London Borough of Barking & Dagenham (17 018 093)

Category : Housing > Homelessness

Decision : Upheld

Decision date : 22 Oct 2018

The Ombudsman's final decision:

Summary: the Council was at fault when it disposed of all Ms X’s personal property while she was in prison and could not afford to pay the storage charges. It unreasonably refused to consider her offer to pay a contribution to the charges and instructed contractors to dispose of her property without giving her the required notification. This caused a serious injustice to Ms X, and to her three children, who lost all their belongings. The Council has agreed to provide a suitable financial remedy.

The complaint

  1. A solicitor made this complaint on behalf of Ms X. She complains that the Council did not comply with its legal duty to protect her client’s personal belongings and disposed of them while she was in prison in February 2017. The Council misunderstood its legal duties and did not send Ms X the required written notification. Ms X found out the Council had disposed of her belongings in May 2017 when she received a copy of the Council’s reply to her MP.
  2. Ms X had to replace all her personal belongings (and those of her three children) following her release from prison in August 2017. She wants the Council to apologise, compensate for the loss of her belongings and the distress and upset this caused. She also wants the Council to review its procedures for the storage and disposal of belongings.

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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. Where an individual, organisation or private company provides services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
  3. 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 considered the solicitor’s complaint and all the supporting evidence she sent us. I made enquiries to the Council and considered its response and records.
  2. I have had regard to the relevant law and statutory guidance.
  3. Ms X’s solicitor and the Council have commented on my draft decision and the recommended remedy. I considered their comments before I made my final decision.

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What I found

  1. Part 7 of the Housing Act 1996 (as amended) and the Homelessness Code of Guidance for Local Authorities set out councils’ duties and powers to people who are homeless or threatened with homelessness.
  2. If a council is satisfied someone is eligible, homeless, in priority need and unintentionally homeless it owes them the main homelessness duty. Generally, councils carry out the duty by arranging temporary accommodation until it makes a suitable offer of social housing or private rented accommodation. (Housing Act 1996, section 193)
  3. Where a council owes the applicant a housing duty under Part 7 of the Act, it must protect his or her personal property if there is a risk it may be lost or damaged and the applicant is unable to protect it. If no other suitable arrangements have been made, the council has a duty to take reasonable steps to prevent the loss of, or damage to, the applicant’s personal property whether or not it still owes the applicant a duty.
  4. At the time of the events in this complaint, the statutory guidance in force was the Homelessness Code of Guidance for local authorities (July 2006). It said:
    • “a danger of loss or damage to personal property means that there is a likelihood of harm, not just that harm is a possibility. Applicants may be unable to protect their property if, for example, they are ill or are unable to afford to have it stored themselves.”
  5. When a council ceases to have a duty to store the applicant’s property, it must notify the applicant in writing and give reasons. The notification must be given to the applicant or sent to the last known address. [Housing Act 1996, section 212(5)]
  6. 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.).
  7. At the time of these events, the Council had no written guidance or procedure for officers about protecting the personal property of homeless applicants.

What happened

  1. Ms X is a single parent with three children. She applied to the Council for homelessness assistance in April 2015. She had been a tenant in private rented accommodation for several years but could not afford to pay a substantial rent increase. Her landlord started Court proceedings to recover possession of the property.
  2. Ms X was evicted from the property in late August 2015. The Council placed her and the children in temporary accommodation. In October 2015, the Council accepted it owed her the main homelessness duty. She and her family remained in temporary accommodation.
  3. In March 2016 Ms X was arrested and remanded in custody. She was later convicted and given a custodial sentence of 32 months. Ms X arranged for a friend to look after her children following her arrest and imprisonment.
  4. On 11 April 2016 the Council prepared a letter saying it had ended its duty to provide Ms X with temporary accommodation. Ms X says she did not receive this letter. It seems the letter was not sent because it is headed “on file”.
  5. Ms X’s solicitor says Ms X’s friend went to the temporary accommodation in early April 2016 to try to pack some of the children’s belongings. She found the locks had been changed so she could not gain access. Ms X and her friend both contacted the Council in April and May 2016 to ask if the friend could collect some of the children’s belongings, including their school uniforms, but the Council refused. Ms X says her friend had to borrow money to buy new clothes for the children.
  6. On 10 May Ms X wrote to the Housing Advice service from prison. She gave her prison address. She said she had left telephone messages but received no response. She asked the Council to let her friend, who was looking after her children, go to the temporary accommodation. Ms X also said she was expecting a letter about a medical appointment for her eldest child. She gave her friend’s mobile number and asked the Council to contact her. Ms X says the Council did not respond to her or her friend.
  7. The Council arranged for contractors to remove all Ms X’s personal property from the temporary accommodation on 24 May 2016. The contractors made an inventory before they removed the goods and put them in storage.
  8. The contractor’s inventory individually lists large items of furniture and household appliances. It also notes the condition of these items. It estimated the total value of the goods as £500. The inventory says all items with a value of £40 or more must be listed individually.
  9. The following items appear on the inventory:
    • two sofas;
    • two dining tables;
    • a wall unit and display unit;
    • a TV and stand;
    • a chest freezer, washing machine and hoover;
    • one double bed, two bunk beds, three single mattresses and two double mattresses;
    • one chest of drawers and one wardrobe;
    • three bikes and a scooter;
    • three rugs, one trolley and one ironing board.

The inventory says the contractors also removed 21 boxes, 12 bags, 9 holdalls and 4 plastic crates. A note on the inventory says the owner had packed these so the contents were not specified.

  1. Ms X transferred to a new prison in August 2016. On 31 August a support worker in the prison service sent the Council a letter from Ms X. Ms X explained she could not make any other arrangements to store her property while she was in prison. The friend who was caring for her children did not have space to store them. She said she had no other friends or family in the U.K who she could ask to help. She asked the Council to continue storing her property until her expected release date in early August 2017.
  2. Officer A, an officer in the Housing Advice service, replied to the caseworker on 7 September. She said the Council could not continue storing Ms X’s belongings until August 2017. She said she would give Miss X the opportunity to authorise a friend or family member to retrieve important documents from the storage facility before the items were disposed of. She enclosed a declaration for Ms X to sign and return by 4 October. She said the Council would look to dispose of her belongings by 24 October if Ms X could not find a friend or family member to collect her property. She said the Council would not expect Ms X to pay for disposal and it would not recover the storage charges it had incurred.
  3. Ms X wrote to the Council again in late September 2016 to explain she could not collect her belongings. She said she would need all her belongings when she was released from prison and she could not afford to replace everything. She said her children had lost their home and all their belongings too. She ended the letter by saying:

“I do not give consent for my belongings to be disposed of”.

  1. On 11 November Officer A wrote to Ms X. She referred to her 7 September email and said Ms X had made not made any arrangements for a friend or family member to collect her property from the storage facility. She said the Council had paid storage charges of £1,148.50 since May 2016. The letter ended:

“Due to limited resources and the fact that the Council is unable to provide ongoing storage, your possessions have now been disposed.”

  1. A prison charity arranged for Ms X to telephone Officer A on 14 November. Officer A wrote to her on 18 November to say the Council would suspend the disposal of Ms X’s property. She referred to Ms X’s offer to pay a contribution of £30 per week towards the storage charges. [Ms X says the offer was actually £30 per month]. Officer A rejected the offer. She said the Council had to recoup the full weekly storage charge of £144.15. Officer A asked Ms X to consider a final proposal:
    • pay £144.15 per week by cheque; or
    • authorise a friend or family member to take delivery of all the property; or
    • authorise a friend or family member to go the storage facility to remove any important documents, items of sentimental value and the children’s clothes and toys before disposal of the remaining items; or
    • contact a named charity to ask if it could raise funds to pay the storage charges in full or take delivery of the items until Ms X’s release date.

She reiterated:

“Please take into account that this authority will only accept full payment for your weekly storage charges”.

  1. An advice worker from a women prisoner’s organisation told Officer A Ms X could offer £30-£50 per month while she was in prison. She would set up a repayment plan to pay the remaining balance after she was released from prison. Officer A said her manager had decided payment of £144.15 per week was non-negotiable. She said she was keen for Ms X’s friend to collect the children’s belongings and any valuable documents or items of sentimental value before the Council disposed of the property. She said the deadline for Ms X’s reply was reset to 21 December.
  2. On 26 November Ms X wrote to her MP to seek assistance. She explained the background. She said there was no way she could meet the Council’s demand to pay £144.15 per week in her current circumstances.
  3. In December a support worker from a women’s organisation sent an email to Officer A on Ms X’s behalf. She said she had left telephone messages but received no response. She asked Officer A to contact her as a matter of urgency. Ms X was desperate and wanted to reach an agreement with the Council.
  4. On 8 December Officer A wrote to a caseworker at a prison advice service to reiterate Ms X’s options. She repeated the final proposal set out in the letter sent on 18 November. She said the Council had waived all the storage charges due from 24 May to 30 November 2016. She said:

“Since discharging our duty on 11 April 2016 we have no duty to store, nor indeed pay for [Miss X’s] storage costs and in view of this the above options are considered realistic.”

She noted that the service had approached charities to seek funding to cover the storage charges but had not been successful. She said the Council would look to dispose of Ms X’s property if the matter was not resolved by 22 December.

  1. Ms X continued to correspond with her MP. Support and advice workers also corresponded with the Council on her behalf to try to find a resolution. One of Ms X’s friends said she tried to make arrangements to pay some of the storage charges but this was blocked by officers. Another friend was going to collect some of her documents from the storage facility but did not attend.
  2. On 27 January the Council replied to the MP’s enquiry. It said the Council had discharged its housing duty to Ms X so it had no legal duty to continue financing her storage charges. It said this was putting an inappropriate burden on public resources. It had exercised discretion to give Ms X until 24 October 2016 to make alternative arrangements.
  3. On 10 February 2017 the Head of the Housing Advice service wrote to Ms X. He said:

“… to mitigate any further costs to the Council I have no alternative but to remain steadfast on the decision to approve disposal of your possessions in store unless by 15 February 2017 payment of £1,584.95 is made in full, or you provide contact details of a responsible person together with an address where your possessions can be delivered.

I am sorry if the content of this letter is not your desired outcome however I trust you will understand that the Council is under no duty to protect your possessions held in store and therefore it is not appropriate to continue to utilise public funds for this purpose.”

  1. In mid-February Ms X tried to arrange for a friend to sign a contract with another storage company so the Council could deliver her property to that facility. It seems this also fell through.
  2. In response to my enquiries, the Council said its contractors disposed of all Ms X’s personal property on 1 March 2017. It provided an email Officer A sent to the contractors on this date to say her manager had authorised them to dispose of Ms X’s property. However I noticed a handwritten note made by the contractor’s foreman on the inventory says they were “dumped” on 14 November 2016.
  3. On 18 April the Council informed Ms X’s MP that it had disposed of Ms X’s belongings on 16 February. Ms X did not find out until the MP forward this letter to her on 18 May. The Council has confirmed it did not send Ms X the notification required by section 212 of the Housing Act 1996 (paragraph 13).
  4. Ms X was released from prison in August 2017. She has started to replace the items that were destroyed. Her solicitor sent us a schedule listing the items Ms X has bought so far. These are mainly clothing, bedding and some items of furniture. She says her client has spent £6,571 to date on buying replacement items.

The destroyed property

  1. Ms X has seen the contractor’s inventory. She says the list is incomplete. It does not include some valuable items she had left in the property. For example, she says it does not include a microwave, two laptops and a printer. She also disputes the contractor’s estimate of the total value (£500). Her solicitor helped her compile a schedule of items she says were in the property. She estimates the total value at £17,211.99.
  2. Ms X says she left the receipts with her other belongings in the temporary accommodation. So they were destroyed along with when the contractors disposed of her belongings. She recently contacted retailers where she purchased some items to ask if they could provide any proof of purchases. Ms X’s solicitor sent me the available evidence.
  3. This shows that Ms X purchased several items from retailers between 2012 and 2015. This includes clothing for her and the children, household appliances, electronic equipment and study books. The total value of the items for which she has obtained proof of purchase is £4,201.04. Most of these items were delivered to Ms X’s former private rented property before she moved to the temporary accommodation. Three items of furniture and household appliances were ordered by a friend or relative in their name. They were delivered to Ms X’s former address and the solicitor says Ms X repaid them.
  4. The solicitor says Ms X could not obtain proof of purchase from four retailers where she had bought clothing and household goods. They did not retain details of transactions for this long or keep records for cash purchases.

The Council’s response to our enquiries and its proposal for a remedy

  1. The Council declined to investigate the complaint made by Ms X’s solicitor. Its complaints procedure says complaints must be made within six months of the date when the complainant first knew about the matter. As Ms X found out the Council had disposed of her property in May 2017, the complaint was therefore late. We accepted the complaint for investigation because it was made to us within 12 months which is the statutory time limit.
  2. In response to our enquiries the Council accepted it was at fault. It says officers showed poor judgment to insist that Ms X paid £144.15 per week for storage charges when she was in prison without the means to do so. Officers should have recognised that Ms X’s circumstances, and her lack of a support network, severely compromised her ability to act. They should have done more to help her. It accepts officers did not understand and comply with its legal duties. It failed to send Ms X written notification giving reasons before it disposed of her property.
  3. The Council has offered to pay Ms X £5,000. It says this payment comprises £2,500 for distress, anxiety and time and trouble and £2,500 for the cost of replacing destroyed items on the May 2016 inventory.
  4. The Council recently issued guidance to staff about the Council’s legal duties and procedures for storing and disposing of personal property. It says a team leader and a more senior officer must always give written authorisation before personal property held in storage is destroyed. Officers must write twice to the applicant to give four weeks’ notice that their possessions are at risk of being destroyed. They must make a written record of the circumstances and the reason for authorising destruction of the property. The guidance specifically says it is not appropriate to authorise destruction where the applicant is in prison, or in hospital, and cannot make suitable arrangements.

Analysis

  1. There was significant fault by the Council. Officers did not understand and correctly apply the law governing the storage and disposal of personal property for homeless applicants. Officers wrongly believed the Council’s duty to protect Ms X’s property ended at the same time as it discharged the main housing duty. This reveals a fundamental misunderstanding of the legal duties.
  2. The Council was inflexible in its demand that Ms X paid the full storage charge of £144.15 per week to prevent disposal of her property. This was not a reasonable charge to expect a prisoner to pay. Officers failed to take account of Ms X’s vulnerability, her lack of income and lack of support from friends or family members. Officers dismissed her offer to pay a contribution towards the storage charges. That too was fault.
  3. There was further fault. The Council did not comply with its legal duty to notify Ms X when it decided to dispose of her property and give reasons. She did not find out it had disposed of her property until her MP forwarded a letter to her. The Council had Ms X’s prison address so its failure to send the statutory notification was fault.
  4. These faults had a devastating impact on Ms X and her children. They lost everything they owned. This included irreplaceable items of sentimental value. Following her release from prison, Ms X started to buy replacement items as and when she can afford to do so. She has not yet managed to replace everything. The Council’s actions caused severe worry and distress for Ms X at a very difficult time in her life. It also affected her three young children.
  5. Household appliances and furniture can be replaced. Sadly, the personal items cannot be replaced and the Ombudsman cannot put a monetary value on this loss.
  6. Ms X says the contractor’s inventory is incomplete and does not include some valuable items she left in the temporary accommodation. Many items the contractors removed and took into storage were not listed individually on the inventory because they were already packed in crates, boxes and holdalls.
  7. In assessing the financial remedy, I considered the following factors:
    • the wide disparity between the contractor’s estimate of the value of the goods (£500) and Ms X’s figure of over £17,000;
    • understandably Ms X cannot provide receipts for all the items because they were destroyed along with the rest of her belongings;
    • the evidence Ms X recently obtained from retailers about items she had purchased from them over the years. This is not comprehensive because some retailers do not have records of purchases Ms X made several years ago.
    • we cannot be certain that all the items on Ms X’s list were in the temporary accommodation when the contractors removed her property on 24 May 2016.
    • we cannot draw up a definitive list of all the items the contractors destroyed because the inventory does not list the contents of items that were packed in boxes, crates or bags;
    • Ms X and her children lost everything they owned. It will be very expensive to replace all the furniture, household appliances and clothing and bedding.
    • some items, such as family photographs, are of sentimental value and we cannot put a monetary value on these. It must have added to the children’s distress to lose all their clothes and toys;
    • the Council’s offer to pay £5,000 and whether this provides adequate redress for replacement of the destroyed items and the severe distress the Council’s actions caused Ms X and her children.

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Agreed action

  1. Within one month the Council will:
      1. send Ms X a letter of apology for the distress she and her children suffered due to its decision to destroy all their belongings;
      2. confirm in writing that it has written off the storage charges it paid to the contractors between May 2016 and February 2017;
      3. pay Ms X £5,000 for the destroyed property;
      4. honour its offer to pay Ms X £2,500 to recognise the significant impact on Ms X and her children;
      5. arrange training for all officers in the Housing Advice service who make decisions about the storage and disposal of property for homeless applicants to ensure they understand the legal duties and are familiar with the new procedure.

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Final decision

  1. I have completed the investigation and found the Council’s fault caused a serious injustice to Ms X and her three children.

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Investigator's decision on behalf of the Ombudsman

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