Summary: Ms F complained the Council failed to respond to her request for a review of its decision that she was not in priority need and failed to decide whether to offer interim accommodation pending the review decision. We found fault. The Council has agreed to apologise and make a payment to Ms F to remedy the injustice caused.

The complaint

1. Ms F complained the Council had failed to respond to her since her legal adviser submitted representations for a fresh section 202 review of the Council’s decision that she did not have priority need. Ms F complained in particular about the Council’s failure to respond to her request for interim accommodation pending the review decision.

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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 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)
3. 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)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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 considered the information Ms F sent, the Council’s response to my enquiries and:
• Homelessness Code of Guidance for Local Authorities
• Homelessness (Review Procedure etc.) Regulations 2018
• Homelessness (Priority Need for Accommodation) (England) Order 2002,
7. Ms F 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

Homelessness relevant law and guidance

8. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
9. If someone contacts a council seeking accommodation and gives reason to believe they may be homeless or threatened with homelessness within 56 days, the council has a duty to make inquiries into what, if any, further duty it owes them. (Housing Act 1996, section 184 and Homelessness Code of Guidance paragraphs 6.2 and 18.5)

Interim accommodation

10. Whilst making these inquiries, a council must secure accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need. This is called interim accommodation. (Housing Act 1996, section 188(1)).
11. The threshold for triggering the section 188(1) duty is low as the housing authority only has to have a reason to believe (rather than being satisfied) that the applicant may be homeless, eligible for assistance and have a priority need.
12. A person may have a priority need for a number of reasons set out in section 189(1) Housing Act 1996, including if they are vulnerable as a result of mental illness, physical disability, or other special reason.

Reviews

13. If a council decides the homeless applicant is not eligible for assistance or not in priority need, the person may request a review of that decision. (Housing Act 1996, section 202)
14. The review must be carried out by someone who was not involved in the original decision and who is more senior to the original decision maker. The Code says the same officer is able to carry out multiple reviews relating to a single case as long as they were not involved in the original decisions. (Homelessness Code of Guidance, 19.10)
15. Councils must complete these reviews within eight weeks. This period can be extended if the applicant agrees in writing.
16. Councils may provide accommodation pending the outcome of a review. (Housing Act 1996, section 188(3))
17. Where an applicant is refused accommodation pending a review, they may seek to challenge the decision through judicial review. (Homelessness Code of Guidance, 15.27)
18. Applicants may appeal to the county court on a point of law, about the outcome of the review. (Housing Act 1996, sections 202, 203 and 204)

What happened

19. Ms F had been issued with a no-fault eviction order and had applied to the Council as homeless. She then sought a review of the Council’s decision that she was not in priority need. The review upheld the decision and Ms F’s legal advisor appealed to the county court in December 2023.
20. On 15 December 2023, the Council said it would withdraw its review decision and asked Ms F to submit a fresh review. The legal advisor did so on 11 January 2024.
21. At this point the Council should have determined whether to offer Ms F interim accommodation whilst the review was underway. But it did not contact Ms F about accommodation and she came to the Ombudsman in February 2024. She said she was sofa-surfing which was particularly difficult as she has a number of health conditions.
22. The Council replied to Ms F on 27 February and completed the review on 7 March. It decided Ms F was in priority need due to her vulnerability caused by the chronic nature and substantial adverse effects of her health conditions on her daily functioning. It has now placed her in interim accommodation in a hotel whilst it carries out its homelessness inquiries.
23. In response to my enquiries, the Council accepted it should have considered the issue of accommodation pending review and written to Ms F with a decision about this in January 2024. The Council said there had been no specific request for interim accommodation from Ms F or her legal advisor.

My findings

24. When Ms F’s legal advisor submitted the fresh review on 11 January, the Council should have considered whether to offer Ms F interim accommodation pending review. If it had decided not to, Ms F could have appealed to the court.
25. The Homelessness Code of Guidance sets out the factors the Council should consider when deciding if it should exercise its discretion to offer interim accommodation pending review. But the Council has accepted it did not consider if Ms F’s case had merit, Ms F’s circumstances and the consequences for her of not providing accommodation. I am therefore satisfied that the Council did not consider its discretion in accordance with the guidance. The Council’s failure to make a decision is fault.
26. Had it done so, I consider it is likely the Council would have offered interim accommodation to Ms F in mid-January 2024. I say this as the Council offered accommodation following the review. I therefore find that, due to fault, Ms F missed out on accommodation from mid-January to 7 March 2024. This is her injustice.
27. There was no delay by the Council in dealing with the review as it was decided within eight weeks.
28. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
29. Our guidance says where a complainant has been deprived of suitable accommodation during what would inevitably have been a stressful period in their life, our recommendation for financial redress is likely to be in the range of £150 to £350 a month. Given Ms F’s health conditions and as she has been sofa-surfing I consider £250 per month to be an appropriate sum.

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Agreed action

30. Within a month of my final decision, the Council has agreed to apologise to Ms F and pay her £500 to remedy the lack of accommodation from mid-January to 7 March 2024.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman