Summary: Miss P complains about a delay in the Council increasing her banding for its housing register. She also complains, when she was homeless, the Council said it could not accommodate her emotional support dog, despite her asking for it as a reasonable adjustment under the Equality Act. We uphold the complaint about the housing of the dog, although for a shorter period than Miss P’s complaint relates to. Miss P says the issues have been distressing and had a negative effect on her mental health. The Council has agreed to our recommended remedy, for the uncertainty and unnecessary time and trouble this will have caused her.

The complaint

1. The complainant (Miss P) complains that, from June 2022, the Council delayed:
• increasing, on the grounds of medical need, her banding for its housing register; and
• providing her with accommodation under its homelessness duties. It repeatedly said it could not provide accommodation for her therapy dog.
2. Miss P says the issues have been distressing and had a negative effect on her mental health.

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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. If there was no fault in how the organisation made a decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. 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)
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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What I have and have not investigated

8. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.

Time

9. One of our restrictions is about ‘late’ complaints (see paragraph 5). Miss P complains about matters going back to June 2022 – over 12 months before her May 2024 complaint to the Ombudsman.
10. Miss P told me she did not complain in 2022 as she was unwell. She could not get out of bed and did not know what was going on. She had support for welfare benefits issues, but not about her housing.
11. I have considered this carefully, but I am not persuaded to investigate the complaint back to 2022. This is because Miss P complained to the Council in 2023 (with the help of her daughter). I have checked the Council’s letter, sent at stage two of its complaint’s response. This letter referred Miss P to the Ombudsman. So my view is it was reasonable for Miss P to have come to the Ombudsman then. If she had done so, we could have considered most of the earlier period.
12. I have however considered the Council’s decisions between May 2023 and May 2024, when Miss P complained to the Ombudsman.

The Equality Act

13. If a person believes they have been discriminated against as a result of the actions of a service provider, they may make a claim for damages in the county court under the Equality Act. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts.
14. But we can make decisions about whether an organisation has properly taken account of an individual’s rights in its treatment of them, or taken account of its duties under the Equality Act. So I have looked at Miss P’s complaint about reasonable adjustments in that respect.

Right of review to Housing Act decisions

15. Housing applicants can ask a council to review a wide range of decisions about their applications and then go to a court on a point of law. So, we cannot make a decision on the correct banding Miss P should have been in. But I have looked at the process the Council followed in arriving at its decision.

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How I considered this complaint

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

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What I found

Legal and administrative background

Housing allocations

17. 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))

Homelessness

18. Someone is homeless if they have no accommodation or if they have accommodation, but it is not reasonable for them to continue to live there. (Housing Act 1996, Section 175)
19. 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. But councils will not owe the main housing duty to applicants who have turned down a suitable final accommodation offer. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)
20. The Homeless Code of Guidance is statutory guidance housing authorities must take notice of. It says they:

“…will need to be sensitive to the importance of pets to some applicants, particularly elderly people and rough sleepers who may rely on pets for companionship. Although it will not always be possible to make provision for pets, the Secretary of State recommends that housing authorities give careful consideration to this aspect when making provision for applicants who wish to retain their pet”.

(Homelessness Code of Guidance 17.69)

Equality Act

21. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010 (which includes disability). It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
22. The reasonable adjustment duty is set out in the Equality Act. 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.
23. 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.
24. 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.
25. The Equality Act also bars service providers from discriminating against those who need an assistance dog. Its definition of an assistance dog includes clauses about training the dog must have received.
26. Guidance produced by the Equality and Human Rights Commission (EHRC) - “Assistance dogs: A guide for businesses and service providers” – says emotional support animals are not defined as assistance dogs in the Equality Act. But it notes service providers:
• are required to make reasonable adjustments for disabled people. And dependent on the facts of a case, services might be required to make a reasonable adjustment to accommodate a service user’s emotional support dog;
• “…should develop a policy [about rehousing pets] that is inclusive and allows for consideration of individual circumstances”. 

What happened

Background

27. The information below is a summary of relevant events, and does not include everything that happened during this period.
28. Miss P has a range of physical and mental health disabilities that limit her ability to live in some types of accommodation. In the period before this complaint considers, Miss P had been living in insecure accommodation. She was on the Council’s housing waiting list with a Band 3 priority. The Council had previously discharged a homeless duty as Miss P had refused an offer of accommodation because it was not available for her dog. Miss P says the dog is vital for her emotional support.

The priority on the allocation list

29. In the summer of 2023 an advice organisation emailed the Council asking it to review Miss P’s priority on its housing waiting list due to a change in her circumstances. The change was the disruption Miss P had been through in the previous 12 months.
30. The Council Panel’s decision was there was no change to Miss P’s banding. It gave reasons. It suggested Miss P approach its homeless team.
31. In response to a complaint from Miss P, the Council accepted there was some confusion over what information its Panel had considered. It agreed to re-submit her application for re-assessment. It asked her to send any further information she had.
32. Miss P sent the Council information from a doctor. The Council considered this information but did not change her banding. Its decision reasons were similar to Miss P’s previous application.
33. After the Council had moved Miss P to temporary accommodation through its homeless duties, Miss P asked the Council to look again at her priority on its housing register. The Council’s view was Miss P’s priority was unchanged.
34. In July Miss P provided further information from a psychological therapist and her GP. Both noted concerns about Miss P’s suicidal ideation and that she could not start trauma therapy until she was in stable accommodation.
35. On receipt of this further information, the Council increased Miss P’s band on its housing register to Band 2.

Miss P’s dog

36. In December 2023 Miss P approached the Council’s homelessness team. It accepted it had a homeless prevention duty to her.
37. Miss P asked for housing that accommodated her dog. She provided a letter of support from a social subscriber who wrote that her dog was for emotional support and they were seeking to have it registered as an emotional support dog. The subscriber offered to provide extra information. Shortly after Miss P asked the Council to make a reasonable adjustment under the Equality Act to accommodate her dog.
38. The Council advised Miss P it did not consider her dog to be an assistance dog under the Equality Act, as it had not been trained to provide assistance. So the Council could not agree to provide accommodation that homed Miss P and her dog.
39. In response to my enquiries the Council advised:
• the email from Miss P’s social subscriber did not provide details of Miss P’s mental health diagnosis or what impact there would be on her if she was housed without her dog;
• in its response to Miss P it did not specifically note her request for a reasonable adjustment. Its view was it was not evident at the time she would be at a significant disadvantage due to her disabilities if it accommodated her without her dog;
• its response did not specifically note its more general duty, as set out in the Homeless Code of Guidance, to carefully consider applicants’ requests for their pets to accompany them.
40. In June Miss P’s daughter made a further request for reasonable adjustments. The Council says she provided some context of Miss P’s mental health at the time. The Council’s officer met Miss P and her daughter. They also provided a letter from Miss P’s mental health practitioner. This said Miss P’s dog was her single most important risk reduction measure regarding her increasing suicidal ideation.
41. After the meeting the Council decided to offer Miss P accommodation with her dog as it accepted that separating them might have a serious detrimental impact on Miss P’s mental health.

Was there fault by the Council?

Allocations

42. I have reviewed each of the Council’s decisions on Miss P’s applications to increase her banding on the Council’s housing register. The earlier applications considered the evidence submitted, but provided reasons why it did not agree to an increase in banding.
43. With the application when the Council did agree to an increase in banding, the evidence the Council considered was sufficiently different to the earlier evidence to explain the differing decisions.
44. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome. So, as I do not see fault with this part of Miss P’s complaint, I cannot uphold it.

The Council’s homelessness duty to provide accommodation

45. The Council’s reason for refusing to search for a property that could accommodate Miss P’s dog was that the dog did not meet the definition, found in the Equality Act, of an assistance dog. My reading of the Act, combined with the EHRC’s guidance, gives some weight to the Council’s view on this point. The Ombudsman is not a substitute for a court and cannot decide on contested law. But I cannot say, on the balance of probabilities, there was administrative fault by the Council with this specific decision.
46. But, irrespective of whether Miss P’s dog counted as an assistance dog, Miss P requested a placement for her dog as a reasonable adjustment, as it was for her emotional support. Such a possibility is noted in the EHRC’s guidance.
47. I have reviewed the letter from Miss P’s social subscriber. It sets out Miss P’s mental health issues, says she is closely attached to her dog and that losing it would worsen her mental health. The subscriber also offered to provide further information if needed. This correspondence is sufficiently detailed to explain why Miss P’s dog was important for her mental wellbeing. Miss P also specifically requested a reasonable adjustment.
48. The Equality Act says public bodies needed to be “positive and proactive” when considering reasonable adjustments. So, at the least, I would have expected the Council to seek the offered extra information if it felt it was needed. The Council has no record it contemporaneously considered the issues around this request. My decision is to have not considered this request was fault.
49. The Homeless Code of Guidance also has an instruction, for housing authorities to give “careful consideration” to the reasons, beyond disability concerns, why some applicants might wish to be homed with their pet. The Council has provided no evidence to show its officers considered this, or that officers were aware of this guidance. That was fault.

Did the fault cause an injustice?

50. I cannot know whether, but for the fault, the Council would have earlier found accommodation which could have accepted Miss P’s dog. So I cannot say the failure to offer accommodation which could accept pets led Miss P to be accommodated in insecure housing for longer than necessary. But the Council’s failure to consider if it could find such accommodation will have caused some avoidable uncertainty to Miss P. She cannot know if the Council would have offered interim accommodation she could have accepted. The Council should remedy this injustice.
51. The Council’s decision on Miss P’s request to be housed with her dog also put her to the onerous task of contacting other medical professionals for more information.

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Agreed action

52. The Council has agreed to my recommendation that, within a month of my final decision, it will:
• apologise to Miss P. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings;
• make Miss P a symbolic payment of £500 for the uncertainty of whether, but for the fault, it might earlier have rehoused her and her dog;
• make Miss P a symbolic payment of £100 to reflect the avoidable time and trouble she had to go to seek extra evidence in support of the request to be housed with her dog.
53. The Council has also agreed that, within three months of this decision, it will publish a policy around the housing of pets with their owners. This will take into account both the Homeless Code of Guidance and the EHRC’s advice for a policy that “is inclusive and allows for consideration of individual circumstances”.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. 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