Summary: Miss X complained the Council refused to assist her with her housing despite her having been given notice by her mother. The Council was at fault as it offered Miss X access to its rent deposit scheme then refused to assist her and in the way it ended its prevention duty and refused to accept a homelessness application. The Council has agreed to apologise to Miss X, offer to carry out a statutory review of its decision to end the prevention duty and reconsider whether she can access the rent deposit scheme.

The complaint

1. Miss X complained the Council refused to assist her with her housing despite her having been given notice by her mother. It has failed to accept a new homelessness application despite her change in circumstances and has refused to offer her interim accommodation. In addition, in January 2022 it offered to help her with a deposit and rent in advance and later changed its mind when she requested this support. This has caused Miss X distress and she is at imminent risk of homelessness.

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The Ombudsman’s role and powers

2. 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)
3. 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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). I have considered what has happened since Miss X approached the Council in January 2022. If Miss X had concerns about the Council’s decision making in 2019 it was open to her to come to us at that time.
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 have considered the information provided by Miss X and discussed the complaint with her on the telephone.
7. I have considered the information provided by the Council in response to my enquiries.
8. I gave Miss X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

The relevant law and guidance

9. Someone is threatened with homelessness if, when asking for assistance from the Council:
• 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))
10. 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. This is called the prevention duty. In deciding what steps they are to take, councils must have regard to their assessments of the applicants’ cases. (Housing Act 1996, section 195)
11. 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 (PHP). PHPs should be kept under review. (Housing Act 1996, section 189A and Homelessness Code of Guidance chapter 11).
12. 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. This is the main housing duty. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)
13. Where a local authority has previously discharged a homelessness duty, it cannot refuse to accept a fresh application if there has been a change in the facts. Where the repeat application reveals new facts, which are neither trivial nor fanciful then the authority must accept the application.
14. The homelessness code of guidance sets out that ‘where a person becomes homeless intentionally, that condition may continue until the link between the causal act or omission and the intentional homelessness has been broken. It could be broken by an intervening event which, irrespective of any act or omission on the part of the applicant, would have itself led to their being homeless at the point at which the housing authority was carrying out inquiries into their application for assistance.’ It goes on to say that ‘Occupation of accommodation that was merely temporary rather than settled, for example staying with friends on an insecure basis, may not be sufficient to break the link with the earlier intentional homelessness. However, a period in settled accommodation is not the only way in which a link with the earlier intentional homelessness may be broken: some other event, such as the break-up of a marriage resulting in homelessness, may be sufficient’.
15. Most housing decisions should be confirmed in writing, and applicants have the right to ask for a review of the decision. If the person is unhappy with the outcome of a review, they may appeal to the County Court on a point of law.

Background

16. In 2018 the Council accepted a full housing duty to Miss X. In June 2019, it provided her and her two children with temporary accommodation in a hostel. In December 2019 it terminated the licence for the property. The decision letter stated this was because Miss X was not occupying the unit and it explained how it reached this view. The Council therefore discharged its duty, meaning it no longer had a duty to house Miss X. The letter stated ‘left on file for collection whereabouts unknown’.

What happened

17. Miss X says she had initially stayed with a friend and then went to live with her mother during the COVID-19 pandemic. Miss X says she was under pressure from her mother to leave so she approached the Council for assistance in early February 2022. Miss X says the Housing Officer said the Council would help her find private rented accommodation and could assist with a deposit.
18. The Council’s notes record Miss X said her mother wanted her to leave but had not yet put this in writing. One of her children was recently diagnosed with autism and her mother was struggling to cope with the child’s needs. Miss X was also pregnant. The Council officer emailed Miss X and asked her to provide it with some supporting documents. They explained ‘we may be able to offer you money towards a deposit and rent in advance to help you secure a home in the private rented sector if you meet certain criteria, subject to checks’. They provided information on various websites to assist with searching for private rented properties and provided a leaflet about the Council’s homefinderUK scheme; a scheme to help applicants apply for social housing outside London.
19. The Council wrote to Miss X in March 2022 accepting it owed her the prevention duty as she was eligible for assistance and threatened with homelessness. The Council completed a PHP for Miss X in March 2022. This stated Miss X was about to lose her accommodation as her relationship with her mother had broken down. It noted Miss X was pregnant and due to give birth in May 2022. It stated one of Miss X’s children was being assessed for autism and ADHD. It said Miss X would be sent a medical form to complete and return with any medical needs she wished to be considered as part of her application.
20. The PHP stated Miss X required help to find suitable accommodation and financial support to help secure affordable accommodation. It set out the officer had given Miss X information about finding private rented accommodation and about the Council’s homefinder scheme. It said the officer would contact her mother to see if she could remain where she was while the Council helped her look for a new home. It also stated ‘I have provided you with information on the Rent Deposit Scheme which can pay towards the cost of the deposit and first month’s rent of the property’.
21. Miss X emailed the Council officer in late May 2022 requesting an update on her homeless application. By this time Miss X had given birth. The officer emailed Miss X in June to say they had tried to call her but got no response and asked her to verify her telephone number. They explained they had not received the supporting documents they had requested from her.
22. In July 2022 Miss X contacted the Council again as her mother wanted her to leave as soon as possible. The officer spoke to Miss X and advised that they did not owe her a homelessness duty. They advised her to speak with the credit union and friends/family regarding financial support to move. The officer also called Miss X’s mother and explained the Council had discharged its homelessness duty to Miss X previously and so it had no duty to accommodate her.
23. The Council wrote to Miss X to confirm it had ended its homeless prevention duty as 56 days had passed since it decided it owed Miss X a prevention duty. The letter stated the Council was satisfied it had carried out the actions set out in her PHP to try to prevent her becoming homeless. The letter included Miss X’s right of review of the decision.
24. It wrote again later that month. The letter stated the Council would not take a homeless application from Miss X ‘because the Council is satisfied that there are no relevant new facts that were not known about at the time we dealt with your previous application, or that any new facts presented are trivial’.
25. Miss X says she found a private landlord and asked the Council for assistance with the deposit but it refused. It said it had no duty to assist her and its previous intentionally homeless decision still applied. It said it would not provide temporary accommodation but would refer her to social services in that case. Miss X says her mother allowed her to carry on staying with her to avoid social services involvement.
26. In response to my enquiries the Council said it would not support Miss X with the rent deposit scheme as this would set a precedent for other discharge of duty cases.

Findings

27. When Miss X approached the Council regarding her risk of homelessness it accepted it owed her the prevention duty. It therefore took a homelessness application from her. Having accepted Miss X was eligible for assistance and threatened with homelessness, the Council should have then properly considered whether it owed her the relief duty and interim accommodation. Its failure to do so was fault. In accepting that it owed her the prevention duty the Council raised Miss X’s expectation she would receive support and assistance with her housing situation.
28. The Council later wrote to Miss X in July 2022, refusing to accept a new homelessness application from Miss X, after it had ended its prevention duty. This was fault. It was not open to it to refuse to accept an application when it had already accepted it owed her the prevention duty.
29. The Council’s letter refusing to accept a homelessness application set out it was satisfied the facts were the same as when Miss X had applied previously and there were no new facts to indicate an intensification or change of circumstances. I have seen no evidence or any notes or additional information to support this conclusion. The letter does not comment on the length of time Miss X had been living with her mother or the fact that she has had another child. I have seen no evidence the Council properly considered all the relevant factors at the time. This is fault.
30. Miss X had a right of review of the Council’s decision to end its prevention duty. However shortly after receiving the letter ending the prevention duty Miss X received a letter advising her the Council would not accept a homelessness application and it did not owe her a duty. There was no right of review to that decision. This caused Miss X understandable confusion over whether she had a right of review of the ending of the prevention duty and meant she has not exercised that right.
31. When the Council completed a PHP for Miss X in March 2022, it provided her with details of its rent deposit scheme. The Council later refused to assist Miss X with a deposit saying she was not eligible for it. The Council was at fault for providing Miss X with information about its rent deposit scheme if she was not eligible for it. This was fault and raised Miss X’s expectation that she would receive support. Given the Council had accepted it owed Miss X the prevention duty and so she was eligible to receive advice and assistance, I would have expected the rent deposit scheme to have formed part of that duty.
32. It is a general principle of administrative law that public bodies should not ‘fetter their discretion’. This means they should consider whether there are exceptional circumstances that justify departing from usual policy to prevent injustice to applicants whose circumstances place them at a disadvantage. The Council failed to properly consider whether, in the specific circumstances of Miss X’s case, it should depart from its usual policy of not offering a rent deposit in discharge of duty cases. This was fault. It leaves Miss X with a sense of frustration.

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Agreed action

33. Within one month of the final decision the Council has agreed to:
1. Apologise to Miss X and pay her £200 to acknowledge the frustration and uncertainty caused by the Council’s faults;
2. Reconsider whether Miss X can be offered access to the rent deposit scheme; and
3. Offer to carry out a statutory review of its decision to end Miss X’s prevention duty and not to accept any further duty given that Miss X was to be made homeless and is in priority need.
34. Within three months of the final decision the Council has agreed to remind officers to properly consider whether to exercise their discretion in considering applications for the rent deposit scheme.
35. The Council should provide us with evidence it has completed these actions.

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Final decision

36. I have completed my investigation. The Council was at fault causing injustice which it has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman