The Ombudsman's final decision:
Summary: The Council failed to bring to Ms D’s attention formal appeal rights in relation to decisions to end the full housing duty and the suitability of alternative temporary accommodation. The injustice is that Ms D was unable to engage with a formal appeal procedure which might have led to a reversal of the original decision or, if the original decision had been upheld on completion of statutory review, enabled Ms D to appeal to the court. The Ombudsman recommended and the Council agreed to remedy fault by apologising to Ms D, paying Ms D £500 to acknowledge loss of opportunity to engage with an appeal procedure and review procedure and staff training to ensure that similar fault does not recur.
- Ms F on behalf of her daughter (Ms D) complains about various faults in the way the Housing Team managed Ms D’s housing situation in the period January 2016 to September 2016
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. If there has been fault, the Ombudsman considers whether it has caused an injustice and, if it has, he may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
How I considered this complaint
- As part of my investigation I have:
- Considered Ms F’s written statement of complaint and the documents Ms F provided
- Spoken on the telephone with Ms F
- Considered the response of the Council to Ombudsman enquiries and documents the Council provided
- Considered law, statutory guidance and Council policy
- Considered Ms F’s and the Council’s responses to the draft decision
What I found
- Local housing authorities (LHAs) have a duty to provide help to certain people in need of housing. Whether or not the duty arises and the extent of the duty depends on the application of four principles:
- homeless or threatened with homelessness;
- priority need;
- intentional homelessness.
- From 2011 Ms D rented a one bedroom flat (property X) in a house in multiple occupation. In mid-January 2016 Ms D contacted the Council’s housing team and asked for help securing alternative accommodation. Ms D said that the environmental health team had recently carried out a Housing Health and Safety Rating System (HHSRS) assessment of property X and established there were category 1 and 2 hazards relating to cold and electrical safety. Ms D said that she was concerned for her personal safety in relation to tenants living in the same housing block (house being used for consumption and sale of illegal drugs). The Housing Advice Officer’s initial view was that it was reasonable for Ms D to continue to occupy property X.
- Due to mental ill health Ms D was known to community mental health services including the Psychosis and Recovery Team. Mental health services carried out assessments of Ms D in October 2015 and January 2016. Ms D was also known to adult social care. Following contact between adult social care and Ms D in January 2016 and a home visit on 11 February 2016 adult social care decided that Ms D did not have eligible care and support needs. Adult social care advised Ms D to contact her GP and other agencies.
- On 20 January Ms D ceased to occupy property X because of concern for her health and personal safety. Ms D left most of her possessions in property X. On 28 January Ms D contacted the Housing Advice Officer (officer P) and told her that she had spent several nights sleeping in hostel accommodation because of property X’s condition. Officer P offered Ms D Temporary Accommodation (placement in a motel room near a town 12 miles distance from Ms D’s home town). The offer of Temporary Accommodation on 28 January is reasonably understood as offer under s188 of the Housing Act 1996 of interim accommodation pending enquiries into Ms D’s homelessness status. The Council’s intention was to move Ms D into Bed and Breakfast accommodation in the same town as property X as soon as this became available.
- Ms D completed a Homelessness Application on 8 February 2016. The Council sent Ms D a letter dated 8 February 2016 stating that the Council would fulfil a duty to provide accommodation pending enquiries into Ms D’s homelessness status.
- The Council offered Ms D Bed and Breakfast accommodation (ground floor room in a guest house in Ms D’s home town). Ms D accepted the offer and moved into the Bed and Breakfast accommodation on 11 February.
- Ms D paid the Council for the placement with the Council taking responsibility for paying the B and B owner for the room. Due to shortfall between contractual rent (charge for the B & B accommodation) and maximum Housing Benefit allowable, Ms D was required to top up from her own resources. The top up amounted to £23.49 a week (subsequently reduced to £20.19 once it was confirmed that Ms D was no longer having the breakfast provided by the B & B).
- In February officer P referred Ms D to a voluntary agency (housing charity) for provision of advice and support on housing and tenancy issues. From February Ms D received independent advice and support on tenancy and housing issues from an officer employed by the voluntary agency.
- In the period February to September 2016 Ms D received initial or on-going advice and representation in relation to housing matters from several voluntary agencies including:
- A general advice agency located in Ms D’s home town
- Citizen’s Advice Bureau
- An agency providing advice on debt management
- An advocacy service
- There was no reason to allocate a new housing officer
- Ms D’s priority category on the social housing register was Band B. Bids would be automatically placed on suitable properties while Ms D was in temporary accommodation.
- The housing team acknowledged Ms D’s difficulties with the B & B placement and was therefore making a further offer of Temporary Accommodation
- The housing team could help Ms D secure her own accommodation in the private rental sector by offering access to a rent in advance/deposit scheme
- The housing team made the referral resulting in a voluntary sector agency allocating an officer to advise and support Ms D in relation to housing matters
- The housing team made a referral to adult social care to assess Ms D’s needs
- Ms G had sent the housing team an email offering to fund top up (shortfall in Housing Benefit) for a temporary accommodation placement
- The Council was ‘unable to offer you emergency accommodation as you were asked to leave your last placement due to refusing an offer of temporary accommodation which was assessed as suitable for you. There was also top up arrears accrued at your previous temporary accommodation and a repayment plan was not entered into.’
- ‘North Devon Council have accepted a homeless duty towards you and this has not changed since your temporary accommodation was terminated. Therefore we continue to offer a high priority for social housing (band B) and auto bidding is in place for you.’
- ‘We also continue to offer rent in advance and/or deposit for a suitable property in the private rental sector’.
Decision to end placement at B & B and allocate property Y as temporary accommodation
- The Council can cancel temporary accommodation and make further temporary accommodation available to the applicant in fulfilment of the full housing duty. In letters and emails sent to Ms D in June 2016 the housing team explained its reasons including property Y’s greater affordability and its comparative advantage to the B & B in terms of cooking and washing facilities. I note that the Homelessness Code says that ‘Bed and Breakfast accommodation caters for very short-term stays only and generally will afford residents only limited privacy and may lack certain important amenities, such as cooking and laundry facilities. Consequently, where possible, housing authorities should avoid using B & B hotels to discharge a duty for homeless applicants.’ I also note that Ms D complained to the housing team on 24 February 2016 about the B & B placement (lack of heating and laundry facilities). I note too that the Council identified a severe shortage of affordable one bedroom flats in Ms D’s home town at the time of allocation.
Decision to end the full housing duty
- At the beginning of June 2016 the Council ended the ‘full housing duty’ to Ms D – the duty under s193(2) of the Housing Act 1996 to ‘secure that accommodation is available for occupation’. The Council refused Ms D and her housing advocate’s requests in June and July 2016 for further temporary accommodation under homelessness law. The Council provided reasons for the decision in letters and emails sent to Ms D and the housing advocate in June and July 2016. The Council ended the duty on the grounds that Ms D had refused a suitable accommodation offer under part VII of the Housing Act (offer of property Y) and that Ms D had made herself intentionally homeless from the Bed & Breakfast placement. The Council can end the full housing duty on such grounds.
- The Council did not communicate clearly that it had ended the full housing duty to Ms D. Officer P’s email sent to Ms D on 17 June 2016 and the letter dated 31 August 2016 suggested that the Council had not ended a ‘homeless duty’ under section 193 of the Housing Act 1996. The fact that the Council did not demote Ms D from Band B under the Council’s allocations policy and that it offered Ms D access to a deposit/advance of rent scheme to facilitate Ms D securing a private rented property is not evidence that the Council retained the section 193 duty which is to ‘secure that accommodation is available for occupation by the applicant’.
Failure to notify Ms D of right of statutory review
- Though the Council considered Ms D’s views on suitability of property Y in a letter dated 26 May 2016 and the letter to the housing advocate dated 8 July 2016, there is no evidence that the Council informed Ms D or her advocate of her right to challenge suitability of property Y and the decision to end the full housing duty by way of statutory review. This is a review procedure with certain procedural safeguards which must be followed through by the council. The injustice to Ms D is that she was unable to engage with a formal appeal procedure which might have led to a reversal of the original decision or, if the original decision had been upheld on completion of review, enabled Ms D to appeal to the county court.
Taking Ms D’s mental health difficulties into account
- I am satisfied that housing officers made appropriate referrals to ensure that Ms D, given her mental health needs and vulnerability, had suitable access to advocacy and representation. The housing team sought out and took into account the views of medical professionals familiar with Ms D’s mental health problems. The housing team sought out and took into account the views of professionals appointed to support, advise and represent Ms D. The housing team participated in multi-agency meetings and showed willingness to look at Ms D’s housing needs from a multi-agency angle.
Housing Benefit for Two Homes
- In general Housing Benefit can only be paid for one home. When a person moves home but remains liable to pay for the former home, Housing Benefit can be paid for both homes for up to four weeks where the dual liability could not reasonably have been avoided.
- Following acknowledgement of Ms D’s request for payment of Housing Benefit on two homes, the Housing Benefit team decided that Ms D met the criteria for Two Homes Benefit and applied this for the period 20 January 2016 to 16 February 2016. The Housing Benefit Team sent Ms D a letter informing her that she had been awarded Two Homes Housing Benefit.
- There is evidence that the Council’s Housing Benefit team considered a request Ms D made in July 2016 for Two Homes Benefit to be extended beyond four weeks. This would be a strictly discretionary decision. The Benefits Case Officer sent Ms D a letter dated 20 July 2016 refusing the request and giving reasons including that ‘Two Homes Benefit can only be awarded for a maximum of 4 weeks’. I have no reason to doubt that the Benefits case officer took into account Ms D’s individual circumstances when considering the request.
Discretionary Housing Payment
- Discretionary Housing Payment (DHP) is a discretionary fund administered by the local housing authority and can be awarded to a person receiving Housing Benefit where the LHA is satisfied that the person needs extra help with housing costs. DHP is paid when there is a shortfall between rent and HB but can also be paid for a tenancy deposit.
- Ms D raised the issue of a DHP with the Temporary Accommodation Officer (TAO) in March 2016 in the context of a concern that she could not afford to pay for the ‘top up’ (shortfall between charge for B & B placement and Housing Benefit). The TAO sent Ms D an email on 24 March 2016 saying ‘there is no one to refer you to regarding DHP as housing officer and manager are on leave’. In my view either the TAO, officer P or officer P’s manager should have sent a DHP form to Ms D and asked her to complete this with the assistance of the support officer from the voluntary agency. There is no evidence that this happened. However, on the balance of probabilities it is unlikely that submission of an application for DHP would have resulted in the housing team exercising discretion in favour of Ms D and funding the top up. The housing team would have taken into account the support officer’s view on affordability of the top up. Concern was expressed at the multi-agency meeting on 12 May 2016 about Ms D not fully disclosing her financial circumstances. The support officer’s said at the meeting that ‘a payment off TA debt was affordable as (Ms D) receives ESA circa £250 fortnightly.
- I note that in May 2017 the Council wrote off Ms D’s debt of £362.85 caused by Ms D failing to pay the top up for the B & B placement.
- Ms D contends that as early as February 2016 she requested the Council to store possessions and that failure to act on the request meant that she was liable for rent on property X which she had ceased to occupy.
- I accept the Council’s view that there is insufficient evidence that Ms D or Ms G made a clear request to the Council to remove Ms D’s possessions from property X and store them on her behalf in the period February to September 2016. However, Ms D’s reference to removal and storage of possessions from property X in the letter dated 5 May 2016 to the Head of Housing Options might have triggered consideration of the section 211 Housing Act 1996 duty.
- The Ombudsman is unable to investigate the landlord’s decision to hold Ms D liable for rent for the period 20 January to 15 September 2016. I note that a landlord might hold a tenant liable for rent even if the tenant no longer lives in the rented accommodation and has removed all their goods and possessions from the accommodation.
- I am satisfied that the Council considered Ms G a suitable representative once it had secured Ms D’s clear authorisation for Ms G to act on Ms D’s behalf. The Council could not consider Ms G a suitable representative without this authorisation.
- The Council failed to bring to Ms D’s attention formal appeal rights in relation to decisions on the full housing duty and suitability of property Y. The injustice is that Ms D was unable to engage with a formal appeal procedure which might have led to a reversal of the original decision or, if the original decision had been upheld enabled Ms D, to appeal the matter further. To remedy fault causing injustice the Ombudsman recommended and the Council agreed to carry out the following action:
- apologise in writing for the fault;
- pay Ms D £500 to acknowledge loss of opportunity to engage with the formal appeal procedure; and
- review procedure and staff training needs to ensure that similar fault does not recur
The Ombudsman is satisfied that recent change in procedure and delivery of training by the Council makes it unlikely that similar fault will recur.
- The agreed action suitably remedies fault. The complaint is therefore closed.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman