Summary: Miss B complained that the Council failed to offer her suitable alternative accommodation since April 2021, failed to properly consider her housing needs and whether she is homeless. This has caused, and continues to cause, Miss B significant distress as she is living with five children in a two bedroom flat with no lift and she cannot always manage the stairs. We found the Council failed to consider her case properly and gave her incomplete advice about possible homelessness. The Council has agreed to take action to reconsider Miss B’s case, pay her £200 and improve its procedures for the future.

The complaint

1. Miss B complained that the London Borough of Lambeth (the Council) failed to provide her with suitable alternative accommodation. It failed to consider if the combination of all her housing needs meets the criteria for an award of Band A priority. It has also failed to consider on the information it already holds, whether she is homeless due to the unsuitability of her current accommodation. It has given misleading advice about homelessness and the availability of temporary accommodation. This causes Miss B and her children significant and ongoing distress living in such overcrowded accommodation.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Miss B and the organisation 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

Council’s housing allocations policy 2013

5. The policy places eligible applicants in one of four priority bands from A to D, Band A being the highest priority, for emergencies and strategic priorities, which includes council tenants who are statutorily overcrowded. It says the Council has discretion in exceptional circumstances to place an applicant in Band A in cases recognised as emergencies or strategic priorities but not fitting into the specified categories. It says examples of this may include where the applicant’s household has composite needs which considered together constitutes an emergency need for housing.
6. Band B is for high priority cases including severely overcrowded households, households with an urgent medical need to move and some homeless prevention cases where specific conditions are met. Other homeless cases are placed in Band C (medium priority).
7. Applicants can request a review of decisions made under the policy within 21 days of the date the decision was notified to them.

Homelessness

8. A person is to be considered homeless if they do not have accommodation that they are entitled to occupy, which is accessible and physically available to them (and their household) and which it would be reasonable for them to continue to live in. (Housing Act 1996, section 175)
9. If a council has ‘reason to believe’ someone may be homeless or threatened with homelessness, it must take a homelessness application and make inquiries. The threshold for taking an application is low. The person does not have to complete a specific form or approach a particular council department. (Housing Act 1996, section 184 and Homelessness Code of Guidance paragraphs 6.2 and 18.5)
10. 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. (Homelessness Code of Guidance for Local Authorities, paragraphs 2.3 and 6.4)
11. A council must secure interim accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need. (Housing Act 1996, section 188) Examples of applicants in priority need are:
• people with dependent children;
• pregnant women;
• people who are vulnerable due to serious health problems, disability or old age.
12. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of his or her household. This duty applies to interim accommodation and accommodation provided under the main homelessness duty. (Housing Act 1996, section 206 and (from 3 April 2018) Homelessness Code of Guidance 17.2)
13. Councils must consider the location of accommodation when they consider if it is suitable for the applicant and members of their household. If a council places an applicant outside its district, it must consider, among other matters:
• the distance of the accommodation from the “home” district;
• the significance of any disruption to the education of members of the applicant’s household;
• the proximity and accessibility to local services, amenities and transport. (Homelessness (Suitability of Accommodation) Order 2012)

Council’s temporary accommodation policy 2022

14. This document sets out the criteria for allocating temporary accommodation to homeless households. Temporary accommodation is provided in Lambeth to applicants/households with significant disabilities or medical needs, children receiving special educational support in a school in Lambeth or where there is child protection plan in place. The Council will offer temporary accommodation in the local area (including adjacent boroughs or within 30 minutes travelling time on public transport) in a number of circumstances including where children in the household are in Year 11 of a secondary school in Lambeth, or a person is in permanent settled employment and has been for at least six months

Equality Act 2010

15. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
16. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Act, including disability. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.

What happened

17. Miss B has lived in a two bedroom housing association flat for many years. Her family has grown, and she now lives with five children between the ages of 3 and 15 in the flat. Access to the flat involves 42 stairs and there is no lift. Miss B has a back condition which makes climbing the stairs very difficult.
18. Miss B is statutorily overcrowded and because of this, she is in Band B on the housing register, for four-bedroom accommodation.
19. In June 2021 she requested a review of the medical assessment decision. In August 2021 the Council decided she had an urgent medical need to move which qualified for Band B priority. As she was already in Band B it did not improve her position.
20. In April 2021 Miss B’s housing advocate requested that her application be placed in Band A, on the grounds of statutory overcrowding, medical emergency, equality act and safeguarding children duties. The advocate explained that Miss B’s back condition was degenerative and serious: at times she was unable to use the stairs at all and was housebound or had to stay with a friend in the ground floor flat and ask friends to take her children to school.
21. In August 2021 the Council responded to the request. It explained that it only offered Band A priorities to council tenants who were statutorily overcrowded; while it acknowledged Miss B had medical issues, her situation was not a medical emergency and it disagreed that it was not meeting its equality and safeguarding duties. It concluded that Miss B’s circumstances were not exceptional in comparison to many other applicants in the borough.
22. In February 2022 Miss B’s local councillor forwarded an email from Miss B to the Council asking for help in finding her more suitable accommodation. The Council responded saying that the Council only awarded medical priority in Band A to applicants who can only manage in a level access ground floor flat or an adapted or wheelchair home. The Council also said that:

“Miss B would need to make a homelessness application via the Homelessness Prevention team. We may provide temporary accommodation, however if there is no threat of homelessness, it is unlikely. It should also be noted that a good deal of temporary accommodation is out of borough and being in Lambeth cannot be guaranteed.”

23. The Council said she must complete an application form online, wait for a reference number then contact the Housing Advice Line to arrange an appointment.
24. Miss B complained to us in April 2022

Analysis

25. I understand four-bedroom properties in Lambeth are in short supply and that the Council has to allocate housing in accordance with its published allocations policy. However, I am concerned the Council has not dealt with Miss B’s case in accordance with the law, guidance and its own policies.

Allocations banding

26. The decision on priority banding is one for the Council to make taking into account all the relevant circumstances. The Council has been asked on two occasions to consider increasing Miss B’s priority to Band A. Miss B’s advocate told the Council that Miss B’s back condition was so bad that sometimes she was unable to use the stairs at all. This meant she was either housebound or had to stay with a friend on the ground floor. The Council has not made enquiries as to how often Miss B’s condition is this severe to enable it to reach a view as to the safety of her current living arrangements. It has not enquired how Miss B would be able to get out of the flat in an emergency or how her children are cared for, when her back condition is at its worst.
27. This was fault because I cannot be certain the Council has properly considered Miss B’s circumstances and the implications of her condition, including whether its Public Sector Equality duty is engaged or whether her composite needs (medical and statutory overcrowding) merit Band A priority.
28. The Council also delayed excessively in responding to her first request, taking four months to reply to the email sent in April 2021.

Review rights

29. The Council failed to notify Miss B, on two occasions, that she had a right to request a review of the decision not to award her Band A priority. This was fault which denied Miss B the opportunity to provide more information and for the Council to reconsider her situation.

Homelessness

30. The Council failed to give complete and accurate advice to Miss B about a potential homeless application. It said that the Council only provided temporary accommodation if Miss B was threatened with homelessness. It failed to mention that she could be deemed homeless if it was no longer reasonable for her to continue to occupy her property due to her situation. It also failed to explain the duty to provide interim accommodation if she met the criteria.
31. I accept it provided her with details of how to contact the homeless service. But I do not consider this was sufficient action to meet the requirements of the legislation. The guidance says that if a council has reason to believe a person may be homeless it must take a homeless application and make enquiries. We do not consider it is fair or reasonable to ask them to complete another application form or meet any more criteria. I consider the Council should have directly offered her an appointment with the housing options team.

Injustice

32. I cannot say that Miss B would have been offered more suitable accommodation had these errors not occurred. But the failure to provide complete advice or offer a review on two occasions has caused uncertainty and distress about whether a different outcome may have been possible sooner. It has also caused her time and trouble in having to complain to us.

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Agreed action

33. In recognition of the injustice caused to Miss B I recommended the Council within one month of the date of my final decision:
• asks Miss B to provide information about the frequency and severity of her back condition and within one further month of receipt, reconsiders whether her situation merits an award of Band A priority and provides her with a right of review against the decision;
• offers Miss B an appointment to discuss her housing options, including homelessness and take a homeless application if she wishes;
• pays Miss B £200 for her time and trouble;
• ensures it notifies applicants of the right to request a review of decisions made about the allocations scheme; and
• ensures all housing staff are aware of the need to provide complete and accurate advice about homelessness, including the requirement to take a homeless application where they have reason to believe a person may be homeless.
34. The Council has agreed to my recommendations.

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Final decision

35. I consider this is a proportionate way of putting right the injustice caused to Miss B and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman