The Ombudsman's final decision:
Summary: The Council failed to follow the law, correct process and its own policies when Mr X presented as threatened with homelessness and in priority need leading to him sleeping rough and losing his possessions. It then failed to properly investigate his complaint. The Council should apologise, review its practices and make a financial payment to Mr X.
- The complainant, whom I shall refer to as Mr X, complains that the Council:
- refused to accept a homelessness application from him in 2014,
- failed to make enquiries when he requested assistance as a homeless person in priority need,
- wrongly decided he was not in priority need,
- failed to provide temporary accommodation pending enquires,
- aggressively ‘gatekeeped’ services to avoid its housing duty to him as a homeless person.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. She 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, she may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
How I considered this complaint
- I have considered information provided by Mr X and the Council including:
- Homelessness application 31 July 2014
- Housing Options record of June 2014 (undated)
- Council officer records for telephone calls and attendances 26-31 July 2014
- Letter from Housing Charity in support Mr X’s application dated 28 July 2014
- Council’s complaint response
- Medical and financial evidence provided in support of Mr X’s application
- Records of contact between Council Housing Department and Mr X in 2013, including medical evidence obtained.
- Local Government Ombudsman Focus Report: Homelessness, July 2011.
- Council’s policy document ‘Council duties to homeless people’.
What I found
- Council duties are set out in Part VII of The Housing Act 1996. The Government has also published a Homelessness Code of Guidance to assist councils (2006) (‘The Code’).
- People are legally entitled to help from a council if they are homeless or threatened with homelessness within 28 days. If this is the case the Council has a duty to accept an application for help but the amount of assistance it gives will depend on individual circumstances.
- Where a person is potentially homeless, councils can legitimately suggest solutions to prevent a person becoming homeless other than making a formal homelessness application, but these must be appropriate and acceptable to the individual. Councils cannot use homeless prevention measures to defer an application for example by insisting on interviewing people and advising them on their housing options before processing an application. (R (Aweys & Others) –v- Birmingham City Council ). Blocking applications is often referred to as ‘gatekeeping’.
- Councils must decide whether:
- an application for accommodation has been made, and
- there is reason to believe the person is or may be homeless or threatened with homelessness.
If the answer to these questions is yes, councils have a duty to make enquiries to establish if the person is:
- eligible for help,
- in priority need.
- people with dependant children;
- pregnant women;
- people with serious health problems;
- some elderly people.
- The guidance makes clear that the legal test for ‘having reason to believe’ is a low test and lower than ‘being satisfied’ (The Code 6.5). In R(Aweys) the Judge held that ‘in the vast majority of cases the making of the application will mean that it is difficult if not impossible for a council not to believe that the applicant may be homeless or threatened with homelessness’.
- If someone is not in priority need the Council is still obliged to offer advice on avoiding homelessness and to help the person search for somewhere to live.
- Decisions on whether a person is homeless, eligible and in priority need must be given in writing.
- Mr X contacted the Council in October 2013 complaining that he was threatened with homelessness from his flat. Mr X’s landlord had threatened to evict him because of damage to his front door. The door had been broken down by emergency services concerned about Mr X’s health but Mr X could not afford to repair it.
- The Council arranged for the door to be repaired and for Mr X to repay the cost via a loan agreement to prevent him becoming homeless.
- On the housing form Mr X completed he gave the following relevant information:
- He had a personality disorder, mania, anxiety and depression
- He had been referred to a psychiatrist
- He was on medication (doloxatine 60mg and zopliclone 15mg)
- He had angina and chronic obstructive airways disease (COPD) and took salbutomol.
- He was in receipt of disability living allowance (high rate care).
- Noted Mr X was aged 61
- Noted Mr X as ‘eligible’ for help (as per Housing Act 1996)
- Noted Mr X had a notice to quit due to expire on 1 July 2014
- Noted Mr X had ‘Mental health problems has been sectioned in past on medication which he will supply at a later date’.
- Noted Mr X was not homeless that night but would be homeless in the future.
- Did not:
- complete the section of the housing options form that stated the applicant was claiming homelessness under Part VII of the Housing Act 1996,
- get Mr X to sign this section.
- get Mr X’s signed consent to make enquiries (for example to contact landlord or seek medical evidence).
- ‘Officer’s Agreed Actions: He wishes to make a homeless application as he will be homeless within 28 days. Cannot find accommodation.’
- Proof of homelessness received (notice to quit)
- Proof of personal details – the following documents are ‘required’:
- Tenancy agreement
- Tenancy deposit protection
- Identity documents
- Proof of medical condition – details of any medical condition from a medical professional ticked as ‘required’.
- Proof of local connection – ticked as ‘required’.
- Financial details:
- Proof of benefits - received.
- Letters from creditors / credit card statements and income / expenditure form is ticked as ‘to be completed’.
- Details of social worker and details of support workers are blank.
- Mr X had been illegally evicted as the landlord had changed the locks when Mr X was out.
- Mr X’s possessions were still in the property.
- Mr X was disabled.
- a homeless application was open to Officer A
- Mr X had not received a possession order or eviction order
- Mr X received benefits including DLA (high rate care, low rate mobility).
- Officer A’s notes state the landlord is selling ‘but no enquiries noted’.
- He had not been living at the property for some weeks due to threats from a neighbour, but had stayed with friends and in a hotel.
- He could not return to friends or afford another hotel.
- He thought the locks had been changed a few days previously (possibly Thursday 24th July)
- He had rung a local housing advice charity on Friday 25th July, was on the streets that night and ‘could not explain why he had not presented to the council on Friday’.
- He had mental health problems: depression, personality disorder and suicidal thoughts.
- His medication was Zopliclone to help him sleep – dosage unknown and Cymbalta, possibly 40mg. ‘He did not seem to have the meds on him nor was he able to tell me where they were’.
- He had no community mental health team involvement.
- He was not registered disabled.
- He has an irregular heartbeat and has medication. He cannot do much exercise but has no pain, ‘it does not affect him in any other way’.
- He has asthma and COPD for which he has medication but did not require oxygen.
- His last suicide attempt was 18 months previously and he has had no suicidal thoughts / attempts since.
- He had told Mr X at his first interview in June not to leave the property without a possession order from court.
- The landlord had changed the locks without a possession order from the court.
- Mr X had been accompanied to the June appointment by a support worker (from an organisation that provides help to prevent homelessness for people who need help to live independently).
- Mr X had told Officer A in June he did not want to upset the landlord and would find a property himself.
- He had hardly stayed at the property recently due to threats from neighbours.
- Mr X had been dealing with a local housing charity since receiving the notice to quit.
- Officer A reviewed Officer B’s finding that Mr X was not in priority need and confirmed this finding.
- Criticised that Mr X had ‘at no time since the first interview kept me informed...and has given me no reason to believe he is in priority need and all his supported info does not put him in priority need’.
- Mr X had an appointment with the housing charity to discuss the illegal eviction. Officer A called the charity to rearrange the appointment due to bad weather, it was ‘raining hard he has only a tee shirt on’.
- Advised Mr X that technically he was not homeless as ‘he could return back to the property’
- ‘No proof that he was ever section for mental health his medication is for depression low meds’.
- ‘He was unable to produce any evidence to support his health claims...no obvious PN’ (Priority need).
- Mr X was ‘unwilling to attempt to visit his previous accommodation to retrieve the needed paperwork as he suggested he would only get one shot at doing so and wanted to make the attempt when he has access to a vehicle in order to transport all his things’.
- Mr X wishes to make an application to the Council as a homeless person
- Mr X is eligible for help as a British subject
- Mr X’s landlord changed the locks on Thursday 25 July and the charity’s legal officer did not believe legal proceedings against the landlord had sufficient prospect of success.
- The charity had spoken to the landlord who ‘made it perfectly clear that he will not allow Mr X back into the property’.
- Mr X is therefore homeless under the Housing Act 1996 (s.175(2)(a)
- The charity believed Mr X to be in priority need due to his age, mental and physical health problems, post traumatic stress disorder, personality disorder, depression, anxiety, heart and lung disease (s.189 Housing Act 1996).
- There is enough information to suggest Mr X may be in priority need and that further enquiries are required given that under case law the threshold to act under s.184 is ‘a low one’.
- The letter referred the Council to:
- 10.3 of the Code which requires Councils to make enquiries about priority need in all cases, and
- 6.15 of the Code which places the obligation on the Council to satisfy itself whether a housing duty is owed, not on the applicant to prove their case. The charity asked the Council to contact it if it did not intend to take a homeless application or make enquiries.
- Mr X had been known to them for several years and has mental health issues.
- Mr X arranged with the landlord to leave earlier without a possession order and was given £200 to leave which he accepted and left.
- The charity did not hold medical evidence for Mr X.
- He had told Mr X not to leave the property without a possession order as ‘otherwise he will be intentionally homeless as he left the property of his own free will’
- Mr X had failed to mention an agreement to leave the property early and had indicated he had been illegally evicted.
- Mr X had been adamant he was not ‘section at any time for his mental health when questioned about it. Also there was no mention that he had PTSD, personality disorder or suffers with heart and lung disease’
- Indicated without medical evidence to support his medical conditions the charity’s letter was all ‘hearsay’.
- That Mr X needs to come in and sign a consent form for the Council to get medical information from his doctor and ‘until he does he will not be placed into B&B as only letter from [charity] to say he has medical problems but no proof has been supplied to give him a priority need. Which was requested at begin of his application and what he has supplied does not justify placement into B&B’.
- The decision was that Mr X was not in priority need, but she invited Mr X to provide further information about his medical conditions.
- If Mr X wished to provide further evidence it would be useful if he could ‘accompany this with a fully completed homeless application and a signed declaration: this will enable me to make enquiries as necessary’.
- on 29 July his homeless application was passed for assessment.
- on 30 July the Council provided Mr X with temporary accommodation ‘as the Council had now been submitted with sufficient information to provide a reason to believe priority need’.
- ‘Although the Council did not have all the documentation to be satisfied [Mr X] had a full priority need, [the] landlord made no contact...and therefore [Mr X] were not deemed to be intentionally homeless’.
- The Council made a ‘pragmatic decision’ to accept a full housing duty to Mr X on 3 September 2014.
- The loss of Mr X’s belongings is unrelated to the Council’s refusal to provide accommodation sooner as the locks had already been changed when he presented out of hours.
- Mr X signed a declaration for a homeless application on 30 July 2014
- Mr X completed and signed a housing register application form on 31 July 2014
- Officer B sought medical advice from Mr X’s general practitioner (GP) on 11 August 2014.
- The GP replied on 16 August that if Mr X was street homeless his mental health would get worse, he would be more vulnerable to overdoses and his asthma / COPD may get worse.
- The Council placed Mr X in band A on its housing list and helped him to bid for properties from August 2014.
- A senior housing needs officer authorised acceptance of a s.193(2) housing duty to Mr X on 2 September 2014.
- The Council only provided accommodation on 30 July after the housing charity threatened legal action.
- When Mr X found the locks changed on Thursday 25 July his sofa and chairs were outside in the rain and all his possessions were in bin bags on the stairwell
- The landlord sold his fridge
- The landlord did not give Mr X his deposit or rent advance back, only £200 which was towards expenses. The Charity was wrong to say this was given for Mr X to agree to leave. Mr X says he did not agree to leave, he returned to find the locks already changed and that he had been evicted illegally.
- When the Council refused to provide him with temporary accommodation on Saturday he was able to retrieve only two bin bags, mostly of clothes.
- When he returned to the flat again all his possessions had gone. He believes if he had been given accommodation on the Saturday he would have been able to retrieve and secure more of his possessions.
- He ‘lost’ £150 on the electricity meter.
- His passport was ‘stolen’.
- He was unlucky to have no accommodation or money that weekend which meant he had no resources to secure his possessions.
- The landlord was at fault as well as the Council.
- The Council was aware his possessions were on the stairwell on Saturday 27 July.
- The second hand value of his lost possessions, including furniture, was about £2000.
When did Mr X make his homeless application?
- Mr X and the housing charity refer to the Council not taking an application before 29 July. I am satisfied Mr X did made a homeless application on 25 June 2014 because:
- Officer A completed a Housing Options form that day. While Officer A did not also complete a housing register application, the Options form clearly refers to Mr X wishing to make a homeless application and the form took the Officer through the relevant tests for homelessness.
- Officer B refers on 26 July to a homeless application being open to Officer A from 25 June.
- I have seen no evidence Officer A decided Mr X was not homeless (for example because he could stay at the property for more than 28 days). The notice to quit would expire in less than a week and Officer A has ticked the box on the form to state Mr X was ‘homeless in the future’. I would assume this to mean within 28 days.
Duty to make enquiries
- Having found the Council had (or should) have accepted a homeless application on 25 June 2014, the Council then had a duty to make enquiries to see if it owed Mr X any duty under Part VII of the 1996 Act. (s.184 of Housing Act 1996 & The Code, Overview, para.14).
- Housing authorities are obliged to begin enquiries as soon as they have reason to believe an applicant may be homeless or threatened with homelessness. (The Code 6.16)
- Once a Council is satisfied that an applicant is not homeless, eligible or in priority need it should give an applicant a decision in writing straight away (LGO Focus Report). Decision letters must inform applicants of their right to request a review. (The Code 6.23)
- In some situations a Council will have enough information to make a decision at the first appointment and provide a written decision letter immediately. Officer A did not make a decision on 25 June.
- Officer A did not make enquiries of the landlord or Mr X’s medical advisers. Instead the Officer put the onus on Mr X to provide evidence. This is fault. The obligation to make enquiries and satisfy itself whether a duty is owed rests with the Council and it is not for applicants to ‘prove their case’. (The Code 6.15)
- Officer A also did not get Mr X to sign the pages of the form for the homeless declaration or to give consent for the Council to make enquiries. This is fault.
- The Council did not start to make enquiries until August 2014, after Mr X had been evicted on 25 July and signed a further housing form giving consent to enquiries on 31 July.
- In response to my draft decision Officer A provided new evidence that Mr X had been aggressive, obstructive and refused to sign the forms on 25 June and that this was why no enquiries were made. The Council accepts Officer A made no note of this on the file.
- In response to this new information I spoke to the advocate / supporter that attended the interview with Mr X. The advocate had no recollection of Mr X being obstructive.
- I am not persuaded by Officer A’s new evidence because it is not supported by evidence from Mr X, the independent advocate or Officer A’s own file notes. If an applicant did refuse to sign consent forms I would expect an Officer to specifically record that. If the consequence of the lack of consent was the Council did not intend to make enquiries then I would have expected the Officer to have written to Mr X setting out what the implications of refusing to co-operate would be on his homelessness application. This is particularly the case where an applicant is vulnerable and has mental health difficulties.
- On the balance of probabilities I consider the most likely reason why Mr X did not sign the consent forms was because Officer A did not accept the homelessness application that day, and did not intend to start enquiries or take further action at that time.
- On 25 June 2014 the Council knew Mr X had mental health problems, had been sectioned in the past and was currently on medication for mental health problems. It also had information on file from 2013 that:
- he had a personality disorder, mania, anxiety and depression, angina and chronic obstructive airways disease (COPD)
- he took salbutomol and medication for mental health problems.
- he was in receipt of disability living allowance.
The 2013 information was available to Officer B when checking the file on 26 July, so must also have been available to Officer A on 25 June.
- On 25 June Officer A established Mr X was at risk of homelessness within 28 days, as the notice to quit expired on 1 July.
- This was more than enough evidence to meet the low test of a ‘reason to believe’ Mr X ‘may’ have a priority need on 25 June 2014. The Council had then to carry out enquiries to establish whether or not he had a priority need on 25 June 2014 [10.3 Code]. It failed to do so until August 2014.
- In deciding whether a person has a priority need for accommodation if he is vulnerable due to old age, mental illness or physical disability housing authorities ‘should have regard to any advice from medical professionals, social services or current providers of care and support’ [10.16 Code]. The Code also says ‘Assessments of vulnerability due to mental health will require close co-operation between housing authorities, social services authorities and mental health agencies. Housing authorities should consider carrying out joint assessments or using a trained mental health practitioner as part of the assessment team’.
- As the Council had not made enquiries of Mr X’s medical professionals, social services or any care agency support (he received high rate care and low rate mobility DLA) before August 2014, I am not persuaded the Council had enough evidence to properly decide Mr X was not in priority need in July 2014.
- It is very concerning that all three of the Council’s officers who reviewed Mr X’s file in July 2014 believed it was for Mr X to prove his case of priority need, rather than the Council’s duty to make enquiries and satisfy itself. This highlights a training need for Officers.
- The focus of the Officers was on whether Mr X’s physical and mental health conditions were stable. Unless the Officers had relevant medical qualifications, I cannot see they had enough information to decide Mr X was not vulnerable to be on the streets without input from appropriate professionals. I also find that although Mr X was in receipt of DLA care (high rate) and mobility (low rate) none of the Officers enquired about the type of care Mr X required or currently received. It is difficult to see how an applicant in receipt of high rate DLA care would not be in priority need.
- I am very concerned Officers noted Mr X was not adequately dressed and did not appear to know where his medication was, but decided he was fine to sleep on the streets. Mr X’s physical presentation and confusion were further indications that his mental health condition may not have been as stable as assumed and that he might require care support.
- Once the Council did obtain advice from medical professionals, the advice supported that he had a priority need.
Continuing to occupy during possession proceedings
- Mr X’s s.21 notice to quit was due to expire on 1 July 2014.
- The Code says that where a tenant has a valid notice to quit, or a notice the landlord intends to recover possession, housing authorities should consider the scope for preventing homelessness by:
- consulting the landlord at an early stage to explore the possibility of the tenant being allowed to remain for a period while alternative accommodation is found and, if the landlord is not persuaded to agree,
- considering whether it would be reasonable for the applicant to continue to occupy the accommodation once the valid notice has expired. [8.30]
- The list of failures I have identified indicate to me the Council did aggressively ‘gatekeep’ Mr X’s homelessness application with a view to avoid providing him with interim accommodation.
- I find the Council only provided interim accommodation and made required enquiries after the threat of legal action by a charity.
Advice and assistance
- There is no evidence the Council provided Mr X with any advice and assistance to secure alternative private accommodation between 25 June 2014 and August 2014. This is fault.
- I am concerned the Council’s complaint procedure failed to identify any fault.
- Throughout the Council’s file there are references to the Council criticising Mr X for not providing sufficient medical evidence to prove his case of priority need. On no occasion has the Council identified that it was the Council’s failure to make its own enquiries on 25 June which caused the delay and led to Mr X becoming homeless.
- The Council sought to mislead Mr X that he did not make a homelessness application until 28 July, when the Council’s file clearly shows a valid application was made and accepted on 25 June.
- The Council also sought to mislead Mr X that it had changed its view on priority need on 29/30 July due to new information. The Council did not receive any new information on 29/30 July, all the information supporting Mr X may have a priority need was available on 25 June.
- The Council stated it had accepted a full housing duty on ‘pragmatic’ grounds, indicating it remained of the view Mr X was not really eligible for assistance.
- The Council sought to minimise its failures and avoid responsibility for the impact these had on Mr X.
- The Council concluded in its complaint response that Mr X’s possessions were lost due to the landlord changing the locks, not to any fault by the Council. It did not consider whether Mr X’s evidence that his possessions were on the stairwell and he told Officers about this was correct. The Council relied on a comment from the ALMO that Mr X’s possessions were within the property, when this was never verified with Mr X. The complaint investigator also did not consider if the Council could have assisted Mr X in recovering his possessions from the landlord / flat.
- The Council should have accepted Mr X’s homelessness application on 25 June 2014. It would then have made relevant enquiries of medical professionals, the landlord and social services. The Council should also have considered whether it was reasonable for Mr X to continue to occupy the flat beyond 1 July 2014, when the s.21 notice expired.
- If the Council had acted in accordance with the law and Code on 25 June, it would have accepted an interim duty to secure accommodation for Mr X from 1 July 2014. Mr X would have avoided:
- Being evicted on 25 July 2014
- Sleeping rough from 25 July to 28 July 2014
- The loss of his possessions.
- Within six weeks of the date of my final decision the Council should:
- Apologise to Mr X for the fault and injustice I have investigated
- Pay Mr X £2000 for the loss of his possessions
- Pay Mr X £200 for the distress caused by Mr X having to sleep rough for four nights (25 July to 28 July 2014).
- Pay Mr X £100 for his time and trouble bringing the complaint.
- Provide refresher training for staff about homeless legislation and the Council’s homeless policies;
- Provide refresher training to staff in the housing department on the Council’s complaints process to ensure complaints are investigated properly and impartially.
- The Council failed to follow the law, correct process and its own policies when Mr X presented as threatened with homelessness and in priority need. It then failed to properly investigate his complaint. This caused Mr X a significant injustice.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman