Summary: Ms X is a Council tenant. She complains the Council failed to consider whether her family’s living conditions meant she was homeless. Ms X complains the Council failed to respond to her requests to move to alternative accommodation due to significant disrepair and infestation issues. We have found the Council at fault. This caused Ms X distress and frustration. She missed out on the Council treating her requests to move as a homelessness application and a transfer request under its housing allocations scheme. To remedy this, the Council has agreed to apologise to Ms X, make her a payment and process her move request now. It has also agreed to make several service improvements.

The complaint

1. The complainant, who I shall refer to here as Ms X, is a Council tenant. Ms X complains the Council:
1. failed to consider whether Ms X and her family’s living conditions meant she was homeless. Ms X says she is in effect homeless because of the conditions in her current home and the impact of this on her children. She says this means it is not reasonable to expect her to continue to occupy her current property; and
2. failed to respond to her requests to move to alternative accommodation due to significant disrepair and infestation issues. Ms X says she has asked the Council to move based on welfare and medical grounds, but the Council has failed to make a decision about this under its housing allocations scheme. The Council told her it could not help because of ongoing legal action about the disrepair issues, instead of treating the allocations and disrepair issues as separate matters.
2. Ms X says her family are living in inadequate living conditions. She says this has significantly impacted her and her family’s health and wellbeing. She says the housing situation has affected family relations and caused them distress and stress. Ms X says her eldest son has recently had to move out of the family home because of the disrepair and infestation issues.

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What I have and have not investigated

3. The law says 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)
4. In Ms X’s complaint to the Ombudsman, she complained about matters dating back to over 10 years ago. I considered Ms X’s reasons why she did not complain to the Ombudsman sooner than February 2022.
5. In Ms X’s case, I consider an investigation from June 2020 onwards is fair and justified. I understand that Ms X’s housing situation became particularly challenging from this point onwards due to the impact of the COVID-19 related national lockdown and the Council’s Early Intervention and Family Support Service wrote a letter to the Council’s housing team requesting a move to different accommodation. I have also taken into consider the fact Ms X had been consistently raising issues with the Council since this time alongside the Council’s decision not to put Ms X’s complaint through its formal complaints process, which likely delayed Ms X’s access to the Ombudsman.
6. However, I consider it reasonable to have expected Ms X to complain to the Ombudsman sooner about matters that happened before June 2020.
7. The law also says we cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. For this reason, I cannot investigate Ms X’s complaint that:

• the Council failed to carry out the agreed works to deal with disrepair and infestation in Ms X’s home. I understand Ms X has separately complained to the Housing Ombudsman Service about this, which is the appropriate Ombudsman scheme for this part of her complaint; and
• a pest control contractor, acting on behalf of the Council, allegedly made sexist and racist remarks to her. This is for the same above reason: the Council provided this service in its role as a social landlord managing Ms X’s tenancy. It is open to Ms X to make a separate complaint to the Housing Ombudsman Service about this.

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The Ombudsman’s role and powers

8. 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)
9. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
10. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
11. 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

12. I spoke with Ms X about her complaint. I considered the information and documents sent to me by Ms X and the Council.
13. Ms X and the Council had an opportunity to comment on my draft decision. I considered all comments before making a final decision.

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What I found

What should have happened

Homelessness applications: Legislation and statutory guidance

14. Part 7 of the Housing Act 1996 (the Act) 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.

Legal definition of ‘homeless’

15. A person is to be considered homeless if they do not have accommodation which:

• they are entitled to occupy; and
• is accessible and physically available to them (and their household) and which it would be reasonable for them to continue to live in. (Housing Act 1996, section 175)

16. The Code says there is no simple test of ‘reasonable to occupy’. Councils should judge each application on the facts of the case.
17. But, in determining reasonableness, councils may have regard to general housing circumstances in the area. Therefore, councils may consider it reasonable for an applicant to be housed in relatively poor conditions if that is the norm locally. For this reason, statutory overcrowding or unfitness are not guarantees that it is unreasonable to occupy in terms of the Act, but they would be relevant factors for the council to consider.

Applications

18. If a council has ‘reason to believe’ someone may be homeless or threatened with homelessness, it must take a homelessness application. 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)
19. Councils can suggest alternative solutions in cases of potential homelessness where these would be suitable and acceptable to the applicant. But, councils must not do this to avoid their legal duties. 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)
20. Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness.

Review rights

21. The council must give written notification to the applicant about significant decisions in their case. This includes applicants who the council decides are not homeless or do not have a priority need. The council must also notify the applicant about any review or appeal rights. If there is no formal decision or notification, these rights are not triggered.
22. Homeless applicants may request a review within 21 days of being notified of certain decisions, which include the following:

• their eligibility for assistance; and
• what duty (if any) is owed to them if they are found to be homeless or threatened with homelessness.

Housing allocations

23. 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))
24. An allocations scheme must give reasonable preference to applicants in the following categories:

• homeless people;
• people in insanitary, overcrowded or unsatisfactory housing;
• people who need to move on medical or welfare grounds;
• people who need to move to avoid hardship to themselves or others
  (Housing Act 1996, section 166A(3))

25. Councils must write to applicants with the following decisions and give reasons:

• that the applicant is not eligible for an allocation;
• that the applicant is not a qualifying person; and
• a decision not to award the applicant reasonable preference because of their unacceptable behaviour.

26. The Council must also notify the applicant of the right to request a review of these decisions. (Housing Act 1996, section 166A(9))
27. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.

What happened

Scope of the investigation

28. Ms X is a Council tenant.
29. As explained above, I cannot investigate matters that concern the provision or management of social housing by the Council acting as a social landlord to Ms X. This includes any action taken by the Council in response to reports of disrepair or infestation issues. However, where necessary and relevant to understand the Council’s actions in this complaint, I have made reference to Ms X’s claims about her housing situation.

Chronology

30. During the summer 2020, Ms X contacted her allocated Family Solutions Key Worker in the Council’s Early Intervention and Family Support Service. At this point, Ms X was living with her three children.
31. Ms X told the Key Worker that the family was struggling to cope with significant disrepair issues and mice infestations at the family’s home. She asked for support with the family’s housing situation.
32. In June, the Family Solutions Key Worker wrote a letter to the Council’s Housing Assessments and Solutions, Health, Wellbeing and Adults Department. She asked if the Department would consider moving the family to more appropriate accommodation. The Family Solutions Key Worker confirmed she had seen evidence of the disrepair and infestation issues that Ms X claimed she and her family were affected by.
33. In August, the Family Solutions Key Worker completed a referral form to a Children’s Safeguarding Officer in the Council’s Housing Assessments and Solutions, Health, Wellbeing and Adults Department.
34. The next day, the Children’s Safeguarding Officer replied to say the Council was not able to move Ms X based on the reasons given in the referral form and Ms X should discuss her housing options with her Tenancy Officer.
35. In September, Ms X began pursuing the disrepair issues through the legal protocol for housing disrepair claims.
36. In late September, Ms X’s Family Solutions Key Worker contacted Ms X’s Tenancy Officer to establish joint working around Ms X’s housing issues. This led to a joint inspection of Ms X’s property, which focused on the disrepair issues.
37. I understand that Ms X continued to raise concerns about her housing and make transfer requests.
38. In January 2022, it is my understanding Ms X met with her local Councillor to discuss her housing issues and her transfer request.
39. In early February, the Councillor emailed Ms X after looking into her complaint. The Councillor said he had been in touch with a Council Housing Allocations Officer, but the Officer said the housing register team had no record of Ms X making a formal transfer request. The Councillor attached the Housing Allocations Officer’s response, which said: “I cannot find any record of a request for alternative accommodation ever having been submitted to us. [If one had been submitted, then the] usual process would have been for an essential decant request to be passed to allocations.” The Councillor told Ms X that he had asked a Senior Officer in the Council’s Tenancy and Caretaking team to contact Ms X and go through the necessary steps to fully register her transfer request.
40. In mid-February, Ms X complained to the Ombudsman.
41. In late March, a Senior Officer in the Council’s Tenancy and Caretaking team contacted Ms X to meet with her. It is my understanding this did not go ahead.
42. In June, the Ombudsman sent the Council details of Ms X’s complaint. We asked the Council whether it had considered Ms X’s complaint.
43. The Council said it was unable to deal with Ms X’s complaint under its complaint procedure because Ms X was pursuing the issues through the legal protocol for housing disrepair claims. It said Ms X’s complaint had been forwarded to its legal team instead. The Council wrote to Ms X separately confirming this and that it would not consider her complaint under stage one of its complaint process.
44. In September, in response to my questions, the Council told me:

• its Housing Register and Advice Team were not aware of Ms X’s request for consideration to move from her current home. Ms X did not have an active Housing Transfer Application, nor did she appear to have submitted an application online. The Housing Register and Advice Team and the Housing Allocations Team’s last contact with Ms X was over ten years ago when she accepted her current home as permanent; and,
• it had checked all records, but its last record of a homelessness application from Ms X dated from over ten years ago.

Analysis – was there fault by the Council causing injustice?

45. Ms X complains the Council failed to consider whether Ms X and her family’s living conditions meant she was homeless (part a of the complaint).
46. As explained above, the Council must take a homelessness application if it has ‘reason to believe’ someone may be homeless or threatened with homelessness.
47. In June 2020, Ms X’s Family Solutions Key Worker wrote a letter to the Council’s Housing Assessments and Solutions, Health, Wellbeing and Adults Department. She asked if the Department would consider moving the family to more appropriate accommodation. The Family Solutions Key Worker provided significant detail in this email, and the safeguarding referral in August, about the extent of the disrepair and infestation issues that Ms X had described, and the significant impact this was having on her children.
48. Based on the evidence I have seen, the Council officers involved in Ms X’s request to move failed to consider whether this amounted to an application ‘for accommodation, or for assistance in obtaining accommodation’ (Housing Act 1996, section 183). Taking into consideration that such an application does not have to be made to a particular department or a formal homelessness application, I find the details Ms X gave about her request to move should have been sufficient for the Council to accept this amounted to an application. I, therefore, uphold part a of Ms X’s complaint as the Council failed to recognise from Ms X’s contact that she was potentially homeless. Ms X had explained she did not feel it was reasonable for her family to continue to occupy her accommodation. Ms X missed out on the Council accepting a homelessness application from her and a timely decision from the Council on this (with details of any review rights).
49. Ms X complains the Council failed to respond to her requests to move to alternative accommodation due to significant disrepair and infestation issues. Ms X says she has asked the Council to move based on welfare and medical grounds, but the Council failed to make a decision about this under its housing allocations scheme (part b of the complaint).
50. Based on the evidence available to me, I have decided to uphold part b of Ms X’s complaint. This is based on the following:

• in August 2020, the Council’s Children’s Safeguarding Officer decided the Council was not able to move Ms X based on the reasons given in the safeguarding referral form and Ms X should discuss her housing options with her Tenancy Officer.
• But, the Council told me a discussion between Ms X and her Tenancy Officer about her housing options did not take place.
• In my view, the Council’s decision suggests her transfer request had been refused, but without the Council providing a decision in writing under its housing allocations scheme (with details of review rights). The Council failed to tell Ms X that she was still able to apply to join its housing register, including when it subsequently responded to her subsequent complaints to the Council. This is fault. Ms X’s request to move to different accommodation was separable from the issues considered under the legal protocol for housing disrepair claims. I find, on balance, the Council’s failure to respond to Ms X’s complaint and engage with her about her requests to move while her disrepair claim was ongoing meant Ms X likely did not think she was able to apply to join the Council’s housing register. This caused Ms X uncertainty about what support, if any, the Council could provide. This has caused Ms X stress and distress. She has gone to significant time and trouble over a two-year period asking the Council to consider her move request without a satisfactory response.
• During the summer 2020, there were early missed opportunities by Council officers involved in Ms X’s complaint to forward Ms X’s transfer request to its Housing Register and Advice Team. If a prompt referral to its Housing Register and Advice Team had taken place, I understand the Team would have processed Ms X’s request as one “for an essential decant request to be passed to allocations.” The Council’s failure to ensure a joined-up approach here meant Ms X missed out on a decision about her essential decant request. This has caused Ms X stress and distress.
• In March 2022, a Senior Officer in the Council’s Tenancy and Caretaking team contacted Ms X to meet with her. It is my understanding that this related to the Councillor’s email from February, which said the Senior Officer would arrange to fully register Ms X’s transfer request. Council records show, following this email, the Senior Officer in the Tenancy and Caretaking team was told by the Council’s legal team not to contact or visit Ms X about such housing issues. This is fault. The Council missed a further opportunity to make a decision about Ms X’s move request under its housing allocations scheme.

51. In response to my questions, the Council told me it was still open to Ms X to apply to join the housing register. In these circumstances, I have recommended the Council review the information it has available about Ms X’s move request and make a decision now about her eligibility under its housing allocations scheme.
52. The injustice Ms X has experienced by the Council’s failure to accept a homelessness application or housing register application occurred over a prolonged period (approximately two years). In my view, this is in part due to the Council’s failure to accept that Ms X’s request to move was separable from the issues considered under the legal protocol for housing disrepair claims. The Council refused to progress Ms X’s complaints through its statutory complaints process. This is fault. I have recommended a service improvement around this below.

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Agreed action

53. Within four weeks of my final decision, the Council has agreed to:
1. apologise in writing to Ms X for the fault causing injustice identified above;
2. make Ms X a payment of £350 to recognise the significant distress and uncertainty caused. I have considered the Ombudsman’s published guidance on remedies when recommending this. This payment is slightly above our usual payment range because I have factored in the fact the distress occurred over a prolonged period (around two years);
3. invite Ms X to progress her homelessness application now. If Ms X decides to pursue this, the Council should process her application and write to her with a decision within this time period; and,
4. review the information it has available about Ms X’s move request and make a decision about her eligibility under its housing allocations scheme. The Council should ask Ms X if she wishes to submit any new evidence she would like the Council to consider before reaching its decision. The Council officer making the decision on Ms X’s move request should be given a copy of this decision statement. The Council should inform Ms X in writing of its decision, explain the reasons, and send us a copy of the letter. If the Council decides to accept Ms X onto its housing register and award banding, the Council should consider backdating this to an appropriate priority date and consider whether Ms X has missed out on any offers of accommodation. If so, the Council should make Ms X an offer.
54. Within two months of my final decision, the Council has also agreed to:

• review its guidance to staff on handling complaints where the complainant is accessing the legal protocol for housing disrepair claims. The Council should make sure it is clear to staff when complaints about homelessness applications and housing register applications, including requests by Council tenants to move to different accommodation, should be treated as separable from the legal protocol;
• circulate a reminder to relevant staff that requests by Council tenants to transfer to different accommodation should be forwarded to its Housing Register and Advice Team. This should include details of the circumstances when such a request should be promptly forwarded to its Housing Register and Advice Team for a decision on whether it qualifies as an “essential decant request” under the Council’s housing allocations scheme; and,
• share this decision with relevant staff members.

55. The Council should provide us with evidence it has complied with the above actions.

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Final decision

56. I have completed my investigation.
57. I have decided to uphold parts a and b of Ms X’s complaint. This is because I have seen evidence of fault by the Council causing injustice. The above recommendations are suitable ways for the Council to remedy this, which it has agreed to.

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Investigator's decision on behalf of the Ombudsman