Nearly Legal: Housing Law News and Comment

Wrong priorities

Giles Peaker

Every now and again, there is a Local Government Ombudsman report that seems to go beyond individual instances of maladministration and instead capture something of the zeitgeist. The LGO decision summarised here (and see here for the full decision [pdf]) may well be one of the latter (certainly the Guardian thinks so), as arguably what it shows is a Local Authority prioritising its own administrative concerns over its legal duties in both its policy and the operation of policy. There is also a routine failure to ask the kind of questions that might have meant it had to do more. This on top of a series of administrative failures

Ms Andrews (not her real name) applied to Croydon as homeless having been subject to a violent attack at her previous home, when three men broke into the property with weapons, a hammer and knives, and assaulted her and her then partner. She and her two young children were staying with her mother when she applied on 28 April 2010. Ms Andrews was not offered accommodation on 28 April.

On 28 May 2010, the Council wrote to Ms A to say her case ‘was with the temporary accommodation team’ and she would be contacted. The Council wrote to Ms A’s GP to request an accommodation history (!). Eventually, in the first two weeks of June, the Council got information from Ms A’s former housing association, and confirmation from the police of the facts of the attack and that it was not safe for Ms A to return.

The Council then write to Ms A to offer her B&B accommodation. She initially accepted until she visited and found it was on the third floor with no lift, was dirty, had broken furniture and wires hanging out of the wall. As she had three young children, two using a pushchair, she told the Council the accommodation was unsuitable. What happened then was disputed. Croydon said Ms A had said to their officer she could stay with friends. Ms A  said that the housing team leader told her alternative accommodation would be found. (The Ombudsman decided that Ms A’s account was accurate).

Ms A sofa surfed with various friends. Between June and October 2010 she called the Council 27 times chasing accommodation. The Council had no record of these calls, but Ms A did. Typically the call would be put through to the Council’s main call centre when Ms A would be told the officer she needed to speak to was unavailable and she would be contacted. Apart from a contact at the beginning of July to check child benefit payments, Ms A was not contacted at all.

On 7 October 2010, the Council decided it owed Ms A the full housing duty. No letter was sent stating this until 15 November 2010. Then… nothing. Ms A called a further 10 times between October 2010 and February 2011 chasing temporary accommodation and apparently not knowing about the Council’s decision of October. Again, the Council had no record of these calls, but Ms A did.

Ms A got a solicitor. He wrote on 8 February 2011 demanding accommodation for Ms A. Mirabile dictu, Croydon offered accommodation on 9 February. This was B&B accommodation. Ms A went there, but found she felt unsafe. Her solicitor wrote the same day pointing out that Ms A had fled her previous home following a violent attack and was scared in the presence of unknown men. B&B with shared facilities was not appropriate. A review was requested, then abandoned when Ms A was offered self contained accommodation on the same day.

In early March Ms A said that this accommodation was not suitable as there was no lift and she had three young children, two in push chairs. In addition she was required to move in 24 hours. She raised her post-traumatic stress disorder and depression, with medical evidence. In June 2011, the review decision was that the property was suitable. However, the Council agreed to treat a private sector rental that Ms A had found as temporary accommodation.

Ms A’s solicitor complained to the ombudsman.

Croydon’s representations to the LGO included arguing that Ms A’s telephone calls after October 2010 had been chasing ‘temporary accommodation’ rather than ’emergency accommodation’, so this showed she had received the November decision letter The LGO was not impressed by this attempt to avoid problems by raising Ms A’s terminology in a legalistic manner.

More significantly, on offering B&B routinely, Croydon said:

In relation to the accommodation issues the Council advised that there is a very small supply of non-hotel or non-annexed accommodation in the borough. It stated that although it recognised that bed-and-breakfast accommodation is far from ideal for homeless families the Council has limited options open to it, particularly given the increasing homeless demand over the previous 18 months. It stated that where a family had to go into bed-and-breakfast it would seek self-contained accommodation and move them as soon as practically possible to ensure that it complied with the maximum six weeks recommended in the code of guidance. It stated that when non-bed-and-breakfast accommodation became available it was allocated using a priority system as follows:

• households where a member has disabilities;

• households who are not able to stay anywhere whilst awaiting an offer – for example, those that find themselves in hotel/annexed accommodation. The length of time they have been in such accommodation will then guide officers around priority;

• thereafter in line with the date of the homeless application.

 

The Council went on to state that it was not aware of any medical needs for Ms Andrews until March 2011 and that it offered her bed-and-breakfast accommodation when she presented as homeless, which was refused. […] It stated that as Ms Andrews was not in bed-and-breakfast accommodation when the decision letter was sent to her in November 2010 no priority was awarded to her application, particularly as she had made it clear that she had alternatives.

The officers concerned with arranging accommodation said:

that the only interim accommodation available to the Council when a person presents as homeless is bed-and-breakfast accommodation. She stated that although the Council has access to non-bed-and-breakfast accommodation, such as housing association properties, Council properties and private rented properties, it takes a while to put those into place and it would be unfair to give that accommodation to people newly presenting as homeless given that there are a number of people, including families, in bed-and-breakfast accommodation waiting for suitable accommodation to be offered.

It should be said that the Council’s response to findings denied that B&B would always be offered in first instance.

The Council disputed that officers of the Council are not aware of alternative options and that bed-and-breakfast will always be offered in the first instance and will therefore never indicate on the referral sheet that bed-and-breakfast is not appropriate except in the most extreme circumstances. It states that if this were the Council’s practice it would be illegal.

However, it is clear that B&B was the default, unless the homeless officer conducting the first interview had noted a particular reason why B&B was not suitable. As the Council said

It stated that officers are aware that where there are additional factors which may affect a household’s requirements, those factors will be noted and considered in requesting accommodation. It stated that no exceptional factors were presented in this case

However, the officers’ accounts made it clear that only medical circumstances were considered. On Ms A’s application notes, the fact that she was fleeing a violent assault by several men in her home was not noted at all as a factor affecting suitability of B&B accommodation. As the LGO found:

I am surprised by that comment. Ms Andrews had experienced a violent attack on her home […]. Given that the attack involved a hammer and knives and resulted in Ms Andrews’ partner being hospitalised I find it difficult to understand what circumstances the Council would consider to be exceptional if it does not consider Ms Andrews’ circumstances to be exceptional.

More generally:

I am also concerned at the way in which front line staff implemented the Council’s policy for the allocation of interim and temporary accommodation in this case in that I have seen no evidence that anything other than bed-and-breakfast was considered for Ms Andrews. I recognise that the Council is a large authority and that its homeless team is under pressure. I also recognise that most people presenting to the Council as homeless have families, which makes it difficult for the Council to offer anything other than bed-and-breakfast accommodation.

 

However, the Council is subject to government guidance which clearly states that bed-and-breakfast accommodation is not suitable for homeless people with families except as a last resort and then only for a period not exceeding six weeks (see paragraph 10). I am satisfied, based on the responses of officers at interview and following the Council’s response to my draft key facts, that the Council failed to consider anything other than bed-and-breakfast accommodation for the complainant when she presented as homeless. In particular, there is no evidence to suggest that her particular circumstances (being on her own with three young children and fleeing from a violent attack on her home) were taken into account  when considering what accommodation should be offered to her. While I accept that the Council may well have to offer bed-and-breakfast accommodation, at least for one night, when an applicant applies as homeless due to the lack of options available, I have seen no evidence that officers gave any consideration to whether something other than bed-and-breakfast accommodation should be sought for Ms Andrews given her circumstances.

In fact, a fairly lengthy list of maladministrations were found, including the failure to properly record her initial homeless application, failing to deal with her telephone calls at all and that Croydon had:

Croydon were recommended to:

The trouble for Croydon is that the maladministration did not arise from failings in the operation of its policy, it arose from the policy itself. As Croydon made perfectly clear, they did not consider Ms A’s circumstances to be ‘exceptional’ enough to merit non-B&B accommodation being considered. The LGO disagreed, strongly, finding that it was against the Guidance.

It is also worth noting Croydon’s position on B&B and the 6 week limit:

The Council stated that it was lawfully entitled to provide bed-and-breakfast accommodation to Ms Andrews for a six week period. It stated that due to limited housing resources in Croydon bed-and-breakfast accommodation has to be use for applicants with a family. It stated that any other suitable accommodation which may become available is therefore offered to those who have already been in bed-and-breakfast accommodation for six weeks or longer. It stated that it was normal and lawful for the Council to prioritise in that way in order to ensure that it did not breach its obligations. It also stated that it would not be appropriate to prioritise someone not in bed-and-breakfast accommodation ahead of those the Council is lawfully obliged to move out of bed-and-breakfast accommodation after six weeks.

In short, then, (and this is my view, not the LGO’s express finding) Croydon uses the 6 week deadline as a trigger for attempting to find non-B&B accommodation and this administrative priority is seen as having greater importance than the housing needs of those presenting to it as homeless, as in Ms A’s case, unless fitting a very limited definition of ‘exceptional circumstances’, and that even when the system worked as intended.

One last note, of quite magnificent chutzpah

The Council also queried whether it was fair for the Ombudsman to reach a conclusion which is adverse to the Council based on telephone calls which have not been documented.

Well, they weren’t documented by the Council…

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