Summary: The Council was at fault because it delayed accepting the prevention duty for a homelessness applicant, and because it delayed processing his request for a review of his banding on the housing register. Neither fault affected his substantive situation, and the Council has already offered an adequate remedy for the frustration it caused. However, the Council has agreed to take steps to remind its staff of the law around the prevention duty. The Council was not at fault for deciding the applicant was not in priority need, even though it later reversed this decision.

The complaint

1. I will refer to the complainant as Mr D.
2. Mr D made a homelessness application to the Council in September 2023, due to violence he alleged he had experienced from his flatmate. He complains the Council delayed acting on his application, and then did not offer him interim accommodation, meaning he was forced to leave his home to avoid further violence. Mr D says this has left him homeless.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
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 reviewed Mr D’s correspondence with the Council, the Council’s case notes, and asked the Council to comment on certain points.
7. I also shared a draft copy of this decision with each party for their comments.

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What I found

8. The following chronology will provide a summary of the key events relevant to this complaint. It is not intended to be a comprehensive list of everything that happened.
9. In 2022 Mr D moved into a privately rented house in multiple occupation (HMO).
10. On 7 September 2023, Mr D’s landlord served him with a section 21 notice, requiring him to vacate the property by 13 November. Mr D made a homelessness application to the Council on 22 September, and the Council completed an initial assessment. During the assessment, Mr D said he has suffered anti-social behaviour from other residents in the HMO, which included threats of violence, theft and damage to his property.
11. On 24 November the Council referred Mr D to its Single Homeless Prevention Service (SHPS), which aims to secure studio accommodation for single adults facing homelessness. However, Mr D declined to engage with the SHPS, because he wanted a one-bedroom property and not studio accommodation, and so on 1 December the SHPS referred Mr D back to the Council’s main homelessness service.
12. On 7 December the Council wrote to Mr D to confirm it had accepted the homelessness prevention duty for him, and provided him with a copy of his personalised housing plan (PHP). The PHP said Mr D should look for housing in the private rented sector. The Council also added Mr D to its housing register at band C.
13. On 11 December Mr D’s advocate contacted the Council to ask for a review of his banding on the housing register. The advocate said that, due to Mr D’s fear of violence, and because of medical issues he was suffering, he should be at band A for an emergency management transfer. The advocate contacted the Council again to chase the review up on 19 January 2024, and the Council responded on 25 January to say it would process the review request.
14. The Council contacted the police to ask for any records it had about Mr D’s allegations about the other residents. The police responded on 26 January to say it had attended the property on several occasions to investigate incidents reported by Mr D. The police said it had advised Mr D and other residents to avoid each other. The police also explained the landlord had reported that Mr D would often provoke incidents with other residents, and that several had moved out of the property because of Mr D’s behaviour. The landlord said this was the reason he was seeking to evict Mr D.
15. On 9 February the Council contacted Mr D’s advocate. It explained it had consulted the district medical officer about his banding on the housing register, but the officer had said there were no grounds to give Mr D medical priority. The Council explained it would refer the matter to its allocations panel for a formal decision.
16. On 15 February the Council accepted the homelessness relief duty for Mr D. On the same day Mr D informed the Council he could not return to the HMO because he feared for his life there, due to an incident on 13 February.
17. On 21 February the Council wrote to Mr D to say it did not consider he was in priority need. It explained this meant that, although it had accepted the relief duty, it could not provide interim accommodation while this remained in force. The Council’s letter explained Mr D could request a review of this decision, which he then did on 23 February.
18. On 15 April the Council decided to withdraw the decision it had made about Mr D’s priority need. It wrote to Mr D to explain it would make a fresh decision.
19. Having made stage 1 and 2 complaints in February and March respectively, the Council gave Mr D its final complaint response on 23 April. The Council agreed it had taken too long to refer Mr D’s case to the SHPS, and that there had also been a delay in moving his case from prevention to relief duty stage, which should have happened by 1 February.
20. The Council also accepted there had been a delay in dealing with Mr D’s request for a review of his banding on the housing register. It apologised to Mr D for these delays and offered him £250 to reflect their impact.
21. On 29 April the Council contacted Mr D’s landlord to discuss the incident on 13 February. The landlord said Mr D had threatened other residents with a knife during the incident and had been arrested by the police for this. The landlord also explained Mr D had significant arrears as he had refused to pay service charges.
22. On the same day the Council wrote to Mr D’s representative, to explain its allocation panel had agreed with the medical officer’s recommendation, that Mr D did not have medical grounds to be at band A. The Council also explained that the emergency management transfer procedure was for existing council tenants, while Mr D was relief duty homelessness applicant who had been in the private rented sector.
23. On 13 May the Council wrote to Mr D to confirm it had now accepted the main housing duty for him.

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Legislative background

Homelessness

24. 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. Someone is homeless if they have no accommodation or if they have accommodation, but it is not reasonable for them to continue to live there. (Housing Act 1996, Section 175)
25. Someone is threatened with homelessness if, when asking for assistance from the council on or after 3 April 2018:

• they are likely to become homeless within 56 days; or
• they have been served with a valid Section 21 notice which will expire within 56 days. (Housing Act 1996, section 175(4) & (5)

26. If councils are satisfied applicants are threatened with homelessness and eligible for assistance, they must help the applicants to secure that accommodation does not stop being available for their occupation. This is called the ‘prevention duty’. In deciding what steps they are to take, councils must have regard to their assessments of the applicants’ cases. (Housing Act 1996, section 195)
27. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. This is called the ‘relief duty’. When a council decides this duty has come to an end, it must notify the applicant in writing. (Housing Act 1996, section 189B)
28. While the relief duty is in place, a council must secure interim accommodation for an applicant and their household if it has reason to believe they may have a priority need. (Housing Act 1996, section 188)
29. 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). This is called the ‘main housing duty’. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)
30. 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;
• care leavers; and
• victims of domestic abuse

Reviews

31. Homeless applicants may request a review within 21 days of being notified of a range of relevant decisions, including:

• their eligibility for assistance;
• what duty (if any) is owed to them if they are found to be homeless or threatened with homelessness;
• the steps they are to take in their personalised housing plan at the prevention duty stage;
• giving notice to bring the prevention duty to an end;
• the steps they are to take in their personalised housing plan at the relief duty stage;
• giving notice to bring the relief duty to an end.

Housing allocations

32. 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))
33. An allocations scheme must give reasonable preference to applicants in the following categories:

• homeless people;
• people in insanitary, overcrowded or unsatisfactory housing;
• people who need to move on medical or welfare grounds;
• people who need to move to avoid hardship to themselves or others;
  (Housing Act 1996, section 166A(3))

34. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.
35. Statutory guidance on the allocation of accommodation says reviews should normally be completed within a set deadline - 8 weeks is suggested as reasonable.

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Analysis

36. The Ombudsman’s role is to review how a council has made its decision. We may criticise it if, for example, it has not followed an appropriate procedure, not considered relevant information, or failed to properly explain the reason it has made a decision. We call this ‘fault’ and, where we find it, we can consider the consequences of the fault and ask the council to address these.
37. However, we do not provide a right of appeal against council decisions, and we do not make operational or policy decisions on a council’s behalf. Where a council has made its decision without fault, then we cannot criticise it, no matter how strongly a complainant thinks it is wrong. We do not uphold complaints simply because someone believes the council should have made a different decision.
38. Having received a section 21 notice on 7 September, Mr D made a homelessness application to the Council on 22 September. The Council’s notes do not indicate it took any further action until 24 November, when it referred Mr D to the SHPS. It then accepted the prevention duty on 7 December, after Mr D declined to work with the SHPS.
39. The Council has acknowledged there was a delay in referring Mr D to the SHPS and accepted this was fault. But, while this is positive, I am concerned the Council has overlooked a more significant fault – if a person approaches a council with a section 21 notice, they are automatically deemed to be threatened with homelessness, and the council must immediately accept the prevention duty for them. The Council should, therefore, have accepted the prevention duty for Mr D as soon as it had completed its assessment of him on 22 September.
40. I am not persuaded, however, this fault caused Mr D any injustice. The purpose of the prevention duty is for the Council to work with the applicant to avoid their becoming homeless, by creating a personalised housing plan (PHP) with steps for them to take. Although the Council did not do this until 7 December, it had already referred Mr D to the SHPS, and gave him advice about renting in the private sector. It is difficult to see what else the Council could reasonably have included in Mr D’s PHP, even if it had issued it more promptly.
41. It could be argued the delay in accepting the prevention duty then meant a consequential delay in accepting the relief duty. However, although the prevention duty runs for 56 days, councils can extend it; and given Mr D was not actually homeless until 15 February, there was no reason for the Council to accept the relief duty before this date – which is when it did so anyway.
42. So, it appears most likely the prevention duty would simply have continued to this date, even if the Council had accepted it promptly. In the substantive sense, therefore, the Council’s failure to accept it when it should have done no made no difference to Mr D’s situation.
43. While I do not consider Mr D suffered any injustice from this fault, I do consider the Council should take steps to prevent a recurrence. To that end, the Council should remind its homelessness officers they must accept the prevention duty immediately, where an applicant has received a section 21 notice. I make a recommendation to this effect.
44. Once the Council accepted the relief duty, it then had to consider whether to provide Mr D with interim accommodation. But the Council decided Mr D did not have a priority need, which meant he was not eligible for interim accommodation.
45. After Mr D requested a review of this decision, the Council withdrew it for reconsideration. It is unclear when this was completed, but it must have done so by 13 May at the latest. This is because the Council accepted the main housing duty for Mr D on that date, and having a priority need is also one of the qualifying criteria for this duty.
46. Given the Council reversed its decision about priority need, this of course raises the question whether the original decision was flawed. If so, the Council could then be said to be at fault for not providing Mr D with interim accommodation during the relief duty stage. Mr D has explained he was staying with friends at this time, but it would be a significant injustice if the Council should have arranged accommodation for him at this time, but did not.
47. I am not persuaded this is the case though. The Council has explained it withdrew the original decision because it had not properly considered Mr D’s fear of violence. But I have also seen the reviewing officer’s email to Mr D’s case officer, in which she said the decision should include details of the police findings from its investigations of the incidents involving Mr D, as well as the landlord’s comments about his role in the conflict in the HMO.
48. I do not consider this means there was substantive fault in the original decision. It did not fail to consider the fear of violence element of Mr D’s application, as he has suggested – on the contrary, the decision describes this issue in significant length. The review officer took a different view about the level of detail the decision letter should include, but critically did not say the case officer should have found Mr D had a priority need.
49. Therefore, while the Council eventually reversed its decision on Mr D’s priority need, it is entitled to change its view like this and does not mean it was at fault for the original decision. Therefore, while the Council did not place Mr D in interim accommodation during the relief duty stage, I cannot say this happened because of a fault.
50. Mr D has told me that, since accepting the main housing duty, the Council has contacted him to offer him temporary accommodation, as it is now required to do. However, he has explained that, because his possessions are still at the HMO, he is still paying rent there (through housing benefit). The Council has told him it cannot pay housing benefit for someone on two different properties at the same time, and so he needs to end his tenancy on the HMO before it can arrange temporary accommodation for him. In order to do so though, Mr D first needs to find a storage facility to move his possessions to.
51. This is an unfortunate situation, but as this is an entirely new issue I cannot consider it as part of this investigation. Mr D must first make a complaint to the Council about this, before we have the power to investigate it.
52. Mr D has also complained about the Council’s decision on his banding on the housing register. In particular, he complains the Council should have placed him in band A for an emergency management transfer, because of his fear of violence.
53. I share the Council’s view on this. Management transfers mean transfers between council properties – as a homelessness applicant, this did not apply to Mr D. Rather, the Council’s duty to Mr D came through the homelessness process, which, at that point, was in the relief duty stage.
54. In response to Mr D’s complaint, the Council did accept it had initially failed to process Mr D’s request for a review of his banding, made by his advocate on 11 December. It did not confirm it had accepted the request until 25 January, then on 8 March said it would refer the review to the allocations panel, but still had not done so by the time of the Council’s response to the complaint on 23 April.
55. I am satisfied this delay amounts to fault. But, although Mr D had to wait longer for a response than he should have done, the Council’s decision remained the same, and so the delay had no material effect on his situation.
56. This being so, I do not consider the fault caused any injustice to Mr D, beyond some minor frustration at the delay.
57. Mr D has confirmed he has accepted the £250 remedy the Council offered him, for both this and also the delay in accepting the prevention duty. Alongside the Council’s apology, I consider this an entirely adequate remedy, and in fact is likely more than the Ombudsman would have recommended for this level of injustice.

Conclusions

58. The Council was at fault, because it did not accept the prevention duty for Mr D immediately, despite the fact he had received a section 21 notice. This fault did not cause any injustice to Mr D, because it did not affect the outcome, but the Council should take steps to remind staff of the correct application of the prevention duty.
59. The Council was not at fault for not providing Mr D with interim accommodation during the relief duty stage. This is because it made a legitimate decision Mr D was not in priority need. Although it later reversed this decision, this does not mean there was fault in the original decision.
60. The Council was at fault for a delay in processing Mr D’s request for a review of his banding. Again, this did not make any difference to Mr D’s substantive situation, and the only injustice to him was some frustration. The Council has already provided an adequate remedy for this.

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Agreed action

61. Within one month of the date of my final decision, the Council has agreed to circulate a reminder to all relevant staff in its housing department, to remind them the prevention duty is automatically triggered when a homelessness applicant receives a section 21 notice, and so they must accept this duty immediately if an applicant has received a section 21 notice.
62. The Council should provide us with evidence it has complied with the above actions.

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Final decision

63. I have completed my investigation with a finding of fault causing injustice, but which the Council has already remedied.

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Investigator's decision on behalf of the Ombudsman