Summary: Mr X complained about the way the Council dealt with his mother, Mrs Y’s homelessness and housing applications. The failings in the way the Council dealt with Mrs Y’s homelessness and housing applications amount to fault. This fault has caused Mrs Y and Mr X an injustice.

The complaint

1. The complainant, whom I shall refer to as Mr X complains about the way the Council has dealt with his mother, Mrs Y’s homelessness and housing applications. In particular he complains the Council:
1. repeatedly refused to accept a homelessness application in 2017/2018;
2. failed to properly assess Mrs Y’s housing needs in relation to her medical conditions and disability and awarded inadequate priority banding;
3. failed to offer Mrs Y suitable accommodation despite her being on the Housing Register for a significant period. Mr X states the Council only offered properties it knew to be unsuitable and unreasonably required Mrs Y to view them.
4. refused to grant Mrs Y tenancies for properties she on which she had accepted offers.
2. Mr X also complains the Council has discriminated against and treated Mrs Y unfairly due to her race, age and disability.

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What I have investigated

3. Although Mr X complains about failings in the Council’s service since Mrs Y presented as homeless in 2017, I have only investigated events since January 2019. We expect people to raise complaints with us within 12 months of them becoming aware of the problem. Mr X initially contacted the Ombudsman in January 2020. Although we did not investigate his complaint at that time, we will now consider the events in the 12 months prior to this initial contact.

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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. 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)
6. If we are satisfied with an organisation’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. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• considered the comments and documents the Council provided;
• discussed the issues with Mr X;
• Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Homelessness

8. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance of Local Authorities (the Code) set the councils’ powers and duties to people who are homeless or threatened with homelessness.
9. An applicant must be treated as homeless, regardless of the availability and legal rights to occupy accommodation, if it is not reasonable for them to continue to occupy the accommodation. (Housing Act 1996, section 175(3))
10. 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 them. I will refer to this as the main housing duty. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)
11. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of his or her household. This duty applies to interim accommodation and accommodation provided under the main homelessness duty. (Housing Act 1996, section 206 and (from 3 April 2018) Homelessness Code of Guidance 17.2)
12. Homeless applicants can request a review of the suitability of accommodation whether or not they have accepted the offer. Applicants may request a review within 21 days of being notified of the suitability of accommodation offered to the applicant after a homelessness duty has been accepted (and the suitability of accommodation offered under section 200(3) and section 193).
13. Every local housing authority must publish an allocation 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))

The Council’s Housing Allocation Scheme

14. The Council’s allocation scheme gives a ‘reasonable preference’ to people with high levels of assessed housing need. This includes homeless people and people who need to move on medical or welfare grounds. It also gives ‘additional preference’ to those applicants who make a community contribution.
15. The scheme uses a housing banding system to determine applicants priority for housing. There are four priority bands. Band 1 is the highest priority band while Band 4 is the lowest band. Priority within the bands is determined by date order based on when the applicant was placed within the band.
16. Applicants do not bid for properties. Instead the Council maintains a list of all properties available from the Council’s stock, housing associations, and the private rental sector, and matches them to applicants. In doing so it takes account of applicants’ preferences, the suitability of accommodation available and the supply of accommodation available.
17. If an applicant is unhappy with the Council’s decision under its allocation policy, they can request a formal review of the decision within 21 days. The Council will seek any further information it requires including advice from medical and other specialist advisors. The Council will notify the applicant of the outcome of the review including reasons for their decision within 56 days.

Background

18. Mrs Y lives with Mr X in his one bedroom flat. She has a number of medical conditions including mobility issues and is bed bound. Mrs Y is unable to leave Mr X’s first floor flat, which does not have a lift, unaided.
19. The Council accepted a homelessness duty to Mrs Y in February 2018 and awarded her Band 3 priority on the housing register, backdated to October 2017. At this stage the Council determined it should only offer Mrs Y sheltered housing. In April 2018 the Council’s medical advisors suggested sheltered accommodation would probably be inadequate for Mrs Y’s needs. They recommended ground floor or lifted accommodation with a level access shower.
20. The Council offered Mrs Y a number of properties in 2018 but these offers were withdrawn as the properties were unsuitable.

Events since January 2019

21. Mr X’s solicitors requested a review of Mrs Y’s banding on the housing register and provided further medical evidence in January 2019. The Council sought further advice from its medical advisors regarding suitable properties. Mr X had asserted a ground floor property where he could continue to support Mrs Y was necessary.
22. The medical advisors noted Mrs Y had high care needs and a live in carer was necessary. But this care could be provided via a care service and did not necessarily need to be provided by Mr X. The medical advisors also confirmed they did not consider a ground floor property was a necessity based on Mrs Y’s mental health needs. The Council confirmed Mrs Y would remain Band 3 priority.
23. Mr X challenged this decision and asked for it to be reviewed. He questioned whether the Council had provided the medical advisor with full details of Mrs Y’s medical condition and how a decision could be made by someone who had not met or examined Mrs Y
24. Mr X also contacted the Council in March 2019 for an update on Mrs Y’s homelessness application. He noted it was now a year and six months since the Council accepted a homeless duty and asked when Mrs Y would receive an offer of suitable accommodation.
25. In late April 2019 the Council nominated Mrs Y for Property 1. It advised that a housing association would contact Mrs X to arrange a viewing and that more than one applicant may be invited to view the property. The Council’s letter also informed Mrs Y that this was a final offer of accommodation for the purposes of the Housing Act 1996. It stated that if Mrs Y refused a suitable offer of accommodation the Council would end its homeless duty towards her. The Council subsequently withdrew this offer as Property 1 was unsuitable as it was sheltered accommodation.
26. In July 2019 Mr X requested a further review of Mrs Y’s banding on the housing register. The Council acknowledged this request and confirmed it would respond by mid-September 2019. There is no record of the outcome of this review.
27. Mr X contacted the Council again in August 2019 for an update on Mrs Y’s homeless application. He noted that he had spoken with a Council officer who had told him the Council’s system still recorded Mrs Y was to be offered sheltered accommodation. He asked for the system to be updated as sheltered accommodation was not suitable and for a time estimate for an offer of accommodation.
28. In mid-September 2019 the Council nominated Mrs Y for Property 2. It again advised that the housing association would contact Mrs X to arrange a viewing and that more than one applicant may be invited to view the property. It also again confirmed this was a final offer of accommodation for the purposes of the Housing Act 1996 and the consequences of rejecting it.
29. Mr X advised the Council Mrs Y had accepted the offer of accommodation at Property 2, but the housing association had refused to let the property to her. Mrs Y is not a UK national and her leave to remain had recently expired. She had however applied to extend her leave to remain, and Mr X asserted the housing association was wrong to refuse to let Property 2 to Mrs Y.
30. Mr X made a formal complaint about the refusal to offer Mrs Y a tenancy at Property 2. In its response the Council confirmed an officer had discussed the matter with the housing association who had confirmed they would not issue a tenancy agreement to Mrs Y as her leave to remain in the country had expired. Property 2 was owned by the housing association rather than the Council. The housing association had applied its own policies regarding the documentation required to sign up new tenants.
31. The Council confirmed it had withdrawn the offer for Property 2 and this would not be counted as a rejected offer. The Council nominated Mrs Y for Property 3 in November 2019. This letter again advised Mrs Y she may not be the only applicant invited to view the property and that it was a final offer of accommodation. Mrs Y accepted this offer, and her solicitors requested a review of the suitability based on the property’s location. The Council withdrew this offer as Property 3 was a “sensitive let” and should not have been offered to Mrs Y.
32. In January 2020 the Council nominated Mrs Y for Property 4. Mr X complains that the housing association and Council insisted Mrs Y viewed the property in person. This was problematic given Mrs Y’s limited mobility and difficulty in leaving Mr Y’s property. Mr X and some friends were able to assist Mrs Y in visiting Property 4, but she was unable to enter the building as there was no wheelchair access.
33. Mrs Y accepted Property 4, and her solicitors requested a review of the suitability. The Council considered the property was suitable for Mrs Y’s needs based on its medical advisors’ recommendation. The Council asked Mr X’s solicitors to provide up to date medical evidence regarding Mrs Y’s wheelchair use. The solicitors referred to the information it had already provided and also provided additional information. They asserted Mrs Y required ground floor accommodation due to her phobic disorders as evidenced by medical reports.
34. In April 2020 the Council requested further advice from its medical advisors regarding Mrs Y’s housing needs and whether she would qualify for ground floor only accommodation. The Council confirmed in May 2020 that it would not award any additional priority based on medical grounds. Its medical advisors had advised that Mrs Y’s housing needs remained for ground floor or lifted properties which were wheelchair accessible.
35. Mr X’s solicitors requested a review of this decision and maintained Mrs Y required a ground floor property on medical grounds and should have been awarded Band 2 priority. The Council reviewed Mrs Y’s priority and confirmed in August 2020 it had awarded Band 2 priority and backdated this to October 2017. It also accepted Mrs X required ground floor accommodation.
36. Mr X contacted the Council again in October and November 2020 as Mrs Y had not received any offers of accommodation. He asked the Council to confirm when Mrs Y would receive a suitable offer. He was concerned Mrs Y had been in unsuitable accommodation since October 2017 when the Council’s allocation scheme suggested waiting times of 11 to 15 months for applicants in Band 2.
37. The Council advised the waiting times were averages and it was unable to provide a definitive timescale as the waiting time was dependent on several factors. It confirmed it would notify Mrs Y when she was shortlisted for suitable accommodation. The Council advised Mr X that Mrs Y could complete a temporary accommodation booking form if she wanted to be considered for temporary accommodation.
38. In early December 2020 the Council made Mrs Y a final offer of accommodation at Property 5. The letter explained this was a final offer as the Council was satisfied the accommodation was suitable and it was reasonable for Mrs Y to accept. It informed Mrs Y if she refused the offer the Council would end its homeless duty to her. The letter also advised that more than one applicant may attend the viewing. Mrs Y accepted the offer, but the Council advised the property had been let to another applicant with higher priority.
39. Mr X made a further formal complaint to the Council in January 2021. He complained the Council had:
• failed to explain why Mrs Y had been waiting for suitable accommodation since October 2017.
• repeatedly refused to accept Mrs Y’s homelessness applications.
• had failed to properly assess Mrs Y’s needs based on medical grounds despite all the supporting evidence submitted to it.
• deliberately made unreasonable and unsuitable offers of accommodation and refused Ms X two properties she accepted.
• discriminated against Mrs Y because of her race.
40. He asked the Council to provide Mrs Y with suitable accommodation as a matter of urgency
41. In its response the Council noted it had accepted a homeless duty and awarded Band 2 priority on the housing register for a one-bedroom ground floor or lift accessible property. It reiterated the published waiting times were an average and not a guaranteed timeframe. It stated there were over 100 households in Band 2 with an earlier priority date than Mrs Y. Mrs Y’s need for a ground floor or lift accessible property and her preference for a specific borough limited the properties available to her and would increase her waiting times to be rehoused.
42. The Council noted Mr X’s allegation of racial discrimination but stated he had not given any context to demonstrate the allegation. It said it could not find any evidence to show Mrs X was treated unfairly due to her race.
43. Mr X was not satisfied by the Council’s response and has asked the Ombudsman to investigate his complaint.
44. The Council nominated Mrs Y for two further properties in the summer of 2021, both of which were withdrawn as they did not meet Mrs Y’s needs and were not wheelchair accessible.
45. The Council made Mrs Y a final offer in January 2022, but this offer was withdrawn as it was sheltered accommodation which was unsuitable. It made a further offer of accommodation in February 2022 which Mrs Y has accepted. This was a newly built property and has only recently been completed. Mrs Y signed the tenancy agreement in late July 2022.
46. In response to our enquiries the Council states waiting times for accommodation are affected by the high demand and insufficient properties to meet that demand. In addition, there are fewer properties available to meet Mrs Y’s specific needs and waiting times are longer. It states that at no point is race or ethnicity considered in the shortlisting process.
47. It states it has actively considered Mrs Y for re-housing opportunities and between February 2018 and January 2022 it has shortlisted her for 12 different properties. The Council states on each occasion it considered the offers were suitable, taking into account the information available regarding Mrs Y’s needs and the property information.

Analysis

48. There have been failings in the way the Council has dealt with Mrs Y homeless and housing applications which amount to fault.
49. The Council accepted a homeless duty to Mrs X in February 2018. This duty requires the Council to secure suitable accommodation is available for Mrs Y. It has failed to do so. Mrs Y has been living in unsuitable accommodation at Mr X’s property for the entire time the Council has owed her this homeless duty.
50. There have been a number of reviews of Mrs Y’s housing needs and changes to the types of properties that would be suitable since 2018. But there is no evidence that a first floor flat that does not have a lift has at any time been considered suitable accommodation for Mrs Y. The failure to provide Mrs Y with suitable accommodation is fault.
51. I recognise Mrs Y has recently signed a tenancy agreement and will soon be able to move to more suitable accommodation.
52. Mr X complains about the way the Council assessed Mrs Y's housing needs and how it awarded priority banding. He is concerned that repeatedly having to request reviews of the Council’s decisions has added unnecessary delays to the process and disadvantaged Mrs Y. I note the when the Council increased Mrs Y’s priority to Band 2 in August 2020, it back dated this priority to October 2017.
53. However the Council’s allocation policy states that if an applicant’s circumstances change and their banding changes upward (for example Band 3 to Band 2) the new priority date will be the date on which their banding priority changed. The decision to backdate Mrs Y’s increased priority suggest the Council accepted Mrs Y should have had this higher level of priority throughout.
54. Mrs Y’s circumstances had not changed between October 2017 and August 2020 so arguably she met the criteria and should have been awarded Band 2 priority in October 2017. I consider the failure to properly consider Mrs Y’s priority banding from the outset is fault.
55. The Council has repeatedly sought advice and guidance from it medical advisors regarding Mrs Y’s housing needs and the type of accommodation that would be suitable. The actual decision regarding Mrs Y’s needs and priority banding is a matter for the Council, but it is appropriate that it obtain any necessary professional guidance to assist in making this decision.
56. However, having obtained this guidance and made a decision we would expect the Council to have regard to this when nominating Mrs Y for properties or making her an offer. The Council’s records show it determined in April 2018 that sheltered accommodation was not suitable for Mrs Y, yet it nominated Mrs Y for Property 1 in January 2019 and offered Mrs Y a property in January 2022, both of which were sheltered accommodation.
57. Further, having accepted that Mrs Y needed a wheelchair accessible property the Council offered Mrs Y two properties in the summer of 2021 which were not accessible or suitable for her wheelchair. The Council has highlighted that all properties offered after June 2002 were located on the ground floor, but that does not in itself mean they were wheelchair accessible.
58. Following the most recent review in July 2020 the Council awarded Mrs Y Band 2 priority and confirmed she would be offered ground floor accommodation, not lifted properties. Yet the Council’s response to Mr X’s complaint in February 2021 refers to her Band 2 priority on the housing register for a one-bedroom ground floor or lift accessible property. The Council has since acknowledged this was an error and should have referred to only ground floor properties.
59. There appears to be a lack of clarity or accuracy in the Council’s record keeping which amounts to fault and has resulted in Mrs Y being nominated for or offered unsuitable properties. It is also concerning that the Council has known throughout that Mrs Y is bedbound and cannot leave Mr X’s property unaided yet has required her to view unsuitable properties or be considered to have rejected them.
60. I also consider there to be a lack of clarity in the Council’s letters to Mrs Y nominating her for or offering her a property. The letters all states this is a final offer intended to discharge the Council’s homelessness duty to Mrs Y and advise on the consequences of rejecting the offer. However the letters also advise Mrs Y that there may be other people viewing the properties. This suggests these were not final offers but rather that Mrs Y has been shortlisted for the properties along with other applicants and may not in fact be offered a tenancy.
61. Indeed this is what happened in relation to properties 2 and 4 and 5. These properties were offered to Mrs Y as a final offer for the purposes of the Housing Act 1996, and she accepted them but they were then let to other applicants. This lack of transparency regarding the nature of the nomination/ offer is fault and has caused unnecessary confusion and anxiety for Mrs Y and Mr X.
62. Mr X is particularly concerned about the decision not to offer a tenancy on Property 2 based on Mrs Y's immigration status. The Council had nominated Mrs Y to be considered for this property but was not involved in the decision on who should be accepted for a tenancy. The housing authority made this decision.
63. While I have identified failings in the way the Council has dealt with both Mrs Y’s homeless application and her housing application, there is no evidence these failings were due to any form of discrimination on the Council’s part.
64. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
65. Where a complainant has been deprived of suitable accommodation during what would inevitably have been a stressful period in life we may recommend the Council makes a symbolic payment to acknowledge their distress, hardship and inconvenience. We usually recommend a payment of between £150 and £300 per month, but may recommend a higher monthly amount where the injustice is exceptional or particularly severe.
66. In determining an appropriate level we will take account of factors such as:
• The size of the accommodation – are there enough rooms for the household?;
• Are toileting and bathing facilities private or shared;
• The age of the household members; and
• Any disabilities or vulnerabilities of the household members
67. In this instance a payment at the top end of the range to be appropriate given Mrs Y’s age, vulnerabilities and disabilities.

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Agreed action

68. The Council has agreed to:
• apologise to Mrs Y and Mr X for the failings in the way it dealt with Mrs Y’s homelessness and housing applications;
• pay Mrs Y £16,200 in recognition of the distress and hardship she experienced while in unsuitable accommodation between February 2018 and July 2022.;
• pay Mr X £250 in recognition of his distress and time and trouble in pursuing this matter.
• review the way in which it notifies applicants of nominations for, and offers of, accommodation. The Council’s correspondence with applicants should clearly identify where there the applicant is being made a direct offer, and the consequences of this, and alternatively, where they have been shortlisted, with other applicants and may not ultimately be offered the property.
69. The Council should take this action within one month of the final decision on this complaint.

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Final decision

70. The failings in the way the Council dealt with Mrs Y’s homelessness and housing applications amount to fault. This fault has caused Mrs Y and Mr X an injustice.

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Parts of the complaint that I did not investigate

71. I have not investigate Mr X’s complaint that the Council repeatedly refused to accept a homelessness application in 2017. The events complained of occurred significantly more than 12 months ago and were also more than 12 months before Mr X’s initial complaint to us in January 2020. It was open to Mr X to raise these concerns with us much sooner and I do not consider it appropriate to exercise discretion to investigate them now. I am also mindful of the fact that when the Council did accept a homeless duty in February 2018, it backdated this to October 2017. I do not consider we would achieve anything more if we were to investigate.

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Investigator's decision on behalf of the Ombudsman