Summary: The Council placed Mr Y in temporary accommodation which did not have a level-access shower and was therefore unsuitable for his identified needs. The Council also disregarded relevant information when conducting a review of Mr Y’s priority banding and this created additional injustice. The Council will make a direct offer of suitable accommodation to Mr Y, apologise and pay a financial remedy of £4,000.

The complaint

1. The complainant, whom I will call Mr Y, complains the Council knowingly placed his family into unsuitable Temporary Accommodation in September 2019. Since moving into the property, two separate Occupational Therapists (OTs) have given their view that Mr Y’s disability needs cannot be met in the property, and it cannot be adapted. Despite this, the Council has yet to move Mr Y.
2. Mr Y says his family have experienced significant distress from living in unsuitable accommodation since September 2019. In particular, Mr Y is unable to wash or bathe himself in the bathroom and instead must do so in the kitchen sink, which he says is both unhygienic and undignified.

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What I have investigated

3. I have exercised discretion to investigate matters from September 2019 when Mr Y first moved into his current temporary accommodation because the injustice he claims is ongoing. Any earlier matters are either too old or have already been considered by the Ombudsman under case reference 19004065. My reasons for not investigating them is explained in the final section of this statement.

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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. 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

7. During my investigation I discussed the complaint with Mr Y and considered any information he provided. I also made enquiries of the Council and consulted any relevant law and guidance around the suitability of temporary accommodation.
8. Mr Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

What should happen

Homelessness and temporary accommodation

9. If the Council is satisfied someone is eligible, unintentionally homeless and in priority need, it will owe them the main homelessness duty. Generally, the Council carries out the duty by arranging temporary accommodation until it makes a suitable offer of social housing or private rented accommodation. (Housing Act 1996, section 193)
10. The law does not say what type of accommodation the Council should provide, but there is a legal duty for it to be “suitable” for the applicant and household members. This duty applies to both interim accommodation and accommodation provided under the main homelessness duty. (Housing Act 1996, section 206 and (from 3 April 2018) Homelessness Code of Guidance 17.2)
11. When offering accommodation, councils must have regard to the following:
• the space and arrangement of the accommodation.
• the state of repair and condition of the accommodation. As an absolute minimum it must be free of ‘Category 1’ hazards.
• location, including ease of access to established employment, schools and specialist health care.
• the specific needs of the applicant and any household members due to a medical condition or disability.
12. Homeless applicants may request a review of the suitability of their temporary accommodation once the council has accepted the main homelessness duty. (Housing Act 1996, section 202) The review must be completed within eight weeks. This period can be extended but only with the applicant’s written agreement. (Housing Act 1996, sections 202 and 204)

Housing allocations and priority banding

13. The Council uses a banding system to determine priority for the allocation of social housing. Its Housing Allocations Policy explains that banding is awarded as follows:
• Band A for emergency and top priority members. This includes those with an exceptional level of need with compelling and urgent reasons to move. For example, home seekers with a life-threatening condition which is seriously affected by their housing, or homeless households in temporary accommodation which is unsuitable due to a severe medical condition. The Council will consider whether the housing conditions, or other circumstances, are having a major adverse impact on the medical condition of the person.
• Band B for members with an urgent need to move. This includes those experiencing an 'urgent medical situation' where the current housing conditions are having a major adverse impact on the medical condition of the person.
• Band C for those with an identified housing need. This includes homeless applicants and people living in unsanitary or overcrowded housing or otherwise unsatisfactory conditions. The Council may also apply this band if the current housing conditions are having an adverse effect on the medical condition of the person which creates a need for them to move.
• Band D for all other members on the housing register.

What happened

14. Mr Y experiences chronic pain and has limited mobility. He uses crutches and requires adaptations so that he can safely mobilise around his home. He applied to join the Council’s housing register in April 2015. He had previously lived with his father in accommodation provided by the Council and wanted to take over the tenancy once his father moved. This was because the house was adapted to meet Mr Y’s needs and he felt it was the most appropriate place for him to live. However Mr Y did not have any succession rights to the property so he was evicted in August 2017.
15. Following the eviction, Mr Y was homeless and the Council placed him in temporary accommodation. Mr Y did not consider the property was suitable for his needs due to a lack of shower facilities and other adaptations. He asked the Council to review the suitability of the property. After some delay, the Council issued its decision in February 2019 and concluded the property was unsuitable due to there being no level-access shower.
16. Mr Y complained to the Ombudsman about the Council’s actions in relation to his previous accommodation. We found the Council at fault because it delayed in responding to Mr Y’s review request. This caused injustice because Mr Y remained in unsuitable accommodation for nine additional months before moving.
17. The Ombudsman asked the Council to apologise and pay £1350 to remedy the injustice caused by living in unsuitable accommodation.
18. Mr Y moved to alternative temporary accommodation in August 2019. He expressed concerns about the property, due to the shower not being level access, but the Council informed Mr Y that it would discharge its homelessness duty if he declined the offer because it was deemed suitable for his household’s needs.
19. Shortly after moving to his current property, Mr Y asked the Council to conduct a review of its suitability. In the meantime, Mr Y had visited hospital after sustaining an injury in his shower. An Occupational Therapist (OT) privately commissioned by Mr Y in May 2020 assessed Mr Y and the property and concluded:
• Mr Y is at risk of falls, injury and pain whilst using the shower and when transferring to the toilet and to bed.
• The walls surrounding the shower are not solid and so it is not possible to install grab rails or a wall-mounted shower seat. The shower is also too small for a seat.
• The shower door opens into the shower and there is no space for washing assistance.
• The floor is tiled and slippery.
• The toilet is too low and cannot be raised due to the angle of the ceiling above.
• Mr Y currently washes in the kitchen sink.
20. The OT recommended that Mr Y needs to move to more appropriate accommodation with a wet-floor shower area. The Council’s senior OT also concluded in July 2020 the shower room was too small to be adapted and the best option for Mr Y is to move to a property with a level-access shower in order to meet his needs and improve his independence and dignity.
21. Mr Y submitted a ‘change of circumstance’ form to the Council in August 2020 and in September the Council awarded Mr Y with ‘Band C’ priority on medical grounds due to him requiring a ground-floor or lifted property with level-access shower.
22. The Council provided a late response to Mr Y’s suitability review on 7 August 2020 and concluded the property was suitable for Mr Y’s needs. Mr Y appealed the Council’s decision.
23. Later that month the Council’s ‘Principle Medical Advisor’ reviewed Mr Y’s application and the views of both OTs. The advisor recommended installation of a shower with a seat and said a wet-room was not medically essential.
24. In November 2020 Mr Y wrote to the Council expressing his concerns and explaining the frequency and nature of accidents he has sustained in the property. After reviewing his case, the Council decided to place Mr Y on its transfer list but noted the accommodation required by Mr Y is in short-supply and difficult to find.
25. Following Mr Y’s appeal of the August 2020 suitability decision, the Council reconsidered his case. On 4 January 2021 the Council concluded that Mr Y’s property was unsuitable because it does not contain a level-access shower which is medically required.
26. The Council also reviewed Mr Y’s priority banding but concluded that his banding was correct and his needs were not adverse enough to require transfer into Band A or B. In its letter the Council noted the OT’s recommendation for a level-access shower but concluded:

“However we are satisfied that you can manage to use the shower facilities at the property albeit with pain and difficulty. We are satisfied that you can make use of grab rails that use suction pads to attach to the shower walls wherever you feel appropriate to assist you with steadying yourself… you can also purchase a shower seat/stool… [OT name] states that there is inadequate space but this does not mean that it is not possible to use a shower stool. We understand that there are 2 short cubicle doors rather than one large door and that these 2 doors open flat against the shower cubicle walls. You could therefore leave the shower doors open whilst you shower. You could remove the shower head from the high position and use it as a handheld shower, if possible, to rinse yourself and so as to avoid too much water getting on the floor outside the shower”

27. The letter goes on to say:

“… you have been washing in your child’s paddling pool. We would suggest that the sides of the paddling pool would be at least 15cm and you would be required to step over this side to get into and out of the pool, presumably without the use of grab rails… we would therefore suggest you are able to manage the small step into the shower albeit perhaps with some difficulty”

28. Mr Y appealed the Council’s banding decision and issued a pre-action protocol letter seeking a judicial review in March 2021. In April 2021 the Council’s ‘Social Welfare Panel’ considered Mr Y’s appeal and decided:

“… the panel agreed that Band B social hardship priority is awarded to you and your priority date is 22 April 2021, the date when this decision was made. The Panel is satisfied that awarding you band B is justified due to the difficulties you are experiencing in your current home in light of your medical needs and that it make take a considerable time for your family to be rehoused in suitable temporary accommodation”. The letter went on to say, “… the waiting time for Band B applicants who are waiting to be rehoused in two-bedroom accommodation through the housing register is two years. The waiting time may be longer due to the current public health situation and you need to be rehoused in a two-bedroom accommodation with shower facilities, either on ground floor or up to first floor without lift and above with lift facilities”

29. Mr Y remains in temporary accommodation which the Council accepts is unsuitable for his needs. He complained to the Ombudsman again seeking an impartial review of his case.

Was there fault in the Council’s actions causing injustice to Mr Y?

30. Mr Y complains the Council knowingly placed him in unsuitable temporary accommodation, despite having a legal duty to ensure that properties it offers to homeless applicants are suitable for their medical needs. Although the Council now accepts the property is unsuitable for Mr Y, I have considered whether the Council should have reasonably known the property was unsuitable when it made the offer to Mr Y in August 2019.
31. In response to the Ombudsman’s enquiries the Council explained that Mr Y’s current accommodation was offered to him on the basis of its Principal Medical Officer’s recommendation for: “ground floor or lifted. A few stairs would be reasonable. Nil else specific”. The Council also confirmed that a property inspection undertaken before Mr Y moved in identified the property as being ground-floor with a shower. In the Council’s opinion, the property was suitable for Mr Y’s needs.
32. However, this contradicts information sent from one of the Council’s OTs to Mr Y in February 2020. The OT comments: “I discussed with my manager. He said that as your needs are the same that were in the previous property. You were falling in the bathroom when assessed you in the previous property and had recommended a level access shower…. It seems that you do require a level access shower”
33. On balance, and based on the information available to me, I find the Council is at fault for not meeting its legal duty to ensure the temporary accommodation offered in August 2019 was suitable for Mr Y’s previously identified needs. This fault has caused significant injustice to Mr Y because he has lived in unsuitable accommodation since August 2019. Due to the Council’s failure to consider the OT’s previous recommendation, which was further endorsed in 2020, I consider the Council should provide a remedy for the whole period of residency and not just from the date of the suitability review decision.
34. I find further fault with the Council because its review of Mr Y’s priority banding was based on assumption and was contrary to recommendations made by professionals such as OTs and medical advisors. The reviewing officer did not provide any rationale for departing from the recommendations. The Council later overturned this decision upon review and its senior solicitor commented in an internal email:

“the decision is criticised for not properly taking into account the OT evidence and for making conclusions about [Mr Y’s] condition due to use of the paddling pool to bathe and using a particular car. From what I have seen the OT evidence was that the shower was not suitable and presented a danger through falls. The review letter suggests that suction grab rails could be fitted and a shower stool could be used but it’s unclear where the evidence for this comes from. It seems to contradict the OT report that I have seen. The reliance on [Mr Y] being able to step into a paddling pool as showing that he does have sufficient mobility to use a shower does seem to rely on an assumption as to how it has been used. Similarly the reliance on accessing the car seems to rely on an assumption. The solicitors allege that both the assumptions are misconceived. It seems to me that a judge might find that the decision on impact of the property on health was affected by these assumptions and the decision could have been different”

35. In my view, the injustice Mr Y experienced is two-fold. Firstly, he experienced unnecessary and avoidable time and trouble in appealing the decision. Secondly, it is arguable that Mr Y’s banding could and should have been amended sooner from C to B. Although the updated banding was on ‘social hardship’ grounds, the officer cites Mr Y’s medical difficulties in their reasoning. Therefore, Mr Y may have missed the opportunity to receive an offer of housing as a Band B applicant as a result of the first assessor’s decision to disregard the opinions of the OT and doctor.
36. However, as the Council points out, the average wait time is two years for Band B applicants requiring two-bedroom properties. This wait time is likely to be longer in Mr Y’s case as he has other housing requirements such as ground or low floor and level-access shower.
37. To put Mr Y back in the position he would have been, were it not for the fault in the review, the Ombudsman would normally ask the Council to review all offers made to Band B, C and D applicants during the affected period to establish whether Mr Y wrongly missed an offer of a suitable property.
38. I have not recommended this as a remedy in Mr Y’s case. Instead, I have asked the Council to make a direct offer of suitable accommodation to Mr Y. This will put Mr Y back in the position he would have been, were it not for the fault identified in paragraphs 32 and 33 of this statement.

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Agreed action

39. Within four weeks of my final decision, the Council has agreed to:
• Apologise and pay £150 for every month during which Mr Y has remained in unsuitable accommodation due to Council fault (£3750) and
• Pay an additional £250 in recognition of the avoidable time and trouble caused by the Council’s failure to properly review Mr Y’s case.
40. The Council will also make a direct offer of the next available accommodation which is suitable for Mr Y’s needs. The Ombudsman’s financial remedy currently stands at £3750 for the 25 months to date Mr Y has lived in the current accommodation. The Council will increase the remedy by £150 for every additional month Mr Y remains in the property until his move. The Council will also contact both the Ombudsman and Mr Y every four weeks to provide an update on the efforts it is making to secure alternative housing.

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Final decision

41. We have completed our investigation and issued a final decision with a finding of fault causing injustice for the reasons explained in this statement. The agreed actions in the section above provide a suitable remedy for the injustice caused by fault.

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Parts of the complaint that I did not investigate

42. I have not investigated any matters which Mr Y was aware of prior to September 2019. This is because those matters would likely overlap with the period investigated under the previous case 19004065. If those matters were not considered under the previous case, it is my view that it was reasonable for Mr Y to have raised them at the time and there is no good reason for me to investigate them now.

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Investigator's decision on behalf of the Ombudsman