The Ombudsman's final decision:
Summary: The Ombudsman found fault on Ms T’s complaint about the Council’s children’s services failing to properly consider her and her daughter’s needs, or suitability, when providing them with accommodation out of borough. It failed to show this was the only available accommodation. It also failed to show it considered, and kept under review, its suitability because of her daughter’s needs and the 4 hours traveling it takes for her to get to and from school. The agreed action remedies the injustice caused.
- Ms T complains the Council’s children’s services’ decision to provide accommodation for her and her daughter failed to properly consider her needs, her daughter’s needs, or its suitability: as a result, her daughter struggles to make the 2 hour journey to and from school and is in accommodation that poses a risk to her.
The Ombudsman’s role and powers
- 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)
- 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)
Children Act 1989
- A child is considered in need if:
- they are unlikely to achieve or maintain, or have the opportunity to achieve or maintain, a reasonable standard of health or development without provision of services from a council;
- their health or development is likely to be significantly impaired, or further impaired, without the provision of services from the council. (section 17(10))
- It is the general duty of every council:
- To safeguard and promote the welfare of children within their area who are in need; and
- So far as is reasonably consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs. (section 17(1))
- Any service provided by the council may be provided for the family of a particular child in need or for any family member, if it is provided with a view to safeguarding or promoting the child’s welfare. (section 17(3))
How I considered this complaint
- I considered all the information Ms T sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent her. I did not send a complete copy as part of it contained information that needed to remain confidential. I sent a copy of my draft decision to Ms T and the Council. I considered their responses.
What I found
- The Council accepted Ms T as homeless and offered her accommodation which she refused in June 2018. The Council decided she was intentionally homeless because of her refusal. She later unsuccessfully challenged this decision at court.
- In June, it received a referral from the Early Intervention Service which raised concerns about Ms T’s mental health and the impact it had on her daughter. The Council carried out a child and family assessment which decided her daughter should have a ‘child in need’ plan. A plan contains the support provided to the child, and their family, by a council’s children’s services.
- Its housing team asked Ms T to leave the temporary accommodation she was in within 6 weeks. She failed to find suitable accommodation during that time. To stop them becoming street homeless, children’s services agreed to accommodate them temporarily under section 17 of the Children Act 1989. It found them private accommodation out of borough which it funded.
- Ms T moved into the studio apartment the Council found with her 7-year-old daughter in November 2018. Her daughter suffers from autism and ADHD. Ms T says her daughter has heightened senses which means she is easily distracted. They sleep in one bed. Noise and light disturb her. Ms T states it takes 1 hour 50 minutes to get to her daughter’s school which involves taking 2 buses and a train. They make the same journey home.
- The Council claimed this accommodation was the only self-contained suitable accommodation available at the time. It always looks to keep its residents within borough but, if nothing is available, it looks at accommodation in neighbouring boroughs.
- The Council explained its housing social work team worked with Ms T from April 2019 to help and support her find permanent accommodation. Ms T only wants social housing. This is not an option as the housing team discharged their duty to house her. The onus is now on Ms T to find her own accommodation. The Council does not believe she is looking for accommodation in the private sector.
- Children services confirm she can stay in her current accommodation until she secures her own. The Council considers it will take some considerable time for her to get a Council property as she is in Band D under its housing allocation scheme. There are 383 applicants with higher priority and banding than her also wanting a 2-bedroom property.
- The Council provided copy records of her daughter’s child in need plan meetings that regularly took place since they moved into the accommodation. These noted:
- If social care decided it no longer had a duty to provide accommodation, Ms T would have to find alternative accommodation;
- Her challenge against the Council’s housing decision would be heard towards the end of February 2019;
- The school offered her daughter after school club until 5.45pm;
- Her daughter started to show challenging behavior at school following the move;
- Ms T resisted looking at the private sector until she qualifies for social housing. A meeting with housing was set up following the April 2019 meeting about her daughter;
- The child in need meeting in April noted the school said her daughter needed the housing situation resolving so she can get good sleep, be more settled, and more focused and attentive in class for her to make any meaningful learning. It noted she had a diagnosis of combined attention deficit and Ms T felt her daughter’s best interests were ignored;
- By May, the only issue remaining was that of housing as the case was, ‘stepped down from the Safeguarding CIN team’. There was discussion about the possible negative impact on Ms T if the Council tried to move her outside of London;
- In August, the CIN outcome meeting noted the Council could support Ms T to explore private renting, look at counselling to help her privately rent, and possibly help her try to find a female landlord; and
- In September, she was again encouraged to explore private sector housing, look at counselling to help her come to terms with this, allow the social worker to look at her housing documents, and to have benefit advice.
- I make the following findings on this complaint:
- The court dismissed Ms T’s appeal against its decision that it owed her no duty under homelessness law. This means it had no responsibility to find her accommodation.
- The Council repeatedly advised her that she needed to look at the private sector for housing. While she is on its housing register, there are hundreds of other applicants ahead of her with higher priority all wanting the type of accommodation she wants. The reality is, unless her priority changes, it is unlikely she will receive Council housing for several years.
- The Council decided to provide accommodation under section 17 of the Children Act 1989. The law provides the Council has a general duty to safeguard and promote the welfare of children in need in its area. Ms T’s daughter came within the category of a child in need. The Council had a power to provide financial assistance and accommodation when meeting its duty. (section 17(6) Children Act 1989)
- Guidance suggest social services consider what the Homelessness Code of Guidance says about the suitability of accommodation and to work closely with housing departments. Social services need to carry out an assessment of the needs of the child and family to ensure accommodation offered meets the assessed need.
- When asked to provide evidence of liaison between children services and lettings about the search for accommodation, and for evidence this was the only available self-contained property, the Council sent a copy of an email dated 27 November 2018. This was from lettings to another officer. It said they, ‘work to availability in terms of accommodating applicants and demand for accommodation is generally a lot higher than the supply. We will look to facilitate this when we are in a position to provide the applicant with this however please bear in mind that this could be within shared facilities’.
- After further enquiries, the Council said all accommodation it provides is based on the availability from its suppliers on the day. In the week Ms T was booked into her accommodation, it had 9 other families it booked into temporary accommodation. It provided a copy of comments recorded by the contact centre for 22 November 2018. These state Ms T called about the accommodation provided and how she could not live there as her daughter goes to a school where they used to live. An officer advised this was the only property available.
- I am not satisfied what the Council sent was evidence supporting its claim that at the time of offering her the accommodation, it could find no suitable alternative accommodation in borough, or closer, to where Ms T had lived and to her daughter’s school. This is fault. The Council responded to my draft decision finding on this point. As it provided no evidence in support, I explained I cannot merely accept an unsupported Council claim.
- Nor am I satisfied it provided evidence of how it considered the suitability of the accommodation in terms of Ms T’s needs or those of her daughter. The evidence does not show the Council considered the daughter’s need to get to school from this accommodation. Ms T says the travel time for school is almost 2 hours each way which means her daughter is travelling about 4 hours a day to get to and from school. She does the travelling on public transport using a train and 2 buses each way. The daughter is almost 8, has autism and ADHD. There is no evidence showing how, or if, the Council considered what impact this amount of travelling might have on her daughter. This is fault.
- In addition, I have seen nothing showing the Council considered the impact this amount of travelling would have on Ms T, who had her own health issues and struggles, and the knock-on impact it might have on her ability to care for her daughter.
- Nor have I seen evidence of the Council reviewing the suitability of this accommodation in terms of their needs when Ms T started living there.
- The evidence of the CIN outcome meeting in February 2019 refers to some lateness getting to school and noted the school, ‘was hopeful that she is able to make it in despite the difficult journey’. This shows the Council had some awareness of the journey Ms T’s daughter made every day to and from school. The notes also state the daughter now displayed some challenging behavior at school which is, ‘linked to the change in environment’. It noted her current accommodation would be ‘reviewed by social care’.
- There is no evidence the Council considered, or kept under review, the availability of accommodation closer to the daughter’s school after Ms T moved in. This is fault. In response to my draft decision, the Council quoted case law about the government circular. Case law said this was not statutory which means it did not have to give it weight. While I accept the guidance is not statutory, I consider it is guidance and the Council should have given it some weight when providing accommodation under section 17.
- I also consider the Council should have kept her daughter’s needs under review. This would include considering the impact 4 hours daily travelling to and from school would have on her. There was no evidence of the Council considering whether it would continue to provide section 17 accommodation but closer to her school. There was nothing to show the Council considered whether the daughter’s needs would best be served by such a move, even if this was only temporary until such time Ms T might become reconciled to a move to privately rented accommodation and/or a move outside of London.
- I am satisfied the identified fault caused Ms T and her daughter avoidable injustice. This caused distress. Ms T had the uncertainty of not knowing whether the Council properly considered whether the accommodation met her daughter’s needs and kept this under review. Nor does she have the benefit of knowing there was no other accommodation in borough, closer to the school, the Council might have considered. The fault also caused some frustration and stress.
- When considering injustice, I have also taken account of Ms T’s refusal, for her own reasons, to move back in to the privately rented sector. I also note she is currently in privately rented accommodation. Her resistance and refusal to consider privately rented accommodation, contributed to her and her daughter’s situation.
- I considered our guidance on remedies.
- The Council will, within 4 weeks of the final decision on this complaint, carry out the following:
- Send Ms T a written apology for failing to: provide evidence in support of the claim it could find nothing suitable in borough; show it properly considered and reviewed the impact the out of borough placement was having on her daughter’s needs and whether it needed to, and could, provide alternative section 17 accommodation in borough;
- Consider the impact of the out of borough placement on her daughter’s needs, taking particular account of the travelling involved to and from school by her daughter. The Council will:
i) consider if this impact would have justified looking for alternative section 17 accommodation in borough closer to school, even if only for a short time;
ii) if it would have done, the Council will check to see the earliest date it could have made this decision, and check whether there would have been alternative accommodation available at the time to which it could have moved her; and
iii) if there was alternative in-borough accommodation available closer to the school, the Council will pay her £250 for each month they remained in the out of borough accommodation;
- Look at what steps the Council can take to prevent the identified fault from happening again in the future; and
d) Pay Ms T £300 for the distress the fault caused (uncertainty, stress, and frustration).
- The Ombudsman found fault causing injustice on Ms T’s complaint against the Council. The agreed action remedies the injustice this caused.
Investigator's decision on behalf of the Ombudsman