London Borough of Haringey (18 009 453)

Category : Housing > Homelessness

Decision : Upheld

Decision date : 09 Jul 2019

The Ombudsman's final decision:

Summary: The Council failed to help Mr X and Ms Y when their landlord asked them to leave their rented property. The Council used the wrong legislation when considering the case despite acknowledging this was wrong in earlier responses to their complaints. Mr X and Ms Y were caused distress and uncertainty as a result of the Council’s actions. The Council should provide them with assistance and pay them £1800 to recognise the impact the fault had on them.

The complaint

  1. Mr X and Ms Y complain the Council failed to assist them with their housing when they were living in accommodation without heating or hot water and were being evicted. They say the Council failed to protect their personal belongings when they were evicted and placed them in unsuitable accommodation. They also complain the Council took too long to reach a decision about what duty it owed to them and gave conflicting advice about what legislation it was applying in their case.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. 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. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have spoken to Ms Y about the complaint and considered the information she and Mr X have provided to the Ombudsman. I have also considered the Council’s response to my enquiries. This includes:
    • The Council’s comments on the complaint.
    • Records of contact with Mr X and Ms Y.
    • Records of contact with Mr X and Ms Y’s landlord.
  2. I have written to Mr X, Ms Y and the Council with my draft decision and given them an opportunity to comment.

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What I found

Housing Act 1996 pre 3 April 2018

  1. When a person applies to a council for accommodation prior to 3 April 2018 and it had reason to believe they may be homeless or threatened with homelessness, a number of duties arose, including:
    • to make enquiries;
    • to secure suitable accommodation for certain applicants pending the outcome of the enquiries;
    • to notify the applicant of the decision in writing and the right to request a review of the decision.
  2. Someone is threatened with homelessness if, when asking for assistance from the Council before 3 April 2018, he or she is likely to become homeless within 28 days. (Housing Act 1996, section 175(4))
  3. If a council thought someone was homeless and in priority need, it must, if the person asked for it, provide emergency accommodation until it had finished assessing the homelessness application.  Examples of priority need are:
    • people with dependant children;
    • pregnant women;
    • people with serious health problems;
    • some elderly people.
  4. A council would apply four tests to decide what, if any, duty it owed to a homeless applicant.
  5. Councils would make inquiries to find out if the applicant was:
    • eligible for assistance;
    • homeless or threatened with homelessness;
    • in priority need (e.g. is vulnerable, has dependent children etc.);
    • not intentionally homeless.
  6. If a council is satisfied someone is eligible, homeless, in priority need and unintentionally homeless it will owe them the main homelessness duty. Generally 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)

Housing Act 1996 post 3 April 2018

  1. The Housing Act 1996 was amended by the Homelessness Prevention Act 2017. This came into force on 3 April 2018.
  2. Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. The Code of Guidance says, rather than advise the applicant to return when homelessness is more imminent, the housing authority may wish to accept a prevention duty and begin to take reasonable steps to prevent homelessness. Councils must notify the applicant of the assessment. Councils should work with applicants to identify practical and reasonable steps for the council and the applicant to take to help the applicant keep or secure suitable accommodation. These steps should be tailored to the household, and follow from the findings of the assessment, and must be provided to the applicant in writing as their personalised housing plan. (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.18)
  3. Councils must take reasonable steps to secure accommodation for any eligible homeless person. When a council decides this duty has come to an end, it must notify the applicant in writing. The duty can be ended if the Council secures suitable accommodation for the person or household. (Housing Act 1996, section 189B)
  4. A council must still secure interim accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need. (Housing Act 1996, section 188)
  5. Councils must also consider whether a homeless person or household is homeless, eligible, in priority need and unintentionally homeless whilst it takes reasonable steps to secure accommodation. Statutory guidance says it a council decides to accept a full duty it should not make a decision until its duty to help secure accommodation under section 189B of the 1996 Housing Act has ended. This is 56 days from the date a household became homeless.

Right to request a review

  1. The 1996 Housing Act gives homeless applicants rights to request a review of various decisions made by councils on their case. If a person is unhappy with the outcome of the review decision they may appeal to County Court on a point of law.

What happened

  1. Mr X and Ms Y were renting a property from a private landlord. They have two young children.
  2. In February 2018 Mr X went to the Council’s offices with a notice from his landlord requiring him to leave the rented property by 28 February 2018. The Council’s notes say the “whole eviction process” was explained to Mr X and he was told what documents the Council needed. Mr X signed paperwork to allow the Council to make enquiries regarding his circumstances.
  3. Mr X and Ms Y said they tried to contact the officer by phone and e-mail following the interview but received no response. The Council says the officer concerned was absent from work for a significant period of time and it has been unable to access their e-mail inbox.
  4. On 3 April 2018 the law changed regarding what assistance local councils should provide to homeless households.
  5. Mr X e-mailed the Council on 21 April 2018 providing information about the tenancy and asking the Council what happened next.
  6. Ms Y e-mailed the Council on 15 May 2018 saying the couple had met an officer at the Council’s offices the previous week. There is no record of this meeting on the Council’s records. Ms Y said “we have been trying to contact you as the landlord gives us a very hard time and we don’t know what can we do”.
  7. Ms Y e-mailed the Council again on 19 June 2018 to say the family were being evicted from the property. She said the family were being evicted on 28 June and asked what steps she should take. In a separate e-mail Ms Y attached a copy of a warrant of eviction from the court.
  8. Shelter e-mailed the Council on 20 June 2018 asking the Council to provide the family with assistance. The Council replied on 22 June 2018 and said it had closed the case due to “no contact” but had arranged an appointment for the family on 26 June 2018. In a later e-mail the Council advised Shelter that the family would be given advice on emergency accommodation, storage and housing options.
  9. On 27 June 2018 Mr X and Ms Y went to the Council’s offices because they were being evicted from their property on the following day by court appointed bailiffs. Mr X and Ms Y told the Council they were being evicted because they had complained about a broken boiler. The Council spoke to the landlord who said the couple owed £4000 in rent arrears. The Council offered to pay off the arrears if the landlord offered the couple a 24 month tenancy but the landlord refused to accept this.
  10. Mr X and Ms Y complained to the Council on 13 August 2018. They said the Council had failed to help them when they approached for assistance in February 2018 and they had not received a personal housing plan. They said they were living in one room in a “hostel” and were sharing bathroom and kitchen facilities with other families which was affecting the health of one of their children. They said they had requested help form the Council with storage of their personal possessions on several occasions but had received no reply.
  11. The Council replied to Mr X and Ms Y’s complaint on 14 August 2018. The Council said:
    • It was dealing with their case as a “legacy case” because they had asked for assistance before 3 April 2018 under old legislation.
    • It was likely to find the family had made themselves “intentionally homeless” for failing to pay the rent on their home and a final decision was due to be issued “imminently”.
    • It had done all it could to prevent the family from becoming homeless and could not provide storage for their belongings as they had already arranged this themselves.
    • It “uses hostel accommodation wherever possible” and on the basis of the information provided it was suitable for the family.
  12. The Council made further enquiries and on 16 August 2018 recorded that there were discrepancies in the landlord’s records as housing benefit payments were not showing. The Council found there were no rent arrears at all. The officer’s notes says “I do not recommend [a decision the family has become intentionally homeless] as there is a clear mistake made by [the landlord] and it appears the clients do not owe [any] rent at all”.
  13. The Council replied to Mr X and Ms Y’s complaint at stage 2 of it’s complaints process on 28 August 2018. The Council said:
    • The Council was aiming to issue a decision under the pre-April 2018 legislation within the next two weeks.
    • The Council had been unable to access an officer’s e-mail inbox to see if there were e-mails from Mr X and Ms Y between February and June 2018.
    • The Council was unable to investigate their complaint about a failure to properly record evidence regarding payment of rent to their former landlord because the officer concerned had left the Council.
  14. On 3 September 2018 Mr X and Ms Y went to the Council’s offices to meet their new caseworker. The Council went through the landlord’s rent statements with the couple. The Council advised Mr X and Ms Y that it could arrange storage of their personal possessions, but they would need to move their belongings out of the current storage facility as the Council’s contractor would not collect from another storage facility.
  15. On 7 September 2019 Mr X and Ms Y e-mailed the Council to say they were having difficulties finding somewhere temporary to place their belongings in order to allow the Council’s contractor to collect them.
  16. The Council arranged for Mr X and Ms Y to view a private rented flat on 13 September 2018. The Council wrote to Mr X and Ms Y on the same day to day the accommodation was being offered under section 193A(4) of the 1996 Housing Act. The Council said the tenancy would be for a fixed term of 24 months.
  17. Mr X and Ms Y e-mailed the Council on the following day to say the flat was in poor state of repair. Mr X and Ms Y said:
    • The flat was above a kebab shop and the ventilation from the shop ran through the flat resulting in constant noise and vibration.
    • The property was mouldy and dirty.
    • There were holes in the wall and pain was coming off the walls.
  18. The Council replied to Mr X and Ms Y’s e-mail and said it was “not uncommon to find mould and some small cosmetic repair issues in London”. The Council said the accommodation was being offered under section 189(b) of the 1996 Housing Act. It said Mr X and Ms Y could request a review of the suitability of the accommodation but if they refused the Council would end its duty. The Council said the couple could accept the offer and still request a review.
  19. The Council sent a Personal Housing Plan to Mr X and Ms Y on 14 September 2018. The Personal Housing Plan said Mr X and Ms Y should look for private rented housing.
  20. Mr X and Ms Y advised the Council they wanted time to get legal advice about their options. However, the Council said they had to accept the offer that day or the Council may end it’s duty to house them.
  21. Mr X and Ms Y accepted an offer of a private rented tenancy from the Council and their tenancy started on 1 October 2018.
  22. Mr X and Ms Y requested a review of the Council’s decision that it had discharged its duty on 24 October 2018. The Council accepted the review request.
  23. The Council wrote to the family on 2 July 2019 with a decision on their review request. The Council said the “property was ostensibly of a good standard at the time that the final offer of accommodation was made. The Council was satisfied that the accommodation met all the required standards to discharge its aforementioned duty on the basis of it being a suitable offer of accommodation in the private rented sector”. The Council went on to say that Mr X and Ms Y had raised a number of issues regarding the property which had required investigations by its planning and environmental health teams.
  24. The Council said those investigations were not complete and will “take a considerable time to conclude”. The Council said it “would be unreasonable to expect [Mr X and Ms Y] to wait any longer for a full report of the findings of other Council departments involved in the case and for a view then to be formed”. The Council said it accepted the accommodation was unsuitable and it would arrange “alternative accommodation in the private rented sector… as soon as a suitable property becomes available”.
  25. The Council has accepted it should have dealt with the case under legislation in force before 3 April 2018. The Council also accepts that the case has not been properly progressed and that there were errors in some letters sent to Mr X and Ms Y and delays in providing assistance as a result of officer absence and turnover of staff. However, the Council says the family suffered “no detriment” and there “would not have been a different outcome had [the Council] managed it better”.

My findings

  1. The Council failed to provide Mr X and Ms Y any assistance regarding their housing situation when they asked for help between February 2018 and June 2018. Mr X and Ms Y have provided evidence that they were contacting the Council during this period and even attended its offices at one point. However, the Council has no record of these e-mails or the family’s visit to its offices. This is fault.
  2. In February 2018 Mr X and Ms Y provided the Council with a notice seeking possession from their landlord giving them notice to leave by 28 February 2018. Their landlord was unwilling to let them continue living in the property and was determined to evict them. The Council should have accepted a homeless application from the family at that point. Failure to do so was fault.
  3. Guidance in force at the time and further guidance issued by the secretary of state said it was not reasonable to expect people to remain in accommodation until a court order was granted. The only exception to this would be where a landlord may be willing to withdraw a notice or where the notice could be defended in court. Neither of these scenarios applied to Mr X and Ms Y. Therefore, it is likely the Council would have offered the family interim accommodation on or around the end of February 2018.
  4. Statutory guidance in force at the time Mr X and Ms Y approached the Council for help said councils should be able to reach a decision on what duty was owed to a household within 33 working days. It said in most cases it should be possible to complete enquiries sooner than this. There were issues with information provided by Mr X and Ms Y’s former landlord and the Council would have had to take time to consider this. However, it seems likely the family would have received a decision by the end of March 2018 at the latest if there had been no fault by the Council.
  5. The Council’s enquiries found the landlord had provided inconsistent information about Mr X and Ms Y’s rent account. The Council’s notes indicate that it is likely there were no arrears based on information about housing benefit payments which had been omitted by the landlord and evidence from Mr X and Mr Y’s bank accounts. Therefore, it seems likely the Council would have accepted a full housing duty to Mr X and Ms Y by the end of March 2018 if the Council had acted without fault.
  6. As a result of the Council’s failure to properly deal with Mr X and Ms Y the family were forced to deal with stressful court proceedings as well and the prospect of being street homeless. The family also faced a significant period of uncertainty once they were placed in accommodation by the Council as they were given conflicting information about what legislation the Council was providing assistance under.
  7. The Council discharged it’s duty to Mr X and Ms Y under legislation in force after 3 April 2018. This is fault. The Council gave the family reassurances they were being dealt with as a “legacy” case and as set out above the family should have been provided with assistance before 3 April 2018.
  8. If the Council had accepted a full housing duty to Mr X and Ms Y when it should have, it would still have been able to end this with an offer of private rented accommodation. However, the Council could only do so by sending a proper notification. The notification letter the Council served in September 2018 does not include all the information the Council is required to provide to bring the full duty to an end and references the wrong part of the 1996 Housing Act. Furthermore, the Council would also have awarded Mr X and Ms Y Band B on it’s housing register once it accepted, they were unintentionally homeless. As a result, the family were caused avoidable distress by having to challenge the Council’s decision to end its duty to them. The family have also missed out on an opportunity to be on the Council’s housing register.
  9. Mr X and Ms Y requested a review of the Council’s decision in October 2018. The law says councils must issue review decisions within 8 weeks of a request for a review. In this case it took the Council 37 weeks. Whilst I understand the Council was waiting for reports about the suitability of the accommodation, it should have been clear to the Council it had discharged it’s duty under the wrong legislation given previous correspondence with Mr X and Ms Y. There is no reason why it could not have concluded it’s review within 8 weeks.
  10. The Ombudsman may not investigate a complaint where someone has a statutory right of appeal. Mr X and Ms Y can appeal to County Court if they are unhappy with the outcome of the Council’s review decision. However, in this case I do not believe it is reasonable to expect the family to go to court. This is because the Council has confirmed it was dealing with the family under legislation in force prior to April 2018 but the Council still discharged its duty as though it were dealing with the family under legislation in force after 3 April 2018. Mr X and Ms Y should not have to go to court to argue a point the Council has already conceded.
  11. The Council should also have offered to provide the family with assistance in protecting their personal possessions. However, this did not happen. This is fault. Although the Council told Shelter this would be discussed with the family there is no evidence this happened, and the family were forced to make their own arrangements. The Council is able to make reasonable charges for storage but the family were caused avoidable distress in having to arrange this themselves.

Agreed action

  1. The Council has accepted my findings and agreed to take action following my recommendations. This is to remedy the injustice caused as a result of the fault I have identified. The Council has agreed to:
    • Write to Mr X and Ms Y to confirm it accepts a full housing duty to the family under section 193 of the 1996 Housing Act.
    • Award the family Band B on the Council’s housing register backdated to 1 April 2018.
    • Ensure the family are not financially disadvantaged should they have to end their current fixed term tenancy early because of the offer of alternative private rented accommodation or social housing.
    • Arrange and pay for removals to any new accommodation.
    • Pay Mr X and Ms Y £1800 to acknowledge the distress and uncertainty caused by the faults identified.
  2. The Council should take this action within 6 weeks of my final decision.
  3. The Council should also ensure that it has processes in place for ensuring continuity of service when staff are absent from work. This should include ensuring the Council is able to access e-mails and that people are informed when their caseworkers are absent from work. The Council should advise the Ombudsman what steps it has taken to resolve this within two months of my final decision.
  4. The Council should review handling of section 202 reviews over the past 6 months to ensure decisions are being issued within statutory timescales. The Council should report back to the Ombudsman with the outcome of this review and any steps it proposes to take within two months of my final decision.

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Final decision

  1. I have completed my investigation as I have found fault causing injustice. The action I have recommended is a suitable way to remedy this.

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Investigator's decision on behalf of the Ombudsman

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