Bromsgrove District Council (21 002 575)

Category : Housing > Allocations

Decision : Upheld

Decision date : 03 Feb 2022

The Ombudsman's final decision:

Summary: Ms X complains about how the Council dealt with her homelessness application and housing situation. We found fault as Ms X received incorrect information along with poor communication and delays at the start of the homelessness process. We have recommended a suitable remedy in this case so have completed our investigation.

The complaint

  1. I have called the complainant Ms X. She complains there were failings in the way the Council dealt with her homelessness application and housing situation causing her and her family extreme distress.
  2. Ms X also complains about the suitability of the property she was offered by the Council.

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What I have investigated

  1. I have investigated Ms X’s concerns about the way the Council dealt with her homelessness application and housing situation. The final part of this statement explains why I have not considered Ms X’s concerns about the suitability of the property offered by the Council.

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The Ombudsman’s role and powers

  1. 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)
  2. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
  3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), 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)

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How I considered this complaint

  1. I have read the papers submitted by Ms X and spoken to her about the complaint. I considered the Council’s comment on the complaint and the supporting documents it provided.
  2. Ms 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

Legislation and statutory guidance

  1. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities (the Code) set out councils’ powers and duties to people who are homeless or threatened with homelessness.
  2. Councils can suggest alternative solutions in cases of potential homelessness where these would be suitable and acceptable to the applicant. However, councils must not do this to avoid their legal duties, especially the duty to make inquiries into the applicant’s homelessness. The Ombudsman has criticised councils for ‘gatekeeping’ practices, for example, failing to take a homelessness application at the earliest opportunity. (Homelessness Code of Guidance for Local Authorities, paragraphs 2.3 and 6.4)
  3. Someone is threatened with homelessness if, when asking for assistance from the Council on or after 3 April 2018:
  • 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))
  1. If a council has ‘reason to believe’ someone may be homeless or threatened with homelessness, it must take a homelessness application and make inquiries. The threshold for taking an application is low. The person does not have to complete a specific form or approach a particular council department. (Housing Act 1996, section 184 and Homelessness Code of Guidance paragraphs 6.2 and 18.5) 
  2. 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. (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.18)
  3. 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. This is called the prevention duty. In deciding what steps they are to take, councils must have regard to their assessments of the applicants’ cases. (Housing Act 1996, section 195)
  4. If councils are satisfied applicants are homeless and eligible for assistance, they must take reasonable steps to secure accommodation. This is called the relief duty. When a council decides this duty has come to an end, it must notify the applicant in writing. (Housing Act 1996, section 189B)
  5. A council must secure interim accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need. (Housing Act 1996, section 188)
  6. 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)
  7. If, at the end of the relief duty, 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. This is called the main duty. (Housing Act 1996, section 193)
  8. After completing inquiries, the council must give the applicant a decision in writing. If it is an adverse decision, the letter must fully explain the reasons. All letters must include information about the right to request a review and the timescale for doing so. (Housing Act 1996, section 184, Homelessness Code of Guidance 18.32 and 18.33)

The Councils housing management and homelessness functions

  1. The Council’s housing management and homelessness function are provided by a housing trust (trust) on its behalf. The Council has also been involved in taking action in this case. So, for ease of understanding I have explained in this statement the actions taken by the trust and those taken by the Council. But ultimately the actions taken by the trust for housing management and homelessness in Ms X’s case are those of the Council.

Events leading to the complaint

  1. This section sets out the key events in this case and is not intended to be a detailed chronology.
  2. Ms X lives in a 2 bedroomed house with her young twin daughters, Y and Z. Y has cerebral palsy and other medical conditions. Ms X is buying the property under a shared ownership scheme.
  3. In January 2020 Ms X arranged a housing options appointment with the trust to discuss her housing situation. Ms X explained Y needed sleeping accommodation on the ground floor as she was severely physically disabled, and Ms X could not lift her for much longer. So, her current housing was unsuitable for Y ‘s high-level needs, and she needed a larger house for medical equipment. Ms X had given up work to be a full-time carer for Y and could not afford her current property. Ms X said the risk of harm to Y increased as she grew, and Ms X had difficulty carrying her upstairs because of Y’s sudden muscle movements. Ms X’s other daughter, Z, moved around her while she carried Y causing a potential trip hazard.
  4. The Council notes say the officer gave Ms X advice and assistance including the affordability of shared ownership property and referred Ms X to the CAB. The officer contacted Ms X in February 2020. Ms X wished to continue with the shared ownership property and the officer advised her to contact the trust again if her circumstances changed.
  5. In June 2020 the trust’s housing options team received letters of support from medical professionals about Ms X’s need for a three bedroomed property with enough space for Y’s needs. They explained Y could not move without help or bathe in a normal bathroom so needed a hoist and bedroom/bathroom on one level. The trust awarded Ms X Gold Plus banding based on her high medical grounds and local connection.
  6. Ms X complained to the trust in September 2020 it was not progressing her case. Ms X explained her situation with Y and Z. Ms X alleged officers told her she would not receive any priority banding unless she sold her property. Or offered a property until she had waiting 9 to 12 months in temporary accommodation. Ms X said officers gave her wrong information because the Council could consider her homeless in her current house on medical grounds due to disability or illness, or affordability. Ms X considered her family at risk because of Y’s medical needs, and she could not afford the property. Ms X asked the trust to reassess her homelessness application and intended to remain at her property until it found her a suitable property.
  7. An officer told Ms X the trust awarded her Gold Plus banding in June 2020. The officer carried out a Housing Option interview with Ms X in October 2020. As a result, the trust started the Council’s Prevention duty under homelessness legislation and issued Ms X with a Personalised Housing Plan. In November 2020 the trust told Ms X it had a potential property for her (Property A). It would be reserved for her and be assessed by an occupational therapist (OT) for suitability. The OT found the property unsuitable for Ms X.
  8. In December 2021 the trust moved Ms X’s case to the Relief stage. It decided she was eligible for assistance and considered homeless as she could not stay in her home long term because of its unsuitability. The trust said it had a duty to take reasonable steps in the next 56 days to help her secure accommodation. Although it was not its sole responsibility to secure accommodation for her but would offer to help through various measures including advice or a rent deposit. The trust said it would not provide interim accommodation for her as she could remain at her home. The letter explained the grounds on which the homeless relief duty would end.
  9. In January 2020 the trust looked at a potential property (property B) but the OT assessment found it unsuitable.
  10. In February 2020 Ms X complained to the trust about its handling of her housing application and lack of progress. Ms X complained of poor communication, missing accommodation offers and lack of understanding about her needs. Ms X alleged lack of liaison over the Disabled Facilities Grant (DFG) procedure to apply for funds to build an extension at a suitable property.
  11. The trust told Ms X it was considering another potential property (property C). An OT assessed it as unsuitable.
  12. The trust responded to Ms X’s complaint at stage 1 of the complaint procedure in March 2021. It accepted Ms X needed an adapted house suitable for Y’s needs and there had been correspondence with several individuals at the trust. It agreed it made matters difficult and occasionally its communication fell below that expected. The trust explained it had identified several properties for her but found them unsuitable. The trust accepted it failed to explain to her why they were unsuitable. It agreed for one officer to coordinate matters and liaise with her. And an OT would visit all advertised three bedroomed properties to assess their suitability for her. Once the trust identified a suitable property it would directly match it to Ms X to it and offer as a management move.
  13. The trust ended the relief duty to Ms X in March 2021 and accepted on the Council’s behalf a main housing duty towards her. The trust said she was eligible for assistance. It found her homeless as it was unreasonable for her to remain in her current property long term because of Y’s medical needs. The trust said Ms X had a priority need for accommodation due to her two dependent children so moved her to priority banding. The trust said Ms X was not intentionally homeless and had a local connection to the area. So, the Council had a duty to provide her with accommodation.
  14. The trust assessed three more properties for Ms X (properties D, E and F). The trust considered properties D and F unsuitable, but property E had potential for garage adaptations. This would be partly funded by a DFG and partly by the trust for adjustments and improvements to the garage. Ms X and professionals involved in Ms X’s case considered property E as unsuitable.
  15. The trust issued the Council’s main duty letter to Ms X at the end of April 2021. It accepted a delay sending the letter due to an administrative error. But considered it did not disadvantage Ms X for any other property as her banding remained the same and she was being considered for a direct match. The trust looked at another property (property G) for Ms X. It investigated the suitability of installing a through floor lift. Ms X considered the property unsuitable without an extension, but the trust thought this unlikely to be available within DFG funding.

Ms X’s complaints April 2021

  1. Ms X complained to the trust in April 2021. Ms X said;
    • The trust failed to adhere to its policies and procedures in a timely manner negatively impacting onto her family’s well-being. Ms X considered if the trust treated her fairly and proportionately in January 2020 it may have prevented the solutions put forward from being rejected.
    • She had still not been allocated with a property that met her family’s needs. Ms X alleged it was because of indirect discrimination due to Y’s disability so the trust was failing to adhere to its responsibilities.
    • Most properties the trust showed her did not meet the criteria requested by professionals and she was made to feel she was being difficult. Ms X said she was upset officers reported she was being specific about the area she wanted to live in.
    • The trust rejected property A she considered suitable with no one taking responsibility for managing her case.
    • Financial constraints had taken priority over her rights and become a barrier for the trust. Ms X believed its priority was revenue which did not correlate with local strategic plans. She had approached the trust with realistic solutions, but it rejected them for financial reasons.
    • Ms X feared a serious accident could occur if the trust did not resolve her situation immediately with appropriate solutions. And her family in need of care and support through cooperation of service and the trust not been involved in multiagency working.
    • There had been poor communication by the trust, lack of responsibility and minimal attempts to understand her family’s needs.
  2. The trust considered property G suitable and started feasibility checks. It responded to Ms X’s complaint in May 2021;
    • The trust upheld Ms X’s complaints its housing options and homeless process failed to provide her with the right service at the right time. It acknowledged an unacceptable delay between February, June, and September 2020 when Ms X restarting her application. The case officer no longer worked at the trust and left no case notes so it could not establish reasons for the delay.
    • The trust accepted it did not discharge the relief duty stage of the process in a timely way as it took 95 days rather than the 56 days allowed.
    • The trust did not consider Ms X had been discriminated against but rather the issue came from a misunderstanding at the start about Ms X’s current situation. This led to a continuing mishandling of her case. The letters from medical professionals in June 2020 prompted further action on Ms X’s case by raising her to a high priority on the housing list. But it overlooked the homelessness issue at that point and so did not adhere to its responsibilities.
    • The trust apologised for the errors. It found it difficult to assess whether any of the properties available for relet before it accepted a main housing duty towards her and deciding on a direct match (March 2021) would have been suitable for her needs. The trust checked letting records and found it let several three bedroomed properties during that time but could not determine suitability. But decided it was possible one may have been suitable so concluded its delays may have been to her detriment. But it was taking the right steps to progress her case and find her a property. The trust recognised Ms X felt differently.
    • It agreed most properties with potential had not been found suitable in the end. The trust reviewed the OT reports and its OT only considered property E suitable. Ms X did not agree as it did not meet the requirements set out by Y’s OT. Officers considered it suitable with agreed adaptations. The trust would pay for the garage refurbishment as part of its budgeted expenses by rescheduling its plans. But considered it acceptable to find a solution for her.
    • The trust said it was sending her copies of the OT plans and discussing all properties with her at an early stage so she could input into the process. The trust recognised the stress caused when her hopes were raised and aimed to improve communication.
    • The trust referred to Ms X’s comments she was made to feel she was being difficult and said it was complex to provide housing. This increased with its dual role as housing provider and contractor for the Council’s housing options service. Its aim as a housing provider was always to find the best outcome but the lack of available housing stock especially for those people with disabilities was a constraining factor. It noted Ms X’s view that was not her problem, but unfortunately it had to look at all options which may fit with what Y’s OT said was needed to fulfil the Council’s statutory duty. The trust needed to look at what was acceptable so she may need to compromise on location or space in a property. The trust was not intending to make her feel like a difficult party, but it had to look at what was required against what was acceptable. The trust noted Ms X may consider only the things set out by Y’s OT were acceptable but recommended each property was individually assessed and discussed so it reached the right conclusion. The trust believed the process for this was already now in place.
    • The trust said it was currently unable to find Ms X a suitable property, so contacted the Council on whose behalf it was acting to see if it had any extra funding or alternative options available to her.
    • The trust said it assessed property A according to its normal process and procedures. It did not consider it suitable due to an upstairs bathroom. And a DFG would not cover the cost of all alterations needed. The trust said it would raise the issue of costs with the Council if they were a constraint for any future properties.
    • The trust told Ms X that unfortunately financial viability was a constraint it had to consider when offering housing. It needed to consider physical and financial feasibility and work within the limits of DFG funding. But as a housing provider it tried to use existing funding to find solution such as property E. The trust said it could not absorb all costs for individual cases where it proved difficult to find suitable housing and had to manage its financial viability carefully. It could make minor adjustments, but it was not within its remit to build extensions or more major adaptations. And it should not absorb the Council’s responsibilities to ensure housing is provided for families with disabled members. The trust said because it had responsibility for the housing options service it was looking for a direct match for her but could not go further than this in terms of additional financial responsibility. The trust acknowledged it was an unsatisfactory position where it took a long time to find a suitable property for families such as Ms X’s and worrying and stressful for her. So, it was rightly raising the case with the Council.
    • The trust considered the concern about Mrs X’s current home was complex. It had discussed temporary accommodation with her, but she was currently unwilling to pursue the option because of lack of security. The trust said due to her significant concerns about family safety, temporary accommodation should be considered as an option. And while there were risks, they should be weighed up against the safety concerns.
    • The trust noted an officer was now attending meetings with Ms X and professionals involved in her case. The officer would continue to provide an opportunity to discuss across the group and work towards a satisfactory outcome. The trust accepted it communicated poorly with her between February and September 2020, but it followed the correct processes after that date.
    • The trust considered it had made good efforts to understand her situation and taken responsibility to find her a suitable property. But it could act to improve its overall communication in similar complex cases to improve its service.
  3. The trust partially upheld Ms X’s complaint as it failed to provide her with the right service when responding to her initial application and gave her wrong information. The trust apologised.
  4. The trust considered it followed its normal process and procedure in its ongoing attempts to find her a property but made recommendations to improve its procedures. The recommendations were
    • To make the Council aware of Ms X’s situation, the errors made at first and ask if any extra funding was available to support her finding a suitable property.
    • An officer to agree communication with her about potentially suitable properties to strike the balance between involving her and building false hope.
    • The trust to review the process of communicating in complex situations. This was with a customer, the Council to highlight a difficult to meet housing need and with relevant professionals to ensure the requirement is fully understood.
    • Where the trust deems a property unsuitable because adjustments are more than the DFG funding level, the case should be escalated to senior management and the Council to assess whether there is any special funding available.
    • To consider further temporary housing to relieve the current safety concerns.
    • Discuss learning from the complaint with the whole trust about the use of language.
  5. The trust agreed its earlier faults were unacceptable but there was a limit to the action it could take to rectify matters. The trust believed it was working in the best possible way to identify a suitable property.

Events from June 2021

  1. Ms X reports Y was unwell in June 2021 and her medical needs increased. Y also had a continuing care assessment. The outcome was that Y needed 50 hours of support a week and to have her own bedroom with enough space for carers and storage. Ms X complained she was under pressure from the trust to accept property G with internal adaptations. Ms X considered the property unsuitable for Y’s needs as she grew, and the trust ignored medical advice. Ms X was concerned that by accepting the property the Council would discharge its housing duty to her.
  2. The trust sent Ms X a decision letter in July 2020 with the offer of property G and said the Council was discharging its homeless duty towards her. The trust said it would work with housing benefit to help cover the cost of the rent before she signed the tenancy. The trust told Ms X it decided the property was a suitable offer under the Council’s homelessness duty.
  3. Ms X accepted the offer of property G. In August 2021 Ms X appealed to the Council and requested a review of the suitability of the offer. Ms X considered the property unsuitable without all the adaptations request by Y’s OT. Ms X sent supporting statements from several professionals about the property. The Council considered the appeal and upheld it in September 2021. The Council found the offer was an unreasonable offer of accommodation with the proposed internal alterations. But it was looking at alternative adaptations to the property to see if it would make it suitable. The Council confirmed its duty to make her a suitable offer of accommodation remained.
  4. Ms X remains unhappy with the Council’s progress in finding her a suitable property.

The Council’s response to the complaint

  1. In responding to my enquiries about the complaint the Council confirms that it and the trust have acted on the recommendations made when dealing with Ms X’s complaints. The trust appointed an officer as Ms X’s contact. But since the Council’s suitability review a Council officer has taken the lead in communicating with Ms X. The Council confirmed an OT was visiting all advertised three bedroomed properties, but this stopped once the trust offered Ms X a property. The trust provided Ms X with the OT assessment on properties looked at, so she understood the reasons for their unsuitability. The trust also offered Ms X a management move and directly matched her to a property once it identified a suitable house.
  2. The Council confirmed the trust told it of Ms X’s situation in May 2021 but there was no additional funding available. But it has since held further meetings with the trust and agreed to a discretionary DFG to fund property alterations. The trust and Ms X have improved communication. The trust has amended the allocation policy to ensure it flags any complex cases such as Ms X’s earlier with the Council. It will also escalate cases to senior trust management and then the Council where a property is considered unsuitable because adjustments needed are more than the DFG funding (£30,000) to see if there is any special funding available.
  3. The Council says Ms X confirmed in May 2021 she did not wish to move into temporary accommodation. The Council discussed such accommodation with her again in November 2021, but Ms X refused. If Ms X now needs temporary accommodation the trust can source this for her.
  4. The Council told Ms X in October 2021 property G was still allocated to her and a professional group working to provide adaptations at the property to meet Y’s needs. The group sent revised proposals for an OT to assess. The Council confirms it is looking at an extension to the property costing £74,000. The Council says Ms X is agreeable to the proposals. The extension will be partly funded by a DFG and the trust paying a discretionary top up. The Council confirms the trust agreed to provide funding to ensure sufficient parking facilities at the property and to carry out the DFG application process to save charges. At a meeting in November 2021 other partners involved in the case agreed to look at additional funding of £24,000. The trust and the Council agreed to look for alternative properties if it cannot find the extra funding. In addition, Ms X’s OT’s have proposed an alternative adaptation at property G which may be suitable for Ms X’s family and be a more affordable option.
  5. The Council says there is no alternative housing stock in its area that would meet Ms X’s needs and it still needs to find the alternative funding. The Council is drawing up the plans for the extension.

My assessment

  1. The documents provided by the Council show the trust has investigated Ms X’s complaints about the way it had handled her homelessness application and her housing situation. The trust has accepted it gave her incorrect information when she attended for a housing options interview in January 2020 and did not consider her as homeless her based on her situation. The trust accepts it did not communicate well with Ms X from February to September 2020 about her situation and it failed to tell her she had been awarded Gold Plus banding in June 2020. The trust accepts it did not start her homeless application until October 2020 and delayed accepting a main housing duty towards her. So, I consider giving incorrect information along with poor communication and delays at the start of the homelessness process are fault by the Council as the trust was acting on its behalf.
  2. Where we find fault, we need to consider whether it has caused the complainant significant personal injustice as a result. The trust has looked to whether Ms X may have missed being offered a property between February 2020 and March 2021 (the period of delay) when it decided to find a direct match for her. It found there had been several available properties but could not say it they were suitable. It believed one may have been, so she had been caused some detriment
  3. In responding to my enquiries, the Council has provided a list of three possible properties available during 2020 and says it would not be possible to say if they were suitable without an OT assessment. The Council has also provided evidence that since November 2020 the trust has been assessing available three bedroomed properties to see if they are suitable for Ms X. But unfortunately, the properties were not considered a suitable until property G became available in May 2021. So, I cannot say whether Ms X would have been offered a property any sooner because of the severe needs of Y and the lack of suitable properties available to her.
  4. While Ms X was considered homeless during that time she was not without a property. Because of this I consider the injustice caused to Ms X by the Council’s delays is injustice is limited to distress and uncertainty about her situation. The trust has apologised to Ms X, but I recommend the Council sends a written apology to Ms X for the delays and poor communication she received at the start of the homelessness process. And it should pay her £150 for the distress and uncertainty it caused and her time and trouble in pursuing her complaint.
  5. The documents show that once the trust accepted Ms X’s homelessness application it has been working to try and find her a suitable property. It is unfortunate it has taken time for Ms X to be offered a property. But since the suitability review the Council has been working with the trust to find a property for Ms X and is looking to build a large extension on property G. This will be funded by a DFG, a discretionary payment from trust and the Council is sourcing extra funding.
  6. The Council and the trust have provided evidence to show it has acted on the recommendations made in Ms X’s case as an outcome of her complaint. They accepted some difficulties in dealing with complex cases such as Ms X’s when the trust has a dual role as housing provider and as Council contractor. The Council and trust have already taken action to resolve this issue by amending the allocation and tenancy policy to ensure such cases a referred more quickly to the Council. This is suitable action for the Council and trust to take.

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Agreed action

  1. To remedy the injustice I have identified in this case to Ms X , the Council will within one month of the date of my decision;
    • send a written apology to Ms X for any distress and uncertainty caused by the incorrect information she received along with poor communication, and delays at the start of the homelessness process.
    • pay Ms X £150 in recognition of the distress and uncertainty caused and her time and trouble in pursuing her complaint.

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Final decision

  1. I am completing my investigation. I have found fault by the Council as Ms X received incorrect information along with poor communication and delays at the start of the process when dealing with her homelessness situation. I have recommended a suitable remedy in this case.

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Parts of the complaint that I did not investigate

  1. I have not investigated Ms X’s concerns about the suitability of the property offered to discharge the Council’s housing duty. This is because Ms X has appealed the decision and suitability of the offer to the Council. If the Council had not upheld her appeal, then she could have pursued the matter to the County Court. I consider it would be reasonable to expect Ms X to pursue the matter through the courts who can decide if the Council’s offer was suitable. And so, we would not investigate this part of the complaint.

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Investigator's decision on behalf of the Ombudsman

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