Summary: Mr X complains about the way the Council dealt with his homelessness application, eviction from a hostel and allocated banding priority to his housing application causing distress. We have not investigated Mr X’s concerns about his eviction from the hostel and decision he was intentionally homeless because he could have appealed to the courts about the intentionally homeless decision. We have found no evidence of fault in the way the Council considered and allocated Mr X banding priority. But we found fault because the Council delayed carrying out a review of Mr X’s housing banding causing uncertainty. However, the injustice caused to Mr X has been remedied as he has been able to bid at a higher priority for 20 months. So, we have completed our investigation.

The complaint

1. I have called the complainant Mr X. He complains there were failings in the way the Council dealt with his homelessness application, his eviction from a hostel and allocated priority banding to his housing register application.
2. Mr X says the Council’s decision not to consider his appeals against his eviction, his demotion from Band C to D, the reduction in his two-bedroom need to one bedroom and not being able to bid for properties has caused him distress and time and trouble in pursuing his concerns with the Council. Mr X says he now has 51% custody of his child so the Council should reinstate his two-bedroom housing need.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal; or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

6. I have investigated Mr X’s complaints about his housing allocation banding. I have not investigated Mr X’s concerns about the eviction from a hostel and the Council’s decision he was intentionally homeless as a result. I explained my decision not to investigate this issue within the decision statement.

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How I considered this complaint

7. I considered the information provided by Mr X and discussed the complaint with him. I made enquiries of the Council and considered its response along with the relevant law and guidance.
8. Mr X 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

Homelessness and the Relief duty

9. 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.
10. 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)

Review timescale and right of appeal

11. Councils must complete reviews of the following decisions within eight weeks of the date of the review request:
• eligibility for assistance;
• not in priority need;
• Intentionally homeless;
• suitability of accommodation;
• notice being given of deliberate and unreasonable refusal to cooperate, and the effect of the notice is to bring the relief duty to an end.
• These periods can be extended if the applicant agrees in writing.
12. The council must advise applicants of their right to appeal to the county court on a point of law, and of the period in which to appeal. Applicants can also appeal if the council takes more than the prescribed time to complete the review. (Housing Act 1996, sections 202, 203 and 204)

Housing Allocations

13. 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))
14. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.

The Council’s Housing Allocation Policy

15. The Council assesses housing applicants into one of four priority bands. Band A is the highest and Band D the lowest priority. South Essex Homes (SEH) provides the Council’s housing management function including provision of hostel based and other temporary accommodation.

Events leading to the complaint

16. What follows is a brief chronology of key events. It does not contain all the information I reviewed during my investigation.
17. In February 2019 Mr X approached the Council for help as he was homeless and made a homeless application. The Council accepted a duty to help him resolve his homelessness and placed Mr X and his child in hostel accommodation.
18. The courts granted Mr X 50% custody of his child in May 2019. The Council accepted a duty to house Mr X and decided his Housing Register application in June 2019. The Council allocated Mr X Band C, as he was threatened with homelessness, with a two bedroomed need to enable him to bid for 2 bedroomed properties. This was according to the Council’s Allocations policy in place at the time.
19. In January 2020 following a serious incident at the hostel between Mr X and a partner Mr X was given notice to leave. SEH considered Mr X in breach of the conditions of his licence to stay at the hostel. This included not causing annoyance or disturbance to occupiers of adjoining or neighbouring flats or rooms.
20. The Council wrote to Mr X in February 2020 explaining it considered him to be intentionally homeless due to the eviction and discharged its housing duties towards him. The Council said it took the eviction of tenants seriously especially when they have children and would only evict under grounds to do so. The Council advised Mr X he could request a review within 21 days of letter. After the eviction Mr X remained in Band C and able to bid for 2 bedroomed accommodation.
21. Mr X asked to appeal the eviction in February 2020 saying SEH did not consult or speak to him during the process, and he felt it was unfair. A SEH officer responded confirming that when asked at the point of eviction Mr X did not dispute it. The officer asked Mr X to put any further representations in writing. Mr X raised the matter again in September 2020. Mr X said the eviction was not his fault, the Police did not charge him, but the Council had not responded to his complaint.
22. The Council responded to Mr X’s contact about the eviction. It noted Mr X had not received the Council’s email in February 2020. The Council said it understood from incident reports staff spoke to Mr X, served notice on him but Mr X did not dispute it and had left the hostel. The Council repeated the earlier offer for Mr X to send any new information.
23. Mr X said there had been an altercation in his room at the hostel between himself and partner who was the aggressor. There were no witnesses, and the Police did not bring any charges against him. Mr X said he had appealed the eviction, but the Council did not respond. Mr X said he and his child were sofa surfing which was affecting his health. The Council asked Mr X to provide evidence of his current health issues so it could carry out a review. Mr X provided a letter from his GP.
24. The Council reviewed Mr X’s banding with the medical evidence provided but did not consider it enough to award medical priority. The Council advised Mr X to consider its rent deposit loan scheme again to help him look for a private rented property.
25. Mr X contacted the Council in May 2021 asking for a review of his housing banding. Mr X said officers told him to look at private housing, but he could not afford it. Mr X said he had joint custody of his child and eligible for 2 bedrooms so should be Band B. The Council responded in July 2021 it could not consider the child a dependant and award them a bedroom allocation as Mr X did not receive the child related benefits which went to the mother. The Council asked Mr X to provide evidence if he did receive the benefits and has care of the child for at least 50% of the week.
26. Mr X sent a copy of the court order showing the joint custody arrangement and asked for a review of his banding. Mr X said the Council previously agreed he had a two-bedroom need.
27. The Council implemented new Housing Allocations policy in November 2021.

Mr X’s complaints to the Council

28. Mr X submitted a complaint to the Council in November 2021 about his request for a banding review. The Council responded to the Stage 1 complaint in December 2021. It noted Mr X was unhappy with way it dealt with his banding review request as the Council had not responded to calls and emails. The Council apologised for the delay caused by an unprecedented demand for services which created a backlog. The Council agreed to forward his submission for banding review.
29. The Council carried out an internal review of Mr X’s housing register banding in January 2022 and wrote to Mr X. It apologised for the delay and any anxiety and upset caused. The Covid-19 pandemic had heavily impacted onto the housing team with a decrease in staffing yet an increase in applications which impacted on its response times. The Council considered Mr X’s banding under the new Allocations policy and moved him from Band C down to Band D. This was due to being evicted from hostel and found intentionally homeless.
30. The Council noted Mr X had recently been arrested for unacceptable behaviour towards his ex-partner and their child resulting in Mr X not being allowed contact with his child for four weeks. So, until it received notification Mr X’s child had been returned to his care in a 50/50 shared arrangement, his bedroom need had been updated to reflect his current circumstances of a one-bedroom need.
31. Mr X mentioned he could not afford a two bedroomed property as the child’s mother received the child benefits. So, the Council advised Mr X to bid on one-bedroom social housing properties and look at one bedroomed private rented accommodation. This meant Mr X could use the living room to sleep in when his child stayed with him.
32. Mr X remained unhappy with the Council’s response and complained again. Mr X referred to the eviction from the hostel in January 2020 he considered unfair as he had not been asked for his version of events. Mr X claimed his partner made false accusations against him. Mr X said he tried to appeal the decision, but the Council was unwilling to consider it and downgraded his housing banding as a result. Mr X said he had a valid court order showing joint custody which would be resuming soon. Mr X asked the Council to review its decision on his eviction.
33. The Council responded to Mr X’s Stage 2 complaint in May 2022. It explained the banding review in January 2022 changed the banding to Band D due to the Council’s decision Mr X was intentionally homeless following his eviction from hostel in March 2020. Mr X alleged SEH failed to consider several matters around eviction. But SEH confirmed the eviction was warranted and in line with their policy and procedure. The Council said Mr X did not appeal within timeframe in the eviction notice so could not consider it retrospectively. The Council asked for details of the child’s custody arrangements and advised Mr X now needed 51% for a 2-bedroom need. This was due to a change in the Council’s Allocations policy.
34. The Council advised Mr X to make a new housing application. This would enable him to access to the rent and deposit scheme for assistance to secure a privately rented property to help his current housing situation.
35. Mr X viewed a privately rented one bedroom property and secured it using the Council’s rent and deposit scheme. Mr X remained unhappy with the stage 2 response to his complaints and made further representations to the Council.
36. The Council responded to Mr X Stage 3 complaint in August 2022 and considered there were lessons to learn from his complaint. It accepted that following the incident at the hostel and decision he was intentionally homeless the Council should have amended his banding immediately to reflect this. And it should have written to him to advise of the change. The Council apologised it had not done so in March 2020 and for delays in responding to his concerns about his housing banding. The Council upheld this part of Mr X’s complaint about its handling of his housing banding.
37. The Council confirmed it changed Mr X’s banding from C to D because once evicted from hostel and it found he was found intentionally homeless, it no longer had a duty to relieve his homelessness. This meant Band C no longer applied. Mr X was entitled to Band D priority which applied when homelessness prevention and the relief duties have expired, and a person found to be intentionally homeless.
38. Mr X had asked the Council to reassess the matter now he had a one bedroomed flat when his child came to stay due to shared custody. The Council accepted Mr X had joint custody and wanted to be considered for a two bedroomed property to help his shared parenting position. But Mr X needed to have 51% custody or greater under the Allocations policy for the child to qualify. So, Mr X did not meet the criteria for a bedroom for the child and was only eligible to bid for one bedroomed accommodation. The Council did not uphold this part of Mr X’s complaint.
39. The Council said as Mr X was close to 51% custody, he had been advised to use the Council’s rent and deposit scheme due to more flexibility. And it had offered Mr X funding for a two bedroomed privately rented property. The Council confirmed the banding reduction from C to D was backdated to the date of Mr X’s eviction, so he had not lost time on the housing register.

My assessment

40. Mr X’s eviction from the hostel in 2020 was linked with the Council’s decision he was intentionally homeless. Mr X was notified of the Council’s decision to regard him as intentionally homeless in February 2020 and advised of his right of review if he disagreed with the decision. So, Mr X had a right of appeal which I would have expected him to use if he disagreed with the finding of intentionally homeless and the reasons for it. If Mr X disagreed with the Council’s decision and review, he could have taken the matter to the county court.
41. As paragraph four explains we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. I consider it was reasonable to expect Mr X to appeal to the county court about his concerns. The courts could have considered the matter and decided if the Council’s decision was correct. So, I do not consider there are grounds for us to exercise discretion to consider Mr X’s concerns now.
42. The Council accepts Mr X requested a review of his banding in July 2021 and it was not carried out until January 2022. The Council reduced Mr X’s banding to Band D according to its new Allocations policy implemented in November 2021. It explained why it had made the decision according to its new Allocations policy.
43. The Council acknowledged the delay in carrying out the review of banding due to pressures on service. The delay is fault as we would expect a council to carry out a banding review within 28 days of the request. The delay caused Mr X an injustice through uncertainty. But I consider the injustice to Mr X has been remedied because he remained as Band C from March 2020 until January 2022 (20 months). Mr X has been being able to bid as Band C priority for accommodation during that time when in fact he had a lower priority. While Mr X may not agree with the housing banding, he has been allocated, it is for the Council to determine what housing banding applies to Mr X according to its Allocation policy. So, I do not consider I can add anything to the Council’s investigation into Mr X’s concerns.
44. The Council has now backdated Mr X’s Band D priority to 2020 so he has not lost out on time on the Housing register. So, I do not consider that any further investigation will lead to a different outcome for Mr X.
45. The evidence shows in 2019 the Council followed its Allocations policy in place then. It allocated Mr X Band C because he was threatened with homelessness and was a room short due to custody arrangements for his child. The custody arrangements were then 50% to be eligible for a room for a child. There is no evidence of fault as the Council considered and allocated Mr X a banding according to its policy at the time.
46. The Council advised Mr X of a change in its Allocations policy from November 2021 about child custody which needed to be 51% to be eligible for a two-bedroom need. So, he was allocated a one bedroom need according to the Council’s Allocations policy. There is no evidence of fault as the Council considered and allocated Mr X a banding according to its revised Allocations policy.
47. Mr X’s custody arrangements changed in January 2022 as he no longer had custody of the child due to a court order in place. So, his housing need remained at one bedroom. The Council says it has not been advised the court order from January 2022 has been lifted. However, if the court order has been lifted Mr X’s reinstated bedroom need would remain as one bedroom as it has no evidence to suggest he has custody of child for 51% of the time. If Mr X considers he now has 51% custody, then he needs to send his evidence to the Council. The Council can consider Mr X’s housing register application further and take any necessary action.

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Final decision

48. I have completed my investigation. I have not investigated Mr X’s concerns about the eviction from the hostel and decision he was Intentionally Homeless as he could have appealed against the decision and take the matter to court. There is no evidence of fault in the way the Council considered and allocated Mr X a banding priority according to the Allocation policy it had in place at the time of each consideration. But the Council was at fault as it delayed carrying out a review of Mr X’s housing banding causing Mr X an injustice through uncertainty. However, the injustice caused has been remedied as Mr X was able to bid for accommodation at a higher priority for 20 months.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman