Summary: Miss X complained she has been living in unsuitable temporary accommodation for two years. The Ombudsman found the Council was at fault for giving incorrect advice, for failing to properly consider whether the temporary accommodation was suitable, and for not doing enough to consider alternate options once it was aware the temporary accommodation was unsuitable.

The complaint

1. Miss X complained she has been living in unsuitable temporary accommodation (TA) for two years, but the Council has not rehomed her. She said the TA has a rat infestation and does not have suitable access for her son, who uses a wheelchair.
2. Miss X said living in unsuitable TA has affected Mr Y’s physical and mental health. It has also been unsettling for the family.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Housing Act 1996.
• The Homelessness Code of Guidance.
• The Council’s Housing Allocation Scheme 2013.
6. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

Housing Allocations

7. 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))
8. Councils must notify applicants in writing following an allocations decision and must give reasons for the decision.
9. Councils must also notify applicants of their right to request a review of these decisions. (Housing Act 1996, section 166A(9))
10. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.
11. The Localism Act 2011 introduced new freedoms to allow councils to better manage their waiting list and to tailor their allocation priorities to meet local needs.
12. The Ombudsman may not find fault with a council’s assessment of a housing application or a housing applicant’s priority if it has carried this out in line with its published allocations scheme.
13. The Ombudsman recognises that the demand for social housing far outstrips the supply of properties in many areas. He may not find fault with a council for failing to re-house someone, if it has prioritised applicants and allocated properties according to its published lettings scheme policy.

Reasonable preference

14. An allocations scheme must give reasonable preference to applicants in the following categories:
• homeless people.
• people in insanitary, overcrowded or unsatisfactory housing.
• people who need to move on medical or welfare grounds.
• people who need to move to avoid hardship to themselves or others.
  (Housing Act 1996, section 166A(3))

The Council’s allocation scheme

15. The Council’s housing allocation scheme recognises households which need urgent rehousing to avoid a high risk of violence or harassment. In those circumstances, the Council places the household in Band A priority. This is the highest priority banding.
16. There are two levels of priority within Band A: Level 1 and Level 2. The Council gives all applicants in an emergency situation Level 2 priority. However, the Council has discretion to award Level 1 priority if it considers a case is exceptionally urgent.
17. The Council, at its discretion, participates in schemes to help residents wanting to move to other council areas. To secure a household a move to another council area, the Council will usually have to agree to accept a new household coming into its area in exchange.
18. The Council owns a small number of homes outside is area, but vacancies rarely arise.

Homelessness

19. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
20. A person is to be considered homeless if they do not have accommodation that they are entitled to occupy, which is accessible and physically available to them, and which it would be reasonable for them to continue to live in.
21. There is no test of reasonableness in the legislation or guidance. Councils should judge each application on its merits. In determining reasonableness, councils may have regard to general housing circumstances in the area. Statutory overcrowding or unfitness are relevant factors but do not guarantee a home is unreasonable to occupy.

Suitability of accommodation

22. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of his or her household. This duty applies to 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)
23. Councils need to consider the suitability of accommodation for households with particular medical and/or physical needs. Physical access to and around the home, space, bathroom and kitchen facilities, access to a garden and modifications to assist people with a sensory loss as well as mobility needs might need to be considered. (Homelessness Code of Guidance 17.5)
24. Councils have a continuing obligation to keep the suitability of accommodation under review, and to respond to any relevant change in circumstances which may affect suitability. (Homelessness Code of Guidance 17.8)

What happened

25. I have detailed below some key events leading to Miss X’s complaint. This is not intended to be a detailed account of what took place.
26. Miss X and her family have a Council tenancy in Lambeth. She approached the Council for help in August 2019 when her son was the victim of a gang attack.
27. The Council offered Miss X two possible temporary homes outside the borough. She rejected the first property because it was not suitable for her disabled adult son, Mr Y, and was too far from her children’s schools. She rejected the second property due to safety concerns because of the presence of gangs in the area.
28. On 29 August, the Council’s emergency panel decided Miss X and her family were at risk in all the borough. It awarded them Band A2 emergency priority. In a letter to Miss X on 30 August, the Council said it will be difficult to find social housing outside the borough. It told Miss X to register with regional and national housing schemes, which it gave details about. It also said it would send her details to a London wide council exchange scheme called the Pan London Reciprocal. The Council said Miss X could give up her tenancy and present as homeless elsewhere if she wished, or she could rent privately.
29. Miss X did not want to make a homelessness application, because there was no guarantee another council would give her social housing. She wanted the Council’s help to find a permanent home for her family.
30. Miss X accepted the Council’s third offer of TA outside the borough. Miss X and her family moved into the TA in November 2019.
31. Mr Y decided to make his own housing application to live independently, to help the family secure a permanent move. The Council first awarded Mr Y Band C priority in March 2020.
32. A family support worker asked the Council to review Mr Y’s priority in October 2020. The Council was unsure whether Mr Y moving out would resolve matters for Miss X’s family. It was therefore reluctant to give him special priority. It decided to arrange an occupational therapy (OT) assessment for him.
33. In February 2021, Miss X asked the Council to review her case. She said Mr Y had been searching for suitable homes without success and the family had received no offers.
34. Miss X complained to the Council on 5 February 2021. She said the family had been in TA for over a year and her disabled son cannot leave the house as it is not wheelchair accessible. She said no houses came up for her to move into and she felt the Council had not dealt with her case properly. She asked the Council for a review.
35. The Council responded on 3 March but did not uphold Miss X’s complaint. It said it awarded Miss X emergency priority in August 2019 but could not rehome her in the borough as the risk was boroughwide. It referred Miss X to the Pan London Reciprocal, a scheme involving all London boroughs, but there is a waiting list and limited availability.
36. The Council recognised the difficulty Miss X faced and said it would ask the housing team to look into any further help it could provide. It said she could also consider mutual exchange or renting privately.
37. Miss X was unhappy the Council did not respond to her concerns that her disabled son had been living in unsuitable TA for over a year. She said her children’s education was suffering from being in TA and she tried to swap homes but without success. She also said the TA had a rat infestation.
38. Mr Y had an OT assessment in April 2021. As a result, the Council awarded him medical priority. It placed him in Band B and approved him for a mobility or adapted home.
39. The Council sent its final complaint response on 25 June. It said it would raise the rat infestation with the managing agent. It recognised the TA was unsuitable due to her son’s disabilities and said it could try to find something more suitable. However, it said it could only transfer the family somewhere in Lambeth as it had no access to homes outside the borough. It said a transfer out of borough depended on London-wide and national schemes. It said demand for the Pan-London scheme exceeds supply. It said Miss X’s options are:
• Move to another tenancy in Lambeth if the risk has reduced.
• Move outside Lambeth to a non-council tenancy with the Council’s help or apply as homeless in another area.
40. Miss X brought her complaint to the Ombudsman on 22 July 2021.

Response to enquiries

41. The Council said it provided Miss X and her family with rent free TA, with the Council as landlord, not under a homelessness duty. The Council allowed Miss X to keep her previous tenancy, despite not living in the house.
42. The Council told me Miss X’s options for moving to social housing outside Lambeth are limited. It has almost no access to social housing outside Lambeth and schemes available to help people (like the Pan London Reciprocal) are oversubscribed.
43. The Council accepted it gave Miss X wrong advice at first, because it told her she could give up her tenancy in Lambeth and present as homeless in another borough. It accepts she could have made a homeless application outside the borough without having to give up her current home.

Analysis

44. Unfortunately, the type and size of home Miss X and her family need is in short supply, and the relevant schemes in place to help are oversubscribed. However, that is not the fault of the Council. The Council made clear to Miss X at the outset that finding the home she required would be difficult and could take time.
45. The Council accepts it gave Miss X wrong advice about presenting as homeless outside the borough. However, on the evidence seen, I do not consider that caused Miss X significant injustice. That is because Miss X said she wanted to be rehomed by the Council. She did not want to present as homeless elsewhere, as there was no guarantee she would get social housing.
46. I appreciate it is frustrating for Miss X and her family to be in TA for so long. The Council accepts the TA is unsuitable for Mr Y’s needs.
47. If the Council had accepted a homeless duty to Miss X and her family, it would have had a statutory duty to provide suitable accommodation. Any failure to do so would be fault, even where the Council tried its best to find something more suitable.
48. In this case, the Council moved Miss X and her family into TA as an emergency temporary transfer. It did not accept a homelessness duty to Miss X and her family. That meant the statutory duty to provide suitable accommodation does not apply.
49. However, that does not mean there was no fault by the Council in not providing accommodation that meets the needs of a disabled person. Instead, it means looking more generally at the Council’s decision making.
50. While I recognise the Council had to balance the suitability of the property with the urgency of Miss X’s need to move, I consider the Council should have done more to make sure it met the needs of Miss X’s full household before offering it. There was no consideration about access to the property and how Mr Y would cope with steps. In the short-term, that may not have been an issue. But the Council was aware it would take time to permanently rehome the family.
51. However, I must also recognise Miss X did not raise any concerns about the suitability of the TA at the time she accepted it. In contrast, she rejected two other properties, one of which because it was unsuitable for Mr Y. On the evidence seen, Miss X did not raise concerns about the suitability of the TA for Mr Y until February 2021.
52. I consider that once the Council knew the TA might not be suitable it should have done more to help. It should have started looking for somewhere else, or it should have looked at possible adaptations for Mr Y. Alternatively, given Mr Y has made his own housing application, the Council could have looked for TA for him on his own. The Council could also have considered whether Mr Y is homeless, as he may not have access to any accommodation which is accessible or reasonable for him to continue live in.
53. Miss X raised the issue about rat infestation with the Council during her complaint. The presence of rats or other rodents does not necessarily mean the home was unsuitable or unreasonable to occupy, it would depend on the circumstances. In response, the Council asked the managing agent to solve the problem. I have not seen evidence of fault by the Council in that regard.
54. I found the Council was at fault for giving wrong advice to Miss X about making a homelessness application. It was also at fault for failing to properly consider whether the TA was suitable for Mr Y’s needs, and for not doing enough to consider alternate options once it was aware the TA was not suitable.
55. The main injustice has been suffered by Mr Y, who has lived in unsuitable TA since November 2019.

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Agreed action

56. Within four weeks of my final decision, the Council agreed to:
• Apologise to Miss X for giving wrong advice about needing to give up her tenancy to present as homeless.
• Liaise with Miss X and Mr Y to plan a means of ensuring they have suitable accommodation. That could be achieved by finding suitable new TA for the family, or by installing aids or making adaptations to the current TA (such as access ramps). Alternatively, the Council could support Mr Y to move independently sooner, either into his own TA under a homelessness duty, or by backdating his housing priority to reflect the time spent without proper access to his home. The Council should report back to the Ombudsman with the agreed details.
• Pay Mr Y £500 in recognition of the time spent living in unsuitable TA.

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Final decision

57. I have completed my investigation. The Council was at fault for giving incorrect advice, for failing to properly consider whether the temporary accommodation was suitable, and for not doing enough to consider alternate options once it was aware the temporary accommodation was unsuitable.

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Investigator's decision on behalf of the Ombudsman