Westminster City Council (19 018 657)

Category : Housing > Homelessness

Decision : Upheld

Decision date : 22 Dec 2020

The Ombudsman's final decision:

Summary: Mr X complains about the Council’s handling of his homelessness case. He said the Council failed to take appropriate action when he asked for support. We find fault with the Council for not providing interim accommodation in February 2018. We also find fault with the Council’s complaint handling. We have made recommendations.

The complaint

  1. Mr X complains the Council did not provide appropriate information and failed to take appropriate action when he asked for support with homelessness and housing difficulties between February 2018 and February 2020. In particular, he says there was:
    • a delay in issuing a section 184 decision;
    • a failure to offer interim accommodation under section 188 of the Housing Act 1996;
    • a failure to offer accommodation until the day before eviction;
    • a delay in issuing a personal housing plan; and
    • a delay in referring him to Westlets.

Mr X also complains about the Council’s complaint handling. He says the Council’s actions caused him avoidable distress, may have caused him to lose out on private properties, and meant he got into avoidable debt (rent arrears and court costs). He would like the Council to compensate him.

  1. Mr X is represented by Ms P.

Back to top

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. 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)

Back to top

How I considered this complaint

  1. I spoke with Mr X and Ms P and considered the information they provided.
  2. I made enquiries with the Council and considered the information it provided.
  3. I sent two draft decisions to Mr X, Ms P, and the Council and considered their comments.

Back to top

What I found

Legislation and guidance

  1. Part 7 of the Housing Act 1996 and the 2006 Homelessness Code of Guidance for Local Authorities set out council’s powers and duties to people who are homeless or threatened with homelessness.
  2. Under section 184 of the Housing Act 1996, where a housing authority has reason to believe that an applicant may be homeless or threatened with homelessness, it must make inquiries to satisfy itself whether the applicant is eligible for assistance and, if so, whether any duty is owed to him or her under Part 7. In order to determine this, the authority will need to establish whether the applicant is homeless or threatened with homelessness, whether they became homeless, or threatened with homelessness, intentionally, and whether they have a priority need for accommodation. (paragraph 6.12)
  3. The obligation to make inquiries, and satisfy itself whether a duty is owed, rests with the housing authority and it is not for applicants to “prove their case”. Applicants should always be given the opportunity to explain their circumstances fully, particularly on matters that could lead to a decision against their interests, for example, a decision that an applicant is intentionally homeless. (paragraph 6.15)
  4. Housing authorities should deal with inquiries as quickly as possible, whilst ensuring that they are thorough and sufficient to enable the housing authority to satisfy itself what duty, if any, is owed or what other assistance can be offered. Housing authorities are obliged to begin inquiries as soon as they have reason to believe that an applicant may be homeless or threatened with homelessness. Wherever possible, it is recommended that housing authorities aim to complete their inquiries and notify the applicant of their decision within 33 working days of accepting a duty to make enquiries. In many cases, it should be possible for authorities to complete the inquiries significantly earlier. (paragraph 6.16)
  5. A person who has accommodation is to be treated as homeless where it would not be reasonable for them to continue to occupy that accommodation. (paragraph 8.4)
  6. Councils must consider the affordability of the accommodation for the applicant when considering whether it is reasonable for them to continue to occupy their accommodation. (paragraph 8.29)
  7. The code of guidance further notes that housing authorities should not adopt a general policy of accepting, or refusing to accept, applicants as homeless or threatened with homelessness when they are threatened with eviction but a court has not yet made an order for possession or issued a warrant of execution. (paragraph 8.32)
  8. Where an applicant is unintentionally homeless, eligible for assistance, and has a priority need for accommodation, the housing authority has a duty under section 193 of the Housing Act 1996, to secure that accommodation is available for occupation by the applicant. This is commonly known as the main housing duty.
  9. The code of guidance notes that section 188(1) of the Housing Act 1996 imposes an interim duty on housing authorities to secure that accommodation is available for an applicant pending their decision, as to what duty, if any, is owed to the applicant under Part 7 of the Act if they have reason to believe the applicant may:
      1. be homeless,
      2. be eligible for assistance, and
      3. have a priority need.
  10. The code of guidance also notes the threshold for the duty is low as the local authority only has to have a reason to believe the applicant may be homeless, eligible for assistance, and have a priority need. (paragraphs 7.2 and 7.3)
  11. Part 7 of the Housing Act 1996 was amended by the Homelessness Reduction Act 2017, with effect from April 2018. This changed the law on homelessness and introduced new duties on councils, including the relief duty.
  12. 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)

Council’s complaints procedure

  1. The Council has a two stage complaints procedure. It aims to respond to stage one and two complaints within 10 working days.

What happened

  1. Mr X has three children with his partner, Ms Y.
  2. In February 2018, Mr X approached the Council and told it he was in rent arrears. Mr X attended an appointment with the Council. The Council’s records note Mr X told the Council he was in rent arrears of £10,000 and that he received a letter from the landlord which stated it would begin possession proceedings if the arrears were not cleared. The Council referred Mr X to the housing service.
  3. In March 2018, Mr X attended another meeting with the Council. He again told the Council he was in rent arrears of £10,000. The Council’s records noted it offered to approach Mr X’s landlord to investigate the possibility of getting the rent reduced, but Mr X declined this.
  4. Near the end of March 2018, Mr X told the Council he had received a notice from the landlord. The Council’s records state it would wait for Mr X to advise the Council how he would like to be assisted.
  5. The Council said Mr X did not make contact again until August 2018. The Council referred Mr X to the homeless casework team for a homeless application to be taken.
  6. Mr X made two attempts to speak with his caseworker near the end of August 2018. He also told the Council he was facing eviction. The evidence shows the caseworker did not contact Mr X.
  7. At the end of September 2018, Mr X attended a homeless assessment with the Council.
  8. In October 2018, Mr X called the Council and asked for his caseworker to contact him. There was no evidence the caseworker contacted Mr X. Mr X also told the Council he had attended court and the decision had gone in favour of his landlord. He told the Council he was required to leave the property in two weeks.
  9. The Council said it told Mr X to visit the housing service for temporary accommodation the day before the eviction date. The Council also said it told him he would be owed the relief duty and it would offer him assistance with finding private rented accommodation.
  10. In November 2018, Mr X contacted the Council as he had not heard back from his caseworker. The Council’s record noted Mr X had been ordered to leave the property by the end of October 2018, but he remained at the property as he had nowhere to go. There is no evidence the Council contacted Mr X.
  11. In December 2018, Mr X approached the Council to discuss his case. Mr X told the Council there had been no progression with the possession proceedings due to a backlog in the court. The Council accepted the relief duty and issued Mr X’s PHP. Mr X’s PHP noted the Council would refer him to Westlets. This was the team who assisted homeless applicants with finding alternative private rented accommodation.
  12. In February 2019, the Council told Mr X it had chased up its referral to Westlets. The Council also asked Mr X to complete some forms.
  13. In March 2019, the Council registered Mr X with Westlets.
  14. In April 2019, Mr X made a complaint to the Council regarding its handling of his housing case.
  15. In June 2019, the Council asked Mr X to complete the forms it had provided in February. At the end of June 2019, the Council ended the relief duty.
  16. In August 2019, the Council accepted it owed Mr X the main housing duty. The Council also responded to Mr X’s complaint. The Council acknowledged there had been delays with issuing Mr X’s PHP, referring him to Westlets, and deciding whether a housing duty was owed.
  17. Near the end of August 2019, Mr X told the Council his landlord had asked him to leave the accommodation as soon as possible. Mr X moved into temporary accommodation at the end of August 2019.
  18. In September 2019, Mr X asked the Council to investigate his complaint at stage two. The Council responded in February 2020.
  19. In response to my enquiries, the Council accepted there had been delays with:
    • accepting the relief duty;
    • issuing Mr X’s PHP;
    • referring him to Westlets;
    • issuing the section 184 decision; and
    • responding to his complaint.
  20. The Council has offered Mr X £200 in recognition of the delays experienced.
  21. Mr X explained he continued to live in the property even after he had been ordered to leave by the court. Mr X said he did not have anywhere else to go and he was afraid that if he left, the Council would not help him because it would consider him to be intentionally homeless. Mr X said he continued to accrue rent arrears and that he did not pay any rent for the time he remained living in the property. Mr X confirmed he only left the property when the Council provided temporary accommodation in August 2019.
  22. Mr X said between November 2018 and August 2019, he continuously asked the Council for alternative accommodation. He said the Council did not respond to him.
  23. In response to our draft decision, the Council said it was aware the property was unaffordable for Mr X in March 2018 but could not make inquiries as Mr X did not give the Council consent. The Council further said Mr X did not make a homeless application in February 2018.
  24. The Council also said Mr X received housing benefit and universal credit between February 2018 and August 2019. The Council said Mr X should have used the benefits he received to pay towards his rent.

Analysis

  1. Further, the Council also needed to satisfy itself whether any duty was owed to Mr X. I am of the view that if the Council had considered these matters in February 2018, there would have been enough information, on balance, for the Council to have decided it owed Mr X the main housing duty in March 2018. The Council did not accept this duty until August 2019. This means there was a delay of roughly 17 months.
  2. Mr X approached the Council before the Homelessness Reduction Act 2017 came into force. However, the Council still had a duty to make enquiries to satisfy itself whether Mr X was eligible for assistance, and whether any duty was owed to him, and to provide interim accommodation if it had reason to believe Mr X was homeless, eligible for assistance, and in priority need.
  3. The 2006 Homelessness Code of Guidance is clear the obligation to make inquiries rests with the Council and it is not for applicants to prove their case. The guidance also notes that a person who has accommodation is to be treated as homeless where it would not be reasonable for them to continue to occupy that accommodation.
  4. The Council said Mr X did not make a homeless application in February 2018. However, making a homeless application is not a defined act and does not need to be in a specific form. Mr X told the Council he was worried about losing his home as he was in significant rent arrears in February 2018. Therefore, Mr X did make a homeless application as the Council had reason to believe Mr X may be homeless or threatened with homelessness. This was the threshold for the Council to make such inquiries as are necessary to satisfy itself whether the applicant is eligible for assistance and whether any duty is owed to that person.
  5. The Council said while it was aware Mr X’s property was unaffordable in March 2018, it could not make inquiries to decide if Mr X was owed a duty because he did not give the Council consent. It is acknowledged the records do show Mr X declined to allow the Council to make inquiries with his landlord.
  6. However, at this point, the Council should have considered if it had reason to believe Mr X was homeless, eligible for assistance, and in priority need. This is because the Council had a duty to secure Mr X interim accommodation if so. There is no evidence the Council did this. This is fault.
  7. Had the Council considered this, I find it likely, on balance, it would have decided it had reason to believe Mr X was homeless. This is because Mr X told the Council he was in substantial rent arrears and could not afford the rent. The Council also said it was aware Mr X’s property was unaffordable in March 2018. This means the Council would have decided, on balance, it was not reasonable for Mr X to continue to occupy the property.
  8. Therefore, the Council should have made an offer of interim accommodation in February 2018, and at the very latest, by March 2018. The Council did not do this, and this is fault.
  9. Once interim accommodation is provided, it is at this stage the Council must satisfy itself. This is a higher threshold than reason to believe. To satisfy itself, the Council can make any necessary inquiries. The Council said Mr X refused consent to allow it to contact his landlord. However, had the Council offered Mr X interim accommodation, this could have affected Mr X’s decision to give the Council consent to make inquiries.
  10. In any case, there is no evidence the Council explained to Mr X the implication of refusing consent on its ability to help him so that he could make an informed decision. The Code of Guidance says housing authorities should provide applicants with a clear and simple explanation of their procedures for handling applicants and making decisions. They should also be given a realistic expectation of the assistance to which they may be entitled.
  11. I consider the faults identified caused Mr X an injustice because he had no option but to remain living in accommodation that was not reasonable for him to occupy. Mr X did not move into temporary accommodation until August 2019. This meant he continued to accrue rent arrears for roughly 18 months. The delay also caused Mr X anxiety and distress regarding his housing situation.
  12. The Council said Mr X received housing benefit and universal credit between February 2018 and August 2019. The Council said Mr X should have used the benefits he received to pay towards his rent, but that he did not do so.
  13. The evidence shows Mr X did not pay any rent between February 2018 and August 2019. We accept the Council’s position and agree Mr X should have used the benefits he received to pay some of his rent.

Complaint handling

  1. The evidence shows it took the Council three months to respond to Mr X’s stage one complaint. The Council should have responded within 10 working days.
  2. The Council took five months to respond to Mr X’s stage two complaint. Again, the Council should have responded within 10 working days.
  3. The Council has accepted fault for the delays in responding to Mr X’s complaints.
  4. I consider the fault identified would have caused Mr X an injustice. This is because he did not receive a timely response to his complaints which caused distress, and time and trouble.

Back to top

Agreed action

  1. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following:
    • Apologise to Mr X for the injustice caused by the faults identified.
    • Pay Mr X £2000 in recognition of the distress, anxiety, and inconvenience caused by the faults identified. This figure also reflects the impact on Mr X’s household.
    • Pay Mr X £200 in recognition of the distress, and time and trouble caused by the delays in the Council’s complaint handling.
  2. The Council will complete the above within 5 weeks of the final decision.
    • Liaise with Mr X’s ex-landlord to identify the total arrears incurred between February 2018 and August 2019. The Council should pay the difference between the total arrears and the amount Mr X should have paid with his housing benefit and universal credit.
  3. The Council will complete the above within 9 weeks of the final decision.

Back to top

Final decision

  1. I find fault with the Council for not providing interim accommodation in February 2018. I also find fault with the Council’s complaint handling. The Council has accepted my recommendations. Therefore, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

Privacy settings

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.