Summary: Mr X complained about a lack of support from the Council with his homelessness, causing him distress. The Council was at fault for not properly communicating with him about COVID-19 vaccination programme. It has already apologised for the distress caused, which is an appropriate remedy. It was also at fault for providing inconsistent information about the powers under which it offered interim accommodation but this did not cause Mr X an injustice. It was not at fault for offering interim accommodation outside its area.

The complaint

1. Mr X complained about a lack of support from the Council after he asked for assistance when he became homeless, including:
1. a specific incident in which he felt pressured to have a COVID-19 vaccination;
2. the Council given him incorrect information about interim accommodation it offered him; and
3. a general failure to take reasonable steps to relieve his homelessness.
2. Mr X said the Council’s fault caused him distress.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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

7. I considered:
• the information provided by Mr X and the Council;
• relevant law and guidance, as set out below; and
• our guidance on remedies.
8. Mr X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

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. Under section 184 of the 1996 Act, if a council has reason to believe a person applying to the authority for accommodation or assistance in obtaining accommodation may be homeless or threatened with homelessness, it must make such inquiries as are necessary to satisfy itself whether the applicant is eligible for assistance.
11. Where a council is satisfied a person is homeless and eligible for support, it has a duty to take reasonable steps to help the person secure accommodation that will be available for at least six months. This is the relief duty.
12. Councils should work with applicants to identify practical and reasonable steps for the council and the applicant to take to help the applicant secure suitable accommodation. These steps should be tailored to the applicant’s situation and provided to the applicant, in writing, in a personalised housing plan (PHP). (Homelessness Code of Guidance, paragraph 11.18).
13. When a housing authority has completed its enquiries under s.184 it must notify the applicant in writing of its decision on the case. Where the decision is against the applicant’s interests, for example, it decided they are not in priority need or they are homeless intentionally, the notification must explain clearly and fully the reasons for the decision. It must also set out their right to ask for a review of the decision.
14. If the council has reason to believe the applicant may be homeless, eligible for assistance, and in priority need, the council will have an immediate duty under section 188 to ensure suitable accommodation is available for them whilst it makes the enquiries described above. “Having reason to believe” the person “may be” in priority need is an easier test to pass than “being satisfied” they are in priority need.
15. Examples of applicants in priority need are:
• people with dependent children;
• pregnant women; and
• people who are vulnerable due to serious health problems, disability or old age.
16. Relevant to this case, the section 188 duty to provide interim accommodation may end when:
• the applicant has refused an offer of suitable accommodation; or
• the applicant acts in a wholly unreasonable manner for a period of time, for example, by breaking the rules of occupation for the interim accommodation.
• the relief duty ends because the council has notified the applicant that it has decided they are not in priority need.
17. The court found the failure to use bed and breakfast accommodation offered because the applicant could not afford the fare to travel to it, did not amount to a persistent or unequivocal refusal to accept rules and the accommodation should not have been ended. (R (Carstens) v Basildon DC [2007] EWHC 122 (Admin))

Severe weather emergency protocol (SWEP)

18. Every year Homeless Link publishes a guide to support councils and their partner agencies to provide appropriate responses for people sleeping rough during severe weather, especially in the winter months. Guidance was issued in November 2020, taking into account the impact of the COVID-19 pandemic. SWEP operates outside the usual eligibility frameworks that govern access to housing assistance and should therefore be available to those who may otherwise be excluded from services. Any accommodation provided under SWEP would end on 31 March 2021.

What happened

19. Mr X approached the Council for assistance on 12 March 2021. He had an initial conversation with an officer and they completed an income and expenses form by telephone. Mr X said he was the victim of a violent assault, following which he was asked to leave the family home. The Council accepted a relief duty because it was satisfied he was homeless and eligible for assistance. It sent a letter confirming it accepted the relief duty on 18 March 2021.
20. Also in the initial call, the officer completed a personalised housing plan (PHP), which it sent to Mr X with its letter on 18 March 2021. The PHP stated Mr X needed a one bedroom property. It noted he was not in priority need and there were no specific parts of the Council area where he would not be safe.
21. The PHP stated he needed help with:
• finding a tenancy (either housing association or private tenancy);
• a deposit and any rent in advance payment;
• goods to furnish a property; and
• assistance in claiming benefits to help pay his rent.
22. The PHP stated the Council would:
• refer Mr X to the team working with rough sleepers for verification;
• refer to a local charity for affordable alternative accommodation;
• contact the police to confirm Mr X was not at risk in its area; and
• contact Mr X’s mother to check he could not return there.
23. The PHP stated Mr X would:
• provide the outstanding documents it asked for.
24. Although the Council appears to have decided at the initial contact that Mr X was not in priority need, it did arrange interim accommodation for him at hotel 1. It later said it provided this accommodation under the SWET protocol. In response to my enquiries, the Council confirmed the accommodation was provided under the SWET protocol but did not explain why it was provided using this power rather than under section 188 of the Housing Act.
25. Whilst he was living in hotel 1, Mr X said the hotel reception told him a Council officer wanted to see him. Mr X said he was then approached by four health professionals, who wanted him to have the COVID-19 vaccination. Mr X declined the vaccination. He told the Council he felt ambushed, and this had a negative impact on his wellbeing.
26. In its complaint response, the Council said:
• it was required by Government to share information with the NHS so that the homeless, including those in interim accommodation, were prioritised for the COVID-19 vaccination;
• apart from sharing information with the NHS, the Council was not involved in the vaccination programme;
• the hotel receptionist did not tell the NHS that Mr X had agreed to have the vaccination but simply referred health professionals to all rooms in hotel 1 where the Council had placed people; and
• it recognised vaccination was optional and it respected Mr X’s choice to refuse.
27. Also, in the complaint response, the Council apologised for not writing to Mr X to provide appropriate information about the vaccination programme, including reassurance that vaccination was not compulsory.
28. Council records show it made a referral to a local charity for it to provide Mr X with supported accommodation. However, Mr X said he did not want to stay there as he didn’t feel safe in the area where the accommodation was located and the referral was withdrawn.
29. Council records also show it contacted the police, but the police were not able to confirm whether Mr X was at risk in the vicinity of his former home. This was because they did not attend the incident and did not have sufficient information to carry out a risk assessment.
30. On 17 March 2021, the Council offered Mr X alternative interim accommodation at hotel 2 in another council area. The Council wrote to Mr X to provide information about this. The letter said:
• the accommodation was in a hotel but also said it was not furnished;
• the rent was £106.12 and the service charge £11.19 per week;
• Mr X may be eligible for housing benefit to cover some or all of the rent. He should complete a housing benefit form and provide all the information needed to process the application within 24 hours;
• it explained why it considered the accommodation was suitable and strongly advised Mr X not to refuse it as the consequences of refusing “are very significant resulting in no further duty being owed to you to make sure you have temporary accommodation”.
31. Mr X initially accepted this offer. However, later on the same day, Mr X emailed the Council to say he could not accept it as he could not afford the housing costs and could not move his bed to the new accommodation. Although it was out of hours, an officer responded the same day to:
• explain the accommodation was being offered because Mr X had said he was not safe in its area and he had accepted it;
• confirm the accommodation was furnished so Mr X would not need to provide a bed;
• confirm the accommodation would only be available until the end of March when the SWEP ended;
• explain Mr X needed to apply for housing benefit via the Council’s website to cover the hotel costs as this would not be covered by Universal Credit, which Mr X had already applied for.
32. The officer telephoned Mr X the following morning to explain about the costs. Mr X said he did not want accommodation in the other council area. He also confirmed he want to be accommodated by the local charity the Council has referred him to. He said the Council was not helping him and he wanted to complain. Following the call, the officer cancelled the alternative accommodation.
33. On 22 March, the Council wrote to Mr X to say it had ended its duty to provide interim accommodation because he had refused an offer of suitable temporary accommodation. It said it was satisfied the accommodation was suitable because:
• it was immediately available and was held open until 9 a.m. the following day;
• was arrange in a location outside the Council’s area because Mr X had told it he did not feel safe in the Council’s area;
• the offer had been accepted initially and would have been affordable if Mr X had taken the Council’s advice to apply to its benefits team or its welfare team for financial support.
34. It also said:
• it was satisfied Mr X was “fully aware that the consequences of refusing the offer would be that the duty we owed you would end”; and
• it asked Mr X to let it know where he would be staying so it could keep him informed about progress regarding his application and any actions to help him find somewhere else to live.
35. In the meantime, on 19 March 2021, Mrs X made a formal complaint. He complained about the incident when health professionals approached him about a COVID-19 vaccination. He also said the Council had not helped him with his homelessness and did not believe he was at risk, despite him providing a police incident number. The Council sent a detailed response on 16 April, setting out the steps it had taken to assist him, and explaining it had offered accommodation at hotel 2 in response to him saying he did not feel safe in its area. It also explained it had offered advice about how to get support with his housing costs. It explained it had shared information with the NHS for the COVID-19 vaccination programme, as set out at paragraph 26 above.
36. Mr X was unhappy with the Council’s response. He repeated his concerns about the incident at hotel 1 and said he could not accept the accommodation at hotel 2 because he did not have the funds to get there. On 4 May 2021, the Council wrote to say it declined to investigate further and signposted him to us.
37. The relief duty was owed for a period of 56 days, which ended on 6 May 2021. On that day, the Council wrote to Mr X to say it was satisfied he was not in priority need. It set out its reasons for concluding this in detail in the letter. It explained his right to ask for a review of the decision if he disagreed with it and provided contact information for two charities that he could approach for assistance.
38. Mr X told me that he was not able to find alternative accommodation after refusing the accommodation at hotel 2 and had returned to the family home.

My findings

39. When Mr X asked the Council for assistance, it accepted a relief duty and confirmed this in writing. It issued a PHP and provided an information pack with advice about looking for housing.
40. The Council considered Mr X may be in priority need and offered him accommodation at hotel 1. Its letter offering this accommodation indicated it was offered under section 188 of the Housing Act and in its response to my enquiries the Council confirmed this was the case. However, other communications from the Council said it had offered the accommodation under SWET. It is unclear why the Council referred to SWET since weather records for March 2021 do not suggest sub-zero weather at that time that would trigger the protocol.
41. It is important the Council is clear about the basis for providing accommodation as this affects the way the accommodation can be ended and the information it should provide to applicants. Broadly, accommodation is provided under the SWET protocol in specific weather conditions and ends when the weather improves. However, interim accommodation provided under section 188 only ends in specific circumstances, such as when the relief duty ends because the Council decides the applicant is not in priority need.
42. The failure to be clear about the basis for providing the accommodation was fault. However, the confusing references to both SWET and section 188 did not cause any injustice to Mr X in this case. This is because the accommodation ended because Mr X decided not to accept the alternative accommodation at hotel 2, which was not affected by which power the accommodation was offered under.
43. Whilst Mr X was at hotel 1, the Council shared information with the NHS so the NHS could offer a COVID-19 vaccination to all those it was providing temporary accommodation for. This was in line with Government advice and was not fault. However, the Council accepted it should have written to Mr X about the vaccination programme, rather than simply displaying posters about this. The failure to communicate properly with Mr X was fault. The Council has apologised, which is an appropriate remedy for the distress caused.
44. When Mr X said he did not feel safe in the Council’s area, it identified alternative accommodation at hotel 2, which was in a nearby town. Its letter offering the accommodation explained the consequences of refusing and strongly advised him to accept it but then ask for a review of its suitability if he had concerns. Mr X initially accepted the accommodation but later in the day refused it.
45. Although there was some initial confusion about whether the accommodation was furnished, this was clarified the same day. The Council also offered some initial information about support with housing costs and suggested he contact them for more detailed advice the next day. There is no record the Council checked how Mr X would travel to hotel 2 or whether he had the funds to do so, but equally Mr X did not raise concerns about that on the day the accommodation was offered. On balance, I do not find fault with the offer of accommodation at hotel 2.
46. Two days after refusing the accommodation at hotel 2, Mr X made a formal complaint. He complained about the incident with health professionals and queried why the Council had not accepted he was at risk, given he had provided an incident number. The Council provided a full response to his complaint at stage 1 and 2 of its complaints process.
47. Later, the Council had completed its enquiries and decided Mr X was not in priority need. It wrote to him explaining its reasons and formally ending the relief duty on 6 May 2021. The letter provided appropriate information about Mr X’s right to ask for a review of that decision. He did not do so. It was reasonable for him to ask for a review of this decision if he disagreed with it.

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Agreed action

48. The Council will, within one month of the date of the final decision, remind relevant staff of the need to be clear about the basis for offering interim accommodation both in the Council’s records and in its communications with service users.

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Final decision

49. I have completed my investigation. I have found fault and have recommended action to prevent recurrence of the confusing information about the basis for providing interim accommodation, which the Council agreed to. The Council had already remedied the personal injustice caused by the lack of information about the COVID-19 vaccination programme.

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Investigator's decision on behalf of the Ombudsman