Summary: We have completed our investigation. The Council was at fault. It did not properly assess Mr X and his family’s homelessness and missed opportunities to offer interim accommodation to Mr X and his family. Mr X suffered avoidable distress, confusion, and delayed appeal rights. The Council will apologise, make a symbolic payment to Mr X, and deliver training to its homelessness prevention and assistance service.

The complaint

1. Mr X complains about the Council failing to follow homelessness guidance properly and provide him and his family with interim accommodation.
2. He says there has been unnecessary delay in dealing with his case and poor complaint handling by the Council.
3. Mr X says his family remain in unsuitable accommodation and this has had a negative impact on their physical and mental health resulting in them all needing medical intervention.
4. He says his family have suffered undue time, trouble, and distress because of fault by the Council.

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The Ombudsman’s role and powers

5. 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)
6. When considering complaints 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.
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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How I considered this complaint

8. I considered the complaint and information provided by Mr X.
9. I made written inquiries of the Council and considered its response along with relevant law and guidance.
10. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
11. Mr X and the Council had the opportunity to comment on the draft decision. I considered any comments before making a final decision.

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What I found

Law and guidance

Health and safety

12. Councils use the Housing Health and Safety Rating System (HHSRS) to assess the condition of residential housing. The HHSRS looks at the risks to the health and safety of occupants or visitors to a particular property.
13. The HHSRS calls these risks ‘hazards’. There are Category 1 and Category 2 hazards. Category 1 hazards are the most serious hazards.
14. The Housing Act 2004 places a duty on councils to take enforcement action when it identifies a Category 1 hazard. The Council must do one of the following:

•     Serve an Improvement Notice

•     Make a prohibition order

•     Serve a hazard awareness notice

•     Take emergency action to reduce or remove the risk

•     Make an emergency prohibition order

•     Make a demolition order

•     Declare the area to be a clearance area.

15. An improvement notice requires the person on whom it is served to take the action set out in the notice to address the hazards. The action must be enough to make sure the hazard is no longer Category 1 but can go further. In private rented properties, it is usually served on the landlord.

Homelessness

16. 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.
17. Someone is homeless if they have no accommodation or if they have accommodation, but it is not reasonable for them and anyone who lives with them to continue to live there. (Housing Act 1996, Section 175)
18. Someone is threatened with homelessness if, when asking for assistance from the council on or after 3 April 2018:

• they are likely to become homeless within 56 days; or
• they have been served with a valid Section 21 notice which will expire within 56 days. (Housing Act 1996, section 175(4) & (5)

19. Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. The Code of Guidance says, rather than advise the applicant to return when homelessness is more imminent, the housing authority may wish to accept a prevention duty and begin to take reasonable steps to prevent homelessness. Councils must notify the applicant of the assessment. 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)
20. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. When a council decides this duty has come to an end, it must notify the applicant in writing (Housing Act 1996, section 189B)
21. There are two types of accommodation councils provide to certain homeless applicants: interim accommodation and temporary accommodation.
22. A council must secure accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need. This is called interim accommodation. (Housing Act 1996, section 188)
23. If, having made inquiries, the council is not satisfied an applicant is homeless, eligible, and in priority need, it will have no further accommodation duty.
24. Examples of applicants in priority need are people with dependent children and victims of domestic abuse. Homeless applicants may request a review within 21 days of being notified of the following decisions:

• their eligibility for assistance;
• what duty (if any) is owed to them if they are found to be homeless or threatened with homelessness;
• giving notice to bring the relief duty to an end;

25. The review must be carried out by someone who was not involved in the original decision and who is more senior to the original decision maker. The reviewing officer needs to consider any information relevant to the period before the decision was made (even if only obtained afterwards) as well as any new relevant information the council has obtained since the decision. (The Homelessness (Review Procedure etc.) Regulations 2018, Homelessness Code of Guidance Chapter 19)
26. Councils must complete reviews of the following decisions within eight weeks of the date of the review request:

• eligibility for assistance;
• not in priority need;
• intentionally homeless;
• suitability of accommodation;
• notice being given of deliberate and unreasonable refusal to cooperate and the effect of the notice is to bring the relief duty to an end.

27. These periods can be extended if the applicant agrees in writing.
28. The council must advise applicants of their right to appeal to the county court on a point of law, and of the period in which to appeal. Applicants can also appeal if the council takes more than the prescribed time to complete the review. (Housing Act 1996, sections 202, 203 and 204)

Domestic abuse

29. Section 177 of the Housing Act, 1996, says it is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to violence or domestic abuse against them, or against a person who would normally or reasonably be expected to live with them. (Homelessness Code of Guidance, Chapter 21)
30. The Council should try to get an account of the applicant’s experience to assess whether the behaviour they have experienced is abusive or whether they would be at risk of domestic abuse if they continued to occupy their accommodation. The authority should support the victim to outline their experience and make an assessment based on the details of the case. (Homelessness Code of Guidance, Chapter 21)
31. With consent of the victim, the Council may wish to speak to other agencies who are informed about the domestic abuse, for instance, the police, children’s services, or health professionals. (Homelessness Code of Guidance, Chapter 21)

Legally ending private tenancies

32. A section 8 notice (Housing Act, 1988) is the first step taken by a landlord to evict a tenant. There needs to be a valid reason why the landlord is evicting the tenant. This reason is referred to as ‘ground for possession.’
33. A section 21 notice (Housing Act, 1988) can be served by a landlord to a tenant. The landlord does not need a reason. This notice does not require ground for possession.

What happened

34. The following is a summary of key events about Mr X’s complaint.
35. Mr X lives with his wife, their young child, and another family member. They live in a privately rented property.
36. Mr X reported disrepair and a problem with damp and mould in the property to the Council in December 2023.
37. In January 2024 Mr X approached the Council. He cannot remember exactly what he reported during January, but thinks it is likely that he contacted the Council about the disrepair, mould and damp.
38. The family nurse wrote to the Council mid-February sharing concerns about the impact of the housing situation and damp and mould on the health of Mr X’s child.
39. In March 2024 Mr X completed a homelessness assistance application. Mr X said the family were experiencing domestic abuse from wider family members, and that he had been served an eviction notice. The Council invited Mr X to contact it should he and his family need interim accommodation over the weekend. This happened on a Friday.
40. Mr X and his family returned to his property for the weekend. They did not call the Council out of hours team to ask for interim accommodation.
41. During that week Mr X and his family were provided with interim accommodation for two nights, after calling the out of hours team at the Council and expressing concern about homelessness. This was not provided to Mr X as a routine part of its duties, by the homelessness prevention and assistance service.
42. The Council made enquiries with partner agencies. A few days later the Council wrote to Mr X. It decided that the family were not in need of interim accommodation as the risk posed to the family, by domestic abuse, was low.
43. The Council issued Mr X with a decision letter. The Council decided Mr X was homeless and eligible for assistance. In the letter it told Mr X the threshold for emergency accommodation had not been met. The Council viewed the risk to Mr X’s family as low and therefore would not be offering interim accommodation. The Council told Mr X he was under relief duty. It also sent Mr X a copy of his personalised housing plan. The plan included a variety of advice and guidance for Mr X to consider.
44. Mr X asked for a review of the decision. The Council acted quickly and carried out a review.
45. Children’s services expressed concern to the homelessness service about the family living in the accommodation, because of the risk of domestic abuse from wider family members.
46. In February and March, the private sector housing team at the Council visited Mr X at home to inspect the disrepair, damp and mould.
47. At the end of March, the Council produced a housing, health and safety rating system (HHSRS) report.
48. The Council said the hazards identified in the property were not Category 1 hazards. The Council said it had limited options available to it to help Mr X and no way of enforcing action from the landlord. The Council said it understood eviction proceedings had started and Mr X was due to leave the property in May 2024.
49. The Council said it would keep the case open and may serve a hazard awareness notice to the landlord. It considered points Mr X made about hazards worsening and adjusted its assessment slightly. It shared a copy of the HHSRS report with Mr X and recommended Mr X might want to consider taking legal action independently of the Council.
50. In April the Council wrote to Mr X to tell him it withdrew its first decision about his homelessness. It said it would make further enquiries to decide what duty, if any, was owed to him and his family.
51. The Council made further enquiries with partner agencies about Mr X’s homelessness. Mr X’s general practitioner wrote to the Council, sharing with the Council concerns Mr X had about the impact of mould on his child.
52. In mid-May the Council carried out a new homelessness assessment with Mr X. The Council records said Mr X and his family were homeless, in priority need and eligible for assistance. Case records show the Council decided Mr X met the criteria for interim accommodation.
53. The Council did not offer Mr X and his family interim accommodation. Instead, the Council wrote to Mr X to ask him if he wanted to withdraw his housing application because he had another open with a neighbouring borough. The Council said Mr X could not have two housing applications open with different Councils, at the same time.
54. About one week later children's services held a multi-agency meeting. Childrens’ services were concerned about the risk to Mr X and his family from wider family members.
55. The Council wrote to Mr X and asked him to clarify the domestic abuse he was suffering. It asked him why he had not taken out measures such as injunctions against family members.
56. At the end of May Mr X complained to the Ombudsman. On the same day the Council wrote to Mr X to ask questions about the privately rented property.
57. The police wrote to the Council and confirmed there was no imminent risk to Mr X and his family, from wider family members.
58. In mid-June 2024 the Council wrote to Mr X. It sent him a decision letter. It decided he was eligible for assistance but not homeless.
59. The decision had a summary of the Councils assessment of domestic abuse, disrepair in the property, eviction notices served to Mr X and medical grounds. It was thorough. It found the risk of harm to Mr X from domestic abuse was low. The Council said despite being asked more than once, Mr X failed to disclose pertinent information to the Council about the domestic abuse. It found the hazards in the property did not fall within categories that would make it unfit for habitation. It was satisfied with the action it had taken about the hazards. It found the eviction notice served to Mr X invalid and shared the reasons why. The Council said Mr X had not provided enough evidence about a medical condition for the Council to decide about homelessness based on medical grounds.

My findings

60. At the time of writing this decision Mr X and his family remain in the privately rented property.
61. Mr X complained to the Ombudsman in May 2024. Mr X exercised his appeal and review rights, following the decision made by the Council in June 2024. Our investigation does not consider matters after June 2024.

Homelessness

62. The Council took an unusual and confusing approach to assessing Mr X’s homelessness.
63. Mr X approached the Council in January 2024. Mr X cannot remember exactly what he told the Council in January. The council did not keep records of the conversation with Mr X in January. I cannot make findings about the Council’s actions. Failure to keep case notes is fault by the Council and has hindered my analysis.
64. Accepting the relief duty in March created a contradiction in the Council’s communication with Mr X. It said he was homeless but that it did not need to provide him with accommodation. The Council could not both be satisfied Mr X was homeless and yet decide that he did not meet the lower threshold of ‘reason to believe’ he might be homeless which gives rise to the duty to provide interim accommodation.
65. The evidence the Council relied on to make a ‘not homeless’ decision in June was broadly the same information it had in March. Even considering the additional information about damp and mould, the Council still decided Mr X was not homeless.
66. The Council wrongly accepted the relief duty in March. It should have made a ‘not homeless’ decision. It caused Mr X avoidable confusion and distress, raised his expectations, and delayed his right to the correct review and appeal process.
67. Different decisions offer applicants different review rights. Mr X would have had the opportunity to review a ‘not homeless’ decision properly, had the Council made one in March 2024.
68. The Council had to take steps to understand the risk to Mr X from the reported domestic abuse. Through reviewing case records, and communication between Mr X and the Council, it appears it did so.
69. It seems Mr X was not always forthcoming with information. However, the nature and tone of questioning of Mr X, in May 2024, about domestic abuse, was abrupt and unnecessary. It is not uncommon for survivors of domestic abuse to be hesitant about taking out injunctions against perpetrators or sharing their details. Fear is often a factor in this decision making. The Council should have understood this. It should have acted in a sensitive and considerate manner when asking Mr X questions.

Mould and damp

70. Issues of disrepair, mould and damp were first reported to the Council in December 2023. It took the Council nine weeks to make its first visit to Mr X to assess the issues. The Council visited Mr X a second time, about three weeks later. The HHSRS report was produced about two weeks after the second visit. I do not find fault with the speed at which the Council acted.
71. The Council has a Damp and Mould Strategy and Action Plan in place spanning 2023 - 2025. It outlines how the Council responds to complaints of damp and mould. There is no evidence to suggest the Council acted in conflict with the strategy when assessing Mr X’s home.
72. The Council viewed the assessed hazards of low enough severity that it did not serve a formal improvement notice. It sent a hazard awareness notice to the landlord. It explained to Mr X it may inspect the property again.
73. The Council has a duty to act on category 1 hazards. It has a power, but not a duty to act on category 2 hazards. The Council properly arrived at a decision about Mr X’s reports of damp and mould. Its communication was clear and timely.
74. While I recognise the understandable concern Mr X has about the conditions of his home, and the impact on his child’s health, I cannot find fault with how the Council acted to assess the damp and mould in Mr X’s property.

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Agreed action

75. To remedy the injustice to Mr X and his family from the fault by the Council, I recommend that, within four weeks of a final decision, the Council takes the following actions:
• Apologise to Mr X in line with our guidance on Making an Effective Apology. 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 a symbolic payment of £400 to Mr X to recognise the delayed review rights, avoidable distress and prolonged uncertainty caused by its actions.
76. Within twelve weeks of a final decision the Council should:
• Share learning from this decision with the homelessness prevention and assistance service.
• Provide internal staff training to the homelessness prevention and assistance service about when the Council’s interim accommodation duty arises. Pay attention to the different thresholds outlined in Chapter 15 of the Homelessness Code of Guidance for Local Authorities.
77. The Council should provide us with evidence it has complied with the above actions.

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Final decision

78. I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused to Mr X and his family.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman