Decision : Upheld
Decision date : 27 Jul 2020
The Ombudsman's final decision:
Summary: Mr B complains the Council delayed in resolving issues over the suitability of his accommodation and in moving him to a different placement. He also complains the placement the Council moved him to was not suitable. Mr B says this negatively impacted his mental wellbeing. The Ombudsman finds fault in how the Council responded to concerns about Mr B’s accommodation. We also find fault in how the Council managed Mr B’s move to alternative accommodation.
- The complainant, who I refer to as Mr B, complains the Council delayed in resolving issues such as mould at his accommodation. Mr B is represented by his advocate, Mr Y, who says with the Council did not properly respond to complaints. Mr Y complains the Council did not prioritise Mr B for a new placement in a suitable residence. He says it then moved Mr B to a hostel that was not suitable and had a further detrimental impact on his mental wellbeing.
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- If we are satisfied with a council’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 reviewed the information provided and discussed the complaint with Mr Y. I then made enquiries of the Council. I sent a copy of my draft decision to Mr Y and the Council for their comments.
What I found
Legislation and Guidance
- Section 115 of the Immigration and Asylum Act 1999 states that a person will have ‘no recourse to public funds’ (“NRPF”) if they are ‘subject to immigration control’. This means they have no entitlement to most welfare benefits, including income support, housing benefit and a range of allowances and tax credits.
- People with no recourse to public funds may be eligible for help from councils for services such as education and social care. For example, they might be eligible for accommodation/subsistence support under Section 23-24 of the Children’s Act 1989, if they are a young person who has been looked after by the council.
- Section 23 to 24 provides that councils must keep in touch with the young person. Councils should continue to review their pathway plan with support from a personal advisor and provide help with accommodation, education and subsistence where needed.
- The Council publishes its children’s services procedure online, which includes its procedure relating to pathway plans. It says the plan must address the young person’s health and development. For those aged 21 to 25, it says there may be multiple issues, which will require a pathway plan, including risk of homelessness and mental health issues.
- In line with the Housing Act 1988 and Section 11 of the Landlord and Tenant Act 1985, landlords should normally give 24 hours’ notice before entering a tenant’s home. In the case of shared accommodation, the landlord may enter communal areas without notice but should give notice to enter the tenant’s bedroom.
- Sections 8 and 21 of the Housing Act 1988 allow landlords to retake possession of their property from a tenant. Under Section 21, until March 2020, the landlord needed to give the tenant two months’ notice. A landlord does not need any reason to serve a Section 21 notice. Alternatively, the landlord may serve a 14-day notice under Section 8, if one of the proscribed reasons applies. Those reasons include non-payment of rent, neglect of the property or some other breach of the tenancy agreement.
- Mr B is a young refugee who moved to the UK as a child. He currently has no recourse to public funds. However, he was looked after as a child by the Council between 2015 and 2017. The Council has a duty under Section 23 and 24 to continue support.
- In late 2017 the Council moved Mr B to new accommodation (“the residence”). The residence was a house that he shared with two other people. It was owned by a private landlord, who instructed a property management company. The Council rented the property from the landlord to place its service users. It does not appear Mr B had a formal tenancy agreement with either the Council or the private landlord.
- In July 2018 Mr B complained the residence was dirty and there were often people he did not know coming and going. An officer from the Council visited the residence in early August 2018. He inspected Mr B’s bedroom and recorded ‘it was immediately apparent that mould was present’. He said, ‘it spread from right to left across the bay’. His note says he would report this to the property manager for them to inspect and rectify.
- There is no record in the documents provided, showing whether the Council contacted the property manager in August 2018. There is no record of any actions taken by the property manager to check the mould. Mr Y says that at some point a person did inspect the room and told Mr B to keep the window open but did not take any other action. However, it is not clear when this happened.
- In September 2018, another representative of Mr B, Mrs X, complained about people coming and going from the residence as Mr B did not feel safe. Also, about the overall cleanliness of the residence. Mr B also wished to move to a property closer to his college, as at that time it was a long commute.
- Mr B met with his personal advisor at the Council. The Council said it did not have any vacant properties but suggested it could enrol Mr B at a college closer to home. It decided it would move his housemates out of the residence to resolve the issues. During this meeting Mr B told the personal advisor about the mould. This is the first the personal advisor became aware of the mould. She contacted the property manager to notify them. There is no record in the documents provided of what action the property manager took.
- Mr Y says Mr B continued to raise concerns about the mould in his pathway plan meetings. In a complaint letter dated February 2019, Mrs X says he raised the mould issue again in a pathway plan meeting in November 2018. In contrast, the Council says he did not raise concerns between September 2018 and January 2019.
- I can see in the Council’s chronology that a pathway plan meeting took place in November 2018. However, it does not appear in the case notes and the Council has not provided a separate record of the meeting. I therefore cannot see any record of what was discussed.
- A further pathway plan meeting took place in late January 2019, at which Mr B raised concerns about the mould. He said it was affecting his breathing, making him feel unwell, his skin itch and he could not eat in the room. Mr B says he continues to have shortness of breath and believes there may have been long term health implications. He asked again to move to another property. A social worker advised him the Council did not have any vacant properties. However, he could search for private rooms and the Council could provide funding.
- An officer visited the residence and took photographs of the mould, which was severe and now stretched over two walls. Mr Y says Mr B had been keeping the window open as much as possible even during winter. He says the scale of the mould suggested something defective in the building. Mrs X submitted a formal complaint.
- The Council responded to the complaint around two weeks later. It did not uphold the complaint. It said the property manager had arranged for a builder to carry out repairs, such as fitting new plasterboard. The cause was not clear as the render was intact, and the builder considered it must be due to poor ventilation. It again advised Mr B to keep the windows open. It said the builder would collect the keys from the agent that day and complete the work by the end of the week.
- The Council emailed its response to Mrs X, who received it late that afternoon. By that time, a council officer had attended the residence. Mr B was not aware the officer was coming and said he entered the room without warning. Mr Y says this triggered past trauma to Mr B, who reacted badly to the intrusion. Mr B did not allow the officer to access the room and appears to have made a physical threat.
- Mr Y says Mr B reacted like this because he felt in fear for his life when the man entered his room unannounced. He says Mr B suffers from complex and chronic post-traumatic stress disorder (“PTSD”), anxiety, depression and suicidal thinking, due to past traumatic experiences. Mr Y says the Council was aware of this and it was reasonable to give at least 24 hours’ notice.
- The personal advisor spoke to Mr B on the telephone. She recorded that Mr B had refused access and said he would call the police if anyone tried to enter again. The personal advisor said the landlord owned the property and had every right to access for repairs. He needed to give access for the mould problem to be resolved. Mr B still said he would not allow access.
- Mr B sent details of a property he had found with vacancies to the personal advisor. The advisor responded that this was a council managed property and other young people were moving into the rooms. She said her colleague had meant he could look for vacant properties in the private market.
- Mrs X submitted a second stage complaint to the Council. She said the first response did not properly address the issues she raised and further complained about the lack of notice for the visit. She asked that Mr B was prioritised for vacancies. The Council did not respond formally to this complaint letter.
- The following afternoon, the personal advisor text Mr B to say contractors would visit the residence the next morning. She asked Mr B to ensure he was there and gave then access. Mr B asked her to cancel the appointment as he was at college and could not miss his class as his attendance was already low. The personal advisor recorded that Mr B had ‘refused yet again’ to grant access. Her team manager called Mr B and told him he needed to give access to the landlord. Mr B spoke to Mrs X. He was distressed and said he did not quite understand what the team manager had said. Mrs X relayed this to the personal advisor and asked her to hold off until he had time to calm down and receive a response to the second stage complaint.
- Shortly after this call, the personal advisor texted Mr B asking him to confirm his availability the following Monday. Mr B did not respond. She texted him again a week later to say he would need to move into the spare bedroom at the residence while repairs took place. Again, Mr B did not respond. The Council therefore considered, from a legal perspective, whether it could gain access to the room.
- In early March 2019 Mr Y chased the Council. The personal advisor said that Mr B had been refusing to move rooms. She said the landlord was now requesting a return of the residence near the end of the month. She said the Council was trying to identify new accommodation for him. Mr Y stressed the impact on Mr B’s mental health. He welcomed a move to new accommodation but urged the Council not to place him in any form of hostel or further away from his college.
- The Council identified another property and gave notice to Mr B that he would need to move at the end of the week. Mrs X raised concerns that the new accommodation was further away from his college and support network and therefore detrimental to his education and wellbeing. She said the Council had not responded to her Stage 2 complaint. She asked the Council to allow Mr B to see the new room before any move. Mr Y also emailed to ask the Council to postpone the move.
- The Council said it could not postpone the move as the landlord had served notice for a return of the residence. It said Mr B could see the new room and offered two alternative rooms in a similar location. One of these was a hostel accommodation.
- Mr B instructed a solicitor. The solicitor told the Council Mr B had chosen the hostel accommodation. The landlord was due to take possession of the residence two days later so the Council arranged the move for the following day. Following a meeting with Mr B, Mr Y emailed the Council on the day of the move, asking that he instead move to the accommodation originally offered. The Council said that accommodation was no longer available. It outlined why it considered the hostel would meet Mr B’s needs.
- Mr Y says the accommodation was not suitable for Mr B. He says there were restrictions on him coming and going and problems with drug use by other residents. The case notes show Mr B did have difficulties keeping to the hostel’s restrictions and raised concerns about drug use. Mr B’s main concern was the distance between him and his college and friendship group.
- The Council allocated Mr B a new personal advisor. Mr B raised his concerns with the new advisor, who held a pathway plan meeting with him in June 2019. Mr Y was present at the meeting. The personal advisor said the Council did not have any properties available in the area Mr B wished to live but that she would look into alternatives.
- In July 2019, a room became available at the accommodation Mr B had asked to move into, as mentioned in Paragraph 25. However, the Council was due to hand the property back to the owner in four months. Therefore, the Council gave Mr B the option to take the four-month tenancy or he could wait for a longer-term property to become available. At the end of the four months he would need to move back into the local authority area if there were no suitable properties in his preferred area.
- It appears Mr B did not move into the accommodation in July 2019. It is not clear why from the case notes. However, the Council told Mr B he was top of the list for a move to new accommodation. In September 2019, a place became available at the same accommodation. Mr B moved into the accommodation in October 2019, where he remains.
- There are several aspects to Mr B’s complaint:
- The Council did not do enough to resolve problems at the residence, including mould
- The Council did not give Mr B adequate notice before an officer inspected his room
- The Council did not prioritise Mr B for a move to alternative accommodation
- The accommodation the Council moved Mr B to was not suitable
- The Council delayed in moving Mr B out of the hostel
- The Council did not properly record details about Mr B’s mental health in his pathway plans and therefore did not take this into account in making decisions
- The council did not respond to Mr B’s Stage 2 complaint
- It is clear from the Council’s records that it acted to address several of the issues Mr B experienced. For instance, it moved two other residents who were allowing strangers to access the property. It also notified the property management company about the hot water issues, which it initially fixed. However, I find fault in how the Council responded to Mr B’s concerns about mould.
- A council officer was aware of the mould problem in at least early August 2018. He described a significant level of mould. There is no evidence the Council notified the landlord or, if so, that it followed up to ensure the issue was resolved.
- The Council has not provided notes of the November 2018 pathway plan meeting. The only evidence of what was said is from the account of Mr Y and the complaint letter from Mrs X. These suggest Mr B did raise the matter in November 2018. Again, there is no evidence the Council followed up to resolve the issue.
- Even if Mr B did not raise the matter again in November 2018, there was a delay of at least five to six months between August 2018 and January 2019, before the Council took further action. It is my view this is fault. Mr B did not have a formal tenancy agreement with the landlord. The Council rented the residence and provided the room to Mr B. It was therefore the Council’s responsibility to ensure it followed up to resolve this issue.
Notice of inspection
- From January 2019 onwards, the Council did try to resolve the issue. I appreciate the Council tried to do so without any further delay. However, I find fault in how the Council communicated with Mr B, particularly around notice to enter the residence.
- In any normal situation a landlord must give the tenant 24 hours’ notice to enter their bedroom. Mr B may not have had a formal tenancy agreement but it is clear that at least 24 hours’ notice was good practice. While I do not expect the Council to have foreseen Mr B’s reaction, the Council knew he was a vulnerable young person. It also knew of previous problems with people he did not know entering the residence. This added to the importance of giving adequate notice.
- There is no evidence the Council gave Mr B any notice of the visit. It only included a mention that someone may visit in its complaint response, which was received, and possibly sent, after the officer had already visited. This is fault.
- I also have concerns about how the Council manged the issue following on from that visit. The Council seemed very quick to reach the position that Mr B was refusing access. Mr B’s representatives had explained why he reacted badly to the first visit. They asked the Council to hold off until he had calmed down and received a response to his second stage complaint. Instead the personal advisor texted Mr B, again with less than 24 hours’ notice, and said he needed to be there the next morning. His reason for declining was that he had college, which is not unreasonable.
- Mr B did not respond to two subsequent texts, but I understand Mr Y’s point that some level of trust had broken down by this point. The text messages were worded a little abruptly and it is clear Mr B was distressed and did not really understand what he was told during a telephone call.
- I cannot see much evidence of a concerted effort by the Council to engage with Mr B or his representatives amicably, to arrange a time for the repairs that was suitable both for him and the landlord. It also did not at any point respond to the second stage complaint. If it had done these things, it might have avoided the need for eviction.
Move to alternative accommodation
- I do not find fault in how the Council prioritised Mr B for new accommodation. Mr B has no recourse to public funds, so is not eligible for social housing in line with the Council’s normal allocations policy. This means there is no formal policy or guideline against which I can measure how the Council prioritised Mr B compared to other service users. I can only look at whether the Council properly considered the matter and explained its reasons.
- The Council has set out clearly why it did not move Mr B to alternative accommodation sooner. The reasons include that Mr B could attend a college closer to home, it was working to resolve the issues at the residence, and it did not have any vacant properties in the area in which Mr B preferred to live. I sympathise that this meant Mr B was further away from his friendship group. However, I accept the Council has a limited supply of available housing and cannot always meet people’s preferences.
- In terms of the vacant rooms Mr B identified, the Council explained these rooms were already taken. The Council will have many service users, each with complex needs. It is the Council’s decision as to how it allocates available rooms. Again, there is no formal policy by which I can measure how it prioritised Mr B. At that point in time, the Council was trying to resolve matters within the residence. I can see no evidence of fault in how the Council considered this matter.
- I also accept that when the Council said Mr B could identify properties, it meant those in the private sector. The rooms in question were Council managed and so did not fall into the Council’s meaning.
- I do, however, find fault in how the Council managed Mr B’s eventual eviction from the residence. In normal circumstances the landlord should give a tenant 14 days from the date of the eviction notice to vacate the property. It is not clear when the Council received an eviction notice from the landlord, but it only gave Mr B 10 days’ notice. I would have expected to see the Council give Mr B at least 14 days’ notice of having to leave the property.
Suitability of new accommodation
- I do not find fault in how the Council considered the suitability of the hostel Mr B moved into. I understand Mr Y’s concerns about placing Mr B with other service with behavioural issues and drug use. However, these are issues that would need to be addressed with staff within the hostel. Mr B’s main concern was the distance from college and his friends. As above, I accept the Council did not have available properties in that area so could not meet this preference. When a place did become available it gave Mr B priority.
- The Council set out clearly why it considered the hostel was suitable. Its reasons included the hostel had cleaners and security, which would address some of the concerns Mr B had about his previous accommodation.
- Mr B chose the hostel over two other shared housing options. I understand he had limited time to decide and may not have fully understood the nature of the hostel. However, I can see no fault in how the Council presented the options. Mr Y only raised concerns on the day of the move. This may have been his first chance to do so but it meant the alternative accommodation was no longer available.
Delays moving out of the hostel
- I do not find fault in how the Council addressed Mr B’s concerns while he was in the hostel, or delays in moving him out. The case notes show the Council’s social worker met with Mr B and his representatives and responded to the concerns he raised. Issues with the behaviour and drug use of other residents were raised with the hostel’s management.
- The social worker agreed to look at ways of moving Mr B out of the hostel to somewhere closer to his college. However, the issues with availability of properties remained. The social worker prioritised Mr B and informed him as soon as an available property became available. That property was only temporarily available for four months. I understand why Mr Y says this was not a suitable solution. However, it was the only available placement at that time. I accept the Council cannot offer Mr B properties it does not have available.
- The social worker made it clear this was the case, that Mr B did not have to accept and could wait for a more permanent option to become available. The property in question later became available on a permanent basis and the Council prioritised Mr B for this placement.
- I have read through each version of Mr B’s pathway plan covering the relevant periods.
- The pathway plan for 2017 to March 2019 records concerns about Mr B’s mental wellbeing in respect of his housing and immigration situation. It says he is to have regular contacts with Mr Y. In the pathway plan updated in March 2019, it says Mr B is currently ‘not in the best frame of mind’ due to his living situation and isolation. It says Mr B felt his physical and mental health were deteriorating and the Council advised him to book an appointment with his GP. However, neither of the plans give details of the specific mental health diagnoses Mr Y raised.
- I find fault in the Council not properly recording the significant mental health problems Mr Y reported. Mr Y regularly referred to these issues in his correspondence. There is a section in the pathway plan for health issues and the Council’s policy is clear that such issues should be included in the plan. Even if the Council felt Mr B should be further assessed through his GP, Mr Y is a professional whose work with Mr B was part of the pathway plan. He raised significant concerns and the Council should have properly recorded these in his pathway plan.
- Whether the lack of recording in the pathway plan impacted on the Council’s decision making is more difficult to establish. This is particularly relevant to whether the Council should have prioritised Mr B for other properties and the suitability of the hostel. The Council was aware of the concerns Mr Y raised when making these decisions. Yet problems with lack of available alternative housing remained. I remain of the view the Council clearly rationalised its reasons for placing Mr B in the hostel and that it moved him to his preferred area as soon as it had an opportunity.
Stage 2 complaint response
- I find fault in the Council not responding to Mr B’s second stage complaint. Mrs X asked the Council to escalate her complaint to Stage 2 in early February 2019. I understand the Council was trying to deal with the issue of the mould and the move to a new placement. However, Mr B’s representatives asked for a response several times during this period. The Council did not provide any formal response to the second stage complaint, even after chaser letters from Mr Y in May and July 2019.
- The Council should have responded to Mr B’s second stage complaint.
Consideration of remedy
- I have found fault in the following areas:
- The Council delayed for five to six months in addressing the issue of mould
- The Council did not give Mr B adequate notice of the inspection or eviction, and general fault in the way it communicated with Mr B on these matters
- The Council did not respond to Mr B’s second stage complaint
- The Council did not record details of Mr B’s mental health conditions in his pathway plan
- The Council has agreed to, within a month of this decision:
- Apologise to Mr B for the delay in addressing problems with mould in his room, for not giving adequate notice of an inspection and his eviction, for the way it communicated with Mr B around these issues and for not responding to his Stage 2 complaint.
- Pay Mr B £300 in recognition of the avoidable distress and time and trouble this caused.
- Provide evidence it has reminded staff of the need to record details of any mental health conditions, including concerns young people and their representatives raise, in their pathway plan.
- The Council is at fault in how it responded to concerns about Mr B’s accommodation. I also find fault in how the Council managed Mr B’s move to alternative accommodation and for not recording details of Mr B’s mental health in his pathway plan.
Investigator's decision on behalf of the Ombudsman