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London Borough of Waltham Forest (18 006 503)

Category : Housing > Homelessness

Decision : Upheld

Decision date : 31 May 2019

The Ombudsman's final decision:

Summary: Mr B complained about how the Council handled his homelessness. There was some fault by the Council, including delay dealing with the situation and providing accommodation unsuited to Mr B’s needs as a wheelchair user. That caused Mr B injustice, including living in unsuitable accommodation for four months. The Council agreed our recommendations to apologise, pay Mr B £2,150 and review what happened here.

The complaint

  1. The complainant, whom I shall refer to as Mr B, complained the Council failed to deal properly with his homelessness and with his application to the Council’s housing register. Mr B said this meant he stayed in hospital longer than necessary and then had to live in inadequate temporary accommodation.

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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. 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 information Mr B provided. I made written enquiries of the Council and considered its response. I also considered the relevant law and statutory guidance. I shared my draft decision with Mr B and the Council and considered their comments on it.
  2. Mr B complained to the Ombudsman before completing the Council’s complaints procedure. We exercised the Ombudsman’s discretion under section 26(5) of the Local Government Act 1974 to investigate the complaint because of the apparent urgency of Mr B’s housing circumstances when he contacted us.

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What I found

  1. Mr B experienced a spinal cord injury after which he was in hospital for some months and has to use a wheelchair permanently.

Mr B’s homelessness

Mr B’s contact with the Council in May 2018

  1. If a council has ‘reason to believe’ that a person applying to the authority 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) So the threshold for a council to make enquiries is quite low.
  2. On 24 May 2018, Mr B contacted the Council via its online ‘WF Direct’ service. He said: he was currently in hospital with a spinal cord injury; an occupational therapist had said his (privately rented) home was not suitable to return to; so he would be homeless on his discharge from hospital (expected on 20 June).
  3. I consider the information Mr B provided gave the Council ‘reason to believe’ he ‘may be’ homeless or threatened with homelessness so triggered the Council’s duty to make homelessness enquiries.
  4. The evidence suggests the Council received this communication but did not forward it to the relevant manager till over three weeks later, on 18 June 2018. That delay, which meant the Council made no homelessness enquiries during that time, was fault.

12 June 2018

  1. Meanwhile, having had no response to the information he sent on 24 May, Mr B states he telephoned the Council and was told he had to come to the office in person if he wanted homelessness assistance. During my investigation, the Council apologised ‘if’ it did not tell Mr B an officer could visit him in hospital to take a homelessness application. Mr B reports he was not offered a hospital visit.
  2. On 12 June 2018 Mr B came from the hospital to the Council’s offices. Due to his disability, two hospital staff accompanied him and the hospital provided transport. Mr B waited around five hours to be seen at the Council’s office.
  3. Had the Council reacted properly to Mr B’s contact in May 2018, Mr B would not still have been trying to get the Council to start acting on his homelessness matter in June 2018. I have not had notes or recordings of any relevant telephone call. However, it is understandable Mr B wanted to progress the matter so, on balance, I am satisfied he telephoned the Council.
  4. Given the severity of Mr B’s condition then and how difficult he would have found attending the Council offices, I am satisfied, on the balance of probabilities, that if the Council had offered a hospital visit, Mr B would have accepted. So, on balance, I find the Council did not offer a hospital visit. That was fault.

The Council accepting the relief duty

  1. On 12 June 2018, the Council took details from Mr B and started making homelessness enquiries. Councils must take reasonable steps to secure accommodation for any eligible homeless person. This is the ‘relief duty’ and last up to 56 days. (Housing Act 1996, section 189B) Being ‘eligible’ mainly concerns immigration status. Mr B was eligible. He was also homeless as the hospital was not his home and, once ready to leave hospital, his disability would prevent him returning to his previous home.
  2. The Council now accepts it had enough information to decide it owed Mr B the relief duty on 12 June 2018. Instead, it did not decide this until 22 June and did not write to Mr B telling him it had accepted the relief duty until 31 July.
  3. The delays making the decision and in telling Mr B were fault. Those faults compounded the earlier fault of not acting properly on Mr B’s contact in May.
  4. I also note the Council told Mr B by email on 27 July that it had accepted the ‘prevention duty’ (a separate duty councils owe some people threatened with homelessness but not yet homelessness). Mr B replied pointing out, correctly, he was already homeless. This error did not cause a significant injustice in this case. Nevertheless the Council should be clear about which of its various legal duties apply in a particular case.

Mr B’s discharge from hospital

  1. The discharge date changed to 18 July. On 17 July, with no accommodation arranged, Mr B told the Council he was concerned about what was happening. On 25 July, the hospital told the Council that if an alternative was not arranged by the next day, the hospital would need to bring Mr B to the Council’s office for accommodation on 1 August as his hospital rehabilitation was complete.
  2. So Mr B remained in hospital past the planned discharge date seemingly because the Council had not provided interim accommodation or ensured Mr B had other accommodation. This was despite the Council having accepted the homelessness relief duty well before the discharge date and believing Mr B was in priority need so entitled to interim accommodation. That was fault.
  3. I note the Council gave Mr B high priority for sheltered accommodation on 18 July. However, that was already Mr B’s discharge date, granting priority did not mean any sheltered housing was actually available then and the Council did not write to Mr B explaining the decision about sheltered housing till 26 July. So this does not mitigate the fault of reaching 18 July without the Council offering anything.
  4. The Council might argue that for some of the time around 18 July 2018 it was waiting to hear if a charity could provide short-term accommodation (see paragraphs 34-35 below). However, that is not in itself an excuse for the Council taking so long. Also, had the Council reacted properly to Mr B’s contact on 24 May, it could have resolved that point before 18 July.

Interim and temporary accommodation not being wheelchair-accessible

  1. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant. This duty applies to interim accommodation and accommodation provided under the main homelessness duty. (Housing Act 1996, section 206 and Homelessness Code of Guidance, paragraph 17.2)
  2. On 27 July 2018, Mr B reminded the Council he would need wheelchair-accessible accommodation. On 2 August, he left hospital and came to the Council’s offices. Given how long the Council had known about Mr B’s homelessness and his disability, it could reasonably have arranged for Mr B to deal with any necessary in hospital then go straight from hospital to the accommodation. He should not have had to attend the Council offices (with hospital staff helping him) and wait to be seen. That was obviously more difficult for Mr B due to his disability. I consider the Council was at fault here.
  3. The Council provided Property X, a flat. Property X was interim accommodation from 2 to 29 August, when it became temporary accommodation as the Council had accepted the main housing duty to Mr B.
  4. Mr B immediately raised concerns about Property X’s suitability for him. On 7 August the Council accepted Property X was not suitable for Mr B’s needs as wheelchair user. It said it would seek to move him to alternative accommodation.
  5. The problems included: Mr B’s difficulty accessing the building due to a step and spring-loaded door at the main entrance; the bathroom was too small for Mr B’s wheelchair so Mr B could not meet his toileting or washing needs properly; he had difficulty doing his laundry; he had difficulty cooking as he could not properly reach the cooker; and there was no space for items Mr B needed to get (a commode, a standing frame and a motorised wheelchair). Mr B also describes difficulty cooking as he could not properly reach the cooker.
  6. Mr B lived at Property X for four months then moved into permanent social housing in December 2018.
  7. The Council says it put Mr B in Property X because there is an ‘acute shortage’ of properties suitable for wheelchairs and Property X at least had level access although not other facilities Mr B needed. The Council states: it gets interim and temporary accommodation from a number of private-sector landlords; it checks which properties are becoming available daily; it pays extra for adapted properties but they rarely become available; no wheelchair-accessible accommodation became available in the seven weeks before it placed Mr B in Property X; and after giving Mr B Property X, the Council checked daily what other properties were becoming available but found nowhere more suitable.
  8. I appreciate there is difficulty with housing supply. The Council need not just look at what it available from landlords it already deals with. Anyway, the Council’s legal duty was to give Mr B suitable interim and temporary accommodation, not just to try to do so. ‘Suitable’ accommodation need not be ideal but for someone who uses a wheelchair, accommodation must be wheelchair accessible to be suitable. The Council did not provide suitable accommodation.
  9. The law allows us to find fault if there was a ‘failure in a service which it was the authority’s function to provide’. (Local Government Act 1974, section 26(1)(c)) So I consider the Council was at fault for not providing suitable accommodation.
  10. In July 2018, the Council gave Mr B priority for sheltered housing, which it considered might lead to Mr B getting long-term wheelchair-accessible housing. In mid-August 2018, Mr B decided against pursuing that option because his teenage son (who had stayed with him three nights a week before Mr B’s spinal injury) could not stay overnight at sheltered housing.
  11. I do not criticize the Council for suggesting this option. However, Mr B’s decision against sheltered housing was understandable in the circumstances. Therefore Mr B still needed interim and, later, temporary accommodation while awaiting long-term housing. So I do not consider suggesting sheltered housing mitigates the Council’s failure to provide suitable interim or temporary accommodation.

The possibility of short-term accommodation elsewhere

  1. Meanwhile, in June 2018 the Council and Mr B had agreed Mr B would look into the possibility of a charity providing wheelchair-accessible short-term accommodation. I do not have full details of what happened but evidently the charity said it might accommodate Mr B (but probably not in London) for six months or more as long as the Council would not reduce or remove Mr B’s priority for social housing. The Council said it could not give the guarantees the charity wanted. I infer this was probably because the charity would have given Mr B an assured shorthold tenancy and the Council might have stopped treating Mr B as homeless if he had such a tenancy.
  2. It is not quite clear what happened on this matter. However, the important underlying point is that it was the Council’s responsibility, no-one else’s, to give Mr B suitable interim and temporary accommodation. I consider I already have enough evidence of fault on that point. In the circumstances, it would be disproportionate to pursue further the question of whether there was fault by the Council causing Mr B significant injustice in terms of the possible alternative accommodation.

The Council ending the relief duty and accepting the main housing duty

  1. If the applicant is still homeless 56 days after the Council accepted the relief duty, that duty ends and the Council must tell the applicant in writing. (Housing Act 1996, section 189B) The Council should then decide if it owes the applicant any further homelessness duty. Here, the 56 days ended on 17 August 2018. The Council did not write to Mr B ending the relief duty until 29 August. That delay was fault.
  2. The Council’s letter of 29 August said the relief duty had ended and the Council had decided it owed Mr B the main homelessness duty, which meant it had to secure privately rented or social housing for him. The letter said meanwhile the Council was providing Property X and gave Mr B the right to seek a review of the property’s suitability.
  3. Mr B did not seek a suitability review. However, as explained above, on 7 August the Council had already in effect accepted Property X was not suitable and told Mr B it was seeking an alternative. So understandably Mr B saw no need to seek a suitability review. Property X’s unsuitability was already established.

How the Council’s faults affected Mr B

  1. I have considered how the faults identified above affected Mr B.
  2. Had the Council reacted promptly to Mr B’s contact on 24 May 2018, it would have treated this as a potential homelessness matter then. It would then probably have accepted the relief duty in early June 2018 rather than three weeks later. It follows that later events, including ending the relief duty, accepting the main housing duty and finding temporary accommodation, would probably also have happened around three weeks earlier.
  3. So Mr B would probably not have had to remain in hospital past his discharge date, would have spent less time and trouble pursuing matters between June and August 2018 (including coming to the Council’s offices in person on 12 June) and would have experienced less uncertainty. Those lost opportunities are all injustices resulting from the Council’s fault.
  4. Having to visit the Council’s offices on 12 June caused Mr B significant inconvenience and discomfort as he was not yet ready for hospital discharge and had a serious physical disability that obviously made travelling to and from, and spending time at, the Council’s offices difficult.
  5. The delays accepting the relief duty and telling Mr B this caused Mr B seven weeks’ avoidable uncertainty. The 12 days the Council delayed telling Mr B it had ended the relief duty caused further avoidable uncertainty.
  6. The Council’s failure to resolve Mr B’s accommodation needs before the hospital discharge date meant Mr B spent two weeks longer than necessary in hospital. That was inconvenient and frustrating.
  7. When Mr B left hospital, he had to attend the Council’s offices in person and wait to be seen on 2 August 2018. That caused avoidable inconvenience.
  8. The Council’s failure to provide accommodation suitable for Mr B as a wheelchair user meant Mr B spent four months in unsuitable accommodation. This caused Mr B significant inconvenience, as he has described. In particular, his inability to get into the bathroom meant he had to empty urine down the kitchen sink and had to empty his bowel manually while lying on the bed. That caused significant avoidable indignity. As Property X only had one main room, Mr B understandably felt unable to have his son visit him due to the lack of privacy for Mr B’s toileting arrangements.
  9. Having to spend four months in Property X was a significant injustice. I can understand Mr B’s view that living in Property X set back his rehabilitation.

The Council’s treatment of Mr B’s housing register application

Mr B’s attempt to apply online for social housing

  1. Within certain legal limits, the Council can decide whom to allocate social housing. The Council has decided that people who have not lived in its area for a certain period are not normally eligible for social housing in its area. The Council is entitled to take that approach. However, the law says that, where the Council decides someone is not a ‘qualifying person’ for social housing, the person has the right to request a review of that decision. (Housing Act 1996, section 166A(9)(c))
  2. In May 2018, Mr B tried to apply online to the Council’s housing allocations scheme. He reports that, after he answered a question showing he had not lived in the Council’s area long enough to be a ‘qualifying person,’ the online system would not let him proceed and did not tell him he could request a review of the decision. In the event, Mr B knew about his review right and requested a review.
  3. The Council appears to be at fault for not telling online applicants of their review rights at the point where its online system does not let them proceed. Applicants should not have to research this information elsewhere. There was no significant injustice to Mr B but the Council could usefully ensure this information is available.
  4. On 27 June 2018, Mr B asked the Council to review its decision. I have not seen a formal review decision but, from the context, it appears this was overtaken by events:
    • In mid-July 2018, the Council decided to allow Mr B to bid for sheltered housing on its housing register.
    • In late August 2018, the Council decided it owed Mr B the main housing duty. That automatically put him on the housing register.
  5. It might have been helpful had the Council explained what was happening to the review request in the context of those events. However, the key points here are that Mr B wanted to be on the Council’s housing register and he was later accepted onto that register.
  6. As I have explained above, the homelessness decision could reasonably have happened several weeks sooner. I am mindful of the shortage of long-term social housing that is suitable for wheelchair users. So, even if Mr B had been on the housing register and eligible for all property types (not just sheltered housing) several weeks sooner, I do not consider it likely, on balance, that he would have been offered suitable long-term accommodation sooner. Therefore I shall not pursue this point any further.

The option of sheltered housing

  1. The Council suggested Mr B consider sheltered housing because it would give him a greater possibility of getting a wheelchair-accessible property compared with non-sheltered housing. In mid-July 2018 the Council gave Mr B priority for sheltered housing. In mid-August, Mr B said he did not now want sheltered housing as he now realised his teenage son (who had stayed with Mr B for three nights a week at Mr B’s previous home) would not be able to stay overnight there. Mr B is unhappy about the information the Council gave him about this matter.
  2. In the circumstances, there was no fault in the Council proposing the option of sheltered housing. It is also understandable that Mr B declined that possibility once he realised his son could not stay over.
  3. Even had time not been spent considering sheltered housing, Mr B would not yet have had the priority that homeless people have for non-sheltered social housing. This is because during the relevant time the Council’s relief duty had not expired. Therefore I consider it unlikely Mr B would have obtained longer-term social housing in that period. As the Council’s handling of the sheltered housing matter does not seem to have disadvantaged Mr B significantly in practical terms, I shall not pursue it further.

Other points

  1. During my investigation, Mr B expressed concern about the Council’s handling of his request to add his son to his housing application and about a property the Council intended to offer him. Those were both new events that happened after my investigation started. So I did not consider it appropriate to expand my investigation to cover them.

Agreed action

  1. At my recommendation, the Council has agreed to:
      1. Apologise to Mr B for the injustice caused by the faults I have identified.
      2. Pay Mr B £2,150. This comprises:
            1. £1,400 for the injustice related to the unsuitable accommodation. The Ombudsman’s guidance on remedies suggests £150 to £350 a month for unsuitable accommodation. I consider Mr B’s circumstances merit the upper end of that range. £350 a month for four months is £1,400.
            2. £750 to recognise Mr B’s avoidable lost opportunity, inconvenience, discomfort, uncertainty and time and trouble that I have identified resulted from the Council’s faults.
      3. Review what happened here regarding each of the faults I have identified and make any necessary changes to procedures or staff training to minimise the chances of the identified faults recurring.
  2. 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

  1. I have completed my investigation as the Council’s agreement to my recommendations above is a satisfactory remedy for the injustice the Council’s faults caused.

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Investigator's decision on behalf of the Ombudsman

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