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London Borough of Barnet (21 009 994)

Category : Housing > Homelessness

Decision : Upheld

Decision date : 21 Mar 2022

The Ombudsman's final decision:

Summary: There was fault by the Council. It failed to respond to changes in circumstances when a families housing became overcrowded. Backdating the date on which the families priority banding increased remedies this injustice. The Council also failed to offer the family temporary accommodation until over a year after the change in circumstances occurred. A payment remedies the uncertainty caused to Mr X, as it is not certain he would have accepted an earlier offer of temporary accommodation.

The complaint

  1. The complainant, who I shall call Mr X, complains the Council has not offered his family interim temporary accommodation.

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What I have investigated

  1. I have investigated Mr X’s complaint from March 2020 onwards. The final section of this statement contains my reason for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

  1. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. We investigate complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. 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)

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How I considered this complaint

  1. I read the papers put in by Mr X and discussed the complaint with him.
  2. I considered the Council’s comments about the complaint and any supporting documents it provided.
  3. Mr 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

The law

  1. If a council is satisfied someone is eligible, homeless, in priority need and unintentionally homeless it will owe them the main homelessness duty. Generally the Council carries out the duty by arranging temporary accommodation until it makes a suitable offer of social housing or private rented accommodation. (Housing Act 1996, section 193)
  2. A council must secure interim accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need. (Housing Act 1996, section 188)
  3. After completing inquiries, the council must give the applicant a decision in writing. If it is an adverse decision, the letter must fully explain the reasons. All letters must include information about the right to request a review and the timescale for doing so. (Housing Act 1996, section 184, from 3 April 2018 Homelessness Code of Guidance 18.32 and 18.33)
  4. Homeless applicants may request a review within 21 days of being notified of the decision on their homelessness application. There is also a right to request a review of the suitability of temporary accommodation provided once the Council has accepted the main homelessness duty. (Housing Act 1996, section 202)
  5. Councils must complete the review within eight weeks of receiving the review request. This period can be extended but only if the applicant agrees in writing. If the applicant wishes to challenge the review decision, or if a council takes more than eight weeks to complete the review, they may appeal on a point of law to the County Court (Housing Act 1996, sections 202 and 204)

Key facts

  1. Mr X lives in a 2 bedroom flat with his family. In 2016 the Council said his family were lacking two bedrooms. In 2017 the Council wrote to Mr X to tell him that under section 184 of the housing Act 1996 his homelessness application was accepted.
  2. In 2019 the Council became aware that Mr X’s wife and other children had been living in another country for 6 months. At this point his housing banding changed to band 4, as he did not have a housing need as the flat was no longer overcrowded.
  3. Mr X contacted the Council on 31 March 2020 to tell it that other members of his family had arrived in the UK. The Council says it allocated his case as a change in circumstances in October 2020. The Council has said that there was a delay from March to October 2020 in allocating the case which was not Mr X’s fault. Mr X was place in band 1, the highest priority in May 2021 as there were nine people living in a two bedroom flat.
  4. The Council has said that it accepts the date Mr X was placed in band 1 should possibly be backdated to March 2020 when the family told them of their return to the country.
  5. The Council upheld Mr X’s complaint in October 2021 that he should have been offered temporary accommodation earlier. The Council emailed Mr X on 2 December 2021 to offer his family a choice of two properties. A private rented property with 5 bedrooms which would mean his case was closed as he would be suitably housed. Or, a 4 bedroom emergency accommodation property which would mean his case would remain open. However, as he required a 5 bedroom property, even with band 1 priority, the wait for social housing could be over 2 years.
  6. The Council wrote to Mr X on 25 January 2022 to give him notice that its housing duty had come to an end and it would not offer him another home. The Council said that under Section 193 of the Housing Act 1996 it accepted that it had a duty to ensure his family had somewhere suitable to live. As Mr X had refused a suitable offer of long term temporary accommodation, it had now ended the duty to him. The Council said Mr X was not owed a short term accommodation duty as he was found to be intentionally homeless.
  7. The Council told Mr X of his right to a review of this decision. Mr X has asked for the decision to be reviewed, which the Council said will be completed by the end of March 2022.

My analysis

  1. The Council has accepted it was at fault, in not offering Mr X temporary accommodation earlier. There is also fault, as there was a delay from March to October 2020 in considering Mr X’s significant change of circumstances which meant their flat became overcrowded.
  2. The Council has said it is willing to provide a remedy for the time that Mr X’s family has spend in overcrowded accommodation, but needs more information on exactly when his wife and each of his children returned to the UK permanently. This is because the date of the flight to the UK is different to the dates some of the children started school.
  3. It is important for Mr X to provide this information. But, if the Council had dealt with Mr X’s change of circumstances in March 2020 this could have been sorted out easily at the time. Now, two years later, it may be more difficult (or impossible) for Mr X to provide the paperwork needed.
  4. I consider the Council should remedy the injustice caused to Mr X’s by the delays. But, I think it is quite likely that Mr X would not have considered any earlier offer of temporary accommodation suitable, as it is clear that he has very specific requirements the Council may not be able to meet. And, it is unlikely that Mr X would have received an offer of permanent social housing any earlier as the Council has told him he is likely to wait at least 2 years. So, I consider the Council should make a payment towards Mr X’s uncertainty from not being offered temporary accommodation, rather then pay a monthly amount for the time he has been in his overcrowded flat. This is because Mr X has been clear that he would rather stay in his current flat than accept accommodation that he does not want.
  5. The Council has said it wants more details on children’s movements before it can decide on the amount of remedy. While the Council may choose to ask for more information for other reasons, I do not think this is needed when remedying this complain. If the Council had ensured it obtained the correct information in March 2020 when Mr X first told the Council about the changes then it would have been much more straightforward for Mr X to provide details. Now, over 2 years later I do not consider it reasonable to expect Mr X to provide this for the purposes of this complaint.
  6. Mr X has asked for a review of the suitability of the accommodation offered to him. If he does not agree with the decision after the review, he will be able to challenge this in the courts.

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Agreed action

  1. The Council should backdate Mr X’s priority to band 1 to 31 March 2020 within one month of the date of the decision on this complaint.
  2. The Council should make a payment to Mr X towards his uncertainty of £1000 within one month of the date of the decision on this complaint.
  3. The Council should write to Mr X to explain his position on the housing register (whether he remains in band 1) once the outcome of the review is known within two months of the date of the decision on this complaint.

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Final decision

  1. I have completed my investigation. This complaint is upheld, as I have found fault by the Council that has caused Mr X injustice. The steps outlined above are a satisfactory remedy to his families injustice.

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Parts of the complaint that I did not investigate

  1. I have not investigated matters that occurred before March 2020. 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. Mr X has complained about problems with housing since 2016, but he did not complain to the Council until October 2021. I have exercised discretion to investigate from March 2020, which is slightly more than 12 months before his official complaint. This is because this date was when Mr X told the Council about his change in circumstances when his family returned from abroad and I consider there was evidence of delay from that point. Matters before March 2020 are a late complaint and I see no good reason to accept them for investigation now.

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Investigator's decision on behalf of the Ombudsman

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