You don’t want to do it like that.

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.

Posted in FLW article, Homeless, Housing law - All.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

13 Comments

  1. A fantastic piece, NL, and congrats to the LGO on this focus report. What I really wanted to comment on is the future (what follows is a bit of a rant, so feel free to ignore) – as you say in your final para, there is to be a filter on complaints to the LGO/HOS in the future as a result of the Localism Bill. I appreciate that there are a lot of pernicious provisions in the Bill and this particular provision may seem to be rather more neutral, but it is really significant in terms of the denial of/deterrence on complaints. When combined with the prospect of so much coming out of scope for legal aid (except homelessness), the Ombudsman might have become a useful outlet for complaints. The filter, however, may well effectively undermine occupier’s access – the LGO and HOS have been excellent at making something of lay persons’ complaints at times, but there must be concern as to whether the tenants’ committee or MP will be similarly able to do so. Any reader of Harlow and Rawlings’ classic take on the MP filter for Parliamentary Ombudsman, combined with the work that has been done on complaints, will appreciate just how much of a denial/deterrence is likely to go on with occupier complaints once these provisions come into force. There should be rigorous monitoring of the work of these committees/MPs but, of course, there won’t be and precisely because it’s done in the name of “localism”.

    • It is a bad proposal. About the only thing I like is the name of the ‘tenants committees’, sounds like something out of the French revolution. Shortly to be followed by the Tenants Napoleon – L’Estate c’est Moi!

  2. As most people will know, the quality of an MP varies greatly. Some fight their constituent’s doggedly and others do not. That being because they have a discretion as to whether they help or not.

    Mr Shapps and Mr Pickles will tell you that if they fail to help their constituents they will be held accountable at the next general election. True localism and democracy in action.

    However, in a parliamentary system where there are safe seats and where people tend to vote on national lines, I’m not sure the failure to take a complaint to the LGO is going to be the decisve factor.

  3. Behind the LGO’s report is the intractable problem of local authorities’ lack of resources. Local authorities discharge a wide range of functions, all of which call for money, of which there is never enough to go round. Often there is also a shortage, sometimes acute, of other resources such as trained staff. Year by year, authority’s must decide what priority to give to the multifarious competing demands on their limited resources. They have to decide which needs are the most urgent and pressing. The more money they allocate for one purpose the less they have to spend on another.

    Cuts in funding of over £1bn to English councils, homelessness applications increasing by 23% and (potentially) thousands made homeless by caps in Housing Benefits means that local authority’s simply cannot cope. Some of the case studies reveals questionable decision-making but to lay the blame wholly on the council’s doorstep is quite unfair.

    • That’s a fair point Stephen (and I’d be the first to say that councils need more money), but equally councils need to remember that, although a lot of what they spend money on relates to statutory powers, Part VII imposes statutory duties. By order of Parliament, essentially, councils must prioritise housing those that fit the Part VII criteria above every single item of discretionary expenditure they might make. If an HPU finds that it simply cannot fulfil its Part VII duties on the budget it has been assigned, the correct course of action would be to inform the council executive that it has no option but to go over budget, rather than to fail to keep its statutory obligations. Easier said than done perhaps, but that is the law.

  4. Thanks for flagging up the proposal in the Localism Bill on seeking third party support for complaints. I was unaware of this.

    Why should an MP or tenant’s committee be the only persons properly placed to evaluate the merits of making a complaint, to the exclusion of the complainant, their advisor, or the Ombudsman themselves?

    I’m left wondering what the government is genuinely trying to achieve. The result is surely going to be another barrier to individuals obtaining redress. I’m reminded of the time I sought support on a client’s behalf from their MP on systematic failings by the DWP. I suggested the MP make a complaint to the Parliamentary Ombudsman. He showed no interest. This despite there being clear prima facie merit in the proposed complaint, and the possibility the DWP’s actions were causing hardship for hundreds of other claimants, and so the issues being of wider public interest.

    At a time when the changes to legal aid limits individuals’ ability to access legal advice on grounds of cost, it is curious to see the government proposing to limit individuals’ ability to pursue for themselves a remedy that doesn’t require a solicitor or payment of a fee (albeit that judicial review – or the threat of – is often a more appropriate remedy).

    Dave – where would I find the Harlow and Rawlings article you refer to?

    • M, it’s in their classic book, Law and Administration, at pp 445 et seq; there was also a Cabinet Office Review in 2000 which called for the MP filter to be abolished to enable the Ombudsman to act effectively.

  5. On a point of clarification in this debate, there is no proposal to change the current means for members of the public to make complaints to the LGO, and complainants will continue to be able to approach the LGO directly. The change envisaged in the Localism Bill is to transfer responsibility for dealing with most local authority housing relating complaints to the Housing Ombudsman Service, which hitherto has only dealt with complaints against other social housing landlords. The expectation is that the transferred areas of complaint will include disrepair and housing management, but responsibility for handling complaints about homelessness (and all other local authority service areas) will remain with the LGO. It is the HOS complaints that will be subject to the MP/tenant committee filter.

    • Quite right, John B, and thanks for the correction (sometimes the rant just takes over …); but the points about the filter remain of serious concern. I’ve never been entirely clear about the rationale for the filter’s use in this context, or for the role of the Tenants Committee. The White Paper last year didn’t really spell out the need for it or otherwise justify its use, as far as I remember; it makes the HOS different from the LGO in this regard for no discernible reason; and I imagine the HOS himself isn’t entirely happy about it. And what do you do if your complaints overlap the jurisdictions? Do you think it’s a mess?

  6. For the sake of clarification, in the Review of Social Housing Regulation (CLG, 2010), para 4.5, [not a Whie Paper as suggested in my previous comment] CLG argued:
    “The review considered whether there was scope for increased involvement by Councillors and MPs in resolving complaints locally. We concluded that there was scope to increase democratic involvement in complaints and that thiswould have a benefit, over time, of councillors and MPs becoming more expert at using their influence to stop complaints arising and resolve those that do at an earlier stage. Tenant panels could carry out a similar function. We therefore propose that tenants should contact MPs, Councillors, or a tenant panel once the landlord’s complaint procedure has been exhausted, and that MPs/Councillors/tenant panels should intervene in order to attempt to resolve the problem and only then refer the complaint on to the Ombudsmen if the matter cannot be resolved. We anticipate that the majority of tenant complaints will be resolved at the local level.”

    I suspect that there’s an interesting research project to be done on “democratic involvement” in complaints resolution and the role of tenants’ committees.

  7. The Law Commission has now waded in with a very public disagreement over the method of submitting a complain to the HoS under the Localism Bill “an unfortunate and retrograde step, which would limit access to the ombudsman at the expense of vulnerable members of the community” (at para 3.22); and, at paras 3.98-101, it is clear that the filter mechanism was regarded by the Commission as an “exclusionary bar” for which there was no proper justification. See their report on public services ombudsmen: http://www.justice.gov.uk/lawcommission/docs/lc329_ombudsmen.pdf

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