Summary: The Council’s wrongly bypassed two bids for housing for Mrs X because her application did not meet the local lettings criteria when she was exempt from this. The partner would not have offered the houses to Mrs X as they were too small. The Council failed to give Mrs X reasons for its decision on her medical and welfare priority, preventing her from challenging the decisions. It caused injustice to Mrs X through distress, uncertainty and time and trouble. It will pay Mrs X £500 because of this. The Council’s allocation policy fails to give applicants their full review rights and its medical decision letters do not provide enough information for applicants to understand the reasons for the decision. The Council will review its policy and the contents of its medical priority decision letters.

The complaint

1. Mrs X complains the Council provided her family with unsuitable temporary accommodation and has not treated their housing application fairly.

Back to top

The Ombudsman’s role and powers

2. 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)
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. 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)
5. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services for a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
6. 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)

Back to top

How I considered this complaint

7. I considered the complaint made by Mrs X and discussed it with her. I asked the Council for evidence and information and considered this.
8. Mrs X and the Council had the opportunity to comment on a draft version of my decision. I considered the comments they make before I reached a final decision.
9. The Council provided temporary accommodation to Mrs X under its homelessness duties. The Council is ultimately responsible for the conditions in the temporary accommodation and the actions of the landlord of the temporary accommodation when it dealt with Mrs X.

Back to top

What I found

Law and policy

Homeless applications

10. 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.
11. Before 3 April 2018 the law said someone was threatened with homelessness if he or she was likely to become homeless within 28 days. (Housing Act 1996, section 175(4))
12. Before 3 April 2018 if a council was satisfied someone was eligible, homeless, in priority need and unintentionally homeless it owed them the main homelessness duty. The council carries 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)
13. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of his or her household. This duty applies to interim accommodation and accommodation provided under the main homelessness duty. (Housing Act 1996, section 206 and (from 3 April 2018) Homelessness Code of Guidance 17.2)
14. A council can only use Bed and breakfast (B&B) accommodation for households which include a pregnant woman or dependent child when no other accommodation is available and then for no more than six weeks. B&B is accommodation which is not self-contained and not owned by the Council or a registered provider of social housing. (Homelessness (Suitability of Accommodation) (England) Order 2003 and from 3 April 2018 Homelessness Code of Guidance paragraph 17.32)
15. After completing inquiries, the council must give the applicant a decision in writing. If it is an adverse decision, the letter must fully explain the reasons. All letters must include information about the right to request a review and the timescale for doing so. (Housing Act 1996, section 184, from 3 April 2018 Homelessness Code of Guidance 18.32 and 18.33)
16. Homeless applicants may request a review within 21 days the council notifying them 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)

Housing Allocations

17. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing.  It must make all allocations in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
18. An allocations scheme must give reasonable preference to applicants in the following categories:

• homeless people;
• people in insanitary, overcrowded or unsatisfactory housing;
• people who need to move on medical or welfare grounds;
• people who need to move to avoid hardship to themselves or others;
  (Housing Act 1996, section 166A(3))

19. A council must frame its allocations scheme in a way that gives applicants the right to request a review of any decision affecting their application including the priority a council has given it. (Housing Act 1996 section 166A (9))
20. The Council is a partner in a local choice-based lettings scheme which enables housing applicants to bid for available advertised properties. It calls the scheme “Homefinder”.

The Council’s Allocation Scheme

21. The Scheme says a couple with 5 dependent children need 4 bedrooms.
22. It goes on to say:

“Households who need larger accommodation (4+ beds) can be given the choice of whether they would like to be considered for smaller accommodation than the allocation policy states they require providing that it would still meet their needs and not overcrowd the property. This choice needs to be verified in writing from the applicant so it is evidenced. By doing so they would still retain the preference awarded for overcrowding should this choice result in a band change.”

“Individual landlords letting policies may further restrict the size of families that may apply for properties – such restrictions will be included in the property details for each advert.

“When short listing applicants, Registered Providers are permitted to overlook applicants for permitted reasons only. This includes where the applicant’s household exceeds the property size.”

“Where any applicant is overlooked for a property, the allocating Registered Provider will notify them of the reasons.”

The Allocation Scheme medical assessments

23. The Scheme says:

“On receipt of the completed medical form and any documentation from a medical professional, the assessing officer will review the application and level of medical priority.”

“If the assessing officer feels, in conjunction with a senior officer, that no further medical/welfare need has been identified, the application will be written to explaining the reasons why.”

“If the assessing officer, in conjunction with a senior officer, feels that a higher level of medical need should be considered, then the decision will be referred to the Medical and Welfare Panel for consideration.”

The Allocation Scheme bands

24. Band 1

• Urgent medical/welfare issues or multiples of Band 2

Band 2

• Severe over occupation (two bedrooms or more)
• Severe under occupation (social tenants resident on the Island)
• Severe medical/welfare issues
• Applicants identified as being ready for ‘move-on’ accommodation
• Leaving adapted accommodation

Band 3

• Multiples of Band 4

Band 4

• Homeless applicants who the Housing Authority has accepted as statutory homeless
• Significant medical/welfare issues
• Hazardous property condition as defined by the Housing Renewal Team
• Lacking or sharing amenities
• Households within insecure accommodation
• Minor under occupation
• Minor over occupation (one bedroom)

25. The Council gives Band 5 to applicants with no housing need.
26. The Council’s scheme gives a right of review to applicants who it has refused to add to the housing register. Otherwise, it says, if an applicant does not think the Council has dealt correctly with their application, they should make a complaint to the Council and then complain to the Housing Ombudsman.

The Armed Forces Covenant

27. The Council is a signatory to the Armed Forces Covenant which promises that those who serve or have served in the British Military and their families will not be disadvantaged by its service.

What happened

28. On 24 August 2016 Mrs X applied for housing from the Council as her husband was due to leave the Armed Forces in March 2017. Mr and Mrs X have 5 young children and were stationed abroad. Mrs X said she was willing to consider 3-bedroom properties. The family would consider any location on the Island.
29. The Council activated Mrs X’s application on 19 September, it wrote to Mrs X to say she was in Band 4 with an effective date of 19 September 2016 and needed 4 bedrooms. On 29 September it sent Mrs X an action plan suggesting she should look for private rented housing and apply for social housing by completing an application form. Mrs X completed another application form on 11 October 2016 and advised the Council she had a micro brain tumour and her son (Y) had autism.
30. The Council telephoned Mrs X to discuss her application. It told her because of the size of her family she could wait some time for social housing and should not rely on this. The Council advised Mrs X to start looking for a private rented home nearer the time when her husband would leave the Armed Forces. The Council decided it would consider the family for a 3-bedroom property but only if it had two living rooms. It considered a standard 3-bedroom property would not be big enough for the family.
31. The Council advised Mrs X to speak to the Homeless Prevention Team. Mrs X did this and kept in touch with the Team. On 12 October a Homelessness Prevention Officer wrote to Mrs X and said she was registered for 3-bedrooms and should bid for the properties she was eligible for.
32. On 2 February 2017 Mrs X emailed the Council for advice. She said it was getting close to when they had to leave Armed Forces accommodation. She wanted to know if their impending homelessness increased their priority. She said the family could live in a 3-bedroom house.
33. On 19 February Mrs X emailed the Council with details of her medical problems and asked the Council to update her application. The Council asked her to fill in a medical information form.
34. Mrs X’s MP then contacted the Council and on 23 February the Council telephoned Mrs X again. Mrs X told the Council the Armed Forces would pay for 6 nights hotel accommodation. She said the family could not afford private rented. The Council advised Mrs X about a homelessness application and emergency accommodation. It advised Mrs X to keep looking for private rented homes. The Council sent Mrs X the same action plan it sent her in September 2016.
35. On 8 March Mrs X told the Council Y now had a definite diagnosis of autism and the family only had hotel accommodation from the Armed Forces until 5 April. The Council repeated its advice to look for private rented and said she should tell her Homeless Officer she needed emergency accommodation from 5 April. Mrs X said she could not apply for school places until she knew where the family would live.
36. Mrs X contacted the Council on 17 March to say nothing had changed.
37. On 20 March the Council told Mrs X it had changed her application to Band 3 with an effective date of 20 March because of Y’s medical needs. The letter did not say what information it considered and why it had reached this view. The letter said if Mrs X thought the Council had incorrect information or had given her the wrong band, she should contact the Housing Department.
38. Mrs X contacted the Council again to say how worried she was and the stress was making her medical conditions worse. Mrs X’s MP also contacted the Council. The Council replied on 28 March with details of a private rented property it had seen. It told Mrs X if she had not secured accommodation when in the hotel paid for by the Armed Forces she should make a homelessness application. It said the Council could then offer her emergency B&B. It made an appointment for Mrs X on 4 April
39. On 1 April 2017 Mrs X’s family moved into the hotel paid for by the Armed Forces. On 4 April Mr and Mrs X filled in a homelessness application form. They again mentioned Mrs X’s medical problems and how the stress was making this worse. They gave the Council more medical information; including that another child had acute dermatitis. The Council said it would consider this.
40. On 6 April the Council provided a room in a different B&B for the family.
41. On 7 April 2017 Mrs X made bids for two houses on Homefinder; advertised by the Council’s Housing Association partner. The adverts said the houses had 3 bedrooms but did not say how many people could live there. The partner asked Mrs X for more information. It then bypassed both bids. The partner gave the reason that Mrs X did not meet the local lettings criteria. The partner offered the houses to applicants with a lower priority than Mrs X.
42. The Council introduced local lettings plans through planning conditions. Its aim was to help residents move within a Parish. The plan gave preference to Parish residents making a bid for these properties.
43. The Council says local lettings are part of its Homefinder scheme. It says Armed Forces personnel are exempt from the local connection requirement. It says

“As the local lettings plan is administered by Homefinder the agreement would not override this right. It is not considered that this needed to be made explicit in the plan itself (as it does not apply in these circumstances). The local lettings plan outlines that the affordable housing provider will review each applicant’s circumstances individually and will consider all relevant facts before making a decision. At this stage the particular circumstances would be known and the local connection requirement disregarded, if not deemed relevant.”    

44. On 12 April 2017 the Council told Mrs X in writing that it accepted her homelessness application and it would arrange suitable temporary accommodation as soon as possible. It advised her to seriously consider any offer of suitable accommodation it made. It said she could request a review of the suitability of the temporary accommodation even if she accepted it.
45. On 12 April the Council wrote to Mrs X about her housing application. It said it had assessed her new medical information and she remained in Band 3 with a priority date of 20 March 2017. It did not say what information it considered and why it had reached its decision.
46. The Council referred Mrs X and her family to a Housing Association for a hostel place. The hostel accommodation had one bedroom and sitting/kitchen area. The hostel has communal bathrooms. The family visited the hostel on 19 April 2017. They were upset to discover the hostel did not provide beds. The Housing Association emailed the Council to ask it to make sure it told people it nominated there would be no beds. The Housing Association said Mr and Mrs X could not get their furniture from storage and now faced the prospect of finding 7 beds. The Council replied it would save Mr and Mrs X storage costs if they retrieved the beds and it was their decision if they wanted to buy new ones.
47. Mrs X went to the Council the next day and said she could not get the beds from storage. The officer advised her to look for private rented property. The Officer then left a message for Mrs X to try SAAFA or the British Legion for help.
48. On 26 April the Council sent a letter offering the hostel as temporary unfurnished accommodation. The letter said the Housing Association managed the hostel and was responsible for all issues, including rent, repair and any queries Mrs X had. It told Mrs X the Housing Association would give her a Housing Benefit claim form. The letter said Mrs X could ask for a review of suitability with 21 days of the date of the letter.
49. The family moved into the hostel on 1 May.
50. On 4 May the Housing Association emailed the Council. It said Y’s autism meant the stress of living in the hostel impacted on his behaviour at school and home. The Association said the sooner the family could move the better. The Association said Mrs X was willing to accept a 3-bedroom property and was willing to sign the overcrowding disclaimer for this. The Council responded that Mrs X could bid for 3-bedroom properties.
51. Mrs X completed a new medical information form on 4 May. On 10 May the Council told her it had assessed her new form but it had not increased her priority. It did not tell her what it had considered.
52. The Council says Mrs X did not ask it to review the suitability of the hostel.
53. On 8 May Mrs X gave a letter to the Housing Association. The letter said Mrs X considered the temporary accommodation unsuitable. She said she and her husband had to sleep on an air bed in the living/kitchen area. She said the family had to share unhygienic bathrooms and toilets with other people. She wrote about loud, drunken, intimidating behaviour by some residents and an arrest in the hostel. She said her husband was tired for work and her children were tired at school. She ended the letter by saying “I would like to request a review of my current temporary accommodation”.
54. Officers from the Housing Association met with Mrs X and her family at the hostel on 16 May. An officer took notes. The Association offered the family a key to the staff bathroom and said it would improve the communal bathrooms and stairs. It apologised for the anti-social incidents that disturbed the family. The notes say the Officers told Mrs X to discuss if the hostel was suitable with the Council.
55. In late June 2017 Mrs X provided more health information to the Council. She said living in the hostel was making her and Y’s health worse. The Council wrote to her GP for more information. Mrs X filled in another medical information form. In it she said Y has autism with features of tourettes. She said he was scared to use the hostel toilets. She said his behaviour and tics has worsened in the hostel. She said he was aggressive towards his siblings and they all had to share a bedroom. She said he had problems sleeping.
56. On 5 July the Council moved the family to self-contained 3-bedroom accommodation and gave them a non-secure licence to live there. The rent was £140 a week with an extra management charge of £25.95 a week. The Council decided to not consider Mrs X’s latest health form as it was: “no longer relevant to the application as they are being moved out of (the hostel) into temp accommodation which is suitable for their needs”.
57. In August Mrs X’s GP replied to the Council’s letter sent in June. The Council wrote to Mrs X on 21 September to say it had assessed this information and awarded additional medical priority. It said this it did not change Mrs X’s band as she already had Band 3 significant medical and welfare.
58. In January 2018 the Council’s partner bypassed three Homefinder bids made by Mrs X. The Council offered the houses to applicants with less priority or waiting time than Mrs X. The Council says all the houses were too small for Mrs X’s family. It has provided copies of the adverts for the houses which say says all were 3 bedrooms but were only big enough for 5 people.
59. The Council says one of the houses was not affordable to the family. The advert said the bidder must earn over £18,600 a year to apply for the house. The Council says its partner reconsidered all bids because of an error in the original shortlist. It says Mrs X gave the family income as £31,000 a year when she applied to join the register. It says this was when the family were still living abroad, the family’s income had changed but Mrs X had not updated the application. It says its partner would have asked Mrs X for the family’s current circumstances when considering the short list. Mrs X says it did not.
60. The Council says its partners do not write to an applicant when they bypass a bid. It says the partner puts its reasons for bypassing the bid on Homefinder and the applicant has access to this.
61. In February 2018 Mrs X asked the Council what the £25.95 weekly management change covered. The Council said it covered staffing costs for the scheme.

Further information from the Council

62. The Council has now provided the floor plans for the houses its partner bypassed bids for in April 2017. These show only one living room. The Council says no room downstairs is capable of use as a bedroom. It says although its partner bypassed the bids for the wrong reason, it would have bypassed the bids anyway as the houses were too small.
63. In April 2019 the Council increased Mrs X priority to band 2 because of the time the family has spent in temporary accommodation.

Analysis

64. I cannot question the Council’s decision it will only consider bids from Mrs X for 4-bedroom properties or 3-bedrooms with a second living room. This is in line with its policy. However, the Council has given Mrs X some confusing and contradictory information about this. I do not consider this caused injustice as under its policy the Council will only consider Mrs X for a 3-bedroom property if it has a second living room.
65. Someone is threatened with homeless within 28 days of when they will lose their home. Mrs X kept the Council updated and it knew she would be homeless on 1 April 2017. The Council did not take a homelessness application until 4 April. This is fault. This did not cause Mrs X injustice as the Council gave its decision on that application in a week.
66. The Council must give housing applicants a right to request a review of any decision affecting their application, including the priority the Council has given it. The Council’s scheme does not do this; it only gives a right of review to applicants it has refused to register. This is fault. This caused Mrs X injustice as she did not get an opportunity for a review of the Council’s decisions on medical priority.
67. Mrs X first told the Council of her and Y’s medical conditions in August 2016. The Council did not advise her at this point to complete a medical information form. When the Council told her to do this in February 2017, the Council increased her priority in March. The failure to advise Mrs X about this in August is fault. The Council caused injustice. If had given timely advice, it could have given Mrs X’s application Band 3 in September 2016 instead of March 2017.
68. I cannot say if the Council took its decision on medical priority properly. The Council’s letters do not give enough information to establish this. I also cannot tell when the Council first included Mrs X’s medical conditions in its assessments. In March 2017 the Council only considered Y’s medical needs. Mrs X kept sending the Council more medical information and the Council did reassessments. However, none of the Council’s responses to Mrs X tell her what it had considered and the reasons for its decision. The lack of information in the decision letters is fault. Not knowing how the Council made its decision puts applicants at a significant disadvantage in either providing missing information which could make a difference or challenging the decision.
69. The Council has now increased Mrs X’s priority to band 2 because of the time the family has spent in temporary accommodation. If an applicant has two band 2 qualifications the Council gives band 1. If Mrs X knew on what basis the Council made its decision on the family’s medical needs, she could consider challenging this. If the Council increase her medical need to severe, she would have two band 2 qualifications.
70. The Council says Mrs X did not ask for a review of the hostel accommodation. Mrs X gave the review request to the Housing Association. The Housing Association acted for the Council and should have passed it the review request. The Council had told Mrs X to contact the Housing Association about any queries she had.
71. The Council must keep suitability of accommodation it provides under review. Three days after moving into the hostel the Housing Association told the Council the accommodation was not suitable for the family. The Council’s failure to conduct a review of the suitability of the hostel is fault. However, the Council has eight weeks to carry out a review and it moved Mrs X to self-contained accommodation within eight weeks.
72. The Council is not at fault because it bypassed three housing bids from Mrs X in February 2018. The Council’s partner skipped a bid because of affordability without checking this. However, all three houses were too small for the family under the Council’s policy.
73. The Council’s partner bypassed two bids in 2017 because Mrs X did not meet the local lettings criteria. This is fault. As ex-forces Mrs X’s family are exempt. The Council’s partner would not have offered the houses to Mrs X as they are too small. However, this caused some injustice to Mrs X because of uncertainty and raised expectation. As the partner wrongly applied the local lettings criteria in this case, it is possible it has wrongly bypassed bids from other ex-forces personnel.
74. A council can charge a management charge for temporary accommodation. What the Council charges is not unreasonable.

Agreed action

75. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of two housing associations, I made recommendations to the Council.
76. To put matters right for Mrs X the Council has agreed within a month of my final decision it will:

• apologise to Mrs X,
• reassess the family’s medical and welfare needs. It will write to Mrs X and list all the information it has considered. It will clearly explain if it has found the family has significant or severe medical and welfare needs. It will give reasons for its decision. If it finds the family has severe needs this should mean the application goes into band 1. If the Council finds the family has significant needs, Mrs X will then have enough information to decide if she wants to ask for a review of the decision,
• pay Mrs X £500 for her time and trouble and the distress the Council’s faults have caused her.

77. To put matters right for other people within three months of my final decision the Council will:-

• Review its allocations policy so that it includes an applicant’s right to ask for a review on any decision affecting their housing application.
• Review its medical decision letters so they contain what information it has considered and the reasons for the decision.
• Inform its housing partners they must forward to the Council a request for a review of the suitability of temporary accommodation.
• Tell its housing partners that applications from Armed Forces personnel are exempt from the local connection provisions in local lettings plans.

Back to top

Final decision

78. The Council is at fault and has caused injustice. The Council has agreed to provide a remedy for this. I have completed my investigation and closed the complaint.

Back to top

Investigator's decision on behalf of the Ombudsman