Summary: Ms X complained the Council did not fairly consider moving her family to a larger property or changing her banding on the housing register. The Council is not at fault for how it applied its allocations policy for overcrowding need. It was at fault for not considering the damp, but it was unlikely to have changed her banding, so no injustice was caused. There is fault by the Council in failing to complete a statutory review of the suitability of the temporary accommodation or offering appeal rights. The Council has made a financial payment to her. It has also agreed to apologise and complete the statutory review.

The complaint

1. Ms X complains she and her family are living in overcrowded and unsuitable temporary accommodation and the Council will not move her to a larger property. She says the Council has not fairly considered her family’s needs or given her priority in her housing band. Ms X says this is having a significant negative impact on their daily lives, affecting their physical health and mental well-being.

Back to top

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. 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)
4. 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)

Back to top

How I considered this complaint

5. I discussed the complaint with Ms X and considered her views.
6. I made enquiries of the Council and considered its written responses and information it provided.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Law and administrative background

Temporary accommodation

8. Temporary accommodation is accommodation provided to homeless applicants as part of a council’s main homelessness duty.
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 to interim accommodation and accommodation provided under the main homelessness duty.  (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)
10. Certain decisions councils make about homelessness carry a statutory right of review. The review decision then carries a right of appeal to court on a point of law. Homeless applicants have a right to review the suitability of temporary accommodation provided under the main homelessness duty. (Housing Act 1996, s202)
11. Homeless applicants must request a review within 21 days of the decision. However, applicants can ask a council to reconsider its decision about the suitability of temporary accommodation at any time. This might be necessary, for example, if there is a change in the applicant’s circumstances. This new decision is open to review under s202, with a new 21 day timescale. R(B) v Redbridge LBC [2019] EWHC 250 (Admin)

Overcrowding

12. Part X of the Housing Act 1985 sets out when a property should be considered overcrowded. It does this by defining how many people can sleep in a property, depending on the age of the occupants and the number of rooms.
13. It says bedrooms and living rooms should be considered as spaces for sleeping. Anybody over the age of 10 is counted as a single unit; children between the ages of one and 10 are counted as half a unit.
14. Relevant to this complaint, it says a two-bedroom property with a living room can accommodate a household comprising 5 units.

Housing allocations

15. Every local housing authority must publish an allocations scheme that sets out how it prioritises housing applicants, and its procedures for allocating properties.  All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
16. 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))
17. Applicants have a right to request a review of a council’s decision about the priority band they have been awarded.

The Council’s scheme

18. The Council places applicants who qualify to join the housing register in a priority band from Band A+ (highest priority) to Band C- (lowest priority).
19. So far as is relevant to this complaint, the Council awards Band C to homeless applicants owed the main housing duty.
20. The Council may put applicants in Band A+ or Band A if it considers they are in ‘emergency or priority need to move’.
21. This includes where: they have an urgent medical or welfare need, or severe overcrowding (lacking at least two bedrooms).

Background

22. The Council accepted the main homelessness duty to Ms X in 2017. Ms X and her children moved into their current temporary accommodation in May 2019. It has two bedrooms with a living room, bathroom, and kitchen. She is in Band C on the housing register.

What happened

23. I have summarised below the key relevant events; this is not intended to be a detailed account of everything that happened.
24. In August 2022, Ms X formally complained to the Council about the suitability of the temporary accommodation for herself and her three daughters (aged between 9 and 15 at the time). She said it had severe damp and it was too small for them to live comfortably. She had several health issues and the overcrowding posed risks to their physical and mental health. She asked the Council to rehouse her family to a larger and more suitable property.
25. The Council responded it lacked large affordable properties in its area and offered options to finding her own property in the private sector or placing bids for permanent properties on its choice-based lettings system.
26. Ms X asked to be moved to temporary bigger accommodation until she was able to find something permanent. The Council said she was in a suitable property and would not be moving her.
27. Ms X escalated her complaint. She requested the Council review her living situation and change her to a higher banding.
28. At Stage Two, the Council said there were two bedrooms and a living room which counted as an additional sleep space. This meant there were three rooms for four people, and any individuals of the same gender can share a room. It said under legislation, Ms X did not meet the definition of being statutorily overcrowded and did not action a priority to move.
29. In December, Ms X complained to us.

