Summary: Mr X complained about the Council’s handling of his homelessness and how it followed its policies. We found the Council at fault for not giving him the opportunity to make an informed decision when it made an offer of accommodation and not being able to demonstrate it had sufficiently considered his individual circumstances with how it treated his bids for social housing. The Council has agreed to our recommendations to remedy the injustice caused.

The complaint

1. Mr X complains about the Council's handling of his homelessness and its conduct and communication throughout with him. He says:
• He had accepted a private six month tenancy, but the Council did not inform him at the time it was not a final offer to end the main duty to him. The Council acknowledged it made an error, but Mr X says it did not consider how it affected his family;
• The Council will not offer him social housing, but it has not considered his individual circumstances when making its decision. Nor did it notify him, which it should according to its policy; and
• He has remained in unsuitable temporary accommodation after the Council agreed to move him.
2. This has had a significant negative impact on his mental health and caused his family significant distress, uncertainty, and frustration.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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

5. I discussed the complaint with Mr X and considered his views.
6. I made enquiries of the Council and considered its written responses and information it provided.
7. 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

Law and administrative background

The main housing duty

8. 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).

The Council’s allocation scheme

9. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing. All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14)). Dover District Council’s allocations scheme places applicants who qualify to join the housing register in a priority band from Band A (highest priority) to Band E (lowest priority), depending on their level of housing need.
10. Relevant to this complaint, the Council’s allocation scheme says:
• “[the Council] may take into account…current or former tenancy arrears due to non-payment of rent…owed to a private landlord. If the application is already registered and has been placed in a band but falls into arrears which exceed £400 or four weeks rent, the application may be suspended until the situation is remedied. Each case will be considered on its own merits. Where an application is suspended for the above reasons the applicant will be notified in writing of the decision and the grounds for it”.
• “You can bid for properties you are eligible for, but we will not normally make an offer of accommodation to a transfer applicant in rent arrears”.

Suitability of temporary accommodation

11. Homelessness temporary accommodation must be legally suitable. (Housing Act 1996, section 206) Anyone who believes their temporary accommodation is unsuitable can ask the Council to review the accommodation’s suitability. (Housing Act 1996, section 202) If the Council’s review decides the accommodation is unsuitable, the Council must provide suitable accommodation.

Summary of key relevant events

12. At the end of 2021, the Council placed Mr X and his partner in temporary accommodation after he approached it as homeless. At the start of April 2022, the Council accepted the main homeless duty to Mr X and his partner.
13. At the end of April 2022, Mr X accepted an offer on a property from the Council and moved in. It was a private rented shorthold tenancy for six months. The Council closed his homeless case. It did not send a formal decision letter discharging its duty to him.
14. In October, Mr X’s landlord issued him a Section 21 eviction notice, asking him to vacate in two months. Their relationship had broken down.
15. Mr X approached the Council as homeless because of the notice, adding concerns as his partner was due to give birth soon. The Council registered a new application. The Council changed Mr X’s priority to Band C when he received the eviction notice to reflect his new situation.
16. In December, the Council assessed Mr X’s circumstances and accepted the prevention duty. Mr X stopped paying rent after receiving the notice from his landlord. He said he was not working at that point due to sickness and also because of disagreements on issues he raised with the landlord. He said he had been working towards managing his general debts.
17. Mr X later received a Section 8 eviction notice for rent arrears from his landlord. The Council advised him to try and resolve the outstanding rent arrears as he was still responsible for paying the rent. It asked for information about his finances to see if could help support with the arrears. It said it would potentially factor his efforts to resolve or willingness to pay into its future decisions related to his homelessness.
18. In January 2023, the Council followed up with Mr X about his circumstances. It repeated its request for information about whether it could help with his rent arrears. Mr X disagreed with the approach. He mentioned he was trying to get help with his financial situation.
19. In February, Mr X raised concerns about the Council’s handling of his case. The Council responded he had not provided information asked of him and he had not cleared his rent arrears. It said these actions could have a negative impact on whether the Council would owe any duty to house him and his family. It advised him how he could find a property for himself.
20. Mr X received an Order for Possession. The court ordered Mr X to leave within two weeks. In March, the Council placed Mr X and his family into interim accommodation while making enquiries into his case. It accepted the relief duty. It noted a call where Mr X informed it he was no longer in employment.
21. In May, the Council’s records show it reopened Mr X’s old case. It found it still owed the main duty to him as it did not formally end it when Mr X accepted the six month tenancy. It said it backdated his Band C priority to April 2022 to when it originally accepted the main duty to him.
22. In June, Mr X complained he was not successful with bids he had made. He said it had allocated properties to others with priority dates and banding lower than his.
23. The Council acknowledged its error with not discharging the main duty when it should have. This affected his position with his bidding. It rectified it by backdating his priority but accepted he may have missed out on a few properties. It said this did not disadvantage him as it would overlook him for properties as he had outstanding rent arrears from the private tenancy. It said it would not accept him for social housing until he resolved them and said this was in line with its allocation scheme.
24. Mr X raised further dissatisfaction. The scheme said the Council would write to him if it suspended his account, but he said it didn’t. The scheme said it would consider each case on its own merits. He said the Council did not do this with his case due to evidence he had shown about his employment situation, how he was dealing with the debt, along with its own errors. He also said the final offer to end the main duty with the private rented tenancy should have been for twelve months, not six.
25. The Council said:
• the six month tenancy was not a final offer, and it arranged it as part of a housing option offer to all applicants. It said it would have ended the main duty on the basis he voluntarily left temporary accommodation provided to him.
• It said the Council’s policy is that it does not allocate properties to applicants with outstanding rent arrears. It had not suspended his account, so it did not send a letter. It allowed applicants to bid on properties but unless it could see an applicant had taken steps to address their debt, they would not be verified for a property. It said there were occasions when applicants cleared their debts at the point of a successful bid, so they would not be overlooked for a property.
26. Mr X then complained to us. He added he had since seen internal emails between Council officers mocking his mental health after making a Subject Access Request.
27. At the end of August, the Council conducted a suitability review of Mr X’s temporary accommodation after he raised concerns the previous month. It concluded it was unsuitable for him on the grounds of location relating to personal reasons for Mr X, affecting his mental health.
28. In mid-October, the Council moved Mr X and his family into alternative temporary accommodation. Mr X has since said to me it is not suitable.

The Council’s response to my enquiries

29. The Council said it corrected its error by reinstating the homelessness duty and backdating his priority date to reflect the original timing. The Council said Mr X benefitted from the oversight as he was now in a higher band on the register with an earlier priority date.
30. I asked the Council for evidence of how it considered its allocation scheme about rent arrears, in view of Mr X’s individual circumstances and evidence of how it explained this to him. It referred me to previous complaint responses it had sent to Mr X, where it generally referenced its policy about rent arrears to him.
31. The Council said it investigated its internal communications about his case and viewed emails Mr X referred to. It found no evidence of the alleged behaviour Mr X had described and sent me details of what it had considered.

Analysis

Six month tenancy

32. It appears Mr X thought the Council’s intention was to end the main duty to him with the six month tenancy, but he said the Council did not tell him much at the time. We expect councils to ensure applicants are aware of the consequences of accepting or rejecting an offer of accommodation, and of their rights that flow from these decisions. The Council did not provide evidence to show it informed Mr X of the purpose of the six month tenancy offer, or what it meant for his housing situation at the time in April 2022. This denied him the ability to make an informed decision. This is fault.
33. The Council failed to make a formal decision discharging its duty to Mr X. It did not issue a decision letter to explain on what basis it was seeking to end its duty with the tenancy, and it did not inform Mr X of his statutory review or appeal rights should he disagree. This is fault. This also meant it had an ongoing duty to him all along throughout the above period.
34. I note the Council said to rectify the fault, it backdated his priority date and banding which benefitted him. While this is appropriate and addresses some of the injustice, in my view there is remaining injustice that the Council should consider.
35. On balance, had it not been for the fault, I am unable to say what is likely to have happened with the six month offer of accommodation. This creates uncertainty about what Mr X may have done if he knew the information at the time and what difference it could have made to his current situation. This uncertainty is significant injustice to Mr X.

Rent arrears

36. The Council says it has not suspended Mr X’s account and so was in compliance with its policy, but I am not satisfied with this. It said he can still bid on eligible properties, but it would skip offers because of his rent arrears. The wording of the allocations scheme (see Paragraph 10) says the Council “may” takes arrears into account and “may” suspend the account until rectified. The scheme also seems to suggest those in arrears can bid but it would not “normally” make an offer of accommodation. In my view, the Council’s approach in Paragraph 25 is not clearly set out in the allocations scheme and does not quite appear consistent with what it says about rent arrears.
37. I note the Council requested financial information and Mr X did not respond with all it required. It advised this could affect decisions about whether it owed him a duty, but this was when it was assessing and making enquiries for his homeless application after October 2022. By May 2023, the Council realised its error that it still owed the main duty all along and informed him it backdated his priority.
38. Therefore, if it was the Council’s position it could overlook bids in the way it has described above, I consider it should have clearly informed him how his bids may be affected sooner because of his arrears, not at the point at when he complained after making bids. The Ombudsman’s Principles of Good Administrative Practice outlines the need for openness, transparency, and setting expectations for service users. In my view, the Council did not apply this here. I consider this fault, causing avoidable frustration for Mr X.
39. Further to this, I am not satisfied the Council has engaged with the spirit of assessing each case on its merits. The Council’s allocation scheme on rent arrears allows discretion and consideration of different cases based on individual circumstances. The Council has not sufficiently evidenced it has properly considered, in light of Mr X’s unusual circumstances (including its previous fault, his financial constraints, his employment, along with evidence he says he has of trying to address his debts), whether it should exercise discretion on how it treats his bids.
40. I consider this is fault. This has caused uncertainty and further avoidable frustration to Mr X as to whether it had fair consideration to his case, which the Council’s allocations scheme allows for.

Unsuitable temporary accommodation

41. After the Council agreed Mr X’s temporary accommodation was unsuitable in August 2023, it moved him and his family into alternative temporary accomodation around two months later. The Council has a legal duty to provide suitable accommodation under the main duty and because of availability, there was a small delay in moving him. I consider this fault in the form of service failure as it was in breach of its duty for this period, causing injustice as Mr X was in unsuitable accommodation for longer than he should have been.
42. I note Mr X says the current accommodation he has moved into since is also unsuitable. I consider these new matters since the complaint came to us and is outside of the scope of this investigation. This will need to be a new complaint raised to the Council for it to consider under its complaint process first.

Complaint about internal communication discussing Mr X’s case

43. I have reviewed the communication the Council considered and its investigation regarding this part of Mr X’s complaint. I have not seen any internal emails within the Council that, in my view, evidence significant concerns of the alleged behaviour Mr X has described, and his view officers were mocking his mental health. I do not find fault by the Council.

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Agreed action

44. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
45. Within one month of the final decision:
• Apologise to Mr X in writing for the faults identified above and pay him a symbolic payment of £300 to recognise his uncertainty, distress, and frustration because of them; and
• Pay Mr X a symbolic payment of £225 to recognise his time spent in unsuitable temporary accommodation between September and October 2023.
46. Within two months of the final decision:
• The Council should make a fresh decision about whether to exercise discretion about Mr X’s bids on the housing register in light of his arrears. It should clearly explain how it made this decision and what it has considered with his individual circumstances. It should take into account any further evidence Mr X wishes to provide about his debt and inform him of the outcome in writing; and
• The Council should send written reminders to all relevant staff to ensure all offers of accommodation to applicants owed a homelessness duty clearly explain the duty under which the property is offered, and any consequences of accepting or refusing it.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I found fault with the Council which caused injustice to Mr X. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman