The Investigation

The complaint

1. Miss X complained that the Council:

• wrongly decided she did not qualify to join the housing register in Summer 2023;

• wrongly applied an outdated version of its allocations policy when considering her request for a review;

• wrongly decided she did not qualify when she applied under the new scheme; and

• failed to make inquiries into her homelessness.

2. As a result, Miss X says she was homeless and sofa-surfing while pregnant after fleeing domestic abuse.

Legal and administrative background

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)

4. 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)

5. We make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

Homelessness law and guidance

6. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities (the Code) set out councils’ powers and duties to people who are homeless or threatened with homelessness.

7. 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. The person does not have to complete a specific form or approach a particular department of the council. (Housing Act 1996, section 184 and Homelessness Code of Guidance paragraphs 6.2 and 18.5)

8. 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)

9. If a council has reason to believe an applicant may be homeless because of domestic abuse, it should make interim accommodation available to the applicant immediately whilst it undertakes its investigations. (Homelessness Code of Guidance paragraph 21.25)

10. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of their household. This duty applies to interim accommodation. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)

11. 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 lasts 56 days. (Housing Act 1996, section 189B)

12. 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)

Housing allocations

13. 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))

14. Councils must notify applicants in writing and give reasons for a decision that the applicant is not a qualifying person. The Council must also notify the applicant of the right to request a review of this decision. (Housing Act 1996, section 166A(9))

15. Statutory guidance says a review should be considered on the basis of the authority’s allocation scheme, any legal requirements, and all relevant information. This should include information provided by the applicant on any relevant developments since the original decision. (Allocation of accommodation: guidance for local authorities 5.23)

16. The Council operates a choice-based lettings scheme. This means housing applicants can express an interest in available properties. This is called bidding.

17. In the time covered by this complaint, the Council introduced a new allocations scheme.

18. Under both schemes:

• the Council places applicants who qualify to join the housing register in a priority band from Band A (highest priority) to Band D (lowest priority);

• in order to qualify, an applicant must demonstrate five years continuous residence in Ealing; and

• homeless applicants and applicants living in overcrowded conditions get Band C priority.

19. Under the old scheme, the Council’s Social Welfare Panel could consider making exceptions to the five-year residency rule.

20. The new scheme included some specific exceptions to the residency rule. This includes where “the applicant is fleeing violence and harassment, and/or domestic abuse and it would be unsafe for them to remain in the area where they lived”.

Domestic abuse

21. The Domestic Abuse Act 2021 introduced a statutory definition of domestic abuse. The behaviour of one person towards another is domestic abuse if both people are over 16 and personally connected to each other and the behaviour is abusive.

22. The law says abusive behaviour includes:

• physical or sexual abuse;
• violent or threatening behaviour;
• controlling or coercive behaviour;
• economic abuse;
• psychological, emotional, or other abuse;

and it does not matter whether the behaviour is a single incident or a course of conduct. (The Domestic Abuse Act 2021 section 1(2) and 1(3))

How we considered this complaint

23. We have produced this report after examining relevant files and documents.

24. We considered relevant law and guidance, including the Housing Act 1996, as amended, the Homelessness Code of Guidance for Local Authorities, and the Council’s published allocations schemes.

25. We referred to our Guidance on Remedies which can be found on our website.

26. We gave the complainant and the Council a confidential draft of this report and invited their comments. The comments received were taken into account before the report was finalised.

What we found

What happened

27. Miss X applied to join the Council’s housing register in early Summer 2023. In her application she said she was sofa-surfing with her family in the Council’s area. She said she was pregnant and had experienced domestic abuse and harassment from her ex-partner. The domestic abuse she described included psychological abuse, threatening behaviour, and coercive and controlling behaviour relating to her pregnancy.

28. The following month, Miss X asked the Council for assistance. She said it was not safe for her to return to her tenancy in another borough. She was worried about the cost of emergency or refuge accommodation because she worked full time. She also said she was worried about losing her security of tenure. In response, the Council provided the telephone number for its homelessness service.

29. The Council assessed Miss X’s application. It identified that she did not meet the five-year residency criteria because she most recently lived in a different borough. It wrote to Miss X to ask her to provide supporting information about the domestic abuse so it could refer the matter to the Social Welfare Panel to consider making an exception to the residency rules.

30. Miss X provided further information. This included a letter from an Independent Domestic Violence Advisor (IDVA), police crime reference number, a letter from her landlord, and a statement from Miss X.

31. The social worker assessing Miss X’s unborn child wrote to the Council about their involvement with Miss X. The email said children’s services assessed Miss X following a referral from the IDVA, the other borough, and police raising concerns about the risk to Miss X and her unborn baby from her ex-partner. The social worker set out the protective steps Miss X had taken to keep her and her baby safe, including leaving her accommodation. The social worker said Miss X would be supported by a specialist midwife service due to the threats and harassment from her ex-partner. The email said Miss X had extensive support from her family in the Council’s area and because of this she was “coping well”.

32. The Council’s Social Welfare Panel decided Miss X could not join the housing register. It said there were “no special circumstances” for an exemption to the residency criteria. It said Miss X should ask her landlord for a transfer.

33. Miss X asked the Council to review this decision. She said she had already contacted her landlord to ask about a transfer. However, her landlord said it had no properties in the Council’s area, which is where Miss X’s family and support networks are.

34. The Council issued a new allocations policy in September. The new policy included a residence requirement of five years. However, it also included an exemption to this for victims of domestic abuse who could not remain in the area where they lived.

35. The Council completed its review in late October. The decision noted the policy change but said it would consider whether the decision was correct at the time and so under the previous policy. The review confirmed the original decision that Miss X did not qualify. It said:

• “many households in Ealing face homelessness or being threatened with homelessness”;
• “having fled domestic abuse would not make your circumstances exceptional” so under the policy in place at the time, the Council was right not to waive the residency criteria;
• Miss X could contact its homelessness service for help and support to find private rented accommodation; and
• Miss X could apply again to be assessed under the new allocations scheme, which included an exception to the residency criteria for people fleeing domestic abuse.

36. In November, Miss X applied to join the housing register again. In December, the Council decided Miss X did not qualify because she did not meet the five-year residency criteria. Miss X asked for a review of this decision.

37. The Council completed the review in early 2024. It confirmed the original decision. It said:

• Miss X said her ex-partner had not physically assaulted her or threatened to physically assault her;

• the information Miss X provided “does not indicate that you are at risk of being attacked or threatened with attack. We therefore cannot say that there is a risk to you or your baby in the area you previously lived.”;

• Miss X reported an incident to the police when her ex-partner kicked in her front door, but the police took no further action;

• it was “not satisfied that you are at risk of domestic violence or threats of domestic violence that are likely to be carried out by your ex-partner.”; and

• it had “no evidence [Miss X] would be unsafe in the area where you were previously living”.

Our findings

38. We will set out our findings on the complaint in the order they appear in paragraph one.

Summer 2023 decision

39. The Council’s Social Welfare Panel decided Miss X’s circumstances did not justify an exception to its residency criteria. We cannot question the outcome of a decision if the Council made the decision properly. In this case, the panel had all the relevant information before it. There is no evidence of fault in how it decided not to grant an exception in Miss X’s case. We will not, therefore, question the outcome.

October 2023 review decision

40. The Council’s allocations scheme changed between its original decision and its review decision in October. The Council decided to apply its now outdated allocations scheme to the review.

41. The review should not only look at the original decision. It should take into account any new information and make a new decision about the facts of the case. The Council should have considered Miss X’s application under its new allocations scheme. Failure to do so was fault. This meant Miss X had to apply again and wait even longer for a decision. This is an injustice to Miss X.

Second application

42. Miss X applied again under the new scheme, as advised by the review decision. The Council again decided she did not qualify. It upheld that decision on review.

43. We find fault with how the Council considered Miss X’s case under the new scheme and on review. Domestic abuse is defined in law and includes non-physical abuse, including psychological abuse and coercive and controlling behaviour. However, the Council’s review only considered whether Miss X was at risk of physical violence. This was fault.

44. The Council disregarded the information that the ex-partner had kicked in Miss X’s door because the police took no further action. The police work to the high “beyond a reasonable doubt” standard of proof as they must decide whether to charge someone with a criminal offence. The Council makes decisions to the civil standard, which is “balance of probabilities”. That the police did not act does not mean the incident did not happen. The Council’s failure to consider this was fault. The Council should not require information from the police, or confirmation that the police are bringing charges, when considering whether an applicant has experienced and/or is at risk of domestic abuse.

45. There is no evidence the Council considered the information from the social worker about the risk to Miss X or the importance of family support to the ongoing wellbeing of Miss X and her baby. Nor did it consider the evidence Miss X gave of coercive and controlling behaviour and harassment. This was fault.

46. We are concerned that the approach taken by the Council in this case indicates a lack of knowledge and understanding about domestic abuse. To limit its assessment of the case to physical violence is outdated and fails to reflect the changes made by the Domestic Abuse Act 2021 to recognise other forms of domestic abuse.

47. When we find fault in how a council made a decision, we can decide what the outcome would have been were it not for the fault in order to assess the extent of any injustice. In this case, the evidence from the social worker, IDVA, police, and Miss X was that it was not safe for Miss X to return to her tenancy. Furthermore, the social worker’s evidence was that Miss X was managing well because she had access to extensive family support in the Council’s area. However, the Council’s allocations scheme says the exemption to the residency criteria applies if it would be unsafe for an applicant to “remain in the area where they lived”. The Council says this means it would consider whether Miss X was unsafe in the other borough, not just her property. There is not enough evidence about this for us to say, even on balance, what the Council would have decided. This leaves Miss X with avoidable uncertainty, which is an injustice.

Homelessness

48. The Council has a statutory duty to make inquiries into what, if any, homelessness duty it owes if it has reason to believe that a person seeking accommodation might be homeless or threatened with homelessness. The person does not have to approach a specific department or fill in a form for this duty to arise. The Code of Guidance says councils should be particularly alert to applications for social housing which trigger this duty.

49. Miss X’s application to the housing register in May 2023 said she was homeless having fled domestic abuse. The Council therefore had reason to believe Miss X might be eligible and homeless. It had a duty to make inquiries and decide if it owed her a duty. Its failure to do so was fault.

50. The Council did tell Miss X that she could contact its homelessness service and provided a telephone number and email address. However, this was insufficient to meet the Council’s duty in this case. It directed Miss X to contact the homelessness service for emergency accommodation and help to find private rented accommodation. Miss X said she was worried about affording emergency accommodation and losing her security of tenure. The Council did not tell Miss X that she did not need to end her tenancy to make a homeless application.

51. Had the Council properly considered its homelessness duty, it is likely it would have assessed Miss X, accepted a relief duty, and issued her with a personalised housing plan. This would have given Miss X advice and information about her housing options and provided her with the information necessary to make informed decisions about her tenancy.

52. The Council had reason to believe Miss X was homeless and in priority need because she was pregnant and because she was a victim of domestic abuse. Therefore, the Council should have offered Miss X interim accommodation. Failure to do so was fault. Miss X would have been expected to pay towards the cost of interim accommodation. However, to be suitable, this would need to be affordable. Miss X may have chosen to continue sofa-surfing with her family. However, the Council’s fault denied her the option, which is an injustice.

Conclusions

53. The Council was at fault for failing to consider Miss X’s review under its current allocations scheme in October 2023.

54. The Council was at fault for applying a narrow and inaccurate definition of domestic abuse when it assessed Miss X’s November 2023 application.

55. The Council was at fault for failing to identify and act on its duty to make inquiries into Miss X’s homelessness. It was also at fault for failing to offer Miss X interim accommodation.

56. These faults caused Miss X significant and avoidable distress at an already difficult time. She was homeless and sleeping on sofas while pregnant. She gave birth without knowing where she and her baby would live. She continued to sofa-surf with a newborn baby. She experienced the significant distress of having her experience of domestic abuse discounted because it was not physical abuse. She has avoidable uncertainty about what the Council would have decided had it properly considered her application. She did not receive the advice, information, and support of a relief duty and personalised housing plan. She missed out on the opportunity to take up interim accommodation.

Recommendations

57. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

58. To remedy the injustice to Miss X from the faults identified, the Council has agreed to:

• apologise to Miss X in line with our guidance on Making an effective apology;

• invite Miss X for an assessment of her homelessness and offer interim accommodation if necessary;

• do a new review of Miss X’s application to the housing register, having invited her to provide further information; and

• pay Miss X £1,000 to recognise her significant and avoidable distress, uncertainty, and missed opportunities over a prolonged period.

59. The Council should also take the following action to improve its services:

• Provide training or guidance on domestic abuse to all staff dealing with allocations applications and reviews, including the statutory definition of domestic abuse, the relevant standard of proof, and the information and evidence which may be relevant.

• Provide training or guidance to ensure all front-line staff, particularly those dealing with applications to the housing register, can identify when the Council’s duty to make inquiries into homelessness is triggered and refer the matter to the appropriate service.

• Remind staff dealing with reviews of allocations decisions that the purpose of a review is to reconsider the decision, taking into account any new information and changes of circumstances since the original decision. This should include any changes to the Council’s policies.

Decision

60. We have completed our investigation. There was fault by the Council. The action we have recommended is a suitable remedy for the injustice caused.

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