Summary: The complainant says the Council failed to properly determine her family’s homelessness application and the review of the Council’s decision. The Council accepts fault and has offered a remedy. The Ombudsman does not consider the remedy is sufficient. We have made recommendations to reflect the level of distress caused by the Council’s handling of this case. We have also recommended service improvements and that the Council complete an audit on similar cases to ascertain if the Council’s errors in process has affected other families.

The complaint

1. The complainant says the Council:

• Failed to properly assess her housing application, deciding she was ineligible for housing assistance because of an erroneous decision by the Department of Work and Pensions, (“DWP”) that she and her husband had no right to reside in the UK.
• Misled her into thinking the Council would help her appeal the DWP decision and then failed to do so.
• Failed to communicate with her after it evicted her from temporary accommodation in November 2018, after receipt of her review request, until she engaged legal representation in March 2019.

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The Ombudsman’s role and powers

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)
3. 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)
4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

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How I considered this complaint

• I spoke with the complainant.
• I researched the relevant law and guidance.
• I made enquiries with the Council and reviewed its response.
• I gave both the complainant and the Council the opportunity to comment on my draft decisions. I have made amendments to the final decision to reflect their observations.

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What I found

5. Under section 184 of the Housing Act 1996, if a housing authority has reason to believe a person applying to the housing authority for accommodation, or assistance in obtaining accommodation, may be homeless or threatened with homelessness, it must make inquiries to satisfy itself whether the applicant is eligible for assistance and if so, what duties – if any – are owed to that person. (6.2 Homelessness Code of Guidance, (“the Code”), relevant from 20 June to 31 October 2018)
6. A person is ‘threatened with homelessness’ if they are likely to become homeless within 56 days. (section 175 (5), Homelessness Reduction Act 2017)
7. If an applicant is not found to be eligible for assistance, the housing authority must provide, or secure the provision of, information and advice. For households including children who are owed duties under the Children Act 1989 or Care Act 2014, councils should consider having arrangements in place to manage a transition in responsibilities, so that there is no break in the provision of accommodation for applicants who cease to be eligible for support. (15.12 Homelessness Code of Guidance, (“the Code”), relevant from 20 June to 31 October 2018)
8. In cases involving applicants who have children under 18 where the housing authority have reason to believe that the applicant is ineligible for assistance or may be homeless intentionally, the housing authority must, subject to the applicant’s consent, alert the children’s services authority to the case. (15.21, Homelessness Code of Guidance, (“the Code”), relevant from 20 June to 31 October 2018)
9. Even if it is decided that an applicant is not eligible, a housing authority can use its discretion to secure accommodation pending a review. (15.24, Homelessness Code of Guidance, (“the Code”), relevant from 20 June to 31 October 2018)
10. If an applicant asks to be accommodated pending the review, the Council should consider the personal circumstances of the applicant and the consequences to them of a decision not to exercise a discretion to accommodate. (15.26, Homelessness Code of Guidance, (“the Code”), relevant from 20 June to 31 October 2018)
11. Once an authority is satisfied an applicant is homeless (rather than just threatened with homelessness) and eligible for assistance, it must make reasonable steps to help the applicant secure accommodation. This is called the ‘relief duty’.
12. The Code says authorities should not delay completing their inquiries as to what further duties will be owed after the relief duty. It says where the authority has the information it requires to make a decision about priority need and intentionality, it should be possible to notify the applicant on or around day 57 (i.e. the day after the 56-day relief duty ends). In cases where significant further investigations are required the Code recommends authorities make a decision within a maximum of 15 working days after 56 days have passed.

Suitable interim accommodation

13. When a local authority has reason to believe that an applicant may be eligible, homeless and in priority need, it has to arrange suitable interim accommodation.
14. The Homelessness (Suitability of Accommodation) Order 2003 says Bed and Breakfast, (B&B) accommodation is not suitable for households with “family commitments.” However, councils can use bed and breakfast accommodation as a last resort – but only for a maximum of six weeks.
15. B&B accommodation means accommodation that:

• Is not separate and self-contained
• Where amenities are shared by more than one household.

16. When considering other accommodation for applicants, councils need to consider:

• The cost to the council of securing accommodation,
• The affordability of the accommodation for the applicant, and
• The location of the accommodation.

17. Applicants sometimes argue that councils provide them with what they consider to be unsuitable accommodation. However, it is understood that accommodation is in short supply, there are huge strains on councils resources and perfection cannot be expected. What is considered suitable is an objective test and it is one for the local authority. However, the most recent statutory guidance advises councils to visit properties to carry out inspections. The minimum standard which the accommodation offers will depend upon the needs and circumstances of the applicant and their household.
18. Housing authorities are required to assess whether accommodation is suitable for each household individually, and case records should demonstrate that they have taken the statutory requirements into account in securing the accommodation. 17.9, The Homelessness Code, 2018)
19. Generally, where possible, housing authorities should try to secure accommodation that is as close as possible to where an applicant was previously living. Securing accommodation for an applicant in a different location can cause difficulties for some applicants. Where possible the authority should seek to retain established links with schools, doctors, social workers and other key services and support.(17.50, The Homelessness Code 2018)
20. Housing authorities should record how decisions to place an applicant out of district have been reached, taking into account the household’s collective and individual needs. (17.62, The Homelessness Code, 2018)

Persons from abroad

21. Some people from abroad are ineligible for housing assistance. Housing authorities must satisfy themselves applicants are eligible before providing housing assistance. The provisions on eligibility are complex and housing authorities will need to ensure they have procedures in place to carry out appropriate checks on housing applicants. (7.3 Homelessness Code of Guidance, (“the Code”), relevant from 20 June to 31 October 2018)
22. Housing authorities should ensure staff are given training in the complexities of the housing provisions, the housing authority’s duties and responsibilities under the Equality Act 2010 and are able to deal with applicants in a sensitive manner. (7.4 Homelessness Code of Guidance, (“the Code”), relevant from 20 June to 31 October 2018)
23. The courts have held that children of EU citizens who have come to a member state to exercise a right of residence as a migrant worker, are entitled to reside there in order to be educated. (Baumbast and R v Secretary of State for the Home Department, Case C-413/99, [2002] ECR I-7091, [2002] 3 cmlr 23)
24. The Courts have also held that the right of residence in the member state of the parent who is the primary carer of a child of migrant workers, is not conditional on one of the child’s parents having worked as a migrant worker on the date on which the child started in education. (Teixeria v Lambeth LBC and Secretary of State for the Home Department [2008] EWCA Civ 1088, [2009] HLR 9.

How decisions about whether people have made themselves intentionally homeless should be considered.

25. Section 191(1) provides that a person becomes homeless intentionally if ALL of the following apply:
1. they deliberately do or fail to do anything in consequence of which they cease to occupy accommodation; and,
2. the accommodation is available for their occupation; and,
3. it would have been reasonable for them to continue to occupy the accommodation. (9.1, Homelessness Code of Guidance, (“the Code”), relevant from 20 June to 31 October 2018)
26. The Guidance says an example of an act or omission which may be regarded as an act or omission which may be regarded as deliberate includes where someone leaves a job with tied accommodation and the circumstances indicate it would have been reasonable for them to continue in the employment and reasonable to continue to occupy the accommodation. (9.20, Homelessness Code of Guidance, (“the Code”), relevant from 20 June to 31 October 2018)
27. Where a housing authority finds an eligible applicant has a priority need but is homeless intentionally and the relief duty has come to an end, they have a duty to secure accommodation which is available to the applicant to provide reasonable opportunity for them to find their own accommodation. The authority must also provide advice and assistance in any attempts the applicant might make to secure accommodation. (9.4, Homelessness Code of Guidance, (“the Code”), relevant from 20 June to 31 October 2018)
28. When determining the period of time for which accommodation will be secured in the above circumstances, the Council must consider each case on its own merits. A few weeks may provide the applicant with a reasonable opportunity to secure accommodation. However, some applicants may require longer. Housing authorities need to take a number of factors into account, including the health and support needs that might make it difficult for an applicant to find and secure accommodation. It might also reflect on the efforts previously made by both the housing authority and the applicant to relieve their homelessness, and why these had not proved successful. (15.15 Homelessness code of guidance for local authorities, 22 February 2018)
29. Housing authorities must not adopt general policies which seek to pre-define circumstances that do or do not amount to intentional homelessness. In each case, housing authorities must form a view in the light of all their inquiries about that particular case. Where the original loss of settled accommodation occurred some years earlier and the facts are unclear, it may not be possible for the housing authority to satisfy themselves that the applicant became homeless intentionally. (9.6, Homelessness Code of Guidance, (“the Code”), relevant from 20 June to 31 October 2018)
30. Where a person becomes homeless intentionally, the causal link between a deliberate act or omission and intentional homelessness can be broken by an intervening event which, irrespective of any act or omission on the part of the applicant, would have itself led to their being homeless at the point at which the housing authority is carrying its inquiries into their application for assistance. This might be the case where, for example, an applicant gave up accommodation without sufficient good reason but at the later point at which they applied for assistance due to homelessness this accommodation would no longer have been available to them, or reasonable for them to occupy. (9.14, Homelessness code of guidance for local authorities, 22 February 2018)

Reviews

31. Where a housing authority decision is against the applicant’s interests, the notification of the decision must explain clearly and fully the reasons for the decision. (18:33, Homelessness Code of Guidance, (“the Code”), relevant from 20 June to 31 October 2018)
32. Applicants reviewing a decision on their eligibility for assistance must be notified of the decision on the review eight weeks from the date of the request. (19.23 (b) Homelessness Code of Guidance, (“the Code”), relevant from 20 June to 31 October 2018)
33. Councils can ask the applicant to agree to an extension of the time to review. (19.23, Homelessness Code of Guidance, (“the Code”), relevant from 20 June to 31 October 2018)

Human Rights

34. The Equality and Human Rights Commission describes human rights as basic rights and freedoms that belong to every person in the world, from birth until death. These values are defined and protected in law in Britain by the Human Rights Act 1998, (“the Act”).
35. Councils have obligations under the Act to treat everyone with dignity, respect and fairness. Everyone who works in councils must act in a way that is compatible with the Act. The Ombudsman does not have the jurisdiction to make findings on whether a breach of human rights has occurred or not. That is a matter for the courts. But we can investigate what regard councils have had to consideration of a person’s human rights. Such consideration should often be central to decision-making.
36. The Act sets out human rights in a series of ‘articles’. Each article deals with a different right. Articles relevant to my consideration of this complaint are:

Article 3 – Freedom from torture, inhuman or degrading treatment

37. Public authorities have an obligation to prevent such treatment, to investigate any allegations of such treatment, and to protect vulnerable individuals who they know or should know are at risk of such treatment.. (Human Rights: Human Lives, A guide to the Human Rights Act for Public Authorities, 2014)
38. Torture occurs when someone deliberately causes very serious and cruel suffering (physical or mental) to another person.
39. Inhuman treatment or punishment is treatment which causes intense physical or mental suffering.
40. Degrading treatment means treatment which is extremely humiliating and undignified. Whether treatment that reaches a level that can be defined as degrading depends on a number of factors. These include the duration of the treatment, its physical or mental effects. Being left destitute could be, depending on the specific circumstances of each case, be considered a breach of Article 3.

Article 8 – Right to respect for private and family life

41. Everyone has the right to respect for their private and family life, their home and their correspondence.
42. The right to respect for family life includes the right to have family relationships recognised by the law. It also includes the right for a family to live together and enjoy each other’s company….Public authorities must not interfere in a person’s family life unless the interference is lawful and proportionate.” (Human Rights: Human Lives, A guide to the Human Rights Act for Public Authorities, 2014)
43. Public authorities must be alert to policies or actions that might interfere with a person’s right to respect for their private and family life, their home or their correspondence. (Human Rights: Human Lives, A guide to the Human Rights Act for Public Authorities, 2014)

Background

44. Below is a summary of the material background facts.
45. In May 2014 Mr and Mrs X, along with their son, M, travelled to Great Britain to look for work and accommodation. They are from a European country and are classed as European Economic Area (“EEA”), nationals.
46. In August 2017 Mrs X and Mr X gained employment at an establishment, (“Place 1”), which also provided them with accommodation. At the time, their son was four years old.
47. They worked at Place 1 for about eight to nine months before Mrs X resigned and Mr X’s employment was terminated.
48. Mrs X says she was forced to resign because she was bullied, and her workplace failed to investigate her complaint about this properly. Mr X says the way Place 1 handled his wife’s complaint made it impossible for him to continue to work there. Place 1 wrote him a number of letters asking him to get in contact and when he did not respond, he was dismissed on 17 May 2018.
49. Place 1 sought a possession order on the property and on 18 June 2018, with Mr X in attendance, the Judge decided to make a forthwith possession order. He ordered Mr and Mrs X to pay costs. They did not appeal the decision.
50. They were given notice of eviction to leave their accommodation by 9 July 2018.

Homelessness application

51. On 4 July 2018 Mr and Mrs X made a homelessness application at the Council. It was noted the couple had a four-year-old son, (M).
52. On 10 July 2018 the Council accepted a duty to provide the family with temporary accommodation. It provided the accommodation under its relief duty. It said it had reason to believe the family may have a priority need because of M.
53. The family were accommodated in a different area at a place which, on the booking letter, is described as a B&B. Council paperwork referred to it as bed and breakfast accommodation, both in emails to Mr and Mrs X and in the agreement the couple were asked to sign before being provided with the accommodation. This accommodation has been singled out for criticism in the media in the past as being unsuitable for homeless families. However, the Council says it has since undergone refurbishment following the media criticism.
54. It does not have a suitability assessment or journal note to demonstrate that the accommodation was considered suitable.
55. However, the Council says their accommodation was a self-contained studio room containing ensuite shower/toilet/sink with its own cooking facilities comprising of 2-ring hob, sink, fridge and kitchen cupboards. It says it was not bed and breakfast accommodation. The Council says the facilities were not shared with other households. It says the room the complainants stayed in was 278 square feet and the licence stated it was suitable for four persons. It therefore says that the accommodation was suitable for the family.
56. The family did not complain about the type of accommodation. When they were first informed about the placement they were told how they could review the offer of accommodation but they did not do so.
57. The Council says the family did not raise any concerns about the location to a different area at the time of the placement or after the placement. It says it considered the disruption to the family by moving out of area on the day of the placement. It says the fact that Mr and Mrs X were not in employment and their child was not at school at the time were relevant factors.
58. Records show the couple complained about difficulties they say they encountered because of the move. They said that because the Council could not find them emergency accommodation in their local area, in order to collect benefits, they had to apply using a different council area’s benefits system. They say there were a number of issues because of this. Mrs X explained this to the Council in an email on 20 August 2018. There followed a number of emails whereby the Council provided Mrs X with some details from the housing benefit team. The officer dealing with Mrs X’s family’s case, Officer P, sent Mrs X the housing benefit decision.
59. The Council says its communication with the complainants was not an effort to help with an appeal, but merely the provision of information that would be helpful to make a housing benefit claim and to assist a decision as to whether the couple were eligible for assistance under homelessness legislation.
60. The Council considers that the complainants understood this.
61. In the meantime, the Council made enquiries with Place 1. Following information received from Place 1, it was minded to issue a decision determining that Mrs and Mrs X had intentionally made themselves homeless. It drafted this decision in October 2018.
62. However, it did not issue the decision. Instead Officer P made further enquiries. Mrs X said Mr X had got a new job. Officer P asked for details and evidence about that employment.
63. Officer P considered Mr X had not found employment but had a contract with an employment agency. She confirmed with the agency that it did not have to provide him with work and that he had the option to refuse work if he chose. She enquired about the number of days he had actually worked (six), for the agency and learnt that the agency was not intending to continue to provide him with work. This information contributed to the officer’s decision that the couple did not satisfy eligibility for homelessness assistance.
64. The Council then also considered the couple’s right to remain in the country. Ultimately it decided they were not eligible for assistance because it considered they did not have the right to reside in the UK as an EEA national.
65. It issued a decision letter on 2 November 2018. It set out how it had considered their status. It said, to fulfil the requirements to be considered to have an extended right of residence, they would have had to have shown that either of them were considered:

• as a worker or self employed person, or
• as a person who is not working but has retained their worker status.

66. She considered neither Mr or Mrs X fitted the criteria. Part of the reason she did not consider they fitted the criteria was that she considered Mrs X gave her job up and that neither Mr X or Mrs X had registered at the job centre. The Council viewed Mr X made himself unemployed. Mr X disputes this.
67. The Council also referred to the couple’s failure to provide requested documents to process a housing benefit claim.
68. In complaint correspondence, the Council said it also considered whether the applicants could have retained worker status on the grounds of having a child in education, as M started school in September 2018. It said the decision at the time was that the applicants had not retained worker status on this ground because they had not had a period of genuine and effective employment that occurred at the same time as M had attended school.
69. This consideration was not recorded in the Council’s decision letter on 2 November 2018. The Council accepts this consideration should have been recorded in its decision letter.

Mr and Mrs X and M evicted from accommodation

70. The decision letter informed Mr and Mrs X that they would have to leave the accommodation they were staying in by 12 November 2018. They were told they had a right to review the decision. The letter stated it enclosed a leaflet informing Mrs X how to review.

Review application

71. Mr and Mrs X applied for review on 12 November 2018. In summary, she complained that:

• They had not been given information on how to apply for a review;
• They did call the DWP and registered with the job centre; and
• The Council was aware the couple did not have wifi but chose that way to communicate. (The Council say they had not been made aware of this and point to emails received from the complainants.)

72. The Council responded on 12 November 2018, saying it would respond to the review request within eight weeks. The review should have been completed by 7 January 2019. As I note below, after the intervention of an advice agency, the Council reviewed the file and decided the complainants were eligible for assistance. This was on 14 March 2019, over 17 weeks since the review application was made.
73. I have seen no evidence, so far, that the Council sought an extension to reply to the review request during this period.

Referral to social services

74. On 12 November 2018, the day the complainants were evicted from their accommodation, the Council sent a referral to the relevant social services team for the family, (“Council S”).
75. The referral form said Mr and Mrs X had no fixed address. It did not say where M was living. It noted M attended a school. It did not say if M was present or not at the time of the referral, although the form left a space for an answer.
76. The form states a parents/carers consent is needed for a referral. The Council did not obtain Mr and Mrs X’s consent. Council policy says professionals should record in writing on the form, whether they have discussed the referral with the family. They should also record the reasons if they decide not to inform the family of these matters. There is no evidence a discussion took place.
77. In answer to the question, are there any issues we should be aware of when contacting the parents/carers, the Council answered, “No”.
78. The records show social services acknowledged receipt of the referral. They contacted Mr and Mrs X, who, they say, said were staying with a friend, Mr F. They said they referred the family to the relevant council’s Children’s Services Department.

Mr and Mrs X say they are street homeless

79. Mr and Mrs X say Council S placed M with Mr F. They say they arrived at Mr F’s house every school morning at 7.30am to take M to school. They then picked him up from school and took him back to Mr F’s house, where they stayed between 4pm and 10pm to stay with him until he was asleep. For the remainder of the time, they say they were street homeless, and slept on stairways, corridors, hospitals etc. During contact with Mr and Mrs X in March 2019, the Council asked them to provide information of any homeless charities they used but they did not provide any details.
80. M’s school record shows that his attendance was poor during this period. Mrs X says this was because she and her husband were not always able to find somewhere to sleep nearby and so were not always able to take M to school.
81. Mrs X says she called the Council every day from 12 November 2018 until March 2019. She does not have any evidence of these calls but says this is because she has a pay as you go phone.
82. Later, when Officer P wrote to her after the Council had accepted it had made a mistake in assessing her application, Mrs X asked Officer P not to contact her again. She said Officer P had ignored her for the past four months. The Council has no records of any calls. It says it would have reviewed her case quicker if she had been in contact. It says that it had known the couple were street homeless, it would have taken appropriate action.
83. Mr and Mrs X say M was “damaged psychologically” by the eviction from the accommodation in November 2018. Mr X says M stopped speaking his native language and English. In March 2019 Mr X said M’s school said he had started to show signs of improvement.
84. Mrs X has provided me with a copy of a referral to a speech therapist for M. It is dated in June 2019.
85. She has also produced a school report dated June 2019. The report says M:

• can recite some number names in sequence
• tries to join in stories with repeated refrains and phrases
• had some difficulties with bowel and bladder control
• was beginning to talk about the different marks he has made and could repeat some words

86. Mrs X and Mr X received hospital treatment during their time on the streets. They attended hospital in January 2019 and were diagnosed with an infectious viral condition. The hospital discharge report says clinical information was, “suggestive of recent […] infection.”
87. Mrs X believes they contacted the virus while sleeping rough.

After advice agency intervention

88. On 12 March 2019 an advice agency contacted the Council. After a conversation and the exchange of some legal authorities, the Council conceded it had made a mistake.
89. The Council said it did not know M was in education at the time it made its decision to evict the family.
90. It accepts it misinterpreted the law. It says it wrongly assumed that the EEA national’s employment and the schooling of a child were required to occur at the same time. This is not the case. It accepts it took longer to address this than should have been the case, particularly since the applicants had requested a review of the decision.
91. It arranged for temporary accommodation for the family, which they moved into on 27 March 2018.

The Council’s recent correspondence

92. On 22 March 2019 the Council wrote to Mr and Mrs X to say that being eligible for assistance was one of the five criteria that must be met for the Council to decide it had a duty to provide accommodation under homelessness legislation. It said they now meet four out of five of the criteria, with the only criteria still to be decided being the question as to whether Mr and Mrs X made themselves homeless intentionally. It said it still has to look at the reasons why they lost their tied accommodation and whether it considers they failed to do something deliberately which caused them to lose the accommodation.
93. In complaint correspondence, the Council offered to remedy its fault by paying compensation of £750. It has also offered to provide Mr and Mrs with a deposit to help secure private rented accommodation for the family.
94. Mrs X says the Council are due to make the decision soon on whether they made themselves intentionally homeless.

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Findings

95. The Council organised accommodation for Mr and Mrs X and their son, M, on 10 July 2018. It should have made a decision about what other duties, if any, it considered it owed the complainants, by 5 September 2018 or at the latest by 20 September 2018. It did not make a decision until 2 November 2018. This represents a delay of at least 43 days.
96. On the face of it, that is fault. The records show the Council received information the couple did not have the right to remain in the country on 3 September 2018. However, it did not make a decision on that basis at that point. It waited to receive further information about Mr X’s employment status. I consider it was reasonable for it to have done so. If Mr X had retained his worker’s status, this could have affected the decision the Council made about the duty it owed the couple. I have also taken into account that Mr and Mrs X were delayed in providing the information requested.
97. However, the records indicate that the Council did not begin its investigations into the couple’s circumstances until 17 August 2018, when Officer P asked Mr and Mrs X to visit her. On 4 October 2018, Mrs X was complaining that she still could not access her housing plan. The Council should have acted quicker to deal effectively with the complainant’s application. This is fault.

Suitability of interim accommodation

98. The law is clear that councils should keep records of the consideration given to the suitability of interim accommodation. There are no records of the consideration given to the accommodation the family were placed in. This is fault. However, the complainants did not ask for a review of the offer.
99. The Council says Mr and Mrs X did not raise any complaints about the suitability of the location. This is not accurate as the complainants did say they experienced issues claiming benefits because of the differences in the borough they were sent to. However, it is correct to say they did not raise this through a requested review of the accommodation. The Council has also said that while the couple experienced difficulties claiming benefits when they changed area, the Council’s area was soon to adopt the same benefits system and it is likely Mr and Mrs X would have experienced the same difficulties if they had been placed in the Council’s area. I accept this is likely.
100. After the Ombudsman’s involvement the Council says it placed the family in the same area again, by request of the family. Therefore, while the Council should improve its record keeping, I have not seen evidence that the fault in this regard caused the complainants an injustice.

Failure to help appeal the DWP decision

101. I do not find the Council at fault in this regard. It might have been clearer with the complainants about what its role was but the records I have seen do not clearly indicate it offered to help them with an appeal against the DWP.
102. As I set out below, it is hard to say exactly on what basis the Council made its decision. But as the advice agency information overturned its decision, I cannot say any alleged error surrounding the DWP decision was fundamental to the Council’s decision to find Mr and Mrs X ineligible for assistance. Ultimately the injustice was caused by the Council’s failure to appreciate the legal position that supported the applicant’s request for assistance.

How the homelessness application was determined

103. The Council accepts it misinterpreted the law and wrongly determined Mr and Mrs X’s homelessness application. It accepts Mr and Mrs X were eligible for assistance. They have retained their worker status because they are former EEA workers who are the primary carers for a child who is in education in the UK. The Council accepts it was at fault.
104. This fault was compounded by the Council’s failure to set out its full consideration, as required by the Code. In its decision letter, it failed to record its consideration of the case law that it says led it to make the wrong decision. This is fault. As noted above, the Council accept this. I have not seen evidence it considered this case law. In the Council’s initial response to the advice agency, it said it had not known M was in education at the time of the decision. It now says this was a drafting error and says that it was aware. Officer P recorded the name of his school on the referral form to Council S. But Officer P does not mention any consideration of whether that might be a factor to consider when she wrote her decision letter informing Mr and Mrs X they were ineligible for assistance.
105. This failure to consider M’s circumstances caused M and Mr and Mrs X an injustice. Either the Council failed to consider M or if it did, it failed to record this consideration in the decision letter. Mr and Mrs X therefore did not know what led the Council to reach its decision. They assumed it was because of a DWP failure. They were unable to therefore fully challenge the Council’s reasoning in their review application.
106. I consider that on balance, if the Council had considered their application correctly, it would have found they were in priority need. This is because they have a young child. It would, at the very least, have owed them a duty to secure accommodation for them to find their own accommodation. It would have been obliged to provide advice and assistance in providing them with accommodation. The family would not have been separated and Mr and Mrs X would not have been street homeless for over six months. I have made a recommendation to acknowledge the distress this faulty decision caused. I have also made a recommendation to acknowledge the period of time Mr and Mrs X were street homeless, in line with our guidance.
107. I also consider that M suffered an injustice during this period.
108. The Council says the situation was, “not ideal” but it points out that both Mr and Mrs X were able to be with M both before and after school. To some extent M’s distress could have been reduced by their commitment to be near when they could.
109. However, M is five. Being separated from his parents in this fashion must have been very distressing. The complainants have provided evidence that he needs speech therapy. I do not make a finding that any problems in speech were brought about by his experience. That would be too far-reaching. He could have had speech problems in any event. I am unable to say.
110. But his school record also reveals a poor attendance record during this period. He was often late. Mrs X says this was because the couple could not always find a place nearby to sleep and were therefore late to escort him to school. On balance, I consider his unsettled circumstances were more than likely a contributing factor to his poor and late attendance figures. The practicalities of getting their son to school would have been hard to organise because of their predicament. I have made a recommendation to acknowledge the probable effect on M’s attendance and the severity of the distress I consider he would have experienced during this period.

The review

111. The Council accept that the way it handled the review process was at fault. It should have taken eight weeks. This is fault. It should have completed its review by 7 January 2019. It did not inform the complainants of the outcome of its review until 14 March 2019, after it was informed of its misinterpretation of the law. The review process took over twice as long as it should have taken. This is fault.
112. Mrs X says she called the Council every day after lodging her review, but the Council failed to communicate with her. I have no evidence she called the Council and so do not make a finding on that. But I do find there was a failure to communicate with Mrs X. I have no evidence it sought agreement from the complainants for an extension of time while completing the review. This is fault. It caused the complainants an injustice which I have commented on above. They say they were street homeless during this period. If the review had been dealt with on time, they could have been accommodated much quicker.

Duty to refer to children’s services and human rights.

113. The Council says that where there has been a failure to provide suitable accommodation which causes an individual to suffer inhuman or degrading treatment, such as to compromise their right to physical or psychological integrity, this may constitute a breach of the Human Rights Act. However, it says it addressed the situation by referring the family, in line with its duty, to Council S.
114. The Ombudsman does not determine if there have been any breaches in human rights. That is for the courts to decide. But we do find that the evidence seen so far indicates that the complainant’s family life was negatively impacted by the Council’s actions, as I set out below.
115. The referral could have been clearer. It could have provided more information. The Code says a referral should be conducted, “subject to the applicant’s consent”. This was not obtained. The referral form states that consent should be obtained unless to do so would place a child at further risk of harm. There was very little information about M on the referral form. However, Council S acknowledged the referral and acted on it. Therefore, there was no injustice caused by this.
116. The Council is not under a duty to ‘check in’ on Council S. But, the Code says councils should consider having arrangements in place to manage the transition in responsibilities so that households with children do not have a break in the provision of accommodation. It did not do this. There was no safety net here which would have protected the families right to family life.
117. The Council says it was not aware Mr and Mrs X had been separated from M. The last contact it had with M; it was aware he could be made street homeless by its decision. It either considered the whole family would be made street homeless and so M would not be separated from his family but would be on the street. Or, it considered that Council S would provide the whole family with accommodation. I have not seen evidence that it made efforts to ‘manage’ the transition in responsibilities so that there was no break in the provision of accommodation for Mr and Mrs X when the Council considered they were not eligible for support.
118. Again, it is relevant that the Council did not ask for an extension to respond to the applicant’s review. The fact that the Council did not communicate with the applicants until it was contacted by the advice agency, shows the Council had allowed its handling of this case to lapse.
119. The Council had discretion to consider whether it might have been possible to further accommodate the family pending the review. This would have helped manage a potentially difficult situation while Council S investigated what it could do for M and whether it could do anything for his parents.
120. If the Council was concerned about M, it should have demonstrated this. having received the family’s review application which said they were ‘pretty much homeless’. It may well have considered that further accommodation would not be appropriate, but it should have demonstrated an effort to manage the risk to M. On the evidence seen so far, it did not consider the impact of its decision on M’s circumstances.
121. On balance I find it likely the Council was aware the family may have been separated. As noted above, Mr and Mrs X says M suffered significantly because of the split. It is impossible to say with certainty how this time in M’s life directly affected him, but I do not doubt this was a negative experience. It was caused by the Council’s fault.
122. As noted, above, I have made a recommendation to acknowledge this distress.

Agreed action

123. The Council should, as soon as is practicable, arrange to review Mr and Mrs X’s case and reach a new decision on the complainant’s homelessness application. It should do this no later than two weeks after my final decision. If part of the review involves considering whether Mr and Mrs X made themselves homeless intentionally, the Council should consider if the causal link between any act or omission and any intentional homelessness has been broken. It should fully record its reasoning.
124. If Mr and Mrs X are unhappy with the new decision, any review that they might seek should be expediated, so the family have a decision as soon as possible.
125. If the Council decide that Mr and Mrs X are not owed a housing duty, it should consider providing accommodation pending a review, taking into account the consequences of a decision not to accommodate.
126. Within one month of the final decision, the Council should:
1. Apologise to Mr and Mrs X for the distress caused by its failure to deal with their homelessness application properly or in time. It should also apologise for its failure to handle the review process properly.
2. Pay Mr and Mrs X £250 per month each for the period they say they were street homeless. This acknowledges that the couple did not provide the Council with evidence of their street homelessness when requested. The Council should make a payment of £1125 each to Mr and to Mrs X.
3. Arrange for the sum of £1500 to be held on trust for M to acknowledge the distress and anxiety suffered because of the way the Council handled his family’s homelessness application.
127. Within three months of the final decision, the Council should:
1. Complete an audit of similar cases where the Council made a decision on homelessness applications using the same reasoning it used in this case. The audit should cover a range of cases between July 2018 to July 2019. It should provide evidence of the Council’s audit and findings to the Ombudsman.
2. Consider re-training for housing officers, specifically around the issue of eligibility for assistance for homelessness applicants who present in similar situations to Mr and Mrs X. It should provide evidence it has done so to the Ombudsman.
3. Consider re-training for housing officers when writing decision letters so that they are reminded to include all the factors that helped determine the Council’s decision, ensuring a transparent decision-making process. It should provide evidence it has done so to the Ombudsman.
4. Take steps to ensure housing officers act quickly and in line with their statutory duty to assess homelessness applications and to review decisions upon application. It should provide evidence it has done so to the Ombudsman.
5. Consider ways the Council can improve its approach to ensuring that in cases involving families, where the Council has decided the parents are ineligible for assistance, it reduces the risk of causing any break in accommodation for those families. It should provide evidence it has done so to the Ombudsman.
6. Review its record keeping procedures to ensure that it can evidence it has considered the suitability of accommodation when making placements.

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Final decision

128. The Council has already accepted some fault and injustice. It has offered a remedy. I do not consider it is sufficient and have found further fault and injustice. I have now completed my investigation.

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Parts of the complaint that I did not investigate

129. I did not investigate the way Council S handled the referral from the Council to its social services department. If the complainants are aggrieved about the way the referral was handled, they will need to make a separate complaint to Council S.

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Investigator's decision on behalf of the Ombudsman