Summary: The Council was at fault for failing to respond to a homelessness referral, wrongly telling Mr X he had to give up his tenancy in order to proceed with a homeless application and failing to accept homelessness duties to him. The Council has agreed to apologise, proceed with Mr X’s homeless application, make payments to him, and act to improve its services.

The complaint

1. Mr X complained about how the Council dealt with his homelessness. In particular, he says the Council:
1. Failed to respond to a duty to refer form in August 2023
2. Wrongly told him he would have to give up his tenancy in order to proceed with a homeless application
3. Failed to accept homelessness duties to him
4. Failed to consider whether it should offer him a secure tenancy under the Domestic Abuse Act 2021.
5. Told him he could not join the Council’s housing register
2. As a result, Mr X says he remains homeless and at risk of domestic abuse.

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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 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)
4. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, 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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What I have not investigated

6. I have not investigated the complaint at d) in paragraph one. Any decision about whether to grant a tenancy or what type of tenancy to grant is a decision the Council makes as a landlord of social housing. For the reason set out in paragraph four, we cannot investigate this part of the complaint.

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How I considered this complaint

7. I considered the complaint and the information Mr X provided.
8. I made written enquiries of the Council and considered its response along with relevant law and guidance.
9. I referred to the Ombudsman's Guidance on Remedies, a copy of which can be found on our website.
10. 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

Duty to refer

11. Certain public bodies have a duty to refer someone to a council if they think they might be homeless or threatened with homelessness. The referrer needs the applicant’s consent.
12. The content of a “duty to refer” request or form does not trigger a council’s duty to make inquiries under the Housing Act 1996. However, councils should act on the referral and contact the applicant.

Homeless applications

13. 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.
14. If someone contacts a council seeking accommodation or help to obtain accommodation and gives ‘reason to believe’ they ‘may be’ homeless or threatened with homelessness within 56 days, the council has a duty to make inquiries into what, if any, further duty it owes them. The threshold for triggering the duty to make inquiries is low. (Housing Act 1996, section 184 and Homelessness Code of Guidance paragraphs 6.2 and 18.5)
15. Councils can suggest alternative solutions in cases of potential homelessness where these would be suitable and acceptable to the applicant. However councils must not do this to avoid their legal duties, especially the duty to make inquiries into the applicant’s homelessness. The Ombudsman has criticised councils for ‘gatekeeping’ practices, for example, failing to take a homelessness application at the earliest opportunity. (Homelessness Code of Guidance for Local Authorities, paragraphs 2.3 and 6.4)
16. 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)
17. 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. The relief duty usually lasts 56 days. (Housing Act 1996, section 189B)
18. 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. These steps should be tailored to the household, and follow from the findings of the assessment, and must be provided to the applicant in writing as their personalised housing plan. (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.18)

What happened

19. Mr X is a secure tenant of a different council.
20. In August 2023, Mr X’s support worker filled in a duty to refer form on the Council’s website. This said it was not reasonable for Mr X to remain in his tenancy because of domestic abuse and anti-social behaviour. It said he was currently sofa-surfing with friends.
21. At the end of August, Mr X complained to the Council because no one had contacted him.
22. The Council responded to Mr X’s complaint in September. It apologised for failing to act on the duty to refer form.
23. As part of its investigation of the complaint, the Council alerted its housing service. The Council spoke to Mr X to complete an initial assessment and allocated his case to a specialist domestic abuse caseworker.
24. Mr X asked the Council to consider his complaint at stage two in November. He said the Council told him he would lose his secure tenancy by pursuing a homeless application.
25. The Council responded at stage two of its complaint process in January 2024. It said:
• It apologised for the delay responding to the complaint
• It had offered Mr X interim accommodation, which he declined
• It had explained that proceeding with a homeless application would result in losing his existing secure tenancy.
• It could not keep his application open without making a decision and the outcome of any homeless application was likely to be an offer of housing in the private rented sector
• It offered a remedy of £340 for the delay responding to the duty to refer and the complaint
26. Mr X complained to the Ombudsman.

My findings

27. I set out my findings on the complaint in the order they appear in paragraph one.

Duty to refer

28. The Council has already accepted fault for its failure to respond to the duty to refer form in August. I consider the already offered payment of £340 to be a suitable remedy for the injustice this caused.

Homeless application

29. An applicant does not have to give up an existing tenancy for the Council to accept homelessness duties. Mr X would only need to give up his tenancy before being offered another one (Hammia v London Borough of Wandsworth [2005] EWHC 1127 (Admin)).
30. In response to my enquiries, the Council said it was waiting for Mr X to confirm whether he wanted to pursue a homeless application.
31. However, the evidence shows the Council repeatedly gave Mr X inaccurate advice and information:
• In late September 2023, the Council advised Mr X to consider withdrawing his homeless application if he did not want to lose his secure tenancy. Mr X said he wanted to get advice from his support workers.
• In early October, the Council chased Mr X for a decision about whether he wanted to proceed. It said “If I do not hear from you, we will have to accept duty and that will come with temporary accommodation, if these are not options you are willing to accept, it will leave the council with a decision to close your application.”
• A few days later, in response to Mr X’s support worker, the Council said “[i]f he proceeds with the homeless application then social tenancy will be lost.”
• Ten days later, the Council said it had given Mr X enough time to make a decision so it needed a response that day. Otherwise, it would “be continuing the application and proceeding with steps we are required to take, which also includes temporary accommodation. If this is not something you are willing to accept, it will leave the council with a decision to close the application and discharge duty.”
32. Mr X did not have to give up his tenancy to pursue a homeless application. The Council’s repeated and inaccurate assertions that this was the case were fault. The Council was also at fault for telling Mr X that if he refused an offer of interim accommodation, the Council could end its duty to him. This was also not accurate. The Council would continue to owe a duty until it ended it for one of the reasons set out in law. Refusing interim accommodation is not one such reason.
33. The Council’s inaccurate advice put Mr X in an impossible position. He wanted to pursue his homeless application but did not want to give up his tenancy. The Council refused to accept that this was possible. Mr X told me he felt pressured to withdraw his application. The tone and content of the Council’s communications support this.
34. The Council can end a homelessness duty into a private tenancy, regardless of the applicant’s previous tenure. The shortage of social housing means this is often the outcome. It was not fault to tell Mr X this was the case. However, it does not follow that, therefore, Mr X had to immediately surrender his tenancy or there was no point in accepting a duty to him.
35. As a result, the Council effectively prevented Mr X from pursuing a homeless application. This amounts to gatekeeping and was fault. Mr X experienced avoidable distress, uncertainty, and missed opportunity. This is an injustice to Mr X.

Homeless duties

36. The Council had reason to believe Mr X was homeless. It had a duty to make inquiries and decide what, if any, further duty it owed.
37. From its correspondence throughout September and October 2023, it is clear the Council accepted it would owe Mr X the relief duty if it proceeded with the application. Failure to accept the relief duty to Mr X was fault. After 56 days of relief duty, the Council would have decided whether it owed Mr X the main housing duty. These decisions carry statutory rights of review and appeal to court. The Council denied Mr X access to his statutory review rights, which is an injustice.
38. The Council should have produced a personalised housing plan for Mr X setting out his housing options and reasonable steps for him and the Council to take to relieve his homelessness. This should have included detailed advice about Mr X’s tenancy and information about how to apply to the housing register as well as options in the private rented sector. Failure to do so was fault. This denied Mr X advice, information, and support to address his homelessness. This is an injustice to Mr X.
39. The Council had reason to believe Mr X was in priority need because of domestic abuse and his mental health conditions. It therefore owed a duty to provide interim accommodation. But for the delay responding to the duty to refer, it should have offered this in August 2023. In any event, it should have done so in September when it spoke to Mr X. The Council’s complaint response says Mr X refused interim accommodation. However, I have seen no evidence in the records to show it was offered. To be an offer of accommodation, the accommodation must exist and be available to the applicant. Any accommodation must also be suitable for the applicant’s needs. A general discussion about the types of interim accommodation the Council might provide does not amount to an offer.
40. On balance, I find the Council failed to offer Mr X interim accommodation. This was fault. Mr X may have preferred to continue to stay with friends. However, it denied Mr X the opportunity to make an informed decision about whether to accept it. This is an injustice to Mr X.

Housing register

41. The records show the Council told Mr X in October 2023 that he could apply to the housing register. It is not fault by the Council that Mr X did not do so. It remains open to Mr X to apply.

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Agreed action

42. To remedy the injustice to Mr X from the fault I have identified, the Council has agreed to:
• Apologise to Mr X in line with our guidance on Making an effective apology
• Make Mr X a specific offer of interim accommodation
• Arrange with Mr X to assess his homelessness and accept any resulting duties
• Pay Mr X the £340 already offered, if it has not already done so
• Pay Mr X £300 in recognition of the significant and avoidable distress, uncertainty, and missed opportunities caused by its gatekeeping
• Pay Mr X £250 in recognition of the missed opportunities caused by its failure to accept a duty, issue a PHP, and offer interim accommodation.
43. The Council should take this action within four weeks of my final decision.
44. The Council should also take the following action to improve its services:
• Share a copy of this decision with staff in the relevant departments to identify learning from this complaint
• Remind relevant staff to check for and respond to duty to refer forms
• Provide training or guidance to relevant staff on the duty to make inquiries and accept any resulting homelessness duty regardless of the applicant’s existing tenure if it has reason to believe they might be homeless or threatened with homelessness.
• Produce information or guidance for homeless applicants who are also secure tenants in social housing setting out their housing options and the implications for their tenancy of pursuing a homeless application.
45. The Council should tell the Ombudsman about the action it has taken within three months of my final decision.

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Final decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman