Summary: On behalf of Mrs X, Mrs J complained the Council did not explore all housing options for Mrs X’s family, despite knowing their accommodation was negatively affecting their health and wellbeing. Mrs J also said the Council did not address a safeguarding concern, or reports of mould and damp inside Mrs X’s home. She also said the Council communicated poorly. We have found the Council at fault for not considering the full breadth of its powers and responsibilities when responding to concerns around safeguarding and the condition of Mrs X’s home. We have also found it at fault for its communication. We have made recommendations to remedy the injustice this caused. We have found the Council at fault for not considering its discretion to pursue direct lets for Mrs X at the earliest opportunity, and for not properly recording its decision-making. However, this did not cause Mrs X an injustice.

The complaint

1. On behalf of Mrs X, Mrs J complained:
1. The Council did not explore all housing options for Mrs X’s family, despite being aware of the impact of the accommodation on the family for more than two years.
2. The Council did not address a safeguarding concern raised about the family’s circumstances.
3. The Council did not address reports of damp and mould inside Mrs X’s property.
4. The Council failed to effectively communicate with the family or advocates about these concerns.
2. Mrs J said because of the Council’s lack of action, Mrs X’s family resided in overcrowded, dangerous accommodation, which was unsuitable for their needs. In particular, Mrs X’s child (referred to in this statement as Child Y) has significant disabilities affecting their mobility and independence. Mrs J said the property could not accommodate medical equipment Child Y needed.

Back to top

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. 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)
5. 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.
6. 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

7. I discussed the complaint with Mrs J and considered information she and Mrs X provided.
8. I considered information the Council provided about the complaint.
9. Mrs J, Mrs X and the Council were able to comment on a draft version of this decision. I considered any comments I received before making a final decision.

Back to top

What I have and have not investigated

10. Mrs J told the Ombudsman the Council had been aware of the matters Mrs X complained of for several years. The restriction set out in paragraph 4 applies. I have not identified a good reason Mrs X could not have brought a complaint to us sooner and so have not investigated any matters arising before March 2022. I have exercised discretion to consider matters from March 2022 onwards, as events from this period are directly relevant to Mrs X’s claimed injustice.

Back to top

Relevant legislation, guidance and policy

Housing allocations

11. 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))
12. The Council publishes its allocations scheme on its website. The Council operates a choice-based lettings scheme. The published scheme prioritises applicants into three bands, with Band One priority being the highest. Relevant to this complaint, Band One priority includes:

“People whose current housing conditions are having a seriously adverse effect on the physical or mental health of either the applicant or a member of their household.”

13. The Council’s allocations scheme also says the Council can, in exceptional circumstances, make an offer of accommodation outside of the choice-based lettings scheme, by way of a direct let. The scheme is not prescriptive in when this should happen and the Council has discretion in how to apply this policy.

Safeguarding

14. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
15. A child is in need if:
• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.
16. Under the Children Act 1989, councils are required to provide services for children in need for the purposes of safeguarding and promoting their welfare. Where a referral is accepted under section 17 the council should lead a multi-agency assessment and compete it within 45 working days. Where the council’s children’s social care decides to provide services, it should develop a multiagency child in need plan which sets out which organisations and agencies will provide which services to the child and family. The plan must be reviewed within three months of the start of the child in need plan and further reviews should take place at least every six months thereafter. (Working Together to Safeguard Children)
17. I refer to the Council’s safeguarding duties as section 17 duties in this statement.

Housing Health & Safety Rating System

18. Councils have powers under the Housing Health and Safety Rating System (introduced by the Housing Act 2004, Part 1) to take enforcement action against landlords where the council has identified a hazard which puts the health and safety of the tenant at risk. When a council has reason to believe there is serious risk to the health and safety of an occupier it must inspect the property.
19. The Housing Health and Safety Rating System (HHSRS) is a tool used to help councils identify and protect against potential risks and hazards to health and safety.
20. If the assessment finds a category one hazard, councils have a duty to serve a notice on the landlord to address the hazard. If the assessment finds a category two hazard, councils have discretion about whether to take formal action.

Back to top

What I found

Summary of key events

21. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
22. The Council said its Children’s Occupational Therapy service received an occupational therapy (OT) assessment of Mrs X’s property in March 2022:
1. The report said Mrs X’s family lived in a two-bed property. It said Child Y shared a room with their parents. It described the sleeping arrangements for the whole family, including other siblings who shared a room.
2. It described Child Y’s medical conditions. It said Child Y was wheelchair dependent and relied on Mr and Mrs X to move around inside the property. It said Mr and Mrs X carried Child Y up and down the stairs, as well as transferring Child Y in and out of the bath and bed. The report confirmed Mr and Mrs X carried out all Child Y’s medical and care needs.
3. The report recommended the family be rehoused to a four-bedroom, fully adapted property. It said this would allow Child Y to have access to the equipment they needed. The report also said the property would need to be wheelchair-accessible, with level access. It also specified the property should accommodate other adaptations and outdoor space.
23. The Council said it awarded Mrs X Band One medical priority and updated her housing need based on the OT’s report.
24. In May 2022, Mrs X’s Member of Parliament (MP) contacted the Council. They said it was unclear whether Mrs X had a live housing application and what priority band she was in. The Council responded, confirming Mrs X’s priority and identified property needs. It said Mrs X’s priority applied as of March 2022, when the Council received the OT report. The Council said Mrs X had placed no bids for other properties in that time. It encouraged regular bidding. It also set out other housing options.
25. In May 2022, Mrs J wrote to the Council to express concerns about Child Y:
1. Mrs J said she had been trying to help the family for a long time. She said she had contacted the Council multiple times, but the situation had not changed.
2. Mrs J expressed concern about the property and asked the Council to contact Mrs X. Mrs J said English was not Mrs X’s first language, which was compounding her difficulties.
26. In October 2022, Mrs X’s MP contacted the Council again. They sought an update, saying Mrs X was bidding, but not receiving offers of accommodation. In response, the Council said Mrs X had placed no bids. It said there was a lack of suitable properties more generally. It explained it did not offer un-adapted properties to people that needed adapted properties. The Council said where it identified that a property could be adapted, it advertised the property as an “adapt to let” property. It said this allowed households needing adaptations to apply. Once the Council identified a suitable household, it could then adapt the property to suit their needs. It again encouraged regular bidding.
27. In November 2022, Mrs X wrote to the Council:
1. Mrs X set out Child Y’s disabilities and explained they were trying to move to another property, as theirs was not suitable and could not be adapted. Mrs X said since being on the register, no suitable properties had become available. She said she could only bid on four-bedroom, fully adapted properties, but there were few of this type available.
2. Mrs X asked if the family could also bid on properties that were partially adapted, or that could be adapted. Mrs X said she was worried there would be an accident from carrying Child Y up and down the stairs, and that circumstances were difficult. She also said there was no space for Child Y’s equipment.
28. In February 2023, a councillor made an enquiry on Mrs X’s behalf. The councillor asked how likely it was for the family to be rehoused, given Child Y’s need for space. The Council responded directly to Mrs X. It largely repeated the information it provided in response to Mrs X’s MP. It noted no four-bedroom properties had been available since the Council updated Mrs X’s priority in June 2022.
29. Mrs J said she visited Mrs X in June 2023. Later that month, Mrs J wrote to the Council:
1. Mrs J set out the details of Mrs X and Child Y’s case. Mrs J detailed her involvement as a specialist occupational therapist, working for an external organisation supporting the family. Mrs J said Child Y had significant disabilities. She said the family had been living in an unsafe and unsuitable property for a long time. Mrs J said she and Mrs X had been in contact with the Council, local councillors and Members of Parliament (MPs), but the situation had not improved.
2. Mrs J said she had visited Mrs X at home recently. She said conditions in the property were unsafe and overcrowded. She highlighted the presence of mould, which impacted Child Y. She said Mrs X and her husband were having to move Child Y around the house themselves, risking injury. Mrs J again highlighted how the lack of space meant Child Y could not access specialist equipment necessary to help with their long-term health. Mrs J said the situation represented a safeguarding concern in her professional opinion.
3. Mrs J said the family had high priority on the housing register, but they required a four-bedroom, fully adapted property. Mrs J said Mrs X and her family were prepared to move to any area, or move to a property that could potentially be adapted. Mrs J said she had raised this possibility with the Council in the past, but nothing had happened. Mrs J asked the Council why it was not proactively trying to find a suitable property that could be adapted.
4. Mrs J acknowledged the lack of available housing, but said the situation was unsafe and could not continue. She asked the Council to act.
30. The Council said it approved the household for a direct letting, in line with its allocations policy. It sought information from its OT services internally as part of this.
31. In August 2023, Mrs J complained to the Council on Mrs X’s behalf. The Council said it received the information it needed from its OT service, allowing it to approve Mrs X’s household for a direct letting.
32. The Council issued its final complaint response on 1 September 2023:
1. The Council said Mrs X had been awarded Band One priority, the highest priority possible, after it received the OT report in March 2022. The Council said Mrs X had a four-bed need and was able to bid on wheelchair accessible accommodation.
2. The Council set out the significant demand for housing in its area. The Council said there were 127 families seeking wheelchair accessible accommodation, with 16 households requiring four-bed accommodation. It said 10 of these households were also in Band One, with earlier registration dates than Mrs X. The Council said it had let three four-bedroom wheelchair accessible properties in the previous 18 months.
3. Due to the high demand for this type of accommodation, the Council said it was looking at properties that might already be partly adapted, or that may be suitable for adaptation. The Council said if it identified a property that could be adapted to meet Mrs X’s household’s needs, it would make a direct offer of accommodation. It said it could not provide any timescales for when this might happen.
4. The Council recognised that Mrs X’s household was living in unsuitable accommodation. It said it was unfortunate it could not offer Mrs X a more suitable home, but its resources were limited. It said it allocated available properties based on priority need. It said it had correctly assessed Mrs X’s circumstances and needs, in accordance with its housing allocations scheme.
33. Mrs J brought Mrs X’s complaint to the Ombudsman.
34. In January 2024, the Council said it received a further OT letter, confirming Child Y needed further adaptations. The Council said it had already approved the adaptations in principle.
35. Later in January 2024, the Council said it identified a suitable property that it could adapt. It inspected the property in February 2024 and offered it to Mrs X, who accepted the property. The Council said it needed to complete repairs in the property to bring it up to the required standard before the family could move in.

Analysis

Safeguarding concerns

36. Mrs J told the Council about the effect of the accommodation on the family’s health. Mrs J said Child Y could not access specialist equipment to help with their physiotherapy and long-term health, due to the lack of space. Mrs J also said Mrs X and Mr X were at risk, due to transferring Child Y around the house. Further, the lack of space led Mrs J to have concerns about privacy and dignity for the household. Mrs J told me the Council did not respond to the safeguarding concern she raised.
37. I asked the Council how it had responded to Mrs J’s safeguarding concern. The Council said it told Mrs J it had assigned the correct priority to Mrs X’s household. It said it was seeking to increase its supply of suitable accommodation. The Council later provided the Ombudsman with evidence its Children’s Occupational Therapy (OT) services had been involved with Mrs X and Child Y in 2022 and 2023. Records provided showed the Council visited the property and advised on ways to manage risks, while noting the lack of space and challenges this posed.
38. I understand the Council’s OT visits took place in the context of exercising its Section 17 powers. I am therefore satisfied, on a balance of probabilities, that the Council did have regard for these duties generally at the time.
39. However, I have found the Council at fault for its response to Mrs J’s specific report. Mrs J raised concerns about the welfare of a vulnerable child and their parents, who were delivering care and support needs in an unsuitable environment. Mrs J’s concerns also extended to Child Y’s siblings. Inherent in Mrs J’s concerns were issues of safety, wellbeing, dignity and privacy. The Council did not address these points, responding to Mrs J’s concerns solely as a housing matter.
40. This caused Mrs X and Child Y an injustice. Had the Council properly addressed Mrs J’s concern, we do not know if it could have acted to assist the family in obtaining additional support sooner, thereby reducing or mitigating their hardship. This uncertainty is an injustice in itself.

Reports of damp and mould

41. Mrs J also highlighted the presence of damp and mould at Mrs X’s home in June 2023. The Council did not clearly address this concern in its response. Mrs J told me the mould and damp problems had not been addressed.
42. Responding to my enquiries, the Council said it told Mrs J that Mrs X should first contact her landlord about the damp and mould. It said it would then visit if the landlord did not resolve the problem. It said it never received any further reports, so it did not visit Mrs X. The Council provided no contemporaneous records to evidence it offered this advice.
43. The Council later told me Mrs X’s landlord received a report from Mrs X in November 2023, following which works were carried out. It said Mrs X therefore knew works would be completed when Mrs J raised concerns with the Council.
44. The Council is incorrect about the timing of these reports: records confirm Mrs J raised concerns with the Council in June 2023. The Council was therefore contacted first and would have been able to intervene sooner.
45. The Council encouraging direct engagement between tenant and landlord may be appropriate in some cases. The Council placed on the onus on Mrs X to act; however, the Council can consider inspecting a property where the details of a report call for this. Where it has reason to believe the condition of the property poses a particular risk to the occupants, it should consider inspecting.
46. Further, Mrs J offered a clear, professional view that the property’s condition was affecting the family and Child Y specifically, given their existing health conditions. This was particularly of note, given mould and damp are less common occurrences in summer months. I have seen no evidence the Council considered this.
47. I have found the Council at fault for its response to Mrs J’s reports. The Council did not consider whether the specific factors of this case warranted its intervention and missed an opportunity to act to potentially improve the conditions inside the home, increasing the family’s overall wellbeing.
48. Paragraphs 19-20 detail the possible outcomes from an inspection. Any hazards identified inside a property could be category one or category two, depending on the authority’s professional judgment. The Council would have to act, or have discretion on what action to take, depending on the category.
49. I cannot say what the Council would have found, or how it would have categorised any existing hazards, had it inspected. This causes uncertainty for Mrs X and other members of her household, who do not know whether the conditions in the home would be considered a risk to their health. There is also uncertainty as to whether the Council’s intervention could have led to conditions inside the home improving. This uncertainty is an injustice in itself.

Priority and allocations

50. The Council placed Mrs X’s application into priority Band One in March 2022, after it received an OT report that set out the impact of the property. The Council awarded this priority under the criterion set out in paragraph 12. The Council applied its allocations policy correctly when awarding this priority to Mrs X. I have not found the Council at fault for how it prioritised Mrs X’s application.
51. The Council received numerous enquiries and complaints about Mrs X and Child Y’s housing conditions in 2022 and 2023, from MPs, Councillors, Mrs J, and Mrs X. In August 2023, the Council decided it could consider Mrs X for a direct let. The Council was then able to identify a suitable property for Mrs X around six months after this.
52. The Council approving Mrs X for direct lets was appropriate. The circumstances in which it agreed a direct let, in August 2023, were largely the same as they had been since March 2022, highlighted multiple times through complaints, enquiries and professional reports. The repeat nature of these concerns suggests it was unlikely Mrs X’s household would secure a suitable property through general bidding, without intervention from the Council. It also suggests the Council potentially had the information it needed to take this decision earlier than August 2023.
53. The Council told the Ombudsman it could not consider direct lets for households immediately, as to do so would disadvantage other households waiting for properties in similar circumstances. The Council told me it decided to use its discretion specifically because of Mrs J’s intervention in June 2023, also noting Mrs X had been on the housing register for more than a year at that point without success, despite having Band One priority.
54. The Council provided no evidence to show how it considered this matter before June 2023. I have found the Council at fault for not clearly turning its mind to the question sooner, considering the multiple reports it received, and for not properly documenting its decision-making.
55. However, this did not cause Mrs X an injustice. I note the broad discretion the Council has to make this decision and accept the rationale put forward. On a balance of probabilities, I believe it is likely the Council’s decision, properly recorded, would have been the same before June 2023. The submissions and enquiries made on Mrs X’s behalf prior to June 2023 provided little new or compelling evidence about Mrs X’s circumstances, beyond the information the Council had already obtained. It is likely the Council would have considered it premature to explore direct lets for Mrs X before June 2023, in view of the waiting times for other applicants in Band One. Mrs J’s June 2023 intervention provided clear and compelling professional testimony about the urgency of the family’s circumstances. I accept this intervention, combined with the length of time Mrs X had been on the housing register, compelled the Council to act.

Communication

56. The Council responded to complaints and member enquiries fully. The Council did not always respond to ad-hoc enquiries in a timely way. It also did not clearly respond to Mrs J’s safeguarding enquiry. Further, Mrs J asked the Council to contact Mrs X and made a specific point about Mrs X having difficulty engaging with the Council, due to language barriers. I have seen no evidence the Council followed up on this contact, or considered how it could address communication barriers in its subsequent actions.
57. I have found the Council at fault for its overall communication. This caused avoidable frustration and uncertainty for Mrs X and Mrs J.

Back to top

Agreed action

58. The Ombudsman’s Guidance on Remedies sets out the factors we should consider when recommending remedies for injustice arising from a Council’s faults. When recommending financial remedies in recognition of avoidable distress, it says:
1. We must consider the complainant’s individual circumstances, which would include:
1. The severity of the distress.
2. The length of time involved.
3. The number of people affected.
4. Whether the people affected are vulnerable and more adversely affected.
5. Any relevant professional opinion.
2. Where appropriate, we will normally recommend a remedy payment of up to £500 in recognition of distress. We can recommend higher remedy payments if we decide injustice was severe, prolonged, or to account for the vulnerability of those affected.
3. “Uncertainty” is a form of distress.
59. I have had regard to the above when making the following recommendations.
60. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Mrs X for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. If Mrs X’s household has not yet moved to new accommodation, offer Mrs X an inspection of her home against the HHSRS framework, to identify whether there are any existing hazards. If Mrs X requests an inspection, the Council should ensure any hazards are categorised in line with the HHSRS framework. It should ensure it shares its findings with Mrs X and explains what action it intends to take, where required.
3. Consider Mrs J’s safeguarding concerns again, in accordance with its section 17 duties and accounting for any actions already taken. The Council should follow the timescales set out in guidance and ensure it shares its findings and any proposed actions with Mrs X and those authorised to act on the family’s behalf.
4. Pay Mrs X £650 in recognition of the avoidable distress caused. This is broken down as follows:
1. £150 for the avoidable uncertainty and frustration caused by the Council’s inconsistent communication.
2. £500 for the cumulative avoidable uncertainty arising from the Council failing to address Mrs J’s safeguarding concerns and failing to consider whether it should carry out an HHSRS inspection of Mrs X’s property.
3. In recommending this payment, I have considered that Child Y is significantly vulnerable. I have considered the injustice identified also affected Mr and Mrs X, as well as Child Y’s siblings. I have noted the length of time and multiple concerns raised since 2022. I have also noted Mrs J’s opinion as a professional working with Mrs X and Child Y.
61. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

62. I have completed my investigation with a finding of fault, causing injustice. I have made recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman