Summary: Mr X and Ms Y complain about the Council revoking a housing improvement notice and a lack of assistance when they became homeless. The Council is not at fault for revoking a housing improvement notice and in the assistance provided when Mr X and Ms Y were threatened with homelessness. The Council is at fault for not providing interim accommodation when Mr X and Ms Y’s removals were brought forward and on the day Mr X and Ms Y were evicted. It is also at fault for providing unsuitable interim accommodation, so they have lived in unsuitable accommodation for 19 months. The Council has agreed to remedy the injustice to Mr X and Ms Y by apologising and making a total payment of £2150 to them.

The complaint

1. Mr X complains that the Council:
1. Wrongly revoked a housing improvement notice in January 2019 for Mr X’s private rented property, delayed in reinspecting the property and then failed to serve a new housing improvement notice. As a result the landlord was able to enforce a section 21 notice and evict Mr X and his family.
2. Failed to provide sufficient support to Mr X when his landlord served a section 21 notice to prevent his homelessness and wrongly told him to remain in the property until he was evicted. As a result Mr X incurred bailiff fees of £425.
3. Failed to book removals and storage as promised for the date of Mr X’s eviction. As a result Mr X and his family had to live in a property without essential furniture.
4. Failed to provide interim accommodation when Mr X and his family were evicted. As a result Mr X had to find and pay for hotel accommodation. The Council agreed to refund the hotel costs but has failed to do so.
5. Wrongly told Mr X that it would reduce his housing priority if he moved into interim accommodation. It then reduced Mr X housing priority to band 3 when he moved into interim accommodation. This affected Mr X ability to successfully bid for properties and caused him to remain in unsuitable accommodation.
6. Made a direct offer of a property to Mr X which he considers was unsuitable and has wrongly ended its relief duty to him following its review of the suitability of the property.
7. Delayed in dealing with Mr X’s complaints.

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What I have investigated

2. I have investigated complaints a) to e) and g). I explain my reasons for not investigating f) at the end of this statement.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)

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How I considered this complaint

6. I have:

• Considered the complaint and the information provided by Mr X;
• Discussed the issues with Mr X;
• Made enquiries of the Council and considered the information provided;
• Invited Mr X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

Legislation

7. Councils have powers under the Housing Health and Safety Rating System (HHSRS) to take enforcement action against private landlords where the Council has identified a hazard which puts the health and safety of the tenants at risk. The Council can issue an Improvement Notice requiring the landlord to carry out repairs within a specific timescale.
8. The Deregulation Act 2015 prevents landlords from issuing a section 21 eviction notice within six months of an Improvement Notice being issued. A landlord can issue a section 21 notice in the event a council revokes an Improvement Notice. A section 21 notice will also be valid if the property in question is genuinely on market for sale.

Homelessness applications

9. Someone is threatened with homelessness if, when asking for assistance from the Council on or after 3 April 2018:

• he or she is likely to become homeless within 56 days; or
• he or she has been served with a valid Section 21 notice which will expire within 56 days. (Housing Act 1996, section 175(4) & (5))

10. If councils are satisfied applicants are threatened with homelessness and eligible for assistance, they must help them to secure that accommodation does not stop being available for their occupation. In deciding what steps they are to take, councils must have regard to their assessments of the applicants’ cases. (Housing Act 1996, section 195)
11. Councils must take reasonable steps to secure accommodation for any eligible homeless person. When a council decides this duty has come to an end, it must notify the applicant in writing. (Housing Act 1996, section 189B)

12. Homeless applicants may request a review within 21 days of being notified of certain decisions. This includes:

• giving notice to bring the relief duty to an end;
• the suitability of accommodation offered to the applicant after a homelessness duty has been accepted (and the suitability of accommodation offered under section 200(3) and section 193). Applicants can request a review of the suitability of accommodation whether or not they have accepted the offer.

13. Section 19.32 of the Homelessness Code of Practice provides that where an applicant has refused a final accommodation offer or a final part 6 offer in the relief stage and requests a review of the suitability of the accommodation offered, the relief duty continues to apply and the authority must continue to provide interim accommodation to applicants in priority need until the decision on the review has been notified to the applicant.

Housing allocations

14. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing.  All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))

What happened

Housing Improvement Notice

15. Mr X and Ms Y lived in private rented accommodation. I shall call this property A. Mr X and Ms Y have disabilities and a number of medical conditions. They have a young child. In late 2018 Mr X contacted the Council to report the property was in disrepair. Their landlord then served a section 21 notice to end their tenancy.
16. The Council carried out an inspection of the property under the Housing, Health and Safety Rating System (HHSRS). The Council found a number of hazards which required repair and served an improvement notice on the landlord requiring the repairs to be carried out within six weeks. The improvement notice rendered the section 21 notice invalid.
17. The landlord appealed against this notice to the First Tier Tribunal. On receipt of the appeal the Council reviewed the improvement notice and decided it could not defend it. The Council has said this was because the HHSRS assessment was not sufficiently accurate. The Council revoked the notice and some months later served a schedule of works on the landlord rather than serving an improvement notice. The Council considers this was in line with its enforcement policy and enforcement concordat which provide the Council should allow an opportunity for the landlord to resolve the difficulties before taking formal action.
18. Mr X’s landlord served a further section 21 notice following the revocation of the improvement notice. The section 21 notice was due to expire in May 2019. The landlord sought possession of property A through the courts and Mr X and his family were evicted in August 2019. I understand the landlord also placed property A on the market.
19. In response to my enquiries the Council has acknowledged it made an error in serving the improvement notice. It was also required to review the notice on receipt of the landlord’s appeal. The Council has also acknowledged the time between the revocation of the improvement notice and the schedule of works was too long. It considers this was in part caused by the need to deal with the appeal, a counter complaint by the landlord and working with a sensitive relationship between landlord and tenant.
20. The Council has also said, that separate to this complaint, its private sector housing team can now refer cases where there is a suggestion of retaliatory eviction to a tenancy matters team to engage with landlords.

Homeless application

21. Mr X and Ms Y contacted the Council in November 2018 when their landlord served the section 21 notice. The Council referred Mr X and Ms Y to their homeless prevention service who considered the section 21 notice was invalid so they were not at risk of homelessness within 56 days.
22. Following the service of a new section 21 notice by Mr X’s landlord, the Council considered Mr X and Ms Y were now threatened with homelessness within 56 days. It decided it owed the prevention duty and later the relief duty to Mr X and Ms Y.
23. The Council’s records show Mr X and an officer discussed his housing situation in May 2019. The officer’s record of the discussion notes she advised Mr X that he would incur costs if the landlord of property A applied for possession on the expiry of section 21 notice. The officer also sent an email to Mr X’s advocate advising that she had offered temporary accommodation to Mr X on the expiry of the section 21 notice. But Mr X declined this as he did not want to move more than once due to his and Ms Y’s medical conditions. Mr X has said the officer told him to stay in the property until evicted so he incurred court costs.

