Summary: there was fault in the way the Council considered Miss X’s request for a review of the suitability of a final offer of accommodation made to end the main housing duty. The Council was also at fault for not responding promptly to her first request for help to bid for properties advertised on its choice-based lettings scheme. These faults caused injustice to Miss X. The Council has agreed to provide a suitable remedy.

The complaint

1. Miss X complained about the way the Council dealt with her housing needs when she was homeless and living with her son in temporary accommodation. In particular she complained that:
• there was poor communication by two named housing officers;
• officers did not respond to requests she made in June and August 2020 for support to help bid for properties on the Kent Homechoice website;
• she was offered unsuitable Council accommodation in December 2020 to end the main housing duty under section 193(2) Housing Act 1996.
2. Miss X says the Council did not properly consider her housing needs before it offered her the property in December 2020. She says officers ignored her requests and did not offer adequate support. She felt she had no choice but to accept the accommodation because it was a final offer. She says it is not suitable for her health needs.

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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)

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How I considered this complaint

5. I have:
• spoken to Miss X and considered the evidence she sent me;
• considered the Council’s response to my enquiries and supporting documents;
• considered the relevant law and statutory guidance on homelessness.
6. Miss 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

7. At the time of these events, Miss X and her son were homeless and living in temporary accommodation. The Council owed them the main housing duty because Miss X was eligible for assistance, homeless and in priority need.

Poor communication

8. Miss X complained that she had never met Officer A, a Housing Options officer, after she took over responsibility for her case. She also complained that officers did not give her any updates. As a result, she feels she did not get adequate support and the Council did not fully understand her specific housing needs.
9. The Council has provided a summary of Officer A’s contact with Miss X in 2019/20.
10. Officer A took over responsibility for Miss X’s case from another officer in late 2019. By then the Council had already accepted the main housing duty and sent Miss X a Personalised Housing Plan (PHP). So Officer A did not need to investigate Miss X’s homelessness application or assess her housing needs because the previous case officer had already done that. She had to contact Miss X from time to time to review the PHP and check on her progress in finding accommodation.
11. The records show Officer A telephoned Miss X in November 2019 and offered to visit her. Miss X declined.
12. In December 2019 Officer A sent Miss X an email reminding her to reply to a review of her PHP. She asked Miss X to contact her if she was having any difficulties. The PHP review was completed in mid-February 2020.
13. Officer A visited Miss X’s temporary accommodation on 9 March 2020 but she was not at home. Officer A rearranged the visit for 18 March 2020. However she then had to cancel all planned visits due to the outbreak of the COVID-19 pandemic. She says she left a voicemail message on Miss X’s mobile to let her know. Miss X later texted Officer A to say she had been waiting at home expecting her to visit. Officer A apologised but said she thought she had left her a message. Miss X said she was having difficulties retrieving voicemail messages on her phone.
14. There was further contact between Officer A and Miss X in June and August 2020 which I have summarised in the section below.
15. Officer A’s involvement ended after Miss X accepted an offer of accommodation in December 2020 and the main housing duty ended.
16. Officer B is Officer A’s manager. She had no direct involvement with Miss X until she made a complaint about Officer A in December 2020. Officer B then telephoned Miss X to discuss the complaint and replied at the first stage of the Council’s complaints procedure in December 2020. She also responded to Miss X’s first request for a review.
17. Officer B explained to Miss X when she replied to her complaint about Officer A that staff had not made any face to face visits since mid-March 2020 in line with Government guidance.

My analysis

18. I do not find fault with the overall level of contact. Officer A made attempts to visit Miss X in November 2019 and March 2020. However the COVID-19 pandemic led the Council to suspend all home visits. It was not fault for officers to use alternative forms of communication in these exceptional circumstances.
19. The evidence shows Officer A continued to contact Miss X by text, telephone and email after March 2020. So I do not accept she made no contact during this period. I shall deal with the specific request Miss X made for support with bidding in the section below.
20. I shall address Officer B’s involvement later in this statement.

Problems with bidding for properties

21. Miss X was entitled to bid for social housing properties advertised on the Kent Homechoice choice-based lettings scheme. At the same time, the Council’s housing allocations policy allowed officers to make bids on her behalf for suitable properties. This is known as “auto-bidding” and could lead to a direct offer of a property. The purpose of a direct offer is to ensure homeless applicants move on from temporary accommodation in a timely way so the Council can end the main housing duty.
22. The Council’s records show Miss X sent a text message to Officer A, the Housing Options Officer handling her case, on 23 June 2020. She said she could not log on to her Kent Homechoice account to bid for properties. On the next day Officer A replied and said she would look into it. I have seen no evidence that Officer A took any further action.

23. On 28 August 2020 Miss X sent another text message to Officer A. She said she was struggling to understand how to bid for a house. Officer A called at Miss X’s accommodation on the same day. She was not there so Officer A posted a card through the letterbox.

24. Officer A says she also checked Miss X’s Homechoice account then telephoned to confirm she should be able to log on and bid. She also explained to Miss X that officers were making bids for suitable properties on her behalf.

25. In response to my enquiries, the Council confirmed that officers had been auto-bidding for properties on Miss X’s behalf during this period. They made bids for 17 properties. This did not prevent Miss X from bidding for properties of her choice at the same time.

My analysis

26. I have seen no evidence that Officer A took steps to follow up the enquiry Miss X made in June 2020 and send a substantive response. Officer A says she checked Miss X’s account and contacted her after she made a repeat enquiry in late August 2020. However there seems to be no contemporaneous record of this contact. I therefore find the failure to contact Miss X in June, and to record the outcome of the August 2020 call, was fault.
27. However this fault is unlikely to have caused injustice. Officers were automatically placing bids on Miss X’s behalf for any suitable properties advertised on Kent Homechoice during this period. So it is unlikely Miss X missed the opportunity to be considered for suitable properties due to her difficulties in bidding.

The suitability of the accommodation offered and Miss X’s request for a review

The relevant law

28. Councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of his or her household.  This includes accommodation provided under the main housing duty.  (Housing Act 1996, section 206 and (from 3 April 2018) Homelessness Code of Guidance 17.2)
29. A homeless applicant has the right to request a review of the suitability of an offer of accommodation the Council makes to end the main housing duty.
30. A review request must be made within 21 days of the day the person is notified of the decision. A senior officer, who was not involved in making the original decision, must consider the review request. For suitability of accommodation reviews, a review decision must be made within eight weeks (unless the applicant agrees to an extension).
31. The statutory Code of Guidance on Homelessness says:

“Applicants can request a review of the suitability of accommodation whether or not they have accepted the offer.

An applicant must request a review before the end of the period of 21 days beginning with the day on which they are notified of the housing authority’s decision.”

32. The Ombudsman usually expects homeless applicants to use the statutory review procedure to challenge an offer of accommodation which they consider unsuitable for their needs.

What happened

33. On 4 December 2020 Officer A telephoned Miss X to say she had been made a direct offer of a Council flat.
34. On 15 December Officer A wrote to confirm it was a final offer of accommodation to end the main housing duty. The letter explained that the Council considered the property was suitable for Miss X’s needs and the consequences of refusing the offer. It also explained the right to request a review of the suitability of the accommodation within 21 days of this notification. It confirmed she could request a review whether she decided to accept or refuse the offer.
35. This letter correctly explained the right to request a review and the timescale for doing so.

36. On 21 December, within the 21 day period, Miss X wrote to request a review of the suitability of the property. She said she would accept it under protest because she did not want to be made homeless if she refused it. She explained she suffered from claustrophobia, anxiety and depression. She did not want to move to a top floor flat without a balcony because she was worried about escaping from the block if there was a fire. She enclosed a letter from her GP confirming her medical condition and her fear of living at height.

37. On 22 December Officer B, a senior officer, replied to Miss X’s review request. She said Miss X could only request a review after she had signed the tenancy agreement and moved into the property. She said she would be happy to review the suitability of the offer then.

38. Miss X then made a complaint to the Council. In its reply at Stage One, Officer B addressed some of the reasons Miss X gave for her dissatisfaction with the property. She said the lack of a balcony and the fact that pets were not allowed did not make the property unsuitable. She said:

“whilst I sympathise, there is nothing which will be changed about this decision I am afraid’”

In response to the Stage Two complaint, the Council said:

‘Once you have moved into the property you can request a review in writing detailing your concerns to [the officer], who will review the decision.’

39. Miss X signed the tenancy agreement and moved into the property in mid-February 2021. She then made a further request for a review.

40. A manager acknowledged her review request on 15 February. She explained the review procedure and invited Miss X to make any further representations within 14 days.

41. In mid-March 2021 Miss X withdrew her review request. She told the Council she was taking medication and receiving counselling. She did not feel able to continue with the review due to her fragile mental health. She later told us she was also concerned that the Council might move her to worse accommodation.

My analysis

42. The Ombudsman will not consider the merits of Miss X’s review request and decide whether the flat was suitable for her needs. These matters should be decided in the review process. We have to decide whether the Council followed the correct procedure when it considered her review request.
43. The letter sent to Miss X on 15 December 2020 accurately explained her right to request a review of the suitability of the accommodation offered within 21 days.
44. Miss X acted on that information and submitted her review request on 21 December. The Council then made a significant error. It wrongly told Miss X she could only request a review after she had signed the tenancy agreement and moved into the flat. The Council repeated this incorrect advice in its replies to her Stage One and Stage Two complaints.
45. There is a statutory time limit to make a review request. It must be made within 21 days of the date the decision is notified. Moving into the property is not a precondition for exercising the right to a suitability review. The Council may certainly wish to advise applicants to exercise caution by accepting the offer and requesting a review of its suitability at the same time. If the review finds the property is suitable, the applicant will not then be homeless. But telling the applicant they can only ask for a review after they have moved into the property misrepresents the law. Councils must accept and consider review requests made within the statutory 21 day timescale
46. Miss X made a valid review request on 21 December and it was made in time. So the Council should have accepted it and started to consider it then. It may not have completed the review before Miss X moved into the flat in mid-February 2021 given that councils have eight weeks in which to make the review decision. But Miss X would at least have known her review had been accepted and was being considered.
47. Miss X persevered and made a second review request after she moved into the properly almost two months later. She later decided to withdraw that request, largely due to concerns about her fragile mental health.
48. I am concerned that other applicants, who may have been similarly misinformed by officers that they can only request a suitability review after moving into a property, may simply have given up at that stage and not pursued the review later.
49. I also note that the Council’s Stage One reply to Miss X’s complaint said the decision would not be changed. That may have been Officer B’s view based on her assessment of the facts and evidence. But the issue of suitability should be decided in the context of the statutory review process and not in a response to a complaint. Making a categorical statement that the decision would not be changed may deter applicants from pursuing a review request. It also blurs the boundaries between the separate complaints and review procedures.
50. Miss X feels, with good reason, that her first review request was not properly considered and was wrongly rejected. This caused some distress and frustration. Although she chose to withdraw her second review request, which means the Council did not review the suitability of the flat, I consider her concerns about her mental health played a significant part in that decision.

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Agreed action

51. Within one month of my final decision the Council will:
• apologise in writing to Miss X for wrongly rejecting the review request she made in December 2020;
• ask Miss X if she would like a suitability review now. If she wishes to proceed, the Council should review the medical evidence she sent with the December 2020 request and invite her to make representations and submit any new evidence she would like the reviewing officer to consider;
• arrange refresher training for officers in the Housing Options service to ensure they understand the statutory time limits and apply this in practice when handling review requests.

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Final decision

52. I have completed the investigation and found the Council was at fault and this caused injustice to Miss X.

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Investigator's decision on behalf of the Ombudsman