Summary: Ms X complained that the Council failed to properly consider her request to join the housing register. She says it decided she could afford to house herself based on out-of-date information about her income. We found no fault in the way the Council considered Ms X’s request to join the housing register. But it failed to give her an opportunity to appeal its decision and failed to act on its duty to make enquiries and decide what, if any, homelessness duty it owed her. In recognition of the injustice caused, the Council has agreed to apologise to Ms X, make a payment to her and contact her to discuss her housing situation.

The complaint

1. Ms X complains that the Council has failed to correctly consider her request to join the housing register. She says it decided she could afford to house herself, but she believes this conclusion is incorrect because the Council took into account out of date information regarding her income. She says these payments are no longer available to her and should not have been included.
2. Ms X is worried about her housing situation as she cannot continue to rent her current property.

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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 have considered:
• The information provided by Mrs X and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
6. Mrs 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

Law and guidance

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. The Localism Act 2011 introduced new freedoms to allow councils to better manage their waiting list and to tailor their allocation priorities to meet local needs.
9. The Housing Act 1996 details factors that Councils may take into account when determining priorities including a person’s available funds to meet housing cost, their behaviour, and their local connection.

Homelessness

10. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities (’the Code’) set out councils’ powers and duties to people who are homeless or threatened with homelessness.
11. 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)

Key events

12. Ms X lives in rented accommodation. She was living with her husband and their children but the relationship broke down and Mr X moved out. A few months later the children went to live with him. Ms X says that, following this, she stopped receiving child benefit and payments from Mr X.
13. Ms X was struggling to afford the rent payments and applied to join the Council’s housing register. The Council refused her application because she was a single applicant occupying a three-bedroom property. It explained that she did not qualify for the housing register because it considered her to be adequately housed. It advised that, under its housing allocations policy, where applicants were already housed in accommodation that met their needs in terms of size, property type and affordability they would be considered adequately housed and would not qualify to join the housing register. It offered Ms X a right of appeal against its decision.
14. Ms X appealed explaining that she could not afford her rent and so was likely to be homeless by Christmas.
15. In view of Ms X’s comments about the affordability of the property, the Council asked her to provide proof of income and bank statements for the last three months to complete an affordability assessment.
16. Having assessed the documents provided by Ms X, the Council explained that, while she may qualify for the register on affordability grounds, she appeared to be over the financial threshold for social housing. This would make her ineligible to join the housing register, regardless of the affordability of her rent. The Council advised it needed to undertake a full financial assessment and requested 12 months’ bank statements, payslips and benefit statements. It also requested an explanation for some additional payments into Ms X’s bank account.
17. Ms X provided the Council with copies of her bank statements, benefit payments and rental agreement. She also provided an explanation for some additional payments into her account including:
• she had purchased items for a friend and received regular payments from him;
• she had started a new job in April; and
• she had received a number of refunds from companies for payments made.
18. The Council wrote to Ms X in late November to advise that it could not complete the financial assessment because it was missing benefit information, bank statements and wage slips. It also queried Mrs X’s claim that her children were no longer living with her when she still received child benefit payments for one child.
19. The Council considered Ms X’s appeal. It decided Ms X exceeded the financial threshold as set out in its allocations policy so she did not qualify to join the housing register. The Council explained that the financial threshold for households requiring one-bedroom is £27,700 per year. It calculated Ms X’s income for the previous 12 months was £30,471. This included net wages of £19,570 and £9,064 universal credit. This was based on the last 3 months universal credit statements which did not include the higher payments Ms X had previously received when her children were still living with her. Her income also included payments of £1,837 from Mr X.

Analysis

Housing register application

20. The Council initially refused Ms X’s application to join the housing register because she was renting a property larger than her needs. Ms X appealed this decision and explained that she could not afford her rent. In light of this information, the Council began assessing the affordability of Ms X’s accommodation. During this assessment, it identified that Ms X may be over the financial threshold for her bedroom need. It requested further documents from Ms X and, having completed a full financial assessment, concluded her income was over the financial threshold. The Council set out its conclusions in the decision letter.
21. Ms X says the Council wrongly took into account her income from when Mr X and her children were living with her.
22. The Council’s calculations show it calculated Ms X’s earned income from the previous 12 months was £19,570. Having considered Ms X’s bank statements, this calculation is correct.
23. The Council also calculated Ms X’s income from universal credit. In doing so, it only took into account the last three months’ payments and disregarded earlier payments where she received a larger amount because her children were still living with her. Although the last three months’ universal credit payments included an amount for one of Ms X’s children, the Council was entitled to take this into account because Ms X was still receiving this income. The Council was not obliged to consider the fact that these payments may stop in future. Once the payments have stopped, it is open to Ms X to make a further application to join the housing register and supply up to date financial information for the Council to consider.
24. Ms X also says the Council should not have taken into account payments she received from Mr X. The Council calculated that Ms X received payments totalling £1,837 from Mr X and this income was available to her to meet her housing needs. However, the fact that the Council included this income did not change the outcome because, even if it had disregarded those payments, Ms X’s income would still have been above the financial threshold. Her wages for the preceding 12 months together with the universal credit payments based on the preceding three months totalled £28,634 which was above the income threshold of £27,700.
25. The Council considered the information Ms X provided about the other income she received and decided not to treat this as income available to Ms X to meet housing needs.
26. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether decision was right or wrong, regardless of whether the complainant disagrees with it.
27. For the reasons set out above, I find no fault in the way the Council reached its conclusion that Ms X’s income exceeded the financial threshold. It considered all the evidence and Ms X’s explanations. In the absence of fault in the decision-making process, there are no grounds to question the Council’s decision.
28. However, I find the Council was at fault in failing to give Ms X the opportunity to challenge its conclusion that she exceeded the financial threshold. The Council reached this decision when considering Ms X’s appeal against its original decision that she did not qualify to join the housing register because she was renting a property larger than her needs. The Council does not allow someone to appeal against an appeal decision, so Ms X did not have an opportunity to appeal the Council’s conclusion that she exceeded the threshold. I find this was fault. I consider Ms X should have been given an opportunity to challenge this specific decision. However, I do not consider this caused her an injustice because, even if she had appealed, I find on a balance of probabilities that the outcome would not have been any different.

Homeless duty

29. We expect council departments dealing with housing applications to be alert to information that might relate to the council’s homelessness role and to work in a joined-up way with homelessness departments. Ms X’s appeal was part of her application for accommodation. She said she was likely to be made homeless because she could not afford her rent. Someone can be legally homeless if it is not reasonable for them to continue to occupy their home. The Code says that, when considering if this applies, affordability must be considered in all cases. This meant the Council had ‘reason to believe’ she ‘may be’ homeless or threatened with homelessness. Accordingly, the Council had a duty to make homelessness enquiries.
30. The Council accepts it did not act on its obligation to make enquiries and decide what, if any, homelessness duty it owed Ms X. This was fault and caused Ms X an injustice as it meant she missed out on the opportunity to have her housing situation considered and receive appropriate advice and assistance.

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Agreed action

31. The Council has agreed that, within one month, it will:
• apologise to Ms X for failing to make enquiries and decide what, if any, homelessness duty it owed her;
• pay Ms X £250 in recognition of the injustice caused; and
• arrange for an officer to contact Ms X to complete a referral to its Housing Solutions team on her behalf if she is still at risk of becoming homeless.
32. The Council has also agreed that, within three months, it will issue a reminder to relevant staff of the duty to carry out an assessment if there is reason to believe a person may be homeless or threatened with homelessness within the next 56 days.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I find fault causing injustice.
35. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman