Summary: We found fault in the way the Council dealt with the complainant’s (Ms X) suitability review request and her Housing Register application review. Some of the Council’s failings caused Ms X injustice and we made recommendations for the Council to remedy it by apologising, making payments for Ms X and reminding its staff of the relevant processes.

The complaint

1. Ms X says the Council first refused to accept her request for a suitability review of her temporary accommodation and then delayed its decision.
2. She also complains about the way the Council reviewed her Housing Register application after she asked for a change in her priority band on medical grounds.

Back to top

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. 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. 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)

Back to top

How I considered this complaint

7. I spoke with Ms X and considered the information she provided.
8. I made enquiries with the Council and considered the information it provided.
9. I reviewed the Council’s Housing Allocation Scheme (the Scheme).
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legal and administrative framework

Suitability review

11. 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)
12. Homeless applicants may request a review within 21 days of being notified of the decision on their homelessness application. There is also a right to request a review of the suitability of temporary accommodation provided once the Council has accepted the main homelessness duty. (Housing Act 1996, section 202)
13. Homeless applicants must request a review within 21 days of the decision. However, applicants can ask a council to reconsider its decision about the suitability of temporary accommodation at any time. This might be necessary, for example, if there is a change in the applicant’s circumstances. This new decision is open to review under section 202, with a new 21 day timescale. R(B) v Redbridge LBC [2019] EWHC 250 (Admin)
14. The review must be carried out by someone who was not involved in the original decision and who is more senior to the original decision maker. The reviewing officer needs to consider any information relevant to the period before the decision was made (even if only obtained afterwards) as well as any new relevant information the Council has obtained since the decision. (The Homelessness (Review Procedure etc.) Regulations 2018, Homelessness Code of Guidance Chapter 19)
15. Councils must complete the review within eight weeks of receiving the review request. This period can be extended but only if the applicant agrees in writing. The council must advise applicant 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)
16. The courts said the section 193 duty to secure suitable accommodation was immediate and unqualified. It arose as soon as there was a decision the current accommodation was unsuitable, and there was no implied “reasonable period” to fulfil the duty. R (on the application of Elkundi and others) v Birmingham City Council; R (on the application of Imam) v Croydon London Borough Council [2022] EWCA Civ 601

Housing Register application

17. 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))
18. 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;
• people who need to move to avoid hardship to themselves or others;
  (Housing Act 1996, section 166A(3))
   

19. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority. Statutory guidance on the allocation of accommodation says:

• review procedures should be clear and fair with timescales for each stage of the process
• there should be a timescale for requesting a review - 21 days is suggested as reasonable;
• the review should be carried out by an officer senior to the original decision maker, or by a panel not including the original decision maker;
• reviews should normally be completed within a set deadline - 8 weeks is suggested as reasonable.

Key facts

Background

20. The Council accepted a main housing duty to Ms X in October 2010.
21. Since January 2006 Ms X has been on the Council’s Housing Register bidding for four-bedroom properties.
22. In April 2022 the Council offered Ms X a different property as her previous temporary accommodation was requested back by the landlord. She accepted this offer and moved there in April 2022.

Suitability review

23. In February 2021 Ms X told the Council she needed a change of accommodation. The Occupational Therapy (OT) team found her flat could not be adapted to respond to her child’s (Y) needs stemming from a medical condition.
24. Following submission of the OT report, a telephone conversation took place between a Council officer and Ms X. A day later the Council in an email correspondence told Ms X it needed to decide whether to accept her request to review suitability of her accommodation, which it considered to be out-of-time.
25. After several chasing up communications from Ms X, in early April 2021 the Council’s Review Team refused to review suitability of Ms X’s property.
26. Throughout April the Council made further enquiries about Ms X’s circumstances. It got advice from the OT and the social worker involved with the family.
27. The Council’s Review Officer, having examined extra information at the end of April 2021, confirmed the Council’s previous position on Ms X’s request for a suitability review.
28. In May 2021 the family’s social worker provided the Council with more information, following which, at the end of May 2021, the Council accepted Ms X’s review request.
29. In June 2021 Ms X’s solicitor told the Council she would be representing Ms X.
30. In October 2021 the Council issued a suitability review final decision, in which it determined Ms X’s accommodation was suitable for her and her family. The decision included information of Ms X’s right to appeal to the County Court.

Housing Register application

31. In the second week of June 2021 Ms X’s solicitor contacted the Council about Ms X’s suitability review and her Housing Register application. In response the Council provided a timetable for suitability review representations. It also explained that if there were any changes in her circumstances, Ms X should tell the Council. Based on any new information the Housing Register team would decide whether a re-assessment should take place.
32. Following this advice, in June and July 2021 Ms X’s solicitor filed some medical evidence and social worker’s correspondence. She also sent an OT report. Ms X communicated with the Council’s Review Team.
33. In mid-August 2021 the Review Team asked the Housing Register team to consider a re-assessment of Ms X’s Housing Register application.
34. Unhappy with the lack of response to her request for the banding re-assessment, Ms X complained to the Council in the beginning of November 2021.
35. At the end of November 2021, after another email from Ms X, the Council agreed to carry out a re-assessment of Ms X’s application on the Housing Register and issued a decision.
36. The Council decided Ms X application should remain in the priority band three of its Housing Register as:
• The Council owes Ms X a homelessness duty;
• Ms X lives in accommodation provided by the Council; and
• A member of her household has a moderate medical condition that is affected by their current home.
37. When making its decision the Council considered the recent OT report and the medical advisor’s recommendations obtained when reviewing suitability of Ms X’s accommodation.
38. The Council’s decision also contained information on Ms X’s rights to request a review within 21 days if she was unhappy with the Council’s decision.

Housing Register application review

39. In December 2021 Ms X contacted the Council officer who issued the decision about her Housing Register application and asked for a review.
40. The Council officer failed to pass this correspondence on to the review team. In its response to my enquiries the Council explained the officer who received Ms X’s correspondence had wrongly assumed Ms X would be contacting the review team separately, following the advice included in the Council’s decision letter.
41. With no response forthcoming, Ms X again contacted the Council in the beginning of March 2022.
42. Ms X’s solicitor communicated again with the Council in the third week of March 2022 arguing she fulfilled the criteria for a higher priority on the Housing Register.
43. In the third week of April 2022 the Council issued its decision about the change in Ms X’s Housing Register application, moving her application from priority band three to priority band two. The Council explained it placed Ms X in priority band two as a member of her household was suffering from a serious medical condition or disability that was affected by their current home.
44. Ms X said between December 2021 and April 2022 she did not provide any new medical information to the Council which could explain the change in her Housing Register banding. The Council confirmed that it did not receive any new evidence within these months.
45. Responding to my enquiries, the Council stated it made a mistake when it granted Ms X a higher priority on the Housing Register in April 2022 as there were no changes to her family’s circumstances at the time, which would justify the higher priority. The Council said when issuing its new decision it also failed to consider that in the second week of April 2022 it offered Ms X a new suitable temporary accommodation, which she accepted and moved into. The Council would now re-assess Ms X’s application to ensure she is given the correct priority.
46. At the end of July 2022 the Council issued a new decision for Ms X, placing her back in the band three. The decision included advice on Ms X’s rights to ask for a review within 21 days.

Analysis

The Ombudsman’s jurisdiction regarding suitability review

47. The Council’s delays within the review process can be appealed to court. We would only consider this reasonable if the letter from the Council told Ms X about her right to do this and if the Council took more than the statutory eight weeks to make the decision.
48. Until Ms X instructed a solicitor she was not aware of her rights to challenge the Council’s position on the suitability review of her accommodation. At this stage we do not have any evidence the Council formally refused Ms X’s suitability review request and advised her of the possibility to appeal this decision.
49. It would, therefore, be unreasonable to expect Ms X to know about her rights to challenge the Council’s actions by taking the matter to court.
50. Once a solicitor represented Ms X, any delays in the review could have been appealed. As explained under paragraph 4 we cannot, therefore, consider the part of Ms X’s complaint about the way the Council carried out her suitability review, including any delays, from the end of May 2021.
51. Ms X stated she did not consider challenging the Council’s housing decisions following reviews by appealing to the County Court because of the costs of court proceedings. I do not consider the lack of funds to cover court fees as a justifiable reason not to use the appeal rights, as people who cannot afford legal costs can apply for public funding.

Fault and injustice within the suitability review

52. For the reasons explained in paragraphs 47 to 51 of this decision we considered the way the Council carried out its suitability review duties from the second week of February 2021 till the end of May 2021.
53. I find the Council to be at fault for:
• refusing to carry out suitability review after receiving from Ms X information on the change of circumstances. The suitability of temporary accommodation is the Council’s continuing duty and should be kept under review. This is especially relevant if there are changes in the person’s or family’s circumstances.
• misleading information given to Ms X. The Council’s statement Ms X’s request to review the suitability of her accommodation was out-of-time was misleading as it suggested she could only have asked for a suitability review directly after the Council’s offer of this accommodation. This approach would exclude any possibility of asking for a suitability review after the change of circumstances.
• failing to issue a decision refusing to carry out a suitability review and advising Ms X on her appeal rights. Following Ms X’s request for the review the Council undertook actions such as consultations with Y’s social worker and OT team but refused to treat them as part of the review. This meant that Ms X could not challenge the Council’s decision refusing to carry out a suitability review.
54. The Council’s faults resulted in injustice to Ms X:
• delay in her rights to challenge the Council’s decision in court;
• distress, which eventually led Ms X to seeking legal support.

Housing Register application

55. It is not for the Ombudsman to decide what priority banding Ms X should be given. That is a decision for the Council to make based on the evidence provided in line with the Scheme. The role of the Ombudsman is to look at the way in which the Council has made its decision.
56. The Scheme introduces four priority bands:
• band one for emergency applications;
• band two for urgent applications;
• band three for priority applications;
• band four for applications with reduced priority.
57. The Scheme specifies the process when seeking priority on the Housing Register on medical grounds:
• applicants should complete an online medical assessment form and provide supporting evidence;
• the Council may seek advice from the Council’s Housing Medical Advisor;
• a relevant officer with the Housing Service will decide which priority to give to the applicant. For bands three and four this will be a Housing Options Officer, Housing Options Manager or any of the managers detailed for band two;
• applicants will receive the result of the assessment in writing within eight weeks;
• applicants unhappy with the Council’s decision can ask for a review;
• the Council will only undertake a further assessment for priority on medical grounds following a decision (or review decision) when it is satisfied there has been a change in circumstances relevant to the assessment or significant new information is available.
58. In mid-August 2021 the Council’s review team found out Ms X provided all the necessary documents and passed Ms X’s request for her Housing Register application re-assessment to the Housing Register team. The Council should have issued a decision in mid-October. It did not do so until the end of November.
59. The delay of seven weeks in considering Ms X’s priority band on medical grounds is fault. This fault, however, did not cause Ms X any injustice as her priority on the Housing Register following the re-assessment remained the same as before.

Review of the Housing Register decision

60. Ms X asked the Council to review its decision in the third week of December 2021. Under the Scheme the Council should have considered this request within 56 days.
61. Instead of issuing its decision in the second week of February 2022, the Council made its decision in the third week of April 2022, ten weeks after the deadline. The Council’s delay in considering Ms X’s review request is fault.
62. The Council’s fault caused Ms X injustice as for over two months she could not bid for properties in line with her revised priority on the Housing Register.
63. Although the Council said it has now recognised its position on Ms X’s priority banding communicated in April was mistaken, at this stage I do not consider it has any implications for my decision. The Council placed Ms X in priority band two from the end of April till the end of July. If not for the Council’s delay in issuing this decision, Ms X would have had extra ten weeks of bidding for properties available for the priority band two applicants.

Back to top

Agreed action

64. To remedy the injustice caused by the faults identified, we recommend the Council within four weeks of my final decision complete the following:
• send a written apology to Ms X;
• pay Ms X £200 to acknowledge her distress and the extra time and trouble necessary to pursue her complaint;
• pay Ms X £135 as half of her legal costs;
• pay Ms X £200 to recognise missed bidding opportunities.
65. We also recommend the Council within three months of the final decision ensure:
• staff in the homelessness team are reminded that suitability of temporary accommodation is the Council’s ongoing duty and should be kept under review, especially when notified of a change in the circumstances;
• all staff dealing with the Housing Register applications review the Council’s Housing Allocation Scheme and paragraph 5.23 of the ‘Allocation of accommodation: guidance for local housing authorities in England’.

The Council will send us the written confirmation of the staff having completed tasks specified in this paragraph, indicating when it happened and how many officers participated.

Back to top

Final decision

66. I uphold this complaint. The Council has accepted my recommendations and this investigation is now complete.

Back to top

Investigator's decision on behalf of the Ombudsman