Summary: Mr X and Mrs X complained the Council did not properly assess their family’s health needs when considering their housing application. The Ombudsman finds the Council was at fault for not increasing their banding after it decided they were homeless. However that did not cause Mr and Mrs X an injustice. It also incorrectly told them they were not on the Housing Register when it responded to their complaint. The Council has agreed to apologise to Mr and Mrs X for avoidable confusion and distress that caused. It has already proposed further training for staff about prioirty banding.

The complaint

1. Mr X and Mrs X complained the Council did not properly assess their family’s health needs when considering their housing application. They said that has resulted in the Council awarding the wrong banding, which reduces their chances of securing a permanent home.
2. They said the lack of permanence caused a great deal of stress and the family have already had to move home on several occasions.

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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. 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)
4. 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. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
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 discussed the complaint with Mr and Mrs X’s representative Mr Y, and considered the evidence he provided.
8. I made enquiries of the Council and the Housing Association and considered the responses.
9. I referred to the relevant legislation.
10. Mr and Mrs 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

Homelessness

11. A council can assess a person as homeless if it considers it is not reasonable for them to continue to occupy their existing accommodation. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. When a council decides this duty has come to an end, it must notify the applicant in writing. This is known as the relief duty.
12. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need the council has a duty to secure accommodation that is available for their occupation (unless it refers the application to another housing authority under section 198). This is the main housing duty.
13. Councils will not owe the main housing duty to applicants who have turned down a suitable final accommodation offer or a Housing Act Part 6 offer made during the relief stage, or if a council has given them notice under section 193B(2) due to their deliberate and unreasonable refusal to co-operate.

Allocations

14. 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.  (Housing Act 1996, section 166A(1) & (14))
15. An allocations scheme must give reasonable preference to applicants in the following categories:
• homeless people;
• people in insanitary, overcrowded or unsatisfactory housing;
• people who need to move on medical or welfare grounds; and
• people who need to move to avoid hardship to themselves or others.
16. Councils must notify applicants in writing of the following decisions and give reasons:
• that the applicant is not eligible for an allocation;
• that the applicant is not a qualifying person; and
• a decision not to award the applicant reasonable preference because of their unacceptable behaviour.
17. The Council must also notify the applicant of the right to request a review of these decisions. The applicant can appeal the Council's decision in the county courts.

The Council’s policy

18. The Council runs its housing allocations scheme in partnership with 19 housing associations. That means there is a single Housing Register. Applicant’s wanting to join the Housing Register must fill in an online application form. That includes existing Housing Association tenants who want to move property.
19. Applicants who are eligible to be on the Housing Register are placed into one of three bands:
• Band 1 -high priority housing need.
• Band 2 -priority housing need.
• Band 3 -households with no defined housing need.
20. Following application, applicants are notified of the housing decision through email. The Council states that where applicants are existing Housing Association tenants the Housing Association is responsible for administering their application.
21. Where a person approaches the Council within 56 days of becoming homeless and if they have a live application on the Housing Register the Council’s policy states it will place them into Band 2. If the applicant does not have an existing housing application, they will be required to make one for priority to be awarded.
22. After an applicant is accepted onto the Housing Register they can bid for properties online through a Choice Based Lettings scheme.

Background

23. In October 2018, Mr and Mrs X moved into Property A, a first-floor flat. That tenancy was managed by the Housing Association. Mr and Mrs X asked the Council for a suitability review of the accommodation. They said it was not reasonable to expect them to occupy the accommodation because of Mr X’s medical needs. In March 2019, the Council reviewed that decision but decided the accommodation was suitable. Mr X appealed to the Court, but it was not upheld.

What happened

24. In December 2019, Mr X made a homelessness application to the Council. He provided medical evidence about his mental health and potential risk to life caused by the property. The Council decided Mr X and his family were not homeless and sent them a decision letter. Mr X asked the Council to review its decision. The Council wrote to Mr X in May 2020; it did not uphold the review. Mr X appealed to the court.
25. Mr X applied to join the Council’s Housing Register in July 2020. The Housing Association processed that application.
26. In August 2020, the Court decided the Council’s homelessness decision was unlawful. The Council wrote to Mr X on 11 August 2020. In that letter it said it had completed an assessment and was satisfied that Mr X and his family were homeless. The letter confirmed it had accepted the relief duty to help Mr X secure suitable accommodation. It explained its duty to help Mr X and his family would end if he refused any offer of accommodation that the Council identified as suitable to resolve their homelessness.
27. Around this time Mr X complained to the Council that it had failed to complete a risk assessment considering the suitability of their property for two years. He said it had medical evidence stating the property was not suitable. He also said since moving in there were disrepair issues.
28. The Council offered Mr X a two-year fixed term assured short hold tenancy in August 2020 for Property B.
29. The Housing Association emailed Mrs X on the 1 September 2020 confirming they were on the Housing Register. It attached a form for Mr and Mrs X to complete if they wanted the Council to assess their housing application for priority based on medical needs.
30. The Council responded to Mr X’s complaint the following week. It said he did not have a live housing application and he would need to make a new housing application to consider the suitability of the accommodation on health grounds.
31. The Council wrote to Mr X mid-September after he had moved into Property B. The Council explained it no-longer had a duty to house him as he had accepted a final accommodation offer. It confirmed the Council told Mr X when making that offer, that if he accepted or rejected Property B, the duty would end. That letter set out Mr and Mrs X’s right to review the suitability of the property offered. Mr X did not ask for a review.
32. In December 2020, Mrs X asked the Council to consider their complaint further. She said the Council had moved the family into private rented accommodation, meaning they had to start bidding on properties to secure a permanent residence. She said the family had not had a fixed home address for over ten years. She asked the Council to prioritise the family for a suitable, permanent home.
33. The Council sent a final complaint response in January 2021. It explained it did not have to provide permanent housing and that it had offered a suitable tenancy. It said they had not asked the Council for a review of that property.
34. Mr X subsequently brought his complaint to the Ombudsman through his representative, Mr Y. Mr Y said Mr and Mrs X were unhappy about how the Council had assessed their housing application. He said the Council had failed to complete the proper risk-assessments for Mr X. Mr Y provided evidence Mr X remained in Band 3 on the Housing Register for a housing transfer.

The Council’s response to enquiries

35. The Council said when it met with Mr X in December 2019, it did not put him on the Housing Register. It said, even if it had recommended Mr X to go onto the Housing Register at that time, he would have been accepted into Band 3 as he did not have priority need. It said Band 3 applicants can expect an indefinite wait to being offered a property.
36. The Council stated Mr X was eligible to join the Housing Register as a transfer for a different home. It said the Housing Association were responsible for registering and managing that application. It said the Housing Association should have cancelled that application after they accepted Property B.
37. It said Mr X’s application would only allow him to transfer between the Housing Association’s housing stock unless Mr X also asked to be registered with the Council. It said it had no details of Mr X’s July’s housing application because it was managed by the Housing Association as a transfer application.
38. The Council subsequently confirmed Mr and Mrs X were registered on the Housing Register for a move within Tower Hamlets.
39. The Council said after it decided it owed Mr X a housing duty in August 2020, it should have increased his allocated banding on the housing application. It said its failure to do that had not affected Mr X’s housing opportunities, as he would have only had an increased banding for one month before he accepted Property B. It said there were families who had been waiting years for an allocation. However, it has accepted there is a training need about reasonable preference being triggered when a homelessness decision in favour of the applicant is made.

My findings

40. I cannot investigate Mr and Mrs X’s complaint that Property A was unsuitable; that the Council failed to complete an appropriate risk assessment of Property A and the subsequent injustice caused to them by living there for two years. That is because we have no jurisdiction to investigate when the matter was considerred by the Court. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed.
41. In the Council’s complaint response to Mr and Mrs X in September 2020, it said they did not have a live housing application. And, in its response to our enquiries, it stated that the housing application was for internal transfers within the Housing Association’s own stock. The information provided by the Council was incorrect.
42. The application form completed by Mr and Mrs X was for the Common Housing Register and they received an email from the Housing Association confirming they had joined that Register. The Council had also confirmed they were registered on the Housing Register for a move within Tower Hamlets. The failure to provide Mr and Mrs X correct information in the complaint response has caused them avoidable confusion and distress.
43. When the Council accepted Mr X as homeless in August 2020, it should have updated their banding on the Housing Register in line with its policy and awarded a higher priority. Failure to do this was fault. However, that fault did not cause an injustice as Mr and Mrs X did not miss out on an offer of suitable accommodation.
44. The Council said the Housing Association should have cancelled Mr X’s housing application after he secured Property B. However, Mr and Mrs X’s application to join the Housing Register was separate to their homelessness application. Therefore, I can see no requirement for the Housing Association, or the Council to cancel it after Mr and Mrs X accepted Property B. Instead, the application should have been updated with their change of address. The Council has since cancelled the application. That was fault. That has meant that Mr and Mrs X have been removed from the Housing Register despite wishing to remain on it.
45. Mr Y told me that Mr X is happy with Property B and it is suitable for the family’s needs. However, Mr X is unhappy that they were not offered a permanent tenancy. The Council does not have to offer a permanent tenancy when discharging its relief housing duty. It offered a two-year Assured Shorthold Tenancy. The Council was not at fault.

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Agreed action

46. Within one month of my final decision the Council has agreed to:
• Apologise to Mr and Mrs X for any avoidable confusion caused by its complaint response, ensuring the apology letter is translated into Mrs X’s spoken language.
• Place Mr and Mrs X back on the Housing Register and backdate the application to July 2020.
• Remind staff to tell applicants they should make an application to join the Housing Register if the Council makes a homelessness decision so it can award the correct priority banding.
• Remind staff to review existing applicants banding on the Housing Register when the Council has made a homelessness decision in the applicants’ favour.

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Final decision

47. The Council was at fault for failing to amend Mr X’s priority banding when he became homeless, however, that did not cause Mr X an injustice. It also incorrectly stated they were not on the Housing Register; that has caused avoidable distress. The Council has agreed to our recommendations to remedy the injustice caused. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman