London Borough of Brent (19 018 496)

Category : Housing > Homelessness

Decision : Upheld

Decision date : 01 Apr 2021

The Ombudsman's final decision:

Summary: The Council took too long to help Mr X when he and his family were threatened with homelessness. Mr X was left in unsuitable accommodation for six months longer than necessary. The Council should pay Mr X £2350 to acknowledge the injustice this caused to him and take action to improve its services.

The complaint

  1. Mr X complains the Council failed to take proper action to help him as a homeless person. He says lack of action by the Council meant he, his wife, and his young son, lived in one room in a house in multiple occupation, sharing facilities with other residents.

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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. 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 complaint Mr X made and discussed it with him. I asked the Council for information and considered what it provided.
  2. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

  1. If a council has ‘reason to believe’ someone may be homeless or threatened with homelessness, it must take a homelessness application and make inquiries. (Housing Act 1996, section 184 and Homelessness Code of Guidance paragraphs 6.2 and 18.5) 
  2. Someone is threatened with homelessness if, when asking for assistance from the Council on or after 3 April 2018:
  • he or she is likely to become homeless within 56 days; or
  • he or she has been served with a valid Section 21 notice which will expire within 56 days. [Housing Act 1996, section 175(4) & (5)]
  1. A person is also homeless if they do not have accommodation which it would be reasonable for them to continue to live in. (Housing Act 1996 section 175)
  2. There is no simple test of reasonableness and authorities should judge each application on the facts of the case. Statutory overcrowding or unfitness are not guarantees that it is unreasonable to occupy in terms of the Act, although they are relevant factors for the authority to consider. (Homelessness Code of Guidance 6.23)
  3. If someone is threatened with homelessness, the council has a duty to help the applicant keep their accommodation. This is called the Prevention Duty. (Housing Act 1996, section 195)
  4. In cases where the applicant is not being evicted from private rented property, the Prevention Duty ends 56 days after the council became subject to it.
  5. Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. The Code of Guidance says, rather than tell the applicant to return when homelessness is more imminent, the housing authority may wish to accept a prevention duty and begin to take reasonable steps to prevent homelessness. Councils must notify the applicant of the assessment. Councils should work with applicants to identify practical and reasonable steps for the council and the applicant to take to help the applicant keep or secure suitable accommodation. These steps should be tailored to the household and follow from the findings of the assessment. A council must give the applicant a written personalised housing plan (PHP). (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.18)
  6. A council must keep the PHP under review and notify the applicant of any changes. Some applicants need more intensive council involvement to achieve a successful outcome, and a council’s timescales for regular contact and reviews should reflect this. (Homelessness Code of Guidance paragraph 11.32)
  7. If the council agrees the applicant is homeless, it must help the applicant secure accommodation available for at least six months. This is the Relief Duty. (Housing Act 1996, section 189B)
  8. The Relief Duty ends 56 days after the council became subject to the duty, even if the applicant has not found accommodation.
  9. If the council does not prevent or relieve homelessness and the applicant is homeless, eligible for assistance, and has a priority need the council must ensure accommodation is available for their occupation. (Unless it refers the application to another housing authority under section 198). Applicants with dependent children have a priority need. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)
  10. Bed and breakfast (B&B) accommodation can only be used for households which include a pregnant woman or dependent child when no other accommodation is available and then for no more than six weeks.  B&B is accommodation which is not self-contained, not owned by the Council or a registered provider of social housing and where the toilet, washing, or cooking facilities are shared with other households.  (Homelessness (Suitability of Accommodation) (England) Order 2003 and from 3 April 2018 Homelessness Code of Guidance paragraph 17.32)
  11. The Council must give written decision when it decides it owes the prevention, relief and main housing duty and when the duty has ended. The decision letter must tell the applicant of the right to ask for a review of the decision.

The Council’s allocation policy

  1. Every local housing authority must publish an allocation scheme setting out how it prioritises applications and how it allocates housing. The scheme must give “reasonable preference” to certain applicants, including homeless people.
  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 medical or welfare grounds;
  • people who need to move to avoid hardship to themselves or others. (Housing Act 1996, section 166A(3))
  1. Government guidance says social tenants applying for a transfer with a reasonable preference “must be treated on the same basis as new applicants with the requirements of s166A(3)”. (Allocation of accommodation: guidance for local housing authorities in England)
  2. The Council’s scheme gives high priority band A to applicants where it has accepted a homelessness duty. It gives band B to statutorily overcrowded council tenants. It also gives Band B where there is a medical reason to move. It gives band C to people it has accepted a homeless duty to and placed in long term temporary accommodation. It also gives band C when an applicant lacks 2 or more bedrooms.
  3. The Council gives 5 years additional waiting time for some working applicants.
  4. The policy says as the Council has a duty to provide suitable temporary accommodation, it will provide an appropriate size home when an applicant first becomes homeless. If the applicant then becomes severely overcrowded, it will offer alternative temporary accommodation as soon as practicable. It says because of this it does not give additional priority for overcrowding to homeless applicants.

The Housing Health and Safety Rating System

  1. Private tenants can complain to a council about disrepair in their homes. The council will then inspect for hazards. If the council finds a category 1 hazard, it must act. One action it can take is to serve an improvement notice on the landlord. If the council finds any category 2 hazards it can take action against the landlord. (Housing Act 2004 sections 5 to 7)
  2. Government guidance says if the landlord agrees to do the work in a reasonable time, a council can wait before serving a notice. (ODPM Housing Health and Safety Rating System Enforcement Guidance 2006)

Statutory overcrowding

  1. The Housing Act 1985 says the size of the room restricts the number of people who can sleep in it. A room with a floor area of less than 50 square feet does not count as a room available to sleep in. 0.5 people can sleep in a room with a floor measurement between 50 and 70 square feet. 1 person can sleep in a room with a floor measurement between 70 and 90 square feet. 1.5 people can sleep in a room with a floor measurement between 90 and 110 square feet. 2 people can sleep in a room with a floor measurement of over 110 square feet.
  2. The Act ignores children under a year old for the calculation and counts children aged between a year and ten years old as half a unit. Therefore, a room that can sleep 1.5 units can sleep an adult and a child under ten. A room that can sleep a half unit provides sleeping space for a child under ten.
  3. Under the Act rooms that count for assessing statutory overcrowding include living rooms, bedrooms and large kitchens but ignores rooms under 50 square feet.
  4. Statutory overcrowding is a category 1 hazard.

Licensing of houses in multiple occupation (HMOs)

  1. An HMO is a property rented out by at least three people who are not from one household but share facilities like the bathroom and kitchen. Private landlords must obtain a licence to rent out a large HMO (which has more than three storeys and is occupied by five or more persons forming two or more households).
  2. The Council issues a licence and imposes conditions, including the maximum number of occupants. If the landlord breaches a condition of the licence he runs the risk of a criminal prosecution and unlimited fine or a civil penalty of up to £30,000.

What happened

  1. Mr X lives in a room in a house in multiple occupation (HMO). The HMO is for men only. Most rooms are for one person but some are for two people. The tenants share a kitchen and bathroom. The HMO has a licence and can provide accommodation for no more than 10 people. The Council is the Licensing Authority and it put the conditions on the licence.
  2. Mr X’s wife and child joined him at the HMO. Mrs X has a life-long disability causing weakness on the right side of her body. On 10 September 2019 Mr X asked the Council to help him with accommodation.
  3. The Council did not complete a housing application for Mr X. It says it does this when it accepts the homelessness duty.
  4. The Council interviewed Mr X on 16 September. The Officer who interviewed
    Mr X, Officer 1, said she needed to assess if Mr X was statutorily overcrowded. She also said she had no connection with the allocation of council housing and the Council would discharge any duty with an offer of private sector housing.
  5. Mr X contacted Officer 1 on 25 September as he had not heard from her. Officer 1 agreed to visit on 3 October 2019. On 3 October Officer 1 accepted Mr X was statutorily overcrowded as 2.5 people lived in one loft room sharing the kitchen and bathroom with the other tenants. The Council accepted a prevention duty for Mr X, Officer 1 said she would send Mr X his PHP.
  6. Mr X emailed the Council 4 times in October asking for an update. Officer 1 telephoned Mr X on 22 October. Mr X told her he could afford rent and deposit but needed help finding a property.
  7. On 23 October Mr X’s landlord telephoned Officer 1. The landlord said that Mr X’s wife and child being at the property breached his licence. Officer 1 told the landlord Mr X could legally remain at the property. The landlord said he would serve a notice seeking possession on Mr X.
  8. On 2 November 2019 Mr X complained to the Council it had not done anything to help him and should move to the relief stage. He also asked for interim accommodation.
  9. The Council replied on 29 November. It said Mr X would only accept social housing, which was unlikely due to the lack of it. It told Mr X some of the help it could offer if he found a private rented property. It said Mr X’s case was still at the prevention stage, and as he was not homeless, the Council would not provide interim accommodation.
  10. Mr X responded he had never said he would only accept social housing. He said the Council should move to the relief stage. He said the Council had taken no account of his wife’s disability.
  11. On 17 January 2020 the Council asked Mr X to complete a medical assessment for his wife. Mr X said he would get information from her GP.
  12. On 20 January 2020 Mr X telephoned Officer 1 while his landlord was with him. The landlord was threatening to change the locks as he feared he would be in trouble with the Licensing Department. Officer 1 said the landlord would commit a criminal offence if he evicted Mr X.
  13. Officer 1 made an appointment with Mr X for 3 February to discuss his PHP. Officer 1 confirmed she had received the medical information for Mrs X and sent this to an external medical assessor. She said even if the property was unsuitable Mr X’s case would remain at the prevention duty stage.
  14. The Council sent Mr X its stage 2 complaint response on 3 February 2020.It said it was not mandatory for the Council to move to the relief stage 56 days after accepting the prevention duty. It said it had discretion to extend the prevention period if it believed it still could prevent homelessness. It said Mr X’s landlord had not started possession proceedings.
  15. The Council accepted it had not provided Mr X with a reasonable level of support and advice. It said it had not sent him a PHP. It apologised for its lack of effective action and offered Mr X £200 for the delay.
  16. Mr X replied the Council had missed the point of his complaint. He says he did not ask for compensation he asked for the help he was entitled to under the homeless legislation.
  17. The Council emailed Mr X his PHP on 3 February 2020. It accepted it did not tell him he could ask for a review of its contents. It says Mr X knew he had review rights from other decisions it had sent him. The PHP shows Mr X works full time.
  18. On 4 February the external medical advisor provided an opinion on Mr X’s accommodation. It said Mrs X could manage some stairs and her present accommodation was tolerable if not ideal. It said Mrs X needed a property either with a lift or not above the first floor. The assessor did not give an opinion on if
    Mr X should have medical priority for rehousing as Mr X did not have a housing application. The Council did not tell Mr X about the outcome of the assessment.
  19. On 7 February the Council moved Mr X’s case to the relief stage. It did not send him a notice about this.
  20. On 8 February Mr X called the out of hours service asking for emergency accommodation. He said the landlord had called the police out about him. The out of hours officer told Mr X he was not homeless and so the Council would not provide emergency accommodation.
  21. The Council says on 11 February 2020 it gave Mr X’s details to a landlord but he did not offer the property to Mr X.
  22. On 2 March 2020 Mr X made another complaint about the lack of progress on his housing. He said his family were still stuck in one room in an HMO.
  23. The Council replied on 11 March. It said it had supported Mr X in finding private sector accommodation, but Mr X had not been successful. It said it would look for suitable accommodation to end Mr X’s homelessness and he should keep looking himself. It accepted it had not sent him notice of the relief duty and sent it that day.
  24. Officer 1 telephoned Mr X the same day to apologise for not sending the relief duty notice. She acknowledged Mr X had now provided a notice seeking possession but said it may not be valid. Mr X asked about emergency accommodation. Officer 1 told him it would be in a B&B outside London and cost him more than his current accommodation. Officer 1 said that if Mr X had not found accommodation by the time his notice expires on 22 March he would need to stay where he was.
  25. On 3 April 2020 Mr X emailed the Council about the severity of his situation. He said he felt particularly unsupported in the Covid 19 crisis.
  26. On 6 April the Council accepted the main homelessness duty and registered a housing application for Mr X. It asked Mr X to supply bank statements. It placed Mr X’s application in band C. The Council says it cannot provide me with a copy of its registration letter to Mr X for technical reasons.
  27. On 20 April Officer 1 responded to Mr X’s email. She repeated that emergency accommodation would be in shared accommodation and expensive but if he wanted this to let her know.
  28. Mr X replied that the Council had not told him the outcome of the medical assessment and this could affect the type of property the Council might offer him. He said he worked full time and should be eligible for extra priority. Mr X asked for emergency accommodation. He asked the Council to nominate him to a housing association. The Council then asked Mr X for information about his employment.
  29. The Council did not backdate Mr X’s application, as he made a successful bid.
  30. In May 2020, to discharge the homelessness duty the Council offered Mr X a
    1 bedroom private rented flat in Brent at a weekly rent of £365.52 a week. It said there was no other affordable, suitable accommodation for him in Brent. However, on 7 May Mr X made his successful bid for a 1 bedroom social rented property. The Council decided to allocate the social rented property to him.
  31. As of July 2020, Mr X had not moved because of the difficulties posed by Covid-19.

My findings

  1. The Council should have completed a housing application for Mr X in September 2019. Mr X had reasonable preference as his family were overcrowded. The failure to complete a housing application caused Mr X injustice as he missed the opportunity of an earlier successful bid for accommodation.
  2. The Council failed to consider if it was reasonable for Mr X and his family to continue to occupy the room. It confirmed he was statutorily overcrowded. It had imposed licence conditions on the property Mr X lived in and Mr X’s family joining him breached those conditions. This meant Mr X’s landlord faced the possibility of a large fine. Therefore, Mr X’s landlord was desperate for the family to leave. The Council should have considered if these circumstances meant it was unreasonable for Mr X to continue to occupy the room. The failure to do so placed Mr X under unreasonable stress and anxiety and he missed the possibility of the Council providing accommodation. It seems likely that had the Council considered Mr X’s circumstances properly it would have provided him with interim accommodation.
  3. There was a lack of communication between the Council teams dealing with homelessness, allocations and HMO licensing. When the Council first dealt with Mr X it should have identified that he may also have a medical need to move as well as being overcrowded. The Council did not do so until some time after it first dealt with him. I have also seen no evidence of proper liaison between the homeless team and the team dealing with HMO licensing. The Council continued to insist Mr X could remain in the HMO even though another part of the Council was likely to find his landlord in breach of his license. The lack of communication is fault and compounded the difficulties Mr X faced at an already stressful time.
  4. The Council advised Mr X that it would place him in B&B accommodation outside of London. This is fault. The Council should have advised Mr X that B&B was unsuitable for families and could only be used where no other accommodation was available and even then for no longer than 6 weeks. The Council also failed to advise Mr X that as someone who was employed full time he would have priority for a placement in accommodation inside London. The advice the Council gave to Mr X was an attempt to deny him accommodation he was entitled to. As a result he remained in unsuitable accommodation for longer than necessary.
  5. The Council took from November 2019 to February 2020 to ask Mr X for information about his wife’s disability. This delay is fault. The Council then failed to tell Mr X the outcome of the medical assessment.
  6. The Council also took five months to provide Mr X with a PHP. This is fault. It caused injustice as the Council provided no steps for it or Mr X to take to help him find new accommodation. The Council then failed to tell Mr X had could ask for a review of the contains of the PHP.
  7. I have seen no evidence of any action by the Council to assist Mr X in the 56 day prevention period. This should have ended in early December 2019. The Council then took no action for another three months. The Council had no grounds to extend the prevention period as it was not taking any action to prevent homelessness. The Council finally moved to the relief stage in February 2020 but did not tell Mr X. This is further fault.
  8. Mr X also had to chase the Council for responses and when he complained it said he only wanted social rented accommodation which was not the case. This meant Mr X was put to unnecessary time and trouble.
  9. As a result of the fault I have identified, Mr X and his family were left in unsuitable accommodation between November 2019 and May 2020. That is a period of 6 months. There was a delay in Mr X being able to move due to Covid-19, however I have to consider there would have been a period of time where the Council considered Mr X’s circumstances and some time between him moving between properties. Therefore I consider Mr X was in unsuitable accommodation for 6 months longer than he should have been.

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Recommended action.

  1. The Council should take the following action to remedy the injustice caused by the fault I have identified:
    • Write to Mr X to apologise for leaving him and his family in unsuitable accommodation and for its failure to provide him with proper support to find alternative accommodation.
    • Pay Mr X £2100 for leaving him in unsuitable accommodation longer than he should have been. This takes account of the fact the accommodation was overcrowded, that Mr X’s landlord was putting pressure on him to leave and the impact of the property on his wife’s disability.
    • Pay Mr X £250 for his unnecessary time and trouble pursuing his complaint.
  2. The Council should take this action within 4 weeks of my final decision.
  3. The Council should also take the following action to improve its services:
    • Remind all staff of the Council’s duties with regards to B&B placements for families and its policy on out of borough placements.
    • Review its documents to ensure applicants are advised of their appropriate review rights.
    • Develop a joint working protocol between teams responsible for:
      1. Housing conditions (e.g. overcrowding and disrepair)
      2. HMO Licensing
      3. Housing allocations
      4. Homelessness

This is to ensure that applicants are not required to provide the same information repeatedly and that there are effective referral mechanisms between each team. This will ensure the Council fulfils its statutory duties in relation to these areas.

    • Review staff training needs to ensure relevant staff have received up to date training in homelessness legislation and the Council’s duties under Part VII of the 1996 Housing Act.
  1. The Council should take this action within 6 months of my final decision and report back to the Ombudsman with the action it has taken.

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Final decision

  1. I have completed my investigation as I have found fault causing injustice. The action I have recommended is a suitable remedy for this.

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Investigator's decision on behalf of the Ombudsman

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