Summary: Mr X has brought a complaint about the Council’s handling of his housing needs. He says his temporary accommodation provided due to him being homeless is not fit for purpose. The Ombudsman cannot investigate some parts of the complaint due to them being outside his jurisdiction. We have however identified fault with respect to a delay in the Council’s communications, though this did not cause Mr X a significant injustice.

The complaint

1. The complainant, who I refer to as Mr X, is making a complaint about the Council’s handling of his need for housing. Specifically, Mr X says:

1. the Council has wrongly claimed it has carried out its duty to accommodate him and his family because of them being homeless;
2. the Council has failed in taking into account Mr X and his wife’s medical needs in determining their priority for social housing and;
3. his current accommodation is unsuitable and in a state of disrepair and the Council has failed to take action in respect of this and offer them suitable accommodation.

2. Mr X says he and his family are living in unbearable living conditions which is not suitable to their needs and is causing them distress. As a desired outcome, he wants the Council to provide suitable accommodation.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word 'fault' to refer to these. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision. (Local Government Act 1974, section 30(1B) and 34H(i), as amended).
5. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended).
6. 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).
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).

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How I considered this complaint

8. I have reviewed Mr X’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable policy and legislation. Both Mr X and the Council received an opportunity to comment on a draft of this decision before reaching a final determination.

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What I found

Background and relevant law

9. Section 184 of the Housing Act 1996 (the Act) requires a council to take a homelessness application and make enquiries if it has “reason to believe” someone may be homeless or threatened with homelessness. The threshold for taking an application is low. ‘Reason to believe’ and ‘may be’ are lower tests than being satisfied someone actually is homeless or threatened with homelessness.
10. If a council is satisfied someone is eligible, homeless, in priority need and unintentionally homeless then it owes them the ‘main housing duty’. Generally, councils carry out this duty by arranging temporary accommodation until it makes a suitable offer of permanent housing, as per Section 193 of the Act.
11. The law says councils must ensure all accommodation it arranges for homeless applicants is suitable for the needs of the applicant and members of his or her household. Section 206 of the Act says this duty applies equally to interim accommodation and accommodation provided under the main housing duty.
12. Under Section 202 of the Act, applicants for housing have a right to request an internal review of most council homelessness decisions. This includes the suitability of accommodation offered to the applicant after acceptance of the main housing duty. Where a local authority remains subject to a continuing duty to provide accommodation, the accommodation will have to be suitable for all this time. Where there exists a statutory right of review, we consider we should not pursue complaints about that issue. This is because this is the process Parliament and the legislature established to consider such matters.
13. A statutory right will exist until 21 days from the date the authority decided the accommodation was suitable. This may have been indicated in the original offer letter. If the accommodation is found not to be suitable after this date, the applicant will have to either ask for a fresh decision on its suitability or ask for an extra non-statutory review. If a decision is made on either of these bases, it will be reviewable. If the authority refuses to make a fresh decision or carry out a non-statutory review, this may be challengeable by judicial review.
14. Under sections 11 and 12 of the Housing Act 2004, a local housing authority can serve a landlord or person managing or in control of a property with an improvement notice. Generally, the requirement is the improvement notice is served on the person having control of the property. Such notice is served where the local housing authority believe there is risk to the health and safety of the occupants of the property or visitors to the property. An improvement notice requires the person on whom it is served to carry out necessary work that will remove or reduce the hazard. It may refer to the dwelling itself and to common parts that relate to that dwelling.
15. A council must give some priority to housing applicants if they need to move on medical grounds. To be eligible, the occupant’s physical or mental health problems must be made worse by where they live.

Chronology of events

16. In January 2007, Mr X joined the Council’s register for social housing.
17. In March 2013, the Council accepted a duty under Section 184 of the Act to provide Mr X with accommodation under Section 193(2) of the Act in March 2013. The decision letter provided to Mr X stated the duty will cease if he were to accept an offer of a tenancy from a private landlord.
18. In July 2013, the Council believed it had carried out its duty because Mr X refused an offer of accommodation offered to him under Section 193 of the Act. Later, Mr X’s solicitors asked for a review of the Council’s decision and that it offer Mr X temporary accommodation until the outcome of the review.
19. In September 2013, the Council provided Mr X accommodation pending the outcome of its review process.
20. In October 2013, Mr X signed a tenancy agreement with the management agents of the property it had provided him pending the outcome of its review. The Council say it was not aware at this stage Mr X had done this.
21. In December 2013, the Council overturned its decision that it carried out its duty to accommodate Mr X. It therefore restored its duty to accommodate Mr X.
22. In February 2016, the Council believed it had carried out its duty to accommodate Mr X. This was on the grounds that he had not been in contact with the Council since being notified of the review decision in December 2013.The decision letter was never sent to Mr X as the Council said it did not know his whereabouts.
23. In January 2019, Mr X’s solicitors challenged the Council’s decision made in February 2016 that it had carried out its duty to accommodate him. The request for a review was on the basis the Council’s decision was unlawful since Mr X claimed it knew his whereabouts.
24. In February 2019, the Council again withdrew its decision that it had discharged its duty to house Mr X. It said this was because it would have been possible to establish Mr X’s whereabouts and that he had signed a tenancy agreement with a private landlord. However, given Mr X was now a private tenant, the Council said it was minded to discharge its duty for reason of him signing a tenancy agreement. The Council requested Mr X make comments on this before reaching a final decision.
25. In August 2020, the Council inspected Mr X’s property due to the disrepair complaints he had made. It later informed Mr X it would be serving an Improvement Notice on his private landlord.
26. In September 2020, the Council responded to Mr X’s Member of Parliament. It explained that as Mr X had signed a private tenancy agreement, he was not considered to be in temporary accommodation. The Council explained that if Mr X’s accommodation is unsuitable for either him or his wife on medical grounds, either could make an application for a medical assessment. It said if either were eligible then they could be eligible for emergency medical housing priority.
27. Also in September 2020, Mr X’s wife made an application for a medical assessment so the family could be considered for priority on medical grounds. She was later assessed medically.
28. In October 2020, the Council wrote to Mr X advising that it considered it had carried out its duty to house him on account of him signing a tenancy agreement with a private landlord.
29. In January 2021, the Council decided not to award Mr X and his family any priority on medical grounds. This is because the Council was satisfied that the current accommodation, although possibly unsuitable, does not worsen the poor health of Mr X’s wife.

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My findings

Discharge of homelessness duty

30. By law, I cannot investigate a complaint made more than 12 months of the complainant becoming aware of the problem, unless there are good reasons. The Council accepted that it owed Mr X a duty to provide him accommodation in March 2013 and problems began in July 2013. This is because the Council said it no longer owed Mr X a duty following his refusal of accommodation. On the face of it, Mr X’s complaint to the Ombudsman in this respect is late. This means I must decide whether to exercise discretion.
31. I note Mr X has consistently challenged the Council’s decisions by way of requesting a statutory internal review. This implies there would not have been difficulty for Mr X in bringing his complaint to the Ombudsman sooner. Further, I have not been provided with any reasons why the complaint is late. On this basis, I see no reason to exercise discretion in this regard. I will therefore not investigate any matters which predate December 2019.
32. The Council’s latest decision about its duty to accommodate Mr X by reason of his homelessness was in October 2020. The decision was the Council no longer owed a duty to accommodate Mr X due to him signing a tenancy agreement with a private landlord. It is claimed by Mr X that he was forced to sign this document, though no reasoning is provided as to why this is the case. In any event, the Council’s decision carries a statutory right of review (see paragraphs 12 to 13). I have not seen any evidence Mr X has exercised his right for a statutory review. On this basis, I see no reason to exercise discretion in favour of Mr X. The restriction I describe in paragraph 7 therefore applies.
33. I have however identified fault by the Council between it sending Mr X a minded to discharge letter in February 2019 and its actual discharge letter in December 2020. This constitutes a serious delay by the Council and I see no reason why a decision could not have been issued sooner considering it knew Mr X had become a private tenant. For this reason, the Council was at fault in this respect.
34. I must therefore consider to whether Mr X has suffered an injustice because of the Council’s fault identified at paragraph 33. This means I must decide whether Mr X has suffered serious loss, harm or distress in connection with the delay. In my view, Mr X remained living as a private tenant in rented accommodation with security of tenure and so I do not consider the delay posed a risk to Mr X. At most, I consider Mr X suffered uncertainty by reason of the delay, though I do not consider this significant enough to warrant recommending a remedy.

Medical priority for housing

35. By law, I cannot question the merits of the Council’s decision in the absence of fault in the process. Mr X has complained the Council needs to award his family priority to move on account his wife’s medical problems. Mr X was informed by the Council that if their private rented accommodation is unsuitable on medical grounds, either of them could apply to the Council for a medical assessment. I note Mr X’s wife did apply for a medical assessment and this was conducted in November 2020. In reaching a decision whether to give Mr X and his family priority on medical grounds, the Council considered medical evidence. Though it accepted Mr X’s wife had a medical condition, it did not feel this was made worse by her accommodation.
36. The Council decided not to give Mr X and his family medical priority for housing. In this case, the Council told Mr X about his and his wife’s right to make an application for a medical assessment. It assessed Mr X’s wife’s medical needs and took consideration of medical evidence. I have not identified fault by the Council in the way it reached its decision not to award medical priority. On that basis, I do not have authority to question the merits of the decision made. I cannot therefore find fault by the Council in this respect.

Housing disrepair

37. Mr X raised matters with the Council about the condition of his accommodation in June 2020. Importantly, I note Mr X feels the Council has a duty to provide him suitable accommodation because of his homelessness. I further recognise Mr X feels his property is temporary accommodation provided by the Council under that duty. However, Mr X is a private tenant and is not living in temporary accommodation. This is because he signed a private tenancy agreement for an assured shorthold tenancy in October 2013. On that basis, the Council is not obliged to provide Mr X alternative accommodation by reason of unsuitability for reason of a homelessness duty. However, private tenants can still complain to the Council about dangerous conditions. I would expect the Council to promptly consider the matter. This would normally require a visit to the property so the Council can inspect the disrepair and make an assessment of the risk.
38. In response, the Council sent an officer to inspect the property and it formally issued an improvement notice in September 2020. I have not identified fault by the Council and its actions have been to the benefit of Mr X in this respect.

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Final decision

39. The Council was at fault for a delay in reaching a decision about Mr X’s homelessness and its duty to house him. However, I do not consider Mr X has suffered a significant injustice by reason of the fault. I have not identified any other fault by the Council and a number of Mr X’s complaints are outside my jurisdiction.

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Investigator's decision on behalf of the Ombudsman