Summary: Miss Y complained the Council was using an incorrect date to determine her priority on its housing register when bidding for properties. We have found fault by the Council in failing to properly consider the consequence on Miss Y’s priority date, of its review decision overturning the original decision about its housing duty to her. The fault caused injustice. The Council has agreed to remedy this by apologising, backdating Miss Y’s priority date to the date it should have accepted the duty, adding her to its direct offers list, making a payment to reflect the distress caused and a service improvement.

The complaint

1. I am calling the complainant, Miss Y. Her representative, who I am calling Mr X, complains on Miss Y’s behalf, the Council is using an incorrect date to determine her priority on its housing register. Mr X says:

• The Council recorded two dates on Miss Y’s housing register application. The first is a “registration date” of 4 February 2015, the date of Miss Y’s homelessness application. The second is an “effective date” of 13 July 2016, the date the Council accepted it owed Miss Y the main housing duty under the Housing Act 1996;
• The Council has wrongly used the date of 13 July 2016 to determine Miss Y’s priority for the properties she bids for;
• It should be using the registration date of 4 February 2015 to determine her priority. Otherwise, Miss Y (or any other applicant in the same situation) is prejudiced by the Council’s delay in deciding it owes an applicant the main housing duty, or failure to make this decision properly; and
• By wrongly using the later date, the Council has adversely affected Miss Y’s opportunity to bid successfully for permanent social housing.

2. Mr X has asked the Council to remove the effective date of 13 July 2016 from Miss Y’s housing register application and use the earlier date of 4 February 2015 to determine her priority for properties on which she bids.

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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.
4. 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).
5. 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)
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. I spoke to Mr X, read the complaint and the Council’s response to our enquiries, together with all the other information Mr X and the Council provided about the complaint.
8. I invited Mr X, Miss Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Councils’ powers and duties to people who are homeless

9. Councils’ powers and duties to people who are homeless or threatened with homelessness are set out in Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities.
10. Some parts of these duties changed in 2018 following the Homelessness Reduction Act 2017.

The main housing duty: pre-3 April 2018

11. If a council was satisfied an applicant was unintentionally homeless, eligible for assistance, and had a priority need, it had a duty to secure that accommodation was available for their occupation (the main housing duty - Housing Act 1996, section 193)
12. The Homelessness Code of Guidance recommended that councils aim to complete their inquiries within 33 working days.

Review rights and procedure: pre-3 April 2018

13. Homeless applicants could request a review within 21 days of being notified of the decision on their homelessness application.
14. The reviewing officer had to consider the whole application afresh and could take account of any new material or facts that had come to light since the original decision. (Allocation of Housing and Homelessness (Review Procedures) Regulations 1999)
15. Councils had to complete the review within eight weeks of receiving the review request. This period could be extended but only if the applicant agreed in writing.
16. If the applicant wished to challenge the review decision, or if a council took more than eight weeks to complete the review, the applicant could appeal on a point of law to the County Court (Housing Act 1996, sections 202 and 204)

Housing allocation schemes

17. 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 (Section 166A of the Housing Act 1996).
18. Councils must give reasonable preference to all people who are homeless within the meaning of Part 7 of the 1996 Act. This includes those who are intentionally homeless or not in priority need (S166A(3) of the Housing Act 1996).

The Council’s published scheme

19. The Council’s allocations scheme gives priority to applicants by placing them in bands from 1 (highest priority) to 4 (lowest priority).
20. Applicants for whom it accepts the main housing duty are placed in Band 3.
21. All applicants who are homeless but to whom it does not owe the main housing duty under Part 7 of the Housing Act 1996 are placed in Band 4.
22. Bidding priority within bands is determined by the date on which the applicant was placed in that band.

What happened

23. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Complaint background: 2015 and 2016: Miss Y’s homelessness application

24. Miss Y made a homelessness application to the Council on 4 February 2015.
25. In April the Council decided it did not owe Miss Y the main housing duty because she was intentionally homeless. Miss Y asked for a review of this decision.
26. The Council completed its review in June. It upheld the decision it did not owe Miss Y the main duty.
27. Miss Y appealed to court against the review decision. In December the court quashed the review decision. The Council began a fresh review of its original decision.
28. The Council completed the further review on 13 July 2016. It decided it owed Miss Y the main housing duty. It provided her with temporary accommodation and placed her in Band 3 with a priority date of 13 July 2016.

2016 to 2022: Miss Y does not bid for properties during this period

29. Miss Y moved to new temporary accommodation provided by the Council outside the borough because of safety concerns.
30. Miss Y remained in Band 3 on the Council’s housing register during this period but did not bid for properties because of continuing safety concerns.

2022: Mr X contacts the Council about Miss Y’s bidding priority

31. Mr X told the Council in March 2022:

• Safety issues had been reviewed with Miss Y. She considered she could now start bidding for properties in some areas of the borough; and
• He queried the registration and effective dates recorded on Miss Y’s housing application. He said the effective date for Miss Y’s bidding priority should be 4 February 2015, the date of her homelessness application.

32. In response the Council said 13 July 2016 was the correct effective date for Miss Y’s bidding priority, because this was when it accepted it owed her the main housing duty and placed her in Band 3.
33. Mr X and Miss Y didn’t agree with this and brought the complaint to us.

My view – was there fault by the Council causing injustice?

34. Under the Council’s allocations scheme, it should initially have placed Miss Y in Band 4 with an effective date of 4 February 2015 (the date of her homelessness application). At this stage Miss Y was homeless but the Council had not yet decided whether it owed her the main duty.
35. Once it accepted it owed her the main housing duty, it should have moved her to Band 3. It should also have changed the effective date to the date Miss Y should have been placed in Band 3.
36. I consider it was fault by the Council to record Miss Y’s effective date in Band 3 as 13 July 2016. Although this was the date it actually accepted it owed Miss Y the main housing duty, the Council failed to consider the consequence of overturning its original decision. Which was that it should have accepted the main duty in April 2015.
37. And had the Council completed its inquiries within 33 days of Miss Y’s application on 4 February 2015, as recommended by The Homelessness Code of Guidance, it should have accepted it owed her the main duty by 9 March 2015.

Impact of the Council’s fault

38. Because of this fault, Miss Y’s priority date in Band 3 is wrongly recorded as 13 July 2016, when in my view, it should have been backdated to 9 March 2015; the date on which the Council should have accepted it owed her the main duty.
39. This means Miss Y was disadvantaged when she started bidding for suitable properties in early 2022 because her priority for these properties was determined by an incorrect date.
40. The Council has told us that, had Miss Y’s effective date in band 3 been recorded as 9 March 2015, she would have been in first place for one of the bids she made since 2022. It says this does not mean it would have allocated this property to Miss Y and she would still have had to view it and accept an offer.
41. The information provided by the Council shows Miss Y lost the opportunity to make a successful bid for a property she expressed an interest in, because her priority had not been backdated to 9 March 2015.
42. I also consider the uncertainty about her correct priority date, and worry she was missing opportunities to make a successful bid because of the later date, in the period from early 2022 to date, has caused Miss Y considerable distress, particularly in view of her anxiety and need to live in settled permanent accommodation.

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Agreed action

43. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Miss Y for wrongly recording her Band 3 priority date. 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 I have recommended;
2. backdate Miss Y’s band 3 priority date to 9 March 2015;
3. pay Miss Y £500 to reflect the distress and worry caused by the uncertainty about her priority date. This is a symbolic amount based on our guidance on remedies; and
4. add Miss Y to its direct offers list on the basis:

• she is allowed to continue bidding; and
• the Council agrees suitability criteria with her, including location, access and mobility issues.

44. And within three months from the date of our final decision, the Council has agreed to:
1. review its guidance to officers about the effective date recorded when an applicant is moved to a new priority band following a review decision; and
2. make any changes needed to the guidance to reflect the findings in this decision.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I have completed my investigation and found fault by the Council, causing injustice. The Council has agreed to take the above action as a suitable way to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman