Summary: Mr Y complained about the Council’s lack of assistance with his homelessness. The Council was at fault for a failure to progress the homelessness case and issue appropriate decision letters between August 2020 and February 2021. The Council also failed to make proper enquiries about Mr Y’s caring responsibilities in that period but this did not affect the outcome. The Council said it would apologise and pay Mr Y £750 to remedy the frustration and uncertainty caused, which is an appropriate remedy.

The complaint

1. Miss X complained, on behalf of her former partner, Mr Y, about the Council’s handling of Mr Y’s homelessness case from September 2020 onwards. In particular that the Council:
1. failed to properly consider Mr Y’s caring responsibilities for their disabled son, Z, when assessing his housing needs and when considering whether accommodation it offered to him was suitable.
2. failed to engage with Mr Y or communicate properly with him when carrying out its homelessness duties.
3. delayed in responding to Mr Y’s complaint in October 2020 and his follow-up query in December 2020.
4. failed to respond to a request by Miss X for emergency housing for Mr Y and Z when she contracted COVID-19 in January 2021.
2. Miss X said the Council’s failings caused significant distress to Mr Y, Z and herself, and the lack of support means they are having to consider residential accommodation for Z.
3. Miss X also says that, as a result of the failure to provide emergency accommodation in January 2021, Mr Y was forced to move into her father’s property with Z, which led to her father contracting COVID-19 from which he died.

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The Ombudsman’s role and powers

4. 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)
5. 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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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)
7. Miss X complained to us in January 2022 about events from August 2020, after receiving the Council’s final complaint response in September 2021. Ms X explained the delay in complaining to us was due to having to deal with her son’s complex health issues and to confusion over the consent needed to bring the complaint on Mr Y’s behalf. I have exercised discretion to consider the period from August 2020. I am satisfied the Council’s records are sufficient to enable me to make robust findings and achieve a worthwhile outcome.
8. 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)
9. In this case, the Council accepts it did not send appropriate decision letters with information about Mr Y’s right to a review and appeal in the period to February 2021. Therefore, it was not reasonable to expect him to have exercised those rights, so I have exercised discretion to consider those parts of the complaint.
10. 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

11. I considered:
• the information Miss X provided and talked to her about her complaint;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our website.
12. Miss X 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

Relevant law and guidance

Homelessness

13. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities (the Code) set out councils’ powers and duties to people who are homeless or threatened with homelessness.
14. Where a council has reason to believe the person is homeless and eligible for assistance, it will owe them a relief duty for 56 days. Under the relief duty the council should make enquiries to determine what housing duties it owes them and should prepare a personalised housing plan (PHP) which sets out the steps the person and the council should take to relieve their homelessness.
15. Where the person may be homeless, eligible for assistance, and in priority need, the council has an immediate duty under section 188 of the Housing Act 1996 to provide interim accommodation. Examples of priority need are those with dependent children and those who are vulnerable, for example, due to ill health. Interim accommodation must be suitable for them and for anyone who can reasonably be expected to live with them.
16. Where, after making enquiries during the relief stage, the council is satisfied the person is homeless, eligible for assistance, in priority need and not intentionally homeless, it will owe them a main housing duty. This is a duty to secure suitable accommodation for them, which may be social housing or private rented accommodation that is expected to be available for at least 12 months. The council has a duty to provide temporary accommodation in the meantime.

Child in need

17. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
18. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

19. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.
20. Section 17(6) of the Children Act 1989 gives councils a power (but not a duty) to provide accommodation for children in need in its area. Section 20 also gives councils the power to provide accommodation for children where the person who has been caring for them is not able to do so. Councils would not usually provide accommodation for families using these powers unless no duties are owed to them under the Housing Act 1996.

Carer’s allowance

21. A person may be eligible for carer’s allowance if they care for someone for at least 35 hours per week and the person cared for receives certain benefits. If more than one person cares for them, only one of them can claim carer’s allowance.

What happened

22. Miss X and Mr Y have separated but remain on good terms. They have a child together, Z, who has a complex medical condition and is supported with a child in need plan.

First homelessness application – August 2020

23. Mr Y first approached the Council for assistance on 5 August 2020. In his application he said he was sofa surfing, but his disabled son was coming to live with him, and he needed a place of his own as soon as possible.
24. Council records indicate Z’s social worker, officer 1, provided a letter of support. The letter set out Z’s complex needs and said:

“It is my understanding [Mr Y] currently has no suitable accommodation whereby he could care for [Z] on his own it is my view that priority should be given to [Mr Y] to be able to access appropriate housing to care for [Z]”

The letter does not explain what care Mr Y proposed providing for Z, but it does invite the housing team to contact officer 1 if they need further information.

25. Miss X said that in September 2020, due Z’s increasing needs, they agreed that Mr Y would care for Z 50% of the time, to give Miss X some respite from her caring responsibilities. She said Children’s social care (CSC) supported this decision.
26. The Council carried out a housing assessment and informed Mr Y on 10 December 2020 that, as a single man under age 35, it could assist him with a private tenancy in a house in multiple occupation (HMO).
27. It subsequently offered Mr Y accommodation in a shared house, property 1. Mr Y viewed property 1 but the offer was withdrawn after a week as Mr Y did not respond to requests to sign a tenancy. The Council offered accommodation at property 2, which it considered was suitable for Mr Y, but Mr Y refused this. Since Mr Y had refused a suitable offer, the Council ended its duty to assist him.
28. In response to my enquiries, the Council said it accepted a prevention duty in December 2020 on the basis that Mr Y was sofa surfing but was mainly staying in one place. It accepted:
• it failed to issue a decision letter or a personalised housing plan (PHP) or information about review/appeal rights;
• it failed send Mr Y a letter warning him that it could end its duty if he refused a reasonable offer;
• it inappropriately closed the case on 8 February 2021 on the basis of that refusal and failed to send Mr Y a letter ending its duty, with review rights.

The Council offered to apologise and pay Mr Y £750 to remedy the injustice caused by its failings in the period August 2020 to February 2021.

Complaint

29. Mr Y complained in October 2020 that he had sought assistance three months previously but had not had any contact from the Council. He did not use the complaints portal as he said it was not working and his email, which was recorded as being received on 16 October 2020, was treated as an enquiry. The Council asked for further information in mid-November and responded to the enquiry on 25 November to confirm there was no evidence Z was living with Mr Y.
30. Mr Y asked the Council to escalate the complaint on 10 December. He said the Council had:
• not properly assessed his situation: Z was living with him under a shared parenting agreement;
• not communicated in a timely way as it had not responded to his complaint of 5 October 2020 until 17 November, which was more than the 10 working days in its complaints policy;
• not complied with its duty to support a disabled child and had discriminated against that child on the basis of his disability; and
• failed to make reasonable adjustments under the Equality Act.
31. The Council asked for further information, following which the housing officer sent an email setting out their assessment of his housing situation. The Council sent a formal response to the enquiry on 18 January 2021, which confirmed the housing officer would speak to Mr Y to resolve any outstanding issues.

January 2021 – request for emergency accommodation

32. In early January 2021, Miss X became unwell with COVID-19. She asked the Council for emergency accommodation for Mr Y and Z. In response to my enquiries, the Council said CSC approached a setting it usually used for children with medical needs, but they did not have space for Z. Therefore, it offered to arrange hotel or bed and breakfast accommodation for Mr Y and Z. The family refused this because it said bed and breakfast accommodation was not suitable for Z due to his medical needs.
33. In her complaint, Miss X said Mr Y made a further homelessness application. The Council has no record of this, although the initial application was still open at that point.
34. Miss X says that, as a result of the Council’s failure to provide support, Mr Y and Z had to stay with her father, Mr F, at property 3. Miss X believes Z transmitted COVID-19 to Mr F, who sadly died in January 2021.
35. The Council said it was not aware Mr Y and Z were staying with Mr F until March 2021 when Mr Y made a further homelessness application.

Second homelessness application – March 2021

36. Mr Y explored whether he could succeed to Mr F’s tenancy at property 3 but he did not meet the criteria. The landlord gave him notice to leave property 3 by mid April 2021 so Mr Y made a further homelessness application in March 2021.
37. Miss X said the housing team told her it had discussed the case with CSC in mid March 2021. CSC later told her there had been no discussions.
38. Miss X asked CSC for additional support for Z on 25 March 2021 because she said caring for Z, with his complex needs, was becoming increasingly challenging. In her letter she confirmed, as “previously reported” in September 2020, she was no longer Z’s primary carer: his care was now shared with Mr Y. She also said she was supporting Mr Y financially out of benefits for Z and that Mr Y was now getting carer’s allowance for Z. I have not seen any record to show Mr Y told the Council’s housing team he was receiving carer’s allowance until May 2021.
39. Also in March 2021, Miss X made a formal complaint on behalf of Mr Y. She said they had agreed Mr Y would care for Z 50% of the time. This meant Mr Y needed two bedrooms and accommodation that was suitable to meet Z’s needs, including keeping his medication, which needed refrigerating, secure.
40. The Council placed Mr Y in a hostel, property 4. Children were not allowed at property 4 and Miss X told me it was not a suitable environment for Z, although Z did stay there so she could have respite from her caring role.
41. On 7 April, officer 2, a social worker in CSC sent a letter to housing to support Mr Y’s second homelessness application. The letter said Mr Y was co-parenting with Miss X to ensure Z’s needs were met, as well as promoting Z’s relationship with his father. It raised concerns about Mr Y’s temporary accommodation, including:
• that when Z stayed with Mr Y he would be sharing facilities with others, which put him at risk and did not meet his medical needs;
• there was a lack of space to ensure Z’s safety in the property as a wheelchair user and to promote his sensory and stimulation needs;
• the accommodation was also outside the Borough, which meant Z’s personal carers may not be able to provide his care and that it might limit his access to short breaks support.

Officer 2 said their view was that Z’s ability to thrive and meet his full functional potential was being limited by Mr Y’s current temporary accommodation and asked the housing team to consider moving Mr Y to suitable accommodation within its area.

42. In May 2021, the Council’s housing team contacted CSC again to request further information about Mr Y’s caring responsibilities. Officer 2 confirmed Mr Y would be caring for Z at weekends and in school holidays. They explained Z was a wheelchair user for which he needed adequate space, and that he needed accommodating either on the ground floor or the first or second floors with a lift.
43. The Council responded to Miss X’s complaint in May 2021. It said:
• it considered Mr Y a single person because Z had a suitably adapted home with his mother, Miss X;
• single people under age 35 would usually need to share accommodation due to benefits rules. However, in view of the difficulties of caring for Z, a child with complex needs, it would assist Mr Y to secure self-contained accommodation, rather than shared accommodation. In doing so, it would take advantage of a recent change in the benefits rules that allowed an exception to the usual rule about having to share accommodation for those placed in a hostel, which was a pathway to more settled accommodation;
• by having Z to stay at property 4, which was not suitable for children and was in breach of his agreement, Mr Y risked losing the placement. If he lost that accommodation, he may not be able to benefit from the exception to the usual rule about sharing, which would make his situation worse.
44. The Council wrote again to Miss X on 27 July 2021. It confirmed it was looking for a suitable and affordable one bedroom self-contained property.
45. Miss X was unhappy with the stage 1 complaint response and asked the Council to consider the complaint further at stage 2 of its complaints process in August 2021 In particular, she asked the Council to address her father’s death from COVID-19 as a result of its lack of support and the chronology she provided. She also said the Council had discriminated against Z on the grounds of disability.
46. In its complaint response, in mid September, the Council offered Miss X condolences on the death of her father. It said it had offered suitable properties to Mr Y, but he had refused them. It did not agree it had discriminated against Z on grounds of his disability because case law indicated it was not under a duty to provide adapted accommodation for Mr Y and Z where Z already had a home, adapted for his needs, with Miss X.
47. In response to my enquiries, the Council explained that applicants under age 35 were in a difficult position because benefits rules restricted support to properties with shared facilities. Further, the shortage of social housing in its area means that applicants seeking family-sized accommodation typically wait over 10 years, and the wait for adapted properties (or those suitable for adaptation) is even longer. This means accepting Mr Y onto its housing register would not be a practical solution to his housing needs. Its view remained that the hostel route to a private tenancy for a one bedroom property was the best outcome it could achieve for Mr Y. This would mean he had a property where he could care for Z during the day, even if the property did not meet Z’s needs for overnight stays.
48. The Council placed Mr Y in one bedroom self-contained accommodation in January 2022 with a two year tenancy.

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My findings

First homelessness application

49. Mr Y approached the Council for homelessness assistance in early August 2020. The Council accepts there was a delay in carrying out an assessment and that, although it told Mr Y in December 2020 it would accept a prevention duty, it did not send him a formal decision with review rights, nor did it issue a PHP. This was fault.
50. The Council did not consider it had reason to believe Mr Y was in priority need so did not accept a duty to provide interim accommodation. I have not seen any record to show it considered this when Mr Y first approached it. Its email to Mr Y on 10 December accepting a prevention duty explained that, because Mr Y was not the primary carer for Z, he was not in priority need on that basis. I have not seen any record to show how it considered whether he was in priority need for other reasons. This was fault. No letter was sent confirming the Council’s decision he was not in priority need and providing information about review rights. This was further fault.
51. The Council offered Mr Y two properties to discharge its prevention duty, which it considered suitable for a single person under age 35. Mr Y did not accept them. The Council accepts it failed to warn him it could end its duty if he refused a suitable offer, inappropriately closed the case on the basis of that refusal and failed to issue a letter confirming its decision to end its duty, with review rights. This was fault.
52. Mr Y’s social worker provided a letter in support of his housing application. There is no record the Council made any enquiries with Children’s Social Care (CSC) to establish Mr Y’s caring responsibilities. This was fault, which meant it was not in a position to consider whether to make an exception to its usual policy of not adding a child to a housing application unless the parent is clearly the primary carer. However, this did not cause a significant injustice because CSC did not have assessments or care plans that show Mr Y had significant caring responsibilities in this period.

Complaint

53. It is unclear why the Council did not treat Mr Y’s communications between October and December 2020 as a complaint. However, I am satisfied the records indicate it responded appropriately and without undue delay. It was not at fault.

Emergency accommodation

54. The Council’s children’s social care did try to find suitable accommodation for Z in January 2021 when Miss X contracted COVID-19, but the setting used for respite that could meet Z’s medical needs did not have space. I understand it also offered to arrange bed and breakfast accommodation, but the family declined this as it was entitled to do. I am satisfied the Council took appropriate steps to identify emergency accommodation, and note that it would have been difficult to identify accommodation to meet Z’s medical needs without prior notice and when the country was in a lockdown to prevent the spread of the COVID-19 infection. The Council was not at fault. Even if there had been fault, the Council did not arrange the accommodation with Mr F, and cannot be held responsible for Mr F contracting COVID-19.

Second homelessness application

55. When Mr Y approached the Council again in March 2021, the Council accepted a duty and offered accommodation at a hostel, with a view to arranging a private one bedroom tenancy.
56. I have found no evidence that housing contacted CSC in March 2021 nor that it told Miss X it had done so. It is possible there was some confusion about dates as enquiries were made of CSC in May 2021. Given the lack of evidence, I make no finding on this part of the complaint.
57. The Council’s housing team made enquiries of CSC in April and May 2021 but could not evidence that Mr Y was caring for Z for 50% of the time as he said, nor that CSC considered Mr Y needed to do so to meet Z’s disability needs. On this basis, it did not consider making an exception to its usual policy about including children on housing applications. It explained to Mr Y its reasons for not including Z on Mr Y’s housing application.
58. I have not found fault with the Council’s actions from March 2021 onwards.

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Agreed action

59. Within one month of the date of the final decision the Council will:
1. apologise to Mr Y for the failings identified, and pay him £750 to remedy the distress and frustration caused by the failure to properly progress his homelessness application between August 2020 and February 2021;
2. remind relevant staff of the need to:
• keep a proper record of how they consider whether an applicant is in priority need, including whether they are vulnerable;
• make appropriate enquiries with Children’s Social Care where an applicant is seeking to add a child to their application so it can consider whether to make an exception to the general rule that it will not do so if the applicant is not the child’s primary carer. If it declines to make an exception, it should set out its reasons in writing; and
• issue formal decision letters with appropriate information about rights of review and appeal, in line with relevant law and guidance.
60. The Council will provide us with evidence it has complied with the above actions.

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Final decision

61. I have completed my investigation. I have found fault leading to personal injustice. The Council agreed appropriate action to remedy that injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman