Summary: Ms F complained about the Council’s handling of her homelessness application. We found the Council at fault for causing a delay to provide interim and alternative temporary accommodation and to respond to some of her communication. We could not consider the Council’s non-priority decision as she exercised her statutory review rights. The Council will apologise to Ms F and make payment to acknowledge the distress and uncertainty its faults caused her.

The complaint

1. The complainant, Ms F, complained about the Council’s handling of her request for help with her housing situation. She said it:
• failed to provide interim accommodation when she became homeless;
• wrongly found her in non-priority need as it applied the incorrect legal test;
• placed her in unsuitable interim and temporary accommodation and failed to consider her request for alternative suitable accommodation;
• communicated poorly with her and failed to respond in a timely manner; and
• wrongly placed her on auto-bidding and failed to remove this when she requested it.
2. Ms F said, as a result she experienced distress and uncertainty which had a significant impact on her mental health.

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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 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)
5. 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)
6. 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

7. As part of my investigation, I have:
• considered Ms F’s complaint and the Council’s responses;
• discussed the complaint with Ms F and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• had regard to the relevant law and policy to the complaint.
8. 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

9. 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.
10. 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).

The prevention duty

11. 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. In deciding what steps they are to take, councils must have regard to their assessments of the applicants’ cases. (Housing Act 1996, section 195)

The relief duty

12. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. When a council decides this duty has come to an end, it must notify the applicant in writing (Housing Act 1996, section 189B)
13. A council must secure interim accommodation for an applicant and their household if it has reason to believe the applicant may be homeless, eligible for assistance and have a priority need. (Housing Act 1996, section 188)

Priority need and assessing vulnerability

14. Case law has established the correct comparator is the ordinary person if they become homeless, and not the ordinary homeless person. This is often referred to as the Hotek Test. This replaces the previous legal test that has a higher eligibility threshold (referred to as the Pereira Test), where the comparator was “the ordinary homeless person”. The Hotek test is specified at the correct test in the Homelessness Code of Guidance.

The main housing duty

15. 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)

Reviews

16. Homeless applicants may request a review within 21 days of being notified of the following decisions. This includes circumstances where a council find a person ineligible for assistance or in non-priority need.
17. Councils must complete reviews of the following decisions within eight weeks of the date of the review request:
• eligibility for assistance;
• not in priority need;
• intentionally homeless;
• suitability of accommodation;
• notice being given of deliberate and unreasonable refusal to cooperate and the effect of the notice is to bring the relief duty to an end.
18. These periods can be extended if the applicant agrees in writing.
19. The council must advise applicants of their right to appeal to the county court on a point of law, and of the period in which to appeal. Applicants can also appeal if the council takes more than the prescribed time to complete the review. (Housing Act 1996, sections 202, 203 and 204
20. Applicants may ask a council to provide accommodation pending the outcome of a review. Councils have a power, but not a duty, to accommodate certain applicants and members of their household. (Housing Act 1996, sections 188(3), 199A(6), 200(5)).

The Council’s housing allocation scheme

21. 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)).
22. The Council allocation scheme sets out how it prioritises applicants based on a points system. Points can be awarded in specific circumstances, including:
• waiting time on the scheme;
• medical needs for how a applicants health impacted by their housing circumstances following assessment by the Council’s medical advisor. The level of impact determines the amount of points awarded;
• living in accommodation with shared facilities; and
• applicants accepted as statutorily homeless and in priority need.
23. Applicants in receipt of 100 homelessness points will automatically be subject to auto-bidding on the Council’s choice-based lettings system. Regardless of whether such preference has been expressed.

What happened

24. Ms F was living with her family. She was asked to leave the home due to a breakdown in the relationship in early December 2023.
25. Ms F contacted the Council for help and explained she would be homeless from 20 December 2023. The Council arranged a telephone assessment for two days before her leaving date.
26. During the assessment Ms F told the Council about her health issues and conditions, which includes mental health and several previous suicide attempts. She also shared evidence about her health, the support she had or was receiving, her medication, and her benefits entitlement.
27. Ms F was added to the Council’s housing register.
28. Ms F left the family home shortly after and says she had to sleep in her car and seek other support to avoid rough sleeping, as the Council did not provide her any accommodation.
29. The Council said it attempted to contact Ms F’s family to confirm she had to leave the home. It told her it managed to speak with the family member on 29 December 2023, and intended to accept a relief duty. However, its offices were subsequently closed.
30. In early January 2024 the Council called Ms F and it believed she was not in priority need. It therefore would not provide her with interim accommodation.
31. Two days later Ms F’s solicitor contested the Council’s decision. The Council subsequently decided to provide Ms F with interim accommodation in a self-contained studio flat. It explained this was intended to be short term.
32. Five days later the Council moved Ms F to another interim accommodation in a house of multiple (HMO) occupation. Ms F had a room and had to share kitchen and other facilities with other tenants.
33. The Council reduced Ms F’s medical points on her housing register application from 100 to 50 points following her move to the interim accommodation.
34. In late January 2024 Ms F told the Council she was feeling anxious in the accommodation. This was because her mental health was impacted by not being able to open her window, sharing facilities, and living on the ground floor. She also shared a support letter from the Community Mental Health Team (CMHT), which explained the impact the accommodation had on her. She asked the Council to accept she was in priority need and increase her medical points on her housing register application.
35. In February 2024 the Council told Ms F it intended to find her in non-priority need. It explained this meant it had no duty to provide her with interim accommodation, but it still had two weeks to make this decision and would share it with her.
36. The Council shared its decision a few days later. It accepted it had a prevention duty, but not a relief duty as it had found she was not in priority need. It told her how it had reached its decision and that she would have to leave the interim accommodation within four weeks. It also explained her right to request a review of its decision.
37. Ms F’s solicitor challenged the Council’s decision. This included:
• the Council having applied the wrong law as it based its view on Ms F’s mental health would improve when in settled accommodation. This should have been whether she was significantly more vulnerable compared with an ordinary person;
• its housing officer was not a medical practitioner and should therefore not dismiss medical evidence without good grounds. The officer had also verbally consistently told Ms F she was not in priority need;
• ignored facts, failed to consider supportive evidence, and failed to evidence whether it had contacted some professionals supporting Ms F; and
• asked for Ms F to be allowed to remain in the interim accommodation until the review was completed.

Ms F’s complaint

38. Ms F complained to the Council shortly after her solicitor submitted her review request of the non-priority decision. She set out:
• similar points to her solicitor regarding the Council’s non-priority decision and how this had been handled and considered, including she felt discriminated against;
• she had no response to her late January 2024 request for support to move to a different interim accommodation as the HMO was unsuitable for her due to the impact it had on her mental health;
• she found a call with its officer and the non-priority decision letter to be poor and without empathy for her circumstances. She asked for a different housing officer; and
• her housing register application was wrongly subject to auto-bidding.
39. The Council acknowledged Ms F’s review request. It also agreed to continue to provide Ms F with interim accommodation until the review was completed. It had also offered Ms F a viewing through its housing register the following week and asked her to keep her it updated.
40. Ms F did not accept the property offer as it was on the ground floor which she did not agree was suitable.
41. In response to Ms F’s complaint, the Council did not consider her housing assessment and non-priority decision as this was part of her statutory review. It accepted it had not responded to her late January 2024 communication as it should have and apologised. However, it did not find fault in its officer’s interactions with her or the non-priority decision letter. Nor did it accept a new housing officer should be allocated and her auto-bidding would remain in place in line with its policy.
42. Ms F asked the Council to consider her complaint at stage of its complaints process as she disagreed with its decisions. She said her concerns about discrimination was not responded to and the officer who responded to her complaint had been biased and unfair in her decision making. She also asked for auto-bidding for her housing register application to stop.
43. Shortly after, the Council shared the outcome of its non-priority decision for Ms F. It reversed its original decision and accepted she was a priority need. It therefore owed her a main housing duty. It said it would continue to provide her current accommodation or she could ask to be moved to a different temporary accommodation above ground floor.
44. In a separate communication, the Council told Ms F it agreed her current accommodation was unsuitable for her needs and asked her to contact the Council if she wished to be moved.
45. Ms F called the Council the same day and asked to be moved to another property above ground floor, or within the same property to a room above the ground floor.
46. A week later the Council allocated a new housing officer.
47. In its final complaint response, the Council found its stage one response had properly addressed her complaint. It explained it had since reversed its non-priority decision following review and allocated a new housing officer to her case. It acknowledged Ms F did not want auto-bidding but explained why this was in line with its policy, but it would consider her request to only be considered for properties in certain areas.
48. Ms F was not satisfied with the Council’s responses and asked the Ombudsman to consider her complaint. She also said the Council had not responded to her move request following its agreement she was in unsuitable accommodation.
49. Ms F moved to a different temporary accommodation in May 2024.

Analysis and finding

Provision of interim accommodation

50. Ms F said the Council caused a delay in providing her with interim accommodation when she asked for support in late 2023.
51. The law says the Council only has to be satisfied there is “reason to believe” an applicant may be in priority need at the time of making a decision whether to provide interim accommodation. Case law has established this is a relatively low threshold. It also does not need to be certain the applicant is actually homeless at the time.
52. Having reviewed the evidence, in my view, the Council based its decision on whether Ms F was actually vulnerable, not whether she may have been.
53. It is not for the Ombudsman to decide whether Ms F was or was not in priority need at that time. We are not an appeal body. Instead, I must consider whether the Council followed the correct procedure in making its decision.
54. In this case, I am not satisfied the Council did so for several reasons.
55. While I understand the Council attempted to contact Ms F’s family member in late 2023 to confirm she had to leave the family home, the evidence shows there was limited efforts in doing so and it was only shortly before she had to leave. Also, Ms F had already provided information from her family member confirming this.
56. The Council should have provided Ms F with interim accommodation without delay from the day she had been asked to leave the home as she was an excluded occupier. However, it did not do so until 14 days later and after Ms F’s solicitor had challenged its delay. This was fault.
57. I am satisfied this caused Ms F distress and uncertainty as she had to sleep rough and seek alternative support during this time.

Suitability of interim accommodation

58. The Council placed Ms F in interim accommodation in early 2024. I understand Ms F has since said the initial interim accommodation was unsuitable, but this was not brought to the Council’s attention at the time. I cannot therefore consider this further.
59. Ms F told the Council in late January 2024 her interim accommodation in the HMO was impacting her health and provided her reasons why. She also shared a support letter from the CMHT which set out how the accommodation impacted her mental health.
60. I cannot say whether the accommodation was suitable to meet Ms F’s needs or not. Such decisions are for the Council to make. The Council’s view was Ms F’s communication was not a suitability request but more information for its consideration around priority need.
61. I have not found the Council at fault for how it handled Ms F’s concerns about the suitability of her interim accommodation at the time. This is because Ms F’s concerns were closely linked with her reasons why she should be in priority need, which the Council was considering. I was also conscious:
• the Council had no duty to provide Ms F with interim accommodation in February 2024 when it reached its view she was not a priority need, but agreed to allow her to stay in the accommodation pending its review;
• when it accepted it owed Ms F a main housing duty in March 2024, it told her she could remain in her existing accommodation or ask for new accommodation. Ms F subsequently had review rights available to her regarding the suitability of the temporary accommodation. I cannot therefore consider her suitability concerns after this time; and
• the Council’s non-priority decision letter showed it had considered the impact the interim accommodation had on her, but it was satisfied it was suitable. This was a decision it was entitled to make.
62. However, the Council told Ms F in March 2024, at the same time as its reversed non-priority decision, it agreed her temporary accommodation was unsuitable. The evidence shows Ms F contacted the Council and asked to be moved in line with the instructions she had received from the Council. However, she did not receive a response and she was not moved until two months later.
63. The Council had a duty to move Ms F when it found her accommodation was unsuitable to meet her needs. I found its failure to act on her request and place her in another accommodation, or a free room in her existing accommodation, above ground floor to be fault. Ms F therefore experienced further distress and uncertainty during a two-month period.

The non-priority decision

64. Ms F said the Council’s decision not to award her priority was wrong. She asked the Council to review its decision through the statutory review process and the Council subsequently reconsidered and decided she was in priority need.
65. Ms F correctly used her statutory review rights to contest the Council’s non-priority decision. This is the process I would expect her to follow. I cannot therefore consider this part of her complaint further, nor can I consider the impact the Council’s original decision had on her.

Council’s communication with Ms F

66. The Council accepted it had delayed responding to some communication from Ms F and apologised. I found this was appropriate to acknowledge the delays in responding which occurred.
67. Ms F also complained about how the housing officer spoke with her and its non-priority decision letter. I have found no fault with the Council’s letter. I acknowledge the Council’s decision was upsetting for Ms F and it impacted her mental health. However, I found the letter to be factual and explained how it had considered her case, and reasons for its decision. Ms F subsequently exercised her right of review against the decision.
68. I understand Ms F did not agree with the officer’s view and felt she did not show enough empathy for the challenges Ms F was experiencing. The Council discussed the approach the officer had taken when speaking with Ms F and considered the records available but did not find evidence the officer had acted inappropriately. With the limited evidence available, I cannot reach a different outcome on this matter.
69. Also, the Council did not agree to change its housing officer from Ms F’s case, but decided to do so after it reversed its non-priority decision in March 2024. As the Council had not found wrongdoing by its officer, this was decisions it was entitled to make.

Housing register points and auto-bidding

70. I have considered Ms F’s concerns about the Council’s allocation of points to her housing register application since January 2024. I have not found fault in how points were allocated to her or reduced when she moved into her interim accommodation as this was in line with the Council’s Allocations Policy.
71. However, Ms F also said she had been subject to auto-bidding since January 2024, and disagreed she should be on auto-bidding both before and after the Council’s revised non-priority decision. I found:
• the Council correctly added Ms F to auto-bidding following its decision she was in priority need in March 2024 and allocated 100 points to her application. This was in line with its allocations policy.
• the Council incorrectly added Ms F to auto-bidding prior to this. However, I am not satisfied this caused her a significant injustice as she was not penalised for refusing a property but accept this may have caused her some distress.

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Agreed action

72. To remedy the injustice the Council caused to Ms F, the Council should, within one month of the final decision:
1. write to Ms F and apologise for the distress and uncertainty she experienced as a result of the delay in providing her with interim accommodation and temporary accommodation, responding to some communication, and to place her on auto-bidding when it should not have.

We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology; and

2. pay Ms F £800 to acknowledge the injustice its faults caused her.

73. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. review how it assesses and provide interim accommodation to applicants who applies for homelessness support and may have an evidenced need of priority. Training should be provided to its housing staff to ensure:
1. there are no delays in the assessment process, including circumstances where the Council may not be able to obtain confirmation of homelessness for excluded occupiers;
2. accommodation is offered in circumstances where there is a reasonable belief an applicant may be in priority need, until the Council makes its decision on priority need; and
3. auto-bidding is not applied to applicants housing register application before the required points or circumstances are applied as set out in the Council’s Allocations Policy.
5. remind staff in its housing team to act on and respond to applicants move requests without delay, in particular in circumstances where the Council has already agreed the existing accommodation is unsuitable to meet the applicant’s needs.
74. The Council should provide us with evidence it has complied with the above actions.

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Final decision

75. There was fault which caused Ms F an injustice, the Council has agreed with my recommendations. It is on this basis 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