Summary: The Council’s failure to follow the correct homelessness procedures when Ms X approached the Council due to experiencing domestic abuse amounted to gatekeeping. The Council also failed to consider the recommendation from its independent medical assessor alongside Ms X’s report of domestic abuse when assessing Ms X’s priority on the housing register. The Council has agreed to urgently take a new homelessness application, review Ms X’s banding again and pay Ms X £800 in recognition of the missed opportunity and uncertainty caused by the Council’s faults. The Council has also agreed to carry out several service improvements.

The complaint

1. Ms X complained the Council failed to apply its housing allocations policy correctly regarding her banding, in decisions it made between July 2021 and July 2022.
2. Ms X said the Council failed to consider her and her child’s medical needs properly as well as the fact she had experienced domestic abuse.
3. Ms X said she should be in Band B on the Council’s housing register and the Council’s actions have caused her and her child to be in unsuitable accommodation for longer than necessary and caused them both avoidable distress.

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The Ombudsman’s role and powers

4. 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)
5. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. 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

8. I considered the information provided by Ms X and the Council.
9. I considered the relevant law and guidance as set out below.
10. I considered our Guidance on Remedies
11. I considered comments made by Ms X and the Council on draft decisions before making a final decision.

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What I found

Law and guidance

Homelessness and domestic abuse

12. 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)
13. Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. Councils must notify the applicant of the assessment.
14. 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)
15. If a housing authority has “reason to believe” a person may be homeless, eligible and in priority need, then it must provide interim accommodation for them. (Housing Act 1996, section 188)
16. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of his or her household. (Housing Act 1996, section 206 and (from 3 April 2018) Homelessness Code of Guidance 17.2)
17. Councils can suggest alternative solutions in cases of potential homelessness where these would be suitable and acceptable to the applicant. However councils must not do this to avoid their legal duties, especially the duty to make inquiries into the applicant’s homelessness. The Ombudsman has criticised councils for ‘gatekeeping’ practices, for example, failing to take a homelessness application at the earliest opportunity. (Homelessness Code of Guidance for Local Authorities, paragraphs 2.3 and 6.4)
18. The Domestic Abuse Act received Royal Assent on 29 April 2021, at which point most of its provisions became law. A key provision for councils is that it changed the definition of “priority need” to include those seeking assistance with homelessness after fleeing domestic abuse. This part of the Act became law on 5 July 2021.

Three Rivers District Council, housing allocations policy 2020

19. This was the allocations policy in force during the period I am investigating.
20. It says the criteria for being in priority band ‘C’ on the Council’s housing register includes but is not limited to:
• Customers who have been assessed as having a moderate medical need that is being adversely affected by their current housing situation; and
• Customers who have a moderate welfare, care or support need or other social need that affects their housing to a degree that they need to move to alternative accommodation.
21. The criteria for being in priority band ‘B’ on the Council’s housing register includes but is not limited to:
• Customers who have been assessed as having a serious medical need that is being affected by their current housing situation;
• Customers who have a serious welfare, care or support need or other social need that affects their housing to a degree that they need to move to alternative accommodation. This can include victims of domestic abuse.
• Customers with a composite need from Band ‘C’, one of which is medical priority.

Reviews of housing decisions

22. Councils must secure that an applicant for an allocation of housing accommodation has the right to request a review of a decision regarding the facts of his case which is likely to be, or has been, taken into account in considering whether to allocate housing accommodation to him. (Housing Act 1996, Section 166A)

What happened

Domestic abuse

23. Ms X and her ex-husband are joint tenants of a housing association property that they were nominated for by the Council. They have one young child who lives with them.
24. They are divorced but have remained living together. Ms X wants to leave the property and has been bidding for alternative properties on the housing register.
25. The Council agrees that Ms X has a need to move and has placed her in priority band C on the housing register. Mr X refuses to leave the property.
26. On 19 July 2021 Ms X called the Council’s homelessness team. She disclosed that her husband had been emotionally and financially abusing her and bullying her child about their disability.
27. She said in the call that the abuse had recently escalated and her ex-partner had pushed her and her young child, which she had reported to the police. She said the police made a referral to children’s services and referred Ms X for some specialist domestic abuse support from a charity. The police did not arrest Mr X and he remains living in the family home.
28. The housing officer told Ms X about some of her housing options. They said she could go into a refuge but Ms X said living in a shared space with others would be too difficult due to her child’s disability. The housing officer said refuges can be self-contained as well as shared. The housing officer made no enquiries about self-contained refuges and said the alternative was for the Council to house them outside the local area in private-rented accommodation.
29. Ms X said being housed outside the area would not be suitable for her as her child’s links to the local area due to their disability were too important. The Council did no further assessment of Ms X and her child’s needs nor produced a personalised housing plan setting out her rights and options.
30. The housing officer told Ms X about a local domestic abuse service she could approach for assistance.

Medical priority

31. Ms X says she and her child both require a move to alternative accommodation on medical grounds.
32. Ms X is in recovery from cancer. She now has a consequential health condition, which is painful when her child knocks into her, as they do frequently due to them having to share a bed. Ms X said she also struggles to manage stairs.
33. Ms X said her child needs a move on medical grounds, as they need a space to self-regulate due to their disability and this is not possible while she and her child share a room.
34. In October 2021 Ms X submitted medical evidence to the Council showing how the property was negatively affecting her and her child’s health. Initially the Council refused to submit her evidence to its independent medical assessor for review as the senior officer in contact with Ms X said the Council had recently changed its policy so that reviews of decisions regarding banding on medical grounds would be restricted. The Council told us the senior officer who said this was actually mistaken and its policy had never changed in this way.
35. In any case, the officer said it would carry out a further review as a good faith gesture. It did so and the independent medical assessor said there was no evidence to suggest worsening of symptoms and so did not recommend a change in medical priority.
36. The Council recommended that Ms X had a ‘medium priority’ to move and needed a ground floor flat, maisonette or a bungalow, with a garden for her child. The Council had already previously agreed that her child needed their own room, so said her banding would remain in Band C.
37. Ms X made a formal complaint to the Council and requested a review again in February 2022.
38. The Council’s independent medical assessor reviewed the evidence again and recommended level access accommodation, ground floor or lifted, and one set of internal stairs manageable.
39. The Council responded to Ms X’s complaint in March 2022. It said it did not “intend to complete a review into the recommendation given by the Council’s independent medical advisor.
40. In April 2022 Ms X wrote to the Council to say that her ex-husband had developed cancer and despite their divorce, she was now becoming his carer. The Council responded to say she could submit a change of circumstances form based on any impact that was having on her mental health but said it was unlikely to lead to a different recommendation by the Council regarding her banding.
41. Ms X made a further complaint in July 2022. She highlighted that she had approached the Council for help a year ago due to experiencing domestic abuse. She said her medical, social and domestic needs considered as a whole, meant she should be awarded a higher priority band than Band C.
42. The Council responded at the final stage of its complaints process. It said it would not go over these issues as they had already been answered before. It said regarding the domestic abuse she experienced that she had been given advice at the time and she refused to make a homelessness application and did not engage further. The Council signposted Ms X to the Ombudsman if she remained unhappy.
43. At the current time, Ms X remains sharing one bedroom and bed with her young child and her ex-partner remains living in the other bedroom in the property.

My findings

Domestic abuse and homelessness

44. The Domestic Abuse Act was in force at the time Ms X approached the Council’s homelessness team due to experiencing domestic abuse.
45. This Act does not automatically award higher priority to applicants on the housing register. However it does mean that applicants experiencing domestic abuse should be considered in automatic priority need if they become homeless.
46. Ms X told the Council she and her child were experiencing domestic abuse in the home. If the Council has reason to believe someone may be homeless or threatened with homelessness, it must make inquiries to decide if it owes any further homelessness duties. The threshold for this is low. The information Ms X provided in her call to the Council met this threshold.
47. Therefore, the Council had a duty to make inquiries. It failed to do so and instead, before making the inquiries it should have, it informed Ms X that her options if she approached the Council as homeless would be to be housed outside the area in private-rented accommodation or to go into a refuge. This was incomplete advice and was fault.
48. If, having made its inquiries, the Council decided Ms X was not homeless, it should have given her a decision in writing which told her about her statutory right to review. It did not do this. This was fault.
49. While the Council was making inquiries, it also on the balance of probabilities would have had a duty to provide Ms X and her child with interim accommodation, as she was eligible, in priority need and it had reason to believe she may be homeless. It did not do this. This was fault.
50. The Council took no action beyond the initial call in which it gave Ms X incomplete and inaccurate advice about her housing options. This was gatekeeping by the Council and was fault.
51. These faults led to a missed opportunity for Ms X to find out more about her options for moving her and her child into alternative accommodation and uncertainty regarding whether more options were available to her at the time that would have been suitable for her child.

Medical priority review

52. The Council told Ms X that she could not request a review of its medical priority decision, due to it changing its policy. We have received evidence from the Council that it never changed its policy in the way it said it had and this member of staff was mistaken and has received training. The Council’s current policy makes clear that reviews of this kind are permitted in line with Section 166A of the Housing Act.
53. In this case, the Council’s incorrect advice did not lead to an injustice as the Council reviewed Ms X’s medical priority anyway as a gesture of goodwill. I am satisfied that the Council’s published allocations policy allows for reviews of this kind.

Priority band

Ms X is in Band C due to having a medical need that is being adversely affected by her current housing situation.

54. The Council’s allocations policy says that an applicant may be awarded Band B if they have a serious welfare, care or support need which can include domestic abuse, and if they have a composite need from Band C, one of which is medical priority, which Ms X has.
55. There is no evidence in this case that the Council made its own decision, taking into account the medical advisor’s recommendation along with Ms X’s report of domestic abuse in her home and alleged abuse against the child. Failure to do so was fault.
56. This fault has led to uncertainty about whether Ms X may have been awarded a higher priority band, had her medical needs been considered jointly with the other issues she was experiencing in her home.

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Agreed action

57. Within one month of the date of the final decision, the Council has agreed to:
• A) apologise to Ms X for gatekeeping and failing to properly follow homelessness procedures when she approached the Council due to experiencing domestic abuse and for failing to consider her composite housing needs when reviewing her banding;
• B) pay Ms X £800 in recognition of the missed opportunity and uncertainty caused by not properly processing her homelessness application and the uncertainty caused by her banding review not considering all the factors of her housing situation;
• C) make inquiries into what, if any, homelessness duty the Council owes Ms X and provide Ms X a decision in writing setting out her statutory right to review the decision; and
• D) carry out a review of Ms X’s banding which demonstrates that it has considered the composite nature of her housing needs including her report of domestic abuse alongside her and her child’s medical needs. Any change in banding that is recommended as a result of these needs should be backdated to when she first approached the Council as experiencing domestic abuse in July 2021.
58. Within three months of the date of the final decision, the Council has agreed to demonstrate that it has reminded its housing staff:
• E) that decisions by its independent medical assessors should always be considered in the context of all the evidence provided and with reference to its allocations scheme;
• F) that it should make inquiries and provide decisions in writing to people approaching the Council as homeless due to domestic abuse about whether the Council owes them a homelessness duty. These letters should include details of the person’s statutory right to request a review of that decision; and
• G) officers should be aware that while making inquiries, the Council is likely to owe the domestic abuse survivor an interim accommodation duty, and interim accommodation should be suitable for the needs of the household and not be wholly restricted to refuge accommodation or private-rented accommodation outside of the local area where this does not meet the household’s needs.
59. The Council should provide us with evidence it has complied with the above actions.

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Final decision

60. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to apologise, pay a financial remedy and carry out service improvements.

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Investigator's decision on behalf of the Ombudsman