Summary: the Council was not at fault when it advertised a Housing Association property on its choice-based lettings scheme, nominated Mr X for the property and ended the main housing duty when he accepted the offer of the tenancy.

The complaint

1. The complainant, who I shall refer to as Mr X, complained that the Council:
• did not include information about service charges when it advertised a Housing Association property on the Croydon Choice website. Mr X bid for this property and it was allocated to him.
• did not properly consider whether this property was suitable, in terms of affordability and his medical needs, before ending the main housing duty which he was owed as a homeless person;
• wrongly stated in its final reply to his complaint that he is adequately housed in his current accommodation.
2. Several months after his tenancy started, Mr X received the first bill for heating and hot water charges. He receives long-term disability benefits and cannot afford to pay the unreasonably high service charges. He also says the lifts in the block break down frequently which makes it difficult for him to access his flat on the sixth floor.

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What I have investigated

3. I have investigated the Council’s actions in April 2019 when it owed Mr X the main housing duty and nominated him for an allocation of a Housing Association property.
4. I cannot investigate the Housing Association’s actions in its role as Mr X’s landlord. We have no jurisdiction to investigate these matters for the reasons given in paragraph 49.

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The Ombudsman’s role and powers

5. 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)
6. 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

7. I have spoken to Mr X and considered all the evidence he sent me. I made enquiries to the Council, considered the evidence it sent me, and the relevant sections in its published housing allocations scheme.
8. Mr 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

The background to this complaint

9. We are not investigating what happened before April 2019. But I have included a brief summary of Mr X’s circumstances to explain the background to this complaint.
10. Mr X is a single man who has medical conditions which limit his mobility.
11. The Council’s medical adviser last assessed Mr X’s medical needs in January 2014. He recommended then that Mr X should not be offered a property above the second floor unless there was a lift.
12. In June 2016 the Council accepted it owed Mr X the main housing duty because he was homeless, eligible for assistance, in priority need and unintentionally homeless. The Council had arranged temporary accommodation for Mr X in a hostel.
13. In early April 2019 Mr X made bids on Croydon Choice (a choice-based lettings scheme) for three flats in the same block. This investigation is about what happened then.

The relevant law and the Croydon Choice scheme

14. Every local housing authority must publish a housing allocations scheme which explains how it prioritises applicants, and its procedures for allocating housing.  All allocations must be made in strict accordance with the published scheme. 
15. The Council is responsible for administering a choice-based lettings scheme called Croydon Choice. Available Council and Housing Association properties are advertised on the Croydon Choice website.
16. Applicants on the Council’s Housing Register can express an interest by bidding for up to three properties in each bidding cycle. At the end of the bidding period, the Council ranks the bids in order of applicants’ priority. The Council’s housing allocations scheme says applicants should not bid for homes they would be unlikely to accept if they were offered.
17. For Housing Association properties, the Council draws up a shortlist of applicants after bidding has closed and sends it to the Housing Association. The Housing Association then arranges for the shortlisted applicants to view the property, carries out pre-tenancy checks and signing of the tenancy agreement.
18. The Council’s housing allocations scheme says that, where possible, the property advert on Croydon Choice will include the following information:
• a photograph of the property or the block;
• details of the landlord;
• the rent;
• the type of property and floor level;
• the number of bedrooms;
• the location;
• the size of household that can apply;
• details of any special facilities for households with medical or other needs and whether they will be given preference.

What happened

19. In April 2019 Mr X bid for three one bedroom flats in the same block. A Housing Association, which is a partner in the Croydon Choice scheme, leased and managed several flats in the building.
20. Mr X said the Croydon Choice advert included an approximate weekly rent but did not mention any service charges. On the basis of this information, he bid for all three flats.
21. The Council says the Housing Association uploaded the adverts for these flats directly to the Croydon Choice website. So the Council did not check the adverts.
22. The Council sent me the advert for the flat that was later allocated to Mr X. It says the flat is on the sixth floor of the block with a lift. The weekly rent was £150.03 and the service charge was £25.44.
23. When the bidding cycle closed, the Council drew up the shortlist. It put Mr X in first position for his first preference flat. The Council sent the shortlist to a Lettings Officer at the Housing Association. The Housing Association then arranged for Mr X to view the property and made arrangements to sign him up for the tenancy.
24. The Council says the Housing Association completed a financial assessment with Mr X to check he could afford the rent before it offered him the tenancy. Mr X disputes this.
25. On 20 May the Housing Association sent Mr X a draft version of the tenancy agreement. It said the weekly rent was £180.57 including service charges.
26. Two days later Mr X attended the Housing Association office to sign the tenancy agreement. It said the weekly charge was £180.08 including a service charge of £24.95 for management costs. A Schedule had been added to the agreement which was not in the draft version. Mr X says he was told signing the agreement was a formality. He says he was not given time to read the document again and the Housing Association officer did not draw his attention to the new Schedule.
27. The new Schedule set out the tenant’s liability to pay a charge for a communal system which supplies heating and hot water to all the flats in the block. It said that by signing the agreement the tenant accepted liability to pay these charges. The building owner had a contract with an energy supply company and the tenant could not opt out of this agreement or choose a different supplier. Each flat has a meter to record individual consumption. The Schedule did not indicate the likely charge.
28. Mr X’s tenancy started in late May 2019. He says he did not receive the first bill for heating and hot water charges until February 2020. It was only then that he realised the charges were higher than he could afford. Mr X says if information about his liability for heating and hot water charges for a communal system had been included in the property advert that would have influenced his decision about whether to bid for the flat. He says these charges make the property unsuitable and unaffordable for him because he is on a low income.

My analysis

29. The Council’s housing allocations scheme says property adverts should include, among other things, details of the rent. In this case the advert stated the weekly rent and the £25.44 weekly service charge for management. I do not consider it was misleading or incorrect because it included the required information.
30. When Mr X received the draft tenancy agreement on 20 May, it included details of the weekly rent and service charge. It said the total weekly charge was £180.57. Mr X was willing to accept the offer and sign up for the tenancy based on these charges.
31. Mr X’s concern is that the Housing Association inserted a new Schedule in the tenancy agreement he signed two days later which made him liable to pay heating and hot water charges. Mr X did not notice the new Schedule when he signed the agreement. It was not until he received the first demand for payment in 2020 that he became aware of this liability. He says information about the tenant’s liability for heating and hot water charges should have been included in the property advert on Croydon Choice in April 2019.
32. I do not consider the failure to mention the tenant’s liability for heating and hot water charges in the Croydon Choice advert was fault. It was not a fixed service charge but varied according to each household’s individual consumption. So it would not have been possible to indicate the amount. The purpose of the property advert is to provide essential information about a property to enable an applicant to decide whether to bid for it. It does not contain full details of the terms and conditions in the tenancy agreement. For these reasons, I do not find the advert was misleading or omitted essential information.
33. I cannot investigate the Housing Association’s actions when it inserted the Schedule in the tenancy agreement for the reasons given in paragraph 48 and 49 below.

Suitability and ending the main housing duty

What should happen

34. If a council is satisfied someone is eligible, homeless, in priority need and unintentionally homeless it owes them the main housing duty. Generally, a council carries out the duty by arranging temporary accommodation until it makes a suitable offer of social housing or private rented accommodation. (Housing Act 1996, section 193)
35. The main housing duty can only end when the applicant either:

• is no longer eligible for assistance; or

• accepts an offer of a tenancy made under Part 6 (an offer made under the housing allocations scheme); or

• accepts an offer of an assured tenancy from a private landlord; or

• refuses a final offer of suitable Part 6 accommodation (having been informed of the possible consequences of refusal and the right to a review about suitability); or

• refuses an offer of suitable Part 7 temporary accommodation (having been informed of the possible consequences of refusal and review rights); or

• becomes intentionally homeless from the accommodation secured by the authority; or

• voluntarily ceases to occupy the accommodation secured by the authority; or

• accepts or refuses a private rented sector offer.

The Council’s view

36. The Council says Mr X chose to bid for the three flats in the block so it did not have to carry out a suitability assessment. It says he was entitled to express a preference by bidding for properties on Croydon Choice which he considered met his needs.
37. It says the Housing Association completed an affordability assessment before it signed Mr X up for the tenancy.  Mr X says this did not happen.

My analysis

38. The main housing duty ended when Mr X accepted the offer of the Housing Association tenancy on 22 April 2019. He bid for this property on Croydon Choice. It was not a final offer of accommodation made by the Council, so it had no duty to ensure the accommodation was suitable for his needs. The duty automatically ended when he accepted the tenancy. For this reason, I find no fault by the Council.
39. Mr X viewed the property before he accepted the tenancy and he knew the flat was on the sixth floor of the block. He says he bid for this property because it was on the lowest floor of all the properties advertised in the block. There were lifts in the block and a property on the sixth floor met his assessed medical needs. Mr X only decided it was unsuitable after his tenancy began when the lifts broke down and when he later received the first demand for heating and hot water charges.

The Council’s statement that Mr X is adequately housed

40. Mr X says his circumstances have changed since he moved into the flat. He has a degenerative condition which has worsened. He says he stopped using the landlord’s heating and hot water because he cannot afford the charges and this has made his condition worse. He says all three lifts are sometimes out of service at the same time.
41. A senior officer sent the Council’s final response to Mr X’s complaint in early June 2020. He noted Mr X wanted to be put back on the Housing Register with an award of medical priority.
42. The senior officer told Mr X he had the same right as any other eligible resident in the borough to apply to join the Housing Register. He explained that medical priority is not usually awarded purely because someone has a severe medical condition. It is awarded when the applicant’s current accommodation has some adverse impact on the medical condition. He expressed his view that, based on an initial assessment, Mr X was adequately housed in the flat. There were three lifts serving the sixth floor and, even if one went out of service, he could still access his flat.
43. Mr X has not applied to rejoin the Housing Register. He says he sees no point in doing so when the Council has already indicated the likely outcome. He strongly disagrees with the Council’s view that he is adequately housed.

My analysis

44. The Council closed Mr X’s previous Housing Register application when he accepted the tenancy of his current flat in 2019.
45. Mr X disagrees with the Council’s preliminary assessment that it would be likely to decide he is adequately housed if he made a new Housing Register application. He thinks the Council has pre-judged the outcome so there is no point in making an application.
46. However, Mr X said his circumstances have changed significantly since April 2019. So the Council has not yet had an opportunity to consider a new application and assess any new evidence he may submit about his medical and housing needs. The appropriate way forward is for Mr X to make a new online application. The Council can then assess his needs, notify him in writing of its decision and, if it makes an adverse decision, inform of his right to request a review.

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Final decision

47. I have completed the investigation and found no fault by the Council.

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Parts of the complaint that I did not investigate

48. Mr X also complained that the Housing Association mis-sold the tenancy agreement to him. He wants to be compensated for heating and hot water charges levied since he became a tenant and reimbursed for periods when the heating and hot water system and lifts broke down. He says he also received excessive demands for other service charges.
49. All these matters are about the Housing Association’s actions as his landlord. The Housing Association is registered as a member landlord with the Housing Ombudsman Service (HOS). Mr X could have complained to HOS if he was not satisfied with the Housing Association’s actions and its final response to his complaint.

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Investigator's decision on behalf of the Ombudsman