The Ombudsman's final decision:
Summary: The complaint is about the Council’s decision to move the complainant and her family out of the Borough while it made its homelessness enquiries. My decision is there was fault by the Council. But this did not cause the complainant a significant injustice.
- The complainant, whom I shall refer to as Ms X, complains:
- the Council offered her unsuitable interim accommodation after she applied to it as homeless;
- about the conduct of the housing officer who dealt with her case.
The Ombudsman’s role and powers
- 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)
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
How I considered this complaint
- As part of the investigation, I have considered the complaint and the documents provided by Ms X. I have also made enquiries of the Council and considered its response. I sent my draft decision to Ms X and the Council and invited their comments.
What I found
- The law about homeless applications says that councils have a full duty to re-house applicants who are eligible, homeless or threatened with homelessness, in priority need, not intentionally homeless and who have a local connection. (Part VII of the 1996 Housing Act)
- The Housing Act says a person is homeless if they have no accommodation it is reasonable for them to continue to occupy.
- While a council makes its enquiries and decides what duty it has, if any, it must arrange housing for someone if it has reason to believe that they may be homeless, eligible for help and in priority need. (Section 188 of the 1996 Housing Act)
- The accommodation provided under s.188(1) must be suitable for the applicant and his or her family. But the applicant does not have the right to ask for a review of the council’s decision about the suitability of this interim accommodation, except by judicial review.
Out of borough emergency accommodation
- The Courts have recognised that a council can have regard for the “realities” of the accommodation available in its area.
- The statutory guidance for councils is the Homeless Code of Guidance for Local Authorities 2006. It says:
Out of borough placements:
"Housing authorities will need to liaise and work collaboratively with the relevant service providers to ensure that appropriate arrangements are put in place and monitored. When households are placed in temporary accommodation, it is recommended that housing authorities offer to liaise with the relevant health, education and social services departments in the areas in which the households are temporarily housed. Liaison will be particularly important in cases where households have to be accommodated in the district of another housing authority.”
Suitability of accommodation
“The location of the accommodation will be relevant to suitability and the suitability of the location for all the members of the household will have to be considered…. [they should] wherever possible, secure accommodation that is as close as possible to where they were previously living, so they can retain established links with schools, doctors, social workers and other key services and support essential to the well-being of the household.”
- Caselaw says:
“that the sending authority must address its mind to, amongst other matters, the need to minimise educational disruption, and must record its reasoning, and be in a position to provide evidence of its contemporary reasoning in court, if called upon to do so. It must be in a position to demonstrate, by reference to written contemporaneous records, the process of reasoning by which it reached its decision”.
- The 2004 Children Act also places a duty on councils to ensure that any services they provide are discharged with the regard to the need to safeguard and promote the welfare of children.
The Homeless Code of Guidance
- The Government’s Homeless Code of Guidance also says:
“When a housing authority has completed its inquiries under s.184 it must notify the applicant in writing of its decision on the case. Where the decision is against the applicant’s interests, e.g. a decision that he or she is ineligible for assistance, not homeless, not in priority need or homeless intentionally, the notification must explain clearly and fully the reasons for the decision.
“It is recommended that housing authorities have procedures in place for dealing with applications that are withdrawn or where someone fails to maintain contact with the housing authority after making an application. The Secretary of State considers that it would be reasonable to consider an application closed where there has been no contact with the applicant for three months or longer. Any further approach from the applicant after this time may need to be considered as a fresh application. Where an applicant renews contact within three months the housing authority will need to consider any change of circumstances that may affect the application.”
The Council’s Temporary Accommodation Policy
- The Council’s Policy says that in an emergency, it will place a homeless household in temporary accommodation in any location where there is availability on that day. If the Council’s view is the property is unsuitable it would give the applicant priority to be transferred to alternative temporary accommodation via an accelerated transfer route.
- The policy has sets of priority categories, which outline where it will seek temporary accommodation. For households with a child at school, or who have been in employment for at least six months, it says it will place families in the “general London area”, when the cost of travel would make accommodation in another area unsuitable.
- For new applicants the Council is placing in temporary accommodation, the policy says it will conduct a suitability assessment “...to determine the type and location of accommodation that is considered suitable”.
- The policy says that families placed out of the Borough who “...are deemed to require it, will be considered for floating support services. Support will be provided in relation to the household’s needs, eg. accessing GPs, health visitors, education and Children’s Centres. The Property & Procurement Team will provide details of incoming households to receiving boroughs if placed out of London. An information pack will be provided to households covering local services as appropriate.”
Direct lettings for homeseekers
- The Council’s direct lettings for homeseekers scheme helps prevent homelessness among families with children and for single vulnerable people. It offers financial help and practical help with finding a property to rent in the private sector. It is a referral-based service.
- Ms X applied to the Council as homeless in August 2015, after a referral from the police, following an incident of domestic violence. The Council accepted it had a duty to provide Ms X and her primary school aged children with accommodation while it investigated her case. The Council placed the family in a local hotel for a few days. The Council says this type of accommodation is a last resort, and was only intended for one night.
- At first Ms X did not respond to the Council’s attempts to contact her again. On 20 August Ms X contacted the emergency out of hours team. On 21 August, the Council offered Ms X a self-contained property in Essex as interim accommodation. The Council wrote to her advising:
“...I can confirm that all essential housing needs have been considered in line with the Temporary Accommodation Placement Policy and taking into account the general circumstances prevailing in relation to housing...[in the Borough]..., I am satisfied the accommodation being offered is suitable”.
- It had considered the location of the accommodation in relation to employment, caring responsibilities, education.
Ms X moved to the new property on 24 August.
- On 30 August Ms X complained about the move and about the comments of a housing officer. Her complaint form says she wanted to move back to her husband’s home after the court case.
- On 11 September Ms X visited the Council offices to complain about the unsuitability of the accommodation. In particular Ms X said it was too distant from her workplace and children’s schools, and she was incurring a lot of travel expenses as a result. Ms X felt the Council had not taken proper account of her circumstances before offering her the property. Ms X told the Council she had not worked since December 2014, but she was due to return in September. The Council asked her for a letter from her employer confirming this. On 22 September the Council asked Ms X to provide outstanding documents.
- At the 11 September visit Ms X also told the officer she had found a private rented property to rent and would like to take advantage of its direct lettings scheme. The Council gave her some contact numbers.
- The Council has a note from later in September that Ms X had told it she wanted to return to live with her husband, but was awaiting a court case he was due to attend. The Council’s Children’s Social Care Division later told Housing Ms X had withdrawn a statement she had made to the police about the domestic violence.
- The Children’s Social Care Division also contacted Housing, advising that it was better if the children were housed nearer their school. But its view was the children could stay with their father (who lived nearer the school).
- On 5 October Ms X contacted the Council asking when it would make a decision on her homelessness application. Its notes says it advised her it could not do so, as she had told various Council department she intended to return to her husband, so her homelessness was only a short-term arrangement.
- On 4 November the Council’s Housing Adviser alerted other officers to a note on its system. This said Children’s Services in the area Ms X had moved to had referred the case back to the Council. This was because Ms X’s children were living with her husband, because of the distances of Ms X’s accommodation from their school.
- The Council sent a final response to Ms X’s complaint on 5 November 2015 saying it did not uphold it. It said it would not pursue her complaint about the housing officer, given he was no longer working for it and had not been involved in allocating properties in her case. The Council also said the Essex property was the most suitable available accommodation at the time.
- At the end of November the letting agent for Ms X’s accommodation contacted the Council to advise that it did not appear that Ms X was living at the property. The Council agreed. On 1 December Ms X was served a notice to quit the property.
- In December 2015 the Council provided Ms X with alternative private rented accommodation in London through its direct lettings scheme. It says it did not give her a formal decision on her homeless application, as she had found alternative accommodation.
- In January 2017 Ms X sent the Ombudsman a complaint that included a copy of the Council’s 2015 complaint response. We at first decided it was too late to consider, but after speaking to Ms X’s husband we changed our decision and decided to investigation.
- The next contact the Council received about this issue was in February 2017 when it received a referral from Ms X’s MP about overcrowding of Ms X, her husband and their three children in a one bedroom flat.
Was there fault by the Council?
- The first issue we needed to consider was whether we should investigate the complaint, as it was late (see paragraph 4). Ms X’s husband advised us she had been ill in recent months. And she did not have access to the internet for some time after leaving the temporary accommodation. Also Ms X does not speak good English and needed someone to help her make a complaint. Ms X’s husband says Ms X found a friend to help her write her to the Council last summer in reply to its complaint response in November 2015. So she was expecting a further response and only complained to the Ombudsman when it became obvious it would not respond again. So we decided to use the discretion available to us to consider the complaint about the interim accommodation.
- The Council placed Ms X and her family out of Borough, which is not unusual and is not fault. I recognise there is much pressure on homeless and housing departments due to a lack of available accommodation, and temporary accommodation will not be ideal in every aspect. This is especially true in many London Boroughs. The Council has shown me information that the temporary accommodation Ms X moved to in August 2015 was the nearest available on the day.
- However Government guidance and caselaw says the Council should consider suitability for the individual household in terms of retaining established links with medical professionals, support networks and the needs of children in a household. And the Council’s Policy says it would look to move again applicants it at first places them in unsuitable accommodation.
- The Council’s offer letter says the Council had considered the suitability of the accommodation. The letter also referred to the shortage of affordable accommodation in the Borough. But the Council’s letter had no reference to the household’s individual or collective circumstances of needs. And the Council’s file also has no record the Council considered Ms X and her family’s individual circumstances. To not consider Ms X’s individual circumstances was fault. Without doing so, the Council was not in a position to decide if it needed to seek to offer Ms X alternative accommodation later.
- I would also have expected an officer to consider whether Ms X needed any support in the Essex accommodation (see the Code of Guidance and the Council’s Temporary Accommodation Policy).
- The Council did not issue Ms X with a formal decision on her application. Its notes say it did not do this because Ms X had given it information her homelessness was temporary and later because she found somewhere else to live. My view is these were reasonable positions to adopt.
Did the fault cause an injustice?
- The fault I have identified is with the Council’s consideration of the suitability of the interim accommodation. This leads to some uncertainty about whether, if there had not been fault, the Council might have later sought to house Ms X elsewhere.
- But the evidence I have seen is that Ms X’s children returned to live with her husband while she was in the temporary accommodation. And that she was not working at the time of the placement. Later the letting agent found Ms X was not living there. As early as two weeks after she moved to the interim accommodation (see paragraph 24), Ms X had approached the Council about help to move to private rented accommodation. She later moved back to her husband. Given these factors, my view is the faults I have identified did not cause Ms X a significant enough injustice to warrant a remedy. And it is unlikely she incurred the travel costs her husband cites.
- The Council has agreed to my recommendation that it will remind its officers who are making decisions on interim accommodation, of the importance that they consider each applicant’s individual circumstances and keep a record of those considerations.
- The Council has agreed to provide me with the record of these reminders within a month of the date of this decision.
- I have found evidence of fault. But my view is this did not cause Ms X a significant enough injustice to warrant a remedy. But I have made a recommendation, which the Council has accepted. So I am completing my investigation.
Investigator's decision on behalf of the Ombudsman