Summary: Ms B complained the Council unreasonably refused her application to go onto the housing register. She says the Council failed to consider her and her daughter’s disabilities and it failed to follow the law when refusing her application. We find the Council was at fault for failing to address Ms B’s points on why she considers it is more difficult for her to secure social housing. The Council was also at fault for its unclear housing allocations policy. The Council has agreed to our recommendations to address Ms B’s injustice.

The complaint

1. Ms B complained the Council unreasonably refused her application to go onto the housing register. She says the Council failed to consider her and her daughter’s disabilities and it failed to follow the law when refusing her application.
2. Ms B says the Council’s actions have caused her and her family emotional distress.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I considered information from Ms B. I made written enquiries of the Council and considered information it sent in response.
6. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Housing allocations

7. 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))
8. An allocations scheme must give reasonable preference to applicants in the following categories:

• People who are homeless;
• People who are owed a duty as a homeless person under certain sections of the Housing Act 1996;
• 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 housing allocations policy

9. The Council’s housing allocations policy defines who can apply to the housing register.
10. Applicants will not normally qualify for inclusion on the housing register if they do not meet the residency criteria. To meet the residency criteria applicants are required to have lived in the Epping Forest District for seven continuous years or more immediately before the date of their application.
11. The policy sets out some exceptions to the residency criteria. Households who are owed a homelessness duty by the Council under Part 7 S193 of the Housing Act 1996 (main housing duty) will be exempt from the residency criteria if:

1. They have met the residency provision within this legislation;
2. They have been afforded reasonable preference on the grounds of homelessness, and
3. The Council does not owe them a full homelessness duty.

12. To be eligible to bid on a property, applicants must join the waiting list. The Council will assess the applicant and place them in one of three bands, from A to C. Applicants who qualify to join the housing register that are owed the homelessness prevention duty will be afforded reasonable preference and placed in Band C.

Homelessness

13. 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.
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. This is called the prevention duty. (Housing Act 1996, section 195)
15. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need the council has a duty to secure that accommodation is available for their occupation. This is called the main housing duty. (Housing Act 1996, section 193)

The Equality Act 2010

16. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
17. The Act makes it unlawful for organisations carrying out public functions to discriminate against any of the nine protected characteristics listed in the Act. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty. The protected characteristics referred to in the Act include disability.

What happened

18. Ms B lives in private housing. Her landlord served her with a section 21 notice in December 2022. A section 21 notice is a formal document served by a landlord to notify the tenant of their intention to repossess a property. Ms B sent the Council a homelessness application.
19. Ms B applied to join the Council’s housing register in March.
20. The Council wrote to Ms B the same month about her homelessness application. It said it owed her the prevention duty.
21. The Council considered Ms B’s application to join the housing register. It wrote to her in April and said she had not lived in the Epping Forest District for seven continuous years immediately before her application. Therefore, she did not qualify to join the housing register.
22. Ms B emailed the Council and said she disagreed with its decision. She said it has a duty to ensure it gives reasonable preference to those who are threatened with homelessness and those who need to move on medical grounds. She said she had previously provided details of her and her daughter’s disabilities. She set out its public sector equality duty to meet the needs of disabled people.
23. Ms B complained to the Council the following week. She said it failed to follow the law and it had not acted in line with the Equality Act 2010.
24. The Council responded to Ms B’s complaint. It said she was a few months short of the residency provision and therefore she did not qualify to join the housing register. It said the law that applies to how it manages the housing register is different to the homelessness legislation. It said there was nothing to suggest it had discriminated against her under the Equality Act 2010 and it had not refused her access to its services.
25. Ms B referred her complaint to stage two of the Council’s complaints procedure. She said because of her and her daughter’s disabilities they are at a disadvantage in finding a suitable home in the private sector. She also said they cannot work which makes them less likely to be successful when approaching private landlords. This means they do not have an equal opportunity when looking for housing.
26. The Council refused to accept Ms B’s complaint at stage two. It said there was no new substantive evidence for it to consider.
27. The Council accepted Ms B onto the housing register in August.

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Analysis

28. Ms B says the Council should have allowed her onto the housing register because it owed her the prevention duty. The law states councils housing allocations schemes must give reasonable preference to people who are owed a duty as a homeless person under certain sections of the Housing Act 1996. This includes those who are owed the prevention duty. Reasonable preference means councils must prioritise certain groups over others. The Council’s allocations policy gives reasonable preference to households who are owed the prevention duty, and it places them in Band C. However, applicants must meet the other eligibility criteria, include residency, before the Council accepts them onto the housing register. Councils are free to determine how they allocate their housing stock. The law does not state reasonable preference should override other eligibility criteria such as residency.
29. The section of the Council’s housing allocations policy on who is exempt from the residency criteria is unclear and confusing. This is fault, which is likely to have caused Ms B some confusion. Firstly, the policy states applicants who are owed the main housing duty will be exempt from the residency criteria. It then states that households will be exempt from the residency criteria if they are not owed the full homelessness duty (main housing duty). This is a contradiction. The policy also states people who have already met the residency provision in accordance with the legislation will be exempt from the residency criteria. This is confusing and it is not clear what residency provision the Council is referring to.
30. The Council accepts its allocations policy should be clearer. It says its policy should state it will exclude households who are owed the main housing duty from the residency criteria. Households who are owed the prevention duty are given reasonable preference in Band C if they meet the other eligibility criteria including residency. The Council needs to amend its policy to make its position clear and avoid confusion for any other applicants.
31. Ms B also says the Council the discriminated against her as it did not consider her and her daughter’s disabilities. We cannot make a finding on whether the Council unlawfully discriminated against Ms B as that is a matter for the courts. However, we can consider whether the Council considered Ms B’s disabilities when it assessed her application.
32. When Ms B referred her complaint to stage two, she provided a more detailed explanation on why it is more difficult for her to secure social housing. The Council failed to address this. This is fault, which caused Ms B frustration. The Council should have considered Ms B further points and written to her to explain whether they affected its decision.
33. I asked the Council to respond to Ms B’s points during my investigation. It says while it may be more challenging to find an adapted property to meet a disabled persons needs in the private sector, it does not meet they are not available. It also said the exceptions for the seven-year residency requirement does not include an applicant’s ability to afford privately rented accommodation. Therefore, the Council has now explained why Ms B’s further points have not changed its view. This is a decision it is entitled to take.

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Agreed action

34. The Council has agreed to apologise to Ms B by 8 December 2023 for the frustration and confusion caused by the faults identified.
35. By 11 January 2024 the Council has agreed to amend its housing allocations policy to make it clearer which households are exempt from the seven-year residency criteria.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. There was fault by the Council, which caused Ms B an injustice. The Council has accepted my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman