Summary: Mr X complained about the Council’s handling of his homelessness application. We found the Council to be at fault. It did not properly consider his priority need, failed to advise Mr X about a rent contribution and took too long to consider his case when it was referred to the Council by the probation service. The Council has agreed to apologise and make a payment to Mr X to remedy his injustice. It should also take action to improve its service.

The complaint

1. Mr X complains about the Council’s failure to process his homelessness application correctly. In particular, he says the Council:
1. took too long to process his application;
2. failed to provide interim accommodation;
3. referred him to unsuitable potential landlords;
4. failed to liaise with his probation officer about suitability of accommodation before making an offer; and
5. failed to provide advice about a short term rent top up.
2. This caused Mr X significant distress and frustration. He believes he should have been offered temporary accommodation from the outset. His lack of accommodation led to his losing his job and being avoidably homeless for several months.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. 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)
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. I have not investigated the Council’s decision that Mr X was not owed the main homelessness duty because he did not have priority need. Nor did I investigate the Council’s decision about suitability of a property. This is because the Council’s decisions about these matters have a right of appeal on a point of law to the County Court. Mr X was advised of his right to appeal.
8. This means I am unable to investigate 1(d) above because it is inextricably linked to Mr X’s suitability review.
9. I am also unable to consider a remedy for any injustice to Mr X after the Council ended the relief duty.

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How I considered this complaint

10. I discussed the complaint with Mr X’s representative and reviewed the evidence she sent me.
11. I made enquiries of the Council and considered its written responses and information it provided.
12. I considered the relevant law and guidance, as set out below.
13. I considered out our Guidance on Remedies, available on our website.
14. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Homelessness – Housing Act 1996

15. Part 7 of the 1996 Act sets out the powers and duties of housing authorities where people apply to them for accommodation or assistance in obtaining accommodation in cases of homelessness or threatened homelessness.

Duty to make enquiries

16. Where the council has reason to believe an applicant may be homeless or threatened with homelessness, it should make enquiries to enable it to decide if they are eligible for assistance and, if so, what duty it owes them. (Housing Act 1996, section 184)

Interim accommodation

17. A council must secure interim accommodation for an applicant 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.) This is called interim accommodation. Applicants with medical conditions or have been in prison may be in priority need. The courts have decided councils do not have to be certain an applicant does not have a priority need, just that they may have. This is a low threshold.

The relief duty

If a council is satisfied someone is homeless and eligible for assistance it must take reasonable steps to secure accommodation for any eligible homeless person. This is called the relief duty. When a council decides this duty has come to an end (usually after 56 days), it must notify the applicant in writing. (Housing Act 1996, section 189B)

The main housing duty

18. At the end of the relief stage, the council must decide if it owes the person the main housing duty. If a council is satisfied an applicant is unintentionally homeless, eligible for assistance, and has a priority need the council has a duty to ensure that accommodation is available for their occupation. This is called the main housing duty. (Housing Act 1996, section 193)

Priority need – former prisoners

19. A person who is vulnerable as a result of having service a custodial sentence has a priority need for accommodation. Assessments of vulnerability should be composite, taking into account all relevant factors that might contribute to a person being significantly more vulnerable that an ordinary person would be if homeless. In reaching this decision, councils should take into consideration the following factors.

• Length of the sentence.
• Whether they are receiving supervision.
• Length of time since leaving prison.
• Existing support networks.

Priority need – assessing vulnerability

20. Case law has established the correct comparator is the ordinary person if they become homeless, and not the ordinary, homeless person. This is often referred to as the Hotek Test. This replaces the previous legal test that has a higher eligibility threshold (referred to as the Pereira Test), where the comparator was “the ordinary homeless person”. The Hotek test is specified at the correct test in the Homelessness Code of Guidance.

Decisions and reviews

21. Housing authorities must provide written notifications to applicants when they reach certain decisions about their case, and the reasons behind any decisions that are against the applicant’s interests. Applicants can ask the housing authority to review most aspects of their decisions, and, if still dissatisfied, can appeal to the county court on a point of law.

The duty to refer

22. The law places a duty on probation (and other) services to refer former prisoners to a housing authority is they are homeless of threated with homelessness within 56 days. (Homelessness Reduction Act, S213B)
23. Councils must respond to all referrals. If direct contact with the individual is not possible, the council should provide information on how to access advice and assistance.

What happened

24. This decision statement sets out the key events and is not intended to be a full account of everything that happened.
25. Mr X had served a custodial sentence. He was released on licence and was living in temporary bail accommodation. In 2023, he was expected to leave and find somewhere else to live. His probation officer notified the Council of his potential homelessness in early January 2023. The Council was told Mr X would become homeless on 31 January 2023. The Council contacted the probation officer for more information. The case records show the probation officer provided this in February 2023.
26. In May 2023, the probation officer contacted the Council again, requesting an update. In response, the Council asked for proof of Mr X’s homelessness in order to progress his application.
27. In June 2023, Mr X provided proof of his threatened homelessness. He was asked to attend an interview three days later. Mr X was advised he could only expect to be housed in shared accommodation because of his age.
28. The following week, according to the Council, Mr X told the Council he intended staying with his mother until his next birthday. He would then be entitled to receive benefits that would allow him to live in self-contained, as opposed to shared accommodation. Mr X denies saying having said this.
29. In mid-August 2023, Mr X advised the Council he had been served with a bailiff’s order and his homelessness was imminent. The Council says it asked Mr X if he still intended living with his mother.
30. The case records show this request was sent to the Mr X’s former probation officer, not Mr X.
31. Mr X told the Council he was not able to stay with his mother, and denied saying he would be. In response, the Council put him forward for two properties. Mr X says when he contacted the letting agent directly to confirm he would move in, no one was available. Mr X believes this was because the landlord became aware of his criminal record.
32. The Council says it did not disclose this information as it was confidential, and the landlord had not specified he would not consider tenants with a criminal record.
33. Shortly afterwards, Mr X contacted the Council again. He confirmed was now actually homeless. Mr X was asked to attend a telephone interview two days later.
34. During the interview, the Council explained it did not have a duty to provide interim accommodation because it had no reason to believe he was in priority need. It made this decision based on information that had been provided about Mr X’s health issues and his criminal history/status.
35. Following the interview, the Council confirmed Mr X was owed the relief duty. The Council also made Mr X an offer a studio flat (Property A) in shared accommodation. It explained this would end the relief duty owed to Mr X.
36. Mr X said Property A was unsuitable because it was not self-contained. He explained this was because of his custodial sentence and had not been approved by probation. He requested a review of both the suitability of Property A and the Council’s decision that he did not have priority need. In November 2023, the Council issued its review decision. It upheld its previous decisions. For the reasons I have explained above, I am unable to investigate this matter or its consequences.
37. Mr X complained to the Council about its initial decision that he did not qualify for interim accommodation because he did not have priority need. He also raised his case with his MP.
38. In response, the Council explained its rationale. It said:

• Mr X was not on medication for his medical conditions; and
• both his period in prison and his medical history were taken into consideration but he “was not deemed significantly more vulnerable than the ordinary homeless person”.

39. Dissatisfied with this response and the way his case had been handled generally, Mr X brought his complaint to the Ombudsman.
40. In response to the Ombudsman’s enquiries, the Council says it handled Mr X’s case correctly. It specifically said:

• it did not receive a response from probation to its request for more information in January 2023;
• the relief duty was owed once the Council was satisfied Mr X was homeless in late August 2023. Prior to this, the Council was under the impression he could still live at either his bail accommodation or with his mother;
• enquiries were made of the probation service about Mr X’s vulnerability, but it failed to reply;
• a medical condition in itself does not automatically mean someone has priority need; and
• the Council would not have told Mr X it would top up his rent as a temporary measure to allow him to avoid shared accommodation.

Analysis

41. I will consider Mr X’s specific areas of complaint below.

Delay

42. The law says councils have a duty to take reasonable steps to help prevent any eligible person (regardless of priority need status, intentionality and whether they have a local connection) who is threatened with homelessness from becoming homeless.
43. The case records show the Council first became aware that Mr X was threatened with homelessness in early January 2023. The letter from his probation officer clearly set out the Council’s obligations to contact Mr X and/or provide advice. It also specified Mr X’s homelessness was imminent.
44. The Council says that it required documentation before it could consider Mr X’s case. While I accept the Council was entitled to ask the probation officer for more information in January 2023, when this was submitted (in February), the Council took no action. Disappointingly, this was not acknowledged in the Council’s response to the Ombudsman. The records confirm it was only when the probation officer chased this up in May 2023 did the Council move the case forward.
45. From this, I am satisfied the Council delayed in providing Mr X with assistance between February and May 2023. This is fault. If the Council has reason to believe that a person may be homeless, or threatened with homelessness within the next 56 days, the onus is on the Council, rather than the applicant, to make prompt inquiries and carry out an assessment to determine if the person is eligible for assistance. Having ‘reason to believe’ is a low threshold. I am satisfied the information provided by the probation service in February 2023 was sufficient to trigger that duty.
46. I cannot say with any certainty whether this this impacted directly on Mr X’s housing prospects. I say this because he did not become homeless until August 2023. However, I am satisfied Mr X was denied access to support and information that may have alleviated his situation earlier. Mr X has explained this lack of guidance and uncertainty about his housing situation caused distress. This injustice requires a remedy.
47. Mr X also says the relief duty should have been owed sooner than it was.
48. The Council says Mr X was owed the relief duty once it was satisfied Mr X was homeless. Because it was led to believe Mr X was going to stay with his mother temporarily, it says the duty was not triggered until Mr X said this was not possible and he was homeless.
49. Based on the evidence I have seen, on balance, I am satisfied the relief duty was not owed earlier that it was. The case notes I have seen, persuade me to conclude that the Council was led to believe it was Mr X was temporarily going to stay with his mother. The case officer asked Mr X on more than occasion if he was going to do so. I find it highly improbable they would have done so if Mr X had not mentioned it himself, especially as there was a good reason for him to so (to avoid shared accommodation). The Council was not at fault.

Priority need

50. The law says the Council only has to be satisfied there is “reason to believe” an applicant may be in priority need at the time of making a decision whether to provide interim accommodation. Case law has established this is relatively low threshold.
51. Having reviewed the evidence, in my view, the Council based its decision on whether Mr X was actually vulnerable, not whether he may have been.
52. It is not for the Ombudsman to decide whether Mr X was or was not in priority need at that time. We are not an appeal body. Instead, I must consider whether the Council followed the correct procedure in making its decision.
53. In this case, I am not satisfied the Council did so for several reasons.
54. In both its complaint responses to Mr X and his MP, the Council applied the incorrect legal test when assessing Mr X’s vulnerability. It used the wrong comparator (“the ordinary homeless person”) instead of the correct one – “the ordinary person who becomes homeless”.
55. In addition, the Council’s assessment did not accurately reflect Mr X’s medical situation, specifically in respect of his medication. His original assessment stated he had been prescribed medication, but he was not taking it. I suggest there could have been a valid reason for Mr X not taking anti-depressants that had been prescribed for him. This was not explored by the interviewing officer. The Council’s priority need assessment simply stated that, “he’s not on medication”. In my view this statement was potentially misleading and sought to downplay Mr X’s condition.
56. I am also not satisfied the Council properly considered Mr X’s vulnerability caused by his custodial sentence.
57. The Council’s case notes on this issue stated, “time in prison has not affected him in a way that he is unable to perform daily activities or in a way he is not able to engage in society. He has clearly demonstrated this by the way he is able to interact with the Council and other service providers. This does not mean that he has not been affected by his time in prison, I am just confirming he is still capable to perform the relevant tasks like anyone else who is homeless, to manage the situation (with the relevant support).”
58. As before, the Council applied the wrong legal test here. It compared Mr X’s circumstances to the ordinary homeless person, not the ordinary person who becomes homeless.
59. I also have concerns about how the Council reached its conclusion that Mr X was not vulnerable. While I accept Mr X’s outward presentation may have been one way of forming a view as to the impact of his custodial sentence, it should not have been the only method of assessment.
60. At this early assessment stage, the probation officer would have a better insight into Mr X’s potential vulnerability, as opposed to a face value opinion by the housing officer. The Code specifically says councils should have regard to advice from the probation service (although the final decision rests with the Council). The Council did not attempt to contact the probation service until 29 August 2023, after it had made its initial decision on priority need. The same day, the probation officer told the Council the Mr X’s “time in prison left him very vulnerable…I am concerned about his welfare and his mental health is declining…he is at medium risk of harm”.
61. There is also no evidence it considered what it was required to do by the Code, for example, the fact he remained on licence, he was still subject to probation and what support networks he had.
62. Bearing in mind the low threshold for establishing whether someone may have a priority need, I am satisfied the Council had not made any meaningful enquiries in order to enquiries to justify the conclusion it did. This is clearly demonstrated by the advice that was received later from the probation service.
63. Overall, I am satisfied there were many “unknowns” about Mr X’s potential vulnerability for the Council to reach the conclusion it did. It failed to make the correct enquiries and applied the wrong test. This was fault.
64. Mr X suffered an injustice because of this fault. On balance, I am satisfied, had the Council followed the correct procedure, it is highly probable the Council would have reached a different decision as to where he may have been in priority need. It follows that it is also highly likely the Council had a duty to provide interim accommodation between 21 August 2023 (when Mr X became homeless) to when he was made an offer of accommodation on 30 August 2023. I understand Mr X was effectively “street homeless” during this time. I have made recommendations below to remedy this injustice.

Inappropriate referrals to landlords

65. Mr X says the Council wasted his time by referring him for properties he would not be offered once landlords knew about his criminal history. The disclosure of such highly sensitive information to third parties could be both problematic and unlawful. The Council has explained it made the referrals to Mr X based on the criteria specified by the landlord. This did not include criminal convictions.
66. I am satisfied the Council had no reason to disclose Mr X’s history to the landlord. To do so would have been potentially unlawful. There was no fault here.

Failure to provide advice about rent top up

67. Mr X says he was told by the Council it was possible for his rent to be topped up to cover the difference between shared and self-contained accommodation. Mr X says he was only told this at the time the Council ended the relief duty. His complaint is that he should have been told this much sooner, for example as part of his Personal Housing Plan. Mr X says this would have relieved the pressure he felt he was put on to accept shared accommodation.
68. In response to my enquiries, the Council has said it would not make such a contribution as a preventative measure at any time.
69. This was incorrect. In response to an earlier draft of this decision, Mr X provided an email from the Council confirming he had been told the Council would cover a rent shortfall until a specific time.
70. I can see no reason why Mr X could not have been told this earlier, specifically when his Personal Housing Plan was drafted. Failure to do so was fault. I cannot say whether this omission contributed to Mr X’s continued homelessness, but it may have. This uncertainty is caused Mr X an injustice that requires a remedy.

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Agreed action

71. The Council has agreed to take the following action within four weeks from the date of my final decision.
1. Apologise in writing to Mr X.
2. Pay Mr X £500 as a symbolic payment to acknowledge his distress, frustration and uncertainly caused by the Council’s delay in progressing his homelessness application and fault with its assessment of his vulnerability.
3. Pay Mr X £350 in recognition of the time he spent “street homeless” and the distress this caused.
4. Pay Mr X £100 to acknowledge the uncertainty caused by not being advised earlier about a rent contribution.
5. Reflect on the issues raised in this decision statement and identify any areas of service improvement, particularly in respect of assessment of persons leaving custody and assessment of priority need. The Council should prepare a short report setting out what the Council intends to do to ensure similar problems do not reoccur. This report should be sent to the Ombudsman.
72. The Council should provide us with evidence it has complied with the above actions.

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Final decision

73. I have found the Council to be at fault. The Council has agreed to take action to improve its service and remedy the personal injustice to Mr X .

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman