Summary: there was fault in the way the Council considered Ms X’s request for a review of its decision that it did not owe her a housing duty because she was not homeless. There was also fault in the way it considered her legal adviser’s request for accommodation pending the outcome of the review. The injustice to Ms X is the uncertainty about the outcome if these matters had been properly considered. She also suffered distress at a time when she was particularly vulnerable and in need of support.

The complaint

1. Ms X complains that the Council did not give proper consideration to her protected characteristic as a trans woman, and the risk of further violence, when it decided she was not homeless because it was reasonable for her to continue occupying her flat. She is also dissatisfied with the way the Council considered her request for a review of that decision.
2. Ms X did not feel safe in her home because she was subjected to frequent transphobic abuse in the local area. She was sexually assaulted close to her flat in mid-September 2020. She spent time sleeping rough in central London until a homeless charity found her a room in a hostel. Following an extended hospital stay, and a stay in hostel accommodation, her Housing Association moved her to a flat in another London borough in April 2021. She told me she is now suitably housed and feels much safer in this area.
3. Ms X believes the Council did not have due regard to its duties under the Equality Act. She says it focused too narrowly on her disability and did not give sufficient weight to her transgender status. It did not treat her in a humane way as someone who was subjected to transphobic abuse and sexual assault. She says her experience with the Council has had a lasting and severe impact on her mental and physical health.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. If we are satisfied with an organisation’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

7. Ms X had a right of appeal to the County Court to challenge the Council’s review decision. We exercised our discretion to investigate this complaint despite the existence of this legal remedy because:
• Ms X had an extended period of serious ill health and was in hospital between January and March 2021 - this made it difficult to pursue an appeal;
• Legal Help funding for an appeal was withdrawn in January 2021 when Ms X’s Housing Association agreed to move her to new accommodation.
8. For these reasons, I consider Ms X could not reasonably have pursued an appeal at the time.
9. I have spoken to Ms X and considered the information she provided. I have read the correspondence between Ms X’s legal adviser and the Council and evidence she sent in support of the homelessness review.
10. I considered the Council’s response to my enquiries and relevant records from its housing file.
11. Ms 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 relevant legal duties

The Equality Act 2010

12. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions. It is unlawful for organisations which carry out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
13. The “protected characteristics” referred to in the Act are:

• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex, and
• sexual orientation.
   

Duties owed to those who are homeless or threatened with homelessness

14. If someone is homeless, or threatened with homelessness within 56 days, they can seek help from the Council. Where the person is actually homeless, the relief duty may apply. This is a duty to take reasonable steps to help the applicant secure accommodation that will be available for at least six months. The person must be eligible for assistance (this means their nationality or immigration status entitles them to assistance from the state).
15. An applicant is homeless if they do not have accommodation that they have a legal right to occupy, which is accessible and physically available to them (and their household) and which it would be reasonable for them to continue to live in. Section 177(1) of the Housing Act 1996 says it is not reasonable for someone to continue to occupy accommodation if it is probable this will lead to domestic abuse or other violence against the applicant.
16. The Code of Guidance says there is no simple test of reasonableness in these cases. The council must make a judgement on the facts of each case which takes account of the applicant’s circumstances.
17. The Council is responsible for making any inquiries it considers necessary to establish the facts and reach a fair decision.

Reviews and appeals of homelessness decisions

18. Homeless applicants may request a review within 21 days of being notified of the decision on their homelessness application.
19. The review must be carried out by someone who was not involved in making the original decision and who is senior to the original decision maker. The reviewing officer must consider any information relevant to the period before the decision was made (even if only obtained afterwards) as well as any new relevant information the Council obtained since the decision. (The Homelessness (Review Procedure etc.) Regulations 2018, Homelessness Code of Guidance Chapter 19)
20. The Code of Guidance says:

“An original decision could subsequently be rendered deficient because of intervening events which occurred between the date of the original decision and the review decision”

21. The review decision letter must advise the applicant of their right to appeal to the county court on a point of law, and the time limit to bring an appeal. Applicants can also appeal if the Council takes longer than the prescribed time to complete the review. (Housing Act 1996, sections 202 to 204)

Accommodation pending a review

22. Applicants may ask a council to provide accommodation pending the outcome of a review. Councils have a power, but not a duty, to accommodate certain applicants and members of their household. (Housing Act 1996, sections 188(3), 199A(6), 200(5))
23. When deciding whether to provide accommodation pending a review, a council should consider the following, and any other relevant factors:

(a) the merits of the applicant’s case that the original decision was flawed and the extent to which it can properly be said that the decision was one which was either contrary to the apparent merits or was one which involved a very fine balance of judgment;

(b) whether any new material, information or argument has been put to them which could alter the original decision; and

(c) the personal circumstances of the applicant and the consequences to them of a decision not to exercise the discretion to accommodate.

The background to the complaint

24. Ms X identifies as a trans woman. She was granted an introductory tenancy of a one bedroom Housing Association flat in Southwark in February 2020. Ms X lived there alone.
25. Ms X has a range of complex mental and physical health needs. She is under the care of a psychologist, psychiatrist and a care co-ordinator in a specialist mental health service.
26. Ms X told me she experienced frequent incidents of transphobic abuse, threats and sexual assault from unknown males in her neighbourhood in Southwark. She says she was verbally abused on a daily basis by some residents of a hostel on the road where she lived as she walked past. She was also abused and threatened by strangers when she was out walking her dog or going to local shops and a café. On one occasion she was sexually assaulted in a public space very close to her flat.
27. Ms X reported many of these incidents to the police in Southwark. But she did not report every incident because she says they occurred so frequently. She says she had also lost confidence in the police response and did not have the emotional resilience to report every incident.
28. Due to the frequency of incidents in spring 2020, Ms X decided to leave London in May 2020. She did not give up her tenancy of the Housing Association flat. She spent time sleeping rough in “City A” and applied to the Council there for homelessness assistance. “Council A” arranged interim accommodation for a brief time but decided it did not owe her the relief duty because it did not consider she was homeless. It said it would be reasonable for her to return to her flat in Southwark.
29. Ms X returned to London in August 2020. She then approached Southwark Council to request homelessness assistance. She said it was not reasonable to continue to occupy her flat because of transphobic harassment and threats in the local area. During this period she slept rough in central London and occasionally returned to the flat in Southwark but did not feel it was safe to stay there.

Ms X’s request for homelessness assistance

30. A case officer in the Council’s Housing Solutions team interviewed Ms X on the telephone in late September 2020. A few days before the interview Ms X had completed a health assessment form with help from a homeless charity which works with rough sleepers. She uploaded a report from her consultant psychiatrist and completed a vulnerability questionnaire. In her personal statement she mentioned four transphobic incidents she had reported to the police between April and September 2020. One incident involved abusive and threatening comments made to her on social media. The other three incidents all happened in the area of Southwark where she lived. She said the police were still investigating the most recent incident in September 2020. Ms X explained the impact these incidents had on her fragile mental health. She also suggested other areas in the borough where she would feel safer.

31. The case officer also considered a risk assessment report completed by a police officer on 14 September 2020. The police officer concluded Ms X was at medium risk due to repeated transphobic incidents. He gave a brief summary, including the locations, of four incidents Ms X had reported up to 4 September 2020. The most recent incident had happened outside her flat. He stated that he supported a move within Southwark or to a different borough.
32. The risk assessment form says that in cases where the victim is assessed as high risk, it may be necessary to move them temporarily to protect them. This did not apply to Ms X because the police assessed her as medium risk.

33. On 5 October 2020 Ms X sent an email to a local Councillor and officers in the Housing Solutions service to tell them about a serious new incident on 16 September 2020. She said she had been sexually assaulted in a named location very close to her flat. She said she had not reported this to the police because she did not feel she would be believed. The Councillor replied to Ms X and encouraged her to report the incident. A senior officer in the Housing Service told Ms X he had forwarded her email to the Housing Options team. Ms X also said she had been sexually assaulted in a central London location in September.

34. On 19 October 2020 the case officer sent Ms X a decision letter stating that the Council did not consider her to be homeless. It therefore did not owe her the relief duty. The letter referred to the September 2020 police risk assessment but made no reference to the sexual assault incident which occurred after that report was written. Ms X had reported this to the Council on 5 October but the case officer had not made any further inquiries to the police. The letter explained Ms X’s right to request a review of the decision within 21 days.

Ms X’s review request

35. On 19 October Ms X informed the case officer that she intended to request a review of the decision. She also challenged the accuracy of a statement in the decision letter about the reasons she had returned to London in August 2020. The case officer acknowledged her email and said she would forward it to the Reviews team.
36. On 3 November 2020 Ms X’s legal adviser asked the Council to urgently consider arranging accommodation for Ms X pending the outcome of the review. She made detailed submissions to support this request, including:
• The Council had not made adequate inquiries to establish whether it was safe for Ms X to remain in the flat due to the harassment and abuse she had experienced in the surrounding area;
• The Council did not apply the law correctly because the decision letter failed to address whether it was reasonable for Ms X to continue to occupy the accommodation;
• Ms X was vulnerable due to her significant physical and mental health needs, and her status as a transgender woman, which put her at increased risk of hate crime if she was not provided with accommodation.
37. In the same letter, Ms X’s legal adviser informed the Council about a further incident in late October 2020 when Ms X was threatened and taunted about being a trans woman by youths in the street. She said this had happened in a road in the neighbourhood where Ms X lived. The legal adviser also said Ms X had now reported the September sexual assault to the police and gave the crime number. She said this sexual assault had taken place within 100 metres of Ms X’s flat.
38. The Council acknowledged the legal adviser’s letter on 11 November and said the Review Officer would make a decision on the request for accommodation.
39. On 12 November 2020 Ms X asked the Review Officer to get an updated risk assessment report from the police because she had reported new incidents since the homelessness decision in October.
40. The legal adviser made further written submissions for the review in late November 2020. She provided a further report from Ms X’s consultant psychiatrist and from an organisation which had provided counselling to Ms X as a survivor of sexual abuse and violence. These professional reports explained the impact of the abuse on Ms X’s mental health. The legal adviser also chased the Review Officer for a response to her request for accommodation for Ms X.
41. The Review Officer replied on 27 November. He said he needed more information about the recent incidents, such as a police report, before he could respond to her request for accommodation for Ms X. He asked the legal adviser to send this to him.
42. From the evidence I have seen so far, it seems Ms X’s legal adviser did not send any further information in response to this request.
43. The Review Officer sent the review decision to Ms X’s legal adviser by email on the evening of 24 December 2020. The Review Officer’s case notes and decision letter show he had read and taken into account the 14 September 2020 risk assessment report. He had also seen the email correspondence between Ms X and the police about their investigation of the incident when Ms X was threatened in a local café in late October 2020. But he did not make any direct inquiries to the police about the incident of sexual assault incident in September 2020 near her flat which was not mentioned in these reports. Nor did he request an updated risk assessment report.
44. The Review Officer’s decision letter is lengthy so I have summarised the key points and findings below:
• He accepted Ms X had the protected characteristic of disability under the Equality Act 2010. He said she also had other protected characteristics including sexual orientation and gender reassignment. He said he was satisfied these characteristics had been fully considered and she had not been treated less favourably than other people who did not have these protected characteristics;
• He accepted the evidence in the reports from health professionals that transphobic abuse had a significant adverse impact on Ms X’s mental health and wellbeing;
• He was satisfied the case officer had made adequate inquiries before making the decision that Ms X was not homeless and he found no deficiencies or irregularities in her decision-making;
• He noted that Ms X had been subjected to transphobic abuse while she was sleeping rough in two areas in central London. He therefore concluded the risk of transphobic abuse was not limited or unique to the area of Southwark where she lived. He said that unfortunately she would face this risk regardless of where she lived;
• He said the September 2020 police risk assessment report had classified Ms X as “medium risk” due to transphobic abuse and the police had not recommended a move;
• No new evidence or material was available which would have a real effect on the decision being reviewed;
• He upheld the case officer’s decision that Ms X was not homeless because it was reasonable for her to continue to occupy her flat.
• He explained Ms X’s right to appeal to the County Court within 21 days.
45. The legal adviser forwarded the review decision letter to Ms X on 26 December. I have explained in paragraph 7 why Ms X did not appeal to the County Court.
46. Ms X says it is not acceptable for the Council to suggest she must expect, and tolerate, transphobic abuse and assault wherever she lives. She says she was subjected to more severe and frequent transphobic abuse in this area of Southwark than in any other area. She should not be a prisoner in her home and has the right to live without fear of being abused or assaulted in the street.
47. Ms X’s Housing Association moved her to accommodation in another London borough in April 2021. She told me she has experienced very few transphobic incidents since she moved and feels much safer in this area.

My analysis

48. As Ms X used her review rights, I have focused on the way the Council considered the review request and made the review decision. The Review Officer clearly accepted Ms X has a disability and her status a trans woman. Those are both protected characteristics under the Equality Act 2010.
49. I agree with Ms X that the review decision letter contains more details about her disabilities and says less about her gender identity. But the Review Officer clearly acknowledged that the hate crimes of abuse, threats and sexual assault had been directed at her because of her trans identity. This was the reason Ms X had requested homelessness assistance and the Review Officer clearly had this in mind when reviewing the decision. For this reason I do not consider the Review Officer failed to have regard to her protected characteristic as a trans woman in the decision-making process.
50. I do not share Ms X’s view that the review decision letter said she should expect and tolerate transphobic abuse. The Review Officer condemned the abuse and referred to it as “inexcusable” in the letter. He did say that Ms X had suffered transphobic abuse in other areas of London as well as in the neighbourhood close to her flat in Southwark. That was factually correct. But, having read the letter, I do not consider he was condoning this behaviour or suggesting Ms X should put up with it.
51. I found the following faults in the way the Review Officer considered the review and reached his decision:
• Contrary to what he said in the review decision letter, Ms X and her legal adviser did present relevant new information about a new incident of abuse in October 2020 and a sexual assault which occurred in close proximity to Ms X’s flat in September 2020. This was significant new information which was not available to the case officer when she made the original decision in October 2020.
• The Review Officer did not act on Ms X’s request to obtain a new risk assessment report from the police. So he made the review decision without the benefit of evidence from the police about the mid-September sexual assault near her flat. Ms X and her legal adviser had informed the Council about this new incident and provided the crime reference. In my view the burden was on the Review Officer to make inquiries to the police to ensure he had all the relevant and up to date information to properly assess the risks to Ms X before he made the review decision;
• There was a factual error in the review decision letter. The Review Officer wrongly stated that the police had not recommended a move for Ms X. However the police officer who completed the risk assessment report in mid-September 2020 had highlighted two sections on the form to indicate he recommended a move to another area in Southwark or to another borough.
• The Review Officer’s view was that Ms X was likely to be at risk of transphobic abuse wherever she lived. But he still had to assess the specific risks of harassment and violence she faced in the area near her flat, including the risk of sexual assault. The failure to make inquiries to the police about that incident means he lacked all the relevant evidence to properly assess the risk of further violence if Ms X remained in the flat. The review decision was flawed for this reason;
• The Review Officer should not have put the burden on Ms X’s legal adviser to obtain a police report to help him assess the request for accommodation pending the review. The burden of making inquiries rests with the Council and it cannot transfer this responsibility to the applicant or their representative. And the Council cannot refuse to make a decision on a request for accommodation until the applicant provides a report from a third party, such as the police. If the Review Officer considered a police report was necessary, he should have made his own inquiries to the police. In any event, the Review Officer should still have made a decision on the request, put it in writing and given reasons if he refused to provide accommodation.
52. What impact did these faults have on Ms X? She cannot be satisfied that her review, and the request for accommodation pending the outcome of the review, were properly considered. She feels let down by the Council at a time when she was particularly vulnerable. This caused her avoidable distress at a difficult time in her life. She told me this experience has had a lasting impact on her.
53. We do not know whether the Review Officer would have made a different decision if he had made further inquiries to the police about the later incidents, or if he had understood that the police had recommended a move in the risk assessment report. So there is uncertainty about the outcome if he had properly considered these matters. And the Council has discretion about whether to provide accommodation pending a review so we cannot say whether the Review Officer would have agreed to do that if he had first requested and considered an updated police report.
54. Events have moved on since 2020 and Ms X’s circumstances are different now. She is no longer the tenant of the Southwark flat. She is not homeless or threatened with homelessness. For this reason it is too late for us to recommend that the Council carries out a new review.

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Agreed action

55. Within one month of my final decision, the Council will:
• Arrange for a senior manager to send a letter of apology to Ms X;
• Pay her £400 to recognise the distress caused by the way it handled the review;
• Arrange a briefing for officers in the Reviews team to share the learning points from this case. This should focus on when it is appropriate for officers to make inquiries to the police if an applicant reports new incidents of abuse or assault after the homelessness decision was made and while the review is under consideration. It should also remind officers to notify the applicant, or their representative, in writing of decisions on a request for accommodation pending a review and to give reasons if the request is declined.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman