London Borough of Newham (17 017 876)

Category : Housing > Homelessness

Decision : Upheld

Decision date : 19 Sep 2018

The Ombudsman's final decision:

Summary: The Council wrongly told Ms B that it could not provide interim accommodation until it had carried out a home visit to confirm that she was homeless. The Council has agreed to apologise, pay £100 to Ms B and provide guidance to its caseworkers to prevent similar failings in future.

The complaint

  1. Mr X, a solicitor, is complaining on behalf of Ms B. He complains that the Council failed to provide Ms B and her children with accommodation between 17 March 2017 and 6 April 2017 when they were homeless.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
  4. 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)

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How I considered this complaint

  1. I have:
    • considered the complaint and the documents provided by Mr X;
    • made enquiries of the Council and considered the comments and documents the Council has provided; and
    • given the Council and Ms X the opportunity to comment on my draft decision.

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What I found

  1. 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. The Homeless Code of Guidance says:

“6.5 If a housing authority has reason to believe that an applicant may be eligible for assistance, homeless and have a priority need, the authority will have an immediate duty under s.188 of the Housing Act 1996 to ensure that suitable accommodation is available for the applicant (and his or her household) pending the completion of the authority’s inquiries and its decision as to what duty, if any, is owed to the applicant under Part 7 of the Act. Authorities are reminded that ‘having reason to believe’ is a lower test than ‘being satisfied’.”

“8.4 There are a number of different factors that determine whether a person is homeless. Under s.175, a person is homeless if he or she has no accommodation in the UK or elsewhere which is available for his or her occupation and which that person has a legal right to occupy. A person is also homeless if he or she has accommodation but cannot secure entry to it, or the accommodation is a moveable structure, vehicle or vessel designed or adapted for human habitation (such as a caravan or house boat) and there is no place where it can be placed in order to provide accommodation. A person who has accommodation is to be treated as homeless where it would not be reasonable for him or her to continue to occupy that accommodation.”

“8.7 Under s.175(1), a person is homeless if he or she has no accommodation which he or she can legally occupy by virtue of:

i) an interest in it (e.g. as an owner, lessee or tenant) or by virtue of a court order;

ii) an express or implied licence to occupy it (e.g. as a lodger, as an employee with a service occupancy, or when living with a relative); or

iii) any enactment or rule of law giving him or her the right to remain in occupation or restricting the right of another person to recover possession (e.g. a person retaining possession as a statutory tenant under the Rent Acts where that person’s contractual rights to occupy have expired or been terminated).”

Background to the complaint

  1. Ms B approached the Council on 17 March 2017 and said that she was homeless. At the time, she had three dependent children and was pregnant with her fourth child.
  2. Ms B explained that they had been living with her mother-in-law for several years. She said that her husband moved out when their relationship broke down and her mother-in-law would not allow Ms B and her children to continue living there.
  3. The Council’s caseworker telephoned Ms B’s mother-in-law. The caseworker explained that the Council needed to carry out a home visit to confirm that Ms B was homeless and asked if the family could return to her home until then. Ms B’s mother-in-law refused. Ms B then called a neighbour who agreed that the family could stay there for a couple of days. The caseworker recorded that she did not offer interim accommodation because she had no reason to believe that Ms B was homeless.
  4. Ms B returned to the Council on 30 March with her neighbour. Ms B’s neighbour told the caseworker that Ms B and her family could not continue to live at her home. The caseworker told Ms B’s neighbour that the Council could not provide interim accommodation until it had carried out a home visit and asked if the family could remain there until it had been completed.
  5. Ms B attended the Council’s offices again on 3 April and said that they were homeless because her neighbour could no longer accommodate them. The caseworker told Ms B that the Council could not provide interim accommodation until it had completed a home visit. Ms B said that her neighbour had asked her to leave that day because she needed the room they were occupying for her son who was returning on 6 April. Ms B agreed to return to her neighbour’s house until 6 April.
  6. The Council carried out home visits to Ms B’s mother-in-law’s address and Ms B’s neighbour’s address. The Visiting Officer confirmed homelessness from both addresses.
  7. The Council provided interim accommodation for Ms B and her family from 6 April.

Complaint correspondence

  1. In November 2017, Ms B’s solicitor, Mr X, made a complaint to the Council on her behalf. He complained that the Council had not provided Ms B with accommodation between 17 March, when she first approached the Council, and 6 April, when the Council provided interim accommodation.
  2. Mr X referred to section 188 of the Housing Act 1996. He said that when Ms B approached the Council, she gave reason to believe that she may be homeless, may be eligible for assistance and may have a priority need for accommodation. He said that the Council breached its duty under section 188 by failing to provide interim accommodation.
  3. In the Council’s response, it referred to Annex 7 of the Homeless Code of Guidance which says:

“2. Housing Authorities are advised to consider a range of approaches aimed at avoiding the crisis of homelessness, resolving problems in the long-term or providing respite and time for a planned, and often more sustainable move. Home visits and mediation services can play an important role in delaying or preventing homelessness by helping people find solutions and resolve difficulties.”

  1. The Council explained that its caseworker had told Ms B that a home visit was required to confirm homelessness and Ms B then called a neighbour who agreed to let her stay for a few days. It said that it did not book her into interim accommodation because it had identified an alternative place for her to stay until the visit could be carried out.
  2. The Council explained that its caseworker continued to mediate with Ms B’s neighbour who agreed to extend her stay. It said that as Ms B was able to source interim accommodation, it had no reason to believe that Ms B was homeless on the day she approached the Council.
  3. Mr X said that Ms B was homeless, and he referred to section 175 of the Housing Act 1996 to support his view. Mr X argued that while home visits can be conducted as part of a council’s enquiries into a homeless application, they must not obstruct the provision of interim accommodation.

Analysis

  1. As explained in paragraph seven above, a housing authority has an immediate duty to ensure that suitable accommodation is available for the applicant if it has reason to believe that they may be eligible for assistance, homeless and have a priority need. The Council cannot postpone this duty in order to carry out a home visit. Government guidance reminds councils that ‘having reason to believe' is a lower test than 'being satisfied'.
  2. At the point that Ms B first approached the Council and her mother-in-law confirmed that she could not return home, the Council clearly had reason to believe that Ms B may be eligible for assistance, homeless and have a priority need.
  3. The Council was wrong to tell Ms B that it could not provide interim accommodation until after it had carried out a home visit. This was fault. If Ms B had not been able to find somewhere to stay herself, the Council would have had to provide her with interim accommodation before it was able to carry out a home visit.
  4. As a result of the Council wrongly telling Ms B that it could not provide interim accommodation until it had carried out a home visit, Ms B had to try and find accommodation herself. The Council says that once her neighbour agreed that she could stay, she was no longer homeless and so it had no duty to accommodate her. Mr X considers the definition of homeless included in section 175 of the Housing Act 1996 shows that Ms B was homeless while she was staying with her neighbour and so it did have a duty to accommodate her. It is not the role of the Ombudsman to interpret legislation. This is a matter for the courts and it is open to Mr X to pursue a legal challenge against the Council on this matter if he so wishes.
  5. I have considered what would likely have happened if the Council had not wrongly told Ms B that it could not provide interim accommodation until after it had carried out a home visit. On balance, I consider it likely that Ms B’s neighbour would not have agreed to house Ms B if she knew that the Council had a duty to provide interim accommodation. I therefore consider the Council would have provided interim accommodation to Ms B for the period 17 March to 6 April 2017 if it had not provided incorrect information to Ms B and her neighbour.

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Agreed action

  1. Within four weeks, the Council will:
    • apologise to Ms B for wrongly telling her that it could not provide interim accommodation until after it had carried out a home visit; and
    • make a payment of £100 to Ms B to remedy the distress caused by the Council’s failure to provide interim accommodation for 20 days.
  2. Within eight weeks, the Council will provide written guidance to its caseworkers about when they should offer interim accommodation. It will clearly state that caseworkers should not tell homeless applicants that interim accommodation cannot be provided until after a home visit is carried out.

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Final decision

  1. I have completed my investigation and uphold the complaint. There was fault by the Council which caused injustice to Ms B. The action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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