The Council’s response to my enquiries

30. The Council confirmed Ms X is assessed as needing three bedrooms but she was in a suitable temporary accommodation for her needs with three rooms to use.
31. The Council said over the previous two years, it had received reports from Ms X of damp and mould. It said Ms X had confirmed she had been drying her clothes inside without opening the windows. She had been reminded to appropriately manage the condensation and ventilate the property properly.
32. In December 2021, an inspection noted issues with condensation, but it was not considered severe.
33. In February 2022, the Council said the property owner had visited and left a dehumidifier with Ms X to manage the internal humidity. They had a discussion with a contractor about carrying out decorating work nearer the summer.
34. In January 2023, a surveyor attended and confirmed there were no structural issues, and Ms X had continued to dry clothes inside without ventilating the property. The Council said the property owner was going to install a ventilation system and other remedial works were currently being scheduled.
35. Whilst Ms X says she has health issues which the Council is aware of, the Council said she has not sent medical evidence for it to assess in relation to her banding.
36. In response to my draft decision, Ms X disputed she dried clothes inside. She said she only dried towels indoors. She said the Council has now offered to treat the damp in the property, but her main concerns remained that the property is overcrowded and is too small for her family to live comfortably in.

Analysis

Suitable accommodation

37. The Council is responsible for ensuring that homeless households live in safe and suitable accommodation and should be free from issues of disrepair such as damp and mould. I recognise the Council said there had been ongoing issues over the years, interim measures had been put in place, and it had assessed Ms X contributed to it.
38. However, when Ms X raised concerns again in her formal complaint in August 2022, I note the Council only addressed her concerns about the overcrowding. This should have prompted the Council to consider if it needed to act to ensure the property remained suitable. I have not seen evidence the Council made another assessment at the time about the damp or that works had been carried out by then.
39. Ms X explained in her formal complaint why she felt her accommodation was not suitable for her family. The suitability of temporary accommodation is the Council’s continuing duty, should be kept under review, and can be raised at any time. Whilst the Council said the property was suitable in its Stage One response, it did not conduct a formal suitability review. It did not tell Ms X she could ask for a review of this decision under s202 of the Housing Act within 21 days. This was fault.
40. This caused injustice to Ms X as it denied her statutory right to a review of the Council’s decision about the suitability of her temporary accommodation.

Priority banding

41. Ms X also asked the Council to change her to a higher band. This is a separate consideration under the Council’s allocations policy.
42. The Ombudsman cannot question the merits of a decision made without fault. This means we cannot find fault with a banding decision just because the complainant disagrees with it. We look at the Council’s decision making process. We consider whether it took into account all the relevant information and followed its allocations policy.
43. The Council reviewed this in its Stage Two response. It looked at whether Ms X met the statutory definition of overcrowding. It outlined the legislation and how this applied to her current situation, and decided she did not qualify for priority as the overcrowding was not severe. The Council’s allocations policy said that lacking one bedroom did not attract additional priority. I do not find fault with the Council’s decision here as it considered relevant information and made it in line with its allocations policy.
44. I note the Council did not address Ms X’s concerns about disrepair when considering her banding. Its policy says priority can be awarded related to unsatisfactory housing conditions. I have not seen evidence the Council took a view on the damp issues and considered if it affected her banding. This is fault. The Council should have demonstrated it had considered the damp aspect in relation to the condition of the property in its decision making. However, on the balance of probabilities, even if it had considered this, I cannot say it was likely to have met the high threshold to change Ms X’s banding. There is no injustice as the outcome would have been the same.
45. In my draft decision I recommended the Council should pay Ms X £150 in recognition of her avoidable frustration and her time and trouble. It sent me evidence it had done this. I have therefore removed this recommendation before issuing my final decision as it is already complete.

Back to top

Agreed action

46. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
47. Within one month of the final decision:
• Apologise to Ms X for not conducting a formal suitability review and not informing her of her right to review; and
• Begin a statutory s202 review of the suitability of Ms X’s temporary accommodation.
48. Within two months of the final decision:
• Send written reminders to relevant staff that homeless applicants in temporary accommodation can ask for a suitability review at any time, and after its decision, to inform the applicant about their right of review. It should also amend any internal policy or process documents and update any template letters accordingly; and
• Send written reminders to relevant staff that when considering housing band reviews where damp and mould are a factor, of the need to consider the condition of the applicant’s existing property in its decision making.
49. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

50. I found fault with the Council which caused injustice to Ms X. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman