Summary: Miss X complained about the support the Council provided after she became homeless in March 2020. There was fault in how the Council made a final offer of accommodation to Miss X and how it refused to process a homelessness application from her after her circumstances changed. The Council agreed to apologise to Miss X, make another offer of accommodation and pay her a financial remedy. It also agreed to remind its housing staff about the correct approach to its offers policy and repeat homelessness applications.

The complaint

1. Miss X complained about the support the Council provided after she became homeless in March 2020. She said the Council failed to:
• give her the correct priority under its choice based letting scheme;
• offer her suitable properties which met her health needs after it accepted a duty to house her; and
• accept a new homelessness application from her when her circumstances changed in November 2020.
2. As a result, Miss X said she and her children have been homeless for longer than necessary which has caused her significant distress and made her health conditions worse. She wanted the Council to offer her a suitable property and pay her a financial remedy to recognise the distress.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
7. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
8. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
9. 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

10. I considered:
• the information Miss X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided;
• relevant law, guidance and Council policy; and
• Miss X and the Council’s comments on my first draft decision.
11. Miss X and the Council now had an opportunity to comment on my revised draft decisions. I considered the comments I received before making a final decision.

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What I found

Homelessness law and guidance

12. 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.
13. If a council has ‘reason to believe’ someone may be homeless or threatened with homelessness, it must take a homelessness application and make inquiries. The threshold for taking an application is low. The person does not have to complete a specific form or approach a particular council department. (Housing Act 1996, section 184 and Homelessness Code of Guidance paragraphs 6.2 and 18.5)
14. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. This is referred to as the relief duty. When a council decides this duty has come to an end, it must notify the applicant in writing. (Housing Act 1996, section 189B)
15. 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 this main housing duty to applicants who have turned down a suitable final accommodation offer or a Housing Act Part 6 offer made during the relief stage. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)
16. If someone applies as homeless after a council has already ended its duty to them, the council does not have to accept a new application unless their circumstances have changed. The courts have decided that councils can only refuse to consider a new application if it is based on ‘exactly the same’ facts as the previous application. A change in the number of people in the household between applications can be a ‘new fact’ which make the two applications different. ([2005] EWCA Civ 340 and [2016] EWHC 2647 (Admin))

Housing allocations

17. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing. All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
18. The Council is a partner in a local choice-based lettings scheme which enables housing applicants to bid for available properties which are advertised.
19. The Ombudsman may not find fault with a council’s assessment of a housing application or a housing applicant’s priority if it has carried this out in line with its published allocations scheme.

The Council’s housing allocation scheme

20. The Council jointly manages applications with housing associations which take part in the scheme. Applicants can choose which housing association they want to manage their application when they register.
21. The Council and the managing housing association assign each person who joins the scheme a priority, called a band. The scheme has six bands, A-F, with A being the highest priority.
22. Applicants are placed in Band A if they have an ‘urgent priority’ to move. The scheme says this could be because the Council owes them the main homelessness duty or they need to move for health and welfare reasons, such as:
• “Applicants with severe long term health conditions causing substantial disabilities who are unable to enter or leave their home and are unable to access all the essential facilities (bathing/toileting and separate room for sleeping) in their current accommodation”; or
• “Applicants with an exceptional welfare need, including severe incidents of violence where other temporary resolutions are not possible and where continued occupation of their current dwelling could place lives at risk.”
23. Applicants who do not meet the Band A criteria, but still have a ‘high priority’ to move may be placed in Band B. This includes people who need to move for health and welfare reasons including:
• “Victims of harassment, domestic abuse, victims of hate crime who need to move a significant distance to remove the risk”;
• “People with a severe long term health condition that causes a permanent and substantial disability who are unable to enter or leave their home or are unable to access one of the essential facilities (bathing/toileting, food preparation/kitchen and separate room for sleeping) within their home”; or
• “Applicants living in an area/community that has a serious detrimental effect on their mental health issues.”
24. If an applicant disagrees with the band allocated to them, the scheme sets out a two-stage review process:
• Stage 1 - a review by the managing housing association.
• Stage 2 – a review by a panel of an officer from the Council and at least two different housing associations which are part of the scheme.

Council’s housing policy during the COVID-19 pandemic

25. During the COVID-19 pandemic, the Council said it put special measures in place to help homeless applicants find properties. The Council partially suspended advertising properties and instead made targeted offers of specific properties to homeless applicants.
26. Because of the reduced opportunities to choose properties through the choice based letting scheme, the Council allowed applicants to refuse several offers before it made a final offer under homelessness law.
27. In its response to my enquiries, the Council said it allowed homeless applicants to refuse up to three properties offered before it would make a final written offer to end any housing duty it owed them.
28. In its comments on my first draft decision, the Council said the explanation it had provided was incorrect. Instead, it said that its policy was to make a maximum of three suitable offers of accommodation, which included the formal final offer to end any housing duty it owed. The Council provided an email between housing associations as evidence of the policy. This said that applications would be given a choice of where to live, “up to a maximum of three properties”.

What happened

Miss X’s application for housing

29. Miss X applied to the Council’s choice based letting scheme in July 2019. Her application was managed by a housing association, Association A, which gave her Band B priority in September 2019.
30. In January 2020, Miss X was the victim of a hate crime at her former home. She asked Association A to review her application in light of this information as she felt she should have Band A priority. She provided evidence from the police in support of her application.
31. In February 2020, Association A apologised to Miss X for delays in processing the review and for giving her inconsistent advice about whether it, or the Council should have carried out the review. Association A reviewed Miss X’s banding and decided that Band B was correct.
32. Miss X asked for a Stage 2 review by the Council, which invited her to a panel meeting in late February 2020. Miss X could not attend the review meeting, but sent a written statement.
33. In early March 2020, the panel decided Miss X’s Band B priority was correct. It explained this was because Band B gave priority to victims of hate crime and the panel did not agree that Miss X’s circumstances met the Band A definition, which it said was “limited to exceptional cases involving severe incidents where lives could be at risk”.

Miss X’s first homelessness application

34. Mis X applied to the Council as homeless in March 2020. At the time, Miss X was staying temporarily with a family member, was pregnant and had a 5-month-old child.
35. The Council accepted Miss X was eligible for assistance, homeless and in priority need so it decided it owed her the relief duty. It produced a personal housing plan for Miss X which said she needed a three-bedroom property. It offered to arrange interim accommodation, but Miss X chose to stay with her family member. It also updated Miss X’s housing priority to Band A because she was homeless.
36. Between June and July 2020, the Council directly offered Miss X three properties under the temporary COVID-19 changes to its housing policy.
37. Miss X rejected these properties because she said:
• the first only had two bedrooms, but she needed three;
• the second did not have a garden and she needed this to support her mental health; and
• the third was too far from her family / support network.
38. After Miss X rejected the third property, the Council wrote to her in early August 2020 and made a final, written offer of accommodation. It told Miss X that if she did not accept this property, it would consider its duty to house her had come to an end.
39. Miss X rejected the property because she did not feel safe in the area and was worried about drug use. She complained to the Council that it had not offered her three suitable properties and the final offer was not suitable for her.
40. The Council reviewed its decision in early September 2020. It accepted it had “withdrawn” the first property it offered to Miss X because the Council “accepted it was unsuitable for [Miss X’s] needs”. However, it decided it had still made enough offers and its final offer was suitable. It told Miss X she could appeal the decision in the County Court.

Miss X’s later homelessness applications

41. Miss X applied to the Council again as homeless in early October 2020. The Council said it did not consider this application because Miss X’s circumstances had not changed following its review decision.
42. In late October, Miss X gave birth to her second child. She applied to the Council as homeless again in January 2021, because her aunt told Miss X she could no longer stay with her. As a result, Miss X said she began to live between several family members.
43. The Council took Miss X’s homelessness application but decided that her circumstances were the same as her first application, so it did not have a duty to house her.
44. Miss X complained to the Ombudsman in March 2021 about the Council’s decisions.
45. Since Miss X complained to the Ombudsman, the Council has decided she needs a four-bedroom property.

My findings

Miss X’s housing priority

46. Miss X complained to the Ombudsman slightly more than a year after the Council’s review decision about her housing priority. Although Miss X’s complaint is late, this is by less than a week. Considering that Miss X’s health problems and that she has been homeless since, I am satisfied there are good reasons to consider this part of her complaint now.
47. It is not our role to decide what housing priority band Miss X should have; that is the Council’s responsibility. Our role is to assess whether the Council made its decision properly. We cannot question a decision the Council has made if it followed the right steps and considered relevant evidence.
48. The Council gave Miss X the opportunity to attend the panel meeting. Although Miss X could not attend, she sent a written statement and supporting evidence. The decision letter shows the panel considered that evidence and the housing allocation policy when reviewing Miss X’s band. I am satisfied there was no fault in how the Council made its decision.
49. I appreciate Miss X feels her band should be different and another council which takes part of the scheme has placed her in Band A. However, each council is entitled to reach its own view on priority under the scheme and the reasons the Council gave for its decision are consistent with the policy.
50. There were some initial delays in Association A’s handling of Miss X’s request for a change of band, for which it has apologised. Given the length of the delay and that Miss X’s band was not changed, I am satisfied this was a suitable remedy for the delay. Miss X’s allocation is now managed by a different housing association.

Council’s temporary offers policy

51. The Council provided conflicting explanations and information about its temporary offers policy. Its first explanation was that homeless applicants could refuse three offers before it made a final offer. It later said applicants could refuse only two offers.
52. The Council could not provide, when I requested, a copy of the detailed policy, only an email between housing associations discussing the policy. In my view, the single sentence in that email which discusses the number of choices is ambiguous. It also makes no reference to how the number of choices offered interacts with the Council’s homelessness duties. The email the Council sent to Miss X when it made its final offer of accommodation stated that she had already refused three suitable offers and it was making a fourth, final offer.
53. In our guidance on Good Administrative Practice during the response to Covid 19 we said that if councils made any changes because of the COVID-19 pandemic, they should ensure:
• they keep a clear audit trail of how and why decisions were made, especially when departing from their normal practice;
• frontline staff are clear about new or adapted policies or procedures;
• any new criteria or thresholds are clear to both service users and staff; and
• there are clear frameworks and consistent decision making when using new or revised policies.
54. I am not satisfied the Council properly recorded its decision to adopt its temporary offers policy, that the policy was sufficiently clear, or that it made the new policy clear to either staff or service users, including Miss X. That was fault and has led to uncertainty about how many offers homeless applicants were entitled to refuse.

Direct offers of housing

55. The Council offered Miss X three properties before making a fourth and final offer. However, the Council accepted in its complaint response to Miss X that it had withdrawn the first of these offers because the property was not suitable. Therefore, the Council only made two offers to Miss X before it made its final written offer.
56. I consider Miss X had a reasonable expectation, based on the information the Council sent her, that it would make three offers of suitable accommodation before making a final offer. The Council failed to do this, and I am satisfied this was fault which meant that Miss X did not receive the number of offers she should have.
57. The Council should make a further final offer of a property to Miss X, suitable for her current needs. If Miss X considers the offer to be unsuitable, she will have the right to ask for a review of the suitability and appeal to the County Court if necessary.
58. I cannot say that Miss X would have accepted a further offer if the Council had made one at that time. However, Miss X has suffered avoidable uncertainty about what would have happened if the Council had made another offer in September 2020, when she complained. Given the length of time Miss X has been homeless, her personal circumstances and the difficulties she has faced without a settled home, I am satisfied this uncertainty is significant and justifies a financial remedy.

Miss X’s later homelessness applications

59. When Miss X applied again as homeless in early October 2020, her circumstances were the same as those when the Council reviewed its decision. Therefore, I am satisfied there was no fault in the Council’s refusal to consider another homelessness application from Miss X at that time.
60. When Miss X applied again in January 2021, her circumstances were different. She now had two children, including a new born. Although the Council accepted a new homelessness application, I am not satisfied the Council correctly considered the relevant case law when deciding whether her circumstances were ‘exactly the same’ as her previous application. Miss X clearly had two children, whereas before she had only one. This changed happened between Miss X’s homelessness applications. I am satisfied this was fault and the Council should have properly assessed Miss X’s application and whether it owed a duty to her.
61. The effect on Miss X of this fault overlapped with the fault I found involving offers of accommodation to Miss X. The remedies I have recommended include the uncertainty caused by not accepting a further homelessness application in January 2021.

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Agreed action

62. Within one month of my final decision the Council will:
• apologise to Miss X for making a final offer after it offered her only two other properties it considered suitable and for refusing to properly assess her January 2021 homelessness application;
• make a further, final offer of accommodation to Miss X which meets her current needs; and
• pay Miss X £750 to recognise the significant avoidable uncertainty and distress caused by the faults I have identified.
63. Within three months of my final decision the Council will:
• if it still operates its temporary offers policy, produce clear guidance for staff and service users about how many offers applicants are entitled to refuse before it makes a final offer. This should remind staff that any offers withdrawn as unsuitable should not be counted towards these offers; and
• remind its housing advice staff of the proper test to be applied when deciding whether two homelessness applications are ‘exactly the same’.

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Final decision

64. I have completed my investigation. There was fault in how the Council made a final offer of accommodation to Miss X and how it refused to process a homelessness application from her after her circumstances changed. The Council agreed to apologise to Miss X, make another offer of accommodation and pay her a financial remedy. It also agreed to remind its housing staff about the correct approach its offers policy and repeat homelessness applications.

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Investigator's decision on behalf of the Ombudsman