Summary: the Council delayed processing Mr B’s homeless application, delayed completing a medical assessment, failed to properly consider the information Mr B provided, delayed offering him temporary accommodation and failed to notify him of his appeal rights. An apology, payment to Mr B and training for officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council:
• delayed processing his homeless application;
• failed to consider his medical evidence properly;
• failed to respond to his communications or provide him with updates; and
• provided him with unsuitable temporary accommodation.
2. Mr B says the Council’s actions meant he was evicted by a bailiff, experienced significant distress and led to him having to stay in unsuitable accommodation.

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The Ombudsman’s role and powers

3. 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)
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. 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. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided;
• considered the homeless code of guidance.
7. Mr B and the organisation 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

Homeless legislation and guidance

8. Part 7 of the Housing Act 1996 (the Act) and the Homelessness Code of Guidance for Local Authorities (code of guidance) set out councils' powers and duties to people who are homeless or threatened with homelessness.
9. The Act says 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. Serving of a section 21 notice is a landlord's first step in evicting a tenant.
10. The Act says where a housing authority has reason to believe a person asking the Council for help with accommodation may be homeless or threatened with homelessness, it must make enquiries about whether the person is eligible for help and what, if any, duties are owed to that person. These enquiries take the form of an assessment undertaken by the Council and should usually include an in-person interview. When a housing authority has completed its inquiries it must notify the applicant in writing of its decisions.
11. Throughout any period an applicant remains in occupation whilst the landlord pursues possession action, the housing authority should keep the reasonable steps in the applicant's personal housing plan (PHP) under regular review, and maintain contact with the tenant and landlord to see if there is any change in circumstances which affects whether or not it continues to be reasonable for the applicant to occupy.
12. Where applicants are threatened with homelessness and eligible for assistance, housing authorities must take reasonable steps to help prevent their homelessness. This is called the prevention duty.
13. Under the prevention duty councils are required to help applicants secure accommodation but do not have to secure such accommodation themselves. The prevention duty comes to end in identified circumstances that include where the applicant becomes homeless but where a landlord has served a valid section 21 notice. The Council is required to notify the applicant of the end of this duty and the reasons for this and the applicant may ask for a review of this decision.
14. Councils have a relief duty where they are satisfied an applicant is homeless (as opposed to threatened with homelessness) and eligible for assistance. Under the relief duty the Council is required to take reasonable steps to help the applicant secure accommodation that will be available for at least 6 months. Again, it does not have to secure the accommodation itself though it may choose to do so. When the Council decides the applicant is in priority need and is not intentionally homeless the relief duty ends after 56 days. The Council must then decide if a main housing duty is owed.
15. If, after completing an assessment, the Council does consider it owes the applicant a duty it must draw up a PHP with the applicant to either prevent or relieve their homelessness. This details the actions both the Council and the applicant will take to try to resolve the threatened or actual homelessness. The PHP must be kept under review.
16. If homelessness is not successfully prevented or relieved the Council will owe the main housing duty to applicants who are eligible, have a priority need for accommodation and are not intentionally homeless. Households with priority need if homeless include those who are vulnerable. Councils may perform the main housing duty by providing accommodation itself, securing accommodation from someone else or helping the applicant to find their own secure accommodation.
17. A Council must provide interim accommodation if (and as soon as) it has reason to believe a person (or household) may be homeless, eligible and in priority need.
18. The code of guidance makes clear the Secretary of State considers it is highly unlikely to be reasonable for the applicant to continue to occupy a property beyond the date on which the court has ordered them to leave the property and give possession to the landlord.
19. The code of guidance says housing authorities should not consider it reasonable for an applicant to remain in occupation up until the point at which a court issues a warrant or writ to enforce an order for possession.
20. The code of guidance says housing authorities should ensure homeless families and vulnerable individuals who are owed a section 188 interim accommodation duty or section 193(2) main housing duty are not evicted through the enforcement of an order for possession due to failure by the authority to make suitable accommodation available to them.
21. All accommodation provided under Part 7 of the Act must be suitable for the applicant and their household. Housing authorities will need to consider carefully the suitability of accommodation for households with particular medical and/or physical needs.

The Council’s allocations scheme and discretionary policy

22. The Council’s housing allocation scheme (the allocations scheme) places housing applicants in various bands. Bands 2 is for people with a need to move who fall within one of the reasonable preference categories but also qualify for the positive community contribution criteria. The reasonable preference categories include homeless applicants. Bands 3 is for people who fall within one of the reasonable preference categories but who do not qualify for the positive community contribution criteria.
23. The Council’s discretionary policy, which expands on the allocations scheme, says where an applicant cannot reasonably make a community contribution because they have protected characteristics (which includes disability) officers will consider whether to use their discretion to award a community contribution where they consider it appropriate. That has the effect of increasing the applicant’s banding.

What happened

24. Mr B was living in a privately rented studio flat in April 2021 when he received a section 21 notice from his landlord telling him he needed to vacate the property by 25 October. Mr B told the Council. The Council told him to contact it again in August when he was within 56 days of the notice expiring.
25. Mr B contacted the Council again on 24 August. The Council carried out an interview with Mr B on 6 September. Mr B then completed a medical assessment form which outlined his medical issues. This included the fact he had epilepsy. Mr B said he needed a carer to stay with him in case he had a fit overnight. Mr B provided some medical information.
26. The Council contacted the agent for Mr B’s property to see whether the Council could provide a financial incentive for the landlord to extend the tenancy. The agent told the Council this was not possible as the landlord wanted to sell the property.
27. There is no evidence of any further action until October 2022 when Mr B contacted the Council to find out what was happening with his case. Mr B told the Council his landlord had tried to evict him every day and he needed a place big enough to allow his carer to stay as he could not stay alone as he could have a seizure at any time.
28. Mr B spoke to the Council again in November when he explained his landlord had applied for an eviction notice. The Council asked Mr B to contact it again when he received a possession order.
29. Mr B provided the Council with a copy of the possession order in December 2022. That possession order said Mr B needed to vacate the property on or before 15 December. The Council said it would contact Mr B when it had found suitable accommodation. Mr B asked the Council to ensure this was a one-bedroom property as he needed carers to stay overnight.
30. The Council completed a medical assessment in January 2023. This concluded Mr B was vulnerable and needed a ground floor or lifted property with a shower. It recorded bed-and-breakfast, out of borough and private sector rented properties were appropriate.
31. The citizens advice bureau contacted the Council on Mr B’s behalf on 17 January 2023. It said although Mr B had been living in a studio flat for the past seven years his condition had deteriorated and he was now never on his own and had to have someone with him all the time including overnight in case she had a seizure.
32. The Council issued a prevention duty notification letter and personal housing plan on 24 January.
33. Mr B chased the Council on 31 March.
34. On 18 May Mr B provided the Council with a notice of eviction letter. The Council approved temporary accommodation for Mr B. The Council told Mr B it would provide temporary accommodation when he was evicted from the property on 24 May.
35. The Council provided Mr B with a studio flat on 24 May. Mr B raised concerns about the suitability. The Council told Mr B it did not have any evidence he needed an overnight carer and suggested he provide further medical evidence.
36. On 5 June Mr B put in a complaint. Mr B also asked the Council to add his daughter onto his homeless application as she was his carer. The Council referred the case for a further medical assessment. Mr B also provided further medical information.
37. The Council sent Mr B a relief duty letter on 20 June.
38. The Council completed a further medical assessment on 7 July. That medical assessment noted Mr B did not have an assessed need for 24-hour care but needed space for family members to stay overnight. The medical assessment team manager recommended ground floor or lift access, shower not bath, one bedroom with a usable lounge and adequate transport links to specialists.
39. The Council offered Mr B further temporary accommodation in a hotel on 13 July. The Council tried to get a disability room but the hotel did not have any available.
40. Mr B asked the Council to transfer him to a hotel nearer to his support network on 28 July.
41. On 2 August the Council confirmed it had added Mr B’s daughter to the application. That meant Mr B now needed a two-bedroom property. The Council transferred Mr B to a different hotel with a disabled twin room on 11 August.
42. Mr B moved into a two-bedroom ground floor property as further temporary accommodation on 16 August.
43. On 17 August the Council sent Mr B a main duty acceptance decision and provided details of his banding. The Council placed Mr B in band 2 as it had waived the community contribution requirement as Mr B could not reasonably be expected to work or volunteer due to protected characteristics. That banding was backdated to 5 June when Mr B’s daughter was accepted onto the application. The Council told Mr B it now had a duty to secure suitable accommodation for him.
44. On 22 August the Council offered Mr B a two-bedroom property as settled accommodation. Mr B has now moved into that property.

Analysis

45. The Ombudsman will not normally investigate matters which took place more than 12 months ago. In this case I am exercising the Ombudsman’s discretion to investigate what has happened since September 2021. That is because I am satisfied delays by the Council have caused Mr B to delay making his complaint to the Ombudsman.
46. I have some concerns with how the Council processed Mr B's homeless application. The evidence I have seen satisfies me Mr B presented to the Council as homeless in August 2021. The Council's initial actions in carrying out an interview and asking Mr B for supporting evidence were in accordance with the process set out in the code of guidance. I am satisfied though the Council had sufficient information in September 2021 to show Mr B was threatened with homelessness, in priority need and eligible for assistance. In those circumstances I would have expected the Council to begin the prevention duty process, issue a prevention duty letter to Mr B and a personal housing plan. The Council failed to take any of those actions.
47. I am concerned about that given the Council telephoned Mr B's landlord and knew the landlord did not agree to give Mr B another tenancy as he wanted to sell the property. Failure to follow the code of guidance by issuing the prevention duty letter and personal housing plan is fault. I am particularly concerned about that because it was more than 15 months before the Council issued those documents. That is also fault. I am satisfied that meant Mr B was left having to chase the Council for updates and had no information about what steps the Council would take to help him.
48. Delay issuing the prevention duty letter also meant the Council delayed issuing the relief duty letter. That relief duty letter should have been issued 56 days after the prevention duty letter. I am therefore satisfied if the Council had followed the right process it would have issued the relief duty letter in 2021. Instead, it issued the relief duty letter in June 2023. That delay is fault.
49. I am also satisfied there are significant gaps in the chronology where there is no evidence the Council took any action on Mr B's homeless application or provided Mr B with updates. It is clear that meant Mr B had to go to time and trouble to find out what was happening. Failure to keep Mr B up to date with what was happening is fault. That is particularly important as if the Council had issued a personal housing plan in 2021, as it should have done, it would have been required to review that on a regular basis and keep Mr B up to date.
50. I am also concerned the Council did not consider whether it should exercise its section 188 duty to provide Mr B with interim accommodation when he presented as homeless in 2021. I appreciate Mr B was not evicted from his property until May 2023. However, the Council did not know that in 2021. The information the Council had in 2021 was that Mr B's landlord had given him notice which expired on 25 October 2021. Failure to consider whether Mr B needed interim accommodation in 2021 is fault.
51. I am also concerned there is no evidence the Council considered providing Mr B with temporary accommodation when it received the possession order from the court on 1 December 2022. That possession order said Mr B had to leave the property by 15 December. As I say in paragraphs 18 and 19 the code of guidance is clear the Council should not consider it reasonable for an applicant to remain in occupation until the court issues a warrant or writ to enforce an order for possession. I therefore consider the Council at fault for failing to provide Mr B with accommodation in December 2022.
52. I am also concerned that when providing Mr B with temporary accommodation in May 2023 the Council did not make clear under which duty it was providing that accommodation. That is important as if the Council was providing the accommodation under its section 188 duty Mr B did not have a right of appeal about the suitability of the accommodation. However, if the accommodation was provided under the Council's section 193 duty he would have had a right of appeal. Failing to issue the appropriate letters is fault and potentially denied Mr B a right of appeal.
53. Mr B says the Council provided him with unsuitable accommodation in May 2023. The evidence I have seen satisfies me the Council initially provided Mr B with a studio flat and then accommodation in a hotel. Mr B says neither were suitable as he has epilepsy and needs a carer to stay overnight with him. In contrast the Council says when it made those offers of accommodation it did not have any evidence to show Mr B needed overnight care.
54. I am satisfied when Mr B applied for a medical assessment in September 2021 he provided the Council with some information about his medical conditions. In the medical application Mr B said he needed a carer to stay with him as he could experience seizures at any time. Mr B also provided the Council with letters from medical professionals. Those letters did not specifically say Mr B needed a carer to stay with him overnight. However, one of the letters referred to the fact Mr B was living with a family member and experienced most of his seizures at night. That letter also confirmed the family member had received some information about what to do if Mr B experienced a seizure.
55. I would have expected the Council to take those issues into account when deciding what medical priority to give to Mr B and when deciding what type of property he should be offered. My first concern is that the Council did not carry out a medical assessment until January 2023 which is more than 15 months after Mr B put in the medical assessment form. That delay is fault. I am also concerned that when deciding, in January 2023, a studio flat or bed-and-breakfast were appropriate for Mr B there is no evidence the medical assessor considered the representations Mr B made about the need for a carer to stay with him or the medical evidence he provided. That is also fault.
56. I note the Council later decided Mr B needed a one-bedroom property for a carer to stay with him. By that point the Council had some additional information from the epilepsy nurse service which raised concerns about Mr B living on his own. That was not information available to the Council when the first medical assessment was carried out. However, as I said in the previous paragraph, the Council had also not taken into account the information Mr B provided with his initial request for a medical assessment. That calls into question the suitability of the accommodation Mr B occupied between 24 May and 11 August 2023. I cannot reach a safe conclusion about whether the Council would have decided Mr B needed a one-bedroom property if it had considered the case properly in January 2023. However, I consider Mr B is left with some uncertainty about whether the situation would have been different if the Council had considered his medical evidence properly at the outset.
57. I appreciate the Council says it has provided some evidence to show it had limited temporary accommodation available in May 2023. The Council has also provided evidence to show most of the temporary accommodation available at that point was unsuitable for Mr B's needs or was needed by somebody with greater priority than he had. I understand the Council's difficulties here. However, as I have made clear, the Council significantly delayed in processing Mr B's homeless application, in considering whether to provide him with accommodation and in carrying out the medical assessment. If the Council had carried out those actions in 2021 or 2022, as it should have done, it would have had more opportunities to seek suitable accommodation for Mr B before he was evicted. Mr B is also left with uncertainty about whether the Council would have been able to identify more suitable temporary accommodation if it had offered him temporary accommodation when he provided the possession order in December 2022.
58. I am satisfied the Council has now moved Mr B into suitable accommodation and exercised its discretion to place Mr B in a higher band than he would otherwise be entitled to. I welcome that.
59. So, there have been significant delays processing Mr B's homeless application, delays carrying out enquiries, delay issuing decisions, delay carrying out a medical assessment, failure to carry out that medical assessment properly initially and uncertainty about the suitability of the earlier accommodation provided. I am satisfied that fault caused Mr B a significant injustice. It is clear Mr B has experienced frustration and distress and is left with some uncertainty about whether his situation could have been resolved earlier and he could have avoided staying in unsuitable accommodation if the Council had acted as it should have done. Mr B also had his appeal rights delayed. To remedy that injustice I recommended the Council apologise to Mr B and pay him £600. The Council has agreed to my recommendations.
60. I also recommended the Council takes the following action to address the procedural issues that have arisen in this case:
• provide training to officers dealing with homeless applications on what the code of guidance and law says in relation to assessing homeless applications, how to assess whether it is reasonable for an applicant to remain living in their accommodation, when a prevention duty is owed, when a relief duty is owed, when interim accommodation should be considered and when any prevention duty, relief duty and PHP should be reviewed. That should also include a reminder of the need to issue decisions with appeal rights in writing and to ensure PHP's are completed; and
• remind those carrying out medical assessments of the need to ensure the applicant's representations and medical evidence is addressed in the decision as to what type of property is suitable.
61. The Council has agreed to my recommendations.

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Agreed action

62. Within one month of my decision the Council should:
• apologise to Mr B for the distress, uncertainty and frustration he experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mr B £600;
• remind those carrying out medical assessments of the need to ensure the applicant’s representations and medical evidence are addressed in the decision about what type of property is suitable.
63. Within two months of my decision the Council should arrange for a training session for officers dealing with homeless applicants. That training session should cover the matters outlined in paragraph 60.

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Final decision

64. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman