Summary: Mr X complained about the Council’s decision not to award him a higher priority band on his housing application. Mr X also complained about the Council's decision to reverse its homelessness decision made in 2021. He says his household was overcrowded and the property was full of mould and damp. We found fault by the Council and it has agreed to tell Mr X of his right to request a review of its decisions.

The complaint

1. Mr X complained about the Council’s decision not to award him a higher priority band on his housing application. He said his household was overcrowded. Mr X also complained about the Council’s decision to reverse its homelessness decision made in 2021.
2. Mr X said the property provided by the Council was full of mould and damp.
3. Mr X would like the Council to review its banding decision and its decision that he was not homeless in 2021.

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The Ombudsman’s role and powers

4. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
6. 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

7. I have investigated the complaint referred to in paragraph one. I have not investigated the complaint referred to in paragraph two. This is because Mr X’s complaint about mould and damp in the property relates to the Council’s provision or management of social housing by a council acting as a registered social housing provider.

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How I considered this complaint

8. I considered the information provided by Mr X and the Council.
9. Mr X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Housing allocations

10. 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))
11. 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))
12. Housing applicants have the right to request a review of any decision as to eligibility or qualification, and a right to be informed of the decision on review and the grounds for that decision. (Housing Act 1996, section 166A(9)(c)). This includes decisions about priority banding.

Homelessness

13. 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.
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)
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)
16. Homelessness applicants may request a review within 21 days of being notified of certain decisions, including decisions about eligibility for assistance. (Housing Act 1996, section 202)

What happened

17. This chronology includes key events in this case and does not cover everything that happened.
18. In September 2021, Mr X approached the Council as homeless. The Council found Mr X was homeless and was owed the relief duty. As a result, the Council gave Mr X a Band 2 priority on his housing register application. After being awarded Band 2 priority, Mr X made a successful bid for a one-bedroom property, Property A.
19. In March 2023, Mr X’s wife and two children moved in to live with him at Property A. Mr X applied to join the housing register in May 2023. The Council awarded Band 3 priority as it assessed Mr X as being one bedroom overcrowded. However, the Council also applied a reduced preference banding because it considered Mr X had worsened his own circumstances by deliberately overcrowding the one-bedroom property. The Council therefore gave Mr X’s housing application Band 4 priority.
20. Mr X told the Council he considered he should have a higher band priority. He said this was because the damp and mould in the property affected his children’s health, and because the property was overcrowded.
21. The Council acknowledged the mould in Property A. However, it said this was caused by condensation which in turn was caused by overcrowding and restricted air flow.
22. In January 2024, the Council moved Mr X to another property (Property B) while it completed further investigations into the cause of the mould, and to protect Mr X’s family from any health and safety risks.
23. The Council completed a review of Mr X’s banding priority. During its review, the Council said new relevant key facts of Mr X’s circumstances came to light. The Council wrote to Mr X on 3 April 2024 and explained the Council’s following decisions:
• The Council now considered Mr X was not homeless in September 2021 and was therefore not eligible for assistance under section 195 and 189B of the Housing Act 1996.
• As Mr X’s Band 2 priority was awarded as a result of the Council’s previous decision that he was homeless, the Council removed its Band 2 award.
• The Council now considered its Band 2 award given in 2021 led to the successful bid and tenancy offer of Property A. The Council said it was satisfied Mr X obtained the tenancy by giving false and misleading information. The Council said it would therefore end Mr X’s tenancy agreement and would apply for possession.
• The Council confirmed Mr X could continue to stay in Property B until the tenancy at Property A ended.
24. Mr X was dissatisfied with the Council’s response and brought his complaint to us.

Analysis

25. The Council’s decision letter to Mr X dated 3 April 2024 explained the Council’s rationale for its decisions. Our role is not to ask whether we agree or disagree with what an organisation did; instead, we look at whether there was fault in how an organisation made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
26. I have seen no evidence of fault in how the Council made its decisions as set out in its letter of 3 April 2024; I therefore cannot question whether that decision was right or wrong.
27. However, the Council’s decision in April 2024 is a new decision that Mr X was no longer eligible for assistance when he approached the Council in 2021. This is because the letter states that as a result of its enquiries (made in 2023/2024), the Council now considered Mr X was not homeless in 2021.
28. In addition, the Council’s decision in April 2024 was also a new decision about Mr X’s priority banding; the Council’s letter states it decided that following its recent enquiries, it would remove the Band 2 award previously made in 2021.
29. When councils provide written decisions about homelessness, they must inform the applicant of their right to request a review of the decision, and the relevant timescale in which to ask for a review. Had the Council made its decision in 2021 that Mr X was not eligible for assistance, it should have informed him of his right to request a review, under section 202 of the Housing Act, at the time the decision was made. Although the Council made its decision in 2024 that Mr X was not eligible for assistance in 2021, it should have notified Mr X of the same right to request a review, as the Council’s decision is the same, albeit made at a later date.
30. Also, the Council’s letter dated 3 April 2024 should have informed Mr X of his right to request a review of its decision to remove the Band 2 award. This is because section 166A(9)(c) of the Housing Act 1996 says applicants have the right to request a review of any decision as to eligibility or qualification.
31. I acknowledge the Council’s comments that its decision is final, that it has concluded its internal processes, and that Mr X may challenge the Council’s decisions through the courts. However, as the Council’s decision letter does not explain Mr X has a right to request a review of the Council’s decisions, this is not in line with the Housing Act 1996, as explained above. This is fault.
32. The fault identified caused an injustice to Mr X as he has not been informed of his right to request a review of the Council’s decisions.

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Agreed action

33. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an explanation to Mr X of his right to request a review of the Council’s recent decisions regarding his ineligibility for assistance in 2021 and the removal of priority Band 2.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have found fault by the Council and the Council has agreed to take the above action to resolve this complaint. I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman