London Borough of Barnet (22 005 839)

Category : Housing > Homelessness

Decision : Upheld

Decision date : 29 Mar 2023

The Ombudsman's final decision:

Summary: The Council’s failure to consider the impact on a particular group of homeless applicants of its policy to award households in long-term temporary accommodation the lowest priority for housing was fault. This has resulted in a situation where such applicants neither have a realistic prospect of securing social housing nor receive active support from the Council to end their homelessness another way. They have therefore been homeless for over a decade. The Council has agreed to review its allocations scheme and take action to improve its service to this group of homeless people.

The complaint

  1. In developing and reviewing its allocations scheme, the Council failed to consider the impact on homeless applicants to whom it accepted a main duty before November 2012 of its policy to award households in long-term temporary accommodation the lowest priority for housing.
  2. As a result, the Council has created a situation in which it is unable to end its duty to over 900 people, who instead have remained in temporary accommodation for almost a decade.

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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. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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

  1. I opened this complaint to investigate matters coming to my attention during an investigation into a different complaint against the Council.
  2. I made written enquiries of the Council and considered its response along with relevant law and guidance.
  3. 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

Background

  1. The Localism Act 2011 introduced broad discretion for councils in how they determine priority for and allocate social housing.
  2. However, an allocations scheme must give ‘reasonable preference’ to applicants in the following categories:
    • homeless people;
    • people in insanitary, overcrowded or unsatisfactory housing;
    • people who need to move on medical or welfare grounds;
    • people who need to move to avoid hardship to themselves or others;
      (Housing Act 1996, section 166A(3))
  3. Reasonable preference does not mean councils have to give applicants in these groups equal preference. As long as, overall, reasonable preference is given to all of them.
  4. The Localism Act also introduced an amendment to homelessness law enabling councils to end the main homelessness duty by making an offer of a suitable private rented tenancy of at least 12 months. This came into force in November 2012.
  5. However, this was not retrospective. This means that for all applicants to whom a council had accepted a main duty before November 2012, it could only end its duty by making an offer of social housing, unless the applicant accepted a ‘qualifying offer’ in the private sector. If the applicant refused a private rented offer, the council would continue to owe the main duty.
  6. Temporary accommodation (TA) is accommodation provided to homeless applicants as part of a council’s main homelessness duty.
  7. The Council’s allocations scheme puts applicants into priority bands from Band 1 (highest priority) to Band 4 (lowest priority).
  8. So far as is relevant to this complaint, the Council awards Band 4 to homeless households in long-term temporary accommodation, unless the property does not meet the needs of the household or is about to be terminated.
  9. The Council awards Band 2 to homeless households in short-term or emergency accommodation and those whose long-term TA does not meet their needs or is about to be terminated.

What happened

  1. In 2014, the court found that councils could not exclude homeless households who were in long-term temporary accommodation from having a reasonable preference for housing under the allocations scheme.
  2. Prior to the 2014 judgement, the Council gave no priority to households in adequate long-term TA.
  3. In February 2015, it amended its allocations scheme to be in line with the court judgement. It decided to give households in long term TA Band 4. This is the lowest band. In recording this decision, the Council said:

“these households are unlikely to be offered social housing as it is in short supply. They may be able to access private rented sector homes.”

Findings

  1. There are currently 934 households in Barnet who it has a continuing main duty to secure accommodation for and who have been owed a main duty since before November 2012. This is almost half of all households the Council currently provides with TA.
  2. I asked the Council if it had considered exercising discretion to award higher priority for allocations in relation to households in long term TA to whom a main duty was accepted before Nov 2012. It said it had not.
  3. I have looked at the decision in 2015 and at the decisions regarding amendments to the scheme since and at no point does it appear the Council has considered the impact of its policy on pre-2012 main duty households.
  4. Specifically, I cannot see anywhere that the Council has considered this group of applicants as compared to others in long term TA where the Council can end its duty into the private sector. Failure to consider this in developing and reviewing the policy was fault.

Impact

  1. The Council does not have to give pre-2012 applicants in adequate temporary accommodation greater priority than other homeless applicants in similar accommodation. However, it should have considered whether to.
  2. In doing so, the Council should have considered information about the households affected and had regard to its statutory homelessness duty.
  3. Up to December 2022, the Council had ended its duty to a total of 197 people with pre-2012 status since 2015. That is 17.8% of the 1106 people owed that duty at that time. Of those:
    • 150 accepted or refused an offer of social housing
    • 13 moved into private tenancies
    • 34 ended duty another way (became intentionally homeless, moved away, died, etc.)
  4. The remaining 82.2% of households remain statutorily homeless, having been so for at least a decade.
  5. Meanwhile they are either under licence or on non-secure weekly tenancies. So although adequately housed, they have only the most basic protection from eviction and so very limited security of tenure. The Council can end their licences or require them to move with minimal notice and does not have to give the court a reason for eviction to secure a court order. Temporary accommodation, however suitable it may be, remains just that. Temporary.
  6. For comparison, in the financial year 2021/22 alone the Council ended its main duty to 502 households. Of those:
    • 278 accepted or refused an offer of social housing
    • 128 accepted or refused an offer of a private rented tenancy
    • 96 had the duty ended another way (became homeless intentionally, ceased to occupy TA, etc.)
  7. In other words, in one year the Council offered:
    • Almost twice as many social tenancies; and
    • almost 10 times as many private rented tenancies

to end its main duty as it has offered to pre-2012 applicants in over a decade.

  1. This suggests that the Council is not taking active steps to end its duty to pre-2012 applicants unless the lease on their accommodation is ending. At which point the Council increases their priority for housing. This means that families remain in the limbo of temporary accommodation until their need to move becomes urgent.
  2. Therefore, the Council neither awards sufficient priority under the allocations scheme to give a realistic prospect of securing social housing nor makes active attempts to end its duty in another way to households owed a main duty since before November 2012. I consider this creates a situation in which over 900 households have been homeless for over a decade with little prospect of moving anywhere with greater security of tenure. This is a significant injustice.

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Agreed action

  1. In response to my enquiries, the Council said it had already committed to reviewing its allocations scheme. In doing so, it should:
    • Consider the findings in this decision
    • Ensure the record of its decision making demonstrates how it considered the impact of the scheme on applicants owed a main duty since before November 2012
  2. If the outcome of the review results in increased priority for applicants owed a main duty since before November 2012, the Council should consider backdating any priority to reflect time spent in temporary accommodation.
  3. Regardless of the outcome of the review of the allocations scheme, the Council should identify whether and how it can increase the likelihood of it being able to support main duty applicants accepted before November 2012 to secure more permanent accommodation.
  4. The Council should tell the Ombudsman about the action it has taken within six months of my final decision.

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Final decision

  1. I have completed my investigation. The Council is at fault. 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

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