London Borough of Wandsworth (22 001 927)

Category : Housing > Homelessness

Decision : Upheld

Decision date : 22 Mar 2023

The Ombudsman's final decision:

Summary: Mr X complains about the Council’s handling of his homelessness application. The Council has accepted it failed to accept the relief duty when Mr X sent evidence of a court order for possession of his private rented accommodation. We find the Council failed to arrange interim accommodation for Mr X while it owed him the relief duty; delayed making storage arrangements for Mr X’s belongings ahead of his eviction; and failed to consider what reasonable adjustments could be made to accommodate his disabilities when communicating technical information to him, including about its housing register process. We find the Council failed to provide Mr X with a response to his request for housing benefit to support his hotel costs when homeless. The fault by the Council caused Mr X significant injustice, including missing out on suitable accommodation for over five months. To remedy this, the Council has offered to apologise to Mr X and make him a payment. It has also agreed to reimburse Mr X the hotel costs he paid and put any agreed reasonable adjustments in place then invite a housing register application from Mr X. The Council has agreed to make several service improvements.

The complaint

  1. The complainant, who I shall refer to here as Mr X, complains about the Council’s handling of his homelessness application.
  2. More specifically, Mr X complains the Council:
      1. failed to provide interim accommodation while the Council owed him the relief duty under the Housing Act 1996. Mr X says he was evicted from his home due to rent arrears in December 2021, is homeless and was paying for hotels until the end of July 2022. Mr X says he was at risk of street homelessness during this time period. He says the Council has failed to consider his significant mental health conditions and health conditions when processing his homelessness application;
      2. failed to provide Mr X with information about how the Council’s housing allocations scheme works. He says that he does not understand the process;
      3. delayed in sending him a decision on his priority need and failed to carry out an Assessment or issue a personalised housing plan following his homelessness application;
      4. failed to remove and securely store his belongings prior to his eviction. He says, in December 2021, he contacted the Council to ask for help with the storage of his belongings as his eviction was imminent, but the Council failed to promptly provide assistance; and,
      5. the Council refused his requests for discretionary housing payments to help with the shortfall in his rent and rent arrears. He complains the Council failed to provide housing benefit that covered his rent in full.
  3. Mr X says the situation has significantly affected his existing mental health conditions, his wellbeing and physical health.
  4. Mr X says that he is incurring storage charges for his belongings, which he is unable to meet. He says he has had to cover the costs of hotels and was at risk of street homelessness until 30 July 2022, when the Council provided interim accommodation. He says he has had to borrow money from friends or family to fund his hotel accommodation, leaving him with considerable debts. He says this has caused him distress as now his friends and family know he is homeless because he had to ask them for help when this was not forthcoming from the Council.

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The Ombudsman’s role and powers

  1. 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)
  2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
  4. The Social Entitlement Chamber (also known as the Social Security Appeal Tribunal) is a tribunal that considers housing benefit appeals. (The Social Entitlement Chamber of the First Tier Tribunal)
  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

  1. I spoke with Mr X about his complaint. I considered the documents and information that Mr X and the Council sent me.
  2. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Homelessness – legislation and statutory guidance

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.

The prevention duty

  1. If councils are satisfied applicants are threatened with homelessness and eligible for assistance, they must help them to secure that accommodation does not stop being available for their occupation. In deciding what steps they are to take, councils must have regard to their assessments of the applicants’ cases. (Housing Act 1996, section 195)

Threatened with homelessness

  1. Someone is threatened with homelessness if, when asking for assistance from the Council on or after 3 April 2018:
  • he or she is likely to become homeless within 56 days; or
  • he or she has been served with a valid Section 21 notice which will expire within 56 days. [Housing Act 1996, section 175(4) & (5)]

Assessments and Personal Housing Plans

  1. Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. The Code of Guidance says, rather than advise the applicant to return when homelessness is more imminent, the housing authority may wish to accept a prevention duty and begin to take reasonable steps to prevent homelessness. Councils must notify the applicant of the assessment. Councils should work with applicants to identify practical and reasonable steps for the council and the applicant to take to help the applicant keep or secure suitable accommodation. These steps should be tailored to the household, and follow from the findings of the assessment, and must be provided to the applicant in writing as their personalised housing plan. (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.18)

Applications

  1. 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)

The relief duty

  1. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. When a council decides this duty has come to an end, it must notify the applicant in writing (Housing Act 1996, section 189B)

The meaning of ‘homeless’

  1. A person is to be considered homeless if they do not have accommodation that they are entitled 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. [Housing Act 1996, section 175]

Assured shorthold tenants given notice by their landlord

  1. The Code says in determining whether it would be reasonable for an applicant to continue to occupy accommodation following expiry of a valid section 21 notice the council will need to consider all the factors relevant to the case and decide the weight that each should attract. Authorities should not adopt a blanket policy or practice on the point at which it will no longer be reasonable for an applicant to occupy following the expiry of a section 21 notice.
  2. Where an applicant is:
      1. an assured shorthold tenant who has received a valid notice in accordance with section 21 of the Housing Act 1988;
      2. the housing authority is satisfied that the landlord intends to seek possession and further efforts from the housing authority to resolve the situation and persuade the landlord to allow the tenant to remain in the property are unlikely to be successful; and,
      3. there would be no defence to an application for a possession order;
  3. then it is unlikely to be reasonable for the applicant to continue to occupy beyond the expiry of a valid section 21 notice, unless the housing authority is taking steps to persuade the landlord to allow the tenant to continue to occupy the accommodation for a reasonable period to provide an opportunity for alternative accommodation to be found.

Duty to arrange interim accommodation (section 188)

  1. 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) This is a low threshold. It is an absolute duty and the authority cannot postpone it due to a lack of available resources.
  2. The High Court has also been critical of attempts by an authority to put systems in place to avoid, or delay, the provision of interim accommodation. R (Kelly & Mehari) v Birmingham City Council [2009] and R (Khazai) v Birmingham City Council [2010].

Priority need

  1. Examples of applicants in priority need are:
  • people with dependent children;
  • pregnant women;
  • people who are vulnerable due to serious health problems, disability or old age.

The main homelessness duty

  1. 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 (unless it refers the application to another housing authority under section 198). But councils will not owe the 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, or if a council has given them notice under section 193B(2) due to their deliberate and unreasonable refusal to co-operate. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)

Protection of belongings

  1. Where the council owes or has owed certain housing duties to an applicant, it must protect the applicant’s personal property if there is a risk it may be lost or damaged. A council may make a reasonable charge for storage and reserve the right to dispose of the property if it loses contact with the applicant. (Housing Act 1996, section 211, Homelessness Code of Guidance chapter 20)

Reasonable adjustments

  1. The Equality Act 2010 makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. The ‘protected characteristics’ referred to in the Act includes disability.
  2. The reasonable adjustment duty is set out in the Equality Act. It 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.
  3. 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.
  4. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.

What happened

  1. On 12 October 2021, Mr X made a homelessness application to the Council. Mr X told the Council his private landlord had served an eviction notice on him due to significant rent arrears and recently received a Court Order for possession of the property in December. He said he was expected to leave the property within the next five weeks. Mr X told the Council:
  • his tenancy was an assured shorthold tenancy
  • he had severe depression and anxiety as well as mobility difficulties that affected his ability to use stairs and get around the house. By telephone, Mr X told the Council he was worried sick and was experiencing thoughts of ending his life.
  1. Ten days later, a Council Housing Officer carried out a telephone Assessment with Mr X and completed a Personalised Housing Plan (PHP).
  2. In late November, the Housing Officer told Mr X, regarding Mr X’s possessions, that there was a cost for the Council’s storage service, which it would pay upfront then Mr X could repay this through a manageable repayment plan. The Officer asked Mr X to provide an inventory of his possessions to allow the Officer to get a quote for the cost from its third party storage provider.
  3. The same day, Mr X sent his Housing Officer an inventory of his possessions.
  4. On 8 December, the Housing Officer spoke with Mr X. The Housing Officer offered to arrange collection and storage of Mr X’s belongings on 21 December, which was the earliest date its contracted provider could offer. Mr X said this was too late as the Bailiffs were expected on 10 December, which was the date his eviction took place. Mr X said he had to arrange his own removal and storage because he had to leave the property by 10 December.
  5. The Housing Officer said Mr X’s medical documents were with the Council’s independent medical advisors for review. But, the Officer said Mr X should look for accommodation in the private rental sector as the Council would not provide him with temporary accommodation as he was not in priority need.
  6. On 20 December, the Housing Officer emailed Mr X the relief duty letter.
  7. On 4 January 2022, following contact from the Housing Officer on 1 December, the Council’s Private Rental Sector team refused Mr X’s referral due to his high level of debt.
  8. On 27 January, the Housing Officer called Mr X to check if he had managed to find any accommodation. The Officer said again Mr X did not meet the criteria for emergency accommodation.
  9. The Housing Officer emailed Mr X following the call. The Officer told Mr X to look for accommodation in the private rented sector and confirmed she had referred Mr X to an organisation, which could offer him independent, free housing advice (referred to as Advice Centre).
  10. The next day, Mr X chased the Council’s Housing Benefits team for an update on his entitlement.
  11. Several days later, Mr X complained to the Council.
  12. In February, an Advisor at the Advice Centre contacted the Council on Mr X’s behalf and requested the Council arrange suitable interim accommodation.
  13. The Housing Officer replied to say a medical advisor had reviewed the medical documents provided by Mr X. The Housing Officer said, based on the comments and recommendations from the medical advisor, Mr X did not meet the criteria for interim accommodation. The Officer said if no further medical evidence was received, the Housing Officer would promptly send a decision letter on whether Mr X was in priority need.
  14. A few days later, the Advisor contacted the Housing Officer to say he was increasingly concerned for Mr X’s welfare as Mr X had shared with him that he had thoughts of ending his life. The Advisor attached medical evidence from August 2021 and February 2022. The Advisor asked the Housing Officer to make a prompt decision about whether it owed Mr X a duty to arrange interim accommodation and provide him with review rights.
  15. In late February, the Housing Officer asked the independent medical advisors to review the new medical information provided by Mr X. This included a letter from a Community Mental Health team Psychiatrist, which said, in January 2022, that Mr X’s memory was “impaired” at present.
  16. On 10 March, the Housing Officer asked Mr X to confirm his prescribed medicine dosage and, if it had changed, to provide confirmation from his doctor. The Officer asked Mr X for an updated medical report from his psychiatrist.
  17. The next day, Mr X sent the Housing Officer the medical evidence available to him, including an updated list of prescribed medication.
  18. On 18 March, an Advisor at the Advice Centre complained to the Council. The Advisor said the Council had failed to provide Mr X with interim accommodation pending enquiries or send a decision letter on Mr X’s priority need while it owed the relief duty. The Advisor said Mr X had to borrow money from friends to stay in a hotel and his mental health had deteriorated significantly.
  19. Several days later, a Senior Housing Reviews Officer replied to the Advisor. The Senior Officer refused to address the complaint under the Council’s complaints process.
  20. On 5 April, the Housing Officer wrote to Mr X with the Council’s decision he was not in priority need. It separately wrote to Mr X telling him it had ended the relief duty. It said 56 days had passed since the duty was first accepted and it was satisfied the Council had kept his PHP under review and taken all reasonable steps to help Mr X but, unfortunately, he remained homeless.
  21. In mid-April, solicitors, instructed by Mr X, requested a review by the Council of its decision to end the relief duty.
  22. In May, Mr X complained to the Ombudsman.
  23. In June, Mr X’s solicitors sent the Council a pre-action protocol letter (a letter before claim for judicial review).
  24. In mid-June, Mr X went to Council offices to discuss his situation. A Council Officer advised Mr X to make a new homelessness application.
  25. On 21 June, the Council sent Mr X’s solicitors the outcome of the review request. It upheld its original decision.
  26. In July, Mr X made a second homelessness application.
  27. The following day, Mr X’s solicitor asked the Council to confirm the next steps in the process and requested it provide Mr X accommodation pending Assessment.
  28. It is my understanding, based on the Council’s case records and contact with Mr X’s solicitors, that, at the end of July, the Council offered Mr X interim accommodation, which he moved to at the beginning of August 2022.

Analysis – was there fault by the Councill causing injustice

Council handling of Mr X’s homelessness applications

  1. In answer to my questions, the Council accepted that it should have promptly accepted the relief duty towards Mr X when, on 19 October 2021, he provided evidence his landlord had obtained a court order for possession of the property. It failed to do so until 20 December 2021. This delay is fault, which the Council has accepted. In my view, the fault likely occurred because the Council failed to consider, at the point of receiving the evidence, whether it was reasonable for Mr X to occupy the property given he had received a court order for possession (see paragraphs 18 to 20 above).
  2. The Council should have also considered if it had reason to believe Mr X may be homeless, eligible for assistance, and in priority need. This is because the Council had a duty to secure Mr X interim accommodation if so. The Code of Guidance states this is a low threshold.
  3. But, based on the evidence I have seen, I find the Council was trying to satisfy itself that Mr X was in priority need when it referred his medical information to its medical team several times who in turn sought further information from medical professionals involved in Mr X’s care. In my view, the Council’s referral to the medical advisors shows it had reason to believe Mr X was in priority need, otherwise it would not have sought this advice. This is also suggested by the case records from 4 February 2022 which show the Council’s first record of its consideration of Mr X’s status and is focused rather on whether Mr X was in priority need. The Council placed a too high threshold for whether it should provide interim accommodation to Mr X. Mr X told the Council in his original homelessness application that he had severe depression and anxiety and raised concerns about experiencing thoughts of ending his life. This was confirmed in subsequent supporting medical evidence after the Council asked him to send this. On balance, I find the Council would have likely offered Mr X interim accommodation in October 2021 if it had properly considered he may be in priority need against the appropriate threshold (part a and c of the complaint). This meant Mr X missed out on suitable interim accommodation arranged by the Council between 19 October 2021 and 5 April 2022 (five months and two weeks).
  4. On 5 April, the Council made its decision to end the relief duty and decided Mr X was not in priority need, which brought the interim accommodation duty to an end. It provided detailed reasons for its decision. This was a decision the Council was entitled to make. I have not found fault in the Council’s decision-making process, meaning I cannot question whether the decision was right or wrong.
  5. In comments on my draft decision, Mr X provided evidence that he had incurred significant hotel costs between 9 December 2021 and 4 April 2022 (inclusive). I consider it fair and justified that the Council should make Mr X a payment to remedy this quantifiable loss. It is likely Mr X would not have incurred this cost if the Council had arranged interim accommodation during this time, which would have likely entitled Mr X to receive housing benefit.
  6. Mr X had to borrow money from friends and family to cover the costs, which likely put significant strain on these relationships. Mr X told the Council about this. This caused him distress and he said it meant he had to unnecessarily disclose that he was homeless. I find the Council failed to have due regard to Mr X’s right to respect for his private and family life under Article 8 of the Human Rights Act 1998. In my view, if the Council had promptly arranged interim accommodation for Mr X, then this would have avoided the situation and contributed to it promoting good family and other relationships for Mr X.
  7. Mr X went to significant time and trouble trying to get the Council to provide interim accommodation at the relief duty stage. He asked for support from a local Advice Centre, which complained to the Council on his behalf. But, the Council refused to put Mr X’s complaint through its complaint process. Rather, it told Mr X and his Advisor that, if Mr X or the Advisor wanted to challenge the Council’s decision not to provide interim accommodation, the “correct means to do so is by way of a Judicial Review”. In response to my questions, the Council confirmed this was its position. It said “the proper route to challenge a Council’s decision not to provide interim accommodation is by way of judicial review … the Court has powers to order the provision of interim accommodation, and which the Ombudsman does not hold.” It said Officers were not required to record their decision not to provide interim accommodation and the Council had verbally told Mr X that he did not meet the threshold. It said Mr X had a statutory right to request a review of the decision not to provide interim accommodation, meaning the Ombudsman was not able to uphold and not uphold its decision.
  8. But, this is not correct and is fault. There is no statutory right to a review of this decision meaning it should be considered under the Council’s corporate complaints process. The Ombudsman can make findings on the merits of the Council’s decision when fault is found in the decision-making process. We expect Council officers to maintain robust records of key decisions and to promptly provide the applicant with details of any internal review process or the complaints process if the applicant is unhappy with the decision. The Council failed to do so in Mr X’s case, which is fault. This caused Mr X distress and frustration.

Storage of Mr X’s belongings

  1. Mr X complains the Council failed to remove and securely store his belongings prior to his eviction (part d of the complaint). He says, in December 2021, he contacted the Council to ask for help with the storage of his belongings as his eviction was imminent, but the Council failed to promptly provide assistance. He says the Council Officer asked him to provide an inventory of his belongings and told him she had arranged for the collection of his belongings on 21 December 2021. However, Mr X complains that this offer came too late as the bailiffs were going to attend the property on 10 December. Mr X says this meant he had to organise private storage facilities himself, which I understand has increased from £140 per month to £280 per month. He says he does not have the funds for this.
  2. I have decided to uphold this part of Mr X’s complaint. In my view, if the Council had accepted the relief duty in October 2021, then, on balance, it is likely this would have provided the Council sufficient time to provide Mr X with the details of its storage service and, if he chose to accept this, arrange storage ahead of his eviction in December.
  3. Instead, when Mr X sent an inventory of his possessions to the Council in late November, this was too late for the Council to arrange removal of his possessions before his eviction date. This meant Mr X had to arrange storage himself. If the Council had accepted the relief duty sooner, then I would have expected it to have shared clear information about the storage fees and repayment plan available.
  4. But, I find, since Mr X has placed his belongings in storage, the Council has failed to provide him with this information so Mr X may decide whether the Council’s cost of storage was more affordable. Mr X asked the Council again in March and September 2022 whether it could help with the storage of his belongings. The Housing Officer contacted the Council’s Housing Income Maximisation team about Mr X’s request for help with the storage, but I have seen no evidence this led to the Council sending Mr X information about the cost of storage so he could reach an informed decision about whether to use the Council-arranged service. This is fault. It has also failed to explain whether, as part of this cost, it could arrange the transfer of his belongings from storage or to his current interim accommodation. This is further fault. Mr X was caused significant avoidable distress and confusion about what service the Council could provide. I have factored this into my consideration of the recommended financial remedy for Mr X and associated personal remedy.

Information provided about the Council’s housing register

  1. Mr X complains the Council failed to provide Mr X with information about how the Council’s housing allocations scheme works. He says that he does not understand the process (part b of the complaint).
  2. As explained above, under the Equality Act 2010, councils are under a duty to make reasonable adjustments for disabled people. This is to make sure people with disabilities can access their service as easily as people without disabilities. While the adjustments some people need might be obvious, for those with ‘non-visible’ disabilities, like mental health conditions, it may not be immediately apparent that they need extra help. In our focus report, “Equal Access: Getting it right for people with disabilities”, we have explained that this means it is vital councils anticipate people’s needs, as the law requires, and proactively ask sensitive questions about any help people may need.
  3. In October 2021, Mr X made the Council aware that he had severe anxiety and depression and was experiencing thoughts of ending his life. I find Mr X’s mental health conditions may be considered disabilities under the Equality Act.
  4. In December 2021, the Council’s Housing Officer sent Mr X a 56-page document with information about finding accommodation, including in the private rented sector and applying for social housing, and preventing homelessness. In this document, the Council advised Mr X to consider applying to its housing register.
  5. The next day, Mr X replied to the Housing Officer. Mr X said he was finding it hard to manage the accommodation search by himself and had limited capacity to manage even his daily routines. He said he had gone through the attachments, but did not fully understand them and asked the Officer to call him. On several other occasions, Mr X told the Council that he was overwhelmed by the information shared with him and there were parts of the process he did not understand.
  6. Based on the evidence I have seen, I find the Council failed to ask Mr X if he needed it to make any reasonable adjustments in the way it communicated information to him. It also failed to consider what reasonable adjustments it could put in place to ensure information about the housing register application process was communicated to Mr X in a way that was accessible to him. The Council missed several opportunities to consider this. This is fault. Rather, the Council decided that Mr X did not need any reasonable adjustments without checking this with him. We would expect the Council to ensure people are routinely asked or prompted about reasonable adjustments. Any decision on reasonable adjustments should be clearly communicated to the individual concerned. The Council’s failure to do so in Mr X’s case is fault.
  7. Mr X has explained to me that his mental health conditions affect his ability to concentrate, read long letters and understand technical language. I understand this has affected his ability to access any technical information provided by the Council about its housing allocations scheme. In my view, if the Council had asked sensitive questions at an early stage in its investigation about Mr X’s disability-related needs and clearly set out any agreed reasonable adjustments, this would have avoided the injustice Mr X experienced.
  8. The fault identified here caused Mr X distress and uncertainty about what adjustments, if any, the Council considered reasonable and it would put in place to meet his disability-related needs. Because of this, I am not satisfied the Council has provided the information about the housing register process and the significance of this in potentially addressing Mr X’s housing situation in a way that is accessible to him. This information is particularly important for Mr X given the Council’s Private Rental Sector team has refused his referral and Mr X has been unable to find private rented accommodation because of his level of debt. I, therefore, uphold this part of Mr X’s complaint.
  9. On a final connected point, I asked the Council to send me a copy of its guidance to staff on making reasonable adjustments under the Equality Act for service users. The Council told me that it does not have guidance for staff around this. Rather, the consideration of an applicant’s disability is covered by having due regard to the Public Sector Equality Duty (PSED). It said it met this duty when it considered Mr X’s priority need in its decision letter of 5 April 2022.
  10. But, the PSED is a distinct duty from its duty to make reasonable adjustments, which is specific to each individual service user who is disabled. It is also separate to any decision by the Council about priority need.
  11. As explained above, the duty to make reasonable adjustments is anticipatory. The Council should proactively take steps to remove or prevent obstacles to disabled people accessing their service. If the adjustments are reasonable, the Council must make them. We would expect the Council to have clear guidance to staff around reasonable adjustments and how to record these. But, I have seen no evidence the Council routinely and actively assessed whether Mr X or any other service user requires any reasonable adjustments and, if so, how the Council decides whether the specific needs can reasonably be accommodated. This is fault. On balance, I find the Council’s lack of clear guidance to staff on handling reasonable adjustments contributed to the fault causing injustice regarding part d of Mr X’s complaint. I have recommended a service improvement around this.

Assessment and Personalised Housing Plan

  1. Mr X complains the Council failed to carry out an Assessment or issue a PHP following his homelessness application (part c of the complaint).
  2. Based on the evidence I have seen, Mr X completed a homelessness application on 12 October 2021. Ten days later, the Council carried out an Assessment by telephone. I do not find the Council at fault here.
  3. On 20 December, a Council Housing Officer completed a PHP by phone. I find, if the Council had accepted the relief duty in October, it is likely it would have carried out the PHP much sooner. I find the delay of over two months is fault.
  4. Based on the evidence I have seen, the Council delayed in sharing a copy of these two documents with Mr X until the end of March 2022.
  5. I find these delays meant Mr X missed out on promptly receiving a copy of these key documents, which contained important information about steps both the Council and Mr X would take to try to resolve his homelessness as well as the support the Council assessed as necessary for Mr X to have and sustain suitable accommodation.
  6. Assessments and PHPs must be kept under review throughout the relief stage. In January 2022, it became clear to the Council that Mr X had been unable to find private rented accommodation and its own Private Rental Sector team had refused his referral due to his level of debt. In these circumstances, I would have expected the Council to have carried a review of Mr X’s Assessment and PHP to review whether the agreed steps were reasonable. The Code of Guidance says it would not be reasonable to agree steps for an applicant that were reliant on them engaging with a service provision that is unlikely to be offered to them. But, the Council Housing Officer continued advising Mr X to look for accommodation in the private rented sector. This is fault. This caused Mr X distress and confusion. Mr X missed out on an adequate review of his Assessment and PHP.

Discretionary housing payment and housing benefit decisions by the Council

  1. Mr X complains the Council refused his requests for discretionary housing payments (DHP) to help with the shortfall in his rent and rent arrears. He complains the Council failed to provide housing benefit that covered his rent in full (part e of the complaint).
  2. Based on the evidence seen, I find the following:
  • Mr X complains the Council failed to award housing benefit that covered his rent in full up until he was evicted from the property in December 2021. The Council has explained to Mr X that it had awarded him the maximum Local Housing Allowance (LHA) rate for Mr X’s one-bedroom entitlement. In 2013, the government changed the housing benefit rules. The new rules say that a council must reduce someone’s housing benefit if they live in a property which is too large for their needs. The rules say that one couple, or a single person, needs a one-bedroom home. There are some exceptions; for example, an extra bedroom is allowed if someone receives certain benefits and needs a carer to regularly stay overnight. But, if someone disagrees with a council’s decision to impose a reduction for the bedroom tax they can appeal to the Social Security Appeal Tribunal. The law says people should appeal within one month of the date of the housing benefit decision they disagree with. The tribunal can decide to accept a late appeal up to 13 months after the decision. Because of this opportunity for Mr X to appeal the Council’s decision, I have decided not to investigate this part of the complaint further. This also applies to the Council decision, from January 2022, to recover a housing benefit overpayment made between 13 December 2021 and 23 January 2022 when Mr X was no longer living at the property. This decision also had appeal rights to the Tribunal, which the Council told Mr X about in its decision letter;
  • In February 2022, Mr X contacted the Council’s Housing Benefit team twice to chase the Council for a decision about his request for housing benefit to cover the cost of hotels arranged by Mr X. But, based on the evidence available to me, the Council failed to respond to this part of Mr X’s request. This is fault (part e of the complaint). In comments about my draft decision, the Council accepted it failed to respond to Mr X and advise him to claim Universal Credit for support with housing costs. Mr X was put to time and trouble asking the Council to respond to his requests.
  • Mr X made several requests to the Council for a discretionary housing payment (DHP) to help cover the accrued rent arrears linked to a shortfall between his housing benefit and rent. DHPs are discretionary, as is the amount and period of payment. The Tribunal cannot consider appeals about DHP decisions. But, councils must have their own internal review processes.
  • In response to my questions, the Council explained it refused Mr X’s DHP request and review requests because “it was considered inappropriate to pay the large shortfall between [Mr X]’s rent charge and LHA bedroom rate from a limited fund. It was also held that the DHP cannot be used to sustain a tenancy that is unaffordable.” This was explained to Mr X in the Council’s DHP review letter from mid-June 2021. It explained to Mr X that the shortfall Mr X was experiencing was because his weekly rent liability of over £600 exceeded his applicable Local Housing Allowance (LHA) rate of £295.49 for a single person, which was used to calculate Mr X’s Housing Benefit entitlement. The Council said DHPs were intended to help tenants to pay their rent while they resolved their housing issues. But, they could not be used to enable a tenant to remain in a property that they could not afford. In reaching this decision, the Council considered Mr X’s position that he did not intend to move to a smaller, more affordable home at the time because Mr X felt the property met his needs. It also considered the change in Mr X’s circumstances that meant he was no longer able to meet the shortfall in rent. This decision is in line with the Council’s 2017/18 DHP Policy and was a decision it was entitled to make. I do not find it at fault.

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Agreed action

  1. In response to questions I asked, the Council offered Mr X several personal remedies, which I find partially remedies the injustice he experienced as follows:
      1. the Council has offered to apologise to Mr X in writing for the fault causing injustice; and,
      2. make Mr X a payment of £2500 by way of a financial remedy, which I consider should be made up of:
  • £1911 for the distress caused to Mr X by the Council’s delay in offering interim accommodation from October 2021 to April 2022. This meant he lived in unsuitable accommodation and had to borrow money from friends and family to pay hotel costs for five months and two weeks. The recommended payment of £350 per month is in accordance with our guidance on remedies, and
  • £589 in recognition of the significant distress and stress caused to Mr X by the fault causing injustice. I have considered the Ombudsman’s guidance on remedies and consider this payment, which is above our usual threshold of between £100 and £300, to be suitable. I have factored in: the missed opportunity for the Council to review Mr X’s request for interim accommodation and put it through its complaints process, and the missed opportunities for Mr X to receive prompt information about the Council’s contracted storage arrangements, including costs, so Mr X could make an informed decision about whether to accept this.
  1. The Council should complete the above within four weeks of my final decision.
  2. To sufficiently remedy the injustice caused to Mr X, within four weeks of my final decision, the Council has also agreed to:
      1. make Mr X a payment of £6233 for the quantifiable loss Mr X suffered in paying for hotels while he was without accommodation and the Council failed to arrange interim accommodation for him. This covers the time between 9 December 2021 and 4 April 2022 (a total of 117 days at £53.27 per night on average);
      2. discuss with Mr X what reasonable adjustments he needs and provide a decision in writing on any agreed adjustments. If the Council refuses any reasonable adjustments requests, the Council should explain its reasons in writing to Mr X;
      3. provide Mr X with information on the cost of storage, any repayment plan and arrangement for transfer of his belongings into Council arranged storage so Mr X may decide whether to pursue this storage option; and,
      4. invite Mr X to make a housing register application and provide information on this process in an accessible format with any reasonable adjustments in place. If the Council accepts his application, it should consider backdating his priority date to a suitable date. The Council should report back on the outcome of this application process within the above timeframe.
  3. Within three months of my final decision, the Council has agreed to make the following service improvements:
  • circulate a reminder to relevant staff that when a homelessness applicant provides evidence of a court order for possession of the property, the Council must consider whether it is reasonable for the applicant to occupy the property when deciding which duty is owed. This reminder should include the considerations detailed in paragraphs 18 to 20 above;
  • circulate a reminder to relevant staff about the need to reach a decision on interim accommodation promptly and that the “reason to believe” threshold for this test is low and distinct from assessing whether an applicant is in priority need. This should include a reminder that any such decisions, including any refusals, should be recorded in writing;
  • review its guidance to staff on interim accommodation decision-making to make sure it is clear to staff that any objections by applicants to Council decisions about whether someone meets the threshold for interim accommodation should be treated as complaints and progressed in line with its complaints process. This should include clear signposting to the Ombudsman at the end of the complaints process. This process should also be clearly embedded in the Council’s complaints procedure; and,
  • produce clear guidance to staff on how and when to consider whether they need to make any reasonable adjustments for service users. This should include, for example, asking the service user if the Council needs to make any adjustments in the way it communicates with them to ensure the complainant can fully access its service. The Council should include examples of the types of accommodations that may be reasonable for service users with mental health conditions, including those who explain they are finding it difficult to process technical language. Any decisions on this should be clearly set out in writing to service users. This guidance should be clearly embedded in the Council’s guidance on handling complaints, homelessness and housing register applications.
  1. The Council should provide us with evidence it has complied with the above actions.

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Final decision

  1. I have completed my investigation.
  2. I have decided to uphold parts a to e of Mr X’s complaint because I have seen evidence of fault by the Council causing injustice. The above recommendations, taking into account the Council’s offers, are suitable ways for the Council to remedy the injustice caused to Mr X, which it has agreed to.

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Investigator's decision on behalf of the Ombudsman

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