Summary: Mr X complained that the Council failed to respond appropriately when he was homeless. We found the Council failed to respond appropriately when Mr X first sought help. In recognition of the injustice caused, the Council has agreed to apologise to Mr X and make a payment to him.

The complaint

1. Mr X complains that the Council failed to respond appropriately when he was homeless. He says the Council’s communication was inadequate. He says this exacerbated his mental health condition and caused him financial strain and left him vulnerable during a difficult time.

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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. 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 considered all the information provided by Mr X, made enquiries of the Council and considered its comments and the documents it provided.
5. 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

Legal and administrative background

6. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities (’the Code’) set out councils’ powers and duties to people who are homeless or threatened with homelessness.
7. Someone is threatened with homelessness if, when asking for assistance from the Council on or after 3 April 2018:
• 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))

Assessments and Personal Housing Plans

8. Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. The Code of Guidance says, rather than advise the applicant to return when homelessness is more imminent, the housing authority may wish to accept a prevention duty and begin to take reasonable steps to prevent homelessness. Councils must notify the applicant of the assessment. 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)
9. 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)
10. Councils are required to consider the affordability of the accommodation for the applicant in all cases. When considering whether it would be, or would have been, reasonable for a person to continue to occupy accommodation, and whether the accommodation is suitable, the council must take account of whether it is affordable to them. It must take account of the financial resources available to the applicant, the cost of the accommodation and their reasonable living expenses. (Homelessness Code of Guidance)

The prevention duty

11. If a council is satisfied an applicant is threatened with homelessness and eligible for assistance, it must help them to secure that accommodation does not stop being available for their occupation. In deciding what steps to take, the council must have regard to its assessment of the applicant’s case. (Housing Act 1996, section 195)

The relief duty

12. The relief duty applies when a council is satisfied an applicant is homeless and eligible for assistance.
13. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. The relief duty will end automatically after 56 days if a council is satisfied a person has priority need and is not intentionally homeless. When a council decides this duty has come to an end, it must notify the applicant in writing (Housing Act 1996, section 189B)

Interim accommodation

14. A council must secure interim accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need. (Housing Act 1996, section 188)
15. Examples of applicants in priority need are:
• people with dependent children;
• pregnant women;
• people who are vulnerable due to serious health problems, disability or old age.

The main homelessness duty

16. 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 (unless it refers the application to another housing authority under section 198). But councils will not owe the main housing duty to applicants who have turned down a suitable final accommodation offer or a Housing Act Part 6 offer made during the relief stage, or if a council has given them notice under section 193B(2) due to their deliberate and unreasonable refusal to co-operate. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)

Key facts

17. On 14 November 2022 Mr X submitted a homelessness application saying his landlord was selling his private rented property and the lease would end in early January. He said he required support as he had psychiatric needs and was currently unfit to work and in receipt of benefits. He also explained that he had a young child who lived in another area but he had overnight care 12 days a month. He also explained that he was in rent arrears of £1250.
18. The Council asked Mr X to provide supporting evidence. He provided a copy of his tenancy agreement, medical information and information about his finances.
19. On 17 November the Council told Mr X it needed a copy of his notice to quit (section 21 notice). Mr X responded the same day saying “I haven’t got a section 21 notice. My tenancy is up in January and the landlord is selling”.
20. The housing officer responded the same day explaining Mr X would not be automatically evicted at the end of the fixed term of his tenancy but, rather, the tenancy agreement would continue on a month-to-month basis until the landlord served a notice to quit. The officer explained that, if the landlord wished to evict Mr X, he must serve a valid legal eviction notice and then proceed through the court.
21. Mr X asked whether he needed to wait until the notice was served before he could begin the process. The officer explained that, to be eligible for homelessness assistance, Mr X needed to be at risk of homelessness within 56 days and this did not currently apply to him. The officer asked Mr X to send a copy of the section 21 notice when he received it.
22. On 28 December 2022 Mr X sent the Council a copy of the section 21 notice.
23. A telephone assessment was booked for 9 January 2023 but the Council did not contact Mr X as agreed. It sent him an email apologising and rescheduled the appointment for 11.30 am on 11 January.
24. On 11 January the Council sent an email to Mr X apologising that, because of staff illness, it needed to postpone the assessment. It was rearranged for 13 January.
25. The officer’s notes of the assessment state that Mr X was single and living in a privately rented flat. He had rent arrears of £2500 which had accumulated since he lost his job. He had been served with a section 21 notice which was due to expire on 25 January. The Council accepted a prevention duty.
26. On 23 January Mr X sent an email to the Council saying the officer he spoke to the previous week advised him to remain in the property beyond the date on the section 21 notice. He said “the issue with this is that I cannot afford the total rent… If I stay beyond this week, another £1250 is added to my arrears and this will only push me further in debt while I’m looking for work”.
27. On 30 January Mr X made a stage 1 complaint saying the service he had received had been poor, meetings had been cancelled and the Council had not responded to his communications. He said he had now stayed in the property one week past the eviction date and was being pressurised by the landlord.
28. On 6 February Mr X telephoned the Council saying the section 21 notice had expired on 25 January and he felt under pressure to move. He said he would like to move to be nearer his child but would live anywhere as he could drive and it would only be for a short time until he started a new job. Mr X said he had a job offer for March but did not yet know the salary. The officer said that, if Mr X found a property he felt would be suitable and affordable, he should let her know and she would also look for suitable properties. The officer sent Mr X a copy of his personal housing plan (PHP) that outlined what was discussed at the assessment and the actions the Council and Mr X should take to find alternative accommodation. She also provided a list of websites to help Mr X search for properties.
29. On 8 February team manager responded to Mr X’s stage 1 complaint. She accepted the assessment was rescheduled twice because of staff sickness and that, by the time the officer returned to work, there was a backlog of queries. She apologised for the service Mr X had received. As regards Mr X’s complaint that he was advised to stay in the property after expiry of the section 21 notice, she said “we do not routinely advise applicants to stay in their accommodation beyond the date of the section 21 notice expiring. We advise you of the route your landlord can take after that date and what that means to you if you do stay after the date. We try to assist applicants in finding solutions before this date, but with the current housing crisis, it is increasingly more difficult to achieve”.
30. The same day the Council wrote to Mr X making him an offer of a private rented tenancy. The rent was £892 per calendar month which is the local housing allowance (LHA) for that area. The Council said it was satisfied the offer was suitable and reasonable for Mr X to accept and it would bring the prevention duty to an end.
31. Mr X spoke to another officer about his waiting list application. He said his landlord was pressuring him to leave the property so he had decided to stay with friends, sofa surfing. The officer confirmed the Council would assist with a deposit on a private rented property once one was found.
32. On 9 February Mr X viewed the property offered by the Council. He declined the offer as he had found another property which he felt would be a better long-term solution for him.
33. On 13 February Mr X sent an email to the Council saying he wanted to go ahead with the property he had found but needed to pay for a reference. He said he was hesitant to do this as he had not heard from the Council regarding what support was on offer.
34. On 15 February the officer requested details of the property and asked Mr X to complete an ‘entitled to calculation’ online using the new property details to ascertain whether it was financially viable.
35. Mr X submitted the completed form the following day. The officer said the property was not affordable at present. Mr X explained the property he wanted was no longer available but he had arranged viewings for other properties that were cheaper than the one offered to him by the Council. He asked, “from an affordability perspective, what is the max budget I should be searching for?”. The officer explained that, as Mr X was in receipt of Universal Credit, he could only rent a property that was at the LHA rate for that area and Universal Credit would cover the full rent. But, when Mr X found work, the Council could calculate an affordable rental amount.
36. On 2 March Mr X applied to the Council for a discretionary housing payment (DHP) for removal and storage costs.
37. On 6 March Mr X sent an email to the Council saying he was storing his belongings in a garage and the rent was due the following day. He said he did not have anywhere to take his belongings or any funds to continue storing them and asked whether the Council could help him.
38. An officer responded the same day asking whether Mr X had left his previous address and how much the rent was on the garage. Mr X confirmed he left the property on around 15 February and had paid £90 for the use of a van and £31 for the first month’s rent on the garage. He said he now had to pay a further £149 per month to continue using the garage. The officer advised that the Council could assist with payment for the storage.
39. On 10 and 13 March Mr X contacted the officer again asking what he should do about the storage and whether the Council would pay the invoice directly or whether he should pay it. He said he had not heard anything and was unsure if or how the Council would help. The officer said the Council would pay the storage costs but Mr X would need to provide an invoice.
40. Mr X sent a receipt to the Council and asked when he would receive a refund. He said if he had delayed making the payment any longer administration fees would have been added. He complained that the Council was not replying to him. He said his housing situation was becoming more stressful: he had no clean clothes and no belongings with him; he could not attend job interviews; and he did not have a quiet space to do video interviews as he was living between three or four people’s living rooms.
41. On 17 March Mr X made another complaint saying he had been misinformed and the Council had failed to communicate with him causing additional debt and stress.
42. On 20 March an officer spoke to Mr X and followed this up with an email confirming the property he had been offered was on the basis that the Council would pay the shortfall in rent until he began his new employment. The officer explained she was attempting to find Mr X accommodation closer to his child.
43. Mr X responded saying, “the email didn’t refer to the issue with my age, you said on the phone there had been mistakes around that which had led to delays and miscommunication”. The officer replied, “when someone is over the age of 35 they are entitled to the 1 bedroom rate of benefits, you are below this age so only eligible for the shared rate. We were going to cover the shortfall for 2 months until you started work however, this job did not happening [sic] and you are now at the shared rate of benefits again”.
44. The Council’s Head of Housing responded to Mr X’s complaint on 20 March. He did not uphold Mr X’s complaint. He said officers had been in regular contact with Mr X since he was asked to leave his private rented accommodation and an offer of a studio flat had been made which Mr X had declined. He said the Council was happy to make a further offer but had not yet identified a suitable property.
45. Mr X escalated his complaint to stage 2 of the complaints process.
46. On 31 March Mr X told the Council he had told the people he was staying with that he would only be there for a month so he would probably have to sleep in his car. The officer asked Mr X whether he had been looking for alternative properties. He said he had not as he had been waiting for the Council to offer him one. The officer explained that he had to look for properties himself as well. The officer’s notes state that she “went through LHA again and the difference in rates”.
47. The Council issued a stage 2 response on 17 April 2023. It did not uphold Mr X’s complaint.
48. The Council offered Mr X another property which he accepted. The Council paid the first two weeks’ rent to alleviate some of the stress of resolving new benefit claims.
49. In late April the Revenues and Benefits Service considered Mr X’s application for a DHP. It refused the application because DHP’s do not cover storage charges and because Mr X made his claim for removal costs after he had moved out and so, at the time, had no rent liability. However, the same day, the Housing Solutions team agreed to pay the balance of his storage and removal costs from the Homeless Prevention Grant.

Analysis

The Council’s response to Mr X’s application

50. Mr X first approached the Council as homeless in November 2022. It decided he was not threatened with homelessness because he had not received a section 21 notice. However, there are several factors to consider when deciding whether a person is homeless. A person is treated as homeless if they have accommodation but it is not reasonable for them to continue to occupy it. This involves looking at its affordability which must be considered in all cases.
51. Mr X told the Council he was in rent arrears and in receipt of benefits and could not afford his rent payments. However, there is no evidence that the Council considered this information. When deciding whether it was reasonable for Mr X to remain in the property, the Council should have considered his financial resources, the cost of the accommodation and his reasonable living expenses. Failure to do so was fault.
52. The Council’s stage 2 response implies that it did not attempt to negotiate with the landlord and advised Mr X to remain in the property because it was difficult to find accommodation locally. This was despite Mr X informing officers early on that he would live anywhere because he could drive. The Council referred to paragraph 6.36 of the Code which concerns what should happen after the court gives a possession order. However, it appears not to have taken account of paragraph 6.35 which sets out what it should do where a section 21 notice has been issued but court action has not yet been started. The guidance is that it is unlikely to be reasonable for a tenant to continue to occupy a property beyond the expiry of the section 21 notice unless the Council is taking steps to persuade the landlord to allow them to remain for a reasonable period to provide an opportunity for alternative accommodation to be found. So, the Council was at fault in advising Mr X to remain in the property after the notice expired on 25 January 2023.
53. The Council says it may have been futile to negotiate with the landlord because Mr X was already in rent arrears and the property was unaffordable for him. I accept there is no evidence to suggest the landlord would have agreed to lower the rent or let Mr X remain in the property. However, the advice to remain in the property after the notice expired caused Mr X stress and uncertainty. He was anxious about incurring further rent arrears and was at risk of having to pay court costs. Mr X also missed the opportunity to have the Council taking practical steps to prevent/relieve his homelessness sooner.
54. Mr X approached the Council again in December 2022, but an assessment was not completed until 13 January. This delay was further fault.
55. In response to my enquiries, the Council accepted it was at fault in that it could have made inquiries about Mr X’s ability to afford the rent in his current property and taken a more proactive approach to preventing his homelessness at the outset. It accepts it missed an opportunity to start looking for alternative accommodation for Mr X at that stage. The Council says it has recently completed a review of the service and accepts it needs to focus more on earlier interventions. It has offered to pay Mr X £250 in recognition of the distress caused by the delay. I do not consider this is sufficient to remedy the injustice caused. So, I have made recommendations below based on the Ombudsman’s guidance on remedies.

Communication

56. Mr X says the Council did not reply to his requests for a clear statement of what support it would give resulting in him losing a property he wanted because he had not known about different LHA limits when aged 35.
57. As Mr X was under the age of 35, he was only entitled to the shared room rate of the LHA. However, the Council says it agreed that, as he was close to turning 35, it would pay the shortfall until then if he secured an affordable one bedroom property.
58. The Council says information about LHA and a link to the website to check the rates was in Mr X’s PHP which he received on 6 February 2022. It says that on that day, Mr X advised he was due to start a job in March but had no information about the salary so officers could not complete an affordability assessment. The Council says an officer discussed with Mr X that securing an alternative one-bedroom private rented property would be more affordable and in line with the LHA rate. However, it accepts this is not fully noted in the journal entry.
59. On 16 February the Council advised Mr X that, as he was in receipt of Universal Credit, he could only rent a property that was at the LHA rate for that area. On 31 March an officer recorded that she spoke to Mr X and “went through LHA again and the difference in rates”.
60. I am satisfied that the Council provided Mr X with information about the LHA rate in early February 2022. So, I do not consider he lost out on a property he wanted because of fault by the Council.

Storage costs

61. The Council paid Mr X’s storage and removal costs in full. However, it did not do so until six weeks after he sent the receipt for the payment. This delay was fault and caused him stress and, possibly, avoidable financial hardship.

Complaint response

62. the councilIn its stage 2 response of 17 April 2023 the Council wrongly signposted Mr X to the Housing Ombudsman Service if he was dissatisfied with the outcome of his complaint rather than to us. This was fault and caused Mr X confusion.

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Agreed action

63. The Council has agreed that, within one month, it will:
• send a written apology to Mr X for the fault identified above; and
• pay Mr X £500 in recognition of the injustice caused by its failings.
64. The Council has also agreed that, within two months, it will:
• provide training or guidance to relevant staff to ensure they know how to recognise cases where earlier intervention is required;
• issue a reminder to relevant staff that affordability must be considered in all cases; and
• issue a reminder to relevant staff about when to signpost complainants to the Housing Ombudsman Service and when to signpost them to us.
65. The Council should provide us with evidence it has complied with the above actions.

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Final decision

66. I find the Council was at fault in that it failed to properly respond to Mr X’s homelessness in November and December 2022. It was also at fault in that it delayed in paying his storage and removal costs and wrongly signposted him to the Housing Ombudsman Service.
67. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman