Summary: We found the Council at fault for its response when Mrs D sought its support when she faced being made homeless. The Council delayed in making decisions and failed to communicate with her. This caused Mrs D avoidable distress. The Council has accepted these findings and at the end of this statement we set out what action it will take to remedy this injustice and make service improvements.

The complaint

1. Mrs D complained the Council failed to properly support her with rehousing, after she contacted it in February 2023 to advise she faced possible homelessness. She also considered its response to an application for re-housing did not take account of her local connection to the Borough and the needs of her disabled child.
2. Mrs D said prolonged uncertainty about her housing caused her heightened stress and anxiety. She said her and her family had to continue living in unsuitable housing. Mrs D also said dealing with the Council’s housing service has caused her avoidable frustration.

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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. Before issuing this decision statement I considered:

• Mrs D’s written complaint to this office and any supporting information she provided;
• Mrs D’s complaint to the Council and its replies to her;
• further information sent to me by the Council in reply to enquiries;
• any relevant law, Government guidance or Council policy as referred to below;
• any relevant guidance published by this office, including that on remedies to complaints – see: Guidance on remedies - Local Government and Social Care Ombudsman.

7. I also sent Mrs D and the Council a draft version of this decision statement and invited them to comment or provide further evidence relevant to the complaint. I took account of any response they provided, before finalising the decision statement.

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What I found

Relevant law and guidance on homelessness

General

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. A council should treat someone as threatened with homelessness if when they ask for assistance:

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

Assessments and personal housing plans

10. Councils must complete an assessment when satisfied an applicant is homeless or threatened with homelessness. Councils should work with applicants to identify practical and reasonable steps for the council and the applicant to take to help the applicant keep or secure suitable accommodation. The specific steps should follow from the assessment. The applicant must receive a copy in writing as their personalised housing plan (PHP). (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.18)

The prevention duty

11. If satisfied the applicant is threatened with homelessness and eligible for assistance, the Council must help the applicant to secure accommodation that does not stop being available for their occupation. (Housing Act 1996, section 195)
12. The Council’s assessment and PHP must be kept under review while the prevention duty applies (Homelessness Code of Guidance paragraphs 11.32 and 11.35).

13. The prevention duty will end if:

• the applicant has suitable accommodation available that has a reasonable prospect of being available for at least six months;
• 56 days have passed since the authority became subject to this duty, except where the applicant has been served with a Section 21 notice. In that case the duty continues for as long as they continue to occupy the property subject to the notice;
• the applicant has become homeless;
• the applicant has refused a suitable offer of accommodation that would have been available for at least six months;
• the applicant has become intentionally homeless from any accommodation made available by the authority exercising functions under this section;
• the applicant is no longer eligible;
• the applicant has withdrawn the application.

14. The Council must notify in writing if it considers the prevention duty has ended. It must give its reasons and tell the applicant of their right to ask for a review of that decision.

The relief duty

15. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. When a council decides this duty has ended, it must notify the applicant in writing. (Housing Act 1996, section 189B)

The main housing duty

16. If satisfied an applicant is homeless, eligible for assistance, and has a priority need the council must usually secure that accommodation is available for their occupation. The accommodation a council provides until it can end this duty is called temporary accommodation. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)

Specific guidance where applicants have received a Section 21 notice

17. Government guidance says that where someone receives such a notice the council should contact their landlord to understand the reasons for service of the notice. (Homelessness Code of Guidance 6.29)
18. Sometimes where an applicant has received a Section 21 notice the prevention duty may run for more than 56 days. But when an applicant becomes homeless, the Council should end the notice and let them know the relief duty applies. Government guidance says, “it follows that housing authorities will be required to assess at what point a tenant who has been served a valid section 21 becomes homeless and is owed a relief duty”. (Homelessness Code of Guidance 6.32)
19. It continues that councils must consider each case on its merits, such as the reasons for the notice and whether the landlord intends to seek possession following its expiry. It says: “throughout any period that an applicant remains in occupation whilst the landlord pursues possession action, the housing authority should keep the reasonable steps in the applicant’s personalised housing plan under regular review and maintain contact with the tenant and landlord to ascertain if there is any change in circumstances which affects whether or not it continues to be reasonable for the applicant to occupy”. (Homelessness Code of Guidance 6.33 to 6.35).
20. The guidance notes a person has a legal right to remain in occupation until the Court executes a warrant for possession (i.e., bailiffs enforce a possession order). But it says this does not mean the tenant is not homeless. The Council must consider if the accommodation remains reasonable to continue to occupy. (Homelessness Code of Guidance 6.17 & 6.18)
21. It says that if an applicant:

• has received a valid Section 21 notice;
• to which there is no defence; and
• the Council considers the landlord intends to follow up with a possession order;
• “then it is unlikely to be reasonable for the applicant to continue to occupy beyond the expiry of a valid section 21 notice” (Homelessness Code of Guidance 6.35).

22. Further, that it is highly unlikely to be reasonable for the applicant to continue to occupy beyond the date on which the court has ordered them to leave the property. And it is “not reasonable” to expect applicants to remain in occupation until the Court issues a warrant (Homelessness Code of Guidance 6.36 and 6.37).

Relevant law on housing allocations

23. Every local housing authority must keep a housing register – or list of households needing re-housing (a waiting list). It must publish an allocations scheme that sets out how it will prioritise applications and allocate available housing.  (Housing Act 1996, section 166A(1) & (14))
24. 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))

25. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.

The Council’s housing allocation scheme

26. The Council operates a choice based letting (CBL) scheme with other housing providers. The policy places applicants whose circumstances fall within one of the reasonable preference groups set out in law (see paragraph 24 above) into the Priority Homeseeker category. Applicants bid for properties under the CBL scheme and accrue further priority through waiting time.
27. In addition, the Council will make direct offers of housing to some applicants, including where there is a need for emergency re-housing. Included in this group are some applicants with medical needs where “a severe medical condition makes it impossible for them to live in their current home”.
28. The Council says that households with two children aged under 10 can usually only bid on two-bed properties. But it may allow bidding on a larger property where someone needs an extra bedroom for medical reasons.
29. The Council says it uses medical assessments to decide the matters set out at paragraphs 27-28 above.

Chronology of key facts

30. Mrs D lives with her husband and two dependent children, the second of whom was born during the events covered by this complaint. Mrs D’s eldest child has a disability and special educational needs.
31. The family have lived in the same two-bedroom private rented accommodation for several years. Since 2015 Mrs D has also been on the Council’s housing register or waiting list.
32. In February 2023, Mrs D’s landlord served a Section 21 notice. Within a week Mrs D contacted the Council and completed an application asking for assistance as someone threatened with homelessness (‘a homeless application’). She sent supporting information to the Council in March. In April 2023, Mrs D told the Council she was pregnant and gave her due date.
33. At the end of April 2023, Mrs D met with a Housing Officer. The Officer spoke to Mrs D’s landlord who explained their reasons for wanting repossession. They agreed to delay taking further steps towards repossession for one month only. The Housing Officer drafted a letter to Mrs D saying the Council accepted it owed her the prevention duty. But the Council has no record it sent this to her.
34. Mrs D sent an email to the Housing Officer in May who promised to send her PHP. She did not receive this and sent a further email and information later that month. In early July, Mrs D complained at the Council’s response to her situation.
35. In mid-July 2023 the Council sent Mrs D the letter accepting the prevention duty and her PHP. At the same time Mrs D also received a letter saying the Council had put her on its housing register. Mrs D also received a reply to her complaint around this time. In this, the Council told her she could complete a medical information form in support of her housing application.
36. In October 2023 Mrs D told the Council her landlord had now taken the repossession case to Court. The Council recognised receiving this information, although it put no note on its housing records. Mrs D said she spoke to its Housing Officer who told her to wait until the Court heard the case, and if the landlord gained a repossession order to get back in touch. The Council told me it cannot comment on whether it gave this advice.
37. In November 2023 Mrs D sent the Council a completed medical information form. It provided details about her child’s disability. She also escalated her complaint. Mrs D complained the Council had not given a higher priority to her housing application as she had a local connection to the Borough and a disabled child.
38. The Council replied to Mrs D’s complaint in December 2023. It told her that it had given her housing application ‘reasonable preference’ status in April because she was threatened with homelessness. It had now backdated this to February 2023, as this is when she first contacted it following service of the Section 21 notice. The Council said it agreed Mrs D had a local connection to the Borough. It said it would process the medical information form in the next two weeks.
39. In February 2024 the Council wrote to Mrs D, saying it had awarded her housing application ‘reasonable preference’ priority because of her child’s needs. It said the family’s current housing was unsuitable for Mrs D’s eldest child and they needed their own room. Mrs D says despite this letter the Council did not update her record with this status when it came to bidding for properties through the allocation scheme.
40. In May 2024 an Early Support Worker (ESW), working with Mrs D, wrote to the Council to say that Mrs D could not bid for a three-bed property via its housing allocation policy. She explained Mrs D’s understanding she should be able to do this. I have not seen a reply to this email from the Council.
41. In June 2024 the Council closed Mrs D’s case to its homeless service. It said it wrote to Mrs D to say it understood she was no longer at risk of homelessness. Mrs D did not receive its letter.
42. At the end of June 2024, the Court gave Mrs D’s landlord a repossession order, including an award of costs against Mrs D for £355. Mrs D alerted the Council both directly and via her ESW to this development.
43. It was only then, in early July 2024, Mrs D learnt the Council had closed her case and no longer considered her at risk of homelessness. The Council agreed to re-open the case and by mid-July had assigned it to a new Housing Officer. They went on to issue Mrs D with another PHP and a letter saying the Council accepted it owed the relief duty to her.
44. In general comments the Council told me that it receives between 100 and 150 applications a week from households needing help because they are homeless or threatened with homelessness. It says since Mrs D first approached it for help it has changed procedure to ensure applicants receive earlier appointments with housing officers. It says it now assigns most cases to a housing officer within one working day.

My findings

Council’s approach to homelessness

45. Mrs D alerted the Council in February 2023 when first faced with the prospect of homelessness. The Council is not under a statutory duty to decide what duty (if any) it owes someone worried about their housing security within a set timescale. But I considered as a reasonable benchmark, the Council should ensure it has gathered initial information within the first month (or sooner in urgent cases). In this case it took it around two months to meet with Mrs D, take details of her circumstances and begin drafting a PHP. I recognise in Spring 2023 the Council struggled to meet the demand for its service. However, this did not mean the Council was not at fault for the delay.
46. It then took a further two and a half months for the Council to clarify its assessment of Mrs D’s case and send her its prevention duty letter and a copy of her PHP. Human error played a part here, as there is no alternative explanation for why it did not send these documents to Mrs D soon after her meeting with the Housing Officer. But whatever the cause, this further delay was another service failing and so merited a second finding of fault.
47. These delays caused Mrs D injustice. She faced the worry of losing her accommodation and uncertainty of what the future would hold. The Council’s lack of information could only compound that uncertainty and the resulting distress.
48. The Council was further at fault for what happened next. It should have kept Mrs D’s PHP under review, which it failed to do. It should also have considered if it remained reasonable for Mrs D to remain in her accommodation beyond the expiry of the Section 21 notice. There was no evidence it did either.
49. The Council then compounded this fault in October 2023. The Council lacked satisfactory records here. But it recognised that Mrs D told it of her landlord’s escalation of repossession action. It cannot show that in response it considered the impact this should have had on the service it provided to Mrs D. In other words, whether the relief or the full housing duty should now apply. That too was a fault.
50. Mrs D understood the Council would do nothing more on her homeless case, unless or until her landlord gained a possession order. She did not contact the Council again about her homeless case for a further nine months, when the Court gave that order. So, while the Council did not acknowledge giving that advice to Mrs D, I considered on balance it did so because Mrs D’s actions accorded with it doing so. This meant the Council’s fault also extended to giving Mrs D fundamentally wrong advice.
51. In addition, in February 2024 the Council decided that Mrs D’s home was unsuitable for her eldest child because of their disability. It did not record reasons for this decision but when Mrs D completed the medical information form, she said her child had no sense of risk or danger and the accommodation was overcrowded. The Council must have accepted this was the reason the property was unsuitable as it told Mrs D she could now bid for three-bed properties. So, this decision too, taken on its face, should have led the Council to consider if it remained reasonable for Mrs D to continue to occupy her home.
52. The injustice caused to Mrs D by the faults set out in paragraphs 48 to 51 was that she suffered further distress, facing more uncertainty over a twelve-month period. She did not receive the timely support the period of the relief duty should offer. And Mrs D became liable for the landlord’s costs of repossession which were otherwise avoidable.
53. After Mrs D’s landlord gained the repossession order the Council became involved again in her case. It provided her with some general guidance and set out alternatives for renting via the private sector in a new PHP. But at the point I issued this decision I was concerned to note the Council appeared to have not considered when it should have applied the relief duty from in this case, given the faults above. It had also failed to yet decide whether it owed the full duty to Mrs D. And it had yet to make any offer of interim / emergency accommodation or temporary accommodation.
54. All of this added to Mrs D’s uncertainty. And I assumed her landlord would be seeking a warrant for bailiffs to evict her, which would leave her liable to pay further costs.
55. The considerations in paragraphs 53 and 54 were relevant to deciding what action the Council should take to remedy Mrs D’s injustice, set out below.

Council’s approach to housing allocations

56. When the Council accepted it owed the prevention duty to Mrs D, it also increased the priority of her housing application on its housing register or waiting list. It gave Mrs D’s application ‘reasonable preference’ which I took to mean that she had Priority Homeseeker status in line with its housing allocation policy. The Council therefore accepted Mrs D’s local connection with the Borough and I had no evidence it did not consider that issue properly.
57. I considered the Council correct to backdate Mrs D’s Priority Homeseeker status to February 2023. I noted it was not until Mrs D complained the Council did this. While this increased Mrs D’s priority on the housing register, I did not consider the delay in changing priority date impacted her ability to bid successfully for a property. This was because of the overall demand the Council faces for properties through its allocation policy.
58. Later, in February 2024, the Council also said Mrs D’s application had reasonable preference or Priority Homeseeker status because of her child’s disability. Again, I could not fault this decision.
59. I noted the Council’s allocation policy does not afford any higher priority to those households who meet more than one of the ‘reasonable preference’ criteria. But that is a policy position Council can decide to take.
60. I also noted the Council awards some additional priority and may make a direct offer of accommodation to some households with urgent medical needs. But I did not fault the Council’s decision that Mrs D’s case did not meet this description. Mrs D’s current accommodation places extra challenges on her in meeting her eldest child’s needs. But there is nothing to suggest it is “impossible” for them to live there.
61. But there should still be a benefit to Mrs B in having the ‘reasonable preference’ status on health grounds. Because when it awarded this the Council also said that it recognised Mrs D needed an extra bedroom than would otherwise be the case. But in May 2024 Mrs D’s ESW said Mrs D could not see this reflected when she went to bid for properties. I cannot see they received an answer to their enquiry.
62. At the point I issued this decision I lacked evidence to say the Council had not properly updated Mrs D’s housing application following its decisions under the housing allocation policy. But given it had not answered the ESW’s email, I considered more clarity in this area needed. This is reflected in the ‘actions agreed’ below.

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Agreed action

63. The Council has accepted the findings set out above. It has agreed to remedy the injustice caused to Mrs D by its fault. Within 20 working days of a final decision on this complaint, it will:
1. provide a written apology to Mrs D in line with the Ombudsman’s published guidance on remedies (section 3.2) accepting the findings of this investigation;
2. make a symbolic payment to Mrs D of £500 (I set out the calculation for this award in paragraph 64);
3. make a further payment to Mrs D of £355 for the costs arising from the possession order. If applicable, it will also pay any further costs ordered by the Court for a warrant for Mrs D’s eviction should Mrs D make it aware of those within 20 working days of a Court order;
4. conduct an urgent review of Mrs D’s housing need. If it has not already done so, the Council will consider whether it owes the full duty to her and should make an offer of temporary accommodation;
5. conduct an urgent review of the status of Mrs D’s place on its housing register to ensure it has correctly recorded its decisions that she has Priority Homeseeker (reasonable preference) status; her bedroom entitlement and priority date. It will write to Mrs D to confirm this and her entitlement to bid for three bed properties under the CBL policy subject to their availability to those with her level of priority.
64. The symbolic payment agreed at paragraph 63b) reflects the distress caused to Mrs D in this case. I could not say that but for the Council’s fault Mrs D would have lived in more suitable housing for the past twelve months. Given the shortage of housing I consider it likely in the alternative Mrs D would have faced spending time in temporary accommodation, with an ongoing uncertainty about when she might have more stable, longer-term housing.
65. As well as providing a personal remedy to Mrs D, the Council has also agreed to make service improvements following her experience. Within two months of a final decision on this complaint, it will:
1. deliver a briefing to all housing caseworkers who assess homeless applications to reinforce advice in the homelessness code of guidance on what to do when an applicant is served with a Section 21 notice (i.e., the matters covered in paragraphs 17 to 22 above). This is to ensure the Council correctly assesses when its relief duty or full duty may apply;
2. if it does not have such a procedure in place at present, then it should introduce a procedure to ensure that it reviews all cases where the prevention duty applies on a regular basis so that it makes timely decisions on ending that duty and / or setting out where its further duties may arise. This is to avoid the drift which occurred in this case.
66. The Council will provide us with evidence when it has complied with the above actions.

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Final decision

67. For reasons set out above I uphold this complaint finding fault by the Council caused injustice to Mrs D. The Council agreed to take action that I considered would remedy that injustice. Consequently, I completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman