The Ombudsman's final decision:
Summary: The Ombudsman found the Council was not at fault for the delay in making its initial decision or in failing to take responsibility for the complainant’s possessions. There was fault in the significant delay in reviewing the decision, and in the abrupt nature of its communications with the complainant after the review. But the injustice to the complainant was limited.
- The complainant, to whom I will refer Miss B, says that the Council significantly delayed its decision on her homelessness application, at both the initial and review stages.
- Miss B also complains about the attitude of the Council officer with whom she was dealing, and the Council’s refusal to assist in the storage of her property.
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)
How I considered this complaint
- I reviewed the Council’s case notes, its decision letters, and its correspondence with Miss B and her advocate.
What I found
- Miss B approached the Council’s homelessness service in April 2016. She said that her house was soon to be repossessed due to mortgage arrears, which had accrued mainly because she had been dismissed from her job for gross misconduct.
- Miss B was supported by a charity, which helped her obtain an extension on the eviction. She told the Council that, during this time, she wished to look into finding private rented accommodation. She said she understood that she unlikely to qualify for an offer of social housing before her was repossessed.
- In June 2016, Miss B removed her belongings from the property and went to stay at her partner’s home.
- In July 2016, Miss B’s house was sold, instead of being repossessed.
- In August 2016, Miss B contacted the Council to say that she no longer felt safe living with her partner, due to a threat to his life from another person. The Council told her that she should present for emergency accommodation if she needed to. Miss B did not take up this offer, as it would have been Bed & Breakfast (B&B) accommodation which would not have allowed her to keep her dogs with her.
- Shortly after this, the Council began to make enquiries, to decide what level of duty it owed her. Miss B had told the Council that her dismissal for gross misconduct was in bad faith, and alleged that she had actually been unfairly dismissed because of her whistle-blowing. The Council investigated her allegations with the former employer.
- In September 2016, the Council placed Miss B in temporary accommodation. Shortly after this, it informed Miss B that it was likely to decide that she was intentionally homeless. This was because her dismissal was for gross misconduct, and as it was this which had led to her inability to pay the mortgage, it had been in her power to avoid losing her home. The Council gave Miss B to opportunity to provide further information.
- The Council formally found Miss B to be intentionally homeless on 19 December. It told her that she was required to leave her temporary accommodation by 9 January.
- Miss B requested a review of this decision on 28 December.
- On 5 January 2017, the Council agreed to continue accommodating Miss B during the review period. But when it visited her temporary accommodation on 9 January, it discovered that she had left and taken her belongings with her. It therefore cancelled this accommodation and contacted Miss B’s advocate at the charity. The advocate said he would contact Miss B to discuss the situation.
- The Council began its review on 21 April. The review officer gathered further evidence about her dismissal, as well as about her treatment for mental health issues.
- On 9 June, Miss B’s daughter contacted the Council to ask about temporary accommodation for her mother pending the review. The Council then booked Miss B into a hotel.
- Miss B did not move into this accommodation, and on 20 June the Council emailed her to say it would be cancelled if she did not make contact.
- On 27 June, the review officer overturned the Council’s previous decision. He wrote to Miss B’s advocate, confirming that the Council owed her full duty.
- On 28 June, the Council had still not heard from Miss B about her temporary accommodation at the hotel. It warned her advocate again that it would cancel this if it did not hear from her. On 3 July, Miss B confirmed to the Council that she had not been staying at the hotel because she could not keep her dogs there.
- On 27 July, the Council offered temporary dispersed accommodation to Miss B. Some work was required before this would be habitable, and so the Council arranged for a further week of hotel accommodation for Miss B in the meantime.
Legislation and guidance
- A council will apply four tests to decide what, if any, duty it owes to a homeless applicant.
- Councils will make inquiries to find out if the applicant is:
- eligible for assistance;
- homeless or threatened with homelessness;
- in priority need (e.g. is vulnerable, has dependent children etc.);
- not intentionally homeless.
- There are no statutory time limits for completing inquiries. However, the Homelessness Code of Guidance recommends that councils aim to complete their inquiries within 33 working days.
- A council must provide interim accommodation while it considers a homelessness application if it has reason to believe the applicant may be homeless, eligible for assistance and in priority need. (Housing Act 1996, section 188 and Homelessness Code of Guidance for Local Authorities, paragraph 6.5)
- Homeless applicants may request a review within 21 days of being notified of the decision on their homelessness application. There is also a right to request a review of the suitability of temporary accommodation provided once the Council has accepted the main homelessness duty. (Housing Act 1996, section 202)
- Councils must complete the review within eight weeks of receiving the review request. This period can be extended but only if the applicant agrees in writing. If the applicant wishes to challenge the review decision, or if a council takes more than eight weeks to complete the review, they may appeal on a point of law to the County Court. (Housing Act 1996, sections 202 and 204)
- Applicants may ask a council to provide accommodation pending the outcome of a review. Councils have a power, but not a duty, to accommodate the applicant and members of their household. (Housing Act 1996, section 188(3))
- Where the council owes a housing duty, it must protect the applicant’s personal property if there is a risk it may be lost or damaged. A council may make a reasonable charge for storage and reserve the right to dispose of the property if it loses contact with the applicant. (Housing Act 1996, section 211)
- There are four main points to Miss B’s complaint. I will address each in turn.
The delay in making the original decision
- Miss B first approached the Council on 19 April 2016. The Council issued its original decision, that she was intentionally homeless, on 19 December, exactly eight months later. But it was not until 15 August that the Council properly began to make enquiries into Miss B’s situation.
- When Miss B first approached the Council, she still owned her own home, and shortly afterwards its repossession was halted with the assistance of a charity. This meant that it was sold instead of being repossessed, which did not happen until July.
- At that point, Miss B was living with her partner. It was only in August that she informed that the Council that she could no longer live there, due to the threat to her partner’s life. It was not until 14 September that Miss B asked the Council to place her in accommodation, which it quickly did.
- Given that Miss B had been able to arrange accommodation for herself prior to August, I do not consider it inappropriate that the Council did not begin making its enquiries proper before that point. It issued its provisional (‘minded to’) decision in October, and its formal initial decision after another two months.
- The Council made detailed enquiries into Miss B’s situation before finding her intentionally homeless. This included verifying the reason for her dismissal from her employment and enquiring about the treatment and support she had had for her mental health issues.
- The Homelessness Code of Guidance recommends that decisions on applications should be complete within 33 days. But this is not a statutory timescale. I cannot find fault with a delay in the decision, unless it was clearly caused by administrative errors which the Council should have avoided.
- Looking at the Council’s case notes, I cannot see any significant unexplained gaps in its records at this time. I cannot say for certain that there was no point where a particular action could not have been completed more quickly, but I do not consider that the evidence generally supports the allegation that the Council was at fault for the length of time it took to come to an initial decision.
- I consider that the delay was caused more by the complexity of Miss B’s case, and the fact that the Council needed to make careful enquiries before making its decision. For this reason, I have not found fault in this element of Miss B’s complaint.
The delay in reviewing the original decision
- Miss B submitted a review request on 28 December 2016. The Council took no action on her review until 21 April 2017. It was then decided on 27 June.
- The Council has explained that, between November 2016 and February 2017, it did not have a review officer in post. Once the post had been filled, the officer had a backlog of review applications through which to work, which meant that he could not begin work on Miss B’s until April.
- This is significant fault. Unlike the initial decision stage, there is a fixed statutory timescale of 56 days (eight weeks) in which a Council must complete a review of its decision.
- I accept that the Council might have struggled to permanently fill this post during that time. But given the urgent nature of the work, it was not acceptable for the Council to simply stop processing homelessness reviews for three months. This is especially so when considering that it was over the winter period, when homelessness becomes a particularly pressing concern.
- The Council accepts that it was at fault here. It says it has now introduced a process to ensure that vacancies of this nature are covered. This includes creating a second review officer post. I am satisfied that it has taken reasonable steps which to prevent a recurrence.
- As part of his review, the officer made very detailed enquiries into Miss B’s dismissal from her employment, and investigated her allegation that she had been unfairly dismissed. This included asking her former employer details about the lengths of her shifts, and about a car accident in which she had been involved in the course of her duties.
- Councils have a duty to conduct thorough enquiries into a person’s situation when assessing a homelessness application. I accept that, where their employment situation is relevant, it may be appropriate to speak to the employer or former employer. But in this instance, I am concerned that the review officer’s enquiries went considerably beyond what was appropriate.
- If a person is dismissed from a job in circumstances they consider unfair, they have the right to take the matter to an employment tribunal. The tribunal has the power to decide whether the dismissal was fair, and award damages if it finds it was not.
- The Council’s case notes indicate that Miss B originally took her dismissal to tribunal, but then dropped her case for unspecified reasons. There was, therefore, no tribunal finding on her claim of unfair dismissal.
- But this did not mean that the Council should have then sought to act as a quasi-tribunal itself. It lacked the expertise and authority to decide whether Miss B’s dismissal was fair. In the absence of a tribunal finding which found against the employer, the Council should only have sought to confirm that it was accurate that Miss B had been dismissed for gross misconduct (which it did at the initial decision stage). Thereafter it was bound to accept this decision.
- But, while there was significant fault in the review process, it is not clear to what degree Miss B suffered injustice because of this.
- Upon registering her review request, the Council immediately agreed to maintain her temporary accommodation pending the review. At this point it discovered that Miss B had actually left the accommodation on the day she received her initial decision. The Council therefore contacted Miss B’s advocate to advise that it was still offering her accommodation.
- In June, when Miss B’s daughter contacted the Council, it again arranged accommodation for Miss B, but she did not move into it, and the Council cancelled the accommodation on 3 July. It is recorded that she said this was because she could not keep her dogs there.
- Miss B says that, between receiving the initial and review decisions, she was staying with friends. She also says that she was sleeping rough for certain periods. She complains that the Council’s delay led to her family being separated, as her younger daughter was in foster care for a lengthy period while Miss B’s homelessness application was ongoing.
- I agree that Miss B’s review should not have taken as long as it did to resolve, but I cannot accept it was due to the Council that Miss B did not have her own accommodation at this time. The Council offered her temporary accommodation throughout the review period, which Miss B failed to take up because she could not keep her dogs there.
- The Council did not have a duty to accommodate Miss B where she would be allowed to keep her dogs. While I appreciate how important Miss B’s dogs are to her, it was her decision not to accept the accommodation the Council was offering, and so I cannot accept that she suffered injustice in this respect.
- Further to this, although I consider that the Council made unnecessary enquiries at the review stage, it does not appear to have created any significant additional delay in the process. Once the review officer had actually commenced work on Miss B’s case, it took him 67 days to come to a decision. This is only 11 days over the deadline.
- This suggests that, had a review officer been in place at the time she submitted her review, the decision would have been made in a reasonable time, even accepting that unnecessary enquiries were made.
- It is also apparent that one of the reasons the review officer overturned the decision was because he did not believe the original enquiries into Miss B’s dismissal had been adequate. I do not agree with this finding, for the reasons I have explained. But given that it contributed to the reversal of the Council’s initial decision, it appears that Miss B ultimately benefitted from this.
- In general, I find that the Council’s failure to complete Miss B’s review in time left her in a position of uncertainty for an extended period. This caused her some injustice, and I consider that the Council should offer a financial remedy to reflect this.
- But in the wider sense, I do not consider that Miss B suffered significant injustice because of the delay in the review.
The attitude of the Council officer
- Miss B complains that the officer who made the original decision was threatening and abrupt in her communications after the review. She suggests that this is because the officer was unhappy that her decision had been overturned.
- The Council’s responses to Miss B explain that, due to the limited stock of accommodation available, it was important for her to understand the limited timeframe she had for accepting an offer. The Council accepted that this could appear threatening, but felt that it was necessary for its communications to impart a sense of urgency.
- However, it also accepted that the officer’s correspondence could have been more sensitive, especially given the extended delay Miss B had endured. For this reason, it says it has now reviewed the wording of its communications, so that they do not appear unnecessarily abrupt. It also says that its managers will support staff in how they write their correspondence.
- I have reviewed the wording of the officer’s email to Miss B of 11 July. It explains that Miss B must attend the Council’s office the following day to collect her new decision letter, and that failure to do so may result in the Council closing her case.
- I accept that it was important for Miss B to understand the urgency of the situation at this point, but I also agree that the officer’s email could have been worded with greater sensitivity. I cannot say whether this was because the officer was disgruntled because of the review decision, or simply that she rushed her email to Miss B.
- In either case, I do not consider that Miss B has suffered significant injustice because of this. I also consider that steps the Council has taken to address this issue to be an appropriate remedy.
The storage of Miss B’s belongings
- Miss B complains that the Council has not offered her any assistance with storing her belongings. This means that she has had to spend thousands of pounds on paying for storage herself, which has left her in financial difficulties. She also says that some of her belonging have been damaged while in storage.
- By the end of December 2017, Miss B was in arrears with the storage company. The company said that, unless she paid her outstanding fees, it would look to auction her property.
- The Council says that Miss B placed her belongings in storage before her house had been sold. She had not discussed this with the Council prior to doing so.
- The Council also says that, as Miss B turned down several offers of temporary accommodation, it will not accept that it was responsible for assisting with her belongings at this time, nor that it is liable for any damage.
- However, the Council has now agreed to take responsibility for Miss B’s belongings until an offer of suitable accommodation has been made. It has paid £530 to clear arrears she had with the storage company.
- Under section 211 of the Housing Act, where a council has at least an interim duty to accommodate a person, it must also take reasonable steps to prevent the loss or damage of their belongings, if the person cannot do so his or herself. The Council has the power to charge the applicant for removal and/or storage costs if it assesses them as having the means to pay.
- The Council first placed Miss B in temporary accommodation in September 2016. By this point, she had already chosen to place her belongings in storage.
- In November 2016, Miss B’s advocate contacted the Council to request assistance with the storage of her belongings. He said that her storage costs were unaffordable.
- The Council the advocate on 20 December. It said that it was seeking a quote from a removal company, but the company had requested an inventory of Miss B’s belongings. The Council said it had spoken to Miss B on 19 December to obtain an inventory, and asked the advocate to chase Miss B for this. The advocate emailed Miss B almost immediately afterwards to ask her to provide an inventory.
- It does not appear that Miss B replied to this email.
- The Council made efforts to assist Miss B with her belongings, albeit a few weeks after her advocate had originally raised the issue. I do not consider it fault that the Council did not take this further, when Miss B failed to respond to its request for an inventory.
- In either case, the Council’s duty to take responsibility for Miss B’s belongings would only have applied if she could not do this herself. The fact that she was able pay for storage (as expensive as this might have been) indicates that the Council’s duty would not applied until the point where Miss B made it clear she was in arrears and that her belongings were going to be sold.
- I do not know exactly when Miss B’s arrears started, or when she first notified the Council. But as the Council has now cleared the arrears I do not consider there to be any issue to address here.
- Further to this, even if the Council had taken responsibility for her belongings earlier, this does not mean that Miss B would not have had to pay anything for their storage. The fact that she was able to pay for the storage for such a long period of time suggests strongly that the Council would have assessed her as being able to contribute a large proportion of the costs. For this reason, I cannot say that she has suffered any financial disadvantage here.
- There was significant fault in the Council’s handling of Miss B’s review, both in the length of time it took to complete, and the unnecessary enquiries made by the review officer. But the injustice to Miss B was limited.
- There were some shortcomings in the way the Council’s messages to Miss B were worded, but these were not so serious as to make a finding of fault. I also note Council has apologised for this and taken steps to address it.
- I have found no evidence of fault by the Council in the delay in reaching the original decision, or in the fact that it did not take responsibility for Miss B’s belongings earlier.
- The Council has agreed to pay Miss B £200 in recognition of the unnecessary uncertainty she had to endure because of the failure to the conduct a timely review.
- The Council has also provided the Ombudsman with written details of the steps it has taken to prevent a recurrence.
- There was significant fault in the delay to the review process, but this caused limited injustice to Miss B. There was no significant fault in the other aspects of Miss B’s complaint.
Parts of the complaint that I did not investigate
- There is a right of appeal to court about a decision to find a person intentionally homeless. Although Miss B did not need to use this right, as the Council overturned its decision upon review, the Ombudsman would still not generally investigate a decision which can be appealed in court. For this reason, while I have investigated the delays in the Council’s decision, I have not investigated the decision itself.
- Miss B also raised the suitability of her current accommodation as a point of complaint. This issue also carries an appeal right, and so I have again not investigated it.
Investigator's decision on behalf of the Ombudsman