Summary: Miss X complained about how the Council managed her housing needs once it agreed to a management transfer because of antisocial behaviour. She said the Council delayed in making a suitable offer of accommodation, offered an unsuitable property, and withdrew support for her move when she raised concerns about the property offered. We have found the Council at fault for not having a clear approach to prioritising and allocating properties where it has agreed a management transfer. We have also found the Council at fault for failing to consider whether it owed Miss X a homelessness duty and for a lack of clarity in its Allocations Scheme. We have made recommendations to remedy the injustice caused.

The complaint

1. Miss X complains about how the Council has managed her housing needs, which have arisen due to antisocial behaviour (ASB) from a neighbour. Miss X said the Council:
1. agreed to a management transfer, but delayed in making an offer of accommodation;
2. offered a property that was unsuitable for Miss X and withdrew support for a transfer when Miss X raised concerns;
3. failed to offer Miss X a property of a suitable size for her needs; and
4. failed to notify Miss X when it withdrew a suitable property from consideration.
2. Miss X says the Council left her and her child in unsafe and harmful circumstances, which caused frustration, distress, and affected their mental and physical wellbeing.

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What I have and have not investigated

3. We cannot investigate complaints about how the Council acted in its capacity as a social landlord when dealing with tenancy management issues. Miss X made a separate complaint to the Housing Ombudsman Service about the Council’s handling of her neighbour’s alleged anti-social behaviour.
4. The Ombudsman can investigate complaints about housing transfers if somebody needs to move because:
• it is no longer reasonable for them to continue to live at the property (and so they are potentially homeless)
• they live in overcrowded or insanitary housing or other unsatisfactory housing conditions, or
• they need to move on medical or welfare grounds or because of a disability.
5. The Housing Ombudsman Service considers complaints about transfers for other reasons, such as mutual exchanges or decants.

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The Ombudsman’s role and powers

6. 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)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

8. I discussed the complaint with Miss X and considered the information she provided.
9. I considered the Council’s responses to my enquiries.
10. Both Miss X and the Council were able to comment on a draft version of this decision. I considered any comments received before making a final decision.

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Relevant legislation, guidance and policy

Homelessness

11. 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.
12. If a council has ‘reason to believe’ someone may be homeless or threatened with homelessness, it must take a homelessness application and make inquiries. 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. Section 175(3) of the Housing Act 1996 sets out that a person should not be treated as having accommodation, unless it is accommodation which it would be reasonable for them to continue to occupy. The Homelessness Code of Guidance explains there is no simple test of reasonableness. It is for the housing authority to make a judgement on the facts of the case, taking into account the circumstances of the applicant.

Housing allocations scheme

14. 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))

Reasonable preference

15. 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))

The Council’s allocations scheme

16. The Council has published an allocations scheme setting out how it prioritises applicants and allocates social housing. Relevant to this complaint, the Council’s allocations scheme sets out its approach to Management Transfers. It also sets out the additional preference given to applicants who are at risk of domestic violence or harassment.

Management transfers

17. The Council’s allocations scheme says:
• existing council tenants can apply to the Council to move to alternative accommodation for urgent reasons. These reasons might include damage from fire or flooding, or another pressing need to move, such as a serious neighbour dispute. The Council may approve these applications as management transfers.
• the Council will give Band 1 priority, the highest level of housing priority available, to applications approved as management transfers.
• applicants who have applied and been approved for management transfers are entitled to one offer of accommodation only.
• in some circumstances, the Council will need to restrict the choice an applicant has about the property offered. These circumstances include where an applicant has been approved for a management transfer.

Additional preference

18. Paragraph 283 of the Council’s allocations scheme states:

“If you are homeless and need to move urgently as a result of violence, or threats of violence (including intimidated witnesses) severe harassment, serious anti-social behaviour or domestic violence from inside or outside of your home we will give you additional preference and your application will be placed in band 1.”

Decisions and review rights

19. Statutory guidance on the allocation of accommodation says:
• review procedures should be clear and fair with timescales for each stage of the process;
• there should be a timescale for seeking a review – the guidance suggests 21 days is reasonable;
• an officer senior to the original decision maker, or a panel not including the original decision maker, should carry out the review;
• reviews should normally be completed within a set deadline – the guidance suggests 8 weeks is reasonable.
20. The Council’s Allocations Scheme sets out the procedure for seeking reviews, as well as the decisions that can be reviewed. The Scheme states applicants have:

“…the right, on request, to review a decision concerning eligibility for housing, qualifying to go on the register, whether an offer was suitable and whether a refusal of an offer was reasonable, and the right to be informed of the decision on the review and grounds for it.”

21. The Scheme goes onto state:

“Under the Housing Act 1996 (as amended) not all decisions are subject to the review process. If, for any reason, the right of review does not apply to the matter which you raise in your request, we will write to you explaining the reasons and advising you of any other options available to you.”

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What I found

Summary of events

22. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the analysis section of this decision statement.
23. Miss X is a council tenant. At the time of the complaint, Miss X lived in a one-bedroom property with her daughter, B. The Council had assessed Miss X as needing a property with two bedrooms.
24. Miss X says she was the target of ASB perpetrated by a neighbour, Neighbour A, also a council tenant, for several years. She says she first told the Council about this issue in 2018, but the problems have persisted since this time.
25. In January 2022, the Council approved a management transfer for Miss X. This meant the Council would prioritise a move to alternative accommodation for Miss X, owing to the potential risks arising because of the reported ASB.
26. In February 2022, the Council applied for an injunction against Neighbour A.
27. In March 2022, Miss X wrote to the Council, stating she understood the Council offered accommodation on a like-for-like basis through management transfers. However, the Council had separately assessed her as needing a two-bedroom property. She said she had seen her position for two-bedroom properties on the Council’s housing register improve. She also asked the Council questions about the process, the Council’s advice to date, and what actions the Council would take to meet her housing needs. The Council replied, telling Miss X:
1. It allocated accommodation through the management transfer process on a like-for-like basis. This meant Miss X’s management transfer application was for a one-bed property, in line with her current property, despite any assessed need for more bedrooms.
2. Miss X’s rise on the waiting list for two-bedroom properties was temporary, owing to the Council carrying out administration for the management transfer. The Council said it had finalised Miss X’s application as being in priority Band 1 as a management transfer.
28. In May 2022, the Council placed a hold on Miss X’s management transfer as part of its investigation into antisocial behaviour. Miss X made a complaint the same month. In June 2022, the Council responded to Miss X’s complaint at stage one of its complaints procedure. In its response, the Council set out its understanding of Miss X’s complaint and provided its response to each concern:
1. Miss X said the Council did not have a record of her housing application. The Council said Miss X’s application did not have a reference number, because it was a management transfer.
2. Miss X said multiple officers had told her they would support the Council offering her a two-bedroom property through the management transfer process, in recognition of her assessed housing need. The Council reiterated it would make offers on a like-for-like basis, resulting in Miss X eventually being offered a one-bedroom property. It said it had confirmed this in previous correspondence. It asked Miss X for details of the officers she had spoken to, so it could review what they had told Miss X.
3. Miss X had asked how long the process would take. The Council said it could not confirm an exact timescale, because this would be dependent on properties becoming available. The Council said it prioritised management transfers wherever possible.
29. Later that month, Miss X escalated her complaint to stage two of the Council’s complaints procedure, as she was unhappy with the Council’s response. Miss X:
1. Said she had sought further details about management transfers, because nothing had happened in the five months since it had been agreed. She said the situation with her neighbour continued to affect her and her child’s wellbeing.
2. Provided the details of officers she had spoken with about the management transfer process.
3. Asked why she was still living in her property if the Council agreed the situation was urgent. She said the Council had given no indication of a timescale.
30. In July 2022, the Council lifted the hold on Miss X’s management transfer.
31. In August 2022, the Council identified a property it believed would be suitable for Miss X. It wrote to Miss X with the details. Miss X responded to say the property offered was not in an area she had chosen when completing the transfer paperwork.
32. The Council told Miss X the property offered was via a management transfer and so it could not guarantee it would be in an area chosen by the applicant. It said it would try to accommodate preferences, but this was not always possible. It said it considered the property offered to be suitable. It said this would allow Miss X to be rehoused away from any potential risks posed by her neighbour. It told Miss X to consider the offer again, as refusing it could mean the Council removed her from the transfer list and she would not then receive any further offers of accommodation.
33. Miss X said the Council had not made her aware of this. She said the Council had told her any property offered via a management transfer would be in one of her preferred areas, as she needed to move because of ASB.
34. The Council responded to say that as Miss X was refusing the offer, it would not make any further offers of accommodation and would cancel her application.
35. Later in August 2022, the Council responded to Miss X’s complaint at stage two of its complaints procedure. In its response, the Council:
1. Apologised for the time taken to reply to Miss X’s complaint.
2. Said there had been a multiagency meeting to consider the points made in Miss X’s complaint.
3. Set out the background to the complaint.
4. Said the Council’s Allocations Team would contact Miss X to discuss the management transfer and apologised this had taken longer than expected. The Council explained it had placed a hold on Miss X’s transfer in May, but then lifted this in July. The Council apologised that it had not told Miss X about this and said senior officers would address this.
5. Said it prioritised management transfers wherever possible, but it could not provide a specific timescale for Miss X to be re-housed. The Council said there was a shortage of social housing in the area. It said the process would depend on suitable properties becoming available.
6. Apologised if officers had given Miss X the impression she would likely be able to secure a two-bedroom property through the management transfer process. It said management transfer rules meant that Miss X would only be entitled to a one-bedroom property, as this was what she currently had.
36. Later that month, the Council met with Miss X to discuss the management transfer.
37. In November 2022, Miss X referred her complaint to the Ombudsman.
38. When responding to my enquiries, the Council confirmed Miss X and B had secured a new two-bedroom property via a mutual exchange in February 2023.

Analysis

Complaint the Council delayed in making an offer of accommodation

39. When corresponding with Miss X about this matter, the Council repeatedly said it could not provide a clear timescale for being rehoused through a management transfer. It said this largely depended on whether suitable properties became available. Ultimately, I understand Miss X was not rehoused through this process, instead securing new accommodation after registering for a mutual exchange in early 2023.
40. The Ombudsman recognises 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. The Council’s Allocations Scheme states:

“We will use the housing register bands and the date order system for the vast majority of housing allocations we make. However, there are occasions when we have to respond to exceptionally urgent housing applications that do not fit in with the banding system. Because these cases are by their nature out of the ordinary, we have to look at each case on its merits and use our discretion to make an allocation where it is warranted.”

41. In its complaint responses, the Council told Miss X it prioritised management transfers “wherever possible.” I asked the Council to confirm how it prioritised and allocated properties where management transfers had been agreed, and to provide evidence of how this process worked. The Council told me requests for management transfers were considered by a panel chaired by senior housing officers, who would agree or reject the transfer request.
42. In comments on a draft version of this decision, the Council provided further information and told me the process for management transfers was as follows:
1. Proposed transfers are agreed by a casework panel.
2. The Council’s allocations team are then responsible for finding alternative accommodation, with each case being allocated to an officer.
3. The Allocations team will review available properties and make an offer when something becomes available. The Council said management transfers were discussed with officers on a weekly basis.
43. I have seen no evidence of a systemic approach to monitoring or reviewing Miss X’s transfer between January and August 2022. In internal correspondence I have viewed, an officer proactively identified a possible property in August 2022, before offering this to Miss X. I have not seen evidence of weekly reviews of available properties prior to this.
44. Relying on efforts by officers to actively search for properties raises the possibility that suitable properties could be missed altogether, if an officer does not opt to carry out regular searches. Without actions being clearly documented, it remains difficult to understand how the Council may prioritise one applicant’s needs over another’s, where circumstances are similar, or how individual risk factors are considered.
45. I have therefore found the Council at fault for not having a clear procedure in place to monitor wait times, or prioritise and allocate properties to applicants it has approved for management transfers.
46. I believe this fault caused Miss X an injustice. Because the procedure for allocating properties via direct offer appears not to be formalised and weekly searches not documented, it is difficult to determine if there was avoidable delay by the Council in Miss X’s case. This causes uncertainty, which is in itself an injustice to Miss X.

Complaint the Council offered an unsuitable property and withdrew support for a transfer when Miss X refused this

47. The Council made Miss X a direct offer for a property. The property was not in any of the locations Miss X had expressed a preference for in her management transfer application. The Council said it accounted for preferences where it could, but this was not always possible, depending on available accommodation.
48. I have not found the Council at fault for offering a property located outside of Miss X’s preferred areas. The Council’s Allocations Scheme makes clear this might happen in management transfers. This is because of the need to address the risk of harm against an individual by finding new accommodation quickly. In mitigating this risk, it may not be possible to wait for accommodation to become available in a specific area.
49. Miss X said the Council withdrew its support for a management transfer when she expressed concerns about the location of the property. The Council told me applicants approved for a management transfer are eligible for one direct offer of accommodation only. When Miss X expressed concerns about this, the Council took this as a refusal and said it would cancel her application for a management transfer. It told me there was no right to a review of offers of accommodation made through a management transfer. It said management transfers were not a duty, but a discretionary decision.
50. The Council’s Allocations Scheme says applicants approved for a management transfer are entitled to one offer of accommodation. The Scheme is silent on whether applicants can seek a review of the suitability of properties offered via a management transfer. As set out in paragraph 20, the Scheme says applicants have the right to ask for a review of the suitability of an offer. There is no explicit exclusion for band 1 priority management transfers. It is not therefore clear on what basis the Council asserts that applicants are not entitled to a review of any decisions. I have found the Council at fault for the lack of clarity in its Allocations Scheme on this point.
51. The Council’s comments suggest no applicant offered a management transfer can request a review of suitability, regardless of the reasons a management transfer is agreed. This position is broad, however, and risks the Council not accounting for an applicant’s individual circumstances in its decision-making. In practice, there is likely to be some crossover between the discretionary criteria for a management transfer and other scenarios set out under the Housing Act 1996, where an applicant may be considered to have high priority for an urgent move. Because of this, it is important the Council does not deprive an applicant of legitimate rights by failing to fully consider what other duties it may owe them.
52. In this case, the Council told me it accepted it was no longer reasonable for Miss X to live in her current accommodation, which is why a management transfer was agreed. The Council therefore appears to accept there were grounds to consider whether Miss X was effectively homeless, as set out under Section 175(3) of the Housing Act 1996.
53. Being homeless would provide reasonable preference for housing. As set out in paragraph 18, Miss X may have also qualified for additional preference under the Council’s Allocations Scheme, by being at risk of violence or intimidation. I have not seen any evidence the Council considered these possibilities. Despite there being clear grounds to explore whether Miss X was effectively homeless, the Council did not do so.
54. I have found the Council at fault for not considering whether it had a formal homelessness duty to Miss X in this case.
55. I believe this fault caused Miss X an injustice. I cannot now say what decision the Council would have made, if it had considered this. This causes uncertainty as to whether Miss X could have been considered for other accommodation by the Council, had it assessed her circumstances in a different way. Had the Council decided Miss X was homeless, she would have been entitled to ask the Council to review the suitability of accommodation it offered, though again I cannot say what the outcome would have been. This uncertainty is an injustice to Miss X in itself.
56. The lack of clarity identified in the Council’s Allocations Scheme may cause injustice for others, beyond the events set out in this complaint. Some applicants approved for management transfers may have a right to request reviews of the Council’s decisions, if the Council owes them a duty under relevant, accompanying legislation.
57. The Council told me it may disadvantage some tenants to apply a homelessness duty to them, when it can meet their needs through a management transfer. It is right that the Council should take individual circumstances into account and make the most appropriate decision for the applicant. In many cases, it may be that a management transfer is the most appropriate solution.
58. However, it is important that the Council does not apply a “one size fits all” approach. The Council risks denying valid review rights to applicants if it fetters its discretion, or fails to consider the full breadth of its powers and responsibilities in individual cases.

Complaint the Council failed to offer Miss X a property of a suitable size

59. Miss X said the property the Council offered was not of a suitable size for her needs. The Council said it offers properties on a like-for-like basis via management transfers. Despite assessing Miss X as having a two-bedroom need, the Council offered her a one-bedroom property. This is because this was the type of property she occupied at the time.
60. The Council’s Allocations Scheme is again silent on this point. It does not specify that offers of accommodation made via a management transfer will be made on a like-for-like basis. Though the Council may have discretion to impose such a restriction in its Scheme, it has not clearly done so here.
61. There is evidence the Council made Miss X aware of this when it approved a management transfer. In an email Miss X sent to the Council in March 2022, she said she understood the Council would offer properties on a like-for-like basis. Given the Council clearly communicated these terms to Miss X, I have not found the Council at fault for its position in this case.
62. However, by not specifying an applicant’s entitlement in its Scheme, the Council again risks failing to consider individual circumstances by adopting too broad an approach. I have found the Council at fault for the lack of clarity in its Allocations Scheme.

Complaint the Council failed to notify Miss X when it withdrew a suitable property

63. Miss X said the Council did not tell her when it withdrew a suitable property from consideration.
64. The Council told me this property was a one-bedroom property managed by a housing association, referred to here as Landlord J. The Council said Landlord J removed this property from consideration because they did not want the property to be overcrowded, which it would have been if Miss X moved into it with B. I understand this was because while Miss X had previously been assessed to have a need for two-bedrooms, only one-bedroom properties were being considered for the management transfer, for the reasons set out above. Given this explanation, I have not found the Council at fault for the property being withdrawn.
65. I have not seen evidence the Council provided this explanation to Miss X. I have found the Council at fault for not communicating effectively with Miss X about this.

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Agreed action

66. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Miss X for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Advise officers to routinely consider whether the Council owes other statutory duties to applicants approved for management transfers. In particular, officers should be able to show they have considered whether the Council owes a homelessness duty, in cases where the Council decides the applicant can no longer reasonably occupy their home. The Council should be able to show that any decision is appropriate to the individual facts of the case.
3. Put in place a procedure to ensure actions taken to monitor and progress applications approved for management transfers are clearly documented;
4. Pay Miss X £300 in recognition of the distress arising from the avoidable uncertainty she experienced.
67. Within 12 weeks of the final decision being issued, I propose the Council should:
1. Review and update its Allocations Scheme to provide clarity on the rights afforded to applicants where a management transfer is agreed. In particular, the Council should clearly specify:
1. Whether an applicant is entitled to a review of decisions made and, if so, under what circumstances; and
2. Any restrictions on the type and location of properties, which apply to applicants approved for a management transfer.
68. The Council should provide us with evidence it has complied with the above actions.

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Final decision

69. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman