Summary: Mrs X complained the Council failed to correctly administer her homelessness application and assess her housing circumstances between 2021 and 2023. She also said the Council wrongly advised her not to apply to its Welfare Panel. We have found the Council at fault for how it administered Mrs X’s homelessness application. These faults caused uncertainty about whether the Council could have secured suitable interim accommodation for Mrs X in 2021. This uncertainty is an injustice to Mrs X. We have also found the Council’s faults led to Mrs X missing an opportunity to secure suitable permanent accommodation in 2023. We have made recommendations to remedy the injustice this caused. We have not found the Council at fault for wrongly advising Mrs X not to apply to its Welfare Panel earlier.

The complaint

1. Mrs X complained the Council failed to correctly assess her housing circumstances in 2021. She said the Council did not provide the relief or main housing duties to her household when it should have done. Mrs X also said the Council wrongly advised her against applying to its Welfare Panel in 2021.
2. Mrs X said the Council incorrectly assessed her household’s needs and priority between 2021 and 2023 because of these faults. She said she lost opportunities to secure more suitable accommodation and had to stay in an unsafe property for longer than she otherwise would have. This caused Mrs X and her family avoidable distress and uncertainty.

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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)
4. 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.
5. 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)

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How I considered this complaint

6. I considered information Mrs X provided about the complaint.
7. I considered information the Council provided in response to my enquiries.
8. Both Mrs X and the Council were able to comment on draft versions of this decision. I considered any comments I received before making a final decision.

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Relevant legislation, guidance and policy

Applications

9. If someone contacts a council seeking accommodation or help to obtain accommodation and gives ‘reason to believe’ they ‘may be’ homeless or threatened with homelessness within 56 days, the council has a duty to make inquiries into what, if any, further duty it owes them. The threshold for triggering the duty to make inquiries is low. 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)

Reasonable occupation

10. 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 that 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.
11. It sets out some provisions that should be considered. These include, but are not limited to:
1. Domestic abuse or other violence. Section 177(1) of the Housing Act 1996 provides that it is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic abuse or violence against the applicant, or another person residing in the household.
2. The general housing circumstances in the district.
3. Affordability.
4. Other relevant factors, such as the physical characteristics of the property.

Duty to arrange interim accommodation (section 188)

12. 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)
13. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of their household.  This duty applies to interim and temporary accommodation. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)

The prevention duty

14. 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)

The relief duty

15. 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)

The main housing duty

16. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need the council has a duty to secure accommodation that is available for their occupation. 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)

Review rights

17. Homeless applicants may request a review within 21 days of being notified of certain decisions. Relevant to this case, these decisions include:
• their eligibility for assistance;
• what duty (if any) is owed to them if they are found to be homeless or threatened with homelessness;
• giving notice to bring the prevention duty to an end;
• giving notice to bring the relief duty to an end;
• 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.

Council’s Allocations Scheme

18. 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

19. 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))

Choice based lettings

20. The Council is a partner in a local choice-based lettings scheme which enables housing applicants to bid for available properties which are advertised.

Priority

21. The Council’s Allocations Scheme sets out how it prioritises applicants. Relevant to this complaint, it says:
• Applicants who can demonstrate they are homeless or threatened with homelessness, but who are not owed a main housing duty by the Council, will be placed in Band C.
• Up until June 2022, applicants to whom the Council accepted a full housing duty were also placed in Band C. From June 2022, the Council updated its policy so applicants owed the main housing duty would be placed in Band B.
• Applicants awarded a ‘high’ priority by the Welfare Assessment Panel will be placed in Band B.
• Households with no reasonable preference will be placed in Band E.

The Ombudsman’s focus report

22. The Ombudsman’s focus report, ‘Home Truths’, highlighted common issues with the implementation of the Homelessness Reduction Act. These included:
• delays accepting the relief duty;
• delays issuing personal housing plans;
• failures to take steps to deal with homelessness or threatened homelessness; and,
• gatekeeping interim accommodation.

Principles of Good Administrative Practice

23. The Ombudsman published the Principles of Good Administrative Practice (the Ombudsman’s Guidance) in 2018. The Ombudsman’s Guidance sets out the Ombudsman’s benchmark for the standards expected when investigating local authorities’ actions.
24. The Ombudsman’s Guidance stresses the importance of being open and accountable, explaining the reasons for decision making, and keeping proper, suitable records.

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What I found

Summary of key events

25. 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.
26. In July 2021, Mrs X approached the Council as homeless. Mrs X says this followed an attack and threats made by a neighbour against Mrs X and her child, referred to in this statement as Z. Mrs X said she obtained a restraining order against her neighbour, though she continued to fear the possibility of further violence.
27. The Council accepted the prevention duty towards Mrs X. The Council placed Mrs X in priority Band C on its choice-based lettings scheme. This was because Mrs X could show she was homeless or threatened with homelessness, but the Council did not owe a main housing duty.
28. The Council says it ended the prevention duty in September 2021 after 56 days. The Council decided it had discharged its duty towards Mrs X because:
• Mrs X did not wish to leave her home for emergency accommodation.
• Mrs X’s landlord had not served a valid Notice to Quit, and
• Mrs X’s landlord had agreed to explore a managed move for her.
29. The Council decided it did not owe Mrs X the relief duty. The Council wrote to Mrs X to explain this decision and provided notice of Mrs X’s right to ask for a review of this decision. The Council left Mrs X in priority Band C.
30. In January 2023, Mrs X bid for a property and was on a potential shortlist of successful applicants. When reviewing applications for the properties on offer, the Council noted its decision to end the prevention duty in September 2021. It said this decision meant it had decided Mrs X was not homeless, or at risk of homelessness, and so did not qualify for priority Band C. The Council reduced Mrs X’s priority to Band E, removing her from consideration of the properties it would allocate.
31. The Council told Mrs X it had reduced her housing priority from Band C to Band E. Mrs X says she sought advice to challenge this. In doing so, she says she came to understand the Council may have owed her the relief and main housing duties in 2021, because of her housing circumstances.
32. Mrs X then:
1. submitted a new homelessness application to the Council, explaining her circumstances had not changed and she believed it was not reasonable for her to remain in her home because of the persistent threat of violence.
2. applied for an assessment by the Council’s Welfare Panel, to ask the Council whether it should award additional priority on welfare grounds.
33. In February 2023, Mrs X also asked the Council to review its decision to end the prevention duty in 2021. Mrs X set out the grounds for her request:
1. Mrs X set out the history of events that had led to her approaching the Council, detailing the risk of threats and violence from her neighbour. She said she and her children had had to be constantly vigilant since 2021.
2. Mrs X said the main reason she had decided not to pursue emergency accommodation was the Council had told her it was considering accommodation in Wales. Mrs X said she was also discouraged from making an application for help, by being told the Council would place her in Bristol. Mrs X said this would have added further stress to her situation. She and Z were in fear, but moving that far would have resulted in a loss of support networks, Mrs X’s job, Z’s school place, and family support.
3. Mrs X said Z was also awaiting medical assessments to help diagnose conditions. A move to a location far away would have disrupted this, causing added stress. Mrs X also had caring responsibilities for other family members.
4. Mrs X said she believed the Council should have accepted the main housing duty towards her in 2021. This was on the basis it was not reasonable for her to occupy the property because of the risk of violence. She said she had been unaware of the law at the time, but had since become aware of this.
5. Mrs X said she believed the Council had acted correctly at the time, but no longer believed this to be the case.
34. The Council responded to Mrs X’s review request. It said it would not review its decision now, because of the time that had passed. It noted Mrs X had recently made a new homelessness application to the Council and the Council had completed a housing needs assessment. It said it was making enquiries and Mrs X would be able to ask for a review of any decision made.
35. Mrs X complained to the Council on similar grounds. Mrs X said she would have had a higher housing priority, if the Council had found it owed her the main housing duty at the time.
36. The Council responded to Mrs X’s complaint on 1 March 2023:
1. The Council said it agreed with its earlier findings. It summarised events in July 2021, explaining it had ended its prevention duty after Mrs X had not accepted the emergency accommodation offered. It confirmed it had accepted the relief duty on Mrs X’s new approach in 2023.
2. The Council said it believed it had followed the correct procedure, based on the information available to it at the time. It said it could not comment on the decision itself, but said it had backdated Mrs X’s Band C housing priority to the point of first approach.
37. In March 2023, the Council’s Welfare Panel completed an assessment of Mrs X’s application and awarded priority Band B, on welfare priority grounds. It applied this priority from January 2023, the point at which Mrs X had applied to the Welfare Panel for an assessment.
38. In April 2023, the Council accepted the main housing duty towards Mrs X, deciding she was effectively homeless.
39. Mrs X asked the Council to review her complaint, as she was unhappy with the outcome. She also said the Council told her, in November 2021, that an application to the Welfare Panel would not be successful without a formal diagnosis of Z’s conditions.
40. Mrs X said her recent application to the Welfare Panel had been successful, despite the circumstances not changing since 2021. Mrs X said the Council had therefore wrongly discouraged her from applying in 2021.
41. The Council responded to Mrs X in May 2023. In its response, the Council:
1. Reiterated why it did not accept the relief or main housing duties in 2021.
2. Said its decision to end the prevention duty was compliant with the Homelessness Code of Guidance. It said Mrs X’s landlord had not served a notice to leave the property and Mrs X did not wish to flee to emergency temporary accommodation. It said Mrs X’s landlord had been willing to consider a managed move. The Council said it was satisfied there was no requirement to make further enquiries and decide if it owed a further duty. It believed it had discharged its prevention duty. It did not uphold this part of Mrs X’s complaint.
3. Said there were no notes from November 2021 about a Welfare Panel assessment or a formal diagnosis for Z. The Council said its notes referred to a phone call between the Council and Mrs X on 30 November 2021, about alleged antisocial behaviour and harassment. The Council said it had received Mrs X’s recent application to the Welfare Panel, which had resulted in additional priority being awarded. It did not uphold this part of Mrs X’s complaint.
42. Mrs X referred her complaint to the Ombudsman in May 2023.

Analysis

Complaint about homelessness decision in 2021

43. Paragraph 5 sets out the Ombudsman’s remit for investigating historic complaints. The law says we cannot investigate a complaint about something a council did more than 12 months ago, unless there are good reasons to do so. In this case, Mrs X did not suspect the Council had acted with fault until 2023, after seeking independent advice. As events from 2021 are directly relevant to Mrs X’s claimed injustice, I have exercised discretion to consider the Council’s actions from that time.
44. Mrs X says the fact the Council accepted in 2023 that it owed her the main housing duty showed it failed to properly consider her circumstances in 2021. She said the facts and circumstances were the same as they were in 2021 and the Council should therefore have accepted the main housing duty towards her then.
45. Decisions about the housing duty a council owes an applicant, and the grounds for ending that duty, come with a right of review. The Council gave Mrs X a right of review when it decided to end the prevention duty in 2021. Once the Council completes a review, the applicant may appeal an adverse decision to the County Court on a point of law, if they remain dissatisfied. The Ombudsman would normally expect someone to exercise this right, if they believed a council had made the wrong decision. The Ombudsman cannot replace the Council’s judgement with its own on such matters.
46. In this case, however, the Council told me it accepted it handled Mrs X’s 2021 homelessness application incorrectly. It also agreed it should not have closed the 2021 homelessness case. When it accepted the relief duty towards Mrs X in 2023, it awarded Band C priority – the same priority she had in 2021 – and backdated this to August 2021. In doing so, Mrs X’s 2023 application essentially became a continuation of her 2021 application.
47. The Council’s explanations and actions show it now accepts it mishandled Mrs X’s housing application in 2021, thereby acting with fault. I agree with the Council’s judgement on this point. Given that this acceptance comes so far after the fact, Mrs X could not exercise her right to seek a review now. The Ombudsman is therefore better placed to consider whether the Council’s actions caused Mrs X an injustice.
48. Backdating Mrs X’s priority to the point of her first approach provided a remedy to part of Mrs X’s complaint. However, Mrs X also complained the Council’s actions had affected her chances of securing new accommodation between 2021 and 2023. She said she would have been able to move into new accommodation by now if the Council had accepted it owed her the relief and main housing duties at the correct time.

Interim accommodation in 2021

49. The Council said in its complaint responses that Mrs X not wanting to leave her home was key in its decision to end the prevention duty.
50. A reluctance or refusal to leave the home and move into interim accommodation is not a valid reason not to accept the relief duty. Mrs X was homeless, and owed the relief duty, in 2021 because it was not reasonable for her to continue living in her property.
51. Had it accepted the relief duty, the Council would have had a duty to arrange suitable interim accommodation for Mrs X. I have therefore considered whether Mrs X missed suitable interim accommodation, but for the Council’s faults in handling her original application.
52. Mrs X says when the Council accepted a prevention duty, it told her that any interim accommodation could be as far away as Wales. Mrs X said she did not want to move to accommodation that was potentially so far away.
53. I asked the Council to confirm the location of any interim accommodation it had offered Mrs X. The Council told me it offered Mrs X emergency (interim) accommodation, but Mrs X declined when the Council told her that any accommodation could be outside of its authority area. The Council did not confirm to me the location of any interim accommodation offered to Mrs X.
54. I asked the Council how it decided any accommodation it offered would be suitable for Mrs X, having had regard for the circumstances of the household. The Council said:
1. when Mrs X first approached, it would have been feeling accommodation pressures arising from the impact of the summer months and tourist season.
2. It would have told Mrs X that it would be difficult to provide accommodation in the local area, and it would need to place Mrs X outside of the area because of this.
3. It provides individuals with this information to help manage expectations and to be clear about the pressures the Council faces. It says it only places households outside of the area for a short time, until the Council finds suitable accommodation.
55. I understand these discussions took place once the Council had accepted the prevention duty. That the Council suggests it offered interim accommodation during the prevention stage further indicates it misapplied this duty. The duty to secure interim accommodation arises during the relief stage, once an authority has reason to believe an applicant may be eligible, homeless and in priority need.
56. The Council has though provided no records of these discussions, or of the advice it gave Mrs X during that period, which would help clarify its approach. I have found the Council at fault for its inadequate record-keeping. This fault hinders investigation and causes uncertainty after the fact, which is an injustice to Mrs X. If repeated in other cases, poor record-keeping could also cause injustice to others.
57. The Council could have considered at the outset whether it immediately owed Mrs X the relief duty given the identified risks of remaining in her home, bypassing the prevention duty. Had the Council accepted the relief duty, and that Mrs X was homeless, it would have had to identify and offer suitable interim accommodation, based on its assessment of Mrs X’s household’s needs.
58. If Mrs X then declined to move to interim accommodation, the Council would still have owed Mrs X the relief duty. The Council could have sought to discharge its relief duty for a valid reason, or decided whether it owed the main housing duty. If it had discharged its relief duty, Mrs X would have been afforded a right of review against that decision. I believe the Council would have accepted both the relief and main housing duties, because this is what it did in 2023 for the same set of circumstances.
59. On the balance of probabilities, I believe the Council told Mrs X that any interim accommodation it was likely to offer would be so far away, it may be unsuitable for her household’s needs. This was key in Mrs X’s view that she could not leave her home. The Council then erroneously relied on Mrs X's reluctance to leave her home as justification for ending the prevention duty.
60. The Council can manage applicants’ expectations, which may include being open about accommodation pressures in its area. However, it should not seek to dissuade applicants in genuine need of interim accommodation, by telling them it will be unlikely to find suitable accommodation, before it has searched for that accommodation.
61. I consider the Council’s approach in this case amounts to gatekeeping access to homelessness services and interim accommodation. I have found the Council at fault for this.
62. This fault caused Mrs X an injustice. I cannot say if the Council would have been able to secure interim accommodation for Mrs X in this period and, if it had, whether Mrs X would have accepted it. It is possible Mrs X may have always felt compelled to remain in her home, given the responsibilities she has and the support networks available. This causes uncertainty over whether Mrs X could have stayed elsewhere, even temporarily, had the Council acted properly. This uncertainty is an injustice to Mrs X in itself.
63. The evidence the Council provided does not document any discussion between Mrs X and the Council about possible locations, or show the Council formally made any offers of interim accommodation. There is therefore no evidence about the specific assertion the Council told Mrs X it would provide accommodation in Wales. Given the requirement of the Code to have regard for the household's needs and circumstances, set out in paragraph 13, it is difficult to see how any such offer would have been suitable.

Opportunities for permanent accommodation

64. The Council awards Band C to applicants to whom it owes the prevention or relief duties. Until June 2022, the Council also awarded band C to applicants owed the main housing duty.
65. In June 2022, the Council changed its allocations scheme to award Band B to those owed the main housing duty.
66. The Council should have accepted the main housing duty to Mrs X in 2021. She would, therefore, have been awarded Band B when the Council changed its scheme in June 2022.
67. Mrs X was shortlisted for a property in Band C in January 2023. Therefore, it is likely that had she been in Band B from June 2022, she would have bid successfully for a property by January 2023 at the latest. The Council has told me it accepts this.
68. Missing out on an offer of suitable accommodation from the Council is an injustice to Mrs X. The Council had not provided a remedy for this injustice. During this investigation, the Council proposed to increase Mrs X’s priority in recognition of her household’s circumstances and the injustice experienced. I have addressed this in my recommendations.

Welfare panel application

69. Mrs X says the Council incorrectly advised her against applying to its Welfare Panel in 2021. She says it told her she would be unsuccessful if she did so, because she did not have a formal diagnosis for Z. When she applied in 2023, having yet to receive a formal diagnosis for Z, the Council decided the household had high welfare needs, which increased Mrs X’s housing priority and bedroom need. Mrs X said the Council misadvised her in 2021 and it should therefore backdate her priority to this point, in recognition of this.
70. In its complaint response, the Council told Mrs X it had no record it had discussed an application to its Welfare Panel in late 2021. However, the Council's records show it sent Mrs X an application to its Welfare Panel shortly after this telephone call. I am therefore satisfied Mrs X and the Council discussed this at the time.
71. However, while it is clear a conversation took place, there is no detail to show what was said, or any contemporaneous information that provides a wider context. The evidence is equivocal and I cannot, even on the balance of probabilities, decide whether the Council incorrectly persuaded Mrs X not to apply to its Welfare Panel. I have not found the Council at fault for doing so.

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Agreed action

72. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Mrs 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. In line with its proposal, increase Mrs X’s priority to Band A and backdate this to January 2023, the point at which Mrs X missed an offer of suitable accommodation. The Council should write to Mrs X to confirm it has taken this action.
3. Remind officers of the importance of keeping proper, suitable records, and ask officers to review the Ombudsman’s Principles of Good Administrative Practice guidance.
4. Remind officers the Council may engage the relief housing duty immediately, if it believes an applicant cannot reasonably remain in occupation in their current accommodation.
5. Review, at senior officer level, the faults and injustice identified in this investigation, to identify any wider points of learning.
6. Pay Mrs X £1575 in recognition of the injustice caused. This is broken down as follows:
1. £1000 in recognition of the distress caused by the household missing an offer of suitable accommodation in January 2023, because of the Council’s faults.
2. £575 to recognise the avoidable uncertainty caused by the Council’s faults around the provision of interim accommodation in 2021.
3. I have had regard to the Ombudsman’s Guidance on Remedies when making these financial recommendations:
1. The Guidance on Remedies says uncertainty is a form of distress and recommends a payment of up to £500 in recognition of this. It says in some cases, we may recommend more. It says factors we should consider include the severity of the distress, the duration, the number of people affected, and whether those affected are vulnerable.
2. In this case, I have considered that Mrs X was vulnerable as an individual potentially at risk, but note there is uncertainty around what would have happened even if the Council acted properly in 2021.
3. The recommended payment is therefore broken down as £375 in recognition of Mrs X's avoidable uncertainty, with a further £200 recommended considering the fact this also affected Mrs X’s family. The separate £1000 payment is at the high end of the Ombudsman’s guidance, in recognition of the distress caused to Mrs X and her household by missing an offer of accommodation in 2023.
73. Within twelve weeks of the final decision being issued, the Council has agreed to:
1. Update the published housing allocations scheme document to reflect the change in priority banding it introduced in 2022 for applicants owed the main housing duty. This is to bring the scheme into line with information published on its website.
74. The Council should provide us with evidence it has complied with the above actions.

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Final decision

75. 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