family together with a DHP and her ongoing housing benefit entitlement. Together this would allow Miss K to stay at the property for a year and give her time to find somewhere more affordable.
29. On 8 April, the Council agreed to make a final DHP of £479 and asked Miss K to confirm that she accepted the offer. The Council wrote to Miss K on 14 April ending its prevention duty and closing her case.
30. However, at the beginning of June, Miss K told the Council she no longer had the funds from family and friends to put towards the rent shortfall. She asked it to increase the DHP. The Council again assessed Miss K’s situation. It confirmed that in total it had paid over £11,000 in DHP since 2018, covering the shortfall between the rent and housing benefit for the preceding two years. The Council said that both years, it had told Miss K that ongoing support would be unlikely and she should seek more affordable accommodation. It decided that it could not increase the DHP despite now learning that Miss K no longer had funds from family and friends.
31. The Council continued to ask adult social care whether it could complete a review of Miss K’s needs and explore supported living options. The Council also established with Miss K’s GP surgery that although it would be beneficial to remain at her current surgery, another surgery could provide the same level of care. The GP also agreed to review Miss K’s medication to see if any over the counter items could be prescribed to save Miss K money.
32. The Council sent Miss K a draft of her new PHP on 22 June and asked if she agreed with the steps outlined and on 7 July, Miss K asked the Council to review this. The Council wrote to Miss K on 14 July to confirm it owed her a prevention duty.
33. Miss K’s solicitor confirmed that they would request a review on the basis that the actions are not reasonable and are out of date. The solicitor also asked why the Council had taken so long to prepare the PHP when the Council had known about her housing situation in 2019.
34. At the beginning of August, Miss K’s landlord told her that he again planned to sell the flat and he would send her a notice meaning that she would need to leave on 10 November. Miss K told the Council that she did not want to go into sheltered or supported housing. The Council explained to her solicitor that it did not have any social housing in the area and it could not find any affordable private rented housing. The Council explained that it could not use the prevention fund or a further DHP as the current situation was unsustainable.
35. On 12 August, the Council made Miss K an offer of interim accommodation with a level access wet room. However, Miss K’s GP advised that she needs a bath due to her physical disabilities. The Council contacted adult social care to see if there was a way Miss K could access bathing facilities outside the home.
36. On 20 August, Miss K’s carer confirmed that Miss K would accept the DHP but that it would not meet the shortfall as her parents had been helping her but they did could not afford to do this. Miss K’s carer reminded the Council although it had offered the accommodation it was not yet clear whether it would be suitable as it had no bath and had been adapted for someone permanently in a wheelchair. Miss K’s carer was still waiting for details of when she could view the flat.
37. On 10 September, the Council confirmed it would consider increasing the DHP so it would cover the shortfall without Miss K’s parents having to contribute, ending in November 2020 when Miss K would have to leave the flat.
38. On 29 October, the Council confirmed that the new flat could be let to her on an assured tenancy so it could be a long-term solution, but the housing association would only do a physical viewing if she intended to sign for the property.
39. By this time, Miss K had become very ill and required emergency treatment. Miss K’s carer told the Council that the wet room was not suitable as Miss K needed a bath, and that also she had concerns about Miss K relocating while COVID-19 restrictions were in place as Miss K was vulnerable.
40. On 12 November 2020, Miss K’s landlord confirmed that he had applied to the court for possession of the flat. Miss K was readmitted to hospital. The Council determined her housing register application and put her in Band B. Miss K’s carer wrote to the Council querying this, given her complex needs and that her landlord had applied to court for possession. The Council did not respond to the carer about this.
41. The Council had attempted to refer to neighbouring authorities and contacted housing associations direct to find a local property for Miss K. The Council also told the carer that if Miss K moved to a different authority her care needs would be reassessed by that authority, and so her care package and funding might change. The Council again said that they could offer an interest free loan to help Miss K with a deposit and rent in advance if she found suitable private rented accommodation. But this would need to be affordable.
42. The Council asked Miss K to work with an Occupational Therapist to see whether the bathing facilities in the new flat could be adapted. It says Miss K declined to work with the Occupational Therapist on this. Miss K says she did not decline this. There is no evidence in the housing file to confirm Miss K declined to work with an OT. In any case, as the Council could not properly assess whether the flat would be suitable for Miss K, it has decided that it should not end its relief duty based on this.
43. The Council accepted that it owed Miss K a relief duty on 6 April 2021. This meant the Council had a duty over the subsequent 56 days to help Miss K secure suitable accommodation. The Council understands the landlord has started court proceedings for possession of the flat, although neither the landlord nor Miss K has given the Council proof of this.
44. The Council, at this time, has not accepted that it owes Miss K a main housing duty. It says that it is still considering whether Miss K is intentionally homeless because she took on her current flat knowing it is unaffordable.

Was there fault by the Council causing Miss K injustice?

45. Miss K is in a very difficult situation. She needs to move house and has complex needs that limit the type of property that might be suitable. In addition, Miss K is on a limited income. In turn, the efforts of both Miss K and the Council to establish whether the alternative flat was suitable, were limited by COVID-19 restrictions.
46. The DHP is discretionary and it is open to the Council to refuse Miss K’s application, provided that it gives her request due consideration in line with its policy. The Council has given its reasons for refusing the DHP and has also worked with Miss K to make payments that might allow her to stay in the property while she looks for a more affordable property. The Council has explained that Miss K took the flat knowing that she could not afford it, and that it had told her that the DHP was made on the basis that she should find more affordable accommodation and that it could not make DHPs on an ongoing basis. Miss K says the Council did not warn that the DHPs would not be paid indefinitely.
47. However, there is no fault in how the Council decided Miss K’s DHP application. It did so in line with its policy. In addition, it did make further payments to help Miss K meet her rent when she her landlord allowed her to stay in the property, and also offered her funding (from its prevention fund) for a deposit and rent in advance.
48. The Council’s correspondence with Miss K says that it enclosed her PHP with its letter accepting a prevention duty, in March 2020. I understand this is a live online document. Miss K says she did not receive that PHP. The Council’s prevention duty ended in March when the landlord decided he was not going to sell the property. This ended the PHP too. I have not investigated further whether Miss K had access to the PHP or not. This is because the impact of any failure to make the PHP available to her, is limited as the PHP ended in March 2020.
49. Miss K made a second homeless application to the Council in June 2020, because she could not afford the rent, and again the Council accepted a prevention duty and sent a draft PHP. There is no evidence that the Council took too long to send Miss K a PHP in relation to this application. It seems to me that when Miss K’s solicitor complained the Council had delayed here, they were not aware that there had been a PHP in March, or that the Council had formally ended the earlier prevention duty and the first PHP had ceased.
50. I can understand why Miss K would want to stay in her GP’s area: her condition is rare and her GP has a specialist interest in this. However, the Council properly considered whether it could look for accommodation outside of the area served by Miss K’s GP. Firstly, the Council continued to seek affordable accommodation inside the GP’s area. However, it also explored with the GP whether Miss K could access similar care elsewhere and took the GP’s advice on this. It was not fault when the Council suggested that Miss K looked for affordable accommodation elsewhere. The Council properly considered Miss K’s medical condition.
51. I have looked at whether the Council handled Miss K’s homeless application within the law and government guidance. There is no fault in how the Council assessed and accepted the prevention duty, both in March 2020, and later in June 2020, when the landlord told her he intended to sell the property and served notice on her.
52. However, the landlord confirmed that he was taking court action in November 2020. This meant that the Council should have considered whether Miss K at that point had become homeless and the Council had a relief duty. The Council had already explored Miss K remaining in the property and whether she could afford to do so. The Council did not accept the relief duty until April 2021,some four months later. This was fault by the Council. It should not have taken that long to move from the prevention to relief stage.
53. The Council clearly considered whether Miss K could afford to stay in the home. It had all the relevant information when it considered supporting her via a DHP or its homelessness prevention fund. The Council decided that it was not sustainable for her to stay in the property. I am not satisfied that the Council considered in good time, whether the fact that Miss K could clearly not afford to stay in her current property meant that it should have deemed her homeless. This means that again, the Council should have considered whether it owed Miss K a relief duty much sooner.
54. The Council correctly assessed Miss K’s housing priority when it initially placed her in Band B on its housing register. However, the Council should have reviewed this when it understood that Miss K’s landlord had started possession proceedings and when it decided that it could no longer fund the rent shortfall. The Council has confirmed that it is not likely that it would have moved her to Band A because it has not accepted that it owes Miss K a main housing duty. In any case, Miss K had the right to request a review of the Council’s decision to place her in Band B and we would expect her to have used that right. Her carer queried this with the Council. I cannot see that the Council responded. This lack of clear communication was also fault by the Council.
55. I have considered how the delay by the Council has impacted on Miss K and her opportunity to find somewhere suitable to live. The Council had offered Miss K housing association accommodation nearby and confirmed that this could be a long-term affordable solution for her. However, the Council was unable to establish whether the property met Miss K’s physical needs and so it did not consider that this ended its prevention or relief duties.
56. I accept that the Council has attempted to find Miss K suitable accommodation, but has been unable to do so. It is unlikely that Miss K would have been housed sooner, had the Council accepted the relief duty because it would still have been trying to establish whether the nearby flat could meet Miss K’s physical needs. It also had already explored supported living accommodation and moving to another area, both of which Miss K was reluctant to do. The Council has also confirmed that even if it had moved her to Band A then a property is unlikely to have become available in her local area.
57. However, the Council’s delay left Miss K with prolonged uncertainty over the Council’s responsibilities to her and her rights. If the Council had accepted the relief duty sooner, it would have decided whether it has a duty to house Miss K. The Council has not yet accepted this. But even if the Council decides that it does not have a duty to house her, Miss K needs to be certain of this in a timely manner, not least because she may want to appeal this unfavourable decision. In addition, as time goes on, the uncertainty becomes greater and if the Council does not have a duty to house Miss K, she needs to be clear on this as soon as possible so that she can make further efforts to find accommodation in the private sector.
58. Miss K says the Council’s shortcomings had a significant impact on her health she has described to me how the stress has impacted on her central nervous system causing her body and organ systems to decline. In turn, she became bedridden often and her brain function declined. Miss K has told me she had to pay nearly £600 for extra healing management and that her carer had to spend nearly two thirds of her time dealing with the poor communications by the Council.
59. I appreciate that Miss K’s housing situation is extremely stressful and her carer makes it clear that this is having a serious impact on her health. However, this is not primarily due to the fault by the Council that I have identified. The landlord selling the property, the scarcity of accessible property locally and that the housing association would not allow a physical viewing of the alternative accommodation, are all likely to have had a significant impact on Miss K’s situation.

Agreed action

60. The Council will within a month of the date of this decision show the Ombudsman it has:
• Apologised to Miss K
• Paid Miss K £300 in recognition of the uncertainty and distress its shortcomings have caused her.
• Reviewed Miss K’s housing register priority and if it finds it should have moved her to Band A sooner, the Council should backdate her priority to the date on which she would have been eligible to join Band A.
• Reviewed what went wrong here and how it can improve the service so that it can make timely decisions about its statutory homelessness duties.
• Shared this decision with relevant staff.
61. Within two months, the Council will show the Ombudsman it has updated staff training in line with its review.

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Final decision

62. I have completed my investigation. There was fault by the Council causing Miss K injustice.

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Parts of the complaint that I did not investigate

63. I have not investigated Miss K’s complaint about how the Council handled her personal data. This is because we normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
64. Miss K’s complaint about her data can be separated from her complaint about how the Council dealt with her housing situation and does not impact on that. For that reason, I would expect Miss K to go to the Information Commissioner with her complaint about how the Council handled her personal data.

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Investigator's decision on behalf of the Ombudsman