Summary: Mr X complained the Council failed to advise him of his right of review when it allocated him his current property and it has refused to allow him to join the housing register. The Council provided Mr X with information about his right of review and it was not at fault. There was no fault in the way the Council reached the decision not to accept Mr X on the housing register.

The complaint

1. Mr X complained the Council failed to advise him of his right of review when it allocated him his current property to discharge its homelessness duty. He also said the Council refused to allow him to join the housing register because he had rent arrears when his rent arrears were paid off by social services. He says his current property is overcrowded and in disrepair.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. If we are satisfied with a council’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 have considered the information provided by Mr X. I have considered the Council’s response to my enquiries and the relevant law and guidance.
7. I gave Mr X and the Council the opportunity to comment on a draft of this decision and I considered the comments I received before reaching a final decision.

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What I found

Relevant law and guidance

8. If homelessness is not successfully prevented or relieved, a housing authority will owe the main housing duty (s193(2) of the Act) to applicants who are eligible, have a priority need for accommodation and are not homeless intentionally.
9. The law says the main housing duty may end in certain circumstances such as when an applicant accepts an offer of a tenancy made under the allocations scheme. There is a right of review of the decision to end the main housing duty and of the suitability of any offer of accommodation made through the housing allocations scheme to end the main housing duty.
10. 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))
11. Councils must notify applicants in writing of the following decisions and give reasons:
• that the applicant is not eligible for an allocation;
• that the applicant is not a qualifying person;
• a decision not to award the applicant reasonable preference because of their unacceptable behaviour.
12. The Council must also notify the applicant of the right to request a review of these decisions. (Housing Act 1996, section 166A(9))

The Council’s housing allocations scheme

13. The Council operates a housing allocation scheme in partnership with Settle (formerly North Hertfordshire Homes). This sets out who can apply for housing and how social housing is allocated within the district. It operates a choice-based lettings scheme where applicants accepted on to the common housing register can actively bid on available properties.
14. The scheme sets out the conditions for acceptance on the common housing register. It sets out that applicants with housing debt accrued in their current tenancy will not qualify to join the common housing register unless there are exceptional circumstances. Applicants who do not qualify for an allocation will be informed of the decision and the reasons for it in writing. Such applicants have a right to request a review of the decision.
15. Where there are exceptional circumstances, senior officers of the partnership have the delegated discretion to make decisions on whether an applicant qualifies for inclusion on the common housing register, the level of preference, if any, to be awarded to an applicant, and whether an offer of housing should be made.
16. The Ombudsman may not find fault with a council’s assessment of a housing application if it has carried this out in line with its published allocations scheme.

What happened

17. In 2016 Mr X made a homeless application to the Council. The Council placed him and his child in temporary accommodation. Later that year the Council accepted it owed Mr X a housing duty and he was accepted on the common housing register.
18. In April 2017 Mr X’s child left the household. In May 2017 Mr X was allocated his current one-bedroom property. Settle is the property landlord. The Council wrote to Mr X setting out his right of review of the suitability of the property and of its decision to end its homelessness duty.
19. In December 2017 Mr X’s child returned to live with him. In January 2018 Mr X applied to join the common housing register.
20. In April 2018, the Council refused Mr X’s application to join the housing register. It wrote to Mr X setting out this was because Mr X had not supplied the documents requested and he had failed to bring his rent account up to date. It set out Mr X’s right of review of this decision. I have seen no evidence Mr X requested a review.
21. In June 2018 Settle emailed Mr X in relation concerns he raised about repairs and because he was unable to bid on a property. Regarding bidding the email said ‘your applications are unable to be processed while there are rent arrears showing on your account. Once the arrears are cleared and the account kept up to date please contact us and we can discuss you bidding on properties’.
22. In a further email in September 2018 Settle explained Mr X’s weekly rent was £106.70. He received £87.34 housing benefit leaving him to pay £19.36 a week. His failure to pay this had led to a build up of arrears. It said ‘Children’s Services paid £586.93 for you on 29th August however your arrears at that time were £670.47 leaving a balance of £83.54. As we now have 2 further weeks, your current balance as long as you receive the same housing benefit is £122.26. If you clear this amount this week we will be able to make your housing application live for you to start [bidding]’.
23. In November 2018 Mr X’s child moved out of the property.
24. In October 2019 Mr X applied again to join the common housing register. At this time another of his children was living with him. Settle, as partner in the housing allocations scheme, refused the application because Mr X had rent arrears of around £400. The letter set out that if Mr X cleared his housing debts he could reapply to join the common housing register.
25. In December 2019 Mr X requested a review of this decision. The Council says an officer visited Mr X later that month to assess his housing situation. They advised Mr X to provide medical information so it could fully consider whether to exercise it discretion due to exceptional circumstances.
26. In February 2020 the Council reviewed the medical information but decided Mr X’s circumstances were not exceptional. It wrote to Mr X acknowledging he had difficulties accessing the property due to his medical concerns, but the information did not show any exceptional circumstances for discretion to be awarded to join the register. It advised Mr X he needed to clear the outstanding arrears on his account to join the register.
27. In May 2020 Mr X complained to the Council about the allocation of his current property and the refusal to let him join the housing register due to rent arrears. Mr X said this decision was related to his ethnicity. The Council replied in June 2020. It said the property was allocated in line with its housing allocations scheme. Mr X had a right to review when the property was allocated but he did not use it. It said it could not fully comment on the refusal to allow him to bid on properties due to rent arrears because the application was dealt with by Settle. However, applicants with housing debts accrued in their current tenancy would not qualify to join the housing register. It explained Mr X was allocated his property as it matched his medical need.
28. Mr X remained unhappy. The Council considered his complaint at the next stage of its complaints procedure. It responded to Mr X in July 2020. It explained the property was correctly allocated and he was advised of his review right at that time. Mr X remained unhappy and complained to us.

Findings

Events before 2018

29. Mr X applied to the Council as homeless in 2016. So the restriction set out in paragraph 3 applies. When deciding whether to investigate a late complaint we consider two tests, regardless of the seriousness of the allegations or the claimed injustice. These are:
• are we confident that there is a realistic prospect of reaching a sound, fair and meaningful decision, and
• are we satisfied that the complainant could not be reasonably expected to have complained sooner.
30. The Council has provided a copy of its letter to Mr X of May 2017 which sets out his right of review of the suitability of the accommodation he was offered. It was open to Mr X to use his review rights at the time and he did not do so. Mr X says he did not receive this letter. The Council has provided system notes which show the letter was produced at that time and an email trail in which an officer agreed to hand deliver the letter to Mr X. On the balance of probabilities, I therefore consider it likely the letter was delivered to Mr X. The Council was not at fault.
31. In any case, given the passage of time, I do not intend to investigate this issue further. It was open to Mr X to complain to us at the time if he was unhappy with the way the Council dealt with his homelessness application and housing application.

Application to Join the Housing register in 2018

32. The restriction set out at paragraph 3 also applied to Mr X’s application to join the register in 2018. The Council has provided a copy of a letter it sent to Mr X setting out its reasons for refusing his application. The Council explained at the time that Mr X had rent arrears and the Council’s policy allowed it to exclude applicants from the housing register if they had rent arrears. The Council applied its policy and there is no evidence of fault in the way it did this. The letter informing Mr X of the Council’s decision not to accept him on the housing register set out his right of review. There is no evidence Mr X used this right.
33. Mr X provided evidence to show that social services made a payment towards his rent arrears in August 2018. He says this was with a view to allowing him to bid for properties. However, the payment was not sufficient to clear the debt and over the next few weeks Mr X continued to accrue arrears. The Council wrote to Mr X setting out the action he needed to take and the payments he needed to make to clear his arrears and to allow him to join the housing register. The Council says Mr X was consistently in arrears. On that basis, the Council was not at fault for not allowing him to join the housing register at that time.
34. In any case, given the passage of time, there is no worthwhile outcome I could achieve by further investigating what happened in 2018. This is because Mr X’s housing circumstances changed when his child moved out later that year and Mr X has since applied again to join the housing register.

Application to join the housing register in 2019

35. Mr X applied again to join the housing register in October 2019. At this time another of his children was living with him. The Council considered Mr X’s application but refused it as he continued to have rent arrears. The decision to refuse his application was in line with the housing allocation scheme and was not fault. It reviewed its decision but did not consider there were exceptional circumstances for it to include Mr X on the housing allocations scheme.
36. It is for the Council to decide whether or not to apply its discretion. In carrying out the review it considered medical information from Mr X and also carried out a visit. The Council recognised Mr X had a housing need but considered it was not so exceptional for it exercise discretion from its housing policy. There was no fault in the process followed by the Council. Mr X considers the Council’s decision was affected by his ethnicity. There is no evidence to support this assertion.

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Final decision

37. I have completed my investigation as there was no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman