Summary: Mrs B complained about the Council’s handling of her family’s homelessness. There was some fault by the Council. This resulted in delay in the Council treating Mrs B as homeless. It also caused Mrs B missed opportunity and uncertainty. The Council has agreed to apologise, pay Mrs B £250 and review its actions.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complains the Council:
• Failed to take a homelessness application from Mrs B in April 2018 because she had not completed an online form.
• Gave Mrs B information about private renting rather than processing a homelessness application in May 2018.
• Told Mrs B that if she made a homelessness application she would be accommodated outside the Council’s area and her housing register application would be downgraded to Band C.
• Reiterated to Mrs B’s representative that if Mrs B made a homelessness application, she would be placed in Kent.
2. Mrs B says this meant she and her family continued living in statutorily overcrowded conditions and she was not able to make an informed decision about her options.

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What I have investigated

3. I have investigated the above points as far as I considered proportionate. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I considered the information Mrs B’s representative provided, discussed the complaint with the representative and considered information Mrs B sent me. I made written enquiries of the Council and considered its response. I also considered the relevant law and statutory guidance. I gave the Council and Mrs B the opportunity to comment on my draft decision.

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What I found

7. The evidence suggests Mrs B contacted the Council saying she was homeless in April 2018. After various dealings between them, the Council decided in July 2018 Mrs B was homeless because, although she had the tenancy of a flat, it was overcrowded. Mrs B and her family remained living there until December 2018, when social housing the Council had offered them in October 2018 was ready.

The Council’s responsibilities about homelessness

8. If a council has ‘reason to believe’ someone applying to it for accommodation or assistance in obtaining accommodation ‘may be’ homeless or threatened with homelessness (meaning likely to be homeless within 56 days), the council must make enquiries to establish whether it owes the person any legal duties. (Housing Act 1996, section 184)
9. So the threshold for a council to make enquiries is low. Councils need not know someone actually is eligible, homeless or threatened with homelessness.
10. A Council must secure interim accommodation if it believes an applicant may be homeless, eligible for assistance (which mainly relates to immigration status) and have a priority need. (Housing Act 1996, section 188) People with dependent children have priority need.
11. When the duty to make homelessness enquiries has arisen and the Council has decided whether it owes any homelessness duties, the Council must tell the applicant in writing of its decision and tell the applicant of their right to seek a review of the decision. (Housing Act 1996, section 184)
12. Someone who has accommodation is legally homeless if it is not reasonable to continue occupying the accommodation. (Housing Act 1996, section 175(3)). The Council decided in July 2017 that Mrs B was homeless although she had the tenancy of a flat because the flat was so overcrowded. Part of my consideration of this complaint is whether the Council should reasonably have reached that decision sooner.
13. When the Council is satisfied someone is homeless and eligible for assistance, it must take reasonable steps to secure accommodation for them and their household. This is the ‘relief duty.’ (Housing Act 1996, section 189B)

Complaint - Failure to take a homelessness application from Mrs B in April 2018 because she had not completed an online form

14. Mrs B’s former representative said Mrs B had tried to present as homeless at the Council offices five times without being interviewed about this because staff kept telling her to complete an online or paper form first. The Council disputes this. The evidence I have seen is not clear enough about when Mrs B visited the Council, what she said and what she was told. The Council also gave me evidence of it interviewing some people on the day they present as homeless, even if they have not completed an online form.
15. The evidence I have seen does not enable me to decide, on balance, that the Council refused to deal with Mrs B’s attempts to present as homeless just because she had not completed a particular form. Further investigation is unlikely to be fruitful. So I shall not pursue this point further. However, my investigation has given me other concerns about how the Council dealt with this, which I shall explain below.
16. On 16 April 2018, Mrs B gave the Council a completed paper homelessness initial assessment form. On this, she stated, ‘The household is now 5 people living in a one bedroom flat. It is overcrowded – we are homeless.’
17. The Council telephoned Mrs B about this the same day. The Council advised Mrs B the overcrowding meant it could reassess her housing register application (a separate matter to homelessness). The Council noted ‘…she is not homeless or threatened with homelessness – no Notice has been issued.’
18. The Council must make homelessness enquiries if it has ‘reason to believe’ someone ‘may be’ homeless or threatened with homelessness. Whether the landlord has served notice to quit is only one factor in whether someone might be homeless or threatened with homelessness.
19. Mrs B had said she was homeless because her accommodation was overcrowded. The Council knows that someone can be homeless if it is not reasonable to remain in their current accommodation and that overcrowding can make it not reasonable to remain. Indeed, that was the reason the Council later decided Mrs B was homeless.
20. So I consider the form Mrs B submitted on 16 April 2018 met the low threshold to give the Council reason to believe Mrs B may be homeless and eligible for assistance. Therefore the Council had a duty to make homelessness enquiries, reach a decision and put the decision and review rights in writing.
21. The evidence suggests the Council made some enquiries about whether the landlord had given notice. However, it did not make proper enquiries of Mrs B about whether her property’s overcrowding might mean her family was homeless. Had it done so, it would, on balance, probably have decided the family was homeless due to overcrowding. That was the decision the Council made in July 2018. The family’s living arrangements had not changed in the intervening three months. I consider the Council was at fault here.
22. The Council told Mrs B by telephone she was not homeless. That was, in effect, a formal homelessness decision. Such a decision must be in writing, giving reasons and review rights. The failure to do that was also fault.

Complaint – The Council gave Mrs B information about private renting rather than processing a homelessness application in May 2018

23. On 15 May 2018, Mrs B’s representative sent the Council an email that said, ‘Please find attached a homelessness application…’ The attached letter said, ‘Application for assistance under Part VII Housing Act 1996’ and asked the Council to ‘…treat this letter as an application for assistance under Part VII Housing Act 1996.’ Part VII concerns homelessness. The letter stated Mrs B was homeless because her current accommodation was overcrowded, said the relief duty applied and requested interim accommodation.
24. The Council met Mrs B. Instead of treating her approach as a homelessness application, it advised her about private renting. Its follow-up letter on 22 May 2018 said, ‘Please note that it is not a letter that notifies you of the decision on a homeless application.’ The letter added that Mrs B could make a homelessness application at any time, missing the point that she had already done so.
25. The Council accepts it was at fault for not treating the letter of 15 May as a homelessness application and for not making a homelessness decision. I agree that was fault. That was the second failure that I have found to deal with Mrs B presenting as homeless. The Council states staff have since received training.
26. In an email to Mrs B’s representative on 11 June 2018, the Council accepted the fault above but said that anyway in May 2018 it had no reason to believe Mrs B was homeless or threatened with homelessness. The Council now accepts that, too, was fault since, in May, the Council had just received a homelessness application stating the family was homeless due to overcrowding.
27. On 8 June 2018, Mrs B’s representative pointed out the Council’s failure to take a homelessness application in May and mentioned the possibility Mrs B’s property had statutory overcrowding (which the Council accepted in July 2018). The Council still did not take a homelessness application, even though it accepted it had failed to take an application in May. Instead, the Council said it would use its discretion to accept a homelessness prevention duty. That is a different legal duty, owed to people likely to become homeless in the next 56 days. Mrs B and her representative were saying Mrs B was already legally homeless.
28. It is not clear why the Council considered the family was threatened with homelessness. If someone’s living circumstances make it not reasonable to remain where they are, they are already legally homeless, not threatened.
29. The information the Council had on 8 June showed that Mrs B had clearly tried to apply as homeless in May, that her circumstances had not changed since then and that she was dissatisfied the Council had not treated her as homeless. I consider this still met the threshold for making homelessness enquiries. It was not a matter for the Council’s discretion. The Council was at fault for not treating this as a homelessness matter then. That was the third failure to appreciate that the threshold for treating this as a homelessness situation had been reached.
30. The Council says its mishandling of the approach in May 2018 caused Mrs B no significant injustice because after 11 June 2018 it accepted the relief duty and produced a personalised housing plan (PHP). That was not accurate. On 11 June the Council said it would use its discretion to accept a prevention duty and would produce a PHP aimed at helping the family find a larger privately rented property.
31. The Council also said on 11 June 2018 that if Mrs B’s current accommodation was not reasonable to remain in, it would trigger the relief duty. This seems to miss the point that Mrs B was already clearly stating it was not reasonable to remain in her accommodation.
32. The Council’s approach around 11 June 2018 appears confused. It suggests the Council was not properly engaging with Mrs B’s claim that her overcrowded housing meant she was already legally homeless.
33. In mid-July 2018, the Council met Mrs B and accepted that she was homeless and it owed the relief duty.

Complaints:

The Council told Mrs B that if she made a homelessness application she would be accommodated outside the Council’s area and her housing register application would be downgraded to Band C

The Council’s stage two complaint response reiterated if Mrs B applied as homeless, she would be placed in Kent

34. I shall deal with these points together as they are closely related.

The location of accommodation

35. Accommodation secured by the Council, including interim and temporary accommodation, must be suitable for the applicant and all household members normally living with them. (Housing Act 1996, section 206 and Homelessness Code of Guidance for Local Authorities, paragraph 17.2)
36. The Council must, so far as is reasonably practicable, secure accommodation in its own district. (Housing Act 1996, section 208(1) and Homelessness Code of Guidance for Local Authorities, paragraph 17.47) Where the Council cannot do this, it must take account of the accommodation’s distance from its district. (Homelessness Code of Guidance for Local Authorities, paragraph 17.48)
37. If a council places an applicant outside its district, it must consider, among other matters: the accommodation’s distance from the “home” district; the significance of any disruption to the education of members of the applicant’s household; the proximity and accessibility to local services, amenities and transport; and the significance of disruption to employment. (Homelessness (Suitability of Accommodation) Order 2012 and Homelessness Code of Guidance, paragraphs 17.49 & 17.50)
38. The Council’s letter to Mrs B on 22 May 2018 said if Mrs B applied as homeless and the Council found she was homeless, the Council would provide temporary accommodation which ‘may be out of the area, for example, Bognor, Hove, Gatwick, Kent or Crawley.’ A Council email to Mrs B’s representative on 11 June 2018 said emergency accommodation ‘will be in Kent’ because the Council had nothing large enough for the family in its area, as its letter of 22 May had advised. Although that email was not the Council’s stage two response, I consider the key point here is that it said the accommodation ‘will be’ in Kent.
39. As none of those areas is in, or adjoining the Council’s district, I asked the Council about the location of accommodation. The Council states: its comments were based on the situation at that particular time; decisions about temporary accommodation are often based on availability on the day; it aims to place applicants in or as near its area as possible; and when it places applicants elsewhere it aims to move them back into its area as soon as possible.
40. The Council described initiatives to have more homelessness accommodation, mostly in its area. When the Council replied to me, it had 96 households in interim and temporary accommodation. Sixty-five were in the Council’s area. All but one of the others was in adjoining or almost-adjoining areas.
41. I note that most homelessness accommodation seems to be in or near the Council’s area, not in the areas the Council mentioned on 22 May and 11 June 2018. I am also mindful the Council would have had to consider the suitability of accommodation, including its location and the possible impact on Mrs B’s children’s education. So, had the family sought interim or temporary accommodation, it is not clear, on balance, that the Council would necessarily have placed them as far outside its area as it had said. So, overall, I do not find a failure to try to have reasonably local accommodation available.
42. However, the Council’s letter of 22 May does seem at fault for only mentioning accommodation so far away, given the Council’s position that it mostly accommodates people in or significantly nearer its area. I also consider the 11 June email was at fault for saying temporary accommodation ‘will be’ in Kent. The Council could not have known that definitively since it did not know if, or when, Mrs B might seek temporary accommodation.
43. I also note the Council’s letter of 22 May 2018 to Mrs B said that, if Mrs B made a homelessness application and it found her homeless, the Council would place the family in temporary accommodation and, ‘You and your children will be living in one room.’ The Council said it ‘will’ be one room, not, as it later claimed to us and Mrs B’s representative, that it ‘may be one room’.
44. The law says accommodation the Council provides, including temporary accommodation, must be ‘suitable’ and that, in assessing suitability, the Council must have regard to the law on statutory overcrowding. Statutory guidance says councils should at least ensure that all such accommodation is free of category 1 health and safety hazards and that any breach of the statutory overcrowding standards is likely to be a category 1 hazard. (Housing Act 1996, sections 206 and 210(1) and Homelessness Code of Guidance for Local Authorities, chapter 17)
45. One definition of statutory overcrowding is if two people of opposite sexes not living together as husband and wife must sleep in the same room (the ‘room standard’). Mrs B, her husband and two of their children each count as a ‘person’ for such calculations. So it is difficult to understand how they could all be accommodated in one room without breaching the room standard and therefore making the accommodation unsuitable.
46. The Council’s saying that, if it accepted Mrs B as homeless, she and her family ‘will be living in one room’ suggests either the Council intended to act against the law and statutory guidance or it failed properly to consider the number and sexes of the people involved before writing the letter. Either way, it was fault.

The possibility of moving Mrs B’s housing register application to Band C

47. On 22 May and 18 July 2018 the Council said if it accepted Mrs B as homeless and placed the family in temporary accommodation, Mrs B’s housing register application would move to Band C. At that time, the housing register application was in a higher band, Band B, and Mrs B was asking for Band A priority. Mrs B’s representative questioned whether the Council’s statement was accurate, as some homeless applicants can be in Band A1 or A2.
48. I agree Bands A1 and A2 apply to some homeless households that are already in temporary accommodation. However, I see no reason to believe those bands would apply to a significant proportion of homeless households. Nor should the Council have assumed in advance Mrs B would be in either category (and indeed, once she applied as homeless, she was in neither category). So I do not consider any fault here disadvantaged Mrs B significantly enough to justify me considering this point further.

Whether the Council offered interim accommodation

49. Mrs B’s representative also raised the question of interim accommodation. In the circumstances described in paragraph 10, the Council must provide interim accommodation while it owes the relief duty and while it is considering a homelessness application, if the applicant wants this.
50. In May 2018 Mrs B had asked for interim accommodation. As I have explained above, the Council wrongly did not treat that as a homelessness application. So it did not offer interim accommodation. I note the Council’s letter of 22 May 2018 said the Council would provide accommodation if Mrs B was homeless. However, the Council was treating that as a hypothetical situation because it had missed the point that Mrs B was already applying as homeless. The Council also refers to its PHP in July 2018 as showing it offered interim accommodation. However that was two months after Mrs B’s approach in May 2018.
51. In May 2018, as the Council (wrongly) was not treating Mrs B’s approach as a homelessness application, on balance I consider it unlikely the Council properly considered then whether its homelessness duties, including the interim accommodation duty, applied. That was fault.
52. When the Council met Mrs B on 18 July 2018, it decided Mrs B was homeless and it owed her the relief duty. So the interim accommodation duty still applied. The PHP the Council agreed with Mrs B that day states, ‘I can offer you temporary accommodation [‘interim accommodation’ would be more accurate] if you need it and you will be placed in Band C on the housing register if you go into temporary accommodation.’ The Council says this shows it had told Mrs B it could offer interim accommodation and she had decided against this because she preferred to keep her higher housing register priority (which related to statutory overcrowding) by remaining in her property. On balance, I consider the evidence suggests the Council raised the possibility of interim accommodation in July 2018. So I do not consider there was fault in the sense of not mentioning this at all.
53. However, as I have explained above, I have concerns the Council gave Mrs B the impression that interim or temporary accommodation would be a long way away and even more crowded than her current accommodation. Those points were not necessarily accurate or in line with the Council’s legal duties. So I consider Mrs B did not have full and accurate enough information to make a properly informed choice about whether to seek interim accommodation. That was fault.

Changes to the banding of Mrs B’s housing register application

54. I shall also deal with this point as the information I have seen suggests some cause for concern. On 8 June 2018, Mrs B’s representative asked the Council to review Mrs B’s priority on the housing register. The representative suggested Band A8 (where statutory overcrowding exists) could be warranted. I see no evidence the Council acted on that at the time. That was fault.
55. On 17 July 2018, the Council had received another reassessment request from Mrs B, who again cited overcrowding in her home and sought Band A. By 19 July 2018, the Council considered some medical information and decided not to increase Mrs B’s banding.
56. At the end of July, the Council decided that decision was wrong because it had not looked at all the information about overcrowding. I agree the Council was at fault here. The Council decided Mrs B’s property was statutorily overcrowded so gave her Band A8 priority on the housing register, backdated to 21 May 2018.
57. Even before the Council’s faults in June and mid-July 2018, Mrs B had clearly told the Council her property was overcrowded in April and May 2019. That her contact was with the homelessness section rather than the housing register section makes no difference. The Ombudsman investigates the actions of the Council as a whole. There is a reasonable expectation the homelessness and housing register sections will share relevant information.
58. Overall, I consider that had the Council properly reacted to what Mrs B was saying, on balance it is likely it would have got any necessary further details and been able to decide statutory overcrowding existed soon after she contacted the Council in mid-April 2018.

How the Council’s faults affected Mrs B

59. If the Council’s faults had not happened, the Council would probably have accepted it owed Mrs B the relief duty at least two months earlier than it did and would have given Mrs B Band A priority on the housing register by late April or early May 2018. So it is possible Mrs B might have been offered a property sooner, depending on what she and other people might have bid for.
60. However, I am mindful that the Council is not an especially large authority and family-sized social housing is scarce, even for people with high priority. I am also mindful that Mrs B might have considered other offered properties better or worse in terms of location, condition and so on, than the property she got. Such points are necessarily uncertain. I consider that uncertainty, and Mrs B’s missed opportunity to be able to bid with higher priority sooner, are injustices resulting from the Council’s faults.
61. Had the Council treated Mrs B as homeless sooner and avoided giving the impression any interim accommodation would be just one room a long distance away, Mrs B would have been able to make an informed decision about whether to ask for interim accommodation or to remain in her property and keep higher priority for rehousing.
62. I understand Mrs B did not want to remain in overcrowded accommodation any longer than necessary. On the other hand, Mrs B had pressed for Band A priority. She might reasonably not have wanted to give that up as she would probably be rehoused quicker from Band A than if she was in Band C. I do not consider I shall be able to reach a clear enough view, on balance, about what would have happened. Again, the injustice here is lost opportunity and uncertainty.

Agreed action

63. At my recommendation, the Council has agreed to:
1. Apologise to Mrs B for the injustice caused by the faults I have identified.
• Pay Mrs B £250 to recognise that injustice.
• Review what happened here and make any necessary changes to procedures or staff training to minimise the chances of the identified faults recurring. The review should include: recognising when the duties to make homelessness enquiries and to offer interim accommodation apply; information the Council provides about the location and size of homelessness accommodation; and dealing with requests for banding reassessment. The Council should also ensure it avoids the impression of ‘gatekeeping’ (failing to take a homelessness application at the earliest opportunity or discouraging people from applying as homeless or asking for interim or temporary accommodation).
64. The Council should complete points a) and b) within one month of today. It should complete point c) within three months of today.

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Final decision

65. I have completed my investigation because the Council’s agreement to my recommendations will put right the injustice its fault caused, as far as possible.

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Parts of the complaint that I did not investigate

66. I have not investigated whether Mrs B’s representative followed the Council’s complaints procedure properly. That does not seem central to the substantive points about whether the Council acted correctly in its decisions and advice about Mrs B’s housing situation.

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Investigator's decision on behalf of the Ombudsman