Birmingham City Council (22 006 364)

Category : Housing > Allocations

Decision : Upheld

Decision date : 26 Mar 2023

The Ombudsman's final decision:

Summary: The Council was wrong to close Mr and Mrs B’s homelessness case, which resulted in their removal from the housing register. The Council also delayed assessing and reviewing Mr and Mrs B’s housing application and failed to properly respond to their complaints. The Council has agreed to apologise, make a payment to Mr and Mrs B, and take action to prevent similar failings in future.

The complaint

  1. Mr and Mrs B complain that the Council delayed assessing their housing application and then wrongly closed their homelessness case without telling them, which led to the Council closing their housing application.
  2. Mr and Mrs B say that as a result of the Council’s failings, they are unable to move to alternative accommodation.

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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. 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

  1. I have:
    • considered the complaint and the documents provided by the complainant;
    • discussed the issues with the complainant;
    • made enquiries of the Council and considered the comments and documents the Council has provided; and
    • given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Relevant legislation and council policy

Homelessness

  1. 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.
  2. A person should be treated as homeless if it is not reasonable for them to continue to occupy their accommodation and no other accommodation is available to them. (Housing Act 1996, section 175)
  3. The prevention duty applies when the council is satisfied that an applicant is threatened with homelessness and eligible for assistance. The council has a duty to help them to secure that accommodation does not stop being available for their occupation. (Housing Act 1996, section 195)
  4. The relief duty applies when the council is satisfied that an applicant is homeless (rather than just threatened with homelessness) and eligible for assistance. The council has a duty to take reasonable steps to help the applicant secure accommodation that will be available for at least six months. (Housing Act 1996, section 189B and Homelessness Code of Guidance 13.2)

Housing register

  1. The Council’s Housing Allocations Scheme sets out the rules for qualifying to join the Housing Register, how applicants are prioritised and how the Council manages the allocation of available properties.
  2. Applicants are eligible to join the housing register where they are owed the main housing duty, the homeless relief duty or the homeless prevention duty.

Eviction notices

  1. Landlords can issue a section 21 or section 8 notice in order to regain possession of their property.
  2. A section 21 notice enables landlords to repossess their property without having to establish fault by the tenant. They cannot be used if the council has served an improvement notice on the property in the last 6 months.
  3. A section 8 notice is used where the tenants have broken the terms of the tenancy. The landlord can apply to the court for a possession order if the tenants do not leave by the specified date.

Background and summary of key events

  1. Mr and Mrs B are living in private rented accommodation with their two daughters. In July 2021, the Council issued a notice to Mr and Mrs B’s landlord requiring him to deal with disrepair in the property.
  2. The following month Mr and Mrs B’s landlord issued them with a section 21 notice which required them to leave the property on 10 December 2021.
  3. When Mr and Mrs B told the Council that their landlord had issued the notice, it wrote to both Mr and Mrs B and their landlord to advise that the section 21 notice was invalid and the landlord would need to apply for a section 8 notice.
  4. The landlord then issued a section 8 notice informing Mr and Mrs B of his intent to commence possession proceedings after 29 December 2021.
  5. Mr and Mrs B applied to join the housing register in September 2021 and then made a homelessness application in November. The Council decided that it owed Mr and Mrs B the homeless relief duty.
  6. The Council assessed Mr and Mrs B’s housing application in February 2022. It decided they qualified to join the housing register because it had accepted a homeless duty to them. Mr and Mrs B then started to bid on properties.
  7. On 27 May, the Council wrote to Mr and Mrs B to advise that its homeless relief duty had come to an end. It said that it had been unable to contact them by telephone and as they had lost contact with the Council, it was treating their homelessness application as withdrawn. Mr and Mrs B say they did not receive this letter.
  8. On 13 June, the Council wrote to Mr and Mrs B after re-assessing their housing application. It said that they did not qualify to join the housing register because they did not have a recognised housing need. Mr and Mrs B immediately requested a review of the Council’s decision.
  9. Mr and Mrs B contacted the Council’s homelessness team and discovered that their case had been closed because the Council had been unable to reach them. A fresh homelessness application was taken and the Council decided that it owed Mr and Mrs B the prevention duty.
  10. Mr and Mrs B then made a formal complaint to the Council. They said that no one had tried to contact them by email or phone and the Council should not have closed their homelessness case or their housing application.
  11. In the Council’s response to Mr and Mrs B’s complaint, it confirmed that the homelessness case was closed due to loss of contact. It explained that this led to the closure of their housing application because their access to the register was based on their homeless status. It apologised for not communicating this to them at the time.
  12. The Council said that it could not reverse the decision to close the homelessness case because the section 21 notice issued by their landlord was invalid, and so they could not be considered to be homeless or at risk of homelessness.
  13. Mr and Mrs B then complained that the Council had failed to consider the section 8 notice which was issued by their landlord after the invalid section 21 notice.
  14. In the Council’s response, it repeated that the section 21 notice was invalid and made no reference to the section 8 notice. It said that in order to qualify to join the housing register on homeless grounds, applicants are required to have been accepted as being homeless by the Council and owed the main duty, the prevention duty, or the relief duty. It told Mr and Mrs B that if their homeless status was reinstated, they could reapply to join the housing register.
  15. In October 2022, an officer from the Council’s homelessness team spoke to Mrs B and she confirmed that they were not threatened with homelessness at that time. The Council then wrote to Mr and Mrs B to confirm that it had decided they were not homeless or threatened with homelessness and so it did not have any duty to prevent or relieve homelessness.
  16. The Council reviewed its decision on Mr and Mrs B’s housing application in November. It upheld its decision that they did not qualify to join the housing register.

Analysis

Homelessness case

  1. I have seen no evidence to suggest the Council tried to contact Mr and Mrs B before it closed their homelessness case due to loss of contact in May 2022. The evidence suggests the decision was made to close the case because the case officer wrongly believed that Mr and Mrs B had not provided documents which she had requested. I consider the Council was wrong to close Mr and Mrs B’s homelessness case, and if there had been no fault by the Council here, their housing application would not have been closed in June 2022.
  2. The Council’s records show that it wrote to Mr and Mrs B on 27 May 2022 with its decision to close their homelessness case. However, it is clear that they did not receive the letter and only found out about the decision after their housing application was closed on 13 June 2022.
  3. When the Council reopened Mr and Mrs B’s homelessness case in June 2022, it failed to notify the housing team that they were owed the prevention duty. As a result, the housing team wrongly believed that Mr and Mrs B did not qualify to join the housing register.
  4. When the Council decided on 6 October 2022 that Mr and Mrs B were not homeless or threatened with homelessness, the section 8 notice was no longer valid as it had been issued more than 12 months earlier. Mrs B had also confirmed to a Council officer that they were not threatened with homelessness at that time. I therefore do not consider there was fault in the way the Council decided that Mr and Mrs B were not homeless or threatened with homelessness. The Council initially failed to provide Mr and Mrs B with details of their right to request a review of the decision, but it remedied this by issuing a second decision letter on 18 November 2022 which explained how they could request a review.
  5. Mr B argues that they are threatened with homelessness because they do not have a tenancy agreement. If Mr B disagreed with the Council’s decision that they are not threatened with homelessness, I consider it would have been reasonable for him to request a review.

Housing application

  1. Mr and Mrs B applied to join the housing register in September 2021. We consider councils should assess applications within four to six weeks. The Council did not assess Mr and Mrs B’s application until February 2022. This delay was fault. If there had been no delay, Mr and Mrs B would have joined the housing register on 8 December 2021, when the Council accepted a homeless duty to them.
  2. When the Council decided that Mr and Mrs B no longer qualified to join the housing register on 13 June 2022, they immediately requested a review of the decision. Reviews should be carried out within eight weeks. In this case, the Council reviewed the decision on 2 November 2022, 20 weeks later. This delay was fault. However, I have found no fault in the way the Council decided in November that Mr and Mrs B no longer qualified to join the housing register.

Complaints

  1. The Council’s responses to Mr and Mrs B’s complaints were poor. The Council’s initial response shows that it had failed to recognise that Mr and Mrs B’s homelessness case had been reopened, the Council had accepted it owed a homeless duty to them and they were eligible to join the housing register. The Council failed to recognise this again when it responded at the second stage of its complaints procedure. It said that Mr and Mrs B did not qualify to join the Council’s housing register because they were not owed the main housing duty, the relief duty or the prevention duty. But in the same letter it said that they were owed the prevention duty. The letter was contradictory and showed a lack of understanding of the matter. It also referred again to the invalid section 21 notice after Mr and Mrs B had explained that a valid section 8 notice had been served.

Injustice

  1. I consider the Council’s failings in this case have caused Mr and Mrs B significant frustration and have put them to avoidable time and trouble.
  2. If there had been no fault by the Council in this case, I consider Mr and Mrs B would have been able to bid on properties between 8 December 2021, when they were owed the relief duty, and 27 August 2022, when the section 8 notice expired. The evidence provided by the Council shows that it is unlikely that Mr and Mrs B would have been offered a property if they had been able to bid for the whole of this period.

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Agreed action

  1. Within four weeks of my final decision, the Council will apologise for the failings in this case and make a payment of £350 to acknowledge Mr and Mrs B’s frustration and the time and trouble they have been put to pursuing this matter.
  2. Within eight weeks of my final decision, the Council will:
    • Review its procedures for closing homelessness cases due to loss of contact, to ensure it always tries to make contact with the applicant before closing the case.
    • Remind officers of the correct procedure for reopening homelessness cases, to ensure the housing team is notified when a homeless duty has been accepted.
    • Highlight this case to relevant complaints officers and take action to improve the way it responds to complaints.
  3. The Council has accepted that it has ongoing delays in processing and reviewing housing applications. It has provided us with an updated action plan which shows the action it has taken and continues to take to reduce delays in dealing with housing applications and review requests.

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Final decision

  1. I have completed my investigation and uphold Mr and Mrs B’s complaint. There was fault by the Council which caused injustice. The actions the Council has agreed to take are sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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