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London Borough of Ealing (20 004 878)

Category : Housing > COVID-19

Decision : Upheld

Decision date : 13 Jul 2021

The Ombudsman's final decision:

Summary: The Council was at fault for not sending Mr X its homeless decision in writing, causing him to lose his right to ask for a review. It should reissue its decision, giving him a fresh right of review should he wish to challenge it. The Council was not at fault for evicting Mr X from hotel accommodation provided under the Everyone In initiative in response to the COVID-19 pandemic.

The complaint

  1. Mr X complained the Council wrongly evicted him from temporary accommodation provided during the COVID-19 pandemic. In particular, he said the Council did not properly investigate the allegations the hotel made about him and did not discuss them with him. As a result of being evicted, he is now street homeless.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
  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 a council’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

  1. I considered the information Mr X and the Council provided, and relevant law and guidance, as set out below.
  2. Mr X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Homelessness

  1. 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.
  2. Where the Council is satisfied the applicant is eligible and either homeless or threatened with homelessness, it must assess their housing needs and draw up a personalised housing plan (PHP) to identify the steps necessary to prevent or relieve homelessness.
  3. Whether a person is eligible for assistance depends on their immigration status. Many migrants have “no recourse to public funds” (NRPF), which means they are prevented from accessing state-funded benefits, tax credits and housing assistance.
  4. Where the Council decides the applicant is not eligible for assistance, it must issue its decision in writing, stating the reasons for the decision and setting out the applicant’s right to ask for a review of the decision within 21 days.
  5. Councils have a duty to provide or secure advice and information about homelessness and the prevention of homelessness, including to those who are not eligible for housing assistance.

COVID-19 and rough sleepers

  1. In March 2020, the Government announced emergency funding for councils in England to help rough sleepers self-isolate during the COVID-19 outbreak. This became known as the Everyone In initiative. Many councils booked empty hotel and hostel accommodation to accommodate rough sleepers. Although councils could provide emergency accommodation to those with NRPF, their legal status was not changed.
  2. In late May 2020, the Government confirmed that the NRPF condition continued to apply and advised councils to use their own judgement when deciding what support could lawfully be provided to people with NRPF. As mentioned above, those with NRPF cannot normally receive housing assistance. In March 2021, the High Court said councils could lawfully accommodate people with NRPF in an emergency under section 138 of the Local Government Act 1972 and section 2B of the National Health Service Act 2006.

R (on the application of Ncube) v Brighton and Hove CC [2021] EWHC 578 (Admin)

  1. In June 2020, the Government announced additional funding to enable councils to support the nearly 15,000 people placed in emergency accommodation, to ensure they continued to have a safe place to stay and were helped into longer-term accommodation. Funding was available for short-term accommodation until 31 March 2021.
  2. The requirement to accommodate rough sleepers under Everyone In ended on 5 July 2020 when COVID-19 restrictions were relaxed.

This Council’s policy

  1. The Council accommodated rough sleepers under Everyone In until 5 July 2020. After that date, it applied the normal homelessness legislation, thereby not accommodating new applicants with NRPF, unless they were at higher risk due to COVID-19.
  2. It decided those already in accommodation would not be asked to leave but it would not provide alternative accommodation to those who were asked to leave due to their own actions, for example, breaches of rules or refusal of reasonable alternative accommodation, instead it would apply the homelessness legislation.

What happened

  1. The Council provided Mr X with emergency accommodation in a hotel under the “Everyone In” Initiative in early April 2020.
  2. In early May 2020, the hotel reported concerns about his behaviour to the Council and asked it to consider a transfer to alternative accommodation. It raised concerns about “constant complaints” from Mr X, Mr X not respecting COVID-19 rules such as social distancing rules, and conflicts between Mr X and other residents. It is not clear how the Council considered this but there is no record to show it considered a transfer to alternative accommodation for Mr X at that point.
  3. Also in May, the Council assessed his homelessness application. It decided he was not eligible for assistance due to his immigration status, which meant he had “no recourse to public funds” (NRPF). It prepared a decision letter, which set out his right to ask for a review of the decision. It subsequently accepted it failed to email this letter to Mr X.
  4. In June 2020, the hotel told the Council it had given Mr X several warnings about roaming about at the back of the premises and he had been verbally abusive to security staff after returning to his room. The following day, the Council issued a warning letter to Mr X. It said Mr X was in breach of hotel rules for:

“Unacceptable behaviour, includes acts or threats of violence, verbal or physical abuse to others or being under the influence of substances”.

It said:

“Any further incident of this or a similar nature may result in your accommodation at [the hotel] being withdrawn and your having to leave immediately”.

The letter advised if he was evicted from the hotel “for this or any such reason”, the Council would not offer any other accommodation.

  1. In early September 2020, the hotel again asked the Council to transfer Mr X to alternative accommodation. Two days later, the Council issued an eviction notice “as you continue to cook in your room and the hotel staff has told you many times you must not do this. You have been using the kettle to cook food and this is extremely dangerous and you are putting the safety of yourself, other guests and the staff at risk”. The Council said it was satisfied Mr X was unable to follow the hotel rules and his behaviour posed a significant health and safety risk to other residents. He was asked to leave by 11 a.m. the following day.
  2. An internal email stated the hotel said Mr X had been using the kettle to boil eggs and cook lentils, but this was unclear from the photos the hotel provided. However, there was at least one photo that showed food in the kettle. The email noted the hotel said it had given him “many warnings” and the Council had issued a warning letter in June.
  3. The records show a charity that was supporting Mr X raised concerns about the lack of notice and asked whether the eviction could be delayed or alternative accommodation found for Mr X. However, the eviction went ahead, as planned. The Council said on the day of the eviction Mr X indicated he was having a heart attack but paramedics did not consider he had symptoms of a heart attack. Mr X was referred for a mental health assessment but the assessment did not indicate Mr X had mental health problems.
  4. The Council spoke to Mr X a few days after he left the hotel to assess whether he was medically vulnerable due to COVID-19. It said Mr X refused to share up-to-date medical information and was verbally aggressive. Mr X disputes this but the Council’s record at the time supports its account.
  5. Mr X complained. Throughout the complaints process he maintained he had not cooked food in his room. He said he prepared moong dal, which required soaking only, and ate raw eggs after exercising.
  6. In response to Mr X’s complaint, at stage 1 of its complaints process, the Council set out the history of the homelessness application. It said the hotel had asked him to leave and by this point it had no duty to accommodate him as he was not medically vulnerable to COVID-19.
  7. At stage 2 of its complaints process, the Council accepted it had not sent him its homelessness decision letter in May 2020, for which it apologised. It said it had no reason not to believe hotel staff and remained satisfied the hotel was entitled to end the accommodation.
  8. At stage 3 of the complaints process, the Council said that, on his own account, Mr X was preparing food in his room, which was a breach of the hotel’s rules. It provided photographic evidence sent to it by the hotel to show food items in the kettle.
  9. In response to my enquiries, the Council provided relevant records and said:
    • It had not made its own enquiries but was satisfied from the photos the hotel sent it that there was evidence of the kettle being used for purposes other than boiling water. Based on that evidence it was safe to assume Mr X was cooking in his room and Mr X had confirmed he was preparing food in his room, including preparing moong beans, which are typically cooked before eating.
    • The hotel was privately owned and managed so the Council had no control over the ending of this booking. It would not usually issue warning letters itself as this would usually be the accommodation provider’s responsibility but due to the exceptional circumstances of Everyone In, it had agreed to do so for this hotel.
    • The charity that was supporting Mr X had confirmed it had spoken to Mr X on a number of occasions and that Mr X was fully aware of the consequences of further rule breaches. Mr X spoke to the charity on the day he left the hotel, at which point he denied cooking in his room but did not offer any other explanation for food being in the kettle.
    • Mr X would have been able to stay in accommodation beyond 5 July 2020 if he had not broken the rules and provided that he continued to engage with relevant support services. The Council satisfied itself that Mr X was not medically vulnerable in relation to COVID-19. It had offered to refer Mr X for advice on his immigration status but he had repeatedly refused this. It was not possible to offer other support, such as move-on accommodation, due to his NRPF status.

My findings

Homelessness application

  1. The Council considered Mr X’s homelessness application and decided he was not eligible for housing assistance. It accepted during the complaint process that it did not send a decision letter to him, although it said Mr X could have accessed it if he had used the link it sent him to access his case files. The failure to issue a decision in writing was fault. As a result of this fault, Mr X lost his right to ask for a review of the decision.
  2. An assessment of eligibility is essentially an assessment of the person’s immigration status. I cannot say whether the Council’s assessment of Mr X’s immigration status was correct. However, I note the Council offered to refer Mr X to a local law centre for advice about his immigration status, which was appropriate action for someone with no recourse to public funds, and Mr X declined this on more than one occasion. It he had agreed the referral and the Council’s decision was not correct, it is likely the law centre would have assisted him with requesting a review and/or making an appeal to the county court. The Council said it was still willing to make this referral if Mr X wishes.

Eviction from hotel

  1. Mr X moved into the hotel in early April and by early May the hotel was sufficiently concerned about his behaviour to ask the Council to consider moving him.
  2. In June 2020, after a further request from the hotel to transfer Mr X, the Council issued a warning letter. This suggested his behaviour was anti-social but did not specify what Mr X had done wrong or what he should do differently in future. The Council said a charity supporting Mr X spoke to him about his behaviour on a number of occasions and the charity was satisfied Mr X understood that any further rule breaches would lead to his eviction. I have not seen written evidence of this but Mr X has not disputed he knew what would happen if he broke the rules again.
  3. Rather, Mr X’s argument is that he was not cooking food in his room and therefore he should not have been evicted for doing so. I have seen the email the hotel sent to the Council and the photos referred to. Although it would have been better if the Council had made some enquiries of its own, I accept the decision about whether to evict was one for the hotel to make. In addition, I accept that although the presence of food in the kettle did not conclusively prove Mr X was cooking in his room, he did not provide an alternative explanation when asked by the charity supporting him on the day he was evicted. On balance, I do not consider the Council was at fault for concluding Mr X had broken the hotel’s rules and for therefore issuing an eviction notice.
  4. By the time Mr X was evicted, in early September, the Everyone In initiative had ended and the Council was not required to provide accommodation to those with NRPF. The Council’s policy was to continue to accommodate them where there were no rule breaches and they were engaging with relevant support. Otherwise, it would only continue to accommodate them if they were medically vulnerable to COVID-19. In this case, Mr X had breached the hotel rules on more than one occasion, had refused a referral to the law centre, and there was no evidence he was vulnerable on health grounds. Therefore, the Council decided not to transfer him to alternative accommodation, which was in line with its policy. The Council considered relevant factors and there was no fault in the way the Council considered whether to offer alternative accommodation.

Complaints handling

  1. There was possibly some confusion caused by the Council by explaining the circumstances around Mr X’s eviction in different ways at different stages of its complaints process. For example, initially saying that cooking in his room was a health and safety issue, and later saying preparing food in his room was in breach of hotel rules. This led to Mr X believing it was changing its story to fit the facts. However, I do not consider this warrants a finding of fault.

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Agreed action

  1. The Council will, within one month of the date of the final decision:
    • Apologise to Mr X for the failure to send him its homelessness decision in writing in May 2020;
    • Reissue its homelessness decision letter, providing Mr X with a fresh right to ask for a review of its decision within 21 days, should Mr X wish to challenge it; and
    • Write to Mr X making a further offer to refer him to the local law centre for advice about his immigration status.

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Final decision

  1. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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