Summary: Mr X complained about the Council’s delay in moving him and his child to alternative temporary accommodation after it agreed to put him on the transfer list. This service failure caused injustice to Mr X. I have completed the investigation because the Council has agreed to provide a suitable remedy.

The complaint

1. Mr X complained that the Council left him and his young child for too long in temporary accommodation which it accepted was unsuitable and too small for their needs. He said the lack of space caused him to become depressed and anxious and it limited his child’s opportunities to play at home.

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The Ombudsman’s role and powers

2. 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)
3. In our published Guidance on Jurisdiction we explain that ‘service failure’ or the ‘failure to provide a service’ is a straightforward, objective and factual test of what happened in any particular set of circumstances, independent of any judgement about the body’s intentions.
4. We may conclude that service failure has occurred, causing a significant injustice to the complainant, in the absence of any specific flaws in the Council’s policy or process, and despite the best endeavours of the Council. 
5. This might be the case where, for example, an otherwise sound system is undermined by the absence of key staff or the inability to recruit to key roles, or where external market factors (such as the availability of temporary accommodation for the homeless) prevent a statutory duty being delivered. In these circumstances we can find fault and recommend a remedy for the injustice that arises. We will identify any external factors that led to the failure of the service.
6. If we are satisfied with an organisation’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. I have spoken to Mr X and considered the Council’s response to my enquiries along with the relevant housing records. I met officers from the Housing Service to discuss broader issues arising from this complaint.
8. I gave Mr X and the council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

The relevant law

9. If a council is satisfied someone is eligible, homeless, in priority need and unintentionally homeless it owes them the main housing duty. A council generally carries out the duty by arranging temporary accommodation until it can make a suitable offer of social housing or private rented accommodation. (Housing Act 1996, section 193)
10. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and household members. This duty applies both to interim accommodation and accommodation provided under the main housing duty. (Housing Act 1996, section 206 and (from 3 April 2018) Homelessness Code of Guidance 17.2)
11. The applicant has the right to request a statutory review of certain decisions councils make about homelessness. The review decision carries a right of appeal to court on a point of law. Homeless applicants have the right to ask for a review of the suitability of temporary accommodation provided under the main housing duty. (Housing Act 1996, s202)
12. Homeless applicants must request a review within 21 days of the date of the decision. However, applicants can ask a council to reconsider the suitability of temporary accommodation at any time. This might be necessary, for example, if there is a change in the applicant’s circumstances. The new decision carries a right of review, with a new 21 day timescale. R(B) v Redbridge LBC [2019] EWHC 250 (Admin)
13. The High Court has held that where a Council had found the temporary accommodation provided was unsuitable, it could not later argue that the decision was to be read as meaning the accommodation was suitable in the short-term. R(M) v Newham LBC EWHC [2020]
14. After we issued our draft decision, the Court of Appeal handed down its judgment in the Elkundi case. The Court considered whether, having found that temporary accommodation was unsuitable, the council then had a ‘reasonable period’ to secure alternative accommodation and could put people on a waiting list for a move. The Court of Appeal confirmed that the duty was immediate, non-deferrable and unqualified. R (Elkundi) v Birmingham and R (Imam) v Croydon (2022) EWCA Civ 601.

The Council’s approach to temporary accommodation transfers

15. The Council’s Temporary Accommodation and Property Management Team does not have a written procedure about how officers should prioritise homeless households who need to move to alternative temporary accommodation.
16. In the past, the team used a transfer spreadsheet and noted the reason why each applicant needed to move. Officers referred to that information and, in most cases, applicants at risk of violence, or with serious health issues, were given priority for a move. 
17. More recently, the Housing Service introduced a new database which includes an automated transfer system. When officers identify that a household needs to move, they put them in the appropriate band: for example, families in bed and breakfast, medical needs, disrepair, or overcrowding.  When a property becomes available, the system shortlists households on the transfer list. For example, a ground floor property with adaptations would be matched to an applicant with an assessed need for that type of accommodation. Officers then use their discretion and generally allocate the property to the applicant who has been waiting longest. 
18. The team intends to produce a written procedure to formalise the way the waiting list operates.

Mr X’s circumstances

19. Mr X is owed the main housing duty because he was eligible for assistance, homeless and in priority need. Mr X’s young child lives with him.
20. The Council first placed Mr X and his child in a bed and breakfast hotel before moving them to temporary accommodation. In December 2018 the Council offered Mr X a self-contained flat under the main housing duty. The flat had one bedroom, a bathroom and a combined kitchen and living area.
21. The offer letter explained Mr X’s right to request a review within 21 days if he considered the accommodation was not suitable whether he accepted or refused the offer.
22. Mr X accepted the offer and moved to the flat in December 2018. His child was two years old at the time. Mr X did not ask for a suitability review.
23. As Mr X’s child became older, and they were forced to spend more time at home during the COVID-19 lockdowns, Mr X became more concerned that the accommodation was unsuitable. In mid-January 2021 he spoke to one of the Council’s property management officers. He followed this up with an email summarising his concerns:
• the flat was only suitable for a single person, not someone with a child;
• it had a shower but no bath;
• there was no space for a washing machine so he had to take laundry to his mother’s home;
• his child was getting very frustrated by the lack of space to play indoors;
• a sex offender and drug dealers lived nearby;
• the security door to the block was broken which allowed anyone access to the building.
24. Mr X says the property management officer told him he should never have been placed in this flat. We have seen the email the officer sent to Mr X in late January following their telephone conversation. He confirmed the Council had agreed to move Mr X to alternative temporary accommodation due to the size of the flat and the other issues he had raised. He said Mr X would be contacted when a suitable property was found.
25. The Council put Mr X on its temporary accommodation transfer list on 27 January 2021.
26. In late March 2021 Mr X contacted the Council about the delay in moving him. A property manager replied on 15 April. She said Mr X was in 160th position in the queue for a two bedroom property. She did not know when he would be moved due to the shortage of accommodation. She suggested he could register on the Homefinder UK website. This website allows accepted homeless households to search for social housing and private rented accommodation in other parts of the UK or London. Alternatively the Council could help him move to private rented sector accommodation.
27. In early April 2021 Mr X sent the Council a letter from his GP. The GP said Mr X was struggling with his mental health but gave no other information about his diagnosis or treatment. The GP reported Mr X’s concerns about the accommodation and asked the Council to consider giving him priority for a move.
28. The Council’s medical adviser considered the GP’s letter. He did not recommend awarding priority on medical grounds. He said Mr X’s flat had access to normal facilities and the two rooms could be configured to maximise space. He recommended the Council installed locks to make the building secure. The Council accepted the adviser’s recommendations.
29. Mr X made a complaint to the Council in April. On 26 April a manager accepted Mr X’s flat was too small now his child was older. She said it was suitable when they first moved in because his child was a toddler then. She confirmed Mr X was on the transfer list but there was a shortage of self-contained accommodation in the borough. She said Mr X could be moved more quickly if he agreed to go to nightly let accommodation managed by another landlord out of the borough. She asked him to contact the Property Manager if he was interested in this option.
30. The manager also explained the Council did not have a legal duty to provide temporary accommodation with space for a washing machine. It was reasonable for Mr X to use a launderette near the flat or ask family members to help. She therefore refused to reimburse Mr X’s laundry costs. She said the Council was not aware of any issues with drug dealing or a sex offender living nearby. She advised him to report any concerns about criminal activities to the police and to inform his housing officer if he or his child had been directly affected by any specific incidents. She did not uphold his complaint.
31. The Council endorsed this response at the final stage of its complaints procedure. Mr X then complained to us in late May 2021.
32. On 14 June 2021 Mr X contacted the Temporary Accommodation team to say he would be willing to move out of the borough.
33. Just over one month later, the Council offered Mr X temporary accommodation in a neighbouring London borough. He accepted the offer and moved on 11 August 2021.
34. Mr X and his child now live in a two bedroom self-contained flat. Mr X told me there is much more space and he is satisfied with this accommodation. He now has room for a washing machine.
35. Mr X considers the Council took too long to move him out of unsuitable accommodation. He wants the Council to increase his priority on the Housing Register for an offer of settled social housing. He also wants to be compensated for the cost of taking laundry to his mother’s house while he lived in his former flat.
36. In response to my enquiries, the Council said the demand for temporary accommodation outstrips the supply and that is why it took time to move Mr X. This is a London-wide problem and is beyond its control. Since April 2021 it has procured 91 self-contained private rented sector properties to use as temporary accommodation units, 12 of which have two bedrooms.
37. The Council sent evidence about the time it took to transfer six other households to two bedroom temporary accommodation in the same period. The shortest waiting time was five days for a household with multiple needs at risk from gang-related activity. Some households, with multiple needs, were moved within three months. Other households, including one which was statutorily overcrowded, waited between four and eleven months. Having considered this evidence, we do not find Mr X waited longer than other applicants in similar circumstances. To its credit, the Council has recognised the need to formalise its transfer criteria in a written procedure.
38. The Council also argued that, although Mr X’s accommodation was unsuitable in the long term, it was suitable for him to occupy in the short term. However we have seen no evidence that the Council made that decision at the time. If that had been the Council’s position, it should have put that decision in writing and informed Mr X of his right to request a review if he disagreed. Instead the Council simply put him on the transfer list. As it did not inform Mr X it considered the accommodation was suitable in the short-term, or that it had agreed to move him despite considering the accommodation suitable for his needs, the only contemporaneous evidence is the Council’s email agreeing to a transfer. It is therefore reasonable to conclude that the Council decided, at the time, that the accommodation was unsuitable. The case of R(M) v Newham [2020] applies here: the Council had found the temporary accommodation was unsuitable so it could not later argue that decision was to be read as meaning it was suitable in the short-term.

My analysis

39. The Council properly informed Mr X in writing that he could request a review of the suitability of the flat when it made the offer in December 2018. Mr X did not pursue this option at the time. There was no fault at this stage.
40. Mr X says the property management officer told him in January 2021 that the Council should never have placed him in this flat. I have seen nothing in the Council’s records which supports that. And the email the officer sent shortly after his telephone conversation with Mr X did not say that. I must also take into account that Mr X had the option of requesting a review when he was offered the flat in 2018 if he considered it was unsuitable then. The offer letter explained in clear terms that he could accept the offer, move in, and still request a review. It would be reasonable to expect him to have done that if he believed the accommodation was unsuitable from the outset.
41. Mr X’s concerns about the suitability of the flat increased as time went by and his child grew older. The pressures caused by overcrowding became more apparent when they spent more time in the flat during national COVID-19 lockdowns. Mr X had the right to ask the Council to reconsider the suitability of the accommodation as his circumstances changed. He contacted the property management officer in mid-January 2021. At the end of January the Council agreed to put him on the transfer list for a move to suitable temporary accommodation. The Council acted promptly on Mr X’s request and there was no fault at this stage.
42. The Council accepted Mr X’s flat was unsuitable on 27 January 2021 and put him on the transfer list. The law says accommodation provided to homeless households must be suitable. Despite its best efforts, the Council could not provide Mr X with suitable accommodation until 22 July 2021. This was service failure because the Council did not meet its statutory duty to secure suitable accommodation.
43. I considered whether Mr X contributed to the delay. On 26 April an officer told him he could move more quickly if he was willing to go to accommodation out of the borough. It asked him to contact the Property Manager if he was interested in this option. Mr X waited until 14 June to request an out of borough move and the Council then moved him just over one month later. If Mr X had made this request sooner, it seems very likely that would have reduced his waiting time for a transfer.
44. Taking this into account, I disregarded the period from 26 April until 14 June when assessing the injustice caused by the service failure. So the service failure led Mr X to spend four months, rather than six months, in unsuitable accommodation waiting for a transfer.
45. I accept the Council’s evidence about the shortage of temporary accommodation to meet the increasing demand from homeless households. This is a challenge faced by many councils in London and nationally. I also acknowledge the Council’s efforts to procure more properties in difficult market conditions. Nevertheless it is still service failure when a council cannot meet the statutory duty to provide suitable accommodation for a homeless household, even when that is due to external factors.
46. The Council told Mr X there is no legal duty to provide a washing machine, or a property with sufficient space to install one, in temporary accommodation. That is correct. For this reason, I cannot recommend the Council reimburses Mr X for any extra costs he incurred, or the inconvenience, of doing laundry elsewhere.
47. Mr X wants the Council to increase his priority on the Housing Register for social housing to compensate for the time he has spent in unsuitable accommodation. I will not recommend that because an applicant’s priority on the Housing Register must be assessed by applying the rules in the Council’s published housing allocations scheme. So I cannot ask the Council to give Mr X more priority than he is entitled to under the rules of its scheme.

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Agreed action

48. Within one month the Council will:
• apologise in writing to Mr X for the service failure; and
• pay him £600 to recognise the impact the service failure had on him and his child while they waited for a transfer.

Within two months the Council will:

• review the temporary accommodation transfer process to take account of the key points arising from this complaint and the Elkundi Court of Appeal judgment; and
• arrange a briefing for officers to ensure they clearly communicate decisions about transfer requests and the suitability of temporary accommodation in writing to applicants and inform them of their review rights.

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Final decision

49. I have completed the investigation and found the Council’s service failure caused injustice to Mr X. The Council has agreed to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman