Summary: The Council was at fault because it used an out-of-date definition when it decided Mr X did not have priority need for accommodation. It also failed to make reasonable adjustments for Mr X’s disability. The Council is not at fault for how it coordinated with children's services. The Council has agreed to apologise, make a new decision about priority need, pay Mr X £500, and act to improve its services.

The complaint

1. Mr X complained about how the Council dealt with his homeless application. In particular, that the Council:
1. wrongly decided he did not have priority need for housing because it failed to consider that he is homeless as a result of domestic abuse;
2. told him to go to an address for emergency accommodation only to have let the room to someone else and did not provide alternative accommodation for a week;
3. failed to consider whether the emergency accommodation was suitable after he reported experiencing verbal and racially motivated abuse from another resident and her visitors;
4. failed to coordinate effectively with children’s services to share information and protect his child from harm; and
5. failed to make reasonable adjustments to enable him to get essential information in an accessible way.
2. As a result, Mr X is homeless and says his child remains at risk of harm.

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The Ombudsman’s role and powers

3. 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)
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), 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 spoke to Mr X about the complaint.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance, including:
• The Housing Act 1996, as amended
• The Homelessness Code of Guidance for Local Authorities
• The Domestic Abuse Act 2021
8. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
9. Mr X 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

Relevant law and guidance about homelessness

10. 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.
11. If councils are satisfied applicants are homeless and eligible for assistance, they must take reasonable steps to secure accommodation. This is called the relief duty. When a council decides this duty has come to an end, it must notify the applicant in writing. (Housing Act 1996, section 189B)
12. 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)
13. The law says certain people will always be in priority need. This includes pregnant people, families with dependent children, and people who are vulnerable due to age or a disability. In July 2021, section 78 of the Domestic Abuse Act introduced a new category of person who will be in priority need. This was “a person who is homeless as a result of that person being a victim of domestic abuse.” (Housing Act 1996, section 189)
14. If, at the end of the relief duty, a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need the council has a duty to secure that accommodation is available for their occupation. This is called the main duty. (Housing Act 1996, section 193)
15. After completing inquiries, the council must give the applicant a decision in writing. If it is an adverse decision, the letter must fully explain the reasons.  All letters must include information about the right to request a review and the timescale for doing so. (Housing Act 1996, section 184, Homelessness Code of Guidance 18.32 and 18.33)
16. Homeless applicants may request a review within 21 days of being notified of a decision on their homelessness application. This includes a decision that an applicant is not in priority need. (Housing Act 1996, section 202)
17. Following a review, the council must advise applicants of their right to appeal to the county court on a point of law, and of the period in which to appeal. Applicants can also appeal if the Council takes more than the prescribed time to complete the review. (Housing Act 1996, sections 202, 203 and 204)

Reasonable adjustments

18. 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.
19. 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.
20. 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

21. In February 2021 Mr X approached the Council for help because he was homeless. Mr X previously lived with his partner and their child but left the home after his ex-partner was arrested for assaulting him.
22. The Council accepted it owed Mr X the relief duty and issued him with a personalised housing plan. The Council said at that time, it did not have reason to believe Mr X was in priority need. It therefore did not provide any interim accommodation.
23. Children’s social care began a Child and Family Assessment after the police referred the matter. The Council completed this in March. It found that Mr X’s child had been exposed to domestic abuse in the home but this risk was mitigated now Mr X no longer lived there. The report, which the homeless team had a copy of, detailed the content of a video showing Mr X’s ex-partner hitting him in front of their child.
24. In April, the Council had more information from Mr X’s IDVA (Independent Domestic Violence Adviser) and GP. It decided it did now have reason to believe Mr X may be in priority need and provided interim accommodation from the end of the month.
25. When Mr X arrived at the arranged accommodation, he found the room was let to someone else. He said there was no alternative accommodation because the only room available was under construction. He says he had to sleep in his van in the car park for a week. The Council says it was resolved the same day when the accommodation provider made a different room available to Mr X. The Council said Mr X emailed the Council to let it know and to say this room was better for him.
26. In July, section 78 of the Domestic Abuse Act introduced a category of person who will be in priority need. This was “a person who is homeless as a result of that person being a victim of domestic abuse.”
27. In September, the Council decided Mr X did not have a priority need because he was not ‘vulnerable’ as defined by the Housing Act and relevant case law. The definition of priority need in the letter did not include the new category introduced by the Domestic Abuse Act.
28. Mr X asked for a statutory review of this decision. The Council’s issued the review decision in October. The review agreed with the original decision. It used the same definition of priority need and legal test as the original decision.
29. The review decision letter is 11 pages long. At the end it advised Mr X of his right to appeal to court on a point of law if he disagreed with the decision. Mr X did not exercise this right. When he complained to the Council, Mr X said that he had tried but could not get legal aid to help him appeal to court.
30. Mr X has a disability which makes reading and interpreting written information difficult. He said the Council did not make any reasonable adjustments to help him get essential information in an accessible way. The Council said Mr X did tell it about his disability but did not ask for any reasonable adjustments. It said Mr X appeared to have no difficulty in communicating by email.
31. When Mr X brought his complaint to the Ombudsman, he answered “yes” to the question on our form which asks whether a complainant needs any reasonable adjustments.

My findings

No priority need decision

32. The Ombudsman usually expects people to appeal to court when they have a statutory right to do so. However, we can investigate if we decide there was a good reason the complainant could not or did not do so.
33. Mr X had a right to appeal to court about the Council’s decision he was not in priority need. Mr X said he tried to get legal aid to bring an appeal to court but his income was £50 above the limit to qualify for this. He could not afford to pay for legal help without legal aid. This is a good reason Mr X could not appeal to court.
34. The issue is not a question of interpretation of the law or the reasonableness of the decision, which are properly matters for the court. It is a straightforward issue of the content of the law when the Council made its decision.
35. For these reasons, I have exercised discretion to investigate this part of the complaint.
36. Before the Domestic Abuse Act introduced a category of applicant who will have priority need, the test was whether the applicant was “vulnerable as a result of…violence…or threats of violence.” Case law says ‘vulnerable’ in this context means whether a person would be more vulnerable that an ordinary person if they became homeless. The Council decided Mr X was not ‘vulnerable’ under this definition.
37. The Domestic Abuse Act added a new category to the list of applicants who will be in priority need: “a person who is homeless as a result of that person being a victim of domestic abuse.” This removed the need to consider the ‘vulnerable’ test.
38. The Council used the wrong definition of priority need when it decided it did not owe Mr X the main housing duty because he was not in priority need. The review decision repeated this error. This is fault.
39. The Council should have considered whether Mr X was homeless because of domestic abuse. It should have considered the evidence from Mr X, the police, the IDVA, and the social services assessment to reach a finding of fact about the reason Mr X was homeless.
40. If the Council decided Mr X was homeless because of domestic abuse, he would be in priority need for accommodation. It would then have gone on to decide whether the Council owed him the main housing duty.
41. There is uncertainty about whether the Council would have reached the same decision were it not for the fault. This is an injustice to Mr X.

Interim accommodation

42. Mr X says he had to sleep in his van for a week because the interim accommodation the Council secured was double booked and the other rooms made available to him were uninhabitable.
43. In response to my enquiries, the Council provided evidence the provider gave Mr X a different room the same day. It sent me a copy of an email from Mr X advising the Council of the issue two days after the offer. In that email, Mr X says the room provided suited him better.
44. However, Mr X provided evidence of an email he sent to the Council in which he says the room, although better for his needs, was unavailable. He also provided photographs showing the condition of the various rooms.
45. The room initially double booked was 6B. The Council’s records show Mr X was then accommodated in 7B. However, in both his emails to the Council Mr X says his room is 8A. He says 7B was in too poor a state to inhabit and that 8A had ongoing construction works.
46. When the Council provided alternative accommodation for Mr X the following week, it recorded him leaving room 7B. This is inaccurate. Failure to keep accurate records is fault.
47. At best, therefore, there is uncertainty about which room was available for Mr X to occupy. This caused Mr X avoidable distress at an already difficult time. This is an injustice.
48. However, I find it likely that although not decorated, room 8A was available for Mr X to use and suitable for the very short time he was there.

