Summary: Miss X complained about poor conditions and the unsuitability of her temporary accommodation. The Council was at fault because it knew the managing agents had not carried out repairs and it did not properly assess and meet Miss X’s need for disabled adaptations. As a result, Miss X suffered injustice for which the Council has agreed to provide a suitable remedy.

The complaint

1. Miss X complained that the Council:
• placed her in temporary accommodation which is unsuitable for her needs as a person with disabilities and it has not reviewed its suitability;
• failed to ensure the managing agents carried out repairs to the property which were first identified during an inspection in August 2021 and were still outstanding at the time of a follow-up inspection in late October 2021.
2. Miss X has a disability which limits her mobility. She finds it difficult to manage internal stairs in the flat because there is no handrail. She also has difficulty transferring safely into the bath because there are no rails. The landlord’s agent has not carried out necessary repairs which means her living conditions are poor.

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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. I have spoken to Miss X and considered all the information she sent me. I considered the Council’s response to my enquiries and reviewed its inspection reports and photographs. I also read the correspondence between Council officers, the landlord’s agents and Miss X’s legal advisers.
6. Miss X 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

The relevant law and guidance

7. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities (“the Code”) set out councils’ powers and duties to people who are homeless or threatened with homelessness.

The main housing duty

8. 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 performs 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)

Suitability of accommodation

9. 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 both to interim accommodation and accommodation provided under the main housing duty. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)
10. The Code says when it decides whether accommodation is suitable, councils must, as a minimum, ensure it is free of Category 1 hazards. If the applicant is placed in accommodation outside the Council’s area, it is responsible for ensuring it is free of Category 1 hazards.
11. The Code also says councils must carefully consider the suitability of accommodation for households who have 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 sensory loss as well as mobility needs are all factors which might need to be taken into account.

Reviews

12. 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. They can request a review whether they decide to accept or refuse the accommodation offered. (Housing Act 1996, s202)
13. 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)

The Council’s service level agreement with the managing agents

14. The Council entered into a legal agreement with the agents who manage Miss X’s flat and other temporary accommodation. It requires them to regularly test the fire safety equipment in the building. It also sets out minimum standards for the accommodation and timescales for completing repairs. Minor repairs should be completed within 20 working days. Burst or leaking pipes should be repaired within 24 hours.

Miss X’s circumstances

15. Miss X and her young child are homeless. The Council owes them the main housing duty and placed them in temporary accommodation.
16. Miss X has medical conditions which cause chronic back pain and restrict her mobility. She reports that she and her child both have asthma. In August 2021 she was awarded Band C medical priority for her Housing Register application. This award was made to recognise that she has an illness or disability of a moderate nature which is adversely affected by her living conditions in the temporary accommodation.

Offers of temporary accommodation - April 2021

17. Miss X had to move out of her previous temporary accommodation due to flood damage. The Council offered her the current property in April 2021. It is a two bedroom ground floor flat in a neighbouring London borough leased from a private landlord.
18. The flat has level access from the street. The living room and main bedroom are on the ground floor. A single flight of four stairs leads down to the second bedroom, kitchen and bathroom. There is no handrail or banister on these stairs. The electricity key meter and consumer unit are in the basement which has no lighting. Access to the basement is down a further flight of stairs with no handrail.
19. The Council told me it could not find the offer letter for this property in its records. So it could not show that it informed her about her review rights then. Miss X’s current solicitor says Miss X was not informed about her right to request a section 202 review of the suitability of the flat. Miss X told me she did not know she had the right to a review and she was told she had to accept this property. She told me she only found out about review rights several months later when she instructed her current solicitor.
20. The Council has provided correspondence from a lawyer in a local advice centre who was acting on Miss X’s behalf in April 2021. The Council had made Miss X an offer of accommodation.  After Miss X viewed the property, the lawyer contacted the manager of the Temporary Accommodation team to say it was unsuitable because there were two flights of stairs and no lift. She attached a letter from Miss X’s GP which says she was getting hospital treatment for back pain and wrist pain. She asked the Council to make an alternative offer. She did not ask it to treat her letter as a section 202 review request.  The council decided to withdraw the offer. It offered Miss X a ground floor property the next day.
21. The lawyer then sent a further email to the Temporary Accommodation team saying Miss X had decided to accept this offer. She did not say whether Miss X wished to accept the offer and pursue a review of suitability.
22. The manager of the Temporary Accommodation team replied that day. He said the Council considered the flat was suitable and he noted Miss X had accepted the offer. He provided information about the practical arrangements for the move.
23. From the records I have seen, the lawyer did not pursue this any further at the time. She did not request a review.
24. Miss X and her child moved to the flat in late April 2021.
25. The records show Miss X referred herself to the Adult Social Care service in early May 2021 to ask for equipment. An assessor screened Miss X’s request and arranged for a bath step, bath board and bed lever to be delivered. Miss X contacted the officer to thank her for these items. She said she also needed a rail for the bath and stairs. Another officer told Miss X in mid-June that the Council could not install rails in properties outside the borough. The officer did not refer her to the Adult Social Care team at the Council for the area where she lived.

Miss X’s complaint to the Council – June 2021

26. Miss X complained to the Council. Part of her complaint was about the way the Council had dealt with flood damage at her previous temporary accommodation. We are not investigating that. She also said there had been a flood at her current accommodation two days before she moved in. The second part of the complaint was that adult social care had told her stair rails or bath rails could not be installed in temporary accommodation. Miss X said she was in considerable pain and the Council should provide the equipment and adaptations she needed to live comfortably and independently.
27. The Council replied in July 2021. It gave a different reason for not providing the equipment. It said the Occupational Therapy team could not install equipment in temporary accommodation provided by a managing agent. The Council’s final response confirmed this and said the agent or property owner would not agree to adaptations.
28. In response to my enquiries, the Council said Miss X had not contacted the Temporary Accommodation team to request handrails and bath rails so they had not contacted the managing agents to ask if they would consent to these works.

The first property inspection – August 2021

29. In mid-August 2021 a Council officer inspected Miss X’s property. He took photographs and wrote a report listing several defects. He asked the landlord’s agents to arrange the following works:
• Test the smoke alarm in the communal hallway – he could not test it due to the ceiling height;
• Replace a faulty smoke alarm in the hallway of Miss X’s flat;
• Investigate and fix damp caused by water ingress in the hallway of Miss X’s flat and then redecorate the affected area;
• Redecorate the hallway wall and ceiling because of water staining caused by historic leaks;
• Replace a missing seal on an external door to the main bedroom to prevent water leaking into the room;
• Trace the source of a leak which had stained the ceiling in the second bedroom and the kitchen then fix it and redecorate the damaged areas;
• Install a light in the basement and check and box in the consumer unit;
• Fix gaps between the basement door and frame;
• Provide a fire blanket for the kitchen;
• Install a curtain rail or pole in both bedrooms;
• Repair defective taps in the bathroom washbasin and fix plug stoppers to the basin and kitchen sink;
• Clear weed growth on the paving and clear debris outside the property and in the garden.
30. A few days later the officer sent his report to the landlord’s agents. He asked them to resolve all these issues by 14 September 2021. He asked them to focus on dealing with the damp in the hallway and redecorating water-stained areas throughout the flat. He also asked them to let him know as soon as they supplied the fire blanket.
31. In mid-September Miss X informed the property inspection officer that no repairs had been done. The officer contacted the landlord’s agents on the same day to ask for an update. In late September he sent two emails chasing a response. In early October he contacted Miss X to say the landlord’s agent had informed him all the repairs had been completed. Miss X said that was not true: nothing had been done other than providing the fire blanket. She said a plumber believed the leak came from a radiator in the flat above.
32. Miss X complained to us in September 2021.
33. The second property inspection – October 2021
34. After we made enquiries, and Miss X contacted the Council about the agent’s failure to arrange repairs, the property inspection officer returned to the flat in late October 2021.
35. He took photographs and updated his earlier report. He found the defective smoke alarm had not been replaced. In fact there were no working smoke alarms in Miss X’s flat or the communal hallway. He said this was a serious fire safety hazard. He found the damp in the hallway of Miss X’s flat had spread to the main bedroom since his last inspection. The surface of the walls was wet to the touch and damp meter readings recorded excessive moisture levels. None of the works in his August 2021 report had been done apart from replacing the defective seal to the external door in the main bedroom. Miss X was using brown sticky tape to fix blinds to the main bedroom wall.
36. In early November the property inspection officer sent his report to two managers in the Temporary Accommodation team. He asked them to liaise with the managing agents. He said they had misinformed him by stating the repairs had been done. He said it would be best to move Miss X and hand the property back to the landlord if the issues could not be resolved.
37. In mid-November one of the managers contacted the managing agents. They replied immediately to say the landlord wanted the property to be handed back. The landlord was in dispute with the neighbouring property owner about a party wall matter and the damp affecting Miss X’s flat.
38. In November and December 2021 Miss X sent emails to several Council officers and her MP to say the landlord’s agents had still not done any repairs. She said the flat was very cold and draughty. She asked why the Council had left her in such poor accommodation.
39. In mid-December 2021 the property inspection officer escalated the case to the manager of the Temporary Accommodation team. He said he had visited the property twice and the repairs were still outstanding. He said he was getting nowhere with the landlord’s agents.
40. On 20 January the manager of the Temporary Accommodation team asked the placements team to make Miss X a suitable offer of temporary accommodation as a priority.

Suitability review request – November 2021

41. Meanwhile, in early November 2021 Miss X sought advice from a different solicitor who requested a review of the suitability of Miss X’s accommodation. She referred to Miss X’s medical conditions and disability. She said Miss X found it very difficult to manage the stairs inside the flat, particularly as there was no handrail or other support. She said Miss X often slept in the downstairs bedroom because she struggled to reach the main bedroom on the ground floor. She also said Miss X relied on relatives to top up the electricity meter in the basement because it was unsafe for her to go down the unlit stairs. The solicitor also referred to adaptations Miss X needed to bathe safely. She provided a new letter from Miss X’s GP.
42. In response to my enquiries, the Council said it has not yet made a decision on the review due to a backlog of cases.

Recent events

43. I spoke to Miss X in late January 2022. She confirmed the managing agents had provided a fire blanket. But the smoke alarms are still not working which means she is at risk if there is a fire. None of the other repairs have been completed. There is an internal leak, damp patches and the wallpaper and paint are flaking and peeling away from the walls. The condition of the property has deteriorated since the first inspection last year.
44. Miss X told me the managing agents had informed the Council they could not get access to the flat to do repairs. She disputes that and says they queried the need to do some of the works the Council required.
45. In response to my enquiries, the Council said it does not accept the flat is unsuitable for Miss X’s needs. But it must find her another property because the landlord wants the property back.
46. Miss X refused one offer of a second floor flat because she did not consider it was suitable for her needs. The Council says it did not end the main housing duty then and it will make one further offer.

Analysis

47. The Council cannot produce any evidence that it notified Miss X of her right to request a review of the suitability of the accommodation when it offered her the accommodation in April 2021. That is fault.
48. We do not know what the outcome would have been if the council had informed Miss X of her review rights in April 2021. But it seems likely she would have requested a review then. The failure to inform Miss X of her review rights is, in itself, an injustice. I do not consider the fact she had a legal adviser at the time alters the Council’s duty to inform her when it made the offer.
49. The Ombudsman will not decide whether Miss X’s temporary accommodation is unsuitable because Miss X’s solicitor requested a suitability review in November 2021. The Council should make a decision.
50. We can consider whether the Council took appropriate action to deal with the disrepair Miss X reported. The Council has known about significant defects in the flat since the first inspection in late August 2021. It was appropriate for the property inspection officer to liaise with the managing agents to ask them to carry out repairs. He set a deadline of 14 September 2021 in line with the 20 working day timescale. Apart from supplying a fire blanket and fixing the seal to the external door, nothing was done. The Council’s evidence indicates the managing agents were slow to respond to reminders and wrongly informed the property inspection officer they had completed the repairs.
51. The Council has a legal duty to ensure temporary accommodation meets minimum standards, is in a good state of repair and free from hazards. The inspection reports show there is damp in Miss X’s flat which has spread from the hallway to the main bedroom because it was not investigated and treated promptly. The lack of working smoke alarms presents a serious risk to Miss X and other occupiers of the building if there is a fire. It is unsafe for Miss X to go down to the basement to use the key meter because there is no lighting. The property does not meet minimum standards and Miss X should not be living in these conditions.
52. Miss X told me the flat is damp, cold and draughty. The Council’s inspection reports support that. She is understandably concerned about the impact these conditions have on her health and wellbeing and her young child. The managing agents made it clear to the Council by mid-November that the landlord wanted the property back. It was clear then that no repairs would be done because the landlord was involved in a dispute with the owner of the neighbouring property. Despite this, Miss X was not approved for a transfer until two months later. That was fault because the decision to move Miss X should have been made without delay.
53. Miss X has the right to be assessed for any disabled equipment or adaptations she needs to help her to live independently and safely. If she needs rails for the bath and stairs, and these cannot be installed because the landlord will not give consent, the Council should have reconsidered the suitability of the accommodation. The fact that Miss X did not make a request directly to the Temporary Accommodation team is irrelevant. She asked the Council’s Adult Social Care team for assistance and that was sufficient. There should have been joined-up working between the two services to assess and meet her needs and, if that was not possible in the current accommodation, to find an alternative solution.
54. Miss X’s solicitor made the section 202 review request after Miss X complained to us. So the Council’s delay in making the review decision is not something we investigated. However the Council has gone well beyond the eight week statutory timescale for making a review decision. It should therefore expedite the decision and inform Miss X’s solicitor.
55. The Council withdrew a recent offer of a second floor flat and decided to make one further offer. It should ensure the next offer is made in writing and the letter explains Miss X’s right to request a review of suitability regardless of whether she decides to accept or reject the offer.

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Agreed action

56. Within one month of my final decision the Council will:
• apologise to Miss X;
• reassess Miss X’s needs arising from her disability and medical conditions before it makes the next offer of temporary accommodation;
• pay her £200 per month starting from 14 September 2021 (the deadline for the agents to have completed the repairs) until it makes the next offer of temporary accommodation;
• make a decision on the outstanding review request;
• ensure the next offer of temporary accommodation is put in writing and the letter explains review rights;
• review the template letters used to make offers of accommodation under the section 193 main housing duty to ensure they include information about review rights and check that officers are using these letters.

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Final decision

57. I have completed the investigation and found the Council was at fault and this caused injustice to Miss X.

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Investigator's decision on behalf of the Ombudsman