Summary: Miss C complained the Council failed to provide adequate support about her housing situation which meant she stayed with relatives in unsuitable conditions for longer than necessary. We have found fault by the Council but consider the agreed action of a symbolic payment to recognise Miss C’s uncertainty and distress about the opportunity of being offered suitable accommodation sooner and future service improvements provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Miss C, complained the Council failed to provide adequate support about her housing situation in relation to her homelessness application, housing register application and private housing disrepair.
2. Miss C also complained about the suitability of and errors in the listing of her new tenancy started in January 2023 and a mistake in her benefit claim.
3. Miss C says because of the Council’s fault she stayed with relatives in unsuitable conditions for longer than necessary and suffered a harmful impact on her health.

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What I have and have not investigated

4. I have investigated Miss C’s complaint about the Council failing to provide adequate support about her housing situation in relation to her homelessness application, housing register application and private housing disrepair since January 2021.
5. I have not investigated earlier events as Miss C could have complained about them earlier. This is a late complaint and there is not enough reason to accept those parts of it for investigation now (please see paragraph 9 below). Miss C complained to the Ombudsman in July 2022 and, as the matters were ongoing, I have exercised the discretion available to me to investigate events from January 2021.
6. I have not investigated the two new issues Miss C raised about (a) the suitability of and errors in the listing of her new tenancy started in January 2023 or (b) the mistake in her benefit claim as both these matters would need to complete the Council’s complaint procedure in the first instance.

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The Ombudsman’s role and powers

7. 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)
8. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
9. 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)
10. 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

11. I read the papers provided by Miss C and discussed the complaint with her. I have also considered information from the Council. I have explained my draft decision to Miss C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

Homelessness

12. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
13. Someone is threatened with homelessness if, when asking for assistance from the council on or after 3 April 2018:

• they are likely to become homeless within 56 days; or
• they have been served with a valid Section 21 notice which will expire within 56 days (Housing Act 1996, section 175(4) & (5).

14. 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).
15. If councils are satisfied applicants are threatened with homelessness and eligible for assistance, they must help the applicants to secure that accommodation does not stop being available for their occupation. In deciding what steps they are to take, councils must have regard to their assessments of the applicants’ cases (Housing Act 1996, section 195).
16. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. When a council decides this duty has come to an end, it must notify the applicant in writing (Housing Act 1996, section 189B).
17. 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 their occupation (unless it refers the application to another housing authority under section 198). But councils will not owe the main housing duty to applicants who have turned down a suitable final accommodation offer or a Housing Act Part 6 offer made during the relief stage, or if a council has given them notice under section 193B(2) due to their deliberate and unreasonable refusal to co-operate (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39).
18. Examples of applicants in priority need are:

• people with dependent children;
• pregnant women;
• people who are vulnerable due to serious health problems, disability or old age;
• care leavers; and
• victims of domestic abuse

19. 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, from 3 April 2018 Homelessness Code of Guidance 18.32 and 18.33).

Housing allocations

20. 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)).
21. 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))

22. The Council operates a choice-based lettings scheme which enables housing applicants to bid for available properties which it advertises.
23. The Ombudsman recognises that the demand for social housing far outstrips the supply of properties in many areas. He may not find fault with a council for failing to re-house someone, if it has prioritised applicants and allocated properties according to its published lettings scheme policy.

Disrepair

24. Private tenants may complain to their council about a failure by the landlord to keep the property in good repair. Local authorities have powers under the Housing Health and Safety Rating System (introduced by the Housing Act 2004, Part 1) to take enforcement action against private landlords where the council has identified a hazard which puts the health and safety of the tenant at risk.

Key events

Homelessness

25. Miss C contacted the Council about her housing situation towards the end of May 2021 as she had received a section 21 notice from her landlord. Miss C highlighted she had a permanent disability and used a wheelchair. There is a note on the Council’s records that the application was to be treated as non-urgent as Miss C was not homeless until June.
26. The Council contacted Miss C to make a telephone appointment and sought the contact details for the landlord. Miss C’s carer responded to explain Miss C was in hospital and to confirm the best time of day for a telephone call once she was home as she found calls difficult to manage.
27. Miss C contacted the Council at the end of May to explain her physical difficulties and that she could not provide all the identify information requested as she was currently displaced from her home and living with her parents. Miss C also explained her elderly parents had advised they could not continue to provide accommodation for both her and her carer in their small property.
28. The Council contacted Miss C in early June to say they could correspond via email until Miss C felt better and she did not need to leave the property on the date the section 21 notice ended and it would look to keep her in her property to avoid emergency accommodation. The Council noted Miss C had said she could not continue to stay at her parents and asked about why she was not living at her property. The Council noted a previous disrepair case had been closed on the basis the property was habitable and asked if there had been any significant changes in the property or her health since then. The Council confirmed it was focussing on the section 21 notice as the threat of homelessness and noted the property remained available and was habitable and once the situation was clarified if alternative accommodation was needed this was likely be via the private rented sector.
29. The Council made contact with Miss C’s landlord in early June and they confirmed the section 21 notice remained in place and the reasons they wanted the property available. The landlord stated Miss C had not been living at the property for a year but had wanted to keep the address for registration purposes for her medical support.
30. The Council contacted Miss C in June to ask about the information provided by the landlord and as the section 21 notice had ended if she had or intended to return the keys.
31. Miss C’s landlord contacted the Council again in mid-June to ask about progressing possession action as Miss C had not returned the keys after the expiry of the section 21 notice and her belongings remained at the property.
32. The Council contacted Miss C in mid-June to clarify whether Miss C had meant to update her housing application rather than make a homeless application as there would be no progress with her housing application until the conclusion of the homeless application. The Council explained it was basing Miss C’s homeless application solely on the section 21 notice as a previous homeless application had been closed as the property was found to be habitable. It was noted Miss C had not lived at the property for a year and as the section 21 had ended would need to leave the property even if she had been living there. The Council confirmed Miss C would not be making herself intentionally homeless if she now returned the keys which may be worth doing if she did not intend returning to the property. The Council stated emergency accommodation would not be ideal for Miss C as it would be difficult to find something suitable given the needs she had provided. The Council suggested it may be best for Miss C to remain with her family while it further considered its duties and the longer term options. The Council explained the quickest option may be the private rented sector as it could take years to find social housing as she was not eligible for sheltered housing. The Council noted Miss C was living with family outside of its area and suggested she may wish to consider approaching that local authority as it may have more housing available.
33. The Council contacted Miss C at the end of June to say she would be considered homeless if she returned the keys to her landlord and it would start a 56 day relief duty at the end of which it would consider accepting her as homeless. The Council outlined it was likely Miss C would be deemed as being in priority need, eligible for assistance with a local connection to the Council’s area and would not be considered as intentionally homeless as the landlord had started the eviction process. However, the Council noted Miss C currently had a tenancy in her name and until court proceedings and bailiffs were involved she was not homeless. The Council explained it needed to make a referral to its Adult Social Care team for an assessment to establish what would be suitable to meet Miss C’s needs. The Council noted the landlord had not started possession proceedings and wanted Miss C to return the keys. The Council noted this may be the best course of action to avoid costs as Miss C not living at the property and asked Miss C to confirm her intentions. Miss C’s carer confirmed they would consider the above and revert.
34. Miss C’s landlord contacted the Council at the end of June to say they were reluctantly starting eviction proceedings.
35. The Council contacted Miss C at the beginning of July to confirm the housing process could now start as she was threatened with homelessness due to possession proceedings starting. The Council noted the only option to prevent Miss C’s homelessness was the private rented sector. The Council stated if Miss C became homeless due to action by bailiffs it would start the 56 days relief duty and try to resolve the issue through the private rented sector and consider accepting the main duty if this was not successful. If Miss C met the criteria she would be placed on the list for long term temporary accommodation and be placed on the housing register as Band C (accepted homeless) to bid for properties. As Miss C had asked about storage of possessions, the Council explained it would wait at least for the 56 days from the start of the relief duty before temporary accommodation was an option and could not provide a timeframe for this as it could be several months. There followed contact during July about the impact on benefits of leaving the property, the Council’s ability to arrange storage for a fee, emergency accommodation and links to the relevant legislation and guidance.
36. The Council wrote to Miss C confirming it had accepted a prevention duty as it considered she was eligible and threatened with homelessness in early August and set out the right to request a review. This letter enclosed a copy of a Personal Housing Plan (PHP). This noted that the section 21 notice had expired but the landlord would still need to take possession proceedings to gain access to the property. It further noted that Miss C was living with family outside of the Council’s area as she did not consider her property was suitable. The actions recorded for the Council include a referral to its Direct Lets service to support seeking private rented accommodation and a referral to Adult Social Care should Miss C become homeless. It also says if Miss C qualified the Council would work to get her live on the Housing Register. The Council contacted Adult Social Care towards the end of August about how to make a referral.
37. The Council contacted Miss C at the end of August noting it appeared she had available funds for a deposit and rent in advance and would be expected to look for private rented accommodation.
38. Miss C’s carer contacted the Council in early September to say she could not access the property to prepare to move out due to disrepair issues and an anti-mould treatment would be needed to mitigate the respiratory risk to them both.
39. The Council spoke with Miss C and reviewed the situation in early September and sent a revised copy of the PHP. This noted the travel difficulties Miss C would have in viewing properties which the Council would discuss with its Direct Lets service. The Council confirmed the financial information it needed and that it had spoken to her landlord about repairs to handrails which would be completed once COVID-19 restrictions were lifted and an agreement about mould treatment.
40. The Council received confirmation in early September that there was no current involvement by Adult Social Care as it had completed an assessment the previous year but could not address her needs as she was living outside of the Council’s area which had been confirmed to Miss C at the time.
41. There is a note on the Council’s system records in mid-October that this was a backlog case from June.
42. There is no further contact in relation to Miss C’s homelessness situation until mid-May 2022 when she complained about the lack of progress. There is a note on the Council’s record at this time that the case officer placed the case on their rising backlog and did not consider they were really homeless and had assumed they did not need further assistance especially as they were not street homeless.
43. The Council provided a response to Miss C’s complaint towards the end of June and apologised for the delay. The Council noted Miss C’s homeless application from May 2021 and that it had accepted a prevention duty and completed a PHP and that it was agreed Miss C would continue to stay with family.
44. Miss C escalated her complaint and the Council provided a response at the second stage of its complaint procedure in August. The Council completed a review of Miss C’s application. The Council sought an update from Miss C in early August about her current living arrangements and if she still had the previous tenancy. The Council wrote to Miss C towards the end of September with a reminder for the requested information with a deadline in October.
45. Miss C provided information in October including court confirmation about accelerated eviction. The Council wrote to Miss C in mid-October to accept the main housing duty.
46. Miss C obtained a social tenancy in October 2022. The Council notes this is a relatively short timescale from Miss C’s application in May 2021 compared with the experience of most other applicants.
47. The Council says as Miss C was not living in the area it was difficult to make and maintain contact to obtain the necessary information to progress the application. The Council says Miss C’s response to the possession action also changed during this period and she did not follow the advice provided by the Council. The Council says it was difficult to establish an early timeline for the prevention duty as the position was not straightforward. However, the Council has accepted that a more robust approach to establishing effective communication with Miss C and in applying her circumstances to the specific requirements of its Part 7 duties and timescales may have reduced the delay in accepting the prevention duty and completing and reviewing the PHPs. The Council notes it was ready to accept a relief duty on expiry of the section 21 notice and it had provided comprehensive advice to Miss C about the ending of her tenancy. The Council further notes that it had proved difficult to establish Miss C’s position in relation to the possession action and her living arrangements.
48. The Council was not able to identify and offer suitable private sector accommodation through its Direct Lets service. The Council notes there was a nine month delay from September 2021 until Miss C contacted it again in May 2022. The Council says it reasonably assumed Miss C had made her own arrangements. The Council accepts it has not kept records of what, if any, contact was attempted with Miss C during this period.

Housing register application

49. Miss C contacted the Council towards the end of September 2021 to ask for help as she was not able to access her account. There is a note on the Council’s system that it had not assessed Miss C’s original application (made in 2018) as it was incomplete. The Council says this was why Miss C was not able to log onto the system to bid for properties and it had sought further information in 2019 but this had not been provided. The Council asked Miss C to complete a change of circumstances form to update her application.
50. Miss C provided some supporting information in February 2022. The Council sought further information from Miss C in May and explained she had not been able to log onto the account as her application had not been fully assessed. The Council apologised for the delay in reviewing her change of circumstances information.
51. The Council’s medical advisor completed an assessment in September. There is a system note that shows Miss C was awarded Band B (Medical) with a priority date from 21 September 2022.
52. Miss C made a successful bid for a property in October 2022.

Disrepair

53. Miss C contacted the Council towards the end of December 2022 seeking an inspection of her property which was due to end in January 2023. The Council visited the property in early January 2023. The report from this visit noted damp staining that appeared result of penetrating damp on upper party and rear wall internally in rear bed and some mushroom growth and high moisture readings in area. It was noted the central heating was working and the property had UPVC windows and working extractor fans and a dehumidifier provided by the landlord. The record being told the property had not been occupied since November or December and it was not known how often it had been occupied before that which may have exacerbated any damp symptoms. The report concluded there were Category 2 hazards under HHSRS but the property was not unsuitable for occupation on disrepair grounds. It was noted that Miss C had mobility issues and difficulty accessing the flat and bathing but this aspect of suitability would need an OT assessment. This was not followed up as the tenancy ended shortly afterwards.
54. I have found no fault with this aspect of the complaint.

My consideration

Homelessness and Housing Register

55. Based on the information provided, I am satisfied the Council owed the prevention duty from the end of May 2021 when Miss C told it about the section 21 notice. I consider the delay in accepting that duty until August was fault.
56. I also note the section 21 notice served on Miss C had an expiry of July 2021. The Homelessness Code says it is unlikely to be reasonable to expect an applicant to remain in a property after the expiry of a section 21 notice. This would suggest a change of circumstances with Miss C possibly being homeless rather than threatened with homelessness and so may have been owed a relief duty rather than a prevention duty at that time. The Council should have considered whether it was reasonable in Miss C’s particular circumstances to remain past the end of her notice. The Council’s statement that until court proceedings and bailiffs were involved Miss C was not homeless is not in accordance with the Code.
57. The Council owed the relief duty lasting 56 days at some point from the expiry of the notice in July 2021. On balance, I consider this should have started during August. At this point the Council should have offered Miss C interim accommodation and made a proper record if she rejected this offer for example because she had made her own arrangements to stay with family. This did not happen which is fault.
58. Taking August as the date for accepting the relief duty, the Council should have made a decision about the main duty during October or November 2021 at the latest. In accepting the main duty, the Council should have provided the decision in writing to Miss C to provide her review rights and offered suitable temporary accommodation. This did not happen until October 2022. Therefore, there is a delay in accepting that duty of about a year which is fault.
59. I have also noted the PHP agreed in August 2021 says the Council would work to get Miss C live on the Housing Register if she qualified. Without the delay above, this action could have been completed earlier. Reasonable enquiries at this point would have identified the outstanding issue with Miss C’s Housing Register application and provided a much earlier opportunity to resolve these. I have noted once this issue was addressed Miss C received medical priority and was placed in Band B and was successful in bidding for a property very quickly. It is possible a more joined up approach at the outset when Miss C asked for assistance in May 2021 would have led to a successful bid for a property much sooner.
60. In addition, Miss C had told the Council she was living temporarily with her parents and this was not sustainable. I have seen no evidence the Council made reasonable enquiries to establish the suitability of Miss C’s temporary living arrangements during this period. Miss C has explained she did not have a private bedroom, was not able to access adequate bathroom facilities and had to travel long distances to access medical care incurring additional costs.
61. I am satisfied the combination of the above fault meant Miss C missed out on a chance to be accommodated sooner. I am also satisfied the uncertainty surrounding this has caused Miss C significant avoidable distress. I have considered the context of Miss C’s vulnerability and the length of time involved in reaching my view on a suitable remedy.

Allocation Policy

62. The Ombudsman can investigate matters coming to our attention during an investigation if we consider others who have not complained may have suffered injustice as a result.
63. The law says allocations schemes must give reasonable preference to certain groups of applicants for social housing. This includes homeless households.
64. For this purpose, homelessness includes applicants owed the prevention, relief, and main housing duties and those found to be intentionally homeless or not to have a priority need under Part VII of the Housing Act 1996.
65. In investigating this case, I considered the Council’s allocations scheme. The scheme gives priority to applicants from Band A (highest priority) to Band D (lowest priority). It awards Band A to those owed the main duty whose temporary accommodation is unsuitable or being recovered by the landlord. All other applicants owed the main duty are awarded Band C. The Council’s scheme does not give any reasonable preference to any other homeless applicant.
66. As a result, the Council’s allocations scheme fails to meet the statutory requirement to give reasonable preference to all applicants owed a homelessness duty. This is fault.
67. This fault may have caused injustice to people who have not complained. This would include any homeless applicant owed the prevention or relief duties and those found intentionally homeless or not in priority need who were not allowed to join the housing register.

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Agreed action

68. To remedy the injustice to Miss C the Council will:
1. write to apologise to Miss C for the fault identified in the way it dealt with her homelessness application within one month of my final decision;
2. provide a significant symbolic payment of £2,000 to recognise Miss C’s avoidable uncertainty and distress about the opportunity of being offered suitable accommodation much sooner within one month of my final decision;
3. provide guidance to staff who manage homelessness applications to highlight the issues identified in this decision and ensure a joined up approach is used when dealing with applications within two months of my final decision; and
4. review its approach to applicants subject to a section 21 notice to ensure it is in accordance with the Homelessness Code within two months of my final decision.
69. To remedy potential injustice to others who have not complained the Council will:
1. review and amend the allocations policy to ensure that all those entitled to reasonable preference under the Housing Act 1996 receive such preference under the Council’s scheme;
2. within three months of implementing the revised policy identify all homeless applicants currently owed a homelessness duty under Part 7 of the Housing Act 1996 who do not have an active application to the housing register; and
3. write to those applicants explaining the fault found in this investigation and invite them to apply to the housing register.
70. In response to an earlier draft of this statement the Council confirmed it had already started work on reviewing its allocations policy with a proposed date of December 2024 for approval of a revised policy by the relevant Committee. The Ombudsman is satisfied with the proposed timescale given the statutory nature of the process.
71. The Council should provide us with evidence it has complied with the above actions.

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Final decision

72. I have completed my investigation as I have found fault by the Council but consider the agreed action above provides a suitable remedy.

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Investigator's decision on behalf of the Ombudsman