Summary: Mrs X and Mr D complained the Council wrongly found their temporary accommodation suitable and it discharged its housing duty towards them. He also said it had failed to act as set out in its repairs policy when they had mould in the property and water leak from another flat. We found no fault by the Council on the substantial matters complained about, or these were late and had already been considered by a court. However, the Council did cause a service failure due to its delays in completing repairs to their accommodation as set out in the Council’s Policy. The Council has agreed to apologise the Mrs X and Mr D, complete the assessed repairs without delay and make payment to acknowledge the distress this caused them.

The complaint

1. The complainant, whom I shall refer to as Mr D, complained behalf of himself, his partner, Mrs X, and their children. He said the Council:
• wrongly found their temporary accommodation to be suitable to meet their needs in 2020 and in 2021;
• wrongly assessed their housing application and banding, and failed to disclose information about their housing application;
• wrongly discharged its housing duty on Mrs X in 2020, and failed to discharge its housing duty towards Mr D;
• failed to properly consider and resolve mould and damp issues, and replace their out-of-date kitchen in their temporary accommodation since 2019; and
• served unlawful eviction notices on Mrs X.
2. Mr D also complained the Council failed to carry out repairs urgently and move his family to another temporary accommodation after a water leak from another flat in late 2021.
3. As a result, Mr D said he and his family had experienced distress due to harassment, discrimination and living in unsuitable accommodation. He also said they had loss of opportunity to bid for properties since 2021.

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What I have investigated

4. I have considered Mr D’s complaint about the Council’s handling of the water leak affecting Mrs X’s flat in late 2021, mould and damp concerns in 2021 and the replacement of their kitchen.
5. The final paragraph of this decision explains why I have not considered the other parts of Mr D’s complaint.

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The Ombudsman’s role and powers

6. 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)
7. We cannot question whether an organisation’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)
8. 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)
9. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
10. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
11. 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)
12. 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

13. As part of my investigation, I have:
• considered Mr D’s complaint and the Council’s responses;
• discussed the complaint with Mr D and considered the information he provided;
• considered the information the Council provided in response to my enquiries;
• consider the law, guidance and policy relevant to the complaint; and
• considered Mr X’s comments on my first draft decision and the Council’s response to my additional enquiries.
14. Mr D, Mrs X and the Council had an opportunity to comment on my second draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law, guidance and policy

Homelessness duty and suitability of accommodation

15. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need, the council has a duty to secure that accommodation is available for their occupation (unless it refers the application to another housing authority under section 198). But councils will not owe the main housing duty to applicants who have turned down a suitable final accommodation offer or a Housing Act Part 6 offer made during the relief stage, or if a council has given them notice under section 193B(2) due to their deliberate and unreasonable refusal to co-operate. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)
16. 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)
17. Homeless applicants may request a review within 21 days of being notified of the following decisions:
• giving notice to bring the relief duty to an end;
• giving notice in cases of deliberate and unreasonable refusal to co-operate; and
• the suitability of accommodation offered to the applicant after a homelessness duty has been accepted (and the suitability of accommodation offered under section 200(3) and section 193). Applicants can request a review of the suitability of accommodation whether or not they have accepted the offer.
18. Councils must complete reviews decisions within eight weeks of the date of the review request for suitability of accommodation, or notice being given of deliberate and unreasonable refusal to cooperate, and the effect of the notice is to bring the relief duty to an end.
19. The council must advise applicant of their right to appeal to the county court on a point of law, and of the period in which to appeal. Applicants can also appeal if the Council takes more than the prescribed time to complete the review. (Housing Act 1996, sections 202, 203 and 204)

Repairs policy

20. The Council provides its housing and homelessness accommodations through a housing provider. Its ‘Your Guide to Repairs Handbook’ (the Policy) sets out who it will action repairs to its accommodations. This list three bands of urgency:
• Emergencies (within 24 hours), which includes repairs to remove danger to people, avoid flooding and major damage to property, restoring sanitation, water, electrical supply or heating;
• Urgent matters (within three working days), which includes preventing damage to property or where there are possible health, safety or security risks. This may be where a partial failure of sanitation, water or electrical supply exists; and
• Routine repairs (within 20 working days), which includes other repair works which are not emergency or urgent such as plastering and decorating.
21. The Policy also says the housing provider is responsible for severe water penetration, flooding and uncontrollable leaks. Including subsequent plastering defects to walls and ceilings as a result of these.
22. It is the Council’s Policy to retain an asset register for its properties. This sets out when scheduled replacements for heating, kitchens and bathrooms should take place to ensure its properties remain suitable and to and acceptable standard.

Public Sector Equality Duty

23. The Public Sector Equality Duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:
• eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010;
• advance equality of opportunity between people who share a protected characteristic and those who do not; and
• foster good relations between people who share a protected characteristic and those who do not.
24. The broad purpose of the public sector equality duty is to consider equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.

Human rights

25. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, a fair hearing, and respect for private and family life. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
26. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
27. In practical terms, councils will often be able to show they are compliant with the Human Rights Act if they consider the impact their decisions will have on the individuals affected and that there is a process for decisions to be challenged by way of review or appeal.

What happened

Concerns relating to matters which occurred prior to 2021

28. Mr D and Mrs X both has health conditions, and they have 3 children.
29. In 2017, the Council considered Mr D’s and Mrs X’s homeless application and placed them in a temporary accommodation. Six months later they were moved to their current temporary accommodation flat, which is in Mrs X’s name. Mr D and their children are listed as tenants in the tenancy agreement.
30. In 2019 Mr D told the Council about mould and damp in the flat, which was affecting the family. He also asked about replacement of their kitchen.
31. The Council inspected the flat and some repair work took place to redecorate, regulate the heating and ventilation in the flat. It also offered to replace the kitchen as this was scheduled for replacement in 2020, but Mr D and Mrs X did not go-ahead with this due to the impact the works would have whilst living in the flat.
32. In 2020 Mr D asked the Council for a suitability review of the accommodation. The Council found the flat was suitable for Mrs X and her family based on their needs and the medication information they had provided.
33. In Summer 2020, the Council offered Mrs X and her family an alternative temporary accommodation. Mrs X signed the tenancy agreement but did not move in by the date required by the Council.
34. Mr D said this was because the offered flat had a mice infestation, and he provided a GP letter to the Council which raised concerns about the impact this had on Mrs X. The letter asked the Council to consider offering a different temporary accommodation.
35. The Council arranged for a pest control contractor to remove the mice infestation. A month later, the Council sent Mrs X a letter which explained it had discharged its housing duty towards her as she had refused a suitable accommodation offered to her.
36. Mr D requested reviews of the suitability of their current accommodation, the accommodation offered by the Council, and the Council’s discharge of its housing duty towards him and Mrs X.
37. Mr D said the Council failed to issue a statutory review decision, so he brought the matter to the attention of a court.
38. The Council decided to issue an extra statutory suitability review decision. It found it had properly reviewed the suitability of accommodation, Mrs X’s flat remained suitable for the family, and considered the family’s protected characteristics under the Equality Act.
39. In early 2021, a Court considered Mr D’s concerns about the suitability of their accommodation and the Council’s decision to discharge its housing duty. It dismissed Mrs X and Mr D appeal as out of time and because the Council has since completed a further suitability review. It also refused their right to further appeal as it would have no real prospect of success.
40. The Council gave Mr D its final complaint response in Summer 2021. It found it had handled Mr D’s concerns appropriately and found no fault in its decision on suitability of the accommodation, the discharge of its housing duty, and how it had handled the disrepair concerns. It also explained Mr D and Mrs X was unable to bid for new properties as their account had been closed following the discharge of its housing duty.
41. The Council has since served four eviction notices on Mrs X. However, eviction was delayed due to the impact of COVID-19.

Concerns relating to matters which occurred after 2021

42. In December 2021 Mr D told the housing provider and the Council they had a leak from a flat above.
43. The housing provider attended to inspect the leak on the same day. It attempted to do repairs, which were unsuccessful, but it closed of the water connection to the upstairs flat. It decided to move the tenants of the two flats most affected to other accommodation temporarily.
44. The Council visited Mr D and Mrs X flat and found they had been impacted by the leak. However, it decided no further action was needed until the burst pipe was repaired. This was because the water follow had been stopped and it found the leak was discoloured fresh water.
45. The housing provider arranged for an external contractor to assess and repair the leak. It was found there was a burst pipe within the concrete of a flat two floors above Mr D and Mrs X’s flat.
46. Mr D complained to the Council. He asked for alternative accommodation and compensation because it had:
• failed to repair the leak within 14 days, and failed to carry out the repairs following the leak urgently and caused delays, which meant there was a risk of serious harm to him and his family;
• discriminated against Mr D and his family, as it had failed to provide them with an alternative temporary accommodation as a result of the leak but had done so for the occupiers of another flat;
• harassed and discriminated Mr D and his family as its eviction notices were unlawful;
• failed to inspect their damp issues under the Housing Health and Ratings System and resolve their damp issues since 2019. So, their walls and ceilings had mould again, and their kitchen had not been replaced as promised in 2019. He said it had therefore breached its public sector equality duty;
• failed to properly consider their overcrowding issues with only one toilet and no privacy; and
• failed to provide data as requested by Mr D.
47. The Council did not uphold Mr X’s complaint. It explained:
• it had acted on the same day the leak from the upstairs flat had been reported and turned off the water flow, but the issue could not be resolved on the same day. It inspected and was satisfied the leak was discoloured fresh water (not foul water) and therefore not harmful to Mr D and his family;
• it took three weeks for its contractor to repair the leak within the structure of the building, which was within the 20 working days set out in its Repairs Guide;
• it attempted to visit Mr D and Mrs X on two occasions to assess the damage and arranged for follow-up repairs to be completed. As no one was home, its officers left a card asking them to contact the Council;
• it scheduled an appointment to inspect Mr X’s reported mould for the end of January 2022. However, due to sickness, its contractor could not attend. It rescheduled the appointment for March 2022. It explained there were no sooner appointments due to sickness and workload related to COVID-19, and added Mr X to its cancellation list;
• its housing provider followed up on the kitchen replacement in February 2022 and it did not consider a decant was necessary while works would be carried out; and
• it had already responded to Mr D’s concern about suitability of their accommodation and data sharing in its response to his complaint in 2021.
48. Mr D remains unhappy about the Council’s response to his complaints since 2019, so he asked the Ombudsman to investigate his complaint. He said the Council’s actions breached the Equality Act and European Convention on Human Rights (ECHR) because of how it had treated him and his family.
49. In response to my enquiries the Council has said works remains outstanding for Mr D and Mrs X’s flat. This includes plastering works in the kitchen and bathroom.

Analysis

The water leak

50. Mr D said the Council failed to inspect and do enough to repair the water leak and subsequent damage to his and Mrs X’s flat.
51. When Mr D reported the water leak in late 2021 to the Council, it inspected the property on the same day. I found the Council was not at fault for how it acted as this was in line with its Repairs Guide. I found:
• it was necessary for a contractor to do the repairs as the Council could not access the burst pipe;
• it stopped the flow of water to the affected pipe, and determined there was no risk to health as the water was discoloured fresh water;
• its contractor repaired the broken pipe three weeks later which was within the 20 working days in its Policy; and
• once the pipe had been repaired, it attempted two visits to Mrs D’s and Mr X’s flat to assess the damage caused and to do the necessary repairs. It left cards for them to contact the Council to arrange a visit when they were home.
52. I acknowledge the Council attempted to progress the repairs as set out in its Repairs Guide but could not get access to the flat in January 2022.
53. However, since February 2022 there had been little or no progress in the Council’s works to Mrs X and Mr D flat. The Council has arranged for some inspections to take place but the identified works to the kitchen and bathroom remains outstanding. Mr X also reported further issues with a leak from his bathroom light, which remains unsolved. This was a service failure which has caused Mrs X, Mr D and their children some distress, and continues to do so until this has been repaired in accordance with the Council’s Repairs Policy.
54. Mr D also said he and Mrs X were discriminated against as other flats had been moved to alternative temporary accommodation until the repairs could be completed.
55. I have not found the Council at fault, nor did I find any evidence it discriminated against him, and Mrs X. The Council told Mr D its inspection found the impact of the water damage had been greater on the other two flats due to their location, which also meant they had no electricity and access to water. It had therefore been necessary to decant those flats. However, it found Mrs X and Mr D were not in risk of harm from the leak, had running water and their ability to use the flat remained. It decided it therefore had no duty to offer them an alternative temporary accommodation. This was a decision the Council was entitled to make, I cannot therefore criticise its merits.

Condensation and mould

56. The Council inspected Mrs X’s and Mr D’s accommodation in 2019 and found mould and condensation. It arranged for some works to improve the ventilation, provided some advice and had the impacted walls and ceilings redecorated.
57. When Mr D told the Council the condensation and mould within the flat was still an issue in 2021, the Council arranged for its contractor to visit the flat to assess whether any works were necessary.
58. I acknowledge Mr D believes the Council has failed to identify a category 1 hazard under the Housing, Health and Safety Rating System. However, it did not identify such hazard in its visit in late 2021. I am therefore not satisfied there was fault in the process it followed. This was therefore a decision it was entitled to reach, and I cannot criticise the merits of its decision.
59. I have also not found the Council at fault for causing delays in assessing and repairing Mr D’s condensation and mould concerns again in early 2022. This is because I cannot fault the Council for circumstances outside its control. In this case, this was its cancellation of the scheduled appointment as its contractor was affected by sickness related to COVID-19. The Council apologised for the inconvenience, re-arranged the appointment for six weeks later and added them to the cancellation list.
60. However, the Council has still not completed the mould and condensation repairs it identified following its inspection. This was therefore a service failure which has caused Mrs X, Mr D and their children some distress, and continues to do so until this has been repaired in accordance with the Council’s Repairs Policy.

Kitchen replacement

61. The Council agreed the kitchen in Mr D and Mrs X’s temporary accommodation was due to be replaced in 2020 and offered for the works to start in late 2019.
62. This did not happen as Mr D and Mrs X was concerned about the impact the works would have on them and their children. Based on the evidence available, the Council did not follow this up with them, nor did Mr D and Mrs X chase this with the Council until late 2021.
63. I have not found the Council at fault for failing to replace the kitchen. This is because:
• it needs Mr D and Mrs X’s agreement to arrange the works to replace the kitchen, which they had not agreed to;
• when Mr D asked the Council again in late 2021 to have the kitchen replaced, it arranged for its housing provider to visit Mrs X and Mr D to progress this;
• the Council’s considered its Repairs Guide and Mr X and Mrs D circumstances and found they did not require another temporary accommodation while the kitchen replacement works takes place. This was because the works were limited in duration and its contractor could reconnect water and some cooking facilities at the end of each day until the works was completed; and
• it told Mr D and Mrs X if they experience unreasonable issues with access to water or cooking facilities when the works takes place, they can bring their concerns to the Council’s attention.
64. Therefore, as the Council reached its view in line with its Policy, I cannot criticise the merits of its decision.

Eviction notices

65. Mr D complained the Council has unlawfully served eviction notices and these amounted to discrimination and harassment against them.
66. I have not found fault by the Council. This is because it discharged its housing duty on Mrs X in 2020 and told her it would start the eviction process if she did not accept the accommodation it offered, or if she was unsuccessful in a review of the suitability of the accommodation.
67. Mrs X did not move, and she was not successful in her late suitability review. The eviction notices Mrs D received was therefore not unlawful. However, she and Mr D has the right to appeal against an eviction in court, which would be the appropriate next step for them to take.

Equality and human rights

68. Mr D said the Council had failed in its Public Sector Equality Duty and its decisions amounted to breaches of his and Mrs X’s human rights. This was because of its decisions their temporary accommodation was suitable, it discharge of its housing duty towards Mr D and its current eviction process of Mrs X.
69. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
70. The Council told Mr D it had considered its Public Sector Equality Duty when it reached its decisions about the suitability of his and Mrs X’s temporary accommodation. It did so by considering the family’s circumstances and the medical information they had provided. I therefore found it had regard to its duties under the Equality Act. However, I cannot determine whether the Council’s actions amounted to a breach of the Act as such matters should be considered by the courts.
71. Also, I have not found the Council at fault in how it handled Mrs X’s and Mr D’s housing circumstances since 2021, which was the period I have investigated. This was because it had followed its policy and the relevant UK legislation.
72. Mr D’s claim his and Mrs X’s human rights were breached is therefore about whether UK laws are incompatible with the European Convention on Human Rights. The Ombudsman cannot consider such matters as this is a claim against the UK Government. Mr D will therefore need to bring this matter to the European Court on Human Rights if he wishes to pursue this.

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Agreed action

73. To remedy the injustice the Council caused to Mrs X and Mr D, the Council should, within one month of the final decision:
1. apologise in writing to Mrs X and Mr D, and pay them £500 to acknowledge the distress and uncertainty they experienced as a result of the Council’s delays to repair the assessed works to their accommodation as set out in the Council’s Repairs Policy;
2. pay Mrs X and Mr D a further £100 to acknowledge the unnecessary time and trouble they had to bring their concerns regarding mould and condensation, and the repairs following the water leak to the Council’s attention;
3. complete the assessed repair works which Mr X has reported to the Council and it had agreed to complete following its inspections.
74. Within three months of the final decision the Council should also:
1. Review Mrs X and Mr D complaint against its Repairs Policy to identify learning and ways to ensure any delays in the inspection and repairs process are limited and consistent with its Policy. Including, how the Council communicates any delays outside its control to individuals affected.

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Final decision

75. I have completed my completed my investigation with a finding the Council caused a service failure due to its delays to repair Mrs X and Mr D’s flat since February 2022. There was no fault on the other parts complained about.

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Parts of the complaint that I did not investigate

76. I have not investigated Mr D’s complaint about:
• how the council assessed Mrs X’s and Mr D’s housing application and banding in 2019;
• the Council’s suitability review decision in 2020 and extra-statutory suitability review decisions 2021;
• the Council’s discharge of its housing duty towards Mrs X, and Mr D’s claim it has failed to discharge its duty toward him;
• the Council’s handling of Mr X’s mould and damp issues, and kitchen replacement before 2021.
77. This is because these matters have been brought to our attention late, and I have seen no good reason to exercise my discretions to consider these. Or, they have already been considered by a court.
78. I have also not investigated the Council’s sharing of information about Mrs X’s and Mr D’s housing application. This is because such matters should be brought to the attention of the Information Commissioner (ICO), who is best placed to consider such issues.

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Investigator's decision on behalf of the Ombudsman