Suitability of interim accommodation

49. Mr X says he experienced racially motivated harassment and abuse from another occupant of the interim accommodation.
50. The Council provided evidence to show it investigated this and found the incident occurred as Mr X described. It issued a warning to the other occupant. It wrote to Mr X to say he should report the matter to the police and tell the Council if it happened again.
51. The Council has not provided specific evidence to show it considered whether the accommodation remained suitable for Mr X. It would be good practice for it to keep records showing this. However, I consider that having investigated the matter and advised Mr X what to do if it happened again, the Council was satisfied the accommodation remained suitable. I therefore do not find the Council was at fault.
52. Mr X did not report any further issues to the Council or the police to suggest the issues continued.

Coordination with children’s services

53. Mr X says the Council knew about an ongoing risk to his child from his ex-partner and failed to share this information with children’s services. He says children’s services failed to protect his child from harm.
54. The Council has provided evidence to show it conducted an assessment following the referral from the police. It decided that there were concerns in the home, including domestic abuse which the child witnessed. However, Mr X leaving the home reduced the risk to the child significantly. Both parents had agreed to further support from the Council around their parenting and agreed a safety plan. The Council decided, therefore, that it did not need to take any steps to protect the child. I find no fault in how the Council assessed the family.
55. The homelessness team got a copy of this assessment as part of its inquiries. There is no evidence it failed to share any relevant information with social services. I therefore find no fault in this part of the complaint.

Reasonable adjustments

56. Mr X’s disability makes accessing written information difficult. In response to my enquiries, the Council confirmed Mr X told it about this disability. It said he did not ask for any reasonable adjustments and did not seem to have any difficulty communicating in writing. As his complaint to the Ombudsman shows, when given the opportunity to do so Mr X identified the reasonable adjustments he needed.
57. The duty to make reasonable adjustments is anticipatory and proactive. When Mr X told the Council about his disability, the Council should have asked whether he needed any adjustments. Failure to do so was fault. This made Mr X’s communication with the Council more difficult for him than it needed to be. This is an injustice to Mr X.
58. Decisions about homelessness involve legal duties and can have significant consequences. As in this case, decision letters often contain complex language and references to legislation and case law. There is a 21 day time-limit to ask for a review. It is therefore important that applicants can access and understand the information with any reasonable adjustments they might need.

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Agreed action

59. To remedy the injustice to Mr X from the fault I have identified, the Council has agreed to:
• Apologise to Mr X
• Make a new decision about whether Mr X has priority need for accommodation, with reference to the up-to-date definition and the evidence from the police, IDVA, and children’s services. If the Council finds Mr X has priority need, it should remedy any injustice in line with our guidance on remedies.
• Offer Mr X accommodation while the Council makes a new decision.
• Pay Mr X £500 to recognise his avoidable distress and uncertainty.
60. The Council should take this action within four weeks of my final decision.
61. The Council should also take the following action to improve its services:
• Remind relevant staff of the change to the definition of priority need introduced by the Domestic Abuse Act 2021.
• Amend relevant template letters, emails, and internal guidance to include the up-to-date definition of priority need.
• Remind relevant staff of the proactive duty to make reasonable adjustments under the Equality Act. Provide training or guidance as needed.
62. The Council should tell the Ombudsman about the action it has taken within eight weeks of my final decision.

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Final decision

63. I have completed my investigation. There is some fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman