Summary: Mrs C complains about the way the Council dealt with Mr B’s homelessness. She complains it did not consider his vulnerability or ask about how his disability might affect his communications with it. It gave him wrong advice about his ability to afford accommodation. It offered him a property, which it withdrew, and then told him he needed to move to another city. And later it said it did not owe him any duty. Our decision is there was fault by the Council. The Council has agreed to our recommendations.

The complaint

1. The complainant (whom I shall refer to as Mr B) is represented by his relative (Mrs C). They complain the Council has mishandled Mr B’s (and his partner’s) homeless situation, including various offers of property. This includes:

• the Council did not recognise Mr B’s vulnerability. It did not check whether he needed any help through the application process, or any adjustments made to the way he and the Council communicated;
• the Council offered them a property in a nearby borough which they accepted. But the Council then withdrew the offer;
• the Council then told them they had to accept the next offer of housing, leading to them moving to a northern city, away from Mr B’s family and treatment for his disabilities;
• the Council decided that it would offer Mr B accommodation outside the Borough on the basis he could not afford the rent locally. But that ignored the fact the specific benefits he receives means he is exempt from the benefit cap, so could claim housing costs on a property in the Borough;
• the Council said Mr B had his own connection with another town it moved him to. That was inaccurate. His partner was the sole signatory to the tenancy agreement for, contrary to what the Council said;
• it was wrong for the Council to say in its complaint responses that Mr B did not seek a move back to Barking and Dagenham – that was one of the reasons for his complaint;
• the landlord was evicting Mr B’s partner from their current property and would not carry out repairs. But the Council refused to accept any duty towards them.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
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. Homeless applicants may request a review within 21 days of being notified of most decisions about their housing application. Following a review, an applicant can exercise their right of appeal to the county court on a point of law.
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)

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What I have and have not investigated

7. Mrs C first contacted the Ombudsman in July 2023 and then again in October, after the Council’s delayed response to her complaint. That means some events she complains about, on Mr B’s behalf, are over 12 months before her complaint (see paragraph 3). But I have used my discretion to consider the whole period. Mr B is evidently vulnerable and before March 2023 had no support. So that provides reasons why he did not complain earlier.
8. Mr B’s vulnerability also likely influenced his capacity to ask for a review of the Council’s decisions about his housing options. So, although Mr B could have used his right to go to court (see paragraphs 4&5), after a review of a Council decision, it was not reasonable for him to do so.
9. Mr B also had a right to go to court if he believed the Council discriminated against him by not making reasonable adjustments. Again, I must consider if it was reasonable for Mr B to go to court.
10. Government guidance says taking court action in relation to discrimination can be “lengthy, expensive and draining”. Given Mr B’s stated vulnerabilities, my view is it would not be reasonable to have expected him to taken action in court. Only the courts can settle whether the Council discriminated against Mr B. But we can decide if the Council has acted with fault in dealing with him and considering any adjustments it could make in its communications with him.

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How I considered this complaint

11. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs C;
• made enquiries of the Council and considered its response;
• spoken to Mrs C;
• sent my draft decision to Mrs C and the Council and considered their responses.

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What I found

Legal and administrative background

The Housing Act

12. 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.

Assessments and Personalised Housing Plans

13. Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. This duty is called the relief duty. Councils should work with applicants to identify practical and reasonable steps for the council and the applicant to take to help the applicant keep or secure suitable accommodation. They should tailor these steps to the household, and they should be based on the findings of the assessment. Councils must provide the steps in writing to the applicant as their “personalised housing plan”. (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.18)

Duty to arrange interim accommodation

14. A council must secure interim accommodation for an applicant and their household if it has reason to believe the applicant may be homeless, eligible for assistance and have a priority need. Applicants in priority need include those with some health issues and those that are vulnerable. (Housing Act 1996, section 188)

When does the relief duty end?

15. A council may give notice to bring the relief duty to an end in any of the following circumstances:

• the applicant has suitable accommodation available that has a reasonable prospect of being available for at least six months;
• the council has complied with the relief duty for at least 56 days;
• the applicant has refused an offer of suitable accommodation that would have been available for at least six months;
• the applicant has become intentionally homeless;
• the applicant was no longer eligible for assistance;
• the applicant has withdrawn the application.
• the applicant has deliberately and unreasonably failed to co-operate.

16. A council must notify an applicant in writing if it decides its duty has ended. This must give reasons and advise the applicant of their right to request a review of that decision.
17. If, after the 56-day relief duty, an applicant in priority need is still homeless, a council must then complete inquiries promptly to decide it owes a further duty to the applicant (the ‘main housing duty’).

Offers of accommodation

18. The Homeless Code of Guidance, statutory guidance published by the government, says:
• councils must give applicants a reasonable period for considering offers of accommodation. There is no set reasonable period – councils must consider the applicant’s circumstances in each case;
• applicants should be allowed to view accommodation before being asked to accept the offer;
• if the accommodation is in another area and it is too far to travel to view, councils must provide enough information about the property and area it is in. The Code gives, as examples, providing photographs and the opportunity to ask questions of the landlord or agent.

The Equality Act

19. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.

Reasonable adjustments for people with disabilities

20. The reasonable adjustment duty is set out in the Equality Act 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.
21. 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.
22. 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.

Welfare benefits

Local housing allowance

23. Local housing allowance is used to calculate the maximum amount people renting from a private landlord can claim in Housing Benefit or Universal Credit. This maximum payable varies from area to area and the number of bedrooms a claimant needs. It is calculated at around the bottom 30% of rental costs in each given area.

Benefits cap

24. In 2013 the government introduced a cap on the total amount that claimants can receive in out of work benefits and children’s benefits. If the total of the relevant benefits is above the cap, it is the housing part that gets reduced to ensure the claimant does not get more benefits than the cap allows. Some groups are exempted. This includes claimants receiving some disability benefits.

The Ombudsman’s principles of good administrative practice

25. The Ombudsman publishes “Principles of good administrative practice”, as a guide, for the bodies in our jurisdiction, of our expectations. One of those principles, around being open and accountable, is to keep proper and suitable records.

What happened

26. Mr B and his partner had been living in a neighbouring council’s area. Mr B has a mental health disability. He receives welfare benefits, including personal independence payment (PIP), a disability benefit.

The first period of homelessness

27. In early 2022 Mr B and his partner moved to the Borough after what the Council’s file describes as ‘an incident’ in their previous (council) tenancy. Mrs C says Mr B and his partner were being exploited in their old home and had to flee. The Council’s stage two complaint response noted its relief stage view was it was reasonable for Mr B to move to a placement within the Borough due to his vulnerabilities, his mental ill-health and his support network there.
28. The Council accepted a relief duty to work with Mr B and his partner. It placed them in a hostel and completed a personalised housing plan with them. This noted:
• their previous accommodation was unsuitable as this was where Mr B and his partner were exploited;
• the Council recognised Mr B and his partner’s wish to remain in London or the surrounding areas. So it would look for affordable and suitable properties there. But it advised them the cost of rents in London were high. And the amount of benefits they received might not be enough to pay their rent. That would mean they would have to manage the shortfall in rent from their own income;
• they could/should be exploring other areas of the country to increase their chances of finding a property in the private sector.
29. The Council has advised that, over the next two months, it shared with Mr B details of two private rented sector properties in other London boroughs, but he was not placed in either tenancy.
30. At the end of March, the Council completed an affordability assessment. The record on file is a financial statement of Mr B and his partner’s income and expenditure using an online benefit calculator. It includes a figure that is equivalent to the local housing allowance rate at the time in the outer London area.
31. In early April Mr B accepted the offer of a private rented sector property in a neighbouring borough. In response to my enquiries, the Council advised Mr B was never made a formal tenancy offer for this property. That was because the letting agency did not provide the Council with the detail it needed to proceed with the placement. Towards the end of that month, the Council advised Mr B of a further property, although that was not successful.
32. In May the Council made Mr B an offer of accommodation in a northern city. In a covering letter, the Council’s officer advised Mr B “…a failure to accept this property will lead us to discharging our duty”. Mrs C says the Council did not give Mr B enough time to consider this offer and he felt forced to accept it. In June the Council discharged its relief duty because Mr B had accepted that offer of housing.

The new homelessness application

33. Mr B and his partner made a new homelessness application at the beginning of September, as they were threatened with homelessness from their home in the northern city. The Council says this was because of an ‘unforeseen incident’ there. The Council accepted it owed a relief duty towards them and completed a personalised housing plan. A few days later, the Council found them accommodation in a different northern town. The Council’s response at stage two of its complaints procedure noted:

“I can see from the file that the letter which was provided for the [new] property … did not approach this offer in the detail in which was apparent in the initial letter but the same considerations would have been in place for any offer which was made to [Mr B] and his partner.”

34. The new tenancy was in both Mr B and his partner’s names, although only signed by Mr B’s partner. Mrs C says this was because Mr B’s partner was the person claiming housing benefit.
35. Shortly after Mr B and his partner moved, the Council ended its duty and wrote to Mr B.
36. Around six months later, in 2023, Mrs C says she became aware that Mr B had moved out of the local area. She got in touch with him and then complained on his behalf. Mrs C sought a response at stage two of the Council’s complaints procedure, but it took over five months for the Council to respond. This response:
• apologised for the delay in responding to the complaint;
• advised its view was it had given Mr B correct advice about the affordability of private tenancies in London. And that was why it had recommended a move out of London;
• said it had no evidence that Mr B had requested a move back to the Borough;
• said Mr B’s tenancy at his current home gave him a local connection there. So he could apply to the local council in that area (and not the London Borough of Barking and Dagenham) for any further assistance;
• acknowledged it had not checked on whether the property it had moved Mr B and his partner to had an up-to-date gas safety certificate;
• noted the lack of information in the Council’s letter (see paragraph 33);
• offered Mr B £250 for the delay in completing the complaint process, not checking for a current gas safety certificate and the lack of information about the second move.
37. Mrs C had originally contacted the Ombudsman in July 2023. We asked her to complete the Council’s complaints procedure. She returned to us at the end of October 2023.
38. In response to my enquiries, the Council advised:
• it had contacted Mr B’s landlord and sought a gas safety certificate which it would place on its file;
• Mr B had not told the Council of any reason why he needed a preferred method of communication. He engaged in all its communications with him.
39. When preparing this draft decision, I asked Mrs C for an update on Mr B’s situation. She advised Mr B was still living in the northern town. He had separated from his partner and did not have a fixed home. The council in the area where he lived had told him he did not have a local connection to the area.

The Council’s response to my draft decision

40. One of my draft decision recommendation’s was that the Council add a section to its relief duty assessment form to ask about reasonable adjustments. At this stage, the Council sent me an excerpt from the form it completed with Mr B. This records it did ask Mr B about his support needs (and there was a section on the form to do this. The Council noted on the form Mr B would need support in looking for accommodation.
41. The Council also sent me an email it had sent Mr B and Mrs C, after it had spoken to Mrs C. The email advised:
• it had agreed for the Council to assist Mr B with a rent deposit to move back closer to the Borough;
• it had allocated Mr B’s case to an officer who would contact Mr B to do an assessment, so they could start looking for a one-bedroom property; and
• an officer would contact Mrs C to carry out an affordability assessment for Mr B.
42. In response to my suggestion for service improvement around personalised advice, the Council noted it used a “market leading tool to assist when completing affordability assessments”. But it said it would raise with its staff the importance of ensuring that personalised housing plans contained benefit advice which was specific to each applicant.

Was there fault by the Council?

The Council’s Equality Act duties

43. During my investigation, I asked the Council if it had asked Mr B whether adjustments in its communication might be necessary. The Council says it had no evidence Mr B had asked for a “preferred method of communication”.
44. The Equality Act places a duty on local public services to ‘anticipate’ the needs of people with disabilities accessing their services. The Ombudsman’s view is it is good practice to routinely ask everyone who accesses a public service whether the service needs to make changes to the way it communicates with them. And this should be at every stage of a process, whenever they interact with service users.
45. By asking service users if they need to make any changes to how they communicate, local services can provide people with disabilities an opportunity to discuss any barriers they might face accessing the service and possible solutions. This is particularly important with hidden disabilities where people may feel unable to volunteer their need for an adjustment until asked.
46. The Council says it has no evidence Mr B needed adjustments. It has sent me an excerpt from the assessment form recording it had asked Mr B about support needs. In it Mr B does not explicitly mention any adjustments. But he does mention other support needs. I would have expected to see an explicit record about what Mr B’s needs were and whether they amounted to reasonable adjustments. To not have that record was fault.

The Council told Mr B he had to accept the move away from London

47. The Council’s view is the properties it offered Mr B were suitable and it notes he agreed to a move.
48. On the balance or probabilities, I accept Mrs C’s statement that Mr B felt under pressure to accept the offer of a move to a northern city. The fact the Council did not explicitly ask Mr B about any disabilities that might need adjustments in its communications mean I have discounted the fact he agreed to his move.
49. At the relief stage, the Council accepted the Borough was suitable for Mr B due to his vulnerabilities and local support network. But I do not see the evidence in the Council’s records that it adequately considered, in either later move, the suitability of the accommodation in regard to Mr B and his partner’s specific needs. For example, a consideration of why Mr B’s support network was no longer a reason in deciding suitability.
50. The Council has not provided any records of providing Mr B with enough information to allow him to make an informed decision about either moves out of the Borough (see paragraph 18). The Council itself has advised its letter discharging its duty for the second property was not acceptable. It says view is it would have considered the suitability, but has provided no evidence to support this.
51. Because the Council has not provided records that it adequately considered the suitability of the tenancies in the northern areas, my decision is these offers do not meet the Ombudsman’s expectations with reference to our principles (see paragraph 25). That was fault.

The Council’s advice about the affordability of accommodation in London

52. Mrs C says the combination of welfare benefits Mr B receives means he is exempt from the welfare benefits cap. It is not the Ombudsman’s role to decide if that is correct, although my reading of the benefits rules suggests this is a possibility.
53. But I would have expected to see a closer attention to the benefit rules in the Council’s records and its advice to Mr B. The advice in Mr B’s personalised housing plan (see paragraph 28) provides a general statement about affordability of private sector properties in the London area. But it is not personalised or tailored to Mr B and his partner’s own circumstances and the benefits they received. My decision is that was fault and does not meet the requirements of the Code.
54. The Council says it uses a “market leading affordability assessment tool”. But I cannot see how the Council could complete an accurate affordability assessment without a consideration of how the specific benefits Mr B and his partner received affected their entitlement to housing related benefits. The Council’s records do not show it did this.
55. At a minimum this again shows inadequate record keeping. It also raises the possibility the Council’s officers were not aware that Mr B and his partner might have been eligible for benefits to meet the rent on around a third of properties in the area. My decision is that was fault.
56. There were other options available to the Council. For example, it could have taken a full homelessness application. It seems likely Mr B would have qualified as in priority need, given his vulnerabilities. The Council would have owed him a reasonable preference on its housing register. The faults meant it did not consider whether this might be a preferred option given Mr B and his partner’s circumstances.

The offer of a property in a nearby borough

57. The Council has provided an explanation for the reasons it did not proceed with the move to this property. I see no evidence of fault.

Mr B’s local connection to the second area he moved to

58. The Council does have a joint tenancy agreement on its file, although only signed by Mr B’s partner. The law on the rights of tenants and occupiers is complex. So I cannot make a finding on what right Mr B had, based on where he had lived. Mrs C has advised the council where Mr B lives says he does not have a local connection. But I also cannot decide if that was correct advice. So I am not able to uphold this part of the complaint.

Other issues

59. The Council has found the following additional faults:
• not asking a landlord for a gas safety certificate;
• a delay in responding to Mrs C’s complaint.

Did the fault cause an injustice?

60. In assessing injustice, I need to consider what would have happened but for the fault. The faults I have found are:
• not asking Mr B if it needed to make any adjustments in its communications with him, due to his disabilities;
• not adequately exploring the suitability of properties it was offering Mr B; and
• providing generalised, not tailored, benefit advice.
61. On the balance of probabilities I cannot say that, but for the faults, Mr B would have found a property in the area where he was seeking to remain. But there remains a possibility he might have found a property. That uncertainty is an injustice. There is also uncertainty about whether the properties the Council placed Mr B in were suitable for him and his partner.
62. The injustice caused by the uncertainty was exacerbated by the fact Mr B remains in a part of the country where Mrs C says he has no support network.

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Agreed action

63. I recommended that, within a month of my final decision, the Council:
• contact Mrs C and Mr B. It should explore with Mr B whether he is still homeless, or at risk of homelessness. If it decided Mr B still met the threshold, it should carry out a fresh relief duty assessment. The Council has sent evidence it has already begun that remedy;
• ensure this contact included discussion with Mr B about whether, because of his disabilities, it needs to make adjustments in its communications with him. The Council should keep a record of this issue and consider whether any adjustments are needed and/or reasonable;
• in addition to the payment it has already made, it should make Mr B a symbolic payment of £250 to recognise the distress caused by the faults I have identified.
64. The Council has agreed to each of these recommendations.
65. I also recommended that, within three months of my final decision, the Council should take the following action:
• to ensure it is meeting its legal duties under the Equality Act 2010, it should update its homelessness assessment forms to add a standard question about reasonable adjustments. The Council has provided evidence its form does ask about support needs.
• consider how its advice to applicants in personalised housing plans can provide accurate, tailored, benefit advice based on an applicant’s circumstances. The Council has advised it will remind its officers of the need for personalised benefit advice specific to each applicant. The Council should provide us with evidence it has complied with this recommendation.

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Final decision

66. I uphold this complaint. The Council has agreed to my recommendations, so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman