London Borough of Waltham Forest (19 005 520)

Category : Housing > Homelessness

Decision : Upheld

Decision date : 18 Jun 2020

The Ombudsman's final decision:

Summary: Mr X complained the Council delayed dealing with his homelessness application and provided unsuitable interim accommodation. On the basis of information seen, there was a delay in making a homelessness decision, a failure to properly consider whether interim accommodation was suitable and a delay in finding alternative accommodation for him. There was also a failure to contact him when the locks were changed at his accommodation. The Council should pay Mr X £350 for the injustice caused and review its processes.

The complaint

  1. Mr X complained about the way the Council dealt with his homelessness application between July 2018 and May 2019. He said the Council:
      1. delayed in making enquiries and issuing a decision;
      2. failed to provide suitable temporary accommodation; and
      3. failed to help him when he was locked out of his temporary accommodation in September 2018.

He was also unhappy with the way the Council handled his complaint.

  1. Mr X says the Council’s failings caused him uncertainty and distress and affected his physical health. He also says the Council’s actions interfered with his human right to family life, affecting his relationship with his child.

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Parts of the complaint that I did not investigate

  1. I have investigated the complaints set out at paragraph 1 above.
  2. Mr X also complained the Council used his former partner’s personal information without permission and provided incorrect information about a subject access request to the Information Commissioner’s Office (ICO).
  3. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about data protection or freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
  4. I have not investigated Mr X’s complaints about using personal information or how the Council responded to the subject access request because the ICO is better placed to consider those complaints.
  5. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
  6. Mr X started legal action against the Council in relation to its failure to progress his homelessness application. I cannot consider the Council’s actions in the period covered by the legal action. Therefore, I have only considered the period from 18 July 2018.
  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)
  8. Mr X also complained the Council failed to consider all relevant information and used incorrect information when making its decision about whether he was in priority need in February 2019. I have not investigated this complaint because Mr X had rights of review and appeal. Mr X did exercise his right to ask for a review and the Council upheld its original decision in May 2019. The Council told him he could appeal to the county court but he did not do so. Since Mr X has shown he is capable of taking legal action by himself I consider it was reasonable for him to use his appeal rights to challenge this decision.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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)
  3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), 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 considered:
    • the information Mr X provided;
    • the information the Council provided;
    • relevant law and guidance, as set out below;
    • our guidance on remedies.
  2. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Homelessness applications

  1. If a council has ‘reason to believe’ someone may be homeless or threatened with homelessness, it must take a homelessness application and make enquiries to establish if the council has a duty to assist them. The threshold for taking an application is low. The person does not have to complete a specific form or approach a particular council department. (Housing Act 1996, section 184 and Homelessness Code of Guidance paragraphs 6.2 and 18.5) 

Assessment and personalised housing plans

  1. Councils should work with the person to identify practical and reasonable steps for the council and the person to take to help them keep or find suitable accommodation. These steps must be tailored to the household and provided to the person in a personalised housing plan (PHP). The PHP must be kept under review and updated as circumstances change. (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.18)

Temporary accommodation

  1. If the council thinks someone is homeless and in priority need, it must, if the person asks for it, provide emergency accommodation until it has finished assessing the homelessness application.  An applicant may have a priority need for accommodation if they have dependent children or if they are vulnerable due to mental illness or physical disability. The council must determine whether, if homeless, an applicant would be significantly more vulnerable than an ordinary person would be if they became homeless.
  2. A council must not treat someone as having accommodation unless it is accommodation which it would be reasonable for them to continue to occupy. (Housing Act 1996, Section 175(3))
  3. There is no simple test of reasonableness and councils should judge each application on the facts of the case, taking into account all relevant factors. (Homelessness Code of Guidance paragraphs 6.23, 6.25, 6.26, 6.2, 6.40)

Housing duties

  1. If a council is satisfied someone is threatened with homelessness and eligible for assistance it must take reasonable steps to secure that accommodation does not stop being available for their occupation. This is known as the council’s prevention duty. (Housing Act 1996, Section 195)
  2. If a council is satisfied someone is homeless and eligible for assistance it must take reasonable steps to secure accommodation for them. This is known as the council’s relief duty. (Housing Act 1996, section 189B)
  3. If a council accepts a person is homeless, eligible, in priority need and unintentionally homeless it will owe them the “full housing duty”. This requires councils to ensure that accommodation remains available. In most cases councils will provide or continue to provide temporary accommodation. In order to end the duty councils will usually make an offer of suitable permanent accommodation. This can be private rented accommodation.

Decisions and rights of review

  1. When it has completed its enquiries, the council must write to the person to tell them its decision. If it decides it does not owe the “full housing duty” it must explain its reasons for deciding this.
  2. Homeless applicants may request a review within 21 days of being notified of various decisions, including decisions about:
    • what duty (if any) is owed to them if they are found to be homeless or threatened with homelessness; and
  • the steps they are to take in their personalised housing plan at the prevention duty stage (Housing Act 1996, section 202)
  1. If an applicant wishes to challenge a review decision, or if a council takes more than eight weeks to complete a review, the applicant may appeal on a point of law to the County Court (Housing Act 1996, section 204)

Housing register

  1. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing.  All allocations must be made in strict accordance with the published scheme.  (Housing Act 1996, section 166A(1) & (14))
  2. An allocations scheme must give reasonable preference to applicants in the following categories:
    • homeless people;
    • people in insanitary, overcrowded or unsatisfactory housing;
    • people who need to move on medial or welfare grounds;
    • people who need to move to avoid hardship to themselves or others.

(Housing Act 1996, section 166A(3))

  1. Most councils have a scheme where applicants bid for properties they are interested in.

What happened

  1. Mr X is separated from his former partner, with whom he has a child. His child has contact with him, as set out in a parenting plan. Mr X has mental health issues and some mobility problems.
  2. In late April 2018 Mr X told the Council he was homeless. He completed the Council’s disability and health questionnaire (DHQ) and provided relevant documents from his GP and a physiotherapist. The physiotherapist said Mr X had “significant limitations to his mobility”.
  3. The Council nominated him for a place in supported hostel accommodation for single homeless people and Mr X went to live there in May 2018. Mr X told the Council the accommodation was unsuitable on medical grounds.
  4. The records show the Council asked its medical adviser for advice about whether Mr X was vulnerable. The medical adviser concluded Mr X’s specific medical issues were not of significance compared to an ordinary person. Under the heading “Future housing needs” the medical adviser stated: “nil specific”. However, the report does not show the medical adviser considered whether Mr X had any specific housing needs and there is no evidence the Council asked them to consider this.
  5. In mid July 2018 Mr X contacted the Council again. He said the hostel was not suitable for him because of his medical conditions, specifically his difficulty in opening the heavy fire doors, and because his child could not visit him there.
  6. At this stage the Council had a prevention duty because Mr X did have somewhere to live. Mr X attended an interview at the Council for an assessment of his housing situation. At the interview the officer produced a Personalised Housing Plan (PHP) for Mr X. The PHP said Council would assist Mr X find private rented accommodation because this would be quicker than bidding for properties on its housing register. It did not set out any actions or reasonable steps for Mr X to take but did record that the officer gave Mr X a list of useful information. I have not seen this list. The Council told me it had made a referral to an organisation that assists people who are not in priority need to find private rented accommodation. I have not seen the referral, although it is referred to in correspondence with Mr X.
  7. An officer agreed to visit Mr X in the hostel to assess whether this was suitable for him. Council records show an officer did visit his room in July 2018. The room was on the second floor and there was a lift to access it. However, the kitchen and bathroom were on different floors and Mr X said his mobility problems made it difficult for him to access them because of the stairs. He also said the doors in the building, including the one to his room, were too heavy for him. He said the officer also found the doors heavy and difficult to open and the account of his key worker supports this. I have not seen a record of the visit that was made at the time. Other records suggest the Council considered the accommodation was suitable on the basis its medical adviser had not made specific recommendations about housing needs in the report in May 2018.
  8. In September 2018 the hostel gave Mr X notice to leave because he refused to sign a new licence agreement, which was needed because the housing charge had increased. I have seen a letter from the hostel to Mr X, which confirms it had advised him if he did not sign the licence agreement it would give him a notice to leave and it had also advised him the only change to the licence he had previously signed was a change in the housing charges. It gave this advice at a meeting with Mr X and then confirmed it in writing.
  9. Mr X left the hostel in mid September on a Friday. The Council told him it was ready to make a decision on his homelessness application but now his circumstances had changed it needed to make further enquiries.
  10. Mr X says he asked the Council for help but it did not offer emergency accommodation. The Council says Mr X was in touch with its legal team who told him to approach the housing team in person. Mr X says he did do this but the Council has no record that he did so and said it may have been too late for him to be seen. The housing team told the legal team it would accommodate Mr X but Mr X was not present in the office when they called for him. The Council said a person who had nowhere to go would be offered a place in its emergency hostel but this would be a shared room, which Mr X did not want.
  11. Mr X says he slept rough for one night and was then given assistance by a charitable organisation. As Mr X was now homeless the Council had a relief duty. This means it should take reasonable steps to assist him to find suitable accommodation. It should have sent Mr X a letter to confirm it now owed this duty but there is no record it did so.
  12. Council records show it offered Mr X alternative accommodation on the Monday. Mr X did not want to accept this because it was on the second floor. The Council wrote to him to confirm the offer and to tell him if he did not accept it he would need to make his own arrangements for housing whilst it considered his homelessness application. Mr X was offered the same accommodation again on the Wednesday and accepted it, although the managing agent said he complained to them that it was not suitable.
  13. Later in September the Council’s medical adviser reviewed the case and said Mr X needed accommodation on the ground floor unless there was a lift. The Council accepted this meant the accommodation was not suitable.
  14. About a week later Mr X was locked out of his new accommodation. He says the Council did not assist him and he had to sleep rough for one night. He said he could not access his medication, which was locked inside, nor could he access the information he had about the managing agent’s out of hours service. He says the following day he went to the hospital after suffering a panic attack and because he needed emergency medication. He collected new keys later that day.
  15. Mr X complained. As part of the complaint investigation, the managing agent for the accommodation told the Council a key was broken in the lock on the main access door so it had to change the locks. It told the Council it had contacted residents to tell them to call at their office, two minutes from the accommodation, to collect a new key but it had not been able to speak to Mr X because he did not answer. Mr X provided screen shots from his mobile phone to show he had no missed calls from the managing agent. The managing agent initially said it had put a notice on the front door but later withdrew that. Mr X said there was no notice on the door and provided a photograph to show this.
  16. Between October and December 2018 Mr X made two formal complaints and the Council responded to them. The Council said the current accommodation was suitable when it was offered to Mr X because there were no restrictions on medical grounds at that stage. It said it was not now considered suitable. It said he was on its list to transfer to suitable accommodation but it could not say how long that would take. It recommended he consider renting in the private sector and provided a contact for help with this.
  17. In late January 2019 Mr X wrote to the Council, providing additional medical information. In mid February 2019 the Council completed its enquiries and made a decision on the homelessness application. It wrote to Mr X to say it had decided he was homeless and eligible for assistance but was not in priority need. The Council said he would need to leave his temporary accommodation in early March 2019.
  18. Mr X asked for a review of that decision. He said the Council had not considered the medical information he provided in late January. He also said the decision was based on inaccurate information.
  19. In mid March Mr X moved to alternative accommodation. This was a self-contained flat on the third floor of a building that had a lift. Mr X said this was unsuitable because his child could not use the lift as they suffered from claustrophobia and he could not accompany them up the stairs.
  20. The Council reviewed the homeless decision and wrote to Mr X in late May 2019. It said based on the documents it had seen and the information Mr X provided at an interview in April 2019, it considered he was not in priority need. It explained why it did not consider Mr X’s physical and mental health difficulties were sufficient to decide he was more vulnerable than an ordinary person who was made homeless. It explained that as his child did not live with him full-time and taking into account the contact set out parenting plan it did not consider they were part of his household for the purposes of his homelessness application. It explained how it had considered the impact of him being homeless on his family life and concluded he could maintain a relationship with his child with the support of wider family. Finally, it considered whether the current temporary accommodation was suitable for him. It decided it was suitable because there was a lift he could use. It acknowledged his child had difficulty using the lift but said they could be assisted by a family member to use the stairs.
  21. Mr X was asked to leave the temporary accommodation in June 2019 and a Notice to Quit was served in August 2019 but Mr X was still living there as at March 2020.

My findings

  1. The Council accepted a homelessness application in July 2018 on the basis that although Mr X was living in the hostel this was not long term accommodation and he said it was not suitable for him. It said it was about to make a decision on this application when Mr X left the hostel, which was two months later. It said in view of this change of circumstances it needed to make further enquiries. Apart from considering whether leaving the hostel meant Mr X was intentionally homeless, it is unclear what further enquiries it needed to make or did make. It did not write to Mr X with its decision until 14 February 2019. This was six months after it accepted the homelessness application.
  2. I note the Council secured alternative accommodation for Mr X in September 2018 and sought advice from its medical adviser about its suitability. I also note it responded to his formal complaints in October and December 2018. However, I do consider there was an undue delay in making a decision on whether it owed a full housing duty and the Council has not accounted for that delay. This delay was fault. This caused uncertainty for Mr X and delayed his opportunity to exercise his review and appeal rights.
  3. Mr X provided further medical evidence in late January 2019 but this was not considered when the decision was made in February 2019, nor did the Council consider the parenting plan Mr X provided. However, these were considered as part of the review of the homelessness decision and the Council agreed to extend the interim accommodation until the review was completed so Mr X did not suffer an injustice as a result.
  4. The PHP did not set out the steps the Council and Mr X would take to resolve his homelessness, although I have not seen the list of information provided with it. The Council consistently advised Mr X to consider private rented accommodation and offered assistance in finding this but Mr X did not wish to rent privately. On balance, I consider the Council took sufficient steps to help Mr X find longer term accommodation and it was not at fault in this regard.

Suitability of interim accommodation – May to September 2018

  1. Although Mr X told the Council the hostel was unsuitable in May 2018, I cannot consider the Council’s actions at this stage due to the court action. I can only consider the Council’s actions from mid July 2018 onwards.
  2. In July 2018 an officer visited the hostel to check whether it was suitable for Mr X. Although there are conflicting accounts of that visit I find, on balance, the officer did consider the fire doors were heavy and difficult to open. Later records show the Council decided the accommodation was suitable because the medical adviser had not specified any particular housing needs. However, there is no indication the Council had asked the medical adviser to specifically consider this and the report indicates the medical adviser only considered whether Mr X was vulnerable, which is a different question.
  3. On balance, I find the Council did not properly consider whether the accommodation was suitable and that was fault. I cannot say the Council would have decided it was unsuitable, based on the evidence available to it at the time, if it had properly considered it. Therefore, I cannot say the fault caused any injustice to Mr X beyond the uncertainty about whether it might have reached a different conclusion.

Eviction from hostel – September 2018

  1. Mr X had to leave the hostel because he refused to sign a new licence agreement. I am satisfied the hostel explained to him the consequences of not signing this in person and in writing. Mr X says the hostel was working with the Council so it could say he was intentionally homeless. There is no evidence the hostel involved the Council when it asked him to leave and the Council did not say he was intentionally homeless as a result of his refusal to sign the licence.
  2. Mr X was in contact with the Council’s legal team at this stage and they advised him to visit the Council offices to speak to the housing team about alternative accommodation because he was now homeless. Records show the Council was willing to offer emergency accommodation. It was not at fault.
  3. The Council offered alternative interim accommodation on 17 September, which Mr X did not accept but he did accept it when it was offered again on 19 September. Although this meant Mr X was without accommodation for two days this was because he did not want to accept the accommodation offered. The Council was not at fault.

Suitability of new accommodation from September 2018

  1. Mr X told the Council the new accommodation was not suitable for him on medical grounds when it offered it. The Council was not, however, at fault for offering it because Mr X was homeless and the Council was entitled to decide it was suitable for a short time even if it would not be suitable longer term.
  2. The Council sought advice from its medical adviser about Mr X’s housing needs and the medical adviser said he needed ground floor accommodation unless there was a lift. At this point the Council accepted the accommodation was not suitable. In its complaint response it said Mr X was on its list for a transfer as soon as suitable accommodation was available. In its response to our enquiries it said it could not move Mr X quickly due to his medical needs and the general demand for temporary accommodation.
  3. I have seen no record the Council put Mr X on its list for a transfer in September 2018. I have seen internal emails asking colleagues to check whether Mr X’s room was on the second floor and whether there was a lift in early March 2019. This was quickly followed by an email that said: “Please move him as soon as possible as he has been in this TA since September 2018 and the medical recommendation was received a few days after”. Taken together these emails indicate that Mr X had not been put on the list for a transfer and his case was overlooked until an officer carried out a review of the homelessness decision. The failure to proactively seek alternative interim accommodation that was suitable for Mr X after accepting the current accommodation was not suitable was fault.
  4. The records show alternative accommodation was identified the day after the emails referred to above. I cannot say how quickly the Council would have found alternative accommodation for Mr X if it had been proactive in September 2018 but it is likely to have been sooner than March 2019. Therefore, Mr X was in unsuitable accommodation for longer than he needed to be.

Assistance when locked out of accommodation – September 2018

  1. Where there is fault by an organisation acting on behalf of the Council, we hold the Council responsible for that fault and recommend the Council remedies any injustice caused.
  2. The managing agent explained why it needed to change the locks and said it had contacted all residents. Mr X provided evidence he had not missed a call from them and it is not clear whether this is because it overlooked contacting him or did not have the correct number for him. It did not post a notice on the door with details of its out of hours service so Mr X had no way to contact the managing agent when he returned to his accommodation after their office had shut. He contacted the Council but says it told him it could not assist because it was not one of its own properties.
  3. On balance, I do not consider the managing agent took sufficient steps to contact Mr X to tell him the locks were changed and advise him how to get new keys. This was fault and the Council is responsible for this as the agent was managing the temporary accommodation on its behalf. This fault and the Council’s refusal to help him, meant Mr X was locked out overnight.

Suitability of third temporary accommodation – March 2019

  1. Mr X moved to a self contained flat in March 2019. The Council considered whether this accommodation was suitable for him. It noted the flat was on the third floor but there was a lift to all floors and there were no stairs in the flat itself. It considered whether his child’s difficulty in using the lift made the accommodation unsuitable for him but decided another family member could assist them to use the stairs.
  2. It is not my role to say whether the decision was correct or not. The records show the Council considered Ms X’s concerns and relevant factors about his mobility. It also took into account the medical adviser’s recommendation that he should have accommodation on the ground floor or in a building with a lift. There was no fault in the way the Council considered whether the accommodation was suitable for Mr X so I cannot comment on the decision it reached.
  3. The Council decided Mr X’s child was not part of his household for the purposes of his homelessness application after considering the parenting plan and discussing the arrangements with the child’s mother. It noted Mr X had weekday contact after school and contact at his parents’ house on alternate weekends. It considered Mr X could maintain his relationship with his child on that basis in the current accommodation and if he was later homeless. The Council, therefore, considered the human rights aspects that Mr X raised.

Complaints handling

  1. The Council responded to Mr X’s complaints in October and December 2018. I note there were some errors in the complaint response in October, which were corrected in the response in December. However, these were not sufficient to warrant a formal finding of fault.
  2. Mr X made further complaints at the same time as an officer was carrying out a review. The complaints team considered the reviewing officer’s letter to Mr X indicating the decision they were minded to make and decided all aspects of the complaint were covered by the review. There was therefore no need for the Council to respond separately to those complaints. The Council was not at fault.

Use of medical adviser for housing decisions

  1. It is not fault for councils to seek advice from medical advisers before making decisions about whether a person is in priority need or about their housing needs in light of any medical conditions they have. However, it is for the Council to make the decision and it should not rely unduly on the medical adviser’s view.
  2. I am concerned the records generally suggest there may have an over reliance on the medical adviser’s view when considering whether accommodation was suitable for Mr X. I also note the Council’s complaint response in December 2018 refers to the medical adviser’s “decision”.
  3. I do not consider there is sufficient evidence to make a formal finding of fault about this but I would suggest the Council considers this aspect and reminds relevant staff that it is for the Council to make these decisions, in light of the medical advice it receives, and not for the medical adviser to make the decision.

Agreed action

  1. The Council will, within one month of the date of the final decision, apologise to Mr X for:
    • its delay in issuing a decision on the homelessness application;
    • its failure to properly consider whether the temporary accommodation was suitable in July 2018;
    • its agent’s failure to contact him about the change of locks and how to get a new key; and
    • its failure to proactively seek alternative accommodation for him when it accepted the current accommodation was not suitable between September 2018 and March 2019.

It will pay him £350 to remedy the injustice caused.

  1. The Council will, within three months of the date of the final decision, review its processes on how it assesses whether temporary accommodation is suitable and consider whether staff need additional guidance or training on this.

The Council will report to us on its review and the actions it has taken.

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Final decision

  1. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman

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