Summary: The Council failed to properly consider Ms B’s circumstances and take appropriate action when she was facing eviction which caused her significant distress. The Council has agreed to apologise, make a payment to Ms B and take action to prevent similar failings in future.

The complaint

1. Ms B complains that the Council:
• failed to carry out a review of its housing priority decision after it agreed to do so;
• did not awarded her enough priority on the housing register; and
• told her that she had to wait in her accommodation until she was evicted by bailiffs and would then only be housed in bed and breakfast or hostel accommodation.
2. Ms B was concerned that the two young people she fosters would have to be moved to different placements if she was evicted. Ms B says that the situation caused her significant distress.

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What I have investigated

3. I have investigated Ms B’s complaint about matters since we issued our final decision on Ms B’s previous complaint in August 2020. The last section of this complaint explains why I have not investigated earlier events, or some new matters which Ms B has raised recently.

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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. 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 complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Relevant legislation, government guidance and Council policy

7. 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.
8. If a council is satisfied someone is eligible, homeless, in priority need and unintentionally homeless, it will owe them the main housing duty. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15)
9. Under the main housing duty, housing authorities must ensure that suitable accommodation is available for the applicant and their household until the duty is brought to an end, usually through the offer of a settled home. (Homelessness Code of Guidance 16)
10. Housing authorities should ensure that homeless families and vulnerable individuals who are owed a section 188 interim accommodation duty or section 193(2) main housing duty are not evicted through the enforcement of an order for possession as a result of a failure by the authority to make suitable accommodation available to them.” (Homelessness Code of Guidance 6.38)
11. The Coronavirus Act 2020 made a temporary provision to protect most residential tenants by increasing notice periods to at least three months. The Act also temporarily paused possession proceedings. (COVID-19 Guidance for Landlords and Tenants)
12. The Council’s Housing Allocations Scheme says:

“Foster Carers – Band 1. The award of additional preference will be given following a referral from the Council’s children’s services to those foster carers and adopters who have been assessed and approved and whose housing prevents them from being able to start, or continue to provide foster care to a Council looked after or former looked after child”.

“Exceptional need – Band 1. The Council recognises that there may be exceptional circumstances where the only way an exceptional housing need can be resolved is through the use of discretion. In the interests of fairness to all applicants these circumstances are kept to a minimum.”

Overview

13. Until very recently, Ms B was living in a four-bedroom house with four children (two sons and two girls she fosters). Ms B’s landlady wanted to sell the house and was taking action through the courts to regain possession of it.
14. The Council accepted the main housing duty to Ms B. This meant the Council had to ensure suitable accommodation was available for Ms B and her household. The Council also placed Ms B in housing priority band two on its housing register.
15. Ms B considered the Council should place her in housing priority band one because she would be unable to continue working as a foster carer if she were evicted.

Previous complaints

16. In July 2020, Ms B complained to the Ombudsman about the Council’s decision that her household only needed three bedrooms. She also complained that the Council had placed her in housing priority band two.
17. The Council reviewed its decision in August and decided to increase her bedroom entitlement to four. We found that the qualifying conditions for band one did not apply to Ms B because the house she was living in did not prevent her from continuing to work as a foster carer.
18. Ms B contacted us again in October after her landlady made an accelerated claim for possession of her home. We contacted the Council who advised that it was carrying out another review of its housing priority decision. We told Ms B that we would not become involved while a review was in progress, but that she could return to us if she remained dissatisfied after the review had been completed.

This complaint

19. Ms B complained to the Ombudsman that the Council had not completed the review and was not responding to her emails or returning her calls.
20. Ms B then received a Possession Order which required her to leave the house by 26 January 2021. She says a Council officer told her that she had to wait in the accommodation until she was evicted by bailiffs and she would then only be housed in bed and breakfast or hostel accommodation.
21. Ms B said that if the Council placed her in unsuitable accommodation with less than four bedrooms, the girls she fosters would have to be rehomed. She argues that, as she would be unable to continue to work as a foster carer, she should have been awarded housing priority band one.
22. During the course of my investigation, Ms B found suitable private rented accommodation herself and moved in March 2021.

Analysis

23. Under the Council’s Housing Allocations Scheme, foster carers qualify for band one if their housing prevents them from being able to continue to provide foster care.
24. In September 2020, the social worker of one of the girls Ms B fosters sent the Council evidence that Ms B’s landlady had made an accelerated claim for possession of her home. She asked the Council to urgently review its housing priority decision. She explained that if Ms B were evicted and placed in bed and breakfast accommodation, the foster placement would have to end because the accommodation would not be appropriate.
25. In the Council’s response, it said that Ms B had been placed in band two correctly and while bed and breakfast accommodation was not ideal, the demand for accommodation was high and so it was likely that Ms B would be placed in bed and breakfast accommodation if she was evicted. The Homeless Code of Guidance says that Councils should ensure families who are owed the main housing duty are not evicted through the enforcement of an order for possession as a result of a failure by the authority to make suitable accommodation available to them. The Council should have considered whether a planned move would be more appropriate for Ms B’s family and it should have told her about the planned move process. It did not do so; this was fault.
26. The Council told our office in October 2020 that it was carrying out a review of its housing priority decision. It now says that it was not carrying out a review and it was wrong to indicate that it was doing so. After considering the Council’s case notes, I do not consider the Council was carrying out a review in October 2020. Ms B was put to avoidable time and trouble chasing the outcome of a review which was not taking place.
27. Ms B made a further complaint to the Council on 5 January 2021. On 13 January, she also sent the Council a copy of a Possession Order she had received which required her to leave her home by 26 January. A Council officer then telephoned Ms B and explained that due to temporary changes to the law, she could not be evicted before 21 February. When Ms B explained the consequences of being placed in bed and breakfast accommodation, the officer said that she would make a planned move request. The Council placed Ms B on its planned temporary accommodation move list and was making efforts to provide Ms B with suitable accommodation before she was evicted. This seems an appropriate course of action.
28. In Ms B’s complaint, she cited several reasons why she considered she qualified for band one and she provided fresh supporting evidence. While the Council has responded to Ms B’s complaint, it should also have considered reviewing its housing priority decision. It seems to me that the intention of the Council’s policy is to give foster carers sufficient priority to obtain suitable accommodation to enable them to continue in their role. I do not consider the policy intention is to only award priority band one once the foster carer has been evicted, as they would then be unable to continue working and any foster children would have already been rehomed.
29. I consider the Council’s failings in this case caused Ms B significant distress and she was put to avoidable time and trouble pursuing matters with the Council.

Agreed action

30. Within four weeks, the Council will apologise and make a payment of £300 to Ms B to recognise her distress and the time and trouble she has been put to as a result of the Council’s failings in this case.
31. Within eight weeks, the Council will:
• Remind its officers to consider the planned move process when households are facing eviction and bed and breakfast accommodation is clearly not suitable, even on a short-term basis.
• Remind its officers that where homeless families and vulnerable individuals are owed a section 188 interim accommodation duty or section 193(2) main housing duty, it should ensure they are not evicted through the enforcement of an order for possession as a result of a failure by the authority to make suitable accommodation available to them.
32. The Council has confirmed that it will review the priority it awards to foster carers when it reviews its housing allocations policy, which is scheduled to be completed by the year end.

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Final decision

33. I have completed my investigation and uphold Ms B’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

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Parts of the complaint that I did not investigate

34. We will not generally investigate a complaint about a matter which we have already considered. For this reason, I have not investigated matters which we previously considered when Ms B complained to us in July 2020.
35. I have also not investigated Ms B’s complaints about the Birmingham Children’s Trust because she raised this after submitting her complaint to the Ombudsman and has not yet completed its complaints procedure. Ms B may wish to contact us again if she remains dissatisfied after she has completed its complaints procedure.

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Investigator's decision on behalf of the Ombudsman