Summary: The complainant (Mrs X) said the Council failed by removing her and her husband (Mr Y) from its housing register in September 2021 and in the way it carried out the review of this decision. As a result Mrs X lost opportunities to bid for properties and experienced distress. We find fault in the way the Council carried out its review and suggested remedies. Mrs X also complained about suitability of her current accommodation and its state of repair. We will not investigate this part of her complaint as she had other ways to challenge the Council’s actions.

The complaint

1. The complainant says the Council failed by removing her and her husband from its housing register in September 2021 and in the way it dealt with her review request.
2. She also complains about suitability of her current accommodation and its state of repair.

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What I have investigated

3. I have investigated the part of Mrs X’s complaint about the Council’s review of its decision to close Mrs X’s housing register application.

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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. 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)
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. I considered the information Mrs X provided.
8. I made enquiries with the Council and considered the information and documents it provided.
9. I reviewed the Council’s Allocation Scheme in place from 29 October 2012 to January 2022 and the Council’s Allocation Scheme in place from February 2022.
10. Mrs 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

Legal and administrative framework

11. An authority may end the main housing duty by offering the applicant a suitable assured shorthold tenancy (AST) with a private landlord. (Housing Act 1996 s.193A)
12. Certain conditions and protections apply:
• the AST must be a fixed term tenancy for at least 12 months;
• it must be suitable for needs of the applicants and household members;
• when deciding if the property is suitable the authority must consider matters such as location, state of repair, safety of utilities, and landlord conduct; (The Homelessness (Suitability of Accommodation)(Order) England 2012)
• the authority must inform the applicant, in writing, of the possible consequences of refusing or accepting the offer and the right to request a review of its suitability.
13. There is a right to request a review of any decision of a local housing authority as to the suitability of accommodation offered by way of:
• private rented sector offer;
• a final accommodation offer;
• a final Part 6 offer.

A request for a review must be made within 21 days. If dissatisfied with the review decision, a person may appeal to the county court on any point of law. (Housing Act 1996 s.202 and 204)

14. 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))
15. Councils must notify applicants in writing of the following decisions and give reasons:
• that the applicant is not eligible for an allocation;
• that the applicant is not a qualifying person;
• a decision not to award the applicant reasonable preference because of their unacceptable behaviour.

The Council must also notify the applicant of the right to request a review of these decisions. (Housing Act 1996, section 166A(9))

16. 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;
• the review should be carried out by an officer senior to the original decision maker, or by a panel not including the original decision maker;
• reviews should normally be completed within a set deadline - 8 weeks is suggested as reasonable. The applicants should be notified of any extension to this deadline and the reasons for this.
  (Statutory guidance on social housing allocations for local housing par.5.19 version in force from 16/09/2021 – 24/01/2022)

Council Allocation Schemes

Allocation Scheme from October 2012 to January 2022

17. People registering on the housing register who live outside the borough area but have a strong local connection can be considered in the same way as applicants who live in the borough.
18. Local connection applies when the applicant has employment in the Council’s area.
19. When an existing applicant registered on the waiting list subsequently moves out of the borough, their application will still be considered in the normal way as long as they continue to fulfil the local connection requirements.
20. The Council is required to respond to a request for a review within eight weeks. The decision will be made based on the information available at the time of the review.
21. There is no further right of review. It is therefore very important that the review is through. The reviewing officer must satisfy themselves that the decision was correctly made in accordance with this policy and take advice where necessary.

Allocation Scheme from February 2022

22. Applicants have a statutory right to request a review of any decision about the facts of their case which is likely to be, or has been taken into account in considering whether to allocate housing accommodation to them. This includes any decision restricting registration on the Housing Register or any decision which removes the applicant from the list after having registered, or where there is a decision not to make an allocation.
23. Applicants must make a request for a review within 21 days of the date of the letter informing them of the decision.
24. People who can register for the new Allocation Scheme must:
• be at least 18 years of age;
• live within Newham and show they have been living continuously in Newham for 3 years;
• not have an existing application, i.e. one which is not closed.
25. The residency conditions do not apply if the applicant:
• Is a London Borough of Newham (LBN) tenant living in an LBN out of borough estate at Brentwood, Rainham or Aldersbrook;
• Is owed a homeless duty by LBN under Part 7 of the Housing Act 1996;
• Is placed in accommodation by LBN or Newham Local Health Authority and is receiving services.

Key facts

Homelessness

26. The Council accepted its homelessness duty towards Mrs X and her husband in February 2017.
27. Since September 2017 Mrs X and her family have lived outside the Council’s area in the properties offered by the Council in discharge of its housing duty towards Mrs X.
28. The Council made a private rented sector offer of accommodation for a fixed term AST in March 2019. The property was in a different borough, 3m from the boundary with the Council.
29. In the letter offering this property the Council explained it aimed to bring the Council’s main housing duty to an end.
30. The Council provided its reasons for considering this accommodation suitable and affordable for Mrs X and her family. It also considered its distance from Mrs X’s place of employment, her children’s educational needs, closeness to medical facilities and local services.
31. In its offer letter the Council told Mrs X she could ask for a review of the Council’s decision if she considered the property unsuitable. She had 21 days to make a review request from the date of the offer.
32. Mr Y asked for a suitability review of his accommodation in September 2020. He questioned the flat was suitable for a couple with two children and informed of the imminent birth of their third child. Mr Y also mentioned Mrs X’s health problems, which were affected by their accommodation.
33. The Council explained it had no housing duty as Mrs X and Mr Y accepted its offer of a private rented accommodation from April 2019.
34. In January 2021 Mr Y complained to the Council about harassment and discrimination from the neighbours.
35. In response the Council explained Mrs X and Mr Y were now private, rather than the Council’s, tenants and they had a private company as a landlord. The later correspondence showed Mrs X and Mr Y were convinced they signed a tenancy agreement with the Council and paid rent to the Council.
36. Despite having discharged its housing duty the Council considered the persistent nature of Mr Y and Mrs X’s complains about harassment from their neighbours and offered them a new private rental agreement in May 2021. The new accommodation was also located outside the Council area but in a different borough and close enough to allow Mrs X working in the Council’s area.
37. Changing the council meant Mrs X and Mr Y became eligible for Universal Credit from the date of the move. Until then they had received Housing Benefit paid directly to the landlord by the Council.

Housing register

38. Mrs X and Mr Y joined the Council’s housing register in November 2015.
39. In January 2021, when bidding for properties, Mrs X and Mr Y were on the fifteenth place and the fifth place.
40. In March 2021 Mrs X added her medical information to the housing register.
41. At the end of August 2021 Mr Y received an email from the Council with the information he was shortlisted for a property he bid for and highly placed for it. The Council officer asked for a few extra documents.
42. At the same time the Council also told Mr Y there was a significant sum of rent arrears on his account.
43. In the first week of September 2021 the Council decided to bypass Mr Y and Mrs X for the property they bid and were highly placed for as it considered:
• they had adequate housing and were not in temporary accommodation;
• they failed to provide enough employment documents to prove a local connection;
• they had unresolved rent arrears issues.
44. Mr Y formally complained about the Council’s claim of rent arrears. During the correspondence which followed it became obvious Mr Y’s Universal Credit payments were going towards the account for the previous property.
45. Following internal discussions the Council asked Mrs X to send evidence of her local connection by a given date otherwise it would close her application to the housing register.
46. On the date named by the Council Mr Y explained he and his wife were council tenants living in an out-of-borough property provided by the Council.
47. In the mid-September the Council closed Mrs X and Mr Y’s housing register application based on the change in the applicants’ circumstances as they had lived out of borough for more than two years. The Council said they failed to prove their local connection with the Council. At the same time it said they did not fulfil criteria for joining the housing register.

Review request

48. A few days later and following discussions with the Council’s officer and a complaint, Mr Y asked for a review of the Council’s decision to close his and his wife’s housing register application due to not having a local connection. He stated he and Mrs X met at least one of the local connection criteria – the Council provided them with their accommodation, they were receiving services from the Council and Mrs X worked in the Council’s area.
49. The Council recognised Mr Y’s review request and said it would carry the review on 5 November 2021. Mr Y would receive the Council’s decision a few days after this date.
50. In October 2021 Mr Y sent a few emails to the Council. Mr Y attached to one of them Mrs X’s payslips as a proof of her employment in the Council’s area.
51. At the end of November 2021 the Council told Mr Y it would issue its decision by 21 December 2021.
52. In the beginning of December 2021 Mr Y again chased up the Council, once more attaching his wife’s payslips.
53. The Council issued its decision on 17 January 2022, in which it:
• overturned the original decision to close the housing register application;
• explained by providing an out-of-borough AST to Mr Y and Mrs X in a private sector, the Council discharged its main housing duty. When collecting Mr Y and Mrs X’s rent the Council only acted as an agent for the private landlord;
• stated Mr Y and Mrs Y would lose their local connection under the new allocation scheme when it comes into force. The new scheme does not include employment as one of the qualifying criteria for local connection.

Analysis

Fault

54. When dealing with Mr Y’s request for the Council to review its decision closing his and Mrs X’s housing register application, the Council failed by:
55. Delay. The Council should have completed its review within eight weeks from Mr Y’s request, by 12 November 2021. In fact, the Council made its decision on 17 January 2022, over nine weeks later.
56. Unsatisfactory communication during the review. The Council failed to tell Mrs X and Mr Y in a timely manner of the subsequent extensions to the deadline for reviewing its decision and failed to provide its reasons for these extensions.
57. Misleading information in the decision letter of 17 January 2022.
• When overturning its decision to close Mrs X’s housing application, the Council suggested under the new scheme she would lose her local connection with the Council. The Council failed, however, to tell Mrs X this would apply only once the new scheme came into effect in February. The Council also failed to explain Mrs X’s housing register application would then be reviewed in line with the new scheme criteria for the existing applicants;
• As there is no mention in the new Allocation Scheme of the automatic review of the existing housing register applications, any changes to Mrs X’s housing application following the Council’s re-opening decision should have been considered separately and would be open to a challenge as specified under paragraph 22. Mrs X should have been told she had the right to ask for a review of the Council’s decision to take her off its housing register;
• Once the Council overturned its decision to close Mrs X’s housing application, it should have told her of her continuous rights to bid for properties, with her position the same as it was in September 2021.

Injustice

58. The Council’s faults identified above caused Mrs X injustice:
• loss of opportunity to bid for properties from 12 November 2021;
• distress.

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Agreed action

59. To remedy the injustice caused by the faults identified, we recommend within four weeks the Council complete the following:
• Apologise to Mrs X for the injustice caused to her by the faults identified;
• Re-open Mrs X housing allocations and treat it as continuous from when it was first accepted with the same priority banding;
• Pay Mrs X £200 to recognise the distress and loss of opportunities caused to her by the faults identified.

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Final decision

60. I find fault in the way the Council carried out its review of the decision to close Mrs X’s housing register application. This fault caused her injustice. The Council has now accepted my recommendations and I have completed this investigation.

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Parts of the complaint that I did not investigate

Suitability of accommodation

61. The issue of suitability of Mrs X’s current accommodation, which was provided by the Council in discharge of its relief duty in May 2021, can be challenged by the review request, possibly followed by an appeal to the county court.
62. There are no reasons I might consider it would not be reasonable to expect Mrs X to challenge the suitability of her accommodation through the review and possibly court appeal.

State of repair

63. As Mrs X lives in a privately rented property, for which she has AST, the Council is not directly responsible for the state of repair of the property.

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Investigator's decision on behalf of the Ombudsman