Summary: There was fault by the Council in how it handled Ms B’s housing situation. It failed to take into request specialist medical knowledge to inform a review of its decision to offer her accommodation, and it failed to communicate with her effectively. The Council also failed to direct Ms B to make a fresh homeless application when her circumstances changed. The Council has awarded Ms B a high priority of housing need and backdated this on its housing register. However its failures caused Ms B distress and uncertainty. The Council should also reconsider whether it owes her a housing duty and make a payment to her.

The complaint

1. Ms B complains about how the Council handled her request that it review the suitability of the accommodation it offered her. In particular, Ms B says the Council:
• did not gather or properly consider medical evidence relevant to her housing needs;
• insisted that she accept the offer of the property, without an occupational therapist’s opinion of whether it was suitable or if any adaptations would be needed;
• did not properly consider whether her eldest son, who had been temporarily away from home had now re-joined the household, meant the property was unsuitable; and
• did not communicate clearly with her or her representative.
2. Ms B says that as a result of the Council’s failings, she has been left without any duty of the Council to rehouse her. Possession proceedings have been commenced by the landlord as he wants to sell the house, and the stress on her is exacerbating her physical and mental health, and that of her youngest son.

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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 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).

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How I considered this complaint

6. I considered the information provided by Ms B and her representative. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below.
7. Ms B had the right to take court action to challenge the Council’s decision that the property it offered her was suitable. However, I have decided that, given her poor health and her difficult housing situation, it is not reasonable to expect her to do so. For this reason, I have investigated her complaint that the Council did not conduct the review properly.
8. Both parties had the opportunity to comment on a draft of this statement. I have taken their comments into account before issuing this final decision statement.

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What I found

The law and government guidance – what should happen

9. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.Code of guidance on households and repeat application.
10. Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. The Code of Guidance says, rather than advise 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, and must be provided to the applicant in writing as their personalised housing plan. (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.18)
11. Councils must provide to anyone in their district information and advice free of charge on:
• preventing homelessness;
• securing accommodation when homeless;
• the rights of people who are homeless or threatened with homelessness;
• the duties of the authority;
• any help that is available from the authority or anyone else, for people in the council’s district who are homeless or may become homeless (whether or not they are threatened with homelessness), and
• how to access that help.
12. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need the council has a duty to secure that accommodation is available for their occupation. But councils will not owe the main housing duty to applicants who have turned down a suitable final accommodation offer. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)
13. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of his or her household. (Housing Act 1996, section 206 and (from 3 April 2018) Homelessness Code of Guidance 17.2)
14. Homeless applicants may request a review of the suitability of accommodation offered to the applicant after a homelessness duty has been accepted. Applicants can request a review of the suitability of accommodation whether or not they have accepted the offer.
15. The Code of Guidance says that a person can make a fresh homeless application where a previous one has been decided. The council will need to decide whether there are any new facts which make it different to the earlier application. In the majority of re-application cases where the applicant has previously refused an offer of suitable accommodation, the housing authority will be entitled to rely on the ending of its duties following the refusal of accommodation. However, if, after the refusal of accommodation, the applicant’s factual circumstances change, the housing authority can no longer rely on the completion of the earlier duty and must consider the fresh application. (Homelessness Code of Guidance 18.11-12)

What happened

16. Ms B lives with her youngest, adult son in private rented accommodation. Ms B has a number of long-term health conditions which mean she frequently falls, finds it difficult to manage stairs, she has chronic pain, anxiety and depression. Her youngest son has a mental illness. Ms B has another adult son who had gone to live in a friend’s property temporarily. The landlord gave Ms B notice to leave the property and in May 2019, she made a homeless application to the Council. The Council accepted that it had a duty to house her and in February 2020, it offered her a two-bedroom flat.
17. That week Ms B’s eldest son had to move back home. The arrangement of him living at a friend’s house had been temporary while the family were living abroad. Ms B’s representative said the Council gave Ms B 24 hours to accept the property and said it would not make a further offer of housing.
18. Ms B reluctantly accepted the offered property, but asked the Council to review whether the property was suitable for her, because it was too small for her and both her sons. Ms B said that her eldest son was her carer and needed to be included in the household.
19. The Council asked for more information about Ms B’s medical needs. Ms B gave the Council permission for it to contact her specialist. But it did not, instead the Council contacted Adult Social Care, who confirmed that Ms B did not have care needs such that her eldest son needed to live with her. Ms B’s representative made it clear that Ms B’s son had cared for her and so Adult Social Care had not fully assessed her needs.
20. The Council asked for more information about Ms B’s eldest son, where he had been living, and why and when he left her household. Ms B’s representative gave the Council some information.
21. Ms B asked whether adaptations would be made before she moved in. The Council told her that an Occupational Therapist (OT) could assess whether adaptations were needed, but that the information from the OT so far said that adaptations were not needed. Ms B’s representative told the Council that when Ms B viewed the property, the Council talked to her about access to the property and the bathroom. The Council said a senior OT would be in touch but only if Ms B moves to the property. However, the OT confirmed that if Ms B intends to move on again, to a bigger property to accommodate the eldest son, she would not recommend adaptations at the two-bedroom property, as she would be moving so soon.
22. The Council advised Ms B that she should move to the property and then ask for a transfer to include her eldest son but this would mean living in an unsuitable property that would not be adapted as she did not intend to stay living there.
23. The Council then asked whether Ms B wanted to request a review of the suitability of the property. Ms B’s advocate asked the Council to clarify the exact process because they had thought it was already processing the review.
24. The Council asked again for some more information about her eldest son. This time the advocate did not reply because she was still trying to get some clarity about the review and how the Council could consider that a disabled person with two sons could be expected to move into a property that was too small for the family.
25. The Council asked twice more for different information about the eldest son. It did not acknowledge that the representative had already given some of this information. It also did not ask for all the information that it needed to add him to the housing application. The correspondence shows that throughout her contact with the Council, Ms B’s representative told it how ill she was, that she was sometimes bed-bound and often unable to respond due to her very strong medication. The representative told the Council that the uncertainty of the housing situation was distressing for Ms B.
26. In May 2020, the Council reviewed the suitability of the accommodation offered. It decided that the property was suitable for her and one son. It did not address Ms B’s issue that the eldest son should be part of the application and so the property would be too small.
27. Ms B complained to the Council about the review, specifically that her communication with the Council had been confusing in that it had not acknowledged that she needed her eldest son to live with her, and it had not sought evidence from her specialist despite giving permission for it to do so.
28. The Council’s final response to Ms B said:
• It acknowledged that it should have requested further medical evidence from the specialist. However, the information from Adult Social Care suggests that Ms B does not need a live-in carer, and so any information from the specialist would not alter its decision that this is not required.
• The Council was not satisfied that Ms B’s adult son was reasonably expected to live with her permanently and so it was correct not to include him in her household for the purposes of its duty to secure housing.
• In any case, Ms B had not added her son to her housing register application, and it was not satisfied that he was a member of the household and so the Council’s offer of a two-bedroom flat was suitable.
• It agreed that it could have communicated better and more clearly with Ms B, and that her queries could have been resolved sooner. It said it would introduce a telephone assessment to reviews of the suitability of accommodation to improve its communication with applicants.
• Overall, the Council concluded that it made the correct decision, but the way it requested and handled information has led to a ‘disjointed and somewhat confusing experience…’ for Ms B.
29. Ms B complained to the Ombudsman. The Council has since reviewed Ms B’s housing application. The Council says it did not receive the required information about the eldest son until April 2021. In May 2021,the Council awarded Ms B band A priority and added her eldest son to the household. It has backdated that priority to May 2020.
30. The Council has confirmed however that even if it had given her that priority in May 2020, she would not have been rehoused sooner, as there is such limited availability of three-bedroom properties.
31. Was there fault by the Council causing an injustice to Ms B?
32. There was no fault by the Council when it offered her a two-bedroom property. There is no evidence that Ms B or her representative had told the Council that the eldest son was re-joining the household when it made the offer.
33. The Council has acknowledged that there was fault in how it handled the review. It did not ask her specialist for advice, and instead relied on information from Adult Social Care, which had very little as she had declined to work with them.
34. The Council has also acknowledged that it failed to communicate effectively with Ms B or her representative. I have seen the correspondence between the parties. It is confused about the review process and what information it needed.
35. The Council also failed to direct Ms B to make a fresh homeless application based on her eldest son joining the household. I appreciate that the Council says it did not get the information about the eldest son until April 2021. However, it could have been much clearer in its communication. Ms B’s representative did send some information when the Council first asked. The Council did not acknowledge this and asked again, this time with additional enquiries. It was at this time, the Council and the representative got into protracted and confusing correspondence about the review process. The Council asked again for more information about the eldest son, but by this stage it had also made clear that it had discharged its duty to house and would not make another offer.
36. In my view, the Council focussed on the review of the suitability of its offered accommodation, rather than the fact that Ms B’s circumstances had changed. It could have at this stage or soon after, advised her to make a fresh homeless application. However it instead told her repeatedly that it would not make another offer of accommodation as it had discharged its duty to her.
37. I have taken into account that Ms B had a representative to help her, but it was clear that she was also confused by the Council’s handling of the situation, and the Council must take some responsibility for this.

The impact on Ms B of the Council’s shortcomings

38. The Council has acknowledged that it should have requested specialist information about Ms B’s medical conditions, but it is unlikely that this would have altered the outcome of the review. The property was most likely suitable because the household was just Ms B and one son when it made the offer.
39. The Council has confirmed that even if it had awarded her Band A status in May 2020 after it decided the review, it would not have rehoused her because no suitable properties have become available. It says that Band A is the same priority as a person to whom the Council has accepted a duty under homelessness legislation. However, if the Council had advised Ms B to make a fresh application to include both sons, and the Council had found on these new circumstances that it owed her a housing duty, the Council would need to discharge this. This is different to a priority on the Council’s housing register and involves statutory duties and rights of review.
40. Even if the Council would not have rehoused Ms B by now, the whole process would have been much less distressing, confusing and uncertain for her if the Council had decided a fresh homeless application. The Council knows Ms B is very ill and vulnerable, and its shortcomings would have added distress at this already difficult time.

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Agreed action

41. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might.
42. The Council has already apologised to Ms B for some of its failings. It has awarded her Band A priority on its housing register and backdated this to May 2020. It has agreed my recommendation that it also within one month of the date of this decision show the Ombudsman it has:
• apologised to Ms B for the further failings I have identified;
• paid her £500 for the distress and uncertainty it caused her;
• reconsidered whether it owes her a statutory housing duty; and
• shared this decision with the relevant staff;

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Final decision

43. I have completed my investigation. There was fault by the Council causing injustice to Ms B.

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Investigator's decision on behalf of the Ombudsman