Housing application and direct offer

24. In November 2018 Mr X and Ms Y applied to join the housing register. In December 2018 the Council decide they were eligible to joining the housing register and proceeded to consider their medical information to determine their priority. In April 2019 the Council placed Mr X and Ms Y in priority band 2 and decided they required a three bedroom bungalow or house with stair lift due to their medical needs. The Council backdated their priority to the date of their application.
25. In May and July Mr X sent emails to the Council asking if he and his family could be considered for a two bedroom bungalow due to the lack of suitable three bedroom bungalows. A copy of an email provided by Mr X of an exchange with an officer in July 2019 shows the Council considered a two bedroom property would not meet the family’s needs.
26. The Council made a direct offer of a three bedroom bungalow to Mr X and Ms Y in early July. The Council decided to make a direct offer rather than wait for Mr X to successfully bid on a property to avoid them moving to temporary accommodation when evicted. The offer was made to discharge the Council’s relief duty. I shall call this property B.
27. Mr X and Ms Y refused the offer as they considered the property was not in a suitable location. The Council considered they had refused a suitable offer so it decided it no longer had a duty to relieve their homelessness. The Council advised Mr X to move into property B and then seek a review of its decision that the property was suitable. Mr X declined to do so as he wanted to minimise the number of moves his family had to make.
28. Mr X and Ms Y were due to be evicted from property A in early August 2019. The Council said it would arrange removals and storage for Mr X for the date of his eviction. The Council informed Mr X of the removals booking and storage costs by email. Mr X then contacted his solicitor as he said the removals company informed him the Council had not booked the removals. The company could only offer a removals date three days before the eviction date. So, Mr X and his family had to live at property A without essential furniture for three nights before the eviction date. The Council has said the removals company notified it the date had been brought forward and it should have looked for interim accommodation for Mr X.
29. The Council failed to notify Mr X of alternative accommodation on the day of his eviction. So Mr X and his family had to spend one night in a hotel. The Council acknowledged this was fault and agreed to reimburse £91 to Mr X and Ms Y which was the cost of the hotel. The Council reimbursed the cost in November 2020. It has said this was delayed due to the disruption caused by the COVID 19 pandemic but also due to a clerical error. The Council apologised for the delay.
30. The next day the Council offered interim accommodation to Mr X and Ms Y which was a house. The Council has said this was a discretionary offer. I shall call this property C. Mr X and Ms Y consider this property was unsuitable as Mr X could not manage the stairs and has fallen. The Council has said Mr X and Ms Y accepted the property and did not raise concerns about its suitability.
31. The Council reduced Mr X and Ms Y’s priority on the housing register when they were evicted from property A. The Council notified Mr X and Ms Y of their right to appeal against this decision.
32. In September 2019 the Council agreed to carry out a new medical assessment which it completed in October 2019. The Council considered property C was not suitable as Mr X struggled to access the upstairs bedroom and bathroom so was sleeping downstairs. Mr X could access a toilet downstairs. The Council increased Mr X and Ms Y’s priority to band 2 and backdated this to November 2018. The Council also decided Mr X and Ms Y no longer needed three bedroom following Mr X’s operation.
33. The Council made an offer to Mr X and Ms Y of a two bedroom property in October 2020. I understand Mr X and Ms Y moved into the property in February 2021.

Review

34. In July 2019 Mr X and Ms Y with the help of their advocate requested a review of the Council’s decision that property B was suitable. The Council upheld its decision that the property was suitable. Mr X’s advocate appealed to the county court on his behalf. The Council decided to review the suitability again and allow Mr X and Ms Y to provide further information. They provided the additional information in January and February 2020. The Council issued its decision in mid March 2020. It upheld its decision that property B was suitable for Mr X and Ms Y. The Council advised Mr X and Ms Y of their right to appeal against this decision to the county court and the names of advice agencies which could assist them. Mr X and Ms Y did not appeal.

Complaint.

35. Mr X made a number of complaints to his local councillors, various officers and through the Council’s online complaint facility. The Council did not consider the online complaint as Mr X’s complaint was being considered by the councillors’ casework team. In September 2019 an officer submitted a complaint to Nottingham City Homes. The Council has said this complaint was wrongly referred to the Council and it did not ensure it was addressed by Nottingham City Homes. Mr X then submitted a further complaint which Nottingham City Homes wrongly referred to the Council. The Council accepts it could have done more to ensure Nottingham City Homes responded to the complaint.
36. In October 2019 we forwarded a further complaint from Mr X to the Council as we considered it to be premature as the Council has not completed its complaints process. The Council and Nottingham City Homes responded to Mr X’s complaint in March 2020. The Council accepts the process for reviewing Mr X’s complaint exceeded normal timeframes. It has said the volume of emails and calls from Mr X to various officers meant the complaint was difficult to investigate and was a contributing factor in the delay.

Analysis

Housing improvement notice

37. The Council is not at fault in reconsidering the notice on receipt of the landlord’s appeal. It is appropriate for councils to review the position following an appeal to determine if it can defend the notice so I cannot say the Council is at fault for revoking the notice. The Council is also not at fault in how it made its decision to serve a schedule of works rather than an improvement notice. It is usual for councils to give landlords the opportunity to carry out repairs before taking enforcement action.
38. However, there is no evidence to show the Council gave any consideration to whether landlord’s service of the section 21 notice following the revocation of the improvement notice was retaliatory. The Council should have considered this matter and whether Mr X and Ms Y required assistance to maintain the tenancy. But I do not consider this caused significant injustice to Mr X and Ms Y as the tenancy was not sustainable in the long term. The landlord wanted to sell the property and Mr X and his family required a bungalow.
39. The Council has acknowledged it took a long time to serve the schedule of works after the revocation of the improvement notice. However, this did not cause significant injustice to Mr X and Ms Y as they could not remain in the property.
40. Mr X and Ms Y consider the delays caused meant they lived in a property which was in disrepair for longer than necessary. On balance, I cannot conclude this to be the case. The Council was required to give the landlord a reasonable opportunity to complete the works and there is no guarantee these works would have been carried out before Mr X and Ms Y were evicted from the property.
41. Mr X and Ms Y have also said the Council failed to keep them informed of progress. Mr X did have to chase the Council for an update at times but the correspondence shows the Council broadly kept Mr X informed.

Support provided when landlord served a section 21 notice.

42. There is no evidence of fault in how the Council made its decision that Mr X and Ms Y were not threatened with homelessness when they first approached for assistance in November 2018. The section 21 notice served by their landlord was invalid so they were not threatened with homelessness at that time.
43. The Council’s records show it advised Mr X and Ms Y it would offer temporary accommodation on the expiry of the section 21 notice. The Council’s records also note an officer told Mr X and Ms Y they would incur court costs if they stayed in the property. I therefore cannot conclude the Council told Mr X and Ms Y to stay in the property until they were evicted.
44. Mr X and Ms Y have said an officer told them their priority banding would be reduced if they left the property when they were served with the Section 21 notice. I will not investigate this matter further as there is no evidence of fault. It is a fact Mr X and Ms Y’s band could change as their circumstances changed.
45. The emails between Mr X and the Council in July 2019 show the Council considered Mr X’s request to bid on a two bedroom property. The Council does not appear to have informed Mr X of its decision at the time he made the request. But it is not proportionate to pursue the matter further. Even if there was fault in how the Council considered Mr X and Ms Y’s request, it is unlikely Mr X and Ms Y would have successfully bid on a two bedroom property at this time. I say this as it took until October 2020 for Mr X and Ms Y to be successful in their bids for a two bedroom property.
46. Mr X has said the Council did not send a copy of the personalised housing plan to him. I will not investigate this matter as I do not consider any failure to provide the personalised housing plan will have caused significant injustice to Mr X. This is because the Council took action to relieve his and Ms Y’s homelessness by making a direct offer to them.

Removals from property A

47. The Council has acknowledged it was aware the removals date had been brought forward and that it should have proactively looked for interim accommodation for Mr X. I am mindful Mr X did not notify the Council directly that the removals date had been brought forward but I consider the Council is at fault for not arranging interim accommodation for Mr X and Ms Y. The Council was aware Mr X and Ms Y would be staying in property A which would not be suitable as it did not have essential furniture. It should therefore have arranged interim accommodation from the removals date. It is also possible Mr X and Ms Y would not have had to stay in a hotel for one night had it arranged interim accommodation from the removal date. As a result Mr X and Ms Y had to stay in unsuitable accommodation for three nights longer than necessary.

Failed to provide interim accommodation when Mr X and Ms Y were evicted.

48. The Council has acknowledged it failed to provide accommodation for Mr X and Ms Y on the day they were evicted from property A. The Council also delayed in refunding the cost of the hotel. However, the Council has now refunded the fee which is an appropriate remedy.

Reduced Mr X and Ms Y’s housing priority

49. The Council was not at fault in reducing Mr X and Ms Y’s housing priority from band 2 to band 3 when they moved from property A to property C. In accordance with the Council’s housing allocation policy, medical priority is given if a person has a need to move because they are living in accommodation which is unsuitable due to their medical condition or disability. The Council awarded medical priority as property A was unsuitable for Mr X and Ms Y and this priority ended when they moved. I am mindful that property C was also unsuitable for Mr X and Ms Y’s medical conditions but the Council carried out a new medical assessment approximately two months after they moved to property C and backdated the medical priority. It is unlikely Mr X Ms Y would have made a successful bid in during this time.

Suitability of property C

50. In response to my enquiries the Council has said it made a discretionary offer of property C to Mr X and Ms Y when they were evicted from property A. However, I do not consider this was a discretionary offer. Mr X and Ms Y had submitted a request for a review of the suitability of property B at this time so the Council had to provide interim accommodation for them pending its decision on the review. The Council therefore had a duty to ensure property C, as interim accommodation, was suitable for Mr X and Ms Y’s needs.
51. I am mindful Mr X and Ms Y accepted property C, possibly as they were homeless. But, as stated above, the Council has a duty to ensure property C was suitable. The Council was aware Mr X and Ms Y needed ground floor accommodation due to their medical conditions as it had awarded medical property for Mr X and Ms Y at property A. The Council awarded medical priority to Mr X and Ms Y when they moved to property C as it was unsuitable. So, I am satisfied property C was not suitable for Mr X and Ms Y’s needs and the Council is at fault for placing them in the property.
52. It is not clear under what powers and duties the Council is accommodating Mr X and Ms Y following its review decision as it no longer has a duty under its homelessness duties to accommodate them. But it is likely the Council will have had to accommodate Mr X and Ms Y in accordance with its powers under the Children Act 1989 as they have a young child and that accommodation would need to be suitable.
53. I therefore find the Council is at fault for placing Mr X and Ms Y in unsuitable accommodation from August 2019 to date which is a period of 19 months. Mr X and Ms Y both have difficulty using the stairs and Mr X has to sleep downstairs which will have caused significant distress to them. The Council should remedy this injustice.
54. In coming to a view on an appropriate remedy I have to take account of Mr X and Ms Y’s actions in refusing to move to property B while they challenged the suitability. I am mindful Mr X and Ms Y do not accept property B was suitable but it is a bungalow so it would have been more suitable for their needs than a house. They would therefore have been in a better position had they moved into the property.
55. Our guidance on remedies suggests a remedy of £150-£300 per month where a complainant has been placed in unsuitable accommodation. However, I consider a remedy of £100 per month is more proportionate to take account of the fact Mr X and Ms Y could have moved into property B.

Delay in dealing with complaint

56. The Council has acknowledged its consideration of Mr X’s complaint exceeded its usual timeframe. It has also acknowledged it should have done more to ensure Nottingham City Homes addressed Mr X’s complaints. I accept the volume of correspondence from Mr X will have made it more difficult to deal with the complaint. But Mr X made his complaint in September 2019 and the delay of six months in responding to it was excessive and will have caused frustration to Mr X.
57. Mr X and Ms Y have also said the Council did not respond to many of their emails. It is not proportionate to investigate how the Council dealt with all of Mr X and Ms Y’s correspondence. The Council has acknowledged its delay in dealing with Mr X and Ms Y’s complaint.

Agreed action

58. That the Council will
1. Send a written apology to Mr X and Ms Y for the frustration caused by the delay in responding to their complaint and the distress caused by placing them in property C which was unsuitable for their needs.
2. Make a payment of £100 for the frustration caused to Mr X and Ms Y by the delay in dealing with Mr X’s complaint.
3. Make a payment of £150 to Mr X and Ms Y to acknowledge they lived at property A for three nights longer than necessary as the Council failed to arrange interim accommodation when the removals were brought forward.
4. Make a payment of £1900 to Mr X and Ms Y to acknowledge the distress caused by placing them in unsuitable interim accommodation for 19 months.
5. Review its procedures to ensure interim accommodation, including that offered when an applicant has requested a review of suitability, is suitable for their needs.
6. Provide evidence of its revised procedures for private sector housing to refer retaliatory section 21 notices to its tenancy team and the action it will take.
59. The Council should take the action at a) to d) within one month of my final decision. It should take the action at e) and f) within three months of my final decision.

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Final decision

60. The Council is not at fault for revoking a housing improvement notice and did not tell Mr X and Ms Y to stay in a property and cause them to incur eviction costs. The Council was not at fault for reducing their priority on the housing register. The Council is at fault for not providing interim accommodation when Mr X and Ms Y’s removals were brought forward and on the day Mr X and Ms Y were evicted. It is also at fault for providing unsuitable interim accommodation so they have lived in unsuitable accommodation for 19 months. The Council has agreed to remedy the injustice to Mr X and Ms Y by apologising and making a total payment of £2150 to them. This is an appropriate and proportionate remedy so I have completed my investigation.

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Parts of the complaint that I did not investigate

61. I have not investigated Mr X’s complaint about the suitability of the direct offer of property B and how the Council carried out its review of the suitability. This is because Mr X had the right to appeal to the county court. Mr X did not appeal as he could not afford legal representation and a law centre had stopped assisting him. An advice agency had also warned him he could incur costs if his appeal was not successful. There are organisations such as Shelter who could provide advice to Mr X on his appeal. I understand Mr X’s concerns about costs but that is part of the process and Mr X appealed the first review decision. So, I remain of the view it is reasonable to expect Mr X to have appealed to the county court.

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Investigator's decision on behalf of the Ombudsman