Summary: Mr C complained about the Council’s response to his homeless application and the suitability of the accommodation provided. Mr C said he has been living in unsuitable conditions for longer than necessary which affected his well-being and resulted in avoidable upset and costs. We have found fault by the Council but consider the agreed action of an apology and symbolic payment with service improvements already made by the Council provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains about the way the Council responded to his homeless application made in January 2023. Mr C says the Council delayed providing interim accommodation, provided unsuitable interim accommodation and delayed moving him to suitable accommodation after the outcome of a review. Mr C says his current accommodation remains unsuitable.
2. Mr C says because of the Council's fault, he has been living in unsuitable conditions for longer than necessary which has affected his well-being. Mr C also says he has suffered avoidable upset and unnecessary costs.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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

6. I read the papers provided by Mr C and discussed the complaint with him. I have also considered information from the Council. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

7. There are two types of accommodation councils provide to certain homeless applicants: interim accommodation and temporary accommodation.
8. A council must secure accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need. This is called interim accommodation. (Housing Act 1996, section 188)
9. If, having made inquiries, the council is not satisfied an applicant is homeless, eligible, and in priority need, it will have no further accommodation duty. If a council is satisfied an applicant is unintentionally homeless, eligible for assistance, and has a priority need the council has a duty to secure that accommodation is available for their occupation. This is called the main housing duty. The accommodation a council provides until it can end this duty is called temporary accommodation. (Housing Act 1996, section 193)
10. If a council ends its interim accommodation duty, but then goes on to accept the main housing duty, it still has a duty to provide temporary accommodation.
11. Interim and temporary accommodation can be the same physical property. What changes is the legal duty under which a council provides it. This is important because there is a statutory right to review the suitability of temporary accommodation. This then carries a right of appeal to county court on a point of law. There is no statutory right to review the suitability of interim accommodation.
12. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of their household. This duty applies to interim and temporary accommodation. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)
13. Councils must assess whether accommodation is suitable for each household individually. Whether accommodation is suitable will depend on the relevant needs, requirements and circumstances of the homeless person and their household. (Homelessness Code of Guidance 17.4 & 17.9)
14. The duty to provide suitable accommodation is immediate, non-deferrable, and unqualified. Elkundi, R (On the Application Of) v Birmingham City Council [2022] EWCA Civ 601

What happened

15. The following is a summary of key events. It does not include everything that happened.
16. Mr C contacted the Council in mid-January 2023 to say he was homeless after being asked to leave is mother’s home. The Council spoke with Mr C and his mother to establish his current circumstances and he confirmed he was able to stay with his sister that night while the Council looked into other options for him. Mr C advised he needed ground floor accommodation as near to his sister as possible as she was his carer. The Council sourced hostel accommodation which Mr C declined.
17. Mr C contacted the Council again towards the end of January and the Council made a referral for supported accommodation and a referral to adult safeguarding. Mr C stated he was now sleeping in his car but did not want the interim accommodation available as he did not want to share a bathroom due to his medical conditions. The Council did not consider Mr C had provided medical evidence of such a requirement and confirmed hostel accommodation remained available in the interim which Mr C initially declined. The Council confirmed with the hostel that a ground floor room was available and after speaking with his social worker Mr C subsequently accepted this offer. However, Mr C contacted the Council to say when he arrived at the property the room was on the first floor and climbing the stairs led to being admitted to hospital. This is regrettable but I note the Council had sought a ground floor room.
18. The Council provided alternative hostel accommodation to Mr C the following day and moved him to a ground floor room. The Council remained of its view there was no medical or other reason to consider hostel accommodation was unsuitable for Mr C at this time. The Council has noted Mr C’s social worker encouraged him to accept the hostel accommodation which was preferable to sleeping in his car and raised no concerns about it not meeting his needs.
19. The Council says the case was closed at this point. The Council has not been able to provide a copy of any correspondence with Mr C accepting or ending its duty here.
20. Mr C contacted the Council in early March about the suitability of his accommodation. The Council sought additional information which was provided towards the end of March. The Council visited the accommodation in early April. This confirmed the room was on the ground floor but there were three steps up to the property. The landlord advised there were concerns over Mr C’s use of the room and breaches of his agreement. Mr C also sought a suitability review of this accommodation via his solicitor in early April.
21. The Council considered the accommodation appeared to be suitable for Mr C but due to his concerns the Council made enquiries into alternative accommodation. Mr C viewed and accepted alternative accommodation identified by the Council in mid-April. This was supported accommodation.
22. The Council wrote to Mr C on 23 April to say as he had accepted alternative accommodation the grounds for his previous suitability request were redundant and so were rejected. This letter also set out the Council’s decision that Mr C had sought assistance with a general housing problem rather than seeking accommodation or assistance in obtaining accommodation. The letter set out Mr C’s right to seek a review of this decision. This letter is not clear as it conflates the issues of suitability of accommodation and Mr C’s homeless situation. The letter does not set out the reasons for the Council’s decisions whether Mr C was homeless, eligible for assistance and had a priority need.
23. The Council accepted a new homeless application in early August. Mr C reported various issues with his accommodation during August which the Council raised with the provider. Mr C explained in September he had left the accommodation due to mould and repair issues and was temporarily staying at his sister’s property.
24. The Council accepted a prevention duty in mid-September and wrote to Mr C setting out his right to review.
25. The Council subsequently accepted a relief duty at the start of October and wrote to Mr C setting out its decision and right of review. This letter concluded the Council had reason to believe Mr C may have a priority need due to his medical conditions.
26. The Council wrote to Mr C on 24 November to end its relief duty as Mr C had accepted a housing association property which the Council considered to be suitable and was available for at least 6 months. The Council’s letter set out Mr C’s right to seek a review of this decision. At the time of writing Mr C has not sought a review of this decision or the suitability of the accommodation.

My consideration

27. Based on the information provided, it is not clear why the Council did not consider the relief duty applied when Mr C first presented in January 2023. 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 their household) and which it would be reasonable for them to continue to live in (section 175 of the Act). This would appear to be the case when Mr C contacted the Council in January as the Council confirmed the permission for him to stay with his family had been withdrawn.
28. Where the local housing authority is satisfied that an applicant is homeless (rather than just threatened with homelessness) and eligible for assistance, it is subject to a duty (unless they make a local connection referral) to take reasonable steps to help the applicant secure accommodation that will be available for at least six months. The relief duty arises regardless of whether the applicant may be in priority need although it does not extend to the authority actually having to secure accommodation (although it may choose to do so).
29. The section 188 duty to arrange interim accommodation during the relief stage is triggered as soon as the authority has reason to believe that an applicant may be eligible, homeless and in priority need. This is a low threshold. It is an absolute duty and the authority cannot postpone it due to a lack of available resources.
30. Mr C provided some initial information about his medical needs which suggested he may have a priority need as he was vulnerable due to medical reasons. On balance, I consider the Council owed the relief duty when Mr C first approached the Council in January 2023 and had reason to believe he may also be in priority need given the medical information provided at the time. At that point the Council should have written to Mr C with this decision setting out his right to request a review and offered him suitable interim accommodation and made a proper record if he rejected this offer. This did not happen which is fault.
31. There is a legal duty for authorities to ensure the accommodation is “suitable” for the applicant and household members (section 206). In deciding whether accommodation is suitable, authorities must have regard to the slum clearance, overcrowding and HMO provisions of the Housing Act 1985 and Parts 1 to 4 of the Housing Act 2004 (section 210). Authorities must also have regard to the following factors.

• The space and arrangement of the accommodation
• The state of repair and condition of the accommodation – as an absolute minimum it must be free of Category 1 hazards
• Location – including ease of access to established employment, schools and specialist health care
• The specific needs of the applicant and any household members due to a medical condition or disability

32. Suitable accommodation must be free from issues of disrepair such as damp and mould. Damp and mould growth is one of 29 hazards identified in the Housing Act 2004.
33. The Council did not complete a suitability assessment before offering the initial interim accommodation to Mr C or when he was moved to another property the following day. The Council did not visit the alternative property provided to investigate Mr C’s concerns until April when it accepted the conditions were not ideal. Although there is no clear decision at that time whether the property was suitable the Council decided to provide further alternative accommodation. Although Mr C viewed and accepted the property again there is no evidence of a suitability assessment.
34. We will not usually investigate complaints about temporary accommodation where the complainant has a statutory right of review and subsequent appeal to court on a point of law. However, I have considered the period from mid-January 2023 to mid-September 2023 due to the absence of clear communication with Mr C about the Council’s housing decisions and under what legal duty any accommodation was being provided (until its letter in mid-September accepting a prevention duty and setting out his right to review).
35. We also recognise the reality that a shortage of available accommodation means councils are not always able to fulfil their “immediate, non-deferrable, and unqualified” duty to provide suitable temporary accommodation. In these cases, we expect to see evidence of councils making efforts to fulfil their duties, at both the individual and strategic level. We also expect to see councils considering whether there are steps that can be taken to reduce the impact of the unsuitable accommodation on the household.
36. Although a finely balanced decision, I consider there is a degree of uncertainty about the suitability of the accommodation provided to Mr C due to a lack of recorded suitability assessments. This was compounded by the absence of clear communication about the Council’s housing decisions which I consider also introduced an element of avoidable delay into the process. I am satisfied this will have caused Mr C frustration and uncertainty about whether he could have received more suitable accommodation sooner.
37. In reaching my view on a suitable remedy I have noted Mr C was offered or provided with accommodation throughout and the Council provided alternative accommodation to try and improve the situation for Mr C when he raised issues. I also note Mr C received legal assistance during this period. I have also considered the context of Mr C’s vulnerability and the length of time involved in reaching my view on a suitable remedy.
38. In response to an earlier draft of this statement, the Council confirmed it had reviewed its procedures and provided training to staff. The Council also confirmed it had introduced case audits to ensure all relevant documentation had been issued to an applicant. The Council has also extended the use of its template checklist for temporary accommodation to the use of interim accommodation. The Ombudsman would welcome this action.

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Agreed action

39. The Council also agreed to take the following action within one month of my final decision to remedy the injustice to Mr C:
1. write to apologise to Mr C for the fault identified in the way it dealt with his homelessness application; and
2. make a symbolic payment of £400 to him to recognise his avoidable frustration and uncertainty.
40. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I have completed my investigation as I have found fault by the Council but consider the agreed action above provides a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman