The Ombudsman's final decision
Summary: We will not investigate this complaint about an agreement between Miss X and the Council that Miss X would accept smaller housing than she was eligible for. The complaint is late and it is unlikely we could reach a clear enough view now about the events.
The complaint
Miss X complains the Council wrongly had her give up her right to a two-bedroom property in 2014. She says this has caused difficulty for her and her child, who live in a one-bedroom property.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) 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) The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information provided by the complainant and copy complaint correspondence from the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Miss X was homeless in 2014. The Council’s housing policy entitled her to a two-bedroom home. However, there was a shortage of two-bedroom properties, so such applicants faced spending some years in temporary accommodation. The Council therefore had a practice of agreeing with some such applicants that it would offer long-term one-bedroom accommodation. In November 2014 Miss X signed a waiver stating she understood she was eligible for two bedrooms and the Council would continue providing temporary accommodation, but there was a long waiting list for two-bedroom properties, she was willing to accept a one-bedroom property and she knew she could ask the Council for a housing transfer in future.
Miss X now argues that was not a free choice. She says the Council should not have accepted her agreement because it knew at the time: she had mental health problems; she was newly pregnant; and she was fleeing difficult living situations (until several months earlier, she had lived somewhere where her ex-partner knew her location and acted abusively).
Miss X knew she had signed the waiver in November 2014. She complained to us in October 2022. Even if Miss X did not believe immediately in 2014 that the Council had been wrong in how it dealt with the waiver, she could reasonably have reached such a view and pursued the matter sooner. I do not see good reason for waiting so long before complaining to us. Miss X did not complain to the Council until June 2021. I note the Council did not complete its complaint procedure until June 2022. However, even allowing for that delay, the complaint to us is late. I do not see good reason to accept the complaint now.
Even if there was good reason to accept complaint late, the length of time since the key events makes it unlikely we could reach clear enough view now, on balance, about whether there was fault by the Council causing Miss X injustice. It was not automatically fault for the Council to agree to offer some applicants a smaller property than its policy entitled them to. For the Ombudsman to decide if there was fault by the Council causing injustice in Miss X’s case, we would have to be confident about some key points, including: When Miss X agreed the waiver, did the Council have good reason to doubt Miss X’s mental capacity to agree this? Legally, the Council should presume someone has mental capacity to make a decision unless there is good reason to doubt it. The Council appears to have known in 2014 that Miss X was having an assessment of her mental health, including related to a possible personality disorder, and she might benefit from supported accommodation. However, from information Miss X sent me and from what the Council says about its records from that time, the Council had no obvious indication Miss X’s capacity to make decisions was being assessed or that mental health professionals such an assessment necessary. The Council was also entitled to give weight to Miss X applying for housing assistance and to her deciding about accepting or refusing Council offers of temporary and long-term accommodation.
Even if there was evidence the Council should have questioned Miss X’s capacity to agree the waiver, we would then have to consider what view the Council might have reached about Miss X’s capacity if it had considered that in more detail. We could not just assume the Council should or would have concluded Miss X could not properly decide whether to agree the waiver.
Even if Miss X had the mental capacity to understand and make the decision, there remains her allegation that she did not decide freely but the Council bullied and manipulated her into agreeing when she was vulnerable. I doubt we could now reach a clear enough view, on balance, about this now.
So, for these reasons also, we shall not investigate the complaint.
Miss X says the Council acted unlawfully. The restriction in paragraph 3 applies to this point. Only the courts, not the Ombudsman, can rule definitively on questions of lawfulness. Therefore it is reasonable to expect Miss X to go to court if she wants a decision on this point.
I note the Council apologised for its delay handling the complaint and offered Miss X £75. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue. So we shall not investigate this point.
Final decision
We will not investigate Miss’s complaint because it is late and because it is unlikely we could reach a clear enough view now about events in 2014.
Investigator's decision on behalf of the Ombudsman