Summary: The Council failed to assess the affordability of accommodation it helped Ms Y to secure following acceptance of a duty to relieve her homelessness. Consequently, Ms Y suffered injustice because the Council wrongly ceased its duty and she resided in accommodation which was unsuitable on affordability grounds. The Council will now review Ms Y’s case, pay £150 for each month during which Ms Y was in unaffordable accommodation and remind its officers of the requirement to assess affordability.

The complaint

1. Ms Y complains that, after she made a homelessness application in 2019, the Council placed her in unaffordable accommodation in another borough and failed to comply with its housing duties.
2. Ms Y also complains the Council has refused to fund the deposit on any subsequent tenancies, despite agreeing to do so in September 2019.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. During my investigation I discussed the complaint with Ms Y and made enquiries of the Council. I considered all the information received before reaching a draft decision.
7. I consulted the relevant law and statutory guidance around homelessness and the suitability of accommodation, which I have referred to where relevant in this statement.
8. We exercised discretion to investigate matters going back to 2019 due to the ongoing nature of the injustice. The Council’s failure to retain records means we cannot be confident Ms Y had cause to complain to us sooner.
9. I issued my findings in a draft decision statement and invited comments from the Council and Ms Y which I considered before making a final decision.

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What I found

What should happen

10. If the Council is satisfied that an applicant is homeless and eligible for assistance, it must take reasonable steps to help an applicant secure accommodation that will be available for at least six months. This is known as the ‘relief duty’. The duty arises regardless of whether the applicant may be in priority need.
11. When the Council is satisfied an applicant is in priority need and is not intentionally homeless, the relief duty ends after 56 days.  The Council must then complete inquiries promptly to decide what further duty is owed. This is known as ‘the main housing duty’.
12. The Council may give notice to bring the relief duty to an end if the applicant has:
• suitable accommodation available that has a reasonable prospect of being available for at least six months;
• refused an offer of suitable accommodation that would have been available for at least six months;
• become intentionally homeless from any accommodation that was made available by the authority exercising functions under this section;
• is no longer eligible for assistance;
• withdrawn the application.
• deliberately and unreasonably failed to co-operate with the local authority.
• the Council has complied with the relief duty for at least 56 days (whether or not the applicant has secured accommodation);
13. Any decision that the duty has come to an end must be notified in writing giving the reasons why it has ended and notifying the applicant of their right to request a review of that decision.
14. There is a legal duty for authorities to ensure the accommodation is “suitable” for the applicant and household members. The authority may provide the accommodation itself (e.g a Council hostel) or arrange for someone else to provide it (e.g a Housing Association or private sector landlord).
15. The Council must also have regard to the following factors:
• the space and arrangement of the accommodation
• the state of repair of the accommodation – as a minimum it must be free of Category 1 hazards.
• location, including ease of access to established employment, schools and specialist health care.
• the specific needs of the applicant and any household members due to a medical condition or disability.
16. Councils usually require the applicant to pay for interim accommodation so it must be affordable, as per the Homelessness (Suitability of Accommodation) Order 1996.

What happened

17. In August 2019 Ms Y, who is a single parent to one young child, approached the Council as homeless. The Council accepted a relief duty in September 2019 and helped Ms Y secure accommodation outside of its borough. Ms Y signed a private tenancy agreement. Ms Y says she told the Council the accommodation was not affordable, yet the Council did nothing to help her.
18. In a letter dated 19 September 2019, the Council advised Ms Y: “At the end of your tenancy you should be able to claim back the deposit and rent-in-advance to fund your next property. Landlords may legitimately make a claim against a deposit for issues like rent arrears or damage to their property so it is very important that you manage your tenancy properly to safeguard against any potential reduction in the amount you will receive at the end of your tenancy”.
19. Ms Y enquired with the Council about claiming back the deposit to put down on another tenancy which would be more affordable. Ms Y submitted a complaint when the Council told her that she was not eligible for the funded deposit.
20. The Council then wrote to Ms Y on 1 October 2019 confirming a decision to end its relief duty. The letter said: “… a duty arose for this Authority to take reasonable steps to secure that accommodation becomes available for your occupation, in accordance with section 189B(2) of the Act. This letter is to confirm that our duty to you has been fulfilled as accommodation has been secured for your occupation.

On 26 September 2019 you signed an Assured Shorthold Tenancy [details removed]. The rent is £1389.87 per month. I am therefore satisfied that [address removed] fulfils the requirements of section 189B(7)(a)(i) & (ii). It is suitable for your occupation and there is a reasonable prospect of [address] being available for your occupation for at least 12 months.

You have a right to request a review of the decision that our duty to you, in accordance with s189B(2) has ended, under Section 202 of the legislation. Your request for a review must be made within 21 days of the receipt of this letter. Receipt will be assumed to be 2 days after the date of this letter. You can find the review procedure here: [hyperlink removed]”

21. Ms Y says that she did not receive this letter and so was unaware of the Council’s decision to cease its duty. Ms Y was also unaware of her right to appeal.
22. Due to the departure of the officer responsible for Ms Y’s case, the Council says it has no records to prove the letter was emailed to Ms Y, as claimed, in October 2019. The Council acknowledges other key files are missing from Ms Y’s records, partly due to the passage of time, and partly due to the officer’s failure to transfer files to the Council’s database before their departure.
23. Shortly before Ms Y approached the LGSCO she received a letter from her landlord asking her to surrender the tenancy. Ms Y has not surrendered the tenancy and, at the time of making her complaint, Ms Y remained in the accommodation which continues to be unaffordable.

Was there fault causing injustice to Ms Y?

24. The Council accepted a duty to relieve Ms Y from homelessness. Councils can only discharge that duty on certain grounds, as listed in paragraph 12 of this statement. The Council discharged its duty to Ms Y in October 2019 because it was satisfied that Ms Y had suitable accommodation available for her to occupy for at least 12 months.
25. Applicants have the right to appeal a decision to discharge a relief duty. The LGSCO would usually expect applicants to use this right of appeal. However, in this case, the officer in question failed to keep an accurate record of email correspondence with Ms Y. Due to the absence of records, it is not possible to ascertain whether Ms Y received the Council’s letter in October 2019 confirming its decision to cease the relief duty and to provide a right of appeal. We cannot therefore be certain that Ms Y was aware of her right to appeal, and for this reason we have investigated the Council’s decision to cease its relief duty.
26. The statutory guidance ‘Homelessness Code of Guidance for Local Authorities’, which was in force at the time of the matters complained about, makes clear that private rented accommodation must be considered ‘suitable’ when offered as final accommodation in the S189B relief stage. Affordability is a key consideration and, “Housing authorities will need to consider whether the applicant can afford the housing costs without being deprived of basic essentials such as food, clothing, heating, transport and other essentials specific to their circumstances. Housing costs should not be regarded as affordable if the applicant would be left with a residual income that is insufficient to meet these essential needs”.
27. The Council is at fault in Ms Y’s case because it did not assess whether the accommodation was affordable. The Council therefore failed in its statutory duty to ensure the private rented accommodation it helped Ms Y to secure was suitable. The Council acknowledged this fault in response to our enquiries, and has now accepted the property is not affordable for Ms Y. The Council explained the officer dealing with Ms Y’s case had incorrectly assessed her benefit entitlement and wrongly concluded that Ms Y was not affected by the benefit cap. Therefore, the officer incorrectly assumed that Ms Y’s income was significantly higher and that she could comfortably afford the £1389.87 monthly rent.
28. As a result, the Council wrongly discharged its relief duty and Ms Y experienced significant injustice from living in accommodation which was unsuitable on affordability grounds. The Ombudsman’s ‘Guidance on Remedies’ suggests, “Where a complainant has been deprived of suitable accommodation during what would inevitably have been a stressful period in their life, our recommendation for financial redress is likely to be in the range of £150 to £350 a month. But we may recommend a higher monthly amount in cases where the injustice is exceptional or particularly severe. We assess each case on its merits and consider the impact the fault had on the complainant and other members of his or her household.” The Council should therefore make the financial payment recommended at the end of this statement.
29. I have also considered Ms Y’s complaint about the Council’s refusal to make a deposit available for any subsequent tenancies, despite agreeing to do so in a letter dated 19 September 2019. The Council has since explained that Ms Y’s current tenancy did not require a deposit, and this is evidenced in the tenancy agreement which says a deposit is not applicable. Instead, the Council has explained that it paid £3848.88 to the landlord as an ‘incentive’ to enter into a tenancy agreement with Ms Y.
30. I am satisfied the reference to the deposit within the September 2019 letter was an error. Although Ms Y is not automatically entitled to assistance with a deposit on any subsequent property, the Council is reviewing her case to determine what duties, if any, it owes to Ms Y. The Council may decide that Ms Y requires assistance to move to a subsequent tenancy, but it is premature for the LGSCO to make any findings on this. Ms Y would be entitled to complain again if she disagrees with how the Council handles her case.

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Agreed action

31. In addition to the apology already offered, the Council will take the following steps to help put Ms Y back in the position she would have been, were it not for the fault identified:
• Withdraw the 1 October 2019 decision to cease the relief duty and reconsider Ms Y’s case. If the Council considers it still owes a relief duty to Ms Y, it should reinstate this duty without delay and support Ms Y in gaining suitable accommodation. To aid its assessment, the Council will likely require information from Ms Y which she should provide without delay and within four weeks of my final decision. The Council should provide evidence of the steps it has taken to review Ms Y’s case within eight weeks of my final decision.
• Pay £150 for each month Ms Y has resided in unaffordable accommodation. The exact number of months is unknown because Ms Y’s affordability likely changed when she received Discretionary Housing Payments. The Council should therefore undertake a retrospective review of Ms Y’s affordability to ascertain the total number of months. The Council should undertake the review and make the necessary payment within six weeks of my final decision.
• Pay a further £200 for the general time and trouble caused by the Council’s repeated failure to respond to Ms Y’s communication and its failure initially to respond to her complaint. The Council should make this payment within six weeks of my final decision.
• Provide evidence to the LGSCO that it has reminded officers of the requirement to check the affordability of accommodation offered to applicants. This could be via updated written guidance, team meetings, supervision or staff training. The Council should provide evidence of this within eight weeks of my final decision.
• Review its template letters to ensure they are accurate and applicable to the recipient, i.e. removing any general references to the advance rent/deposit scheme. The Council should provide confirmation of this within eight weeks of my final decision.

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Final decision

32. We have completed our investigation with a finding of fault causing injustice for the reasons explained in this statement. The agreed actions listed above provide an appropriate remedy for the injustice to Ms Y.

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Investigator's decision on behalf of the Ombudsman