Summary: The Council was at fault for failing to provide comprehensive advice and information about Mrs X’s housing situation, failing to make a direct offer of housing in line with its letter to Mrs X, delays in dealing with the case and unfairly raising Mrs X’s expectations about a property she viewed. It should apologise, and pay her £2,000 for the frustration and uncertainty caused, and the time and trouble pursuing the Council over many months. It should also review its processes to avoid a recurrence of these faults.

The complaint

1. Ms X complained the Council:
1. failed to provide emergency accommodation when the family had to leave their council property in January 2020 after threats of serious violence against them;
2. delayed in providing advice and assistance for the family to help them move outside the Council’s area, which was then compounded by the COVID-19 pandemic; and
3. offered alternative accommodation but the withdrew the offer in December 2020.
2. As a result of these failures, Ms X says the family have been sofa-surfing, including during the COVID-19 pandemic and national lockdowns, whilst paying rent and bills on a property they are not able to live in. In addition, the moving around has caused significant disruption for their child, now aged 7. Mrs X has had to make complicated arrangements to get the child to school, which have meant early starts and long days for the child. Further, her partner has not been able to sleep in a bed, which has aggravated a neck condition, causing loss of sleep and two visits to A&E.

Back to top

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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”.
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. 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)

Back to top

How I considered this complaint

8. I have considered:
• the information provided by Ms X and the Council;
• relevant law and guidance, and the Council’s polices, as set out below; and
• our guidance on remedies.
9. Ms X and the Council had an opportunity to comment on two draft decisions and I considered their comments before making a final decision.

Back to top

What I found

Relevant law and Guidance

Homelessness

10. 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.
11. A person who has accommodation is to be treated as homeless where it would not be reasonable for them to continue to occupy that accommodation.
12. When a person applies to a council for accommodation and the council has reason to believe they may be homeless or threatened with homelessness, a number of duties arise, including:
• to make enquiries about whether it owes the person a housing duty;
• to secure suitable accommodation for those in priority need pending the outcome of those enquiries;
• to notify the applicant of the decision in writing and the right to request a review of the decision.
13. A person may be in priority need if they:
• are a pregnant woman;
• have children living with them; or
• are vulnerable due to serious health problems, disability or old age.
14. Where a council is satisfied a person is homeless and eligible for support, it has a duty to take reasonable steps to help the person secure accommodation that will be available for at least six months. This is the relief duty.
15. The council should work with the person to identify practical and reasonable steps they and the council can take to help them secure suitable accommodation. These steps should be tailored to the household, and must be provided to the applicant in writing as their personalised housing plan (PHP). (Housing Act 1996, section 189A and Homelessness Code of Guidance chapter 11)
16. Councils also have a duty to provide or secure the provision of advice and information about homelessness and the prevention of homelessness, free of charge to any person in their district. (Housing Act 1996, section 179(1) and Homelessness Code of Guidance, chapter 3).

Housing allocations

17. 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))
18. 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 medial or welfare grounds;
• people who need to move to avoid hardship to themselves or others.

(Housing Act 1996, section 166A(3))

This Council’s allocations scheme

19. Bidding: The Council operates a choice-based lettings scheme. Applicants can choose which properties to “bid” for from available properties, which are advertised each week. The Council says the adverts provide sufficient information for applicants to decide whether to bid, following which they need to view the property to check it meets their requirements.
20. Priority band: The Council places applicants who qualify to join the housing register in a priority band from Band A (highest priority) to Band D (lowest priority). This priority is the first factor the Council uses to allocate a property.
21. Band A: This is awarded for emergency situations and cases involving very high levels of need. This includes cases where a tenant needs to move due to risk of violence. Band A has two levels: applicants will be placed on level 2, unless their case is exceptionally urgent, in which case they will be placed in Level 1.
22. Band C is awarded where applicants are accepted as homeless and are living in temporary accommodation.
23. Direct offer: This is where the Council offers a property directly to a particular applicant instead of advertising it in the weekly bidding cycle.
24. Property size: Children of the same sex are expected to share a bedroom regardless of their age. Adult children aged over 21 are disregarded when deciding how many bedrooms are needed, except in limited circumstances.
25. COVID-19 bidding suspension: On 25 March the Council decided to suspend all bidding through its choice based lettings scheme. This was because, due to the first national lockdown, people were not allowed to leave their homes for non essential reasons, and removal companies and non-essential shops were closed, all of which made moving very difficult. It said it would continue to make direct offers in urgent cases. Its priority was the COVID-19 response, which included moving vulnerable people who needed to shield out of accommodation with shared facilities.

Relevant Government guidance: COVID-19

26. The Government published guidance for social landlords on essential moves on 27 April 2020. This recommended pausing “all non essential allocation and transfer activity” to help prevent the spread of infection. The guidance said some allocations should continue, including:
• supporting people fleeing domestic abuse and other forms of violence;
• facilitating move-on from temporary accommodation; and
• supporting those living in unsafe accommodation, or without settled accommodation, which posed a risk to their health.

The guidance said such essential moves should be carried out in line with advice on staying at home and away from others, for example, by using direct offers rather than choice based lettings.

27. On 13 May 2020 the Government withdrew the guidance about non-essential moves and allowed them to continue, subject to considering how moves could be carried out safely in line with general COVID-19 advice and guidance.

What happened

28. This decision statement records the key events. It is not a comprehensive statement of everything that happened during the period I have considered.
29. Ms X, a council tenant, asked the Council for help after receiving threats against her family in late January 2020. She said she could not tell the Council the name of the person threatening them as they were connected to someone working with it. However, the police were involved, and she suggested the Council talk to the police officer if it needed further information.
30. Ms X met with a housing officer, officer 1, and children’s social worker two days later. I have seen an application form for an emergency transfer, completed at that meeting, confirming her reasons for requesting a transfer, and an information sheet, which she signed to confirm she understood the limits of the transfer scheme. The Council has no other record of the meeting apart from a letter written by the social worker to support the request for an emergency transfer.
31. Ms X says the Council advised her it could only offer temporary accommodation in its area, which she refused because she wanted to move outside its area. The Council’s complaint response dated 26 February 2021 said Ms X had refused temporary accommodation because the available accommodation was its area.
32. In response to my enquiries, the Council said:
• it should not have given that advice since around 60% of its temporary accommodation was outside its area;
• temporary accommodation could also have been provided if she had applied as homeless, but this would have led eventually to her losing her secure tenancy, which she did not want to do;
• it had not considered procuring temporary accommodation for the family because Ms X refused this;
• it could not offer long term social housing outside its area.
33. In early February, an application for an emergency transfer was completed. Ms X said she wanted to move out of the Council’s area because of the threats made. A Council panel considered the application but could not make a decision because it was not supported by a statement from the police confirming the risk of violence. After obtaining this, the panel considered the matter again in mid February and granted Ms X Band A2 priority effective from 4 February, the date of the original application. This allowed her to bid for two bedroom properties in the Council’s area.
34. Mrs X says the police officer in charge told her they had contacted the Council and provided the relevant information to its internal audit team before the emergency application was first considered. The police officer told her they had emphasised the need for a move out of the Borough.
35. The decision letter, dated 18 February 2020, said:
• There is no emergency route to a home outside of Lambeth. However, Mrs X could register with Housing Moves (a scheme that enables social housing tenants to move from one part of London to another), whilst still bidding for housing within Lambeth.
• Mrs X could also consider a referral to Safer London for inclusion in their Pan London Housing Reciprocal scheme (a scheme to assist those needing to move within London for safety reasons) and should contact her housing officer if she wished to pursue this.
• Mrs X could freely bid for housing in Lambeth “for six months from today’s date. If you have not been rehoused by that time, we will make you a direct offer”. If Mrs X refused a direct offer of a property the Council considered was reasonable, it would no longer deal with the application as an emergency.
36. Mrs X was not able to talk to her housing officer about the Safer London scheme because they went on maternity leave soon afterwards and the Council was not able to allocate a new housing officer at the time.
37. Despite various attempts to contact the Council, Mrs X was not able to discuss her case with an officer until 1 April 2020. Officer 2, from the Council’s allocations team, talked to Ms X about bidding for properties in the Council’s area. She also discussed two schemes Ms X could apply for if she wanted to move out of the Council’s area.
38. Following this conversation Mrs X attempted to register with Housing Moves. The process requires the applicant’s landlord to validate the registration. The Council did not validate the application until June 2020.
39. In May, Mrs X spoke to officer 3, who told her she could apply as homeless in another London borough but this would mean giving up her secure tenancy. The following day, Mrs X spoke to officer 4, a housing officer, about the Housing Moves login.
40. Mrs X complained, through her MP, on 30 June 2020. She complained that:
• She had said from the start she had concerns about the safety of accommodation within Lambeth;
• Although she was awarded Band 2 priority she could only bid in certain areas far enough away from her previous property to be safe for the family;
• She had not been able to bid for a period due to the COVID-19 pandemic;
• There was a delay in validating the Housing Moves registration and no-one in the Neighbourhood housing office seemed to know about the scheme;
• She had asked about the Safer London scheme but had not been adequately advised or assisted;
• A charity had advised her the director of housing could, at their discretion, directly nominate to another Borough but the Council had told her it did not do this;
• She was continuing to pay rent and bills on a property she could not live in, and could not afford to rent privately whilst waiting for alternative social housing to be identified.
41. In its response to the MP, the Council:
• accepted it had delayed in assisting Mrs X, which it said was because the original housing officer went on maternity leave and because of a staffing restructure;
• confirmed bidding had been suspended from late March until 27 May 2020, due to the COVID-19 pandemic, but said it had told Mrs X in mid May when bidding would resume and had advised her to actively bid for properties;
• said Mrs X had six months to bid for properties, after which the Council would make a direct offer. If this was unreasonably refused, Mrs X may be moved to a lower priority band;
• said it could only consider Mrs X for properties in Lambeth. It recommended she join a mutual exchange scheme but said it had little influence over how those schemes were run.
42. The registration with the Pan London Reciprocal Housing scheme was completed on 10 August 2020. Although this scheme is specifically for Londoners at risk of violence in their borough, the general information the Council sent Mrs X about this scheme said it was not an emergency housing scheme and tenants at immediate risk should explore emergency housing options with their council. The Council did not view Mrs X as being at immediate risk because she had moved out of her council property and away from that part of the borough.

Allocations

43. The Council’s decision letter dated 18 February 2020 said Mrs X could freely bid for properties for 6 months, following which it would make a direct offer. It has not made a direct offer and it has confirmed it has not considered doing so. It said it has since changed the wording of its standard letter to say it “may” make a direct offer, which it said better reflected its practice. It said its intention was to reserve the right to make a direct offer, not to guarantee rehousing within a certain period.
44. In its response to my enquiries, it said: “for someone with high priority like her, a choice-based offer is preferable to a direct offer. We reserve the right to make direct offers to Band A applicants if they have not bid successfully after 6 months, but our delay in doing so benefits her because it means she can continue to bid and have a choice about where she wants to live. Furthermore, we have accepted that she is at risk across the whole of Lambeth, so we would not want to force her to accept an offer in Lambeth”.
45. Mrs X was not able to bid for properties from 25 March as the Council suspended its choice based lettings scheme. Bidding resumed on 25 May. During that period the Council made 5 direct offers of two bedroom flats to hostel residents to reduce hostel occupancy levels to help reduce the spread of infection.
46. The Council said that as of September 2021 there were 226 applicants in Band A due to serious risk of violence or with children at high risk of significant harm. Of these, 96 households require a two bedroom property, including 76 households with a higher priority than Mrs X. It could not say how long, on average, applicants in Band A wait for housing. However, it has reviewed the last 25 applications in Band A due to risk of violence and housed in two bedroom properties, and says the average waiting time was 11 months, with the longest wait being over 2 years.

Withdrawn offer

47. In December 2020, Mrs X viewed a property through the Council’s choice based lettings scheme. She says officer 5, who carried out the viewing, told her the property was hers if she wanted it. Officer 5 asked her to let them know the following morning if she wanted to accept it. Mrs X rang the following morning to accept the property and was told by another officer that it was being viewed by another family. Later in the day she was able to speak to officer 5, who told her the property had been allocated to the family who had viewed it earlier that day.
48. Mrs X provided a recording of that conversation in which officer 5 says he wanted her to have the property and he was really sorry. He also said he was very sorry Mrs X had not got the property but he had little control over who properties were allocated to.
49. In response to my enquiries the Council said the property had been viewed by five people, who had all refused it, so a further shortlist of five applicants were shortlisted, including Mrs X. Although it had not heard the recording, it accepted officer 5 “got ahead of himself and said it was hers if she wanted it, because so many people had turned it down. This did not constitute a verbal offer and we apologise for any confusion or misunderstanding caused”. The Council provided a record to show the property was allocated to an applicant with higher priority.

Current position

50. When I first spoke to Mrs X, in late June 2021, she said she had not had a named housing officer since officer 1 went on maternity leave, despite repeatedly asking the Council who was handling her case. The Council said Mrs X was able to speak to a housing officer, officer 4, in May and again in July 2020, and that a housing officer was allocated on 4 August 2020.
51. In response to my enquiries, the Council carried out a homelessness assessment by telephone on 11 August 2021. I have not seen any record of this but Mrs X says the Council advised her it would consider offering temporary accommodation but that once it accepted a full housing duty (after 56 days) she would have to give up her secure tenancy. Mrs X says she spoke to another Council officer around this time who said she should not give up the secure tenancy.

My findings

Advice and information

52. The Council met with Ms X two days after she asked it for help. It said it advised her about her options and offered temporary accommodation, which she refused. It should have a record of the advice it gave but it has not been able to provide one. The failure to keep a proper record was fault.
53. Mrs X has consistently said in communications with the Council and with us that the Council did not make any offer of temporary accommodation. I have seen no evidence to show it made an offer or actively considered doing so.
54. The Council’s account of the advice given at the initial meeting has been inconsistent. In its complaint response, it said it had informed her it could only provide temporary accommodation in Lambeth, which she refused. In response to my enquiries, it said it would not have said this because 60% of its temporary accommodation is outside the Borough.
55. I have seen no evidence the Council properly considered providing temporary accommodation and gave Mrs X advice and information about this. This was fault. Further, I find the Council gave inconsistent accounts of the advice it gave at the initial meeting, although that was likely due to the lack of a proper record, for which I have already made a finding of fault.
56. The family’s situation was complicated. If they made a homeless application, it is more likely than not the Council would have accepted they were homeless on the basis it was not reasonable for them to continue to live in their council property. It would then have a duty to provide temporary accommodation because they were in priority need due to having a child living with them. This would avoid the need for sofa surfing but would mean their housing priority was reduced to Band C, making it harder to secure another council property in the Borough.
57. In addition, if the Council later identified suitable long term private rented sector housing, and the family refused this because they did not want to give up their secure tenancy, the Council may have ended its housing duty on the grounds they had refused a reasonable offer of housing. However, if they did give up their secure tenancy, this would mean they were no longer qualified for the Pan London Reciprocal scheme. This means they would lose the possibility of a transfer to social housing in another London Borough. As homeless applicants, whether in this Council’s area or elsewhere, it is likely they would be offered private rented accommodation rather than social housing to discharge the housing duty.
58. On the other hand, if they proceeded with an emergency transfer request, there was no guarantee that a suitable property would be identified in a part of the Council’s area where they would feel safe within a reasonable timescale. Further, there was no guarantee that a suitable property would be identified quickly via the Housing Moves or Pan London Housing Reciprocal schemes. And, in the meantime, they would be sofa surfing whilst paying rent and bills on a council property they could not live in.
59. In these circumstances, I would expect the Council to give comprehensive advice about the options so the family could make an informed decision about what to do. This would have involved some joint working between the allocations and homelessness teams, which did not happen. It would be good practice to confirm the advice in writing so they could consider the options and seek expert advice if they wished to do so. The Council did not give comprehensive advice at any point. This was fault.
60. The Council disputes it advised the family they must give up their secure tenancy if they wished to be treated as homeless. Mrs X has consistently said this was the advice it gave her and, on balance, I find it did give her that advice, which was not correct. However, I accept there may be implications for housing benefit if an applicant occupies temporary accommodation whilst retaining a secure tenancy, and complications may arise when the Council ends its housing duty.
61. The Council accepts its Emergency Panel was focussed on the social housing transfer and did not address homelessness duties. Further, the Council did not consider accepting a homelessness application prior to our involvement, it only advised the family to present as homeless elsewhere.
62. I find the Council failed to grasp the complexity of the situation the family found themselves in and failed to provide comprehensive advice on the options. It had a statutory duty to do this under section 179 of the Housing Act 1996. This fault meant the family could not make an informed choice about what to do.

Emergency transfer application

63. There was a delay in agreeing the emergency transfer application because the papers sent to the Council’s panel initially did not include confirmation from the police about the level of risk, despite the Council’s process indicating this should be provided. This was fault. Mrs X says the police had already provided information to the Council, which it appears was not passed on to the correct team. I have not seen records to prove that but see no reason to doubt what Mrs X said. This compounds the fault. However, the priority date awarded was the date of the initial application and it is unlikely, based on the information I have seen, that this delay caused Mrs X to miss out on suitable alternative housing. Therefore, the injustice is limited to the frustration caused by the delay.

Allocations

64. There was no fault in placing Mrs X in Band A, level 2, which was in line with its allocations policy. There was also no fault in deciding the household needed two bedrooms for the same reason.
65. The decision letter sent to Mrs X said if she had not found suitable housing within 6 months it would make a direct offer. This gave Mrs X an expectation of being rehoused within six months. It has not made a direct offer in line with its decision letter. This was fault. The Council has since changed the wording in its standard letter to say it “may” make a direct offer, which should avoid raising expectations in this way in future.
66. The Council suspended its choice based lettings scheme during the first national lockdown, which was in line with Government guidance and was not fault.
67. It was still able to make direct offers in urgent cases. It did not consider making a direct offer to Mrs X at any time, despite being aware the family have been sofa surfing since January 2020 with a young child. The family were not at immediate risk of violence, having moved out of their council property. However, they were sofa surfing during a pandemic, which brought other risks as they moved between the homes of different family members and friends, including the risk of having nowhere to go due to national or local restrictions. The failure to consider making a direct offer or using its general powers to provide accommodation in those circumstances was fault. I cannot say whether the Council would have been able to make a direct offer but Mrs X and her family have suffered the uncertainty of not knowing whether housing could have been offered if the Council had properly considered this.

Delays – Housing Moves and Pan London Reciprocal schemes

68. Ms X applied for the Housing Moves scheme in April 2020 but there was a two month delay in the Council validating her application, which it did not do until mid June 2020. There was also a delay in assisting Mrs X to apply to the Pan London scheme between February and early August 2020. The Council accepted it delayed due to an officer going on maternity leave and staff restructuring. The delays were fault. I cannot say whether Ms X missed out on a suitable transfer as a result of the delay, but she has suffered uncertainty about whether that might have been the case. She was also put to the time and trouble of pursuing the Council about this.

Withdrawal of offer

69. Officer 5 told Mrs X if she wanted the property she viewed in December 2020, it was hers. Officer 5 was not authorised to make this offer, which would not have been in line with the allocations policy. This unfairly raised Mrs X’s expectations and was fault.

Back to top

Agreed action

70. The Council will, within one month of the date of the final decision, apologise to Mrs X for:
• its failure to keep a proper record of the initial interview;
• its lack of joined-up working and resultant failure to give appropriate information and advice;
• its delay in agreeing the emergency transfer application;
• its failure to make a direct offer in line with its decision letter and its failure generally to consider making a direct offer;
• its delay in validating the Housing Moves application and its delay in progressing the Safer London application; and
• unfairly raising Mrs X’s expectations about the property she viewed in December 2020.
71. Within the same timescale, the Council will pay Mrs X £2,000 to reflect the injustice caused including the uncertainty, frustration, and time and trouble set out above, and the possibility that temporary accommodation could have been offered at an early stage, avoiding the need for months of sofa surfing.
72. The Council will, within three months of the date of the final decision:
• consider all possible options for assisting Mrs X and her family into appropriate housing, including whether it can make a direct offer to them. As part of that, it should also assist them to obtain legal advice about their housing situation to remedy the injustice caused by the lack of information and advice earlier;
• remind relevant staff of the need to keep a proper record of initial interviews, including the information provided by housing applicants and any advice given;
• consider how its allocations and homelessness teams could work more closely together to give appropriate advice in cases like this where an emergency transfer is sought but the applicant is also potentially homeless, to ensure that all relevant options are explored and appropriate advice given;
• prepare an information sheet for secure tenants who need to leave their homes due to the risk of violence to set out their options and the consequences, and to explain the Council’s role. This should be checked by the Council’s legal team to ensure it is accurate. It would ensure consistent advice is given to all such applicants, although it should be supplemented with advice and information to each applicant that is specific to their circumstances; and
• consider what action it can take to improve the availability of appropriate housing for families fleeing violence and reduce waiting times for applicants in Band A.

It will report to us on all the actions in this paragraph.

Back to top

Final decision

73. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.

Back to top

Investigator's decision on behalf of the Ombudsman