Summary: there were significant faults in the way the Council handled Mr X’s homelessness application and made an offer of accommodation. The Council has agreed to provide a suitable remedy for Mr X’s injustice.

The complaint

1. A solicitor, whom I shall refer to as Mrs B, complains about the Council’s handling of Mr X’s homelessness application and review request. In particular, she complains that the Council:

1. failed to inform Mr X that a property offered in March 2019 was made to end its housing duty and not further interim accommodation pending a review of its decision that he was homeless but not in priority need;

2. did not properly notify Mr X in April 2019 of its decision to end the relief duty;

3. misled her when the Review Officer told her the property offered to Mr X was interim accommodation;

4. failed to make suitable arrangements for Mr X to collect the key for the property until late in the day on 1 April 2019;

5. has not yet properly addressed her complaint that the property is not suitable for Mr X’s particular needs;

6. failed to consider its duty under the Equality Act 2010 take account Mr X’s needs as a disabled person.

2. Mrs B says Mr X accepted the property on the understanding it was interim accommodation. The Council ended the relief duty soon after. Mrs B says this left Mr X in accommodation which is not suitable for his needs. She therefore made a new homelessness application on the grounds that it is not reasonable for him to continue to occupy this accommodation.

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The Ombudsman’s role and powers

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. 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. The Ombudsman generally expects homeless applicants to use the statutory review procedure to challenge adverse homelessness decisions. The review procedure can be used to challenge a decision to end the relief duty and a decision that the Council does not owe the main housing duty.

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How I considered this complaint

6. I have spoken to Mrs B, considered her complaint, and all the evidence she provided. I considered the Council’s reply to my enquiries and relevant housing records.
7. Mrs B, 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

The background to this complaint

8. Mr X is a single man who has a severe and enduring mental health condition. He also has a visual impairment. Due to his disabilities he cannot work and he claims Employment & Support Allowance. He also applied for a Personal Independence Payment.
9. In January 2019 Mr X approached the Council for homelessness assistance after a relative he had been staying with asked him to leave following a breakdown in their relationship.

The relevant legal duties

The relief duty

10. The council has a duty to relieve homelessness when it is satisfied an applicant is eligible for assistance and homeless. This is known as the relief duty. Councils must take reasonable steps to help the applicant to secure that suitable accommodation becomes available to them for at least 6 months. (Housing Act 1996, section 189B(2)
11. The Council may give notice to bring the relief duty to an end in one of the following circumstances:
• the applicant has suitable accommodation that has a reasonable prospect of being available for at least six months;
• it has complied with the relief duty for at least 56 days (whether or not the applicant has secured accommodation); **
• the applicant refused an offer of suitable accommodation that would have been available for at least six months;
• the applicant has become intentionally homeless from any accommodation the council authority made available by exercising functions under this section;
• the applicant is no longer eligible for assistance;
• the applicant has withdrawn the application;
• the applicant is deliberately and unreasonably failing to co-operate with the local authority.
12. The applicant must be notified in writing, and given reasons, for a decision to end the relief duty. The applicant must also be notified of the right to request a review of the decision to end the relief duty.
13. Councils must have regard to statutory guidance in the Homelessness Code of Guidance. It says councils must give applicants a reasonable time to consider offers of accommodation that will bring the prevention and relief duties to an end. There is no set time – councils must take account of the applicant’s circumstances in each case.
14. The Code also says applicants should be given the opportunity to view accommodation before being required to decide whether to accept or refuse an offer, and before signing any written agreement relating to the accommodation (such as a tenancy agreement).

Interim accommodation

15. The council has a duty to arrange interim accommodation during the relief stage as soon as it has reason to believe that an applicant may be eligible, homeless and in priority need. This is a low threshold. (section 188 (1) Housing Act 1996)
16. The Council has a power, but not a duty, to arrange interim accommodation if the applicant requests a review of an adverse homelessness decision. (section 188(3) Housing Act 1996)

The main housing duty

17. If homelessness is not successfully relieved in the relief duty period, the council must then decide if it owes the person the main housing duty. (section 193 (2) Housing Act 1996)
18. The main housing duty is owed to applicants who are eligible for assistance, have a priority need and are not homeless intentionally
19. The Code of Guidance advises councils against accepting the main housing duty during the relief duty period. It says the main housing duty cannot commence until the relief duty has come to an end as issuing notification during the relief stage might detract from activities to relieve homelessness.
20. Under the main housing duty, councils must ensure that suitable accommodation is available for the applicant and any household members until the duty is brought to an end, usually through the offer of a settled home.

Ending the main housing duty with a Private Rented Sector Offer

21. A council may end the main housing duty in one of eight ways. For the purposes of this investigation, one way of ending the duty is to make a Private Rented Sector Offer (PRSO). This is an offer of an assured shorthold tenancy with a private landlord for a term of at least 12 months. The main housing duty ends whether the applicant accepts or refuses the PRSO. (Housing Act 1996, section 193(7AA)
22. In order to end the main housing duty with a PRSO, the applicant must have been informed in writing of the possible consequences of refusing or accepting the offer, their right to request a review of the suitability of the accommodation, and the duties that would be owed if they became homeless and reapplied for assistance within two years of accepting the PRSO.

The Equality Act 2010 and the public sector equality duty

23. As a public authority, councils must comply with the public sector equality duty in section 149 of the Equality Act 2010. This includes a duty to take steps to advance equality of opportunity by meeting the needs of disabled persons when they carry out all their functions.

What happened

24. In late January 2019 Mr X met Officer A who works in the Council’s Homeless Prevention & Advice Service (HPAS). He completed a homelessness application form. He told Officer A he had a borderline personality disorder and ticked a box on the form saying he was at risk of self-harm or a drug or alcohol addiction.
25. On the same day Officer A booked Mr X a room in a bed and breakfast hostel in a neighbouring borough. This was arranged as interim accommodation while Officer A made inquiries and decided what duty the Council owed him.
26. Officer A also prepared a Personalised Housing Plan (PHP) for Mr X on 28 January. It said Mr X should take reasonable steps to look for a one bedroom or studio flat in the private rented sector. It advised Mr X to create an online Council account in order to make a Housing Register application. In terms of support needs, the PHP simply stated Mr X would need assistance to find suitable and affordable accommodation. It did not identify any other support needs. Under steps the Council would take, it said the Council would inform Mr X of any vacant private rented property.
27. On 29 January Officer A notified Mr X he was eligible for assistance and homeless. The Council accepted the relief duty and said it would take reasonable steps to help him secure accommodation. The letter said the Council had reason to believe he may be in priority need so it would arrange interim accommodation.
28. The letter also explained the Council may end the relief duty if one of the events set out in paragraph 11 occurred, including:

Suitable accommodation has become available for your occupation and there is a reasonable prospect that it will continue to be available to you for at least six months from the date of this letter:

29. Mr X completed a vulnerability questionnaire on 30 January and Officer A requested advice from an external medical adviser.
30. On 19 February the Council sent Mr X a decision on his homelessness application. It said he was homeless and eligible for assistance but not in priority need. The letter gave reasons for the decision and explained Mr X’s right to request a review. It said Mr X’s final night in the hostel would be 10 March.
31. On 22 February Mr X sent a brief email to request a review of the decision. Two days later he contacted Officer Y, who works in the Reviews team, to ask the Council to extend his booking at the hostel until 10 March pending the outcome of the review.
32. Mr X then consulted a solicitor, Mrs B. On 1 March she requested a copy of the housing file and made some initial representations about Mr X’s mental health and vulnerability. She also gave reasons why the Council should exercise discretion to accommodate Mr X pending the outcome of the review.
33. On 4 March Officer Y informed Mrs B that the Council would continue to accommodate Mr X at the hostel pending the outcome of the review.
34. On 14 March Officer A met Mr X again to review and update the PHP. According to the case notes, Mr X told Officer A he would like accommodation in Newham or in one of six neighbouring London boroughs. The PHP does not name these boroughs and says nothing about the type of accommodation that would be suitable for Mr X's needs.
35. During the relief duty period, Officer A made an entry in the PHP to say he contacted Mr X on 19 March about a studio flat in Newham. The notes do not record what information Officer A gave Mr X about the tenure of this property.
36. On 22 March Officer A sent an email to Mr X. It included contact details for the landlord, the address of the property and the date for a viewing..
37. Mr X viewed the property on 25 March. He emailed Officer A shortly after the viewing to tell him he had accepted it. He asked Officer A to contact the landlord about the tenancy arrangements.
38. On 26 March Mrs B spoke to Officer Y about the offer. I have seen her attendance note. She asked Officer Y if the property was temporary accommodation or a Private Rented Sector Offer to end the relief duty. Officer Y said it was temporary accommodation.
39. Mr X signed the tenancy agreement on 28 March. It granted an assured shorthold tenancy for a term of 12 months. The tenancy started on 1 April.
40. Officer A advised Mr X to claim Universal Credit to cover the rent. On 29 March Mrs B contacted Officer A to ask why he would need to claim Universal Credit to cover his rent liability. She pointed out that rent on temporary accommodation is eligible for Housing Benefit.
41. Officer A replied:

“the property offered to Mr[ X] is a private property, and not temporary accommodation. Mr [X] was advised from the beginning what the property was and viewed and accepted it with full knowledge.”

42. The Council cancelled Mr X’s booking at the B&B hostel and his last night there was 31 March. Mrs B contacted Officer A on the afternoon of 1 April to say Mr X did not have the keys for the studio flat. Mr X moved into the flat later that evening. The Council says it does not know what time Mr X picked up the keys and gained access to the property.
43. On 1 April Officer Y informed Mr X and Mrs B that Mr X was no longer homeless and so this had “compromised” his review.
44. On 3 April Officer Y sent the review decision to Mrs B. In the letter he said there had been a material change in Mr X’s circumstances because he was no longer homeless. He had therefore cancelled the review request. The letter explained the right to appeal on a point of law to the County Court within 21 days.
45. Mrs B complained to the Council about the way it had handled the accommodation offer. She said the Council had not explained to Mr X that by accepting the accommodation he would compromise the review of the decision that he was not in priority need. She said there was no evidence that the Council had considered whether the studio flat was suitable for Mr X’s needs as a disabled person with mental health issues

Ending the relief duty

46. On 4 April Officer A sent two letters to Mr X at the B&B hostel rather than to his new address at the studio flat. The Council accepts this was an error. The hostel did not forward the letters to Mr X’s new address.
47. One letter says the Council had ended the main housing duty because Mr X had accepted a PRSO. It says a PRSO offer letter was sent to Mr X on 28 March to inform him of the consequences of accepting the offer and his review rights.
48. In response to my enquiries, the Council confirmed this letter was sent in error. The accommodation was not a PRSO. The letter is wrong on the following counts:
• It says the Council owed Mr X the main housing duty (in fact he was owed the relief duty at the relevant time);
• It says the accommodation was a PRSO (however a PRSO can only be made to end the main housing duty and not the relief duty);
• It said a letter had been sent to Mr X on 28 March about the consequences of refusing or accepting this offer (no such letter had been sent to him).
49. The other letter, also dated 4 April, said the Council had ended the relief duty because Mr X had suitable accommodation which had a reasonable prospect of being available for at least six months. It included information about the right to request a review of that decision.
50. As both letters were sent to the wrong address, neither Mr X nor Mrs B saw them until November 2019 when the Council sent Mrs B a copy of Mr X’s housing file.
51. On 9 April Mrs B wrote to the Council. She asked it to accept her letter as a new homelessness application for Mr X on the grounds it was not reasonable for him to continue to occupy his new accommodation. She said the new application was based on new facts. She set out in detail the reasons why the studio flat was not suitable for Mr X’s needs.
52. On 16 April Mrs B contacted the Reviews team to draw attention to a procedural irregularity in the review decision letter. She said the Review Officer was required to issue a “minded to” letter and invite further representations if he intended to make an adverse review decision for different reasons. She also argued that the relief duty should not have ended because the accommodation was not suitable for Mr X’s needs. The Council agreed the 1 April letter was defective and agreed to consider a new homelessness application.

The new homelessness application

53. On 17 April the Council’s Legal Service agreed to accept a new homelessness application. Officer A had a brief meeting with Mr X on 29 May. In July Mrs B contacted Officer A to ask when he expected to make a decision. She pointed out that Mr X had not received any further letters or a new PHP.
54. Officer A contacted Mrs B on 11 July to say he believed he had sufficient information to make a decision. He did not need to interview Mr X again. He said he would contact her soon. Mrs B sent supporting medical and other evidence to Officer A in July and early August.
55. On 6 August Mrs B contacted the Council’s Legal Service again to ask about the progress of Mr X’s new homelessness application. She also put the Council on notice she would issue a Pre Action Protocol letter if it did not respond within seven days. She sent a further reminder on 30 August.
56. Mrs B complained to the Ombudsman on 20 August 2019. At that point, the Council had not made a decision on Mr X’s April 2019 homelessness application.

Subsequent events

57. We did not investigate what happened after Mrs B made the complaint to the Ombudsman on 20 August 2019. But it is relevant to include a summary of recent events and Mr X’s current circumstances.
58. On 25 September 2019 Officer A sent Mr X a homelessness decision letter. He said Mr X was not homeless because he was satisfied the studio flat was suitable for him as a single person. The letter explained Mr X’s review rights.
59. In early October 2019 Mrs B requested a review of that decision and made written representations.
60. On 20 April 2020 the Reviews Officer informed Mrs B he had quashed the decision that Mr X was not homeless. He passed the case back to Officer A to make further enquiries before making a new decision.
61. In late July 2020 the Council accepted it owes Mr X the main housing duty. Mr X is still in the studio flat while the Council looks for suitable alternative accommodation.

Analysis

Complaint a)

62. Mrs B complains that the Council did not inform Mr X the studio flat was an offer to end the relief duty and not interim accommodation pending the outcome of his review. She says the Council did not explain to Mr X that acceptance of this offer would compromise his homelessness review.
63. The Council’s records show Officer A gave Mr X information about the location of the property, the viewing date and the landlord’s details. The case notes do not record what Officer A told Mr X about the status of the accommodation. The Council says Officer A did discuss this with Mr X who understood it was a private rented sector tenancy. After viewing the property, Mr X signed an assured shorthold tenancy agreement which explained the terms of the tenancy.
64. The Council says it simply acted as a facilitator by telling Mr X about the property and putting him in contact with the landlord. It says it was not making an offer of accommodation.
65. The studio flat was not, and could not have been, a Private Rented Sector Offer. As the Council had not accepted the main housing duty, it could not make a PRSO and therefore it was not required to give Mr X the information set out in paragraph 21. It seems likely the Council’s intention was to end the relief duty on the grounds that Mr X had secured suitable accommodation that had a reasonable prospect of being available for at least six months. In the section below I have set out the confusion and misunderstanding caused by the Council’s poor handling of this case.

Complaints b) and c)

66. I found the following faults:
• Officer Y misled Mrs B when she contacted him on 26 March to enquire about the status of the studio flat;
• the Council sent Mr X a letter on 4 April 2019 which wrongly stated the studio flat was a PRSO;
• both letters dated 4 April 2019 were sent to Mr X’s former address at the B&B hostel so he did not receive them. He was therefore not informed of the decision to end the relief duty and his right to request a review at the time.
67. Mrs B says Mr X only accepted the studio flat because he understood it was short-term interim accommodation pending the outcome of his review. Mrs B had specifically asked Officer Y to confirm this before Mr X viewed the property. The Council says Officer A had told Mr X it was a private rented sector tenancy. But there is nothing in the case notes to confirm that Mr X was given this information. So it seems reasonable to conclude that Mr X relied on the information Mrs B obtained from Officer Y and understood it to be short-term accommodation while his review was being considered.
68. I considered whether Mr X should have realised it was a longer term private sector tenancy because he signed an assured shorthold tenancy agreement for the flat. However he may not have understood the significance of this document and it seems likely he would have relied on Mrs B’s assurance, based on the information given by Officer Y, that it was interim accommodation.
69. Mr X did not know the Council had ended the relief duty in April 2019 because the letter was sent to his former address and was not forwarded. He therefore could not request a review of this decision at the time. Mrs B could not request a review until November 2019 when she first had sight of the decision letter.
70. The injustice to Mr X is that he was deprived of the opportunity to make a timely request for a review of the decision to end the relief duty. He has spent more than 12 months so far in accommodation which the Council now accepts it is not reasonable for him to continue to occupy.

Complaint d)

71. Mr X had to leave the B&B hostel on the morning of 1 April before arrangements were made for him to collect keys to the studio flat. Mrs B intervened and contacted the Council in the afternoon. Mr X then picked up the keys and moved into the flat that evening.
72. I am sure the confusion about the arrangements for the move must have been stressful and caused Mr X some anxiety. He was worried he may have nowhere to stay that night. However matters were resolved following Mrs B’s intervention and Mr X was able to move in on the same day. For this reason, I do not consider Mr X suffered injustice.

Complaint e)

73. In late April 2020 the Review Officer decided to quash the original decision made on 25 September 2019 that Mr X was not homeless or threatened with homelessness.
74. The Review Officer’s decision effectively provides a response to Mrs B’s complaint that the studio flat is not suitable accommodation for Mr X. The Council now considers Mr X is homeless because it is not reasonable to expect him to continue occupying the studio flat.
75. This investigation is limited to the matters Mrs B included in the complaint she made to us in August 2019. For this reason, I will not comment on the overall time taken to complete the homelessness review because this happened after August 2019. However there was an unacceptable delay in making the original decision on the April 2019 homelessness application. It took more than six months to make a decision during which time Mrs B regularly chased progress. There was no good reason for this delay and it caused further uncertainty for Mr X.

Complaint f)

76. As a disabled person, Mr X is a person with a protected characteristic under the Equality Act 2010. The Council knew about his disability. There is no evidence in the case records or the PHP to demonstrate that the Council had considered his specific housing and support needs as a disabled person, and taken these into account, before it decided the studio flat was suitable accommodation to bring the relief duty to an end. The Council was at fault because it failed to give proper consideration to Mr X’s specific needs as a disabled person when it carried out its duties.

The impact on Mr X

77. I considered whether these failings caused Mr X injustice.
78. On the evidence I have seen, it seems unlikely Mr X would have accepted the studio flat if he had known it was long-term accommodation rather than interim accommodation. If he had refused the tenancy of the studio flat, there is some uncertainty about what would then have happened. There were several possible outcomes. The Council may still have decided to end the relief duty if it considered the studio flat was suitable. If it had done that, and properly notified Mr X of the decision, it is likely Mr X would have instructed Mrs B to request a review. Alternatively, the Council may have accepted that Mr X had good reasons for refusing the studio flat and found suitable alternative accommodation to bring the relief duty to an end. Or Mr X may have still been in the interim accommodation when the relief duty period ended if the Council had not found suitable accommodation for him by then.
79. If the Council had not found suitable accommodation in the relief duty period, it would then have had to decide whether it owed Mr X the main housing duty. It would have considered whether Mr X was in priority need and unintentionally homeless.
80. As there were several possible outcomes, we cannot know what Mr X’s situation would have been if these faults had not happened. Mr X is left not knowing whether there might have been a better outcome. That uncertainty, and the missed opportunity to have these important matters properly considered in a timely manner, are significant injustices in themselves.

Agreed action

81. After we issued our draft decision, the Council decided it owes Mr X the main housing duty. It has completed a new Personalised Housing Plan with him. It is now looking for suitable alternative temporary accommodation or suitable accommodation in the private rented sector.
82. Within one month of the final decision, the Council will take the following action:
• arrange for a senior officer to apologise in writing to Mr X;
• pay Mr X £350 to recognise the significant uncertainty caused by its poor handling of his case.
83. Within two months, the Council will take the following steps:
• issue a briefing note to officers who prepare Personalised Housing Plans to draw their attention to the legal duty to consider the applicant’s support needs and record this information in the PHP;
• review a sample of PHPs for applicants who are disabled to ensure officers assess and record information about any identified support needs;
• ensure a robust process is in place to update an applicant’s contact details promptly so notification letters are always sent to the correct address;
• remind case officers to make a note of discussions with applicants about the status of accommodation offered and the consequences for any housing duty owed.

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Final decision

84. I have completed the investigation and found the Council was at fault and this caused injustice to Mr X. The Council has agreed to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman