Summary: There was fault by the Council. It gave Miss X unclear advice about her son’s eligibility for a discretionary housing payment. It also failed to properly consider whether it should assess her son’s housing situation under its homelessness duties. The Council’s shortcomings caused Miss X and her son uncertainty, and contributed to Miss X losing money and her son owing money to his landlord. The Council has agreed to take action to remedy the injustice.

The complaint

1. Mr B’s mother, Miss X complains on his behalf. Miss X says the Council wrongly advised her about her son’s eligibility for a discretionary housing payment (DHP) to cover a deposit and rent in advance on a property.
2. Miss X also complains that the Council did not help Mr B when he was homeless.
3. Miss X says that as a result of the Council’s wrong advice, her son entered into a tenancy agreement and she had to pay money on his behalf. She also says that Mr B was extremely distressed at the prospect of not being able to pay the landlord.

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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 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. I considered the information provided by Miss X and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken into account all comment I received before issuing this final decision.

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What I found

The law and guidance

Discretionary housing payments

7. A council may award discretionary housing payments (DHP) when someone needs help with housing costs and is claiming Housing Benefit or Universal Credit which includes housing costs towards rent. (Discretionary Housing Payments guidance manual February 2021, section 1.7, as amended)
8. Government guidance gives councils choice (discretion) about when to offer a DHP; there is no statutory right to payment. However guidance stresses that DHP decisions must follow the ordinary principles of good decision making. Councils must act fairly, reasonably, and consistently, and must decide each case on its merits. Councils can exercise discretion in questions asked of applicants and decisions made. (Discretionary Housing Payments guidance manual February 2021, sections 1.11 and 5.1, as amended)

Homelessness

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. Someone is homeless if they have no accommodation or if they have accommodation, but it is not reasonable for them to continue to live there. (Housing Act 1996, Section 175)
11. Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. The Code of Guidance says, rather than advise the applicant to return when homelessness is more imminent, the housing authority may wish to accept a prevention duty and begin to take reasonable steps to prevent homelessness. Councils must notify the applicant of the assessment. 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. These steps should be tailored to the household, and follow from the findings of the assessment, and must be provided to the applicant in writing as their personalised housing plan. (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.18)
12. Councils must provide to anyone in their district information and advice free of charge on:
• preventing homelessness;

• securing accommodation when homeless;
• the rights of people who are homeless or threatened with homelessness;
• the duties of the authority;
• any help that is available from the authority or anyone else, for people in the council’s district who are homeless or may become homeless (whether or not they are threatened with homelessness); and
• how to access that help.

13. Councils can suggest alternative solutions in cases of potential homelessness where these would be suitable and acceptable to the applicant. However councils must not do this to avoid their legal duties, especially the duty to make inquiries into the applicant’s homelessness. The Ombudsman has criticised councils for ‘gatekeeping’ practices, for example, failing to take a homelessness application at the earliest opportunity.

The Council’s processes

14. The Council has a one stop shop for all young people aged 16 to 24 who are threatened with homelessness or are homeless. The Birmingham Youth Hub provides information and advice on preventing homelessness. It also has an accommodation seeking service and it is the gateway for providing accommodation for young people.
15. The Hub will carry out an initial assessment and if homelessness is established the case will be escalated to the Council’s Housing Option team who will decide whether the Council owes a homelessness duty to the young person. The Council then refers the case to the Hub to seek accommodation. If the Hub cannot find suitable accommodation, and the young person is in priority need, the Council will offer temporary accommodation while it looks at long term accommodation options.

What happened

16. Mr B is a disabled young person and has severe mental illness. He was living in a house on an informal basis. He paid rent but did not have a tenancy agreement. This meant that although Mr B only had disability benefit income, he was not entitled to housing costs under universal credit or to housing benefit. Mr B had been asked to leave his accommodation and needed to find a new property to rent.
17. Mr B’s mother, Miss X, acts on his behalf. At the start of August 2023, Miss X approached the Council. She told it that her son will be homeless in a month and he cannot go into a shared house due to his severe mental illness. The Council took an application for Mr B to join its housing register. Although homelessness can be ended via the housing register, it is essentially a separate scheme to homelessness duties, administered under the Council’s Housing Allocation policy.
18. Miss X called the Council again the next day. She again told the Council that her son would soon be homeless. The Council transferred Miss X to the Hub. The Council says it transferred the case to its Housing Solutions Support Service to make contact with Miss X, but there is no record of it doing so. There is no record of any homelessness application from August 2023. Miss X says that she tried to call the Hub again but could not get any response. The Council says that the Hub has no record of her contact.
19. By October 2023, the Council had not processed Mr B’s housing register application. It asked Miss X to provide medical evidence that Mr B needed to move due to his health and welfare. The case notes show that Miss X was upset that there had been no housing help for her son. The Council apologised and explained it had a backlog in applications.
20. In November 2023, Miss X complained to the Council that it had not progressed Mr B’s housing register application. The Council explained that there was a backlog and it apologised for the delay. It was still processing his application and needed to assess the medical information she had submitted. In her complaint, Miss X had mentioned that she was desperately seeking accommodation in the private sector and there had been no help from the Council. It suggested that she contact its accommodation finding service that worked with the private sector to help find accommodation, and that he might be eligible for a DHP.
21. In December, the Council told Mr B it had assessed his housing register application but he was not eligible to join the register because the medical information they had submitted did not show that his current housing was making his health worse such that he needed to move. Miss X submitted more medical information to show that her son needed to move.
22. In the meantime, Mr B was now overstaying in his accommodation (because he had been asked to leave) and Miss X was searching for somewhere else for him to live. She had found a private housing agency that was willing to consider Mr B despite him being on long term benefits. The rent for its properties was much higher than housing benefit or universal credit would pay. Mr B would also need a deposit and rent in advance. The agency suggested that Miss X apply to the Council for a DHP to top up the rent and also for the deposit and rent in advance.
23. At the beginning of December 2023, Miss X found a flat via the agency. She contacted the Council to ask about a DHP because the Council’s online application form read as though Mr B would need to be in the property before applying, but clearly this would not be possible as he needed to pay the deposit and rent in advance earlier. The Council advised Miss X to email it asking for the DHP instead of using the form. Miss X did this and paid the agency a holding deposit of £200. In the email, Miss X says her son has two weeks to find somewhere to live or he will be homeless.
24. Miss X did not hear back from the Council and so the agency let the flat to someone else. The housing agency had another flat and so Miss X telephoned the Council again about the DHP. The Council told her that she needed to fill out the form and the email has not been dealt with. I have listened to a recording of the conversation. Miss X makes clear that Mr B is not able to claim housing benefit at his current flat as he has no tenancy agreement, and that he has been asked to leave and is threatened with homelessness.
25. The housing agency allowed Mr B to move into the property on the basis that Miss X would apply to the Council for a DHP to top up the rent and to also pay the deposit and rent in advance.
26. Miss X telephoned the Council several times to ask about help towards these costs. During these telephone calls, Miss X explained that her son was in receipt of benefits but was not receiving Universal Credit at that point and would not until he was liable to pay rent. Overall, the Council told her that Mr B could apply for a DHP via its website for help with a deposit and rent in advance, but that it could not guarantee that it would approve his application. It also told Miss X that her son would need to have a live Universal Credit claim to be eligible for a DHP. Miss X says that she took this to mean that Mr B could apply for a DHP to cover the deposit and rent in advance once he had moved to the new address and claimed Universal Credit.
27. The Council agreed to make a DHP for the shortfall between housing costs paid by his benefits and his rent. However, the Council refused the DHP to cover the deposit and rent in advance. Miss X complained to the Council. It explained that Mr B is not eligible for a DHP for the rent in advance or the deposit because he needed to have a live Universal Credit claim. It agreed that it could have given clearer advice at the time. It considered making a payment to Mr B to recognise this. But it decided not to because he did not meet the DHP criteria.
28. Miss X says that had she known that the Council would refuse the DHP she would not have allowed her son, Mr B to enter into the tenancy. The landlord still expected payment of the rent in advance and deposit. Miss X has told me that Mr B could not pay these and this meant the landlord may not renew the tenancy. In the end Miss X made the payment. She remains concerned that the flat is not sustainable because they have to apply for a DHP every quarter and without it her son could not afford the rent.
29. In February 2024, the Council again told Mr B that he was not eligible to join the housing register because he had moved house and so the medical evidence he had submitted was not relevant to his current situation.

Was there fault by the Council causing Mr B and Miss X injustice?

30. The Council has acknowledged that it did not always give Miss X clear information about whether her son would be eligible for a DHP. It also acknowledged that it took too long to assess his application to join the housing register (from August 2023 to December 2023). It has apologised to Miss X but has decided not to pay the deposit and rent in advance as she requested, because Mr B was not entitled to this.
31. However, there is further fault by the Council. It failed to consider Mr B’s homelessness when Miss X approached it in August 2023. It should have assessed whether he was threatened with homelessness, and whether it owed him a duty to help him keep or secure suitable accommodation. It seems to me that this was the Council’s intention when it referred Miss X to the Hub in August 2023. However, there was no record that the Hub went on to make the assessment. It is not clear why not. I appreciate that the Council says there is no record of Miss X contacting the Hub further, but I have no reason to disbelieve her account, and I note that Miss X has been very active in trying to advocate for her son.
32. More importantly, the Council later missed several opportunities to identify that it might owe Mr B a homelessness duty. Miss X was clear in her communications with the Council, that her son had no right to stay at the property, that he had been asked to leave and had nowhere to go. Miss X made this clear in her conversations with the Council about the DHP, in the emails and DHP application, and also in her complaints to the Council about delay in processing the housing application, and about its DHP advice. At any of these contacts, the Council should have considered whether Mr B was threatened with homelessness and whether it had a duty to prevent or relieve his homelessness.
33. The Council could also have considered how sustainable Mr B’s current tenancy is given that it requires a long-term and relatively substantial DHP. Even after Mr B had moved in to the current flat, it could have considered whether it is reasonable to expect him to remain there.
34. Lastly, the Council did not properly consider how to remedy the impact of its inconsistent advice on the DHP. In its complaints response, the Council said that it could not pay the rent in advance and deposit as requested because Mr B was not entitled to this. However, this is a complaint response and so is has to consider the impact of the poor advice it had given. Miss X told the Council that had she known that Mr B was not eligible for a DHP for the deposit and rent in advance, she would never have moved him there as he has no means to pay this. The Council could have considered the payment regardless of Mr B’s eligibility. It also could have considered whether, had it assessed Mr B as homeless, it might have made a similar payment to prevent his homelessness. To receive this kind of financial help, Mr B would not have needed to be receiving specific benefits.
35. We cannot say what sort of accommodation Mr B may have been able to find, had the Council assessed his homelessness situation. The Council’s failure to do so and its delay in processing his housing application has caused Mr B and Miss X uncertainty, distress and frustration. However, it is unlikely that had the Council assessed Mr B properly, that he would have moved to unaffordable accommodation, and a better solution may have been found.
36. I acknowledge that a DHP is discretionary and is not guaranteed. Miss X understood this. However, Miss X was not able to make an informed decision to move her son to his current accommodation because the Council’s advice was unclear and because he was not being properly supported via the Council’s homelessness duties. The Council’s shortcomings contributed to Miss X having to pay the rent and deposit payments, and uncertainty over whether her son will be able to renew his tenancy.
37. The Council also wrongly advised Miss X to make a DHP application via email. This was not processed and the flat fell through. Miss X paid a holding deposit for that flat which she lost. Again, there was never any guarantee that the Council would have paid the DHP and Mr B would not have been eligible for a payment towards the deposit and rent in advance, but the Council’s shortcomings contributed to Miss X losing this money, and having to start the search again.

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Agreed action

38. The Council will within a month of the date of this decision:
• Apologise to Mr B and separately to Miss X. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay to Miss X the £1,400 in recognition that the Council’s shortcomings contributed to Mr B having an outstanding bill for rent in advance and deposit (this is 75% of the total due).
• Pay to Miss X £150 in recognition of the lost holding deposit when it wrongly advised her to email the DHP application and failed to clearly tell her that Mr B would not be eligible for the DHP.
• Pay to Mr B £250 in recognition of the distress, uncertainty and frustration caused to him when the Council failed to assess his homeless situation and took too long to process his housing application while he was threatened with homelessness.
• Assess whether it is reasonable to expect Mr B to stay in his current property and whether it owes him homelessness duties now.
• Share this decision with the relevant housing and complaint handling staff and remind them that the Council must be alert to the need for a potential homelessness assessment in their interactions with the public.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I have completed my investigation. There was fault by the Council causing injustice to Miss X and Mr B.

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Investigator's decision on behalf of the Ombudsman