Summary: There was fault in the way the Council decided not to provide Miss B with interim accommodation when she told the Council she was homeless. The Council also failed to respond to Miss B’s correspondence and gave her incorrect information about her homelessness application. The Council has agreed to apologise and make a payment to Miss B and to take action to prevent similar failings in future.

The complaint

1. There were failings in the way the Council dealt with Miss B’s homelessness and housing applications. In particular, that it:
• failed to provide suitable accommodation when she was homeless with her young son, and did not provide any accommodation between 8 March and 28 April 2022;
• failed to respond to correspondence about the suitability of the accommodation provided;
• failed to properly investigate her homelessness application; and
• wrongly decided that she was not eligible to join the Council’s housing register.
2. Miss B says that as a result of the Council’s failings, she and her son remain living in unsuitable accommodation. She says that the Council’s failings have also caused her significant distress and put her to avoidable time and trouble.

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What I have and have not investigated

3. I have investigated the Council actions following Miss B’s homeless approach.
4. I have not investigated the Council’s decision that Miss B is not homeless, or the time it has taken the Council to review its decision. This is because Miss B has the right to appeal the decision to the county court and can also appeal if the Council takes more than eight weeks to complete the review. I have decided that we should not investigate this aspect of Miss B’s complaint because it would be reasonable for Miss B to use her right of appeal.
5. I have also not investigated the Council’s decision that Miss B is not eligible to join the Council’s housing register. This is because Miss B had the right to request a review of the decision, and I consider it would have been reasonable for Miss B to use that right.

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The Ombudsman’s role and powers

6. 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)
7. 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)
8. 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

9. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Homelessness legislation and government guidance

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 a council has ‘reason to believe’ someone may be homeless or threatened with homelessness, it must take a homelessness application and make enquiries. The threshold for taking an application is low. (Housing Act 1996, section 184 and Homelessness Code of Guidance paragraphs 6.2 and 18.5)
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 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)
14. Homeless applicants may request a review of a decision about their eligibility for assistance. Councils must complete reviews within eight weeks of the date of the review request. This period can be extended if the applicant agrees in writing.
15. The council must advise the 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. Applicants may ask a council to provide accommodation pending the outcome of a review. Councils have a power, but not a duty, to accommodate certain applicants and members of their household. (Housing Act 1996, sections 188(3), 199A(6), 200(5))
17. Bed and breakfast accommodation is not suitable for households with ‘family commitments’. The Order defines this as a household that includes a dependent child or a pregnant woman. Where no other accommodation is available, the authority may place a family in bed and breakfast accommodation as a last resort but only for a maximum of six weeks. (The Homelessness (Suitability of Accommodation) Order 2003)

Background and summary of key events

18. In January 2022, Miss B contacted the Council for help with her housing situation. She said that she and her four-year-old son were staying with a friend and that they could not return to their council flat because it was causing her anxiety and depression. Miss B referred to anti-social behaviour and disrepair in the flat. She said she had been trying to move for two years without success.
19. A council officer contacted Miss B to speak to her about her housing situation. He said that he was not satisfied she was homeless but invited her to provide further evidence regarding her mental health.
20. Miss B provided medical evidence and approached the Council again a few days later. An officer completed a homelessness application with Miss B over the telephone. He then wrote to Miss B confirming the advice he had provided about getting support with her mental health, joining the Council’s housing register, reporting the anti-social behaviour and dealing with the disrepair. He confirmed that temporary accommodation could not be provided.
21. Miss B approached the Council again the next day. She said that she would not return to her flat because it was not safe and if accommodation was not provided, she and her son would have to spend the night at a train station.
22. An officer found a provider of supported housing with availability for a mother and child and a referral was made to Adult Services regarding Miss B’s mental health.
23. After living in the supported accommodation for around a week, Miss B contacted the Council to raise concerns about the accommodation. She said that her son has autism and could not sleep due to the noise, and it was not safe for him as the front door could not be locked. A council officer told Miss B that the Council could not move her to alternative accommodation.
24. Around three weeks later, Miss B’s support worker contacted the Council on her behalf raising concerns about the accommodation provided. The support worker was told that the accommodation had not been provided by the temporary accommodation team. An officer contacted Miss B and discovered that she was staying with a friend in London.
25. Miss B contacted the Council when she returned to the area on 7 March. She was told that the Council had decided she was not homeless and therefore did not qualify for temporary accommodation.
26. Miss B stayed with family for a few days but then on 11 March, she attended the Council’s offices asking to be provided with accommodation. She was again told that she was not homeless because she had a tenancy available to her. When Miss B refused to leave, she was physically removed from the Council’s offices.
27. Miss B contacted the Council several times asking for the decision on her homelessness application. It was provided on 6 April and stated that the Council had decided she was not homeless.
28. On 22 April, a homelessness charity submitted a review request on Miss B’s behalf. It said that it considered the Council had failed to properly consider whether it was reasonable for Miss B to continue to occupy her council flat. It asked that Miss B be provided with accommodation pending the outcome of the review.
29. The Council provided bed and breakfast accommodation for Miss B in a neighbouring council area. Miss B did not consider the accommodation was suitable and requested a review on 4 July. The Council told Miss B that as it had decided she was not homeless, she was not owed a housing duty. It explained that the accommodation had been provided under the section 188 interim accommodation duty and there was no statutory right to a review of its suitability. It said that her concerns about the accommodation would be considered.
30. The Council placed Miss B in alternative self-contained accommodation in September.
31. In November, the Council carried out a review of its ‘not homeless’ decision. It decided that the decision was flawed because sufficient enquiries had not been made before it had arrived at the ‘not homeless’ decision. It overturned the decision and explained that Miss B’s case would be reviewed, further enquiries would be made and another decision would be made on her homelessness application within 56 days.

Analysis

Homelessness application

32. When Miss B approached the Council, it had to decide if there was reason to believe that she may be homeless or threatened with homelessness. If it considered there was reason to believe she may be homeless, it would have a duty to secure interim accommodation for her. If it did not consider she may be homeless, it would not have a duty to secure accommodation, but it would have to provide her with a written section 184 decision notice. This would provide details of her right to request a review of the decision.
33. In this case, the Council says it did not consider there was reason to believe that she may be homeless. It therefore should have provided her with a written section 184 decision immediately and provided details of her right to request a review. It should have also made it clear that while it had found accommodation for Miss B and her son out of concern for their welfare, it had not placed them in accommodation because it owed them a housing duty.
34. However, I consider the Council’s decision that there was no reason to believe Miss B may be homeless was flawed. Government guidance makes it clear that the legal test for having 'reason to believe' someone is or may be homeless is low, and the Council does not need to be satisfied the applicant is homeless.
35. In a landmark legal case, the judge held that: “In the vast majority of cases, the making of the application will mean that it is difficult if not impossible for the council not to believe that the applicant may be homeless or threatened with homelessness.”
36. Even where an applicant has housing available, there may be factors such as domestic violence or harassment that make it unreasonable to expect them to remain there.
37. Considering the Council decided it needed to make enquiries before determining Miss B’s application, it must have considered it was possible that she may be homeless. I therefore consider the Council had a duty to secure interim accommodation for Miss B and her son from the outset.
38. Miss B emailed the Council several times about the suitability of the accommodation it initially arranged. The Council says the accommodation was not provided under the section 188 interim accommodation duty and there was no statutory right to a review of its suitability. But it did not tell Miss B this, and it failed to respond to her emails about it. This was fault.
39. It appears the accommodation did not meet the required standards for interim accommodation. If the Council had provided interim accommodation as it should have done, I consider Miss B and her son would have been provided with more suitable accommodation.
40. The Council failed to provide any accommodation between 8 March and 28 April. This was fault. Miss B says she had to sofa surf with her son which caused them both significant distress.
41. The Council’s records show that there was confusion about whether a ‘not homeless’ decision had been made, and why accommodation had been arranged. Miss B did not understand why the Council was refusing to provide accommodation in March when it had provided accommodation since January. Officers gave Miss B conflicting information about whether her case was open or not, and she was incorrectly told in March that the Council had decided she was not homeless, when it had not yet made its decision. This was fault. It caused Miss B frustration and she was put to avoidable time and trouble.
42. Miss B says she had nowhere to stay when she attended the Council’s offices on 11 March. Officers wrongly believed that a ‘not homeless’ decision had been made and failed to consider whether there was reason to believe that Miss B may be homeless. If there had been no fault here, interim accommodation would have been provided and Miss B and her son would not have been physically removed from the Council’s offices. This caused Miss B and her son significant distress.
43. Miss B was provided with accommodation pending the outcome of her review on 28 April. While there is no statutory right to a review of such accommodation, if the Council is providing accommodation, it should ensure it is suitable. The accommodation had shared facilities and was not local to Miss B’s son’s school or her support network. Bed and breakfast accommodation is only suitable as a last resort and for a maximum of six weeks. I consider the Council failed to provide Miss B and her son with suitable accommodation between 9 June and 5 September. This was fault.

Housing register application

44. Miss B applied to join the Council’s housing register in September 2021. The Council decided to close her application because she had rent arrears. It advised Miss B that she could reapply for housing once she had set up a repayment plan.
45. Miss B set up a repayment plan in January 2022. She then applied to join the housing register again in March.
46. In the Council’s response to Miss B’s complaint in April, it wrongly said that she needed to set up a repayment plan before her new application would be considered. This caused Miss B frustration as she was adhering to the plan which she had set up three months earlier.
47. The Council decided in May that Miss B did not have a recognised housing need, and therefore did not qualify to join the housing register. The decision did not relate to the rent arrears.
48. The Council told Miss B that if she disagreed with the decision, she could request a review. I have not investigated the decision because I consider it would have been reasonable for Miss B to request a review if she disagreed with it.
49. The Council delayed assessing both of Miss B’s housing applications. But I do not consider the delays caused Miss B any significant injustice.

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Agreed action

50. Within four weeks, the Council will apologise for the failings identified in this case and make the following payments to Miss B:
• £325 for the period 20 January to 7 March 2022 when Miss B and her son were not provided with suitable interim accommodation (£50 for each week).
• £450 for the period 8 March to 28 April 2022 when she was not provided with any interim accommodation (£300 for each month).
• £625 for the period 9 June to 5 September 2022 when she was living in unsuitable interim accommodation (£50 for each week).
• £500 to recognise the significant distress Miss B and her son suffered, and the avoidable time and trouble Miss B was put to pursuing matters with the Council.
51. Within eight weeks, the Council will:
• Provide training and/or guidance to its officers about the duty to provide interim accommodation. The Council should ensure officers are aware that the legal test for having 'reason to believe' someone is or may be homeless is very low, and if the Council needs to make enquiries to establish if a person is homeless, there must be a reason to believe they may be homeless and so the interim accommodation duty applies.
• Remind relevant officers of the importance of clear record keeping and responding to correspondence in a timely manner.
52. Earlier this year, the Council provided us with an update on the action it is taking to end the use of bed and breakfast as accommodation for homeless households. The Council has recently reviewed its action plan and provided details of the further steps it will take to address this issue.

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Final decision

53. I have completed my investigation and uphold Miss B’s complaint. There was fault by the Council which caused injustice to Miss B. The action the Council has agreed to take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman