Summary: Ms X, on behalf of her son Mr Y, complained the Council was discriminatory as it did not properly consider new medical evidence or his circumstances for his application to the housing register. We found the Council at fault for not carrying out homelessness enquiries. The Council has agreed to our recommendations to remedy this injustice.

The complaint

1. Ms X, on behalf of her adult son, Mr Y, complains the Council did not consider new medical information she sent before it removed his application to join the housing register from its system. The Council has since considered the information and confirmed it stood by its previous decision that he did not qualify to join the scheme and there were no exceptional circumstances for him to do so.

2. Ms X disagrees with this decision. She says the Council has discriminated against her son because of his sexual orientation. She says he is living in fear, and it is his desire to move to the area to gain access to a wider community which would help with his mental health issues and improve his quality of life. This is causing distress, frustration, and negative mental impact to the both of them.

Back to top

The Ombudsman’s role and powers

3. 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)
4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
5. 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)

Back to top

How I considered this complaint

6. I discussed the complaint with Ms X, Mr Y’s mother, who is dealing with the complaint on his behalf, and considered her views.
7. I made enquiries of the Council and considered its written responses and information it provided.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legal and administrative background

The Council’s housing allocation scheme

9. The allocations scheme sets out how the Council allocates its social housing. The scheme is to make sure priority is given to those most in need, as defined in legislation and in accordance with local priorities. This is to ensure the Council makes the best use of its housing stock.
10. The Council has restricted who can qualify to join its housing register to those who have lived in Manchester continuously for the last two years. It has some exceptions to this rule. It also states manager’s discretion can be used to not apply the residency qualification in exceptional circumstances.

Homelessness

11. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities sets out councils’ powers and duties to people who are homeless or threatened with homelessness.
12. If a council has ‘reason to believe’ a person may be homeless or threatened with homelessness, it must take a homelessness application and make enquiries. 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)
13. The council will make enquiries to establish whether the person is:
• eligible for assistance;
• homeless or threatened with homelessness;
• in priority need; and
• not intentionally homeless.
14. A council must secure interim accommodation for the person 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.)
15. If councils are satisfied applicants are homeless and eligible for assistance, they must take reasonable steps to help them 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. The relief duty lasts a maximum of 56 days. (Housing Act 1996, section 189B)
16. At the same time, the council may make enquiries to establish whether the applicant has a “local connection” with it. Generally, applicants may have a local connection if they live in the council’s area (or have lived there in the past), work in the area, or have family associations in the area.
17. If the council determines the applicant has no local connection to it but has a local connection with another council in England, it can make a referral to that council during the relief duty if certain conditions are met. (Housing Act 1996, section 198(A1))
18. A referral cannot be made to another council if the applicant or someone in their household will be at risk of domestic abuse or other violence in that council’s area. (Homelessness Code of Guidance, paragraph 10.51).

Equality Act 2010

19. The Equality Act 2010 (“the EA”) provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection in the provision of goods and services, and the carrying out of public functions.
20. The EA makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the EA. This includes sexual orientation.
21. We cannot decide if an organisation has breached the EA as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
22. Organisations will often be able to show they have properly taken account of the EA if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged.

Background

23. I have summarised below the key relevant events. This is not intended to be a detailed account of every communication or everything that happened.
24. Mr Y lives in Council B’s area. The subject of this complaint is Manchester City Council, which we refer to as “the Council”. Mr Y previously applied to join the Council’s housing register. The Council said he did not qualify as he had not lived continuously in Manchester for two years; a requirement outlined in its Allocations Policy. It considered the supporting information he sent and said he did not meet the exemption criteria.
25. In June 2022, after complaining to the Council, it sent its final response to Mr Y. It maintained its decision to not allow him to join the housing register and there were no exceptional circumstances to override the residency requirement.
26. In August, we considered a complaint from Ms X to us about the matter. We did not find fault with how the Council applied its Allocations Policy in Mr Y’s case.

What happened

27. In September 2022, Ms X, on behalf of Mr Y, sent the Council two further letters of support from his psychotherapist. The letters referenced the difficulties Mr Y has with his mental health, as a result of historic incidents and the constant risk he felt living at his current location. One stated “…the associations of Manchester to [Mr Y’s] gender and sexuality, I feel that he needs to move in order for him to have any chance of living his life”.
28. Ms X said the Council emailed to say Mr Y’s application had been removed from its system and she was told through a phone call that the letters had not been looked at. She said she sent the information a further two times and had no response. She then complained to us.
29. In December, the Council wrote to Mr Y after considering the further information. It made reference to the psychotherapist letters:
• “He states in his letter you are living in fear. If you are unable to continue to live in your home because of this, you can contact your local homelessness service at [Council B] for advice and assistance”; and
• “We have received no evidence that Manchester is the only safe place for you to live and that you cannot be rehoused safely elsewhere. If you are in fear, we would encourage you to contact [Council B] as soon as possible”.
30. The Council said after taking into account this further evidence, its position was the same. It maintained Mr Y did not qualify to join and it considered his request for exemption, but he did not meet the criteria.

The Council’s response to my enquiries

31. The Council said it received the first letter from Mr Y’s psychotherapist at the beginning of September. It said the new information did not add anything significantly new and the decision was made for the status of his application to be “removed” from the system as he did not qualify. The Council has clarified Mr Y’s application had never been accepted on the register as it had only ever been under “non-qualifying” status.
32. Two weeks later, after Ms X rang the Council, it emailed her to inform her about Mr Y’s application status. The Council received the second psychotherapist letter at the end of September. It emailed her in October acknowledging the further evidence and sent her its final response in December.
33. The Council said Mr Y had not said he was threatened with homelessness, which is why it advised him to approach Council B, his local area, for assistance. From December 2022, it had an automatic link in place to flag housing applications where an applicant had told it they were threatened with homelessness and not yet contacted the Council.
34. I asked the Council what consideration it had given to Mr Y wanting to live in Manchester because of the association with his gender and sexuality. The Council stated a person’s desire to move to a certain area is not part of its decision-making process about whether a person qualifies to join the housing register. It was proud to have a reputation of having an inclusive LGBTQ+ community, but this was not a justification for it admitting someone to its scheme. It said it did not accept Manchester was the only place he could live safely.
35. The Council has since provided me with further evidence. These were relevant paragraphs in a decision letter dated May 2022 to Mr Y’s original application to the housing register. Ms X previously complained to us about this, and we found no fault (referred to in Paragraphs 24-26). These outlined reasons why it would not accept him onto the register and referred to its consideration of the information he had sent, including some reference to his sexuality. We did not have sight of this when we made our decision to the previous complaint.

Analysis

Housing Register Further Evidence – Equality Act 2010

36. I recognise the Council’s view that wanting to move to a certain area is not justification for qualifying to join the register. But the Council did assess further evidence to decide if there were any exceptional circumstances (which Mr Y felt he met), so there is broader scope in what it can also consider.
37. Mr Y’s psychotherapist stated why he felt Mr Y moving to Manchester would be a suitable solution to his mental health difficulties, mentioning its links to the gay community. We note in its December 2022 decision letter, the Council did not make reference to the reason he wanted to move to Manchester, specifically because of his sexuality and why it was believed this would benefit him. We would have expected the Council have considered his protected characteristic (which he raised as a relevant factor) and acknowledged it in more detail within in its decision making.
38. Had this letter been a standalone decision to Mr Y’s application, I would have found fault. However, I have taken into account that Mr Y had a previous application and decision. This includes the letter I have now seen referred to in Paragraph 35 which demonstrates the decision maker did have their mind to his protected characteristic. This current complaint relates to further information Ms X provided since. The Council has made a fresh decision which did not mention his sexuality. However, I consider as a whole, this was a continuation of communication with Mr Y relating to information which had already been considered (including his protected characteristic) and noted by the Council previously. Therefore, I am satisfied the Council has had due regard to its duties under the Equality Act 2010. I do not find fault.

Homelessness

39. Mr Y approached the Council for assistance as he wanted to join its housing register. In its final response, the Council acknowledged Mr Y was “living in fear” and recognised the possibility this meant he could not continue living in his home. A person can be legally homeless if it is not reasonable to remain in current accommodation. This was sufficient information for the Council to have “reason to believe” that he “may be” homeless on these grounds. It is a low threshold. Under section 184 of the Housing Act 1996, this meant it was under a duty to make enquiries about whether he was eligible for homelessness assistance and if so, what duties it may owe him.
40. The Council said Mr Y did not say he was threatened with homelessness. However, we do not expect applicants to know when homelessness duties are triggered and should be acted upon. It is the duty of the council to make the enquiries. The Homelessness Code of Guidance does not require people to specifically say they’re homeless, complete a particular form, or contact a particular department. It says councils should be alert to cases where an enquiry about a social housing scheme provides reason to believe an applicant might be homeless and should be treated as an application for homelessness assistance. The Council did not in this case. This is fault.
41. Anyone can approach as homeless to any council, therefore it was fault for the Council to direct Mr Y back to Council B. It could only refer him back to Council B if it accepted a relief duty and there is a process it has to follow to do that. It could not refer him if returning to Council B’s area would put him at risk of domestic abuse or other violence. The Council should have made enquiries into what, if any, duty it owed him. This should have included whether it was safe for him to return to his local area.
42. If the Council had appropriately made enquiries, it would have decided if it owed him a homelessness duty. It should have given him a formal written decision on this with a statutory right to review this if he disagreed with it. On balance, we conclude enquiries would have led to the Council assessing it had “reason to believe” Mr Y is in priority need due to his mental health and therefore he was entitled to interim accommodation whilst it carried out homelessness enquiries. This has caused uncertainty on what it might have decided were it not for the fault, and a loss of statutory appeal rights for Mr Y. This is injustice.
43. The Council has said it accepts it was at fault for this. It said it has progressed into making homelessness enquiries into Mr Y’s case, with a view to avoiding any further delay for him. This is welcomed.

Back to top

Agreed action

44. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
45. Within one month of the final decision:
• Apologise to Mr Y for not properly considering his request for housing assistance and acting on its duty to make homelessness enquiries;
• Pay Mr Y £100 to recognise his uncertainty and frustration; and
• Continue making homelessness enquiries into Mr Y’s case in line with law and guidance, including its duty to secure interim accommodation. After which, a formal decision should be issued to him carrying a statutory right of review.
46. Within three months of the final decision:
• review its processes to ensure if the Council is given “reason to believe” an applicant is homeless or is threatened with homelessness, it treats it as a homelessness application. It should send written reminders to relevant staff and amend any internal policy or process documents accordingly.
47. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

48. I found fault with the Council which caused injustice to Mr Y. The Council has agreed to my recommendations to remedy this, and I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman