Summary: Mr R complains about the suitability of accommodation the Council moved him to when he became homeless. He complains of problems with using his wheelchair in accessing and around the property. He also complains about problems with a later property. We uphold the complaint.

The complaint

1. The complainant, whom I shall refer to as Mr R, complains the Council provided him with unsuitable temporary accommodation, on his discharge from hospital.
• He had problems getting his wheelchair over the raised threshold and through doors.
• He had to prop open fire doors, as he could not easily manage them.
• The kitchen surfaces were at the wrong height to be able to prepare food safely.
• He had no means of getting food from the kitchen surfaces to somewhere he could eat from his wheelchair.
• He managed to get hold of some furniture before discharge, but the sofa was unsuitable, as it was too low and the table was the wrong height.
• The flat was unfurnished, there was no storage.
• He could strip wash in hospital, but not shower.
• The Council seemed to believe he could use crutches, contrary to medical information the hospital gave it.
2. Mr R also complains about the accommodation he moved to in the Council’s discharge of its homelessness duties.
3. Mr R says the practical problems with his accommodation affected his psychological state, causing distress.

Back to top

The Ombudsman’s role and powers

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
7. 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)
8. 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)

Back to top

How I considered this complaint

9. The information I have seen includes:
• the documents Mr R supplied with his complaint;
• the Council’s responses to the Ombudsman’s enquires;
• documents from NHS Occupational Therapists (OT);
• further comments from Mr R;
• comments from Mr R and the Council on draft decisions.

Back to top

What I found

Legal and administrative background

The Council’s homelessness duties

10. The law about homeless applications says that councils have a full duty to re-house applicants who are eligible, homeless or threatened with homelessness, in priority need, not intentionally homeless and who have a local connection. (Part VII of the 1996 Housing Act) The Housing Act says a person is homeless if they have no accommodation it is reasonable for them to continue to occupy.
11. While a council makes its enquiries and decides what duty it has, if any, it must arrange housing for someone if it has reason to believe that they may be homeless, eligible for help and in priority need. (Section 188 of the 1996 Housing Act) There is no right of review about this ‘interim’ accommodation.
12. When a council has accepted it owes a ‘full’ homeless duty towards an applicant – it decides they are eligible, homeless and in priority need – it must offer them ‘temporary’ accommodation until it can make an offer of more permanent housing. (Section 193(2) of the 1996 Housing Act)
13. Applicants have a right of review and appeal, to challenge the suitability of temporary accommodation and offers of permanent housing (but not interim accommodation), including by taking the matter to a county court.
14. The version of the Homelessness Code of Guidance (‘the Code’) that was relevant at the time of these events, said:

‘Housing authorities should...advise the applicant of his or her right to request a review of the suitability of any accommodation offered as discharge of a homelessness duty, whether or not the offer is accepted. Authorities should also advise the applicant of the review procedures.’

15. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant.  This duty applies to interim accommodation and temporary accommodation. (Housing Act 1996, section 206 and (from 3 April 2018) Homelessness Code of Guidance 17.2)
16. The Code says councils can take into account the interim nature of a placement when assessing whether or not it is suitable. Accommodation may be suitable for a few days or weeks that would not be suitable for a longer term placement. This includes accommodation that might be suitable as ‘interim’, but not ‘temporary’ accommodation.
17. The Code also says councils will need to carefully consider ‘…the suitability of accommodation for households with particular medical and/or physical needs’.

The Council’s 2018 Temporary Accommodation Policy

18. The Council’s policy says:
• It would consider the Code when considering if temporary accommodation was suitable for an applicant; including any mobility issues.
• They key factor was whether any medical issues would make the accommodation unsuitable.
• The Council would assess the individual needs of a household to confirm whether accommodation was suitable.

What happened

The move from hospital

19. Mr R was in hospital after a serious accident, affecting his mobility. Mr R could not return to his previous home – a furnished, privately rented flat – as it was not wheelchair accessible. In effect, this meant Mr R was homeless, as he had nowhere to stay on discharge from hospital.
20. Mr R was ready for discharge in February 2018. On 8 February the hospital’s OT referred him to the Council (or rather to one of the Councils that merged in April 2019 to form the Council) for re-housing, because of the unsuitability of his flat. The referral noted Mr R would need a wheelchair accessible property for the rest of his life. The report noted he would need ‘extensive help from Social Services’ to achieve being able to live independently. A separate referral to the County Council’s Adult Social Care team noted Mr R could care for himself. We have investigated a separate complaint about the County Council’s response to that referral.
21. The Council says that its Housing Needs Officer ‘repeatedly suggested to the hospital that a health or social care colleague should come and view the flat prior to discharge’. It notes the hospital advised its staff could not visit. So, instead, the officer explained the lay-out of the flat to an officer at the hospital. And it agreed an OT would visit the flat, after Mr R moved in. The Council also says it was ‘…led to believe by the hospital that [Mr R] was able to manage with the aid of crutches’.
22. The Council has not been able to send us any contemporaneous records of these actions, for reasons that I examine later.
23. The Council’s medical adviser noted Mr R needed a ground floor level access property, with level access shower. And he would always need the use of a wheelchair indoors. On 15 February the Council awarded Mr R Band A (the highest Band) on its housing register.
24. The Council later offered Mr R interim accommodation. It says a housing association officer visited Mr R in hospital to complete the sign up. The Council did not write to him to confirm the move to the interim accommodation.
25. On 2 March the hospital referred Mr R for assessment to a NHS community OT team. The referral noted the flat Mr R was moving to was a ‘…purpose built disability flat so we are not predicting any issues’. It also noted that, although Mr R was keen to try elbow crutches, the referrer did not recommend this, due to the ‘high risk of falls’.
26. On 6 March Mr R moved from hospital to a property that, while having some adaptations, was not a flat specifically designed for wheelchair users. The landlord was a housing association, although the property was offered as interim accommodation (not as a tenancy with the housing association).
27. The property was unfurnished, but with white goods. So, before Mr R moved to the property, the Council helped Mr R apply to a charity for funding for furniture from another charity. The Council says it also arranged for Mr R’s friend to help move his belongings from his old home to the new flat.
28. On 7 March OTs from the NHS visited Mr R at his new flat. They noted:
• Mr R could not shower because of his dressings.
• Mr R needed support with meal preparation, as the kitchen was not fully accessible.
• Mr R could propel his wheelchair indoors.
• A range of aids Mr R would benefit from.
• There was a small threshold into the block the flat was in. This restricted Mr R’s independence, as it made it difficult for him to propel his wheelchair.
• The front doors and internal doors were fire doors, so very heavy. They were difficult to open when propelling a wheelchair.
• An OT telephoned the housing association and:

‘Advised that although current flat does not meet all of [Mr R’s] needs, it could be manageable with equipment and support until more suitable longer term accommodation is found’.

29. The OTs’ records of their meeting with Mr R noted his low mood and poor mental health, following his accident and move. One of the issues was that Mr R’s view was he should be in a rehabilitation setting.
30. The Council says it gave the OT advice about approaching the County Council if she took the view the accommodation was not suitable. It says this was partly because Mr R’s view was he should have been moved to a rehabilitation unit.
31. The Council says the property it moved Mr R to was ‘… the most suitable of all the Council’s temporary accommodation in [Mr R’s area] we could offer’. It says it identified an alternative private sector property. But Mr R said he wanted social housing, so did not want to consider that option. The Council has not sent me a contemporaneous record of these conversations. Or that the Council explained to Mr R the housing association property was provided as interim accommodation, so was not social housing.
32. On 21 March the Council decided it owed Mr R a full housing duty. It wrote to advise him of this. It says it changed Mr R’s priority on its housing register to Band B, as Mr R no longer had an urgent need for a move.
33. The fact the Council accepted a full duty to Mr R meant the status of his accommodation changed – from ‘interim’ to ‘temporary’ accommodation. The Council did not send Mr R a letter about this, as it should have done. The letter should have advised Mr R of his right to seek a review of the suitability of the temporary accommodation.
34. On 22 March, the NHS OTs contacted the housing association. The OTs accepted there was a limited amount the housing association would do to adapt the flat, as it was temporary. But it asked it to look again at the threshold, as changes would enable Mr R to have more independence. The OTs’ records say the housing association advised it would look at the threshold.
35. By 26 March the OTs’ records note Mr R was by then independently using the shower.
36. In April the OTs visited Mr R again. The housing association said it could not fit anything to the threshold.
37. The NHS OTs’ records end, for the first address, in early May.
38. Mr R complained to the Council. Its May 2019 stage one response advised:
• The flat was partly adapted for someone with disabilities, with a level access shower, under unit space for a wheelchair, widened doorways and a small, ramped access.
• The Hospital Discharge Team had seen the flat’s specifications and assured the Council it was suitable.
• About problems with bidding for some permanent housing association properties that were only available for older people.
39. The Council’s records show that as part of its complaint handling, it visited Mr R. He showed the Council’s officer problems he still had with the door and threshold. The officer brought that to the attention of the housing association the same day.
40. On 17 August, the housing association’s contractor visited and provided options for levelling the threshold. The housing association says Mr R advised the contractor ‘he would not be there for long’. The housing association also says its officers had seen Mr R walking with his prosthetic leg.
41. The Council says that, on 20 August 2018, an officer visited Mr R as part of a review of the placement. The officer decided the Council would not ask for further works, including changes to the threshold. But the officer did change Mr R’s Band to Band A, effective from 21 March.
42. Mr R complained to the Ombudsman about the move. It responded to my enquiries to advise the following.

• It had to arrange the move at short notice. It dealt with Mr R’s needs ‘in the best way possible given the limited stock and options available to him’.
• It had used the accommodation before for wheelchair users, without any complaints.
• It accepted it had not issued letters about the accommodation. It said this was due to staff pressures it was under, as at the time it was also completing a change to the way it assessed homelessness applications.
• ‘Although it may have been difficult to get in and out of the property, I am satisfied that the property does facilitate wheelchair access.’
• ‘At the point the homeless decision was taken a formal offer of Temporary Accommodation should have been issued....I have to highlight that in reality the [housing officer] responded to Mr [R]’s concerns by contacting [the] Housing Association to address some of the issues raised.’
• The hospital told the Council Mr R could manage with the aid of crutches. It noted instances when Mr R had been observed using crutches. This included in August, and was one of the reasons it decided then not to alter the threshold.
• It, at first, told us it did not give written offers on temporary accommodation. It later advised that advice was wrong.
• It was confident if it had reviewed the suitability of the accommodation for Mr R it would have likely concluded it was suitable for him as short term accommodation.

Responses to my first draft decision

43. In response to my draft decision, the Council said:
• It did not make the changes to the property requested, as it did not deem them either critical or urgent.
• When Mr R moved in, the OT had only recommended limited changes.
• Mr R had a level of mobility in the flat, using crutches and a walking stick.
• It was likely any assessment would have concluded the flat was suitable given it was for a short time and Mr R was not a full time wheelchair user.
44. In response to my draft decision, Mr R said:
• That on discharge from hospital he was reliant on his wheelchair.
• The raised threshold into the flat caused him problems.
• His mobility in the kitchen was problematic, as he could not carry anything.

The move to permanent accommodation

45. In November 2018 Mr R moved to a new property. The Council offered this to him in discharge of its homeless duties. The Council notes that Mr R viewed the property before moving. An OT also attended. Both were happy with the flat the Council offered.
46. The Council has not been able to send me a copy of the letter it should have sent Mr R, discharging its homeless duty to him. It says this is likely because it was not transferred when the Council changed its operating systems. But it has noted it has a record that an unspecified letter was generated around the time of the move.
47. In April 2020 Mr R complained to the Council about the property he had moved to:
• It was not an adapted property – the Council had told him he was not eligible for a fully adapted property
• His property was not suitable for him, because he could not use his wheelchair in it. That means he will likely have to move again in the future.

Other issues

48. The Council has advised us that, because of a change in its case management systems (necessitated by a change in housing law), it has not been able to retrieve its records relating to these complaints. It says it is confident it had kept records. But the enforced change is the reason it cannot retrieve the information.

Was there fault by the Council?

Jurisdictional issues

49. Mr R first complained to the Health Service Ombudsman about events in the hospital, but also the issues that this complaint is about. That Ombudsman alerted our joint working team in October 2018. We then asked the Council to look at the complaint, as it had not done so. Mr R then came back to us. The events are about matters from February 2018. So Mr R did start to complain about the issues within 12 months. Although he did not, strictly, come to us within 12 months, my view is Mr R’s complaint is one we can consider. There have been delays in considering it because of our backlog and a pause in our casework during the COVID-19 lockdown.
50. There are two periods:
• From the date Mr R moved into the property on 6 March, until the date of the Council’s homelessness decision (21 March), the accommodation was interim. So Mr R did not have any review or appeal rights. That means there is no restriction on the Ombudsman looking at this period.
• After the Council’s March homelessness decision, the property became temporary accommodation, so Mr R had review and appeal rights.
51. The law says the Ombudsman will not normally consider complaints, where there is an alternative remedy available. That applies to the second period. The problem is the Council did not advise Mr R of the change of status of the property, or his review and appeal rights. So it is not reasonable to expect Mr R to have asked for a review of the suitability of the accommodation. And as Mr R left has left the property, there is little point in asking the Council to now give Mr R his review and appeal rights. I have therefore used the discretion we have to consider the second period, as well as the first.

Interim accommodation

52. The Council has explained the reason for a lack of records was because of enforced changes to its file system. That is fault. And while the Council says it is confident it did keep adequate contemporaneous records, their lack creates uncertainty about its actions and the advice it gave Mr R.
53. The lack of the records has also impeded my investigation. As far as possible I have reached a view on the balance of probabilities, based on the information from the Council and Mr R.
54. The Council does not dispute that it did not carry out an assessment of the first flat’s suitability. It says it told the hospital’s discharge team about the property. And that team’s view was the property was suitable. However, it was for the Council, as the housing authority, to satisfy itself whether the accommodation was suitable. Before offering the property, the Council ideally should have visited and formed a view on suitability, specific to Mr R’s needs. The first record I can see of the Council visiting the property is when it visited Mr R, after he had moved in.
55. And in any case, records from the NHS suggest the Council’s understanding on what it and the NHS understood differed:
• The hospital team told OTs that the flat was fully adapted. The Council advises this was not the case.
• The referrer notes they had concerns about Mr R’s risk of falls.
56. The Council notes it had to rehouse Mr R at short notice. I can understand the difficulties this posed. But it is the Council’s legal duty is to provide suitable accommodation. I accept the Council might have had to move Mr R to a property that was not ideal in every respect, due to the lack of supply. In the way it is applies to interim and temporary accommodation, ‘suitable’ does not mean perfect. But the Homelessness Code refers to physical access to and around the home, and bathroom and kitchen facilities, as being relevant to suitability for disabled people.
57. The Council cannot show, by reference to written contemporaneous records, the process of reasoning by which it reached its decision about suitability.
58. The Council says it understood Mr R used crutches, from the information the hospital gave it. But medical information from the hospital to the Council in February 2018 said Mr R had a wheelchair for indoors and outdoors and he would ‘require wheelchair access property for the rest of his life …’. The Council’s medical advisor agreed. Mr R says he can use crutches for some tasks but not, at the time he left hospital, for extended periods. It is unclear, partly due to the lack of records, how much this misunderstanding about Mr R’s abilities influenced the Council’s decisions.
59. So, on the balance of probabilities, the Council was at fault for not correctly assessing suitability.
60. Against that, I note the OT’s view was the landlord might be able to make the property suitable for a shot-term placement, with equipment and support. So, on the balance of probabilities, I conclude the property was likely suitable as an interim placement (see para 11)

Temporary accommodation

61. But after the Council made its decision that it owed Mr R a homeless duty, the property’s status changed to temporary accommodation (see paragraph 12). The lack of records and notification about this is fault. That fault must create uncertainty about whether the Council considered whether the change in status might affect the property’s suitability. And whether there was, by then, other options. I say this as it then became likely Mr R would be in the property for longer.

Access to the property

62. Not long after Mr R moved in, the OT went back to the housing association to ask it to look again at the problems Mr R was having with the threshold – her view was it was reducing Mr R’s independence.
63. The Council says that it might have been ‘difficult’ for Mr R getting in and out of the property. But it also says it was satisfied ‘the property does facilitate wheelchair access’. But getting in and out of a property in a wheelchair should not be ‘difficult’ in a wheelchair-accessible property.
64. The association’s officer visited after that. But it did not attempt to make the changes to the threshold until July. And it was only in August that its contractor gave it options for making changes. By then Mr R was due to move and had increased mobility, so it decided not to make any changes.
65. Mr R does not dispute his adeptness at using the crutches improved over time. And I accept, on balance, his assertation that when he first moved he was more reliant on his wheelchair. So my view is the landlords, on the Council’s behalf, should have acted more quickly to scope options for changing the threshold – at a time Mr R most needed it. That was fault.

Notification

66. The Council should have notified Mr R about the offers of both interim and temporary accommodation. That was fault. It now accepts it should have done this.

The internal doors, kitchen and furniture

67. The OT did not make recommendations for the landlord to make any significant alterations to these areas of concern. So I cannot find the Council at fault for any concerns Mr R had with these issues.

Other issues

68. Mr R’s view is he should have moved from hospital to a rehabilitation unit. But the Council is correct that a move to such as unit is not something it could offer.

The November 2018 move to permanent housing

69. Mr R reports problems he is now experiencing with the housing he moved to, after the temporary accommodation. But at the time of the move he and the OT took the view that it was suitable. So I cannot fault the Council for this move. The fact Mr R now finds the accommodation problematic does not change that view.

Did the fault cause an injustice?

70. The faults will have caused Mr R avoidable inconvenience, stress and frustration. The OT advised the Council how the threshold was affecting Mr R’s independence. Mr R describes the affect the property had on his mental health, although I note the view of professionals was that Mr R’s mental health was poor at the time he moved to the property.
71. Mr R was in the accommodation for around eight months. Not all the faults applied across that time, but that still amounts to a considerable period.

Agreed action

72. Our Guidance on Remedies suggests an appropriate payment to remedy distress is often a moderate payment. So I recommended the Council make a payment to Mr R of £200 to reflect the avoidable distress. This figure is not higher, as it reflects my acceptance of the Council’s statement that it had limited options for Mr R at the time of the move.
73. I also recommended the Council write a letter of apology to Mr R. I recommended it carried out these personal remedies within a month of my final decision.
74. I recommended that, within a month of my final decision, the Council reminds officers:
• that the Ombudsman’s Principles of good administrative practice says that keeping proper and appropriate records is one of the benchmark standards we expect when we investigate the actions of local authorities. It should send this reminder to (at least) officers dealing with homelessness application and interim/temporary accommodation;
• that deal with interim and temporary accommodation that the responsibility for ensuring the suitability of accommodation it provides under these duties remains the Council’s. And officers should follow up any requests to landlords about issues that have an impact on suitability.
75. The Council has agreed to my recommendations.

Back to top

Final decision

76. I uphold the complaint. The Council has agreed to my recommendations. So I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman