Summary: The Council was at fault, because it did not seek to clarify a housing register and homeless applicant’s immigration status with the Home Office, despite this being a requirement of the statutory guidance. The Council was also at fault because it did not issue formal decisions on either the housing register or homelessness application, denying the complainant an opportunity to request a review. The Council has agreed now to complete these actions.

The complaint

1. I will refer to the complainant as Mr J.
2. Mr J complains the Council has failed to process his housing register application due to what it says are problems with the information he has provided, in particular about his EU Settlement status. Mr J says the information demonstrates he is eligible to join the housing register and believes the Council is purposefully obstructing his application.

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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)

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How I considered this complaint

4. I reviewed the Council’s notes and its correspondence with Mr J.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. The Council’s housing allocations scheme is administered by a private company it owns called Northampton Partnership Homes (NPH). Although NPH is a separate entity it is performing a statutory administrative function on the Council’s behalf, and therefore the Council is the responsible body for this complaint. For simplicity, therefore, I will refer only to ‘the Council’ for the remainder of this decision statement.
7. Mr J is an EU citizen, but was born outside the EU. He says he has lived continuously in the Council’s area for approximately 15 years, but for a long time he has had no fixed address. Mr J says he has spent some of this time living with friends, but mostly he has lived in a van he owns, which he parks in different locations.
8. In August 2021 Mr J wrote to the Council saying he was homeless and explaining his living situation. Mr J noted he suffered from several medical conditions, and said he could not live in shared accommodation for this reason.
9. The Council made an appointment for Mr J at the beginning of September, during which he provided his passport, an online ‘share code’ to verify his EU settled status, a payslip and bank statements covering several years. A week later, the Council wrote to Mr J to confirm it had registered his application, but explaining there was a backlog of applications and it would take 8-12 weeks for the Council to deal with it.
10. In December, Mr J emailed the Council to enquire about its progress, and reiterated his current living conditions. The Council replied in January 2022 to say it could not give a timescale for when his application would be considered. However, it did inform Mr J the settled status share code he had provided was invalid.
11. A few days later the Council assessed Mr J’s application, and decided the documents he had provided were insufficient. This included that he had provided no evidence of his medical conditions, and only vague references to previous addresses he said he stayed at. The Council noted again it had been unable to verify his settled status yet.
12. On 14 January the Council informed Mr J it had cancelled his application. Later that day, Mr J provided a new share code and explained it must be used in conjunction with the date of birth in his passport. However, the Council wrote to Mr J a few days later to explain this code proved only his right to rent, and not his settled status. Mr J then provided another share code, which the Council again said was invalid.
13. After some investigation the Council established there was a contradiction in Mr J’s recorded date of birth, and identified this as a potentially being the reason the share codes were not working. However, Mr J insisted other organisations had been able to access his status using the date of birth he had given the Council, and accused the Council of treating him unfairly.
14. The Council then asked Mr J if he could provide a copy of his residence permit or ID card instead. Mr J replied to ask what kind of ID card the Council meant, and that the Council should need only his passport and digital document, accessed via the share code, to prove his settled status. Mr J said the Council should contact the Home Office if the code was not working.
15. The Council emailed Mr J in February to ask again if he had a residence permit or ID card, and whether he had contacted the Home Office about the problem with the share code. Mr J replied to ask again what the Council meant by an ID card, and reiterated it needed only his passport and share code to prove his status.
16. The Council repeated its request for Mr J to provide a residency permit or ID card, or a new shared code, and said it would not consider his application further without these. Mr J replied to say he had contacted the EU Settlement Resolution Centre, which had confirmed the share codes he had provided should be working, and asked the Council to contact it.
17. In March, the Council noted it had tried Mr J’s share codes with two different dates of birth, but neither had worked. In an internal email, it established that residence permits were no longer valid for EU citizens and that they all needed to have obtained settled status. The Council also noted again Mr J had not provided evidence of his medical conditions, or satisfactory evidence of his address history.
18. In August, Mr J submitted a formal complaint to the Council. He accused the Council of dishonestly claiming the share codes he had provided were invalid, and complained it had refused to contact the Home Office when he had asked it to.
19. The Council responded to say it had reviewed Mr J’s application for housing, but had confirmed the share codes were invalid. It also said Mr J had not provided a full five-year address history, as it had requested, or any proof of his medical conditions. The Council said it could not process his application without these documents.

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Legislative background

Housing allocations

20. Every local housing authority must publish an allocation 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. At paragraph 3.13, the Allocation of accommodation: guidance for local authorities says:

“If there is any uncertainty about an applicant’s immigration status, it is recommended that authorities contact the Home Office.”

22. The Localism Act 2011 introduced new freedoms to allow councils to better manage their waiting list and to tailor their allocation priorities to meet local needs.
23. At paragraph 3.3.4, the Council’s allocation scheme says:

“With the exception of Armed Forces personnel falling … any applicant will be required to meet the local connection criteria in order to qualify to join the Housing Register for an allocation. A local connection will be established if:

a) you have lived in Northampton for the last 3 years

b) you work in the area (there is no need for a 3 year working period but must comply with section 5.14 and demonstrate a housing need in accordance with the Housing Allocations scheme)

c) you want to live near to a close relative who has lived in Northampton for more than 5 years and receive or provide support/care or

d) there is another very specific reason why you need to live in Northampton, (for example severe social or medical needs).”

Homelessness

24. If there is reason to believe that a person may be homeless, or threatened with homelessness within the next 56 days, the housing authority must carry out an assessment to determine if this is the case, and whether the person is eligible for assistance. The person does not have to complete a specific form or approach a particular department of the council. (Housing Act 1996, section 184 and Homelessness Code of Guidance paragraphs 6.2 and 18.5)
25. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. This is called the ‘relief duty’. When a council decides this duty has come to an end, it must notify the applicant in writing (Housing Act 1996, section 189B)
26. A council must secure interim accommodation for an applicant and their household if it has reason to believe the applicant may be homeless, eligible for assistance and have a priority need. (Housing Act 1996, section 188)
27. Homeless applicants may request a review within 21 days of being notified of the following decisions:

• their eligibility for assistance;
• what duty (if any) is owed to them if they are found to be homeless or threatened with homelessness;
• the steps they are to take in their personalised housing plan at the prevention duty stage;
• giving notice to bring the prevention duty to an end;
• the steps they are to take in their personalised housing plan at the relief duty stage;
• giving notice to bring the relief duty to an end;
• giving notice in cases of deliberate and unreasonable refusal to co-operate;
• to notify their case to another authority when the Council considers the conditions for referral are met;
• whether the conditions are met for the referral of their case to another housing authority;
• the conditions for referral to another authority are not met so the notifying housing authority owes the main housing duty;
• the suitability of accommodation offered to the applicant after a homelessness duty has been accepted (and the suitability of accommodation offered under section 200(3) and section 193). Applicants can request a review of the suitability of accommodation whether or not they have accepted the offer.

28. The review must be carried out by someone who was not involved in the original decision and who is more senior to the original decision maker. The reviewing officer needs to consider any information relevant to the period before the decision was made (even if only obtained afterwards) as well as any new relevant information the council has obtained since the decision. (The Homelessness (Review Procedure etc.) Regulations 2018, Homelessness Code of Guidance Chapter 19)

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Analysis

29. Mr J complains the Council has failed to process his application to join the housing register, for what he considers to be spurious reasons.
30. Mr J has explained his date of birth was never formally registered in his country of birth. Because of this, when he later gained citizenship in an EU country, it issued him with a passport with a date of birth which read “XX/XX/[year]”.
31. Mr J subsequently moved to the UK. When he applied for a National Insurance (NI) number, for recording purposes the Government gave him a default date of birth of “31/12/[year]”.
32. Mr J says he applied for EU settled status with his ‘XX/XX’ date of birth, and that other organisations have successfully verified his status with this date. However, the Council says it has tried the various codes provided by Mr J with both dates of birth, but without success.
33. Unfortunately I am not in a position to resolve this confusion. I understand Mr J considers the Council has dishonestly claimed the codes were not working, but there is no evidence to support this, and I have no reason to doubt the Council’s word. And, as proving his settled status is a mandatory part of the housing allocation process, it was inevitable Mr J’s application would go no further while this remained the case.
34. However, I note Mr J investigated the matter himself with the EU Settlement Resolution Centre, which confirmed the codes should be working, and he asked the Council to contact it itself. I asked the Council if it had done this. It replied:

“I can confirm that Northampton Partnership Homes did not contact the telephone number provided as this is not standard practise for them to obtain an applicant’s immigration status. The Housing Allocations and Choice Based Lettings Scheme states that if the applicant fails to supply evidence to support their application, the application will not be moved on and will be cancelled.

“It is the applicant who has the access to their immigration status for share code purposes. The codes [Mr J] provided to us were invalid …

“However, we recognise that there was missed opportunity here for the local authority team to have been provided with the information to allow a call to be made on behalf of the applicant to the Resolution Centre and we are reviewing our processes to improve information sharing in these instances, particularly where a customer is presenting as homeless. We extend our apologies to the complainant for any disadvantage this has created for him.”

35. The onus is on the applicant to provide the information necessary to support their application, and we would not generally expect the Council to seek information on an applicant’s behalf. However, in this case, Mr J had provided all the information he reasonably could about his settled status. Under such circumstances, the statutory guidance on allocation specifically recommends councils should contact the Home Office to resolve the matter.
36. I note the Council has now accepted this, but I still find fault on this point.
37. It is unclear what effect this may have had on the outcome of Mr J’s application. Even if the Council had been able to confirm his settled status, this would not have altered the fact Mr J had also not provided adequate evidence of his address history, to meet the Council’s local connection requirement.
38. I should note, at this point, that the Ombudsman’s role is to review how councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant information, or not properly explained a decision it has made. We call this ‘fault’.
39. But we do not provide a right of appeal against council decisions, or make operational or policy decisions on councils’ behalf. If a council has made its decision without fault, then we cannot criticise it, no matter how strongly a person believes it is wrong. We do not uphold complaints simply because somebody disagrees with something a council has done.
40. In this case, the Council has explained the evidence Mr J provided to support a local connection were “vague” references to street names, without numbers. The Council is entitled to make the decision this is not satisfactory, and, this being the case, it appears the Council may still not have accepted Mr J’s application, even if it had resolved the question of his settled status.
41. However, even if this had been the Council’s decision, it should have written to Mr J to formally notify him of this, and of his right to request a review.
42. I note the Council says it informed Mr J it had “cancelled” his application on 14 January. It is not clear what the Council means by ‘cancelled’, but this strongly implies it simply closed the case without making a formal decision to refuse Mr J’s application, and without informing him of his right to request a review. I find fault again for this reason.
43. I cannot speculate whether the Council would have changed its decision upon review, but the loss of opportunity to request it was an injustice to Mr J in itself.
44. In order to remedy this injustice, I consider the Council should contact Mr J to obtain a new share code. If this still does not work, it should contact the EU Settlement Resolution Centre to seek to determine why this is.
45. The Council should then consider again Mr J’s application and issue him a formal decision, explaining his right of review. If the decision is to grant Mr J’s application, either initially or upon review, the Council should then backdate Mr J’s position on the housing register to the date of his original application.
46. On a separate note, although the Council has accepted it should have contacted the EU Settlement Resolution Centre, I am concerned it has described this as a “missed opportunity”. This implies it is simply a matter of good practice, when in fact it is an explicit recommendation of the statutory guidance. And so I consider the Council should circulate guidance to its own staff, to ensure they are aware of this.
47. I also asked the Council if it had opened a homelessness application for Mr J at any point. In response, the Council explained that it had opened an application for Mr J after his initial contact, but then closed it because he refused to engage with it:

“An application was opened from [Mr J] ... The application was closed 10/12/2021 due to [Mr J] no longer engaging. He was given full housing advice, advised to contact his GP for his medical summary, and to apply for Universal Credit. [Mr J] gave no address history and refused to consider [private rented]/shared accommodation. Outreach were unable to locate him on numerous occasions. [Mr J] advised of a location, and they located him on one occasion on 12/10/2021. They asked him to supply his wage slips and discussed his options again, but he still refused to consider all options. They contacted him again after this, but they have not heard from his since.”

48. The law says a council may close a homelessness application if it has not heard from the applicant for 56 days, and so this appears to be what happened here. However, while I acknowledge the difficulty the Council had in locating Mr J, its housing services were in contact with Mr J frequently between January and August 2022. Even if the Outreach team could not contact Mr J after October, therefore, the Council was clearly still in contact with him after this date.
49. More critically, I am concerned the Outreach team’s approach to Mr J appears to have been limited to giving him some advice. There is no indication the Council actually assessed Mr J to determine whether he engaged its homelessness duties, including the relief duty and potentially the duty to provide interim accommodation, as it should have done.
50. I am conscious Mr J’s eligibility for homelessness assistance is also dependent on his immigration status; and so while this issue remains unresolved, it is not possible to say whether Mr J is eligible or not. Similarly, it is also necessary for the Council to be satisfied Mr J has a local connection – although for a homelessness application, the rules are less stringent, because of the difficulties a homeless person can have in proving where they have been living.
51. Either way though, the Council should again have provided Mr J with a formal decision on this, which would then have given him a right to request a review. And, again, while I cannot say what substantive difference this would have made to the outcome, that Mr J lost the opportunity to request a review is an injustice in itself.
52. I therefore consider the Council should also now complete an assessment of Mr J under its homelessness duties and provide him with a formal decision.

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Conclusions

53. The Council was at fault because it did not:

• contact the EU Settlement Resolution Centre to address the problem with Mr J’s share codes;
• provide Mr J with a formal decision on his application to join the housing register; or
• complete a homelessness assessment of Mr J and provide him with a formal decision on this.

54. These faults caused Mr J an injustice because he was denied the opportunity to request a review of the Council’s decisions.
55. To remedy this injustice, I consider the Council should now reconsider and make formal decisions on both Mr J’s housing register and homelessness applications. However, as both of these decisions are dependent on Mr J’s settled status, the Council will first need to contact him again to obtain a new share code. If this still does not work then it should contact the EU Settlement Resolution Centre in an effort to address this.
56. I make recommendations to these effects.

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Agreed action

57. Within one month of the date of my final decision, the Council shouldhas agreed to:

• contact Mr J to obtain a new share code from him, and contact the EU Settlement Resolution Centre if it is still unable to prove his settled status from this.
• circulate guidance to all relevant staff, to ensure they are aware the statutory guidance recommends that, where there is confusion over an applicant’s immigration status, they contact the Home Office to seek to resolve this.

58. And then, within two months of the date of my final decision, the Council should:

• reconsider and issue Mr J a formal decision on his housing register application, explaining his right to request a review. If the Council decides to grant Mr J’s application at any stage, it should then backdate his position on the housing register to when he first applied; and
• complete a homelessness assessment of Mr J and decide whether it owes him any duty. It should then also issue Mr J a formal decision on this, explaining his right to request a review.

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

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Final decision

60. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman