The Investigation

The complaint

1. Mrs X complained about several failures by the Council in the way it handled her case when she became homeless in early August 2022. In particular, the Council:

• delayed in deciding if it owed a relief duty and delayed issuing the letter;

• delayed providing Mrs X a Personal Housing Plan (PHP);

• failed to provide Mrs X interim or temporary accommodation; and

• delayed responding to Mrs X’s complaint.

2. Mrs X says this caused her distress, worry, time and trouble and meant her family were sofa surfing with family and friends. The Council’s delay in issuing a decision delayed her right to a review of that decision.

Legal and administrative background

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)

4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

Relevant law and guidance Homelessness

5. The Housing Act 1996 (part 7) and the Homelessness Code of Guidance (the Code) set out councils’ powers and duties to people who are homeless or threatened with homelessness.

Interim accommodation

6. Where a council has reason to believe a person may be homeless, eligible for assistance and have a priority need, it will have a duty to provide interim accommodation for them if they request this. Applicants in priority need include people with dependent children.

Relief duty

7. Where a council is satisfied a person is homeless and eligible for support, it has a duty to take reasonable steps to help the person secure accommodation that will be available for at least 6 months. This is the relief duty, and it applies for 56 days. The council should set out the steps that it, and the person, will take in a Personal Housing Plan (PHP).

Main housing duty

8. If, at the end of the relief duty period, a council is satisfied an applicant is homeless, eligible for assistance, has a priority need and is not intentionally homeless, the council has a duty to secure that accommodation is available for their occupation. This is called the main housing duty. (Housing Act 1996, section 193)

Decisions and review rights

9. After completing enquiries, the council must give the applicant a decision in writing. If it is an adverse decision, the letter must fully explain the reasons. All letters must include information about the right to request a review and the timescale for doing so. (Housing Act 1996, section 184, Homelessness Code of Guidance 18.32 and 18.33)

10. Key homeless decisions carry a right of review within 21 days of being notified of the decision. This includes a council’s decision that an applicant is not eligible for housing assistance. (Housing Act 1996, section 202)

Council complaints procedure

11. The Council has a two-stage complaint process, as follows:

• its housing service will usually respond to complaints at stage 1 within 10 working days but can be extended to 20 working days if the issues are complex; and

• its corporate complaints team will investigate and respond at stage 2 within 20 working days.

How we considered this report

12. We produced this report after examining relevant documents and information Mrs X provided, discussing the complaint with Mrs X’s husband, Mr Y, on the telephone and making targeted enquiries of the Council.

13. We gave Mrs X and the Council a confidential draft of this report and invited their comments. We considered the comments received before completing this report.

What we found

What happened

14. In early August 2022 Mrs X told the Council her family, including dependent children, was homeless. The Council’s record says Mrs X had refugee status, which had expired, but she had applied for leave to remain “in time” and was awaiting a decision. This means, she had applied for permission to stay in the UK and was waiting for an answer from the government.

15. The next day the Council had a telephone interview with her husband, Mr Y. Mr Y had ‘no recourse to public funds’. This meant he was not eligible to claim public funds such as benefits and housing assistance. Two days later the Council wrote to Mrs X and told her she was not eligible for homelessness assistance because she was subject to immigration control. It explained Mrs X could ask it to review the decision.

16. In mid-August 2022 Mrs X asked for a review. Two days later the Council acknowledged Mrs X was eligible for housing assistance while she waited for her immigration decision and reinstated Mrs X’s homelessness case. It wrote to Mrs X the same day to confirm this and said it would make further enquiries. In late August 2022 the Council asked Mrs X for a number of documents to prove the family’s income and benefits, which Mrs X provided a few days later.

17. In late September 2022 the Council apologised to Mrs X for its delay in progressing her homelessness case. It said this was because of a lack of documentation and no time to evaluate the documents provided.

18. In mid-October 2022 Mrs X complained to the Council about the delay since it had reopened her case. She said she was still homeless and wanted the Council to progress her application so she could get the housing support she needed for herself and her family.

19. In late October 2022 the Council completed an accommodation needs form. It decided Mrs X needed a four-bedroom property.

20. Four days later the Council responded to Mrs X’s complaint and upheld it. The Council accepted it failed to notify her of the housing duty the Council owed her and had not issued a PHP. The Council said it continued to experience a severe shortage of family sized accommodation available to meet Mrs X’s housing need. It suggested Mrs X looked for private rented housing.

21. In early November 2022 the Council asked where Mrs X was living. Mrs X told the Council she was living at a friend’s house.

22. In late December 2022 Mrs X asked the Council to consider her complaint at stage 2 of its complaints process. She was unhappy the Council had not resolved her homelessness situation and asked the Council to confirm its complaint process had been exhausted so she could complain to us. Mrs X complained to us in early January 2023.

Relief duty and personalised housing plan

23. On 6 January 2023 the Council sent Mrs X a letter confirming:

• it had accepted a relief duty and it attached a PHP;

• Mrs X was in priority need because she had dependent children, so the Council had a duty to provide interim accommodation; and

• Mrs X’s review and appeal rights.

24. In late January 2023 the Council contacted Mrs X to ask where the family were living. Mrs X replied two days later that they were ‘sofa surfing’ at a friend’s house and had recently moved to another friend’s house. Sofa surfing means the person, and in this case their family, does not have anywhere to live and they stay with different people such as friends or family for short periods.

25. In early March 2023 Mrs X emailed the Council twice to say it had missed a telephone appointment to review her PHP arranged for late February 2023. Mrs X said the Council did not respond to her emails.

26. In late March 2023 the Council asked Mrs X to send further documentation. The Council records do not explain when Mrs X provided this information.

27. Also, in late March 2023 the Council sent Mrs X its stage 2 complaint response, in which it:

• apologised for the delay in sending the stage 2 response which was due to it having a high caseload;

• said Mrs X was not eligible for housing assistance in early August 2022. After she asked for a review of the decision, the Council reopened her case and agreed to provide “temporary accommodation” while her application was reconsidered;

• accepted a delay in issuing her PHP, relief duty decision letter, and reaching a decision on whether it owed her a main housing duty;

• said the delay was because the Council’s homelessness service was short staffed;

• upheld Mrs X’s complaint but could not source a four-bedroom property for her. It said larger properties that had become available had been allocated to higher priority cases and it would continue to search for properties for Mrs X; and

• gave her our contact details.

28. In late April 2023 Mr Y said they were still ‘sofa surfing’ and moving between friends’ houses and had difficulty getting the children to school because of long travel distances.

Main housing duty

29. In late May 2023 the Council wrote to Mrs X to say it had ended the prevention and relief duty. It gave no reasons for its decision.

30. The same day the Council asked Mrs X for personal information relating to identification, bank statements, medical information, and an education letter.

31. In early June 2023 Mrs X asked the Council to review its decision to end the relief duty. The Council responded three days later. It told Mrs X her case ‘was not reviewable because the Council was carrying out an investigation into her homelessness application’.

32. In early August 2023 the Council wrote to Mrs X with its decision that she was not eligible for homelessness assistance because the government had granted her leave to remain until December 2024 “with no recourse to public funds”. Therefore, it did not owe her a main housing duty. The Council confirmed it had a duty to provide advice and assistance, which it had provided through her PHP. It also said it made a referral to its children’s services department so it could consider assisting the family under the Children Act 1989. It provided children’s services contact details for Mrs X to directly seek assistance. The Council also explained Mrs X had the right to ask it to review its housing decision.

Further information

33. The Council was not able to say how many other families were owed an interim accommodation duty but have not been provided with accommodation. It said there is a severe shortage of affordable accommodation in its area, but emergency accommodation is provided where necessary.

34. It also said Mrs X preferred to stay with family and friends, but we have not found a record to confirm this.

35. In response to a draft of this report the Council provided evidence of a range of procurement strategies in place to increase the supply of accommodation for homeless households, including but not limited to:

• membership of ‘Capital Letters’ which is a partnership between London Boroughs working together to improve housing options for homeless households;

• investment in recruitment and development of procurement officers;

• procurement of over 400 homes for use as temporary accommodation, with the possibility of more in the future depending on financial viability; and

• a programme of new build development.

Analysis and Findings

Interim accommodation

36. Mrs X and her family became homeless in early August 2022. The initial information the Council received was that Mrs X had refugee status that had expired, she had made an application for leave to remain in time, and she was awaiting the outcome. As the Council’s reviewing officer confirmed, she was eligible for housing assistance while waiting for that decision. On this basis, the Council had “reason to believe” Mrs X may be homeless, eligible for assistance and in priority need when she first asked for assistance in early August 2022. This means it had a duty to provide interim accommodation from that date until its later decision, in August 2023, that a change in her immigration status meant she was no longer eligible for housing assistance.

37. The Council records do not show it took proactive steps to look for interim accommodation for Mrs X and her family. It said it could not find a large enough property in its area but there is no record to show it looked outside of the Council area or considered alternative accommodation such as bed and breakfast accommodation or a property with fewer than four bedrooms.

38. It failed to provide interim accommodation between August 2022 and August 2023, which was fault. This meant the family had nowhere to live and had to sofa surf among the homes of family and friends for 12 months. This is an injustice. This caused difficulties getting their children to school, which is a further injustice, particularly to the children.

39. Given that the Council knew the family had no settled accommodation and it had not provided accommodation, it had a duty to consider whether this raised a safeguarding issue for the children, in which case it should have either:

• referred the family to its children’s services department to consider whether to provide services to the children; or

• if it decided a safeguarding referral was not needed, provided Mrs X with contact details so she could contact children’s services department directly to request support.

40. It did not make a referral until August 2023, when it decided it did not owe a main housing duty. On balance, if the referral had been made without delay Mrs X and her family could have been considered for support earlier. The delay in considering and making the referral to its children’s services department was fault.

Delays

41. After reopening the case in mid-August 2022, the Council delayed accepting a relief duty and issuing a PHP by not doing these until 6 January 2023. This was further fault, which caused uncertainty for Mrs X about whether and how the Council would assist her.

42. Also, throughout that period the Council did not take reasonable steps to relieve their homelessness. If it had, Mrs X could have ended her homelessness into secure accommodation with the Council’s help while her immigration status meant she was still entitled to public funds. It appears the Council essentially forgot about her and her family. Its records show it was unaware where she and her family were living in November 2022, January 2023 and April 2023. This caused Mrs X and her family further uncertainty over whether they were going to be housed in interim accommodation.

43. The Council should have accepted the relief duty for Mrs X in early August 2022. The relief duty normally lasts for 56 days, which means it should have ended in late September 2022, following which the Council should have decided whether it owed her a main housing duty. The Council did not decide whether it owed her a main housing duty until 1 August 2023, almost 10 months later. Although Mrs X may have delayed in providing some of the information the Council requested, it accepted in its complaint response that it was not able to progress the case appropriately because of staffing issues. On balance, we find the Council delayed making its decision, which was fault. This meant Mrs X remained unsure about whether and how the Council would assist her for longer than needed and delayed a referral to the children’s services department for assistance. It also delayed giving her a statutory right of review of its decision that she was not eligible, which is a further injustice to her.

Council decision making

44. The Council’s initial decision of August 2022 was overturned after Mrs X asked for a review. A review was the appropriate way to challenge that decision, and we have not considered that decision further.

45. In late May 2023, the Council said it had ended the prevention and relief duties, despite it never having accepted a prevention duty. It gave no reason for its decision. When Mrs X asked for a review, it said its decision was not reviewable because it was still making enquiries. The Council was at fault for issuing the decision letter in error in May 2023, which caused Mrs X distress and uncertainty.

46. The Council decided, on 1 August 2023, that Mrs X was no longer eligible for housing assistance as the government had by then concluded she was not entitled to public funds. Mrs X had the right to ask the Council to review this decision and it was reasonable for her to exercise that right. If the Council made an adverse decision at the review stage, Mrs X could appeal to the county court on a point of law.

Complaint handling

47. The Council upheld Mrs X’s complaint at stage 1 and stage 2 of its complaint process but did not provide a remedy for the faults it identified. In addition, the Council took three months to provide its stage 2 response which is significantly longer than the Council’s 20 working day timescale. The Council said this was due to high caseloads. This was fault and caused Mrs X uncertainty. The Council has already apologised for the delay in responding.

Recommendations

48. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

49. In addition to the requirements above, within one month of this report, the Council will:

• apologise to Mrs X for the distress and uncertainty caused by:

  • its delay in accepting a relief duty and issuing her PHP;

  • not providing interim accommodation between early August 2022 and early August 2023 when the Council had reason to believe Mrs X may be homeless, eligible for assistance and in priority need;

  • ending the relief duty without giving a statutory reason and then delaying making the decision on the main housing duty; and

  • delaying a referral to the children’s services department for assistance.

• pay Mrs X £6,000, which is £500 per month, for the time Mrs X and her family spent without interim accommodation. The Ombudsman’s guidance on remedies recommends a payment of £150-£350 for each month spent in unsuitable accommodation. But we may recommend a higher monthly amount where the injustice is exceptional or particularly severe, as in this case;

  Mrs X, her husband and dependent children were put to significant disruption moving between multiple friends’ houses and at times they were sleeping on the floor. This was unsuitable accommodation for over a year. The lack of interim accommodation was an injustice to the whole family. Moving between accommodation also made it difficult for Mrs X’s children to get to school.

  We have made service improvement recommendations to prevent these problems being experienced by others. Within three months of this report the Council will:

• remind relevant staff that the Council is under a statutory duty to provide interim accommodation if it has “reason to believe” an applicant may be homeless, eligible for assistance, and in priority need;

• provide the Ombudsman with evidence to show the actions it is taking to procure sufficient interim accommodation, including larger properties for families, is making a difference. Six months after reporting to us the Council should provide a further update to show what progress has been made;

• explain what steps it has taken, and is taking, to reduce the delays in making homelessness decisions caused by staffing shortages; and

• provide an action plan on how it will address the delays at stage 2 of its complaint process to ensure it responds within its published timescales.

50. The Council cooperated fully with our investigation and has accepted our recommendations.

Decision

51. We have completed our investigation into this complaint. We found fault by the Council causing injustice to Mrs X and her family. We have recommended action to remedy that injustice and service improvements to prevent recurrence of the fault.

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