Summary: Ms X complained about the Council’s handling of a homelessness assessment telephone call when she said she was at risk of domestic abuse. The Council was at fault for not properly explaining what information it needed and why it needed it, not being clear about what information it had considered before deciding it did not have “reason to believe” Ms X was homeless and applying too high a bar when making that decision. It should apologise, and pay Ms X £250 for the distress, frustration and uncertainty caused. It should share the learning from this case with relevant staff.

The complaint

1. Ms X complained about the Council’s handling of her homelessness application in September 2022. In particular that:
1. the officer handling the telephone assessment repeatedly asked for information that Ms X had already provided to the Council in connection with her housing register application and contact with children’s social care;
2. the officer agreed to access information held by other parts of the Council before making their decision, but failed to do so;
3. the officer was hostile and intimidating, when asking questions about the domestic abuse Ms X had experienced, despite Ms X saying several times that she found the questions retraumatising;
4. the officer’s record of the telephone assessment was inaccurate and wrongly stated that Ms X refused to cooperate;
5. the Council sent two conflicting decisions, did not explain the reasons for its decisions and did not provide copies of relevant records to show how it had considered the application;
6. the Council’s complaint response did not address all the issues raised.
2. Ms X said the failings caused her significant trauma and upset.

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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 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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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.
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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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

9. I considered:
• the information Ms X provided and discussed the complaint with her:
• the information the Council provided in response to our enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our website.
10. Ms X and the Council 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

Relevant law and guidance

Homelessness

11. 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.
12. Where a council has reason to believe an applicant is eligible for assistance and may be homeless or at risk of homelessness, it should carry out an assessment to determine what duties, if any, it owes them.
13. If the council has reason to believe the applicant may be homeless, eligible for assistance and in priority need, it must provide emergency accommodation until it has finished assessing the homelessness application if the applicant asks for it.  An applicant with dependent children would be in priority need.
14. An applicant who has accommodation is to be treated as homeless where it would not be reasonable for them to continue to occupy that accommodation. (Homelessness Code of Guidance, paragraph 6.4)
15. The Code says there is no simple test of reasonableness and authorities should judge each application on the facts of the case (paragraph 6.23). There are many factors which could be relevant to deciding what is reasonable to occupy. The Code also states it is not reasonable for the applicant to continue to occupy accommodation “if it is probable that this will lead to domestic abuse or other violence” against the applicant or someone who might reasonably be expected to live with them (paragraph 6.24).
16. Councils will need to assess whether the applicant is a victim of domestic abuse or if they are at risk of domestic abuse (the Code, paragraph 21.20).
17. The Code says councils should seek an account of the applicant’s experience to assess whether the behaviour they have experienced is abusive and whether they would be at risk of domestic abuse if they continued to occupy their accommodation. This should be done in a supportive way. Where an applicant’s experience has been documented already by a domestic abuse service, the Code says councils should, where possible, utilise existing statements to avoid asking the victim to re-live their experience unnecessarily (paragraph 21.21).
18. The Code recognises that in cases involving violence and abuse, the applicant may be in considerable distress and suggests an officer trained in dealing with those circumstances should conduct the interview (paragraph 21.32).
19. The Code also says councils should provide assessment services that are flexible to the needs of applicants, which in most cases will require at least one face-to-face interview. There should be an opportunity to complete the assessment at a face to face meeting if the applicant’s needs indicate this is necessary or they request it (paragraphs 11:13 to 11:15).
20. If a council is satisfied applicants are threatened with homelessness and eligible for assistance, they will owe the applicant the ‘prevention duty’. This means the council must help the person to ensure that accommodation does not stop being available for their occupation.
21. If a council is satisfied an applicant is eligible for assistance and homeless then the council will owe the ‘relief duty’. This requires the council to take reasonable steps to help to secure suitable accommodation for any eligible homeless person for at least six months.

Allocations

22. The demand for social housing far outstrips the supply of properties in many areas. To manage the demand, every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing. (Housing Act 1996, section 166A(1) & (14))
23. This Council operates a choice-based lettings scheme which enables housing applicants to bid for available properties which it advertises. It uses priority groups based on the applicant’s housing need. The scheme also allows the Council to make a direct offer of accommodation, which means it will offer a suitable property outside of the usual bidding process in exceptional circumstances.

Scope of my investigation

24. We cannot usually investigate a complaint where the person could appeal to court about the same matter. Most homelessness decisions carry a right of review and a right of appeal to the county court on a point of law.
25. In this case, the Council decided it did not have sufficient information for it to have reason to believe Ms X may be homeless or at risk of homelessness. Ms X did not have a right of review or appeal in this situation, which means I can investigate all the points set out at paragraph 1 above.
26. I have not considered whether the Council had due regard to its obligations under the Equality Act 2010 when carrying out the homelessness assessment. This is because Ms X is pursuing a disability discrimination claim, in relation to the Council’s duty to make “reasonable adjustments” to its services to meet the needs of disabled people.

What happened

Background

27. In July 2019, Ms X made a homelessness application, but the Council decided she was not homeless. Also in July 2019, Ms X had told the housing register team she was a victim of domestic abuse. In August 2019, she sent it a solicitor’s letter confirming they had given her legal advice about domestic abuse and a copy of the non-molestation order she had obtained, which expired in 2020.
28. In addition, the Council’s children’s social care team was involved with Ms X in 2019 and again 2021. Ms X told the Council she was a victim of domestic abuse in 2019. She said Mr Y was unhappy she was pregnant and wanted her to have an abortion, leading to a domestic abuse incident. She said Mr Y came to her home some months later and had told her he could kill her and make it look like an accident. At this point, she reported the matter to the police. An assessment in 2021 recorded the impact of the domestic abuse on Ms X, including her ongoing fear that Mr Y would harm her or her child.
29. Also in 2021 Ms X told the police and the Council she believed Mr Y was stalking her. This was because, in the context of court action relating to their child, he had said he knew she was still living at the same address, and she considered he would only know this if he had been following her because she had previously told him she had moved. She had not seen him following her but believed he would be able to do so without her knowing.
30. In August 2022, the Council agreed to make a direct offer of housing to Ms X.

This complaint

31. Ms X made an earlier complaint based on the events described above, which we investigated. During that investigation, in August 2022, Ms X told us she had been seeking financial assistance for her child from Mr Y, and that he would soon be receiving a formal letter about this. She said this significantly increased the risk of further domestic abuse. In view of this, we asked the Council to consider whether she was homeless on the basis it was not reasonable for her to continue to occupy her current property. This complaint concerns the Council’s handling of that assessment.
32. Officer 1 carried out the homelessness assessment by telephone in early September 2022. Following the assessment, at Ms X’s request, the Council confirmed its decision in writing. Its decision letter:
• said it was unable to conclude its enquiries because Ms X had not cooperated with the assessment, as she had not answered the questions officer 1 asked;
• referenced relevant case law to show the need to establish an applicant’s current circumstances and the reasons they consider they are homeless or at risk of homelessness, to establish whether the “reason to believe” threshold was met;
• stated it had not seen or heard any evidence to properly establish the details of any incidents, threats or abuse she may have experienced in her current home, nor establish the reasons why she feared there was an ongoing risk or that it was unsafe for her to continue to occupy her home;
• said it had no reason to believe she was homeless or threatened with homelessness and therefore the criteria for an application had not been triggered;
• said it had invited Ms X to re-engage with the assessment process, but Ms X had instead asked for a letter confirming its decision. If she changed her mind, she could let it know and it would arrange another assessment interview.
33. Ms X complained in January 2023 about the handling of the homelessness assessment. She set out 22 separate points of concern. I have summarised these in paragraph 1 above. She shared her recording of the telephone assessment with the Council, and I have also listened to it.
34. The Council responded at stage 1 in early February 2023. In summary, it:
• explained the purpose of the telephone assessment, noting that its housing register team had agreed to make a direct offer of housing by that stage;
• explained that officer 1, who carried out the telephone assessment, only had access to information on the homelessness database, and did not have access to information Ms X had provided to the housing register team;
• accepted that it would have been more appropriate for officer 1 to offer to reschedule the assessment so she could speak to a manager and obtain the information Ms X had previously provided to other Council teams;
• considered officer 1 had been professional throughout and there was no evidence they were hostile or intimidating. When Ms X said she was likely to find questions regarding domestic abuse traumatising, officer 1 said she did not have to answer any question she found upsetting;
• considered officer 1’s written record of the assessment was accurate, although noted that not all of the comments Ms X made were recorded;
• explained that two letters were sent because the first contained an error, which needed correcting, but the change only affected the heading on the letter;
• did not accept it was in breach of the requirements of the Code, as set out by Ms X, and explained its reasons for reaching that conclusion;
• offered its sincere apologies for the faults identified and set out the changes it would make to its processes to prevent recurrence of those faults.
35. Ms X was unhappy with the response and asked the Council to consider the complaint at stage 2. She said the Council had not responded to all aspects of her complaint. The Council responded in March 2023. It said it had cross-referenced the original complaint with its response and considered it had answered all 22 points. It acknowledged that errors had been made, which had caused significant trauma and upset, for which it apologised.
36. Ms X remained unhappy and complained to us. She said she had expected the Council to respond to each numbered point of complaint, but it had not done so.
37. Ms X told me:
• she had not been given the option of a face-to-face interview;
• she believed the Council should be making enquiries rather than asking her questions and expecting her to provide all relevant information;
• by September 2022, a charity was supporting her, but the Council did not seek information from them;
• she had sent officer 1 copies of emails previously sent to the Council so they had all relevant information, but officer 1 did not use that information when making their decision. The information sent included letters from her solicitor, confirming Ms X had obtained a non molestation order, and letters from a therapist and from Victim Support, describing the impact of the domestic abuse on Ms X. Ms X said the failure to consider the other information provided meant the Council’s decision was based on her refusal answer questions that would be retraumatising; and
• the decision letters sent did not include information about her right to ask for a review or appeal the Council’s decision if she disagreed with it.
38. In response to my enquiries, the Council:
• explained that all officers in its homelessness team are trained to recognise domestic abuse and deal with applications from those affected. Officer 1 had received this training before carrying out the telephone assessment with Ms X;
• confirmed officer 1 was told that Ms X may be homeless due to the risk of domestic abuse and was aware of the previous homeless application in 2019. However, they were not aware of the housing register applications Ms X had made, and therefore had not considered if there was relevant information on the separate database for housing register applications before calling Ms X;
• said it offers face-to-face interviews for those attending its offices as homeless and those considered vulnerable. Officer 1 did not have information suggesting Ms X was vulnerable when they arranged the telephone assessment, and it has no record Ms X asked for a face-to-face interview. Emails around that time indicated Ms X had limited availability and it could carry out an assessment more quickly and flexibly by telephone;
• explained that following the telephone assessment, Ms X produced several documents, which the Council considered, along with other information it already held. This included a letter from the child maintenance service telling Ms X it would be writing to Mr Y. However, the Council’s view was that there was no information that gave it “reason to believe” Ms X may be homeless or threatened with homelessness;
• confirmed officer 1 did not contact its children’s services team for information about their involvement with Ms X, as they did not consider this was needed. It did not have Ms X’s written consent to contact any third parties; and
• provided evidence of the steps it had taken to improve its services following Ms X’s complaint, including ensuring that officers check both housing databases for relevant information before arranging assessments, and give a clear explanation of the purpose of the assessment and why they were asking for supporting documents.

Analysis and findings

The telephone assessment

39. The Council had to decide whether there was “reason to believe” Ms X was homeless or at risk of homelessness on the basis it was not reasonable for her to continue to occupy her accommodation due to the risk of domestic abuse.
40. The Code says councils should seek an account of the applicant’s experience to assess whether the behaviour they have experienced is abusive and whether they would be at risk of domestic abuse if they continued to occupy their accommodation. However, it also says councils should utilise information that is already available to avoid asking victims to relive their experiences unnecessarily.
41. Having listened to the recording, it is clear officer 1 had not been properly briefed about the background to the assessment and was not aware that Ms X had provided information about domestic abuse to other teams already. This was despite the Council being aware of previous complaints to us and the request for an assessment coming from us in the context of a complaint investigation. This was fault.
42. The Council accepts that when Ms X told officer 1 that she had already provided some of the information they were seeking, it would have been appropriate for them to reschedule the assessment to allow time to access that information. The failure to do so, and to ask Ms X to resend information, was fault.
43. Given the Council needed to assess the risks to Ms X in September 2022, it was appropriate for officer 1 to ask questions about this. When Ms X said she did not want to answer those questions, officer 1 should have clearly explained why they needed the information and the failure to do so was fault. If they had properly explained why the information was needed, Ms X may have provided further information or officer 1 could have explored whether the information could be obtained in another way, such as from a third party supporting Ms X. I acknowledge officer 1 did explain this in the decision letter and invited Ms X to contact the Council again if she changed her mind about answering these questions.
44. Although I have found some fault with the way the telephone assessment was conducted, I do not consider officer 1 was threatening or hostile towards Ms X. Officer 1 said Ms X did not have to answer questions she found upsetting.
45. In addition, although it is good practice to offer a face-to-face interview to those applicants who may be vulnerable, including those affected by domestic abuse, there is no record Ms X asked for this, and no indication that this would have been any easier for her than a telephone assessment. I have therefore, not found fault with this.

The Council’s decision

46. The Council’s decision letter does not show whether and how it considered all the information Ms X provided before deciding the application had not met the “reason to believe” threshold. In its response to my enquiries, the Council confirmed it considered the information she had previously provided to its housing team when making this decision, but it remains unclear if it also considered the child and family assessment that Ms X sent officer 1 after the telephone call. This set out how Ms X was affected by the domestic abuse she had experienced between 2019 and 2021. The failure to be clear about the information considered when making its decision was fault. This caused distress to Ms X who believed the Council had ignored the information she provided.
47. The Council’s decision letter stated:
• it had not seen or heard any evidence from Ms X or anyone else to help it properly establish the details of any incidents, threats or abuse Ms X may have experienced in her current home; and
• it had also not been able to establish the reasons Ms X felt there was an ongoing risk and that it was not safe for her to continue to occupy her home.
48. This indicates the Council was applying a higher threshold than “reason to believe”, which was fault. On balance, if it had properly considered this it would have decided it had “reason to believe” as this is a low bar, and it would therefore have had a duty to make enquiries. It should then have issued a decision with review rights.
49. I cannot say, even on balance, what the outcome of those enquiries would have been. The Council’s records for the period from 2019, which I have seen, show there were domestic abuse incidents in 2019 and Ms X reported concerns Mr Y may have been stalking her in 2021. There is no record of any actual contact between Ms X and Mr Y between 2019 and 2022 (outside of the court case in 2021). Whilst Ms X’s ongoing fear of further domestic abuse from Mr Y is relevant, it is not the only factor for the Council to consider.
50. Further, there were a number of possible decisions the housing team could have made at that point, including whether it was more appropriate for her to be rehoused via the direct offer of social housing agreed in August 2022 on the basis of her medical needs, rather than through a homelessness application.
51. Ms X was rehoused in October 2022, and therefore the injustice caused is the uncertainty about whether the outcome would have been different during that two month period but for the faults identified, and the lost opportunity to ask for a review of its decision if she disagreed with it.
52. Where a Council decides a homelessness application does not meet the “reason to believe” threshold, there is no right of review or appeal, so it was not at fault for sending a decision letter without that information.
53. The Council sent two decision letters. The first had an incorrect heading and a revised letter was sent the same day. This was the only change made. Whilst the Council made an error when sending the first letter, this was quickly corrected and is not sufficient to amount to fault.
54. Ms X says the Council’s record of the assessment was inaccurate. Officer 1’s record of the telephone assessment was a summary only and not intended to be a full record of everything said. The record accurately summarises the telephone call. I therefore do not find fault with the Council’s record-keeping.

Complaints handling

55. The Council responded to Ms X’s complaint at both stages of its complaints process within appropriate timescales. Although it did not use the 22 point list in the complaint, I am satisfied that it appropriately addressed her concerns. It was not at fault.

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Agreed action

56. Within one month of the date of the final decision, the Council will:
• apologise to Ms X for the injustice caused by its failure to properly explain in the assessment telephone call why it needed current information about the current risk of domestic abuse, not being clear about what information it considered when deciding the application had not met the “reason to believe” threshold and for applying too high a bar when making that decision. It has already apologised for not pausing the assessment to consider what other information was already available on its housing register database; and
• pay her £250 to remedy the distress, frustration and uncertainty caused by the faults identified.
57. Within one month of the date of the final decision, the Council will:
• share the final decision statement with relevant staff so they can learn from what happened in this case, particularly in terms of the need to clearly communicate what information they need from applicants and why they need it, and that “reason to believe” is a low bar, which needs to be reflected in the way the decision is made and communicated; and
• remind relevant staff to be clear about what information they have considered when deciding the “reason to believe” threshold has not been met.
58. The Council will provide us with evidence it has complied with the above actions.

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Final decision

59. I have completed my investigation. I have found fault causing personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman