Summary: Ms X complained about the Council’s actions regarding her homelessness application. She complained the Council did not properly consider her request on medical grounds for an additional bedroom, delayed responding to her complaint, did not respond to her request for an additional bedroom, and initially suspended her application to join its choice-based lettings scheme. We found fault by the Council and the Council has agreed a remedy to address the injustice identified.

The complaint

1. Ms X complained about the Council’s actions regarding her homelessness application. She complained the Council:
1. Did not properly consider her request on medical grounds for a property with an additional bedroom;
2. Delayed responding to her complaint and did not respond to her request for a property with an additional bedroom, and
3. Initially declined/suspended her application to join its choice-based lettings scheme.
2. Ms X also complained about the Council’s handling of a subject access request.
3. Ms X says the Council’s actions caused her avoidable emotional distress. She would like the Council to adjust her homelessness application to show she needs an additional bedroom and to provide a financial remedy to recognise the distress caused.

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What I have and have not investigated

4. I have investigated the complaints referred to in paragraph one. I have not investigated the complaint referred to in paragraph two.

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The Ombudsman’s role and powers

5. 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)
6. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
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 discussed the complaint with Ms X and considered the information she provided.
9. I made enquiries to the Council and considered the information it provided.
10. Ms X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Homelessness legislation and guidance

11. 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.
12. Someone is threatened with homelessness if, when asking for assistance from the council on or after 3 April 2018:

• they are likely to become homeless within 56 days; or
• they have been served with a valid Section 21 notice which will expire within 56 days. (Housing Act 1996, section 175(4) & (5)

13. If councils are satisfied applicants are threatened with homelessness and eligible for assistance, they must help the applicants to secure that accommodation does not stop being available for their occupation. In deciding what steps they are to take, councils must have regard to their assessments of the applicants’ cases. (Housing Act 1996, section 195)
14. If 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 (unless it refers the application to another housing authority under section 198). But councils will not owe the main housing duty to applicants who have turned down a suitable final accommodation offer or a Housing Act Part 6 offer made during the relief stage, or if a council has given them notice under section 193B(2) due to their deliberate and unreasonable refusal to co-operate. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)

Housing allocations

15. 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))

The Council’s allocations scheme

16. The Council is a partner in a local choice-based lettings scheme which enables housing applicants to bid for available properties which are advertised.
17. The Council’s allocations scheme provides details of how it prioritises applications and how it determines eligibility to the scheme. Part of the Council’s consideration regarding eligibility relates to applicants with a local connection. The policy says an applicant’s employment may constitute a local connection, within certain criteria. The allocations scheme says a person who does not have a local connection is not a qualifying person under the scheme.
18. The Council published an amended version of its allocations scheme in March 2023.

The Council’s complaints procedure

19. The Council operates a two stage complaints procedure. Service users can ask the Council to consider their complaint at stage two if they are dissatisfied with the Council’s stage one response. The Council’s policy says it aims to respond to stage two complaints within ten working days of receipt.

What happened

20. This chronology includes key events in this case and does not cover everything that happened.
21. In February 2021, Ms X and her children moved into rented accommodation in the Council’s area.
22. In July 2022, Ms X told the Council she wanted to move to another property. Ms X applied to the Council’s choice-based lettings scheme. As part of her application, Ms X provided information regarding medical issues for herself and two of her children.
23. In October 2022, Ms X’s landlord issued a Section 21 notice for her to leave her accommodation. Shortly afterwards, Ms X attended a meeting with the Council and completed a homelessness application. Ms X told the Council she worked part-time.
24. On 12 October 2022, the Council accepted a duty to help prevent homelessness for Ms X.
25. Later that month, Ms X provided the Council with several documents to verify some of the medical issues declared on her lettings scheme application. The Council says Ms X also provided a copy of her contract of employment at this time.
26. On 4 November 2022, Ms X emailed the Council and asked it to confirm her request for a property with an additional bedroom. Ms X said she needed an extra bedroom due to her children’s medical needs. Ms X also told the Council she had a local connection as her job was in the area.
27. On the same day, the Council asked Ms X to provide payslips and confirmation of her employer’s location.
28. Ms X replied and told the Council she worked from home. The Council told Ms X this would not make her eligible; it said it had referred Ms X’s query regarding this matter to a manager and that it would provide a further update.
29. On 11 November 2022, Ms X contacted the Council to ask for an update.
30. Ms X made a further request for an update on 17 November 2022. The Council emailed Ms X and told her it was undertaking a review of the issues regarding the lettings scheme application and the medical need for an additional bedroom.
31. Ms X emailed the Council again in November and December 2022 to request an update. On 7 December 2022, the Council told Ms X her email had been sent to a manager.
32. On 8 December 2022, the Council wrote to Ms X to tell her it had accepted a duty to help Ms X resolve her homelessness.

Ms X’s complaint

33. Ms X complained to the Council on 14 December 2022. She said she had been chasing a response to her queries for two months and that the Council had ignored her emails.
34. On 15 December 2022, the Council responded to Ms X’s complaint. It apologised for not responding to Ms X’s earlier correspondence regarding the suspension of her lettings scheme application. The Council said Ms X did not fulfil the qualifying residency criteria for inclusion onto the lettings scheme because she had not lived in the area for the required length of time, (two years). The Council said one of the reasons it had taken so long to respond to Ms X’s queries was because it had consulted with its Housing Strategy team. The Council said it was amending parts of the allocations policy, including the section regarding an applicant’s local connection. The Council said one of the amendments specified that applicants must have a contract of permanent employment and work within the city; the Council said this did not include working from home. The Council told Ms X she was not eligible to join the lettings scheme.
35. The Council acknowledged Ms X’s homelessness application however, and said if at the end of the relief period it decided it owed Ms X the main housing duty, her application to the lettings scheme would become active. The Council said at that stage, automatic bids would be set up which would place bids on Ms X’s behalf.
36. On 21 December 2022, the Council sent Ms X a further response to the complaint. It said emails sent to Ms X’s housing officer were responded to in a timely manner but it acknowledged the delay in responding to Ms X’s query about her application to the lettings scheme. The Council acknowledged the apology given for this in its letter dated 15 December 2022 and told Ms X she was not able to request a further review.
37. On 21 December 2022, Ms X asked the Council to escalate her complaint to stage two of its complaints process. She said the Council had not addressed all her concerns raised in her complaint. Ms X also raised a subject access request with the Council.
38. On 9 January 2023, the Council told Ms X it would not consider her complaint further because it had responded to her concerns.
39. Ms X replied on the same day and said she would refer her complaint to us as she considered the Council had not answered all her concerns.
40. The Council contacted Ms X on 11 January 2023 and told her the Ombudsman required it to exhaust all avenues to investigate her complaint. The Council apologised to Ms X and said it would therefore investigate Ms X’s complaint at stage two of its process.
41. The Council provided its stage two response on 24 January 2023. It acknowledged it delayed responding to Ms X’s query about whether she qualified for the lettings scheme and acknowledged the apology provided as part of the stage one response. The Council said its stage one response explained the reasons why Ms X did not qualify for the scheme and said its decision regarding this remained unchanged. The Council apologised for telling Ms X she could not progress her complaint beyond stage one and said it had made its employees aware of the correct complaint procedure.
42. Ms X remained dissatisfied with the Council’s response and brought her complaint to us.

What happened next

43. On 2 February 2023, the Council accepted the main housing duty to Ms X. It says from this date, Ms X’s application to the lettings scheme became live.

Analysis

44. Ms X complained the Council initially declined/suspended her application to its choice-based lettings scheme. The Council’s explanation for this is that Ms X was not resident in the area for the required period of time, and the Council’s amended policy included changes which meant working from home did not qualify as a local connection.
45. Ms X says when she checked the allocations policy, it did not say this. She says the Council’s policy states applicants can bid on properties if they have worked in the area for six months, and that as she works from home, she should be able to bid.
46. The Council’s amended allocations policy says, “the applicant must have a contract of permanent employment and work within the city…The applicant must have been in continuous employment for a period of 6 months. The employment can be full-time, part-time, zero hour contract or self-employed. It should be noted that the intention of this criteria is to support employment opportunities (promoting their sustainability) by enabling improved access to employment through rehousing. This would not therefore include working from home, but may include those (who meet the above criteria) who hybrid work and who must attend a place of work within the boundary…”
47. As a result, the Council is correct in stating its current policy specifies working from home does not qualify as a local connection. However, the Council says it did not implement the amended policy until March 2023. The previous allocations policy did not include the reference to working from home.
48. Ms X applied to the lettings scheme in July 2022, and provided a copy of her employment contract to the Council. In December 2022, the Council told Ms X she was not eligible because she did not satisfy the residency criteria, and because her working from home did not qualify as a local connection. However, at the time this explanation was given, the then current policy did not state that working from home did not qualify as a local connection.
49. As a result, the Council’s rationale for its decision given on 15 December 2022 is flawed. This is because the Council did not implement the amended policy until March 2023, three months after it advised Ms X of its decision. It is not for the Ombudsman to determine whether Ms X was or was not eligible for the lettings scheme as this is a decision for the Council. However, the Council is at fault regarding this aspect of the complaint as its explanation to Ms X for suspending her application is flawed.

The Council’s responses to Ms X

50. In its response to our enquiries, the Council acknowledged it did not respond to Ms X regarding her query about an additional bedroom. It says this is because Ms X did not qualify to join the housing register.
51. I acknowledge the Council’s comments but the failure to respond to Ms X regarding this matter is fault. This is because a perceived lack of eligibility to join the housing register does not justify a failure to respond to Ms X’s questions regarding her application. The Council’s letter to Ms X issued on 8 December 2022 specified “If you have any questions regarding this letter or your Personal Housing Plan, please don’t hesitate to telephone or e-mail me…I will be happy to explain anything you are unclear about”. The Council did not respond to Ms X’s queries regarding the additional bedroom, either as part of its consideration of her housing or homelessness application, or as part of its complaint response, despite the issue being a substantive part of Ms X’s complaint. As a result, the Council is at fault regarding this aspect of the complaint.
52. It is positive the Council acknowledged delay in its complaints handling in its emails to Ms X on 11 January 2023 and in its stage two response dated 24 January 2023. It apologised to Ms X for this, and the stage two response stated the Council had made its employees aware of the complaints procedure. The Council has therefore acknowledged the fault incurred as a result of this delay and provided an appropriate remedy regarding this aspect of the complaint.

Ms X’s requests on medical grounds for an additional bedroom

53. The Council says it did not consider Ms X’s request for an additional bedroom because it was irrelevant as she was unable to place any bids. The Council says Ms X did not provide any medical evidence when she first registered with the lettings scheme in July 2022, although she did provide medical evidence in October 2022. However, the Council says Ms X’s application was suspended at that time, so it did not consider her request.
54. I acknowledge the Council’s comments. However, as previously stated, the Council’s explanation for suspending the lettings scheme application is flawed. In addition, the Council accepted the main housing duty on 2 February 2023, and the Council says Ms X’s application was subsequently made live from this date.
55. The website for the lettings scheme provides information to applicants, including a frequently asked questions page. One of the questions asks, “I want to request an additional bedroom for someone with medical needs, what should I do?” The website’s answer states, “You should complete the medical form section on your [letting scheme’s] application. You will need to provide evidence that the additional bedroom would be affordable for you…”
56. I have seen no evidence the Council advised Ms X how to proceed with her request for an additional bedroom for someone with medical needs, despite this being a significant part of her complaint, and despite Ms X making several requests regarding this matter and providing documentary evidence in support of her request. I acknowledge Ms X requested an additional bedroom before her application became live; nevertheless, the Council was aware of Ms X’s request regarding this matter throughout the application process.
57. The evidence indicates Ms X completed the relevant section of the application form and provided payslips as required by the Council’s process. It is not for the Ombudsman to determine whether the Council should have approved or declined Ms X’s request for an additional bedroom, as this is a decision for the Council to make. However, the Council’s failure to consider Ms X’s request once her lettings scheme application became live, is fault.
58. Having identified fault, I must consider if this caused a significant injustice to Ms X. Ms X says the Council’s actions caused her avoidable stress and took up a lot of time in pursuing her complaint.

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Agreed action

59. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Ms X for the fault identified. The apology should be in line with our updated guidance on remedies;
2. Make a symbolic payment of £250 to Ms X in recognition of the stress caused;
3. Make a further payment of £150 in recognition of the time and trouble taken in pursuing the complaint;
4. Reconsider Ms X’s application to the lettings scheme based on the policy that was in place at the time the application was made;
5. Review whether Ms X’s position on the bidding list is affected as a result of the reconsideration of the application;
6. Consider Ms X’s request for an additional bedroom on medical grounds, including requesting additional information if required, and
7. Update the letting scheme’s website to show the amended allocations policy.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. I have found fault by the Council and the Council has agreed to take the above action to resolve this complaint. I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman