Summary: Miss Y complains the Council failed in its statutory duty to properly consider the affordability of the temporary homelessness accommodation it offered to her. Miss Y also says the Council provided misleading advice about her liability for Council Tax. The Ombudsman upholds Miss Y’s complaint. The Council will pay a total of £400 for the distress caused and undertake the procedural improvements listed at the end of this statement.

The complaint

1. The complainant, whom I will call Miss Y, complains the Council:
1. failed to determine whether the temporary accommodation it offered was suitable. In particular, the Council failed to consider the amount of Council Tax payable in respect of the accommodation. This is in breach of the statutory requirements set out in the Homelessness (Suitability of Accommodation) Order 1996 and the accompanying Code of Guidance; and
2. misrepresented the affordability of the accommodation and wrongly advised Miss Y that she was not liable to pay Council Tax. As a result of this misleading information, the Council denied Miss Y of the opportunity to seek a review of the suitability of her temporary accommodation.

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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. 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

4. During my investigation I discussed the complaint with Miss Y by email, considered any information she provided and gave her the opportunity to discuss matters with me by telephone.
5. I made third-party enquiries of the neighbouring council where Miss Y was found to be liable for Council Tax.
6. I considered information provided by the Council, including its response to Miss Y’s complaint.
7. I issued a draft decision and considered comments received from both parties before making a final decision.

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What I found

8. 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 both 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)
9. When considering the suitability of accommodation provided to homeless applicants, the Homelessness (Suitability of Accommodation) Order 1996 places a statutory requirement on all councils to, amongst other factors, take into account: “the amount of council tax payable in respect of the accommodation”

Key background facts

10. In 2017 Miss Y approached the Council for assistance with housing. The Council accepted a full homelessness duty and placed Miss Y in temporary accommodation in a neighbouring council’s area in February. I will refer to this as Miss Y’s ‘home authority’.
11. Miss Y applied to the Council for housing benefit in February 2017. The Council says it advised Miss Y she would be liable to pay Council Tax to her home authority. There is no evidence of this. Miss Y disputes that the Council ever provided this advice.
12. In July 2017 Miss Y contacted the Council regarding the location of the accommodation. She no longer had access to a car and therefore had difficulty travelling to her place of work. The Council wrote to Miss Y asking her to complete an ‘income and expenditure form’ so it could consider whether the accommodation remained affordable and suitable.
13. Miss Y responded: “I do not understand your request to know the reason why I no longer have a car and the request for an income & expenditure to be completed as these are not relevant or based on the request for a review.” The Council and Miss Y remained at an impasse because Miss Y declined to complete the form.
14. Miss Y then approached the Council in January 2018 after receiving Council Tax bills and reminder letters from her home authority for unpaid Council Tax dating back to her date of first occupation, 28 February 2017. Miss Y said the Council had not advised her that Council Tax was payable to the home authority. Instead she said the Council provided misleading information in a letter dated 24 March 2017 regarding her entitlement to Housing Benefit. The letter contained the following statement: “Your Council Tax. Your property is in Band having a weekly Council Tax liability of £0.00”
15. Miss Y complained to the Council. She said its misadvice caused her avoidable distress and lost earnings as result of having to attend Magistrates Court following a summons issued by her home authority for unpaid Council Tax. In February 2018 the Courts heard Miss Y’s case and decided that she was liable to pay Council Tax to her home authority.
16. The Council offered alternative temporary accommodation to Miss Y in March 2018. The Council says this was “due to consideration of the location of her work and her lack of access to a car”. I understand this is where Miss Y resides to date.

Complaint a)

17. Miss Y complains the Council failed in its statutory duty to properly consider whether the temporary accommodation it offered to her was affordable. The Council has provided the ‘Suitability Checklist for offers of Temporary Accommodation’ which it completed before housing Miss Y. This shows the factors considered by the Council. The section entitled ‘the affordability of the accommodation’ shows the Council considered:
• the weekly rent for the property
• whether the cost of the accommodation includes utilities
• the income of the household (benefits and employment)
• whether there is a ‘substantial shortfall’ between rent and housing benefit.
18. There is no evidence to show the Council considered the amount of Council Tax payable for the property as part of its checklist. The Council says it could not have been sure at that stage what Miss Y’s Council Tax contribution was because this was subject to an assessment by the home authority.
19. In my view, this does not take away from the Council’s statutory responsibilities. It was for the Council to satisfy itself, by making enquiries of the home authority if necessary, that the property was affordable for Miss Y. By law it had to consider the amount of Council Tax payable. The Council’s assessment was not in accordance with the statutory requirements and is fault.
20. The fault by the Council caused injustice to Miss Y in the form of uncertainty because we cannot be certain that the property was affordable and suitable for Miss Y. In response to my enquiries, the Council points out that it offered to review the affordability of the property in July 2017 when Miss Y raised concerns about the location of the accommodation and her commute to and from work.
21. I am aware that Miss Y declined to provide proof of her income and expenditure when asked to in July. This is because Miss Y made clear that her review request was due to location and not the affordability of the accommodation. The Council says that Miss Y did not raise any concerns about affordability at the time.
22. However, Miss Y did not know the extent of her Council Tax liability until November 2017 when the home authority first issued a bill. It therefore follows that Miss Y did not have reason to question the affordability of her accommodation in July 2017.
23. To remedy the uncertainty caused by fault, I asked the Council whether it would complete a retrospective review. This would confirm with certainty whether the property was suitable for Miss Y. But the Council offered the accommodation over two years ago. In order to complete a retrospective assessment now, Miss Y would need to submit proof of her income and expenditure as they were at the time. Both the Council and Miss Y question the feasibility and merit of completing a review now. I have therefore considered an alternative remedy to acknowledge the uncertainty caused by fault.
24. The Ombudsman’s ‘Guidance on Remedies’ suggests the following approach when Council fault creates uncertainty: “When it is not possible nor appropriate for remedial action to be taken (for example due to the passage of time) then we will consider asking for a payment to acknowledge the impact of the fault in terms of loss or harm. These payments usually fall into two categories: acknowledgment of a loss of non-monetary benefit (such as education or amenity); or acknowledgment of avoidable distress, harm, risk or other unfair impact of the fault. This can include uncertainty, raised expectations, lost opportunity and outrage”

“Distress’ can include uncertainty: if, even after taking a view on the balance of probabilities as to the likely outcome, there is still doubt about how the outcome might have been different”

“A remedy payment for distress is often a moderate sum of between £100 and £300. In cases where the distress was severe or prolonged, up to £1,000 may be justified. Exceptionally, we may recommend more than this”

25. In my view, and after taking into account the views of Miss Y and the Council, I consider that the Council should pay £250 to Miss Y. This is to acknowledge the uncertainty caused by its failure to properly assess the suitability of the temporary accommodation it offered. The Council has also agreed to undertake the procedural improvements listed at the end of this statement to fully remedy the injustice caused.

Complaint b)

26. As referenced earlier in this decision statement, the Council wrote to Miss Y in March 2017 confirming a nil liability for Council Tax. In response to her formal complaint, the Council confirmed the following in May 2018: “I note your concern regarding Council Tax Support and your liability for Council Tax in [home authority]. In this regard, as you have been placed outside the borough, you do not have liability for council tax with the London Borough of Bromley… I do note the confusion in respect of the letters produces and will ask the relevant team to review. I concede that the letters are misleading to customers who may be liable for Council Tax elsewhere”.
27. I agree the Council’s letter was misleading. It gave the impression that Miss Y was not liable to pay Council Tax. Miss Y says she did not receive any other letters from the Council to correct this advice and to inform her that she was liable to pay Council Tax to her home authority.
28. Approximately eight months later Miss Y received a bill from her home authority for unpaid Council Tax dating back to the start of her tenancy in February 2017. Miss Y contacted the home authority to relay that, according to the Council, she had a nil liability. The home authority summonsed Miss Y to Court where she was ordered to pay Council Tax. Miss Y says the judge remarked on the misinformation provided by the Council, but that she had no option but to find against Miss Y due to it being a “strict liability”.
29. Although Miss Y signed a tenancy agreement in February 2017 which contained a general statement confirming that she was liable for any utilities and Council Tax, the Council’s letter advising of a nil liability arrived one month later. Miss Y therefore took the advice within that letter to be correct and current. Until November 2017 Miss Y says she had no reason to believe that she had been misled, and she believed that she had no liability based on the information provided by the Council.
30. We now know the Council had intended its letter to mean that Miss Y was not liable to pay any Council Tax to the Council because she did not live in its area. But this distinction was not made clear to Miss Y at the time. The Council has agreed to review the wording of its letters.
31. As a result of the misleading advice provided, Miss Y says she suffered injustice and seeks a financial remedy for the following:
• the inadequate response from the Council following the enquiries she made regarding the Council Tax bill received from the home authority
• the stress caused by having to prepare for and attend the Court hearing; and
• having to incur debts to settle the Council Tax bill following the Court judgement
32. I agree that the misinformation provided by the Council caused Miss Y some avoidable time and trouble, as per the first and second points as listed above. This is because Miss Y had to query her liability with both councils upon receipt of the bills. I also consider that when Miss Y received such a significant bill, despite previously being told she had nil liability, this caused avoidable confusion and distress. To acknowledge this the Council will apologise and pay £150 to Miss Y.
33. However, I do not consider that the Council should provide a remedy for Miss Y’s attendance at the Court because attendance was her choice. In an email dated 16 February, the home authority advised Miss Y: “... you do not have to attend the hearing although it is your right to do so”.
34. Furthermore, Miss Y did have an opportunity to settle the bill before the case progressed to Court, although she points out that the home authority provided her with very little time to do so, and so this was not a feasible option. I can only consider the actions of Bromley Council as this is the authority which Miss Y has complained about. She may wish to consider making a complaint to the home authority if she has concerns about the way it pursued her for unpaid Council Tax and the time it allowed for her to settle the debt before proceeding to summons.

Agreed action

35. Within four weeks of my final decision, the Council has agreed to:
• apologise and pay £150 to Miss Y for the misleading information it provided about her Council Tax liability; and
• pay £250 for the uncertainty caused by the Council’s failure to consider the amount of Council Tax payable before offering temporary accommodation to Miss Y.
36. Within eight weeks of my final decision, the Council has agreed to provide evidence to the Ombudsman that it has:
• amended the relevant ‘Housing Benefit Notification’ template letter. The Council will also show the Ombudsman what Council Tax advice it provides to homeless applicants accommodated outside of its area; and
• amended its suitability checklist to ensure the Council’s considerations are in line with the statutory requirements. The amended checklist should include a prompt for the officer to consider the amount of Council Tax payable.

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Final decision

37. I have completed my investigation and upheld the complaint for the reasons explained in this statement. In my view, the above agreed actions suitably remedy the injustice caused by Council fault.

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Investigator's decision on behalf of the Ombudsman