The Local Government Ombudsman receives over 300 complaints a year about Local Authorities' handling of homeless applications. The LGO is clearly concerned by what it sees in the matters referred to it as it has now produced a 'focus report' , called "How Councils can ensure justice for homeless people", setting out how local authorities should apply the law properly. This is set in the context of what the report identifies as the growing problem of homelessness.
The report notes that the LGO does not normally intervene where a remedy through the courts is available, but as the remedy here is judicial review, it is not reasonable to expect homeless people of limited means to take this route. (Whether the availability or otherwise of legal aid solicitors able to pursue such an application is a factor in this approach isn't mentioned.)
The report identifies areas of common concern, illustrating them with a case study of a complaint made. These are 'homeless prevention', 'the duty to make enquiries', 'taking applications', and 'interim accommodation'.
On homeless prevention,
Where a person is potentially homeless, councils can legitimately suggest solutions other than making a formal homelessness application. But these must be appropriate and acceptable to the individual. Councils must not try to avoid their obligations to people who are, or may be, homeless. So people must be made aware of their right to make an application if they wish to.
The second of two case studies reads
Tara was a single mum living with her young son in a privately rented flat. The owner of her home announced that it was to be repossessed because he had not been keeping up the mortgage payments. Tara told the council that she and her son would soon have nowhere to live. Two weeks before she was due to be evicted she was interviewed by a council officer. But the advice she was given was never confirmed in writing because the interviewing officer went on sick leave.
The council did try to delay the eviction, although this was not successful. The day before the planned eviction Tara returned to the council to say she was moving in with a friend's family. This was an emergency measure and she would soon have to move on. The officer she spoke to incorrectly assumed that Tara's homelessness had been prevented. Several weeks later, when Tara went back to the council, a manager realised the mistake and the council took a homelessness application. Tara and her son moved into a homeless hostel.
On the duty to make enquiries, the report notes that this duty arises on the low threshold of whether a person may be homeless eligible and in priority need. The case study involves a council that, somewhat surprisingly, appears to believe - and in fact argued - that resource limitations meant it could legitimately not give interviews on the day of application to people it considered to be likely to be 'non-priority' cases. Quite how it could reach that view without an initial interview is a mystery.
Steve was a single man who arrived at the council saying he was immediately homeless and needed help. He suffered from mental health problems but it was not obvious that he may have been in priority need. Because of this, the council failed to deal with Steve as homeless on the day he came in. Instead, he was given advice and invited back for a formal homelessness interview two weeks later. After taking an application, the council then delayed unreasonably in making enquiries about Steve's position. It eventually decided that Steve was not in priority need.
But after a second application, the council decided that he was in priority need, largely because of new information about his medical condition provided by a GP. We decided that Steve suffered avoidable distress, uncertainty and inconvenience because of a two-month delay in accepting and processing his application. He also had an unnecessarily prolonged stay in substandard accommodation. The council said that it had a large caseload and limited staff. It could not guarantee homelessness interviews on the day to people likely to be non-priority cases. But it did pay Steve some compensation. And it reorganised its staff to comply with the duty to take this kind of application without delay.
Perhaps JR might have been a better route to deal with the lawfulness of this Council's view.
On taking applications, the report observes that:
Government guidance says homelessness applications can be made to any council department and do not need to be in a particular form. It says councils should:
provide access to advice and assistance during office hours and have arrangements in place for 24-hour emergency cover, and
publicise the details of homelessness services and provide clear explanations of their procedures.
A council cannot refuse to deal with someone as homeless because they have not applied in writing or any other prescribed manner. The person just needs to make it clear that they are seeking accommodation or help with obtaining accommodation.
That point on publicising the homelessness services is interesting. I can think of a number of local authorities in my area that certainly identify advice on housing options as available to the homeless, but whose websites are remarkably silent on what we used to call the HPU service.
The report goes on to note that the test for taking an application has a low threshold, citing Aweys v Birmingham CC: “In the vast majority of cases, the making of the application will mean that it is difficult if not impossible for the council not to believe that the applicant may be homeless or threatened with homelessness.”
The LGO also notes Aweys as finding that homeless prevention measures cannot lawfully be used to delay accepting an application.
The first case study is a classic form of refusing to accept an application:
Karen, a single young woman in her 20s, was asked to leave her parents' home after she became pregnant. She went to stay with her sister and niece in a one-bedroom flat in London. This arrangement could only be temporary but Karen wanted to stay near her sister so that she could help her with the baby.
So she went to the local council and told them that she was about to become homeless and was in priority need. But the council refused to take a homeless application and told her to go to another London borough. It did not offer any other advice or assistance. Karen eventually did find accommodation elsewhere in the city.
We said: “the handling of this case was careless and there seems to have been a deliberate attempt to prevent access to housing assistance.” The council accepted it was at fault. It agreed to nominate Karen for housing in its area and to pay her removal expenses. It also paid compensation in recognition of the distress and inconvenience caused.
The second case study is a council refusing to accept an application from a victim of domestic violence, who was living in a refuge. Apparently on the basis that she wasn't threatened with homelessness because the refuge hadn't told the council she was moving on.
They then failed to accept a further application a year later, when she repeatedly stated she was of no fixed abode. She complained to the LGO a couple of years later, after staying with friends and periods of rough sleeping. The Council did accept it was wrong and paid compensation.
On interim accommodation, the report notes that the duty to accommodate is triggered by the low threshold for taking an application. The case study is a particularly bad example of refusing to deal properly with an application, failing to make even basic enquiries and shifting the burden of proof onto the applicant.
Rebecca had severe mobility problems and used a wheelchair. She moved to a new area with her son who had learning disabilities. She approached her new council with written information, stating that she was fleeing domestic violence. She said she was trying to escape from her former neighbours and members of her husband's family. Rebecca told the council that she had contacted the police and that she was known to social services at her previous home.
The council says that it offered Rebecca a homeless assessment and that she rejected it. But there was nothing in the council's records to suggest that this was so. The council told Rebecca that there was no evidence to support her claims. It did not speak with the police or social services. It placed the burden of proof onto Rebecca, asking her to provide details of police officers she had spoken to and their log numbers.
We found that Rebecca had provided the council with sufficient information for it to have reason to believe she might be homeless, eligible and in priority need. The council should have made enquiries and provided her with interim housing. As a result of the council's failure, Rebecca was forced to sleep on a friend's sofa and endure a period of stress and uncertainty. After Rebecca complained to the Ombudsman, the council agreed to take a homeless application and ultimately provided interim housing. It also reviewed the training needs of frontline staff in relation to people fleeing domestic abuse.
The LGO concludes by making general recommendations for improvement:
make a decision on the same day about whether to offer interim accommodation whenever they take an application and decide to make enquiries
- make a decision on the same day about whether to offer interim accommodation whenever they take an application and decide to make enquiries
- record the reasons clearly if in the above circumstances interim accommodation is not offered
- convey in writing, not informally, decisions that carry rights of review or appeal
- ensure arrangements are in place for referring vulnerable applicants to social services, sharing information as appropriate
- have systems to identify actual or potential homelessness when new applicants join the housing register or when existing applicants provide new information
- keep clear records of all interviews with homeless applicants, including details of advice given, and
- consider whether an individual is homeless and eligible for assistance in cases where people need to move because of harassment or domestic violence.
All in all, a clear restatement of the basic requirements of the current law. It is interesting that the LGO felt the need to produce such an advisory report, but in view of the case studies listed, perhaps not surprising.
As a footnote, the Government is currently proposing to make complaints to the LGO through a third party only (a 'tenants committee' or MP). Quite how this is supposed to work for those complaining about the handling of a homeless application is anyone's guess. Housing providers have complained about this proposal. I would imagine MPs won't be too happy about it either, imagining the queues outside the surgeries.