Summary: There was fault by the Council. A decision letter stated the wrong legal test and the Council closed Miss X’s homeless case without informing her. The Council has also given contradictory information in response to enquires on her settled address, when its letter to her accepted she was homeless and that domestic abuse was a consideration. A payment towards Miss X’s uncertainty and a review of procedures remedies the injustice.

The complaint

1. The complainant, who I shall call Miss X, complains that the Council has not made reasonable adjustments to help her with the process of making homeless and housing applications, and with finding suitable housing.
2. Miss X also complains the Council has not found her housing and she has been street homeless for four years.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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. 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

6. I read the papers submitted by Miss X and discussed the complaint with her.
7. I considered the Council’s comments about the complaint and any supporting documents it provided.
8. Miss X and the organisation 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

Relevant law and guidance about homelessness

9. 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.
10. If councils are satisfied applicants are homeless and eligible for assistance, they must take reasonable steps to secure accommodation. This is called 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)
11. 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)
12. The law says certain people will always be in priority need. This includes pregnant people, families with dependent children, and people who are vulnerable due to age or a disability. In July 2021, section 78 of the Domestic Abuse Act introduced a new category of person who will be in priority need. This was “a person who is homeless as a result of that person being a victim of domestic abuse.” (Housing Act 1996, section 189)
13. If, at the end of the relief duty, 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. This is called the main duty. (Housing Act 1996, section 193)
14. 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, Homelessness Code of Guidance 18.32 and 18.33)
15. Homeless applicants may request a review within 21 days of being notified of a decision on their homelessness application. This includes a decision that an applicant is not in priority need. (Housing Act 1996, section 202)
16. Following a review, the council must advise applicants of their right to appeal to the county court on a point of law, and of the period in which to appeal. Applicants can also appeal if the Council takes more than the prescribed time to complete the review. (Housing Act 1996, sections 202, 203 and 204)

Reasonable adjustments

17. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
18. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
19. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.

Key facts

20. Miss X told the Council on 27 April 2021 that she was homeless as she was staying with a friend, after having to leave her previous address due to domestic abuse.
21. The housing team referred her to its domestic abuse team. On 5 May 2021 the Council’s files say that Miss X told them she did not want to go to a women’s refuge or move out of the area. The Council said it closed the case on 25 June 2021 after 56 days.
22. Miss X called the Council on 28 June 2021 wanting to know why her case was closed. The Council told Miss X that the caseworker would call her but there is no record they did.
23. In July, section 78 of the Domestic Abuse Act introduced a category of person who will be in priority need. This was “a person who is homeless as a result of that person being a victim of domestic abuse.”
24. Miss X called the Council on 18 September 2021 with new information about her medical condition. The Council told her on 27 September that it was waiting for medical information from her GP to determine if she was in priority need. Miss X was told if she was in priority need, the Council would request temporary accommodation for her.
25. The Council raised a new case on 30 September 2021. It interviewed Miss X and created a Personalised Housing Plan (PHP). The Council chased up Miss X’s GP twice for medical information in October 2021.
26. On 21 October 2021 the Council told Miss X that its independent medical advisors advised she was not in priority need. Miss X was referred to the Council’s private letting team.
27. The Council told me that ‘on 15 November 2021 that the 56 days expired in prevention and the case to proceed to relief’.
28. On 29 November 2021 the Council sent Miss X a decision letter. This said that ‘further to her application of 30 September 2021 the Council’s duty to prevent her from becoming homeless had ended’. Miss X had a right to a review of this decision.
29. The Council told me ‘on 28 January 2022, 56 days expired in Relief and no further action’. The Council received further medical information on 2 March 2022 and got further medical advice from their independent medical advisor.
30. On 18 March 22 the Council sent a decision letter to Miss X. This referred to the facts of the case as:
• Telephone assessment of Miss X’s needs on 27 April 2021 said she fled domestic abuse and had been staying with a friend for 3 weeks.
• That Miss X informed the Council she had medical health issues.
• That on 5 May 2021 Miss X refused a risk assessment for domestic abuse issues and that she did not want to go to a women’s refuge as she wanted to remain near her children.

The decision letter said that Miss X was a single female applicant with no resident dependents. The Council did not consider the medical information meant she was significantly more vulnerable than an ordinary homeless person. So, the Council concluded that Miss X did not have a priority need for interim temporary accommodation. Miss X had a right to a review of the decision.

31. The Council’s decision letter says ‘the following categories listed below are people considered to be in priority need under section 189 of the housing act 1996 and the homelessness (priority need for accommodation (England Order 2002:
• You have left your home because of violence or threats of violence and this has made you vulnerable.’
32. The definition of priority need in the letter did not include the new category introduced by the Domestic Abuse Act. Miss X had a right to a review of the decision but did not use this right.
33. Miss X explained she finds reading and writing difficult and has to ask someone to help her. She said the Council did not make any reasonable adjustments to help her get essential information in an accessible way. The Council said Miss X did not ask for any reasonable adjustments.
34. When Miss X brought her complaint to the Ombudsman, she said she struggled to read and write when asked if she needed reasonable adjustments.

My findings

Reasonable adjustments

35. Miss X has explained that accessing written information is difficult for her. In response to my enquiries, the Council said it has no record of her mentioning literacy issues. Without evidence the Council was aware of Miss X’s issues I can not say the Council was at fault. But, if Miss X has evidence she asked the Council for reasonable adjustments and these were not provided I can look into this further.
36. Decisions about homelessness involve legal duties and can have significant consequences. As in this case, decision letters often contain complex language and references to legislation and case law. There is a 21 day time-limit to ask for a review. It is therefore important that applicants can access and understand the information with any reasonable adjustments they might need.

Errors in March 2022 decision letter

37. The Ombudsman usually expects people to appeal to court when they have a statutory right to do so. However, we can investigate if we decide there was a good reason the complainant could not or did not do so.
38. Miss X had a right of a review and then to appeal to court about the Council’s decision she was not in priority need. Miss X struggles to read and write, so this is a good reason Miss X could not appeal to court. In addition, it was not reasonable for her to know about the changes to the law that affected her complaint.
39. The issue is not a question of interpretation of the law or the reasonableness of the decision, which are properly matters for the court. It is a straightforward issue of the content of the law when the Council made its decision in the letter dated 18 March 2022. For these reasons, I have exercised discretion to investigate this part of the complaint.
40. The decision letter of March 2022 says that ‘as you (Miss X) are aware the Council has accepted a relief duty toward you and you were notified of this by way of a letter dated 4/6/2020. The Council has said ‘the date is a typographical error, for which the Council would like to apologise, the relief duty would have been accepted around November 2021 to January 2022 and not 4 June 2020’. This was fault.
41. In addition, before the Domestic Abuse Act introduced a category of applicant who will have priority need, the test was whether the applicant was “vulnerable as a result of…violence…or threats of violence.” Case law says ‘vulnerable’ in this context means whether a person would be more vulnerable that an ordinary person if they became homeless.
42. The Domestic Abuse Act added a new category to the list of applicants who will be in priority need: “a person who is homeless as a result of that person being a victim of domestic abuse.” This removed the need to consider the ‘vulnerable’ test.
43. The Council used the wrong definition of priority need in its letter of 18 March 2022. This is fault.
44. The Council should have considered whether Miss X was homeless because of domestic abuse. If the Council decided Miss X was homeless because of domestic abuse, she would be in priority need for accommodation. There is uncertainty about whether the Council would have reached the same decision were it not for the fault. This is an injustice to Miss X.

Homeless application

45. Miss X first told the Council she was homeless in April 2021.
46. The Council said the case opened in April 2021 was closed after 56 days. Miss X called in June 2021 to ask why the case was closed. The Council said that a new case was opened in September 2021. So, it considers there was no delay
47. Miss X said she did not want to go to a refuge in May 2021. But this doesn't mean the Council didn't continue to owe her homeless duties. There is no evidence that Miss X did not want to continue to make a homeless application in May 2021. So, there was fault as the Council did not complete the PHP until September 2021. The decision letter sent in March 2022 also refers to the assessment of Miss X’s needs in April 2021, not just September 2021.
48. The Council’s view, in response to my enquiries, said ‘the decisions made in relation to Miss X’s homeless application in September 2021, November 2021 and March 2022, were based on her approaching as an applicant staying with a friend and her medical health issues and not because of prior DA, at another place. So, Miss X was not a person who was homeless, as a result of being a victim of domestic abuse in September 2021. Therefore, no wrong test was applied, to deny her a homeless duty’.
49. The Council’s view that it did not have to consider the Domestic Abuse once Miss X had fled to her friends address is difficult to understand. Especially as the Council sent a decision letter accepting Miss X was homeless and referred to Domestic Abuse.

Conclusion

50. There was fault by the Council in dealing with Miss X’s homeless application. There was delay and/or poor communication, the wrong test was applied in the decision letter and the Council’s view that as Miss X went to stay with a friend that meant she was no longer fleeing Domestic Abuse contradicts its written decision.
51. This causes an injustice to Miss X. It is not possible for me to tell now if the fault has led to the wrong decision. If Miss X wanted to challenge the decision that she was not in priority need then she had a right to a review and then go to court.
52. However, I do consider that a remedy of £500 for her uncertainty is appropriate. And, I understand that Miss X’s situation has now changed to mean that she may be considered to be in priority need for another reason.

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Agreed action

53. To remedy the injustice to Miss X from the fault I have identified, the Council should:
• Apologise to Miss X.
• Pay Miss X £500 to recognise her avoidable distress and uncertainty.
54. The Council should take this action within four weeks of my final decision.
55. The Council should also take the following action to improve its services:
• Remind relevant staff of the change to the definition of priority need introduced by the Domestic Abuse Act 2021.
• Amend relevant template letters, emails, and internal guidance to include the up-to-date definition of priority need.
• Remind relevant staff of the proactive duty to make reasonable adjustments under the Equality Act. Provide training or guidance as needed.
56. The Council should tell the Ombudsman about the action it has taken within eight weeks of my final decision.

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Final decision

57. I have completed my investigation. There is some fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman