The Ombudsman's final decision
Summary: The Council’s failure to make reasonable adjustments to enable Mr Y to pursue a homeless application was fault. The Council was also at fault for relying on a method of communication it knew Mr Y could not access and for wrongly refusing to accept a late review request. The Council should apologise, carry out the review, and make payments to Mr X and Mr Y.
The complaint
Mr and Mrs X complained on behalf of their son, Mr Y, that the Council: failed to make necessary reasonable adjustments to help Mr Y pursue a homeless application; relied on a method of communicating with Mr Y which the Council knew he could not access; and wrongly refused to accept a late request for a statutory review.
Mr X says Mr Y did not know about important letters and warnings about his temporary accommodation and as a result, he lost this accommodation. He says this would have been avoided if the Council had made proper adjustments for Mr Y’s disability.
The Ombudsman’s role and powers
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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) 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)
How I considered this complaint
I considered the complaint and the information Mr X and the Council provided.
I referred to relevant law and guidance, including the Housing Act 1996, as amended, the Homelessness Code of Guidance, and the Equality Act 2010.
I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
Mr X and Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Homelessness law and guidance Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. Councils must notify the applicant of the assessment. This assessment must include: The circumstances that have caused them to become homeless or threatened with homelessness Their housing needs Their support needs (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.7) A council must secure interim accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need. (Housing Act 1996, section 188) An applicant will be in priority need if the council decides they are vulnerable because of an illness or disability.
If councils are satisfied applicants are homeless and eligible for assistance, they must take reasonable steps to secure accommodation. This is called the relief duty. When a council decides this duty has come to an end, it must notify the applicant in writing. The relief duty lasts 56 days. (Housing Act 1996, section 189B) If, at the end of the relief duty, a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need the council has a duty to secure that accommodation is available for their occupation. This is called the main housing duty. (Housing Act 1996, section 193) The Council can end its main duty if an applicant is intentionally homeless from accommodation the council has provided to meet the main housing duty.
An applicant will be intentionally homeless if they do, or fail to do, something which results in them losing accommodation they would otherwise have been able to continue to live in. (Housing Act 1996, section 191(1)) After completing inquiries, the council must give the applicant a decision in writing. If it is an adverse decision, the letter must fully explain the reasons. All letters must include information about the right to request a review and the timescale for doing so. (Housing Act 1996, section 184, from 3 April 2018 Homelessness Code of Guidance 18.32 and 18.33) Reasonable adjustments The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.
What happened Mr Y has autism and a mental health condition. Mr Y’s disability affects his communication and engagement with others. The Council’s adult social care service assessed Mr Y as having eligible needs for care and support. To meet these needs, Mr Y had support from a Personal Assistant (PA) to help him deal with correspondence and prompt him to attend appointments.
In April 2022, Mr Y approached the Council for help because he was homeless. The Council accepted the relief duty. It had reason to believe Mr Y was in priority need and so provided interim accommodation in a hotel. This hotel had no internet access, which Mr Y relies on to manage his autism and communicate with others. The Council accepted this was necessary for accommodation to be suitable for him. It provided a room in a different B&B a few days later. The same day, Mr X asked the Council to make sure it sent any correspondence to Mr Y’s PA as well as to Mr Y and Mr X.
The Council uses an online portal to communicate with homeless applicants about their cases. It uploads letters to this portal. The portal sends an email to the applicant to tell them there is a message. The applicant must then log on to the online portal to view any letters.
In August, the Council accepted the main housing duty. An internal message shows the Council had been unable to contact Mr Y or Mr X. The officer noted this was unusual, as previously Mr X had been very proactive in contacting the Council.
The Council spoke to Mr Y on the phone the next day. It asked him to apply to the housing register. It sent him a text message listing the documents he needed to provide in support of his application.
In September, the Council sent Mr Y a further text message to remind him about the documents. Its finance team emailed Mr Y with a warning about arrears. At the end of September, the Council uploaded a letter to the portal warning Mr Y that he risked losing his temporary accommodation because of his behaviour, arrears, and failure to engage with the Council.
In early October, the Council again spoke to Mr Y on the phone. The Council told him he was “putting his temporary accommodation at risk.” Mr Y told the Council he would log on to the online portal to complete the outstanding tasks.
In mid-October, Mrs X repeated the request from April to send copies of anything sent to Mr Y to his PA and his parents. A few days later, the Council records show it sent Mr Y a “final email” about not paying his top-up for the B&B. It said if Mr Y did not contact it by the end of October, it would start the legal process to end his stay at the B&B. A week later, the Council emailed Mr X and the PA to ask them to help Mr Y complete a form about his income and expenditure. This email made no mention of the warning letter.
At the end of November, the Council hand delivered a warning letter to Mr Y at the B&B. It said his behaviour breached the terms of the B&B agreement. Mrs X called the Council the same day and it shared copies of two recent warning letters and invoices with her. Mrs X asked the Council to copy any invoices for the B&B to her and to Mr Y’s PA. Mrs X also asked if she could be granted access to Mr Y’s housing portal. Mrs X says the Council told her this was not possible.
Mrs X shared with the Council an email from Mr Y’s Community Psychiatric Nurse (CPN) and a copy of Mr Y’s assessment by adult social care from 2021.
The CPN said that the impact on Mr Y of his diagnosis meant he “really struggles” with “managing his time and attending appointments.” It said Mr Y was very unlikely to attend an appointment if he was the only person told about it.
The adult social care assessment said Mr Y: Does not keep to appointments and relies on reminders Does not often open his post, so important letters might be missed Is unable to organise what he needs to do next In early December, Mrs X emailed the Council’s finance team about Mr Y’s arrears. In her email she asked the Council to clarify how it had told Mr Y about how much he needed to pay and how to do so. She pointed out that the invoices did not represent the amount Mr Y owed, but instead the full cost of the B&B. Some of this cost was met by housing benefit. In its response, Mrs X says the Council accepted it was not clear that there was an amount Mr Y needed to pay. It agreed to share the invoices with Mrs X in future.
In January, the B&B asked the Council to send Mr Y a warning letter about anti-social behaviour. The Council spoke to Mr Y on the phone a few days later. The anti-social behaviour related to Mr Y playing his guitar and disturbing other guests. Mr Y said he thought this was okay during the day, just not at night. He said he would wear headphones in future. During the call, the Council asked Mr Y to check his emails as he had unread messages on his housing portal. Mr Y told the Council he had not had access to a computer recently.
In early January, the Council told Mrs X it would be likely to end its duty to Mr Y because he would be intentionally homeless from the B&B. Mrs X again asked the Council about being allowed to access the online portal on Mr Y’s behalf. Later that month, in an email to Mr Y’s social worker, copied to the housing department, Mrs X said she had repeatedly asked for access to Mr Y’s online account. She said Mr Y “does not remember his password and neither [Mr Y’s PA] nor I know it…I was told if he gave permission I would be copied in to reminders to him of what he had to do.” She said Mr Y gave this permission by answer phone several weeks earlier.
In her email to the social worker, Mrs X also detailed problems with Mr Y’s room at the B&B. She said he was living with a broken bed, a broken sink, mould, and no heating. The Council’s records show it passed on Mrs X’s concerns about the room to the B&B.
In February, Mrs X spoke on the phone to the Council’s finance team about Mr Y’s arrears. Mrs X arranged a payment plan to address the arrears. The Council agreed to send Mrs X the invoices in future, recognising that Mr Y has difficulties engaging with people and dealing with paperwork. In an internal email to Mr Y’s housing officer, the finance officer said Mrs X wanted to speak to someone about Mr Y’s access to his account “as he cannot get into the portal”.
In mid-March, the B&B told the Council Mr Y had flooded a corridor using the showers. This was not the shower allocated to his room. It said it would end Mr Y’s stay at the B&B immediately if there was another incident. Mr and Mrs X say Mr Y used the wrong shower because the one allocated to him had no hot water, an issue he had reported several times.
Two days later, the B&B asked Mr Y to leave immediately. The B&B told the Council Mr Y had been rude and aggressive to a member of staff. Mr and Mrs X said Mr Y had challenged the manager about the lack of hot water in his shower when confronted about his actions of a few days earlier.
On 22 March, the Council emailed Mrs X. It asked her to please tell Mr Y to check his email as the Council had sent a letter ending their duty to Mr Y. The Council did not share the letter with Mrs X. Mrs X says Mr Y did not receive an email from the Council with a letter attached. Instead, the Council uploaded this to the housing portal, to which Mr Y had no access.
At the end of March, Mr Y’s social worker contacted the housing officer. The social worker said Mr Y was currently living in a caravan. Mr X had moved out of the family home to support him. Mr X told the social worker they felt the Council had discriminated against Mr Y because of his disability.
In mid-April, Mrs X contacted the Council. She said Mr Y had not received a letter ending the Council’s duty. She asked the Council to explain how Mr Y could be intentionally homeless when he lost his place at the B&B due to behaviours resulting from his disability.
The Council emailed Mrs X a copy of the letter ending its duty the next day. Mrs X asked the Council for a review of this decision. In the review request, Mrs X said she had, with Mr Y’s permission, accessed his email account. She found 38 unread emails about the housing portal. She said these emails showed an increasing number of unread messages on the portal. She said the Council should have realised Mr Y was not accessing the messages and acted. She also found 21 unread emails from the finance team. None of these 59 emails had been copied to Mr X, Mrs X, or Mr Y’s PA.
In May, the Council rejected the review request as out of time. It said it was satisfied that its decision “was accessible within the relevant time period to have requested a review” because Mrs X said Mr Y had received the emails telling him about new messages on the portal but had not read them.
Mr and Mrs X then complained to the Council. They said the Council had not made reasonable adjustments for Mr Y’s disability in failing to share copies of correspondence with them and his PA. In response to the complaint the Council said: it could not review a homelessness decision through the complaints process and the reviewing officer had reached a proper decision that the request was late it did not agree that the Council discriminated against Mr Y because it made reasonable adjustments, such as moving him to a B&B with internet access.
Mr Y has capacity. The assessment by adult social care said Mr Y could manage his affairs and had “no significant needs”.
My findings
Reasonable adjustments Mr Y is Disabled. The Council has a statutory duty to make reasonable adjustments to enable Mr Y to access services. Mr Y’s disability makes it more difficult for him to communicate, respond to correspondence, and engage with others. Mr Y gave permission for the Council to share information with his parents and his PA. This was a request for a reasonable adjustment to help Mr Y engage with the homelessness process. The Council failed to make this adjustment. This was fault. As a result, Mr and Mrs X were not able to prompt or support Mr Y to provide documents or fill in forms, they did not know about the warnings for arrears and behaviour at the B&B, and they did not get a copy of the letter ending the Council’s duty until it was too late to ask for a review.
Mr Y’s disability makes it harder for him to understand social communication. He needs clear explanations to help him process and understand what is expected of him. The Council’s invoices and letters about his top-up payments, as it accepted in its email to Mrs X, were not clear that there was an amount Mr Y needed to pay. Similarly, the warning letters about Mr Y’s behaviour provided no detail about what behaviour or actions were a problem. This meant Mr Y did not know what he needed to do differently to prevent losing his accommodation. It is notable that when the Council, and then the B&B with support from Mr X, explained to Mr Y in January 2023 that he needed to always wear headphones when playing guitar, he did so. In contrast, the warning letter just said there had been “complaints about your behaviour”. It did not say what this behaviour was. The Council’s failure to ensure its communication with Mr Y was clear and reflected his communication needs arising from his disability was fault.
In its complaint response, the Council said it had made reasonable adjustments for Mr Y, including providing a B&B with internet access. That the Council had made some reasonable adjustments did not mean it had no duty to make others. The complaint response failed to address the specific reasonable adjustment Mr and Mrs X had requested. This was fault. It also said that Mr Y had capacity. Capacity means someone can make decisions for themselves. It is not relevant to whether the Council had a duty to make reasonable adjustments. The complaint response also wrongly said adult social care had not assessed Mr Y as having any care and support needs. The assessment found Mr Y did have support needs and these were directly relevant to the reasonable adjustment Mr and Mrs X complained the Council failed to make.
Reliance on the online portal The Council communicated with Mr Y almost exclusively through its online housing portal. This sent an email to Mr Y to tell him there was a message to read. The Council could see that Mr Y was not accessing the portal to check his messages but continued to use it to communicate with him. It should have reviewed its communication and considered an alternative method. Failure to do so was fault. It is notable that on the one occasion the Council hand-delivered a letter to Mr Y in November 2022, his parents were then aware and so able to act immediately to address it.
When the Council reminded him about checking the portal in January 2023, Mr Y said he had not had access to a computer recently. Despite this, and knowing that Mr Y does not have a phone which can access the internet, the Council continued to use the portal to communicate with him. This was fault.
In February, the finance team told the housing officer Mr Y could not access his portal. Despite this, the Council used the portal to share its decision Mr Y was intentionally homeless. This was fault.
Review request The Council rejected Mr and Mrs X’s request for a review because it was late. The statutory review process says applicants must ask for a review within 21 days of a decision. The Council decided Mr Y was intentionally homeless on 22 March 2023. The deadline to ask for a review was therefore 11 April. Mr and Mrs X did not seek a review until the end of April. The review request was, therefore, late.
However, the Council has discretion to consider accepting late review requests. In doing so, it should consider whether there are good reasons the request is late and whether the review is likely to be successful. The Council failed to properly consider the impact on Mr Y of its failure to make reasonable adjustments before deciding to reject the review request. This was fault.
There were good reasons the request was late: The review request was late because of the Council’s failure to make reasonable adjustments for Mr Y. The evidence shows Mr Y needs support to deal with correspondence and meet deadlines. But the Council did not share the letter with Mr and Mrs X within the 21-day timescale.
The letter rejecting the review says the letter was available on Mr Y’s portal and he could have accessed it in time had he wanted to. This failed to recognise that the Council knew Mr Y did not have access to his online portal and so could not have read the letter.
There was a good chance the review would succeed in overturning the decision Mr Y was intentionally homeless: In deciding Mr Y was intentionally homeless, the Council said Mr Y knew, and had been warned, that his behaviour put his accommodation at risk. As I have found, the warnings were not sufficiently detailed or clear about what behaviour Mr Y needed to change. Mr Y could not access the portal and so likely did not read any of the warnings not hand delivered or communicated to him in another way.
To decide he was intentionally homeless, the Council had to be satisfied that Mr Y’s actions meant he was homeless from accommodation that was otherwise reasonable for him to continue to live in. Mrs X alerted the Council to serious issues of disrepair in Mr Y’s room at the B&B, including a lack of basic facilities like heating and hot water. The Council passed these reports to the B&B but there is no evidence it followed up to check any repairs were complete. The decision letter does not show it considered whether the extent of the disrepair meant the room was not reasonable for Mr Y to continue to occupy.
To decide he was intentionally homeless, the Council had to be satisfied that Mr Y acted, or failed to act, deliberately and so lost his accommodation. In deciding whether an action is deliberate, the Council must have due regard to its duty under s149 of the Equality Act 2010 and the decision of the courts in Pieretti v Enfield London Borough Council (EWCA Civ 1104, [2011]). This means the Council had to consider whether Mr Y’s actions, both not paying his top-up and the anti-social behaviour, could be considered deliberate given the impact of his disability. The Council’s decision letter says it was satisfied Mr Y had “the capacity to understand [his] actions and made a deliberate choice to continually engage in anti-social behaviour despite numerous warnings”. However, it does not show how it decided this when the medical evidence from Mr Y’s psychiatrist was that his disability made it more difficult for him to manage his behaviour and the evidence shows Mr Y did not always understand the impact of his behaviour on other people.
To decide he was intentionally homeless, the Council had to be satisfied that Mr Y lost his accommodation because he deliberately did or failed to do something which resulted in losing his accommodation. Someone is not homeless intentionally if the deliberate act or omission was made in good faith or in ignorance of a relevant fact. In its decision, the Council relied in part on Mr Y’s failure to pay his top-up charges. As the Council accepted, its invoices to Mr Y did not make clear that there was an amount he needed to pay. The court has found that not knowing there was a responsibility to pay any shortfall between the cost of accommodation and housing benefit was a relevant fact. (Abdullahi v Brent London Borough Council [2007] EWCA Civ 885, (2007)) Had it properly considered the circumstances of this case, therefore, I find the Council would have accepted the late review request.
Injustice Where we find fault, we then consider whether the fault has caused injustice.
There is evidence to show that when Mr and Mrs X were included in correspondence, they were able to support Mr Y to engage and address issues, such as paying his top-up. By failing to copy them into all its communications, the Council denied Mr Y the support he needed to pursue his homeless application properly. This is a significant injustice to Mr Y.
It is likely that had the Council told Mr and Mrs X about the top-up charges when Mr Y moved in to the B&B, Mr Y would not have accrued such significant arrears because Mr and Mrs X and the PA would have supported Mr Y to arrange regular payments. This is an injustice to Mr Y.
I cannot say that but for the fault, Mr Y would not have lost the accommodation. However, the evidence shows that when his parents knew about issues and were able to help explain in ways Mr Y could understand, he changed his behaviour. Mr Y must therefore live with the uncertainty of not knowing if he might have avoided losing his accommodation. This is an injustice to Mr Y.
The Council should have accepted the late review request. But for this fault, the Council would have reviewed its decision Mr Y was intentionally homeless. If it had overturned that decision, Mr Y would still be owed the main housing duty. If it did not change the decision, it would have given Mr Y a right to challenge the decision in court. Instead, Mr Y has had no access to this statutory process. This is an injustice to Mr Y.
The Council’s fault also caused Mr and Mrs X injustice. They had to go to significant time and trouble repeatedly asking the Council to copy them into correspondence with Mr Y. They experienced avoidable distress on discovering, repeatedly, that this had not happened and must also live with the uncertainty of not knowing if they might have been able to support Mr Y to avoid losing his accommodation.
Agreed action
To remedy the injustice to Mr Y and Mr and Mrs X from the faults I have identified, the Council has agreed to: Apologise to Mr Y in line with our guidance on Making an effective apology Apologise to Mr and Mrs X in line with our guidance on Making an effective apology Conduct a statutory review of the decision Mr Y is intentionally homeless, having invited Mr Y and Mr and Mrs X to make representations, and write to Mr Y and Mr and Mrs X with the outcome.
Pay Mr Y £750 in recognition of the impact on him of failing to make reasonable adjustments or consider his communication needs.
Pay Mr and Mrs X £250 in recognition of their avoidable distress and uncertainty.
The Council should take this action within six weeks of my final decision.
I have not recommended any action for the Council to take to improve its services. This is because in January 2024, the Council provided detailed guidance to relevant staff on the duty to make reasonable adjustments. This included reminding staff to check whether the online portal was the best means of communicating and to share information with family and support workers where requested.
I consider this to be a suitable means of preventing future recurrence of the fault in this case.
Final decision
I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman