Summary: Mr X complained about the Council’s handling and decision making on his housing application, resulting in him staying in unsuitable accommodation for longer than necessary. We found the Council at fault in its communications but this did not affect the decision outcome. We recommended the Council apologise to Mr X, make payment for distress, time and trouble, investigate his complaints of Anti Social Behaviour and, act to prevent recurrence.

The complaint

1. Mr X complains the Council:

1. failed to respond to his requests for help regarding housing, from October 2021 to June 2022.
2. provided a poor service, including delay and lack of accessibility, from June to November 2022 and;
3. did not reach a decision on his banding need properly.

2. Mr X says he has continued to live in fear in his current accommodation as a result.

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What I have and have not investigated

3. Mr X contacted the Ombudsman in December 2022 about matters arising since October 2022, more than 12 months ago. However, I will exercise discretion to investigate because the matters complained of have been ongoing since then.

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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 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. 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

8. I spoke to Mr X and I reviewed documents provided by Mr X and the Council.
9. I gave Mr X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Anti social behaviour (“ASB”)

10. The Council has provided a copy of its ASB policy effective from April 2021, referred below.
11. If a tenant is suffering from any kind of anti-social behaviour they should report the problem as soon as possible to their housing officer.
12. Upon receipt of a complaint or anti-social behaviour report it will:
• Record the complaint.
• Acknowledge and respond to the complaint.
• Interview the complainant and develop an initial action plan to investigate the problem.
• Consider whether mediation is appropriate and, if so, offer this to the complainant and then to the other party involved.
• Investigate as far as possible every complaint, even when reported anonymously.
• Take timely, effective and consistent action to tackle the problems by utilising the range of measures available to us. This will include working with our partner agencies.
• If mediation is considered inappropriate or is refused, the action plan will usually involve the tenant assisting the council by gathering further evidence of any further incidents or ongoing problems. This is likely to involve the complainant keeping a diary of further incidents.
• When full information has been obtained from the complainant it will usually be necessary to consider securing other supporting evidence for example:
1. Contacting others who may have been affected by the conduct.
2. Issuing incident diary sheets to witnesses.
3. Interviewing the alleged perpetrator.
4. Direct observation of activities by Housing Officer or other staff or agencies
5. Professional quality recording of noise
6. Review of private CCTV dashcam recordings
• It will then assess the case and take an appropriate course of action.

Joining the housing register

13. The Council’s website says people can apply to join the housing register through the website. However, it may accept telephone applications from those unable to do so. And it will make special arrangements for those unable to apply online or by phone.
14. On completion of the application form and the receipt of any additional information or supporting evidence it will award any relevant priority for the applicant.

Banding

15. The Council has provided copies of its housing allocation policies in effect since 2021.
16. Once it received an application the household is placed in the relevant band as follows:

Band A: emergency housing need

17. Any application for Band A must normally be submitted by an agency and not the applicant themselves. For example, if an applicant wants to move due to threat of serious domestic abuse or other violence, the police or an appropriate agency must contact a Devon local authority with evidence to support the request for an urgent move.
18. Substantial evidence must be provided to the assessing authority before such priority is awarded.
19. Situations that would qualify may include:
• Urgent health/wellbeing need (see below)
• To escape violence or threat of violence or
• Serious harassment where there is immediate and serious risk. The Police or another appropriate agency will usually provide supporting evidence that the risk exists.

Band B: high housing need

20. Relevant to this case this includes high health and wellbeing need (see below)

Band C: medium housing need

21. Relevant to this case this includes medium health and wellbeing need (see below)

Band D: low housing need

22. Relevant to this case this includes low health and wellbeing need (see below)

Band E: no housing need

23. Where no criteria are met for higher banding

Health and wellbeing

24. If an applicant needs re-housing because their health or welfare is being affected by their current housing they must complete a health and wellbeing assessment form.
25. Health and wellbeing priority is only awarded if it decides:
• an applicant’s health and/ or wellbeing is made worse by their current home, or lack of a home, or
• an applicant's health means that their current home is unsuitable e.g. they cannot manage stairs up to the bedroom or bathroom, or
• An applicant has health and wellbeing needs arising from domestic abuse
26. Health and wellbeing priority will not be awarded in the following circumstances:
• Anti social behaviour
27. The only exceptions will be cases where it is satisfied that landlord, police, Anti Social Behaviour team, or Environmental Health etc have done everything possible to resolve the anti social behaviour. Any cases will need significant evidence from landlord, police, Anti Social Behaviour team, or Environmental Health etc, and of the impact on the applicant’s health and wellbeing.
28. It tells applicants the outcome of their health and wellbeing assessment in writing, giving brief reasons explaining its decision. If they disagree with the assessment there is a right to review. They must state the reasons for review in writing and provide any additional health and wellbeing evidence.

Council complaints policy

29. The Council has a two stage complaints procedure published on its website.
30. It will provide a stage 1 response in 20 working days or explain why it needs more time.
31. The stage 1 response will include information on how to escalate the complaint.
32. It will provide a stage 2 response in 20 working days or explain why it needs more time.
33. The stage 2 response will include how to contact the Ombudsman.

Equality Act 2010

34. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
35. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
36. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.

What happened

Relevant background

37. The Council says Mr X originally applied to join the housing register in May 2019. At that time he did tick “yes” to the question in section 1 of the online application “is your health and wellbeing made worse by your current home” but he did not fully complete this section and only provided his GP name and phone number. At that time, and in accordance with its Policy the housing team should have contacted him to provide a health and wellbeing form. There is no note on the system to suggest this was done and that would have been a failure on the Council’s part at that time, although it does not fall within the scope of this complaint and was not received as a complaint from Mr X at that time.

This complaint

38. Mr X says on 1 and 15 October 2021 he contacted the Council to report ASB issues. He has provided call logs showing he contacted the Council on those days.
39. Mr X says in April 2021 he spoke to the Council again and explained the ASB issues he was facing. Mr X has provided call logs in support.
40. On 21 May Mr X sent a letter to the Council complaining it had failed to arrange appointments as requested. He said he spoke to the Council on 1 and 15 October seeking an appointment with the housing team due to ASB issues and explaining the urgency. Both times a Council officer said they would ask the team to call him but on one contacted him. ASB issues had now escalated.
41. On 9 June 2022 the Council took a housing application from Mr X by phone. The Council explains Mr X originally completed an application online in May 2019 and it amended details on this over the phone. The Council has provided a copy of the updated application. This reports Mr X:
• is at risk of homelessness.
• needs to move to escape violence.
• health or wellbeing is made worse by his current home.
• explained he faced threatening and abusive neighbours constantly. He did not feel safe in his own home, and had been in contact with police and landlord.
• does not have a disability.
• prefers contact by email.
• in response to the question whether he needed additional support to access the service, answered no.
42. The application does not include any questions around supporting evidence or advice on how to provide this. There is no reference to completing a health and wellbeing form. There is nothing to suggest the Council told Mr X to contact Environmental Health regarding ASB.
43. The application reports a Council officer completed the form as Mr X was struggling to access the internet.
44. Mr X says the Council told him it would contact him regarding evidence to support his application but failed to do so. He also says he told the Council he had dyslexia and difficulty filling in forms during the call.
45. On 24 June Mr X wrote to the Council to complain no-one had contacted him for assessment following the call of 9 June. He also requested copy of the application.
46. On 14 July Mr X chased the Council and said he had supporting evidence to provide. He said he could not log onto his online account and the message application was inactive.
47. The Council says it has no record of any contact with Mr X between October 2021 and July 2022 other than the call of 9 June 2022.
48. On 19 July the Council wrote to Mr X accepting him onto the housing register and awarding Band E as he had no housing need at the time of assessment. It explained if he disagreed he could request a review by writing to the Council within 21 days and providing any relevant information. It also explained the bidding process and how this may be done online or in person.
49. On 28 July Mr X complained to the Council:
• No one contacted him about his application or allowed him to provide evidence in support despite his requests.
• It sent him its decision but gave no reasons.
• The Council referred to an appeal online or at its offices. However he had limited access to a computer and its offices were closed to the public.
• He sought an explanation for the decision before he could request a review.
50. In response to Mr X’s 14 July email, the Council said:
• It sent its decision on 19 July.
• Mr X had said he needed to move to escape violence or harassment. He should provide evidence to support this and attach it to his application.
51. Mr X replied that he had searched the site but could not see where to provide documents so would send by email. He referred to attached evidence showing calls to the Council were not responded to, calls to the police and a police statement.
52. The Council said:
• It had now attached Mr X’s documents to his application.
• The Police letter showed it was no longer investigating and had closed the case closed. It therefore could not take this into account as it showed ASB issues have calmed down.
• If Mr X could provide any further evidence of support services provided to him it would consider this.
• He should attach further evidence to his application.
53. Mr X responded to say there was no witness or CCTV evidence meaning the Police could not prosecute but the ASB was still ongoing. The Police asked that he try to capture an incident on camera but in the meantime he still fears for his safety. Mr X said this was impacting his mental health and he could get a GP letter to this effect if needed.
54. The Council told Mr X it would need proof from a medical professional or support service to show why his accommodation was unsuitable. It also needed evidence of ASB issues and queried if he had contacted its estate management team which could investigate a complaint of ASB and then provide evidence to support an application.
55. Mr X confirmed he would get a GP letter and that he would try to take a photo but this put him in harm’s way.
56. Mr X then said it was not safe to take photos of his neighbour but he had attached photos showing drug use near his property and an injury he sustained.
57. The Council told Mr X the photos did not prove ongoing ASB issues. It needed evidence from the Police. He should also provide evidence from his doctor.
58. On 7 September the Council sent Mr X its response to his complaint. It said the team had sent him several emails explaining the reasons for his banding and the information needed to review this decision. If he was at risk of homelessness he should contact its housing options team. It had considered the information he provided regarding ASB, including photos and a police statement. However it did not have sufficient evidence of the ASB to be able to award a higher banding. It had also explained the further information it needed, including documentation from the police and any supporting health and wellbeing information from his GP. It was satisfied it communicated appropriately. He could go to stage 2 if he remained unhappy.
59. Mr X responded further to the request for evidence. He explained he had no computer and no internet. He requested meetings and assistance as he had been unable to complete forms himself. He referred to GP letters attached.
60. On 7 October Mr X escalated his complaint. In summary he said:
• He called the Council on 1 October 2021 regarding ASB and was a promised call back but no one contacted him.
• He called again to chase on 15 October but again no-one contacted him.
• His neighbour has threatened him and he reported this to the police but they were unable to prosecute. The incident affected his mental health.
• While there had not been further threats he felt frightened and intimidated in the presence of his neighbour. This amounts to harassment.
• He wants to know why no one contacted him regarding his reports of ASB. He also complained by letter of 21 May.
• He spoke to the Council by phone on 9 June about his housing application. The Council said another officer would contact him to gather evidence to support his application but no one did.
• He complained again by letter on 24 June.
• He received notice of acceptance onto register on 19 July but he has been on the register since 2019.
• No one contacted him to offer support even though he made clear he had a disability and needed this.
• On 28 July he sent a further letter of complaint. Only after this complaint did the Council ask him for evidence to support his application. However, it gave him no means to do this noting he has limited computed access.
• He was able to send information with help but did not receive a response until September.
• As to the information requested, it would endanger him to provide this and it would take time to get information from his doctor.
• He asked that the Council consider accommodating him elsewhere on reviewing his banding with reference to his doctor’s letter of 6 September 2022.
61. The Council provided its stage 2 complaint response on 17 November 2022. In summary it said:
• It had the GP letter but a lack of supporting evidence from the police other than decision to take no further action in January 2022.
• To consider higher banding it needed evidence of the incidents complained of.
• If he could provide evidence of ASB then its environmental health team will investigate.
• It did not have evidence to support his claims or harassment or to support a higher banding.
• He could contact the Ombudsman.
62. Mr X contacted the Ombudsman. He added:
• He is dyslexic and needs support in completing forms etc. He cannot search for help and relies upon services to provide help and advice.
• The Council did not tell him environmental health could help him until recently.
• The Council failed to answer or acknowledge any delay.
• The Council ignored the effect the ASB was having on his safety and wellbeing. Its request for further evidence ignored his safety, was extremely unreasonable and beyond its own policy guide for a doctor’s supporting letter.
• The Council had not provided any help, support or advice.
• His neighbour was ignoring him now but still made his presence known; a silent intimidation.
63. In response to enquiries the Council added:
64. Its procedures manual provides 20 working days for it to assess a housing application.
65. Mr X did not fully complete the health and wellbeing section when he originally applied in 2019 and only provided a GP letter in September 2022. This contained minimal information and it was going assess this along with supporting information from the police.  As it did not receive the supporting information it has no justification or supporting evidence to change Mr X’s banding.
66. In comments on a draft decision Mr X said if the Council provided support in October, it could have gathered information and possibly prevented the threats of violence and harassment he received or at least had a better record of the incidents that were occurring.

Findings

67. In consideration of Mr X’s call logs and the content of his complaint correspondence, I am satisfied on balance he tried to report ASB issues to the Council from October 2021 to June 2022 but the Council did not get back to him. This is fault. This was a missed opportunity for the Council to provide support and Mr X suffered distress and uncertainty as a result. This is injustice.
68. To address Mr X’s comments, I consider it is not possible to say what actions the Council would have taken or what decisions its may have reached had it made contact over that period. There are too many variables and it is too uncertain to say this fault directly caused additional injustice to Mr X.
69. I acknowledge the Council may not have received letters sent by Mr X, through no fault of its own. However, there is no explanation as to why it does not have a record of calls that took place. The lack of records amounts to fault. I consider this did not cause significant injustice to Mr X, however the Council may wish to review its record keeping procedures.
70. The housing application shows the Council asked Mr X if he had a disability and if he needed support accessing the service. I consider this evidence the Council had due regard to its duties under the Equality Act 2010.
71. Mr X says he told the Council he had difficulty completing forms on 9 June 2022 but the Council has no record or this. On the evidence available I cannot say, even on balance, that this was communicated on 9 June. Therefore, I cannot find fault.
72. The Council’s policy requires evidence to support an application but I have seen nothing to suggest the Council asked Mr X for evidence or told him how to provide this, before reaching a decision on his application. This is fault. Mr X then suffered distress in seeking the chance to provide evidence. This is injustice.
73. The Council’s policy requires an applicant to complete a health and wellbeing assessment form if this is factor in rehousing. But I have seen nothing to suggest the Council asked Mr X to complete this before reaching a decsion on his application even though he said his health and wellbeing was impacted. This is fault. Mr X missed the opportunity to provide information to support a higher banding, casing distress and uncertainty. This is injustice.
74. The Council’s policy is for a complaint to report ASB to the relevant team. But despite Mr X raising ASB on 9 June 2022 the Council did not ask if he had contacted Environmental Health or tell him to do so. This is fault. Mr X missed the opportunity to have the team investigate his concerns sooner as a result. This is injustice.
75. The Council issued its decision on Mr X’s application in 27 working days. This was a slight delay but does not reach our threshold for a finding of fault.
76. The Council decided on 19 July that Mr X had no housing need without first giving him the chance to evidence this. This is fault in its decision making. Mr X suffered distress as a result. This is injustice.
77. In correspondence of July and August Mr X made clear he had limited computer access and could not attach documents to his online account. But the Council repeatedly asked him to provide evidence without offering advice or support on how to do so. This amounts to fault. Mr X suffered distress as a result. This is injustice.
78. In August the Council requested evidence to support Mr X being at risk of violence. It considered the evidence provided and found this did not support a higher banding. I cannot question the Council’s judgement.
79. Mr X referred again to the impact on his health. The Council asked for GP evidence in support then clarified it needed evidence of ASB and GP evidence But it still did not provide or request Mr X complete a health and wellbeing form. This is fault. Mr X again missed the opportunity to provide information to support a higher banding. This is injustice.
80. The Council did not give Mr X clear reasons for its decision that the GP evidence provided was not sufficient. We would expect the Council to have referred to its policy and made clear it also needed evidence of ASB alongside the GP evidence. The lack of clear reasons amounts to fault. Mr X suffered distress and uncertainty around the Council’s decision making. This is injustice.
81. The Council told Mr X he would need to provide evidence of ASB to its Environmental Heath team for it to investigate. However, its policy does not require a complainant to evidence concerns at the outset. This is fault. Mr X has not had the same opportunity as others to have the team consider his concerns. This is injustice.
82. While I have found fault in the Council’s handling of Mr X’s application and its decision making, it remains the Council is not satisfied Mr X has evidenced ASB as required in its policy (as outlined at paragraph 27). Therefore, I cannot say the Council’s fault affected its decision outcome on banding or has meant Mr X remained in his current accommodation for longer.
83. The Council’s complaint responses were two weeks late on both occasions and neither addressed Mr X’s complaints about lack of contact. This is fault. Mr X was put to avoidable time and trouble in the complaints process. This is injustice.

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Agreed action

84. To remedy the injustice set out above the Council should carry out the following actions:
85. Within one month:
• Provide Mr X with a written apology for the shortfall in its communications;
• Pay Mr X £100 for time and trouble:
• Pay Mr X £200 for distress and uncertainty;
• Ensure its Environmental Health team contact Mr X and investigate his complaints of ASB in line with Council policy, if it has not already done so;
86. Within three months:
• Share a copy of this decision with each staff member who had contact with Mr X to ensure they are aware why the Ombudsman has found fault and to remind them to take care to avoid recurrence in future.
87. The Council should provide us with evidence it has complied with the above actions.
88. The Council has accepted my recommendations.

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Final decision

89. I find the Council at fault in its communications with Mr X. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman