Summary: The Ombudsman found fault by the Council on Ms L’s complaint about the way it dealt with her application to join the housing register. It failed to explore information she provided or approach health professionals. The allocation policy makes no mention of general discretion when considering a failure to meet its 10-year residency requirement. It failed to consider exercising discretion following her application and appeal submissions. The agreed action remedies the avoidable injustice caused.

The complaint

1. Mrs K, on behalf of Ms L, complains the Council wrongly:
1. Rejected her homeless application in 2013 when it decided she was intentionally homeless; and
2. Decided she did not qualify to go on its housing register as she failed to show she had lived continuously in the borough for at least 10 years as she had lived outside it for 3 months in 2013.
2. As a result, she continues to live in one room in a hostel which is affecting both her ability to form relationships and her mental health.

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What I have investigated

3. I have not investigated complaint a) for the reasons set out at the end of this draft decision.

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The Ombudsman’s role and powers

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)
5. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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)

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Council Social Housing Allocation Policy (December 2016)

8. The Localism Act 2011 gave councils new freedoms to decide who can join the housing register.
9. The Council makes 2 assessments when it receives an application to join the housing register:

• The first assessment involves the Council looking at whether the applicant is eligible for social housing. This includes looking at their immigration status, for example; and
• The second assessment involves the Council deciding whether an applicant qualifies to go on the housing register.

10. One of the qualifications states, ‘Households who have not been continuously living in the borough for at least 10 years will not qualify to join the housing register’. An applicant who can show they have lived in the borough for a minimum of 10 years up to the date of their application is evidence of their local connection.
11. There are several exceptions to this qualification which includes those who are statutorily homeless and those falling within the statutory reasonable preference groups. These groups include those who are homeless and those needing accommodation on welfare grounds.

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Statutory Guidance: social housing

12. ‘Providing social housing for local people: statutory guidance on social housing allocations for local authorities in England’ (December 2013) states, the government’s view is it is for local authorities to decide who qualifies for social housing. They should ensure they prioritise applicants who can show a close association with their local area. Social housing is a scarce resource and it is appropriate, proportionate, and in the public interest to restrict access in this way to ensure as far as possible housing is available for those on low incomes or otherwise disadvantaged who struggle to find a home on the open market. (paragraph 12)
13. Some housing authorities have included a residency requirement as part of their qualification criteria, requiring the applicant to have lived within its district for a specified period to qualify for an allocation of social housing. The Secretary of State believes including a residency requirement is appropriate and strongly encourages all housing authorities to adopt such an approach. The Secretary of State believes a reasonable period of residency would be at least 2 years. (paragraph 13)
14. Whatever qualification criteria for social housing local authorities adopt, they need to have regard to their duties under the Equality Act 2010, as well as their duties under the other relevant legislation such as section 225 of the Housing Act 2004. (paragraph 16)
15. Housing authorities should consider the need to provide exceptions from their residency requirement. (paragraph 18)

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How I considered this complaint

16. I considered all the information Mrs K, the representative of Ms L, provided, the notes I made of my telephone conversation with Mrs K, and the Council’s comments on my enquiries, a copy of which I sent her. I sent a copy of my draft decision to Mrs K and the Council. I considered the Council’s response.

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What I found

17. Ms L arrived in the UK as an unaccompanied minor, aged 16 years old. She fled her native country because of a war. She was granted asylum the same year. She received support from the Asylum Transitions Team.

2006

18. Ms L became 18 and believes the Council put her in a shared house for three years.

2010

19. The Asylum Transitions Team ended their involvement with Ms L who went on to successfully apply for UK Citizenship.

2013

20. Ms L was evicted from her home because of rent arrears and became homeless. The Council considered her homeless application but while deciding she was homeless and eligible, she had no priority. Ms L unsuccessfully challenged this decision. The appeal decision letter set out the evidence considered, including that about her vulnerability, and explained her appeal rights. The Council referred her to a hostel where she remains.
21. The Council confirmed it was unaware she suffered from mental health problems when it decided this application as she sent no evidence in support. The records show the Council was aware only she suffered from depression for which she received medication.
22. A friend allowed her to stay in their accommodation to keep her off the streets and help her recover as she was sick. Ms L suffered a mental breakdown which contributed to her losing her home. For a period of 3 months, Ms L lived in her friend’s accommodation which was outside the Council’s borough.

2015

23. Ms L was diagnosed with paranoid schizophrenia.

2018

24. In July, Ms L applied online to join the Council’s housing register. On the application form she said she left a property in 2014 because of a mental breakdown. She declared she had a disability and a mental health condition. The Council confirmed she did not send supporting documents with it.
25. The Council rejected her application because she had not lived in its borough continuously for 10 years. This was because of the 3 months she lived with her friend in 2013. She appealed this decision. Mrs K told the Council Ms L had been in priority need and was suffering from a psychosis which led to her mental breakdown in 2013. Her mental illness made her vulnerable.
26. In November, the Council rejected her appeal. It confirmed this was because she had lived out of borough from September to December 2013. The letter referred to her ‘cognitive’ difficulties.
27. In response to my enquiries, the Council explained ‘continuous’ residence would not be broken if an applicant goes on holiday for a few weeks. If an applicant moves to another borough, even for a short time, this would break their ‘continuous’ residency. It also explained the law required it to keep to its allocation policy.

Analysis

28. I found fault on this complaint. I reached this conclusion because of the following:
1. When Ms L applied to join the housing register, the form she completed alerted the Council to her disabilities and problems with her mental health. There is no evidence the Council asked her or Mrs K about them, or for details about health professionals involved, or asked her to provide medical evidence if she wanted this considering.
2. The declaration at the end of the application states she gave consent, ‘for a doctor or other health professional to give information about me (or other), as far as the law allows’. I consider the inference from this is not only did Ms L give consent for the Council to contact medical professionals for information when processing her application, but this was for the Council to do. As the Council failed to ask her for details of medical professionals involved, it could not go on and contact them for further information.
3. The form does not give an applicant the opportunity to say what documents are sent in support. Nor does it prompt an applicant about the need to send supporting documents/evidence.
4. While the allocation policy lists exceptions to the 10-year qualification requirement, it fails to say it had general discretion to consider each case on its merits even when they do not fall within the list.
5. The Council failed to consider whether it needed to exercise discretion on Ms L’s case about its qualification decision because of the information she provided both on her application form and her appeal request. Ms L told the Council she had been homeless, living on the streets, and was struggling with mental health issues at this time. A friend took her in for 3 months to help. The Council confirmed it did not consider exercising discretion because of her failure to provide supporting medical information.
6. The Council failed to act to explore information, particularly medical, she mentioned in her appeal request. Again, it could have approached Ms L and Mrs K to obtain more details about what she disclosed. At the very least, the Council could have told them about the need to send medical evidence, for example.
29. I am satisfied these failures caused Ms L avoidable injustice. The Council’s failures mean she has the uncertainty of not knowing whether the outcome on her application would have differed but for the faults identified. She also spent time and effort pursuing this complaint with the Council.

Agreed action

30. I considered our guidance on remedies.
31. The Council will, within 4 weeks of the final decision on this complaint, carry out the following:
1. Send Ms L an apology for failing to: pursue information disclosed about medical problems; explain clearly the need for her to supply medical evidence as it would not approach health professionals for it; consider exercising discretion to take account of the issues raised in her application and appeal.
2. Consider exercising discretion on her application by taking account of the medical evidence and any other evidence she sent. If, after exercising it, the Council decides to allow her to join the housing register, it will check its records to see whether she would have successfully bid for accommodation from the date she originally applied and notify both Mrs K, Ms L, and the Ombudsman of this so this injustice can be considered.
3. It is currently reviewing its allocation policy which will include considering the 10-year qualification issues and the issuing of guidance for officers about exercising discretion. The Council will inform the Ombudsman of the outcome at the end of the review process.
4. Remind officers to contact applicants about the need to provide evidence in support of applications, particularly medical evidence, and about contacting them to clarify issues raised.
5. It is also currently looking at its online systems and will make changes to allow applicants to upload documents as part of the application process. This should also consider including a document checklist they can work through before submitting their application. Again, the Council will inform the Ombudsman of the outcome at the end of this process.
6. Pay £200 to Ms L for the distress the fault caused (uncertainty, stress, inconvenience, and her frustration).

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Final decision

32. The Ombudsman found fault causing injustice on the complaint against the Council sent by Mrs K on behalf of Ms L.

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Parts of the complaint that I did not investigate

33. I did not investigate complaint a) because this was a late complaint. The decision about which Ms L complains was made 6 years ago.
34. In addition, she challenged the Council’s decision and had the right to pursue it at court if she remained dissatisfied.

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Investigator's decision on behalf of the Ombudsman