Summary: Mr B complains the Council has charged him a high rent for his social housing tenancy. He also complains it is a flexible tenancy for five years rather than a permanent secure tenancy, and the property is not suitable. He says the Council should not have declined his appeal on the grounds of it being late. The Ombudsman finds fault in how the Council considered whether to offer a secure or flexible tenancy. However, the Council has already remedied this issue. We do not find fault in how the Council considered its discretion to hear a late appeal Mr B made.

The complaint

1. The complainant, who I refer to as Mr B, complains the Council is charging him a far higher rent than other social housing tenants. He says the Council is charging him a market price rent, which means he must access full housing benefit. Mr B also says the Council has placed him on a flexible tenancy rather than permanent. He says it has given him a second floor flat without a lift, which is against the recommendation from the medical assessment. Mr B says the Council rejected his appeal when it was only a few days late. He says it was late because he needed to take advice from an advocacy group before appealing.

Back to top

The Ombudsman’s role and powers

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. 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)
4. 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)

Back to top

How I considered this complaint

5. I considered the information Mr B provided and spoke to him about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Mr B and the Council for their comments before making a final decision.

Back to top

What I found

Legislation, Guidance and Local Policies

6. If a council is satisfied someone is eligible, homeless, in priority need and unintentionally homeless it will owe them the main homelessness duty. Generally the 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).
7. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. When a council decides this duty has come to an end, it must notify the applicant in writing (Housing Act 1996, section 189B).
8. 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)).
9. Statutory guidance on the allocation of accommodation says:
• review procedures should be clear and fair with timescales for each stage of the process
• there should be a timescale for requesting a review - 21 days is suggested as reasonable;
10. The Council’s Local Tenancy Strategy says it will now normally offer five-year flexible tenancies. However, it will continue to offer fixed term flexible tenancies in certain circumstances. This includes where the person receives the middle or higher rate of Disability Living Allowance (“DLA”), the enhanced rate of Personal Independence Payment (“PIP”) or Employment Support Allowance (“ESA”).
11. The Regulator of Social Housing has issued guidance, which says local authorities may charge affordable rent of up 80% of the average private market value rent of that property.
12. The Council’s rent policy says it will charge an affordable rent, which is 65% of the average private sector market rent.

Background

13. In 2018 the Council housed Mr B in a private sector leasing accommodation. It placed him in Band 4 for the purposes of its housing allocations policy. The Council accepted the full homeless duty to secure suitable accommodation for Mr B.
14. Mr B receives the higher rate of DLA and also receives ESA.
15. In early 2020 the Council conducted a medical assessment for Mr B. The Council says it recommended a maximum second floor property or, if a higher floor, then one with a lift. Mr B says the medical assessment recommended a maximum first floor property, if higher, one with a lift.
16. In July 2020 the Council moved Mr B into Band 2 of its allocation scheme. Later that month the Council offered Mr B a three-bedroom flat on the second floor, without a lift. The rent of the flat was around £300 per week, which is approximately 65% of the market value. Mr B raised concerns with the Council about the level of rent. He said it was extremely high and that other people living in the same building were paying far less.
17. In August 2020 Mr B took advice from an advocacy group. The group made an appeal on his behalf about the level of rent. It also raised concerns about him being offered a flexible tenancy rather than a secure tenancy. The Council declined to hear Mr B’s appeal as it was 10 days outside the statutory 21-day limit to make an appeal. It said it would not exercise discretion to hear the appeal as the information provided would not alter its decision.
18. In February 2021 Mr B’s MP made an enquiry to the Council about the level of rent being charged. The Council responded that the rent was in line with its affordable rent policy and Mr B had access to full housing benefit that would cover the rent.
19. The Council says that, since the Ombudsman’s enquiry in August 2021, it is has reviewed the information it has for Mr B and found he was eligible for a secure rather than flexible tenancy as he receives the higher DLA component and ESA. It had this information prior to his offer of a flexible tenancy. The Council has written to Mr B to apologise for the mistake and offer a secure tenancy. The Council says Mr B has now signed the secure tenancy.

Findings

20. The Council has accepted fault in how it considered which type of tenancy to offer Mr B. It has now apologised and offered him a secure tenancy rather than a flexible one. It has therefore already remedied the fault, so I will not make any further recommendations.
21. I can see Mr B and the Council have given different versions of what the medical assessment found. Mr B says the Council should not have offered him a second-floor property without a lift whereas the Council says this is within the parameters of the medical assessment. I do not have sight of the medical assessment so cannot say for certain which is correct. I have not investigated this further as Mr B has a right of appeal about the suitability of the property. He could have raised this issue as part of the appeal but did not. Even so, it is open to Mr B to raise any concerns he has about the information the Council holds on his medical needs. If he considers the Council’s information is incorrect, he could ask the Council to review this, or request a late appeal setting out any extenuating reasons, such as the Council relying on wrong information. Alternatively, Mr B could request a new medical assessment if he considers the one already provided does adequately address his needs.
22. I do not find fault with the Council’s decision not to exercise discretion to hear Mr B’s appeal. The Council sets a 21 day limit to make an appeal and it is at the Council’s discretion whether it will consider an appeal that is submitted later than this deadline. Mr B made his appeal later than the deadline. I understand this was only by 10 days but I cannot question the merits of the Council’s decision not to allow a late appeal.
23. I cannot see that Mr B set out any extenuating reasons for making a late appeal. I understand Mr B wanted to take advice from an advocacy agency but these reasons are not set out in the appeal itself, so the deciding officer would not have considered this.
24. I also note that, if I were to recommend the Council consider Mr B’s appeal, it is unlikely to change the outcome. He appealed based on the rent being too high. However, affordable rents can be set at up to 80% of the average private market value. The Council has followed its own policy in this case to set the rent at 65% of the market value. Therefore, the rent the Council has charged is in line with its procedures. Mr B is also receiving housing benefit to cover his full rent. I understand Mr B has concerns about being reliant on housing benefit. However, his rent is covered by this so, even if I were to find fault it is unlikely I could find this caused a significant injustice.

Back to top

Final decision

25. The Council is at fault in how it considered whether to offer a secure or flexible tenancy. The Council has already remedied this issue, so I have not made any further recommendations. I do not find fault in how the Council considered its discretion to hear a late appeal Mr B made.

Back to top

Investigator's decision on behalf of the Ombudsman