Summary: Mr X complains about the Council’s handling of his requests for help with finding new accommodation when threatened with eviction. The Council was not at fault for asking Mr X to disclose his medical cannabis use to prospective landlords to qualify for a Council loan to help with a rent deposit and rent advance payment. The Council ignored Mr X’s requests for a letter to help reassure prospective landlords about his medical cannabis use, which was fault. This fault did not however cause Mr X sufficient injustice to warrant a remedy as the Council says it does not have the medical expertise to provide the type of reassurance Mr X was seeking.

The complaint

1. Mr X complains about the Council’s handling of his requests for help with finding new accommodation when threatened with eviction from his current property. Mr X is concerned about the Council’s insistence that he declares his medical cannabis use to prospective landlords to receive a Council Homelessness Prevention Fund (HPF) loan. Mr X says the Council’s refusal to provide this loan unless he declares his medical cannabis use is discriminatory and has prevented him from securing a new tenancy and access to the financial help he needs. Mr X says he feels he has now reached the point where he is no longer able to remain in the city as no prospective landlord will rent accommodation to him.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have spoken to Mr X and considered the information he has provided in support of his complaint.
5. I have considered the information the Council has provided in response to my enquiries.
6. 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

Relevant law and guidance

Homelessness Prevention

7. Part 7 of the Housing Act 1996 (The Act) and the Homelessness Code of Guidance for Local Authorities (the Code) set out local housing authorities’ powers and duties to people who are homeless or threatened with homelessness.
8. A person is threatened with homelessness if, when asking for assistance from a council:

• They are likely to become homeless within 56 days; or
• They have been served with a valid section 21 notice which will expire within 56 days (Housing Act 1996, section 175(4) & (5))

9. Section 195 of the Act creates the “prevention duty”. This requires a council to work with a person eligible for assistance and threatened with homelessness within 56 days to help prevent them from becoming homeless. It must take reasonable steps to help that person remain in their existing accommodation or secure alternative accommodation.
10. Where a council is satisfied a person is eligible for assistance and homeless, or threatened with homelessness, it must assess their situation. It must try to agree a personalised housing plan (PHP) with that person, setting out what both parties will do to try to resolve the housing problem. The council must review and update the assessment and PHP as circumstances change. (Housing Act 1996, section 189A)

The Council’s Homelessness Prevention Fund (HPF)

11. This is a fund which can provide an interest free loan to help households in retaining accommodation or accessing private rented accommodation. It is a flexible resource that Council Housing Advisors can use to help households when all other options for resolving housing issues have been exhausted.
12. The fund is discretionary and each application to it will be assessed on its own merits. It can be used to cover rent in advance or deposits as well as covering rent arrears or other costs which create a risk to a household’s continued housing. The maximum loan that can be offered under the scheme is £1,500 and any tenancy covered by the loan must be sustainable for at least six months.

Housing allocations

13. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing.  All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
14. The Council operates a choice-based lettings scheme which enables housing applicants to bid for available properties which it advertises.
15. There is no statutory timescale in which councils should process applications to its housing register. However, we would usually expect councils to process a housing application within four to six weeks.
16. Councils can exclude applicants from its allocations scheme in certain circumstances. These circumstances should be set out in the council’s allocations policy and so will vary between councils. Examples of reasons for exclusion in council allocations policies include:

• Lack of a local connection as defined by the council’s policy
• Rent arrears
• Anti-social behaviour
• Financial circumstances (e.g. household income over £60k)

Equality Act

17. 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.
18. The Equality Act makes it unlawful for organisations carrying 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.
19. 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.

20. 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

21. This timeline of key events does not cover everything that has happened.
22. Mr X has been living in a privately rented room in a House of Multiple Occupancy (HMO) since 2018. Mr X has diagnoses for several medical conditions, including chronic pain, Post Traumatic Stress Disorder (PTSD), Attention Deficit Hyperactivity Disorder (ADHD), anxiety, depression, gastric issues, migraines and joint pain. Since the end of 2020, Mr X has been managing his health conditions by using medical cannabis, which he obtains via private prescription. Mr X administers his medical cannabis prescription via an electronic vapour device (vape device).
23. In early February 2021, Mr X was served with an eviction notice by his current landlord. He approached the Council for help and it accepted a homelessness prevention duty. Mr X also applied for a loan from the Council’s Homelessness Prevention Fund (HPF) to help him fund the deposit and rent advance required for new accommodation.
24. On 1 March 2021, Mr X made a complaint to the Council. He was unhappy with the Housing Officer asking him to disclose his medical cannabis use to any prospective landlords. Mr X did not believe the terms of his tenancy would be at risk if he did not declare his prescribed cannabis use. Mr X felt the Housing Officer had sabotaged his chance of moving by insisting he disclosed his prescribed cannabis use before the Council would approve his HPF loan application.
25. The Council’s homelessness prevention duty for Mr X ended on 17 March 2021, when he was able to continue living in his existing accommodation.
26. On 18 March 2021, the Council responded to Mr X’s complaint. It explained it needed to ensure any tenancy was sustainable for at least six months before it could approve an application for a HPF loan. Mr X remained dissatisfied with the Council’s response and made a further complaint on 20 March 2021. He said forcing him to disclose his medical cannabis use was stigmatising and prevented him from moving out of unsuitable accommodation.
27. The Council responded to Mr X’s stage two complaint on 6 April 2021. It reiterated its position that it needed to ensure tenancies were sustainable to qualify for a HPF loan.
28. On 10 January 2022, Mr X made a further stage one complaint about the Council’s insistence that he disclosed his medical cannabis use to prospective landlords to obtain a HPF loan. The Council responded to this complaint on 24 January 2022 and explained it had nothing further to add to its previous complaint response on 18 March 2021. Mr X replied the same day and asked if the Council forced others on prescription medication to disclose this to prospective landlords. Mr X also said the Housing Officer’s suggestion that he move to a substance misuse rehabilitation hostel was offensive and insulting.
29. The Council responded to Mr X’s stage two complaint on 1 February 2022. It reconfirmed its position regarding disclosure of Mr X’s medical cannabis use. The Council explained it could find no records of the Housing Officer suggesting a rehabilitation facility.
30. On 19 July 2022, Mr X was served with another eviction notice by his existing landlord. The Council accepted a homelessness prevention duty to Mr X on 22 July 2022. Another Housing Officer was allocated to Mr X’s case, who reiterated the requirement for Mr X to disclose his prescription to prospective landlords to qualify for a HPF loan.
31. Throughout August 2022, the Housing Officer processed Mr X’s application to rejoin the housing register. Mr X had previously been barred from the register for 12 months because of rent arrears and an outstanding debt on a previous HPF loan. The Housing Officer confirmed Mr X’s readmission to the housing register on 7 September 2022.
32. The Council has continued to have contact with Mr X about eviction from his existing accommodation and finding alternative accommodation.
33. Mr X brought his concerns to us at the end of June 2022 because he remained dissatisfied with the Council’s handling and responses.

Analysis

34. The Council has provided limited case records in respect of its handling of Mr X’s approach in February 2021, when he was first threatened with eviction from his current accommodation.
35. The period the Council owed Mr X a homelessness prevention duty was limited to approximately a month and a half. Mr X was however deeply concerned about the first Housing Officer’s approach.
36. Mr X alleges the first Housing Officer suggested inappropriate alternative accommodation and that Mr X’s medical cannabis was an illicit substance. I have seen no evidence from Mr X nor the Council to corroborate this.
37. The Council’s complaint responses to Mr X at the time describe how the case records also show no evidence of the first Housing Officer saying these things to Mr X. In the absence of clear evidence which shows what happened, it is not possible for me to make a finding on this element of Mr X’s concerns.
38. Mr X feels the Council’s insistence that he discloses his medical cannabis use to prospective landlords is discriminatory. We have no remit to make such a legal determination. It is for the courts to consider whether a breach of the Equality Act has occurred in this case and it would not be appropriate for us to act in place of this.
39. In response to our enquiries, the Council has explained that most tenancies contain clauses about no smoking or vaping indoors. The Council believes Mr X may be at risk of breaching such terms of a tenancy, even if the cannabis he is vaping is legally prescribed.
40. While Mr X’s concern and distress about disclosing such sensitive information is entirely understandable, there is no automatic right to a HPF loan. This is a discretionary scheme and it is entirely up to the Council whether it agrees to make a loan payment or not. A key part of the process is for Council Officers to ensure tenancies are sustainable for at least six months.
41. We cannot question whether the Council’s decision in Mr X’s case was right or wrong if there is insufficient evidence of fault in the way the Council reached it. We are not an appeal body and cannot overturn a decision the Council was entitled to make where we have found no evidence of procedural fault.
42. Mr X says the Council is making it impossible for him to find alternative rented accommodation in the area. Mr X is not obliged to declare his medical cannabis use to prospective landlords and the Council has confirmed this in its correspondence with him. Mr X still has access to the Council’s housing register and can continue bidding for properties within his priority banding. I understand from the Council that it continues to try and assist Mr X with moving to alternative accommodation.
43. Mr X has raised concerns with the second Housing Officer about the delay in processing his readmission to the housing register. While I have seen some delay in the Council obtaining information to progress this, the process took just over five weeks to complete, which we consider to be within a reasonable timeframe.
44. Mr X has also raised concerns about disrepair issues at his current accommodation. The Council’s Private Housing Sector Team has sought to ensure these issues have been addressed by the landlord’s letting agent. The Council has not identified any significant disrepair issues that make Mr X’s current accommodation uninhabitable.
45. Finally, Mr X told us that his requests for help from the Council on one specific point have been ignored. Mr X has asked the Council to provide a letter or explanation to prospective landlords which advises them of the reasons why Mr X must disclose his medical cannabis use. Mr X hoped this would help reassure any prospective landlords that he was not doing anything illegal.
46. In response to our enquiries, the Council says it has no record of such a request from Mr X. I have identified at least five occasions from 25 July to 30 August 2022, where the Council’s case records show Mr X suggesting to the second Housing Officer that such a letter from the Council might help him secure a new tenancy. It is therefore disappointing the Council has made no attempts to respond to this element of Mr X’s contact.
47. While this was fault, I cannot say it caused significant injustice to warrant a remedy. This is because the Council has told us that it would have taken a neutral stance if it had agreed to provide such a letter to Mr X for prospective landlords. It has explained its limited medical expertise on the use of medical cannabis means it would not be able to influence, provide guidance, advocate or take responsibility for Mr X’s prescribed cannabis use. Given that Mr X wanted a letter from the Council to do just that, I cannot say Mr X has been caused an injustice by the Council’s failure to respond to his requests.

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Final decision

48. I have completed my investigation with a finding of fault by the Council. That fault has not caused significant injustice to warrant recommending the Council provides a remedy to Mr X.

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Investigator's decision on behalf of the Ombudsman