Summary: Miss X complained the Council has provided temporary accommodation that is unsuitable for her and her family. We found fault by the Council because it did not consider its legal duty to find Miss X and her family suitable temporary accommodation, and they remain in unsuitable accommodation. The Council agreed to apologise and make a payment to remedy the injustice to Miss X.

The complaint

1. Miss X complained the Council has provided temporary accommodation which is unsuitable for her and her family. Miss X says the situation is causing distress to her family and affecting their physical and mental health.

Back to top

The Ombudsman’s role and powers

2. 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)
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. 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

What I have and have not investigated

5. I have investigated Miss X’s concerns about the suitability of her temporary accommodation from March 2023 onwards. I have not investigated Miss X concerns about the way the Council dealt with her concerns about the suitability of her temporary accommodation prior to March 2023. This is because matters before March 2023 are late. It was reasonable to expect Miss X to have raised concerns about these matters sooner and I am not aware of any grounds to exercise discretion and investigate these matters now.

Back to top

How I considered this complaint

6. As part of my investigation I:
• discusses the complaint with Miss X and considered her complaint;
• made enquiries of the Council and considered its response;
• had regard to the relevant legislation and guidance;
• had regard to the Ombudsman’s guidacne on remedies; and
• set out my initial thoughts on the complaint in a draft decision statement and invited Miss X and the Council to comment.

Back to top

What I found

7. 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))
8. Most Councils’ allocations schemes use either a points or banding system to prioritise between applicants. Section 166A(3) of the Housing Act 1993 sets out that councils 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.

9. The Council operates a choice-based lettings scheme which enables housing applicants to bid for available properties which it advertises. The Council places housing applicants into one of four bands according to their housing need. Band 1 is the highest priority and Band 4 is the lowest.

Temporary Accommodation

10. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities (the Code) sets out councils’ powers and duties to people who are homeless or threatened with homelessness. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need, it has a duty to secure that accommodation is available for their occupation. This is called the main housing duty. (Housing Act 1996, section 193)
11. Temporary accommodation is accommodation provided to homeless applicants as part of a council’s main homelessness duty.
12. 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)
13. Council’s must assess whether accommodation is suitable for each household individually. Whether accommodation is suitable will depend on the relevant needs and circumstances of the homeless person and their household. (Homelessness Code of Guidance, 17.4 and 17.9)
14. As the duty to provide suitable accommodation is a continuing obligation, councils must keep the issue of suitability of accommodation under review. If there is a change of circumstances the council must reconsider whether the accommodation remains suitable.
15. 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 the right to ask for a review of the suitability of temporary accommodation provided under the main housing duty. We refer to these rights as s202 reviews. (Housing Act 1996, s202)
16. 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)
17. We do not consider that simply adding an applicant to a ‘Transfer List’ and waiting for a suitable property to become available is sufficient for a council to demonstrate how it is meeting its duty to provide suitable temporary accommodation. This is in line with the court’s decision that putting applicants who are owed the section 193(2) duty, and who are in unsuitable accommodation, on a waiting list for temporary accommodation is not a lawful means of fulfilling the unqualified and immediate duty to secure suitable accommodation for their occupation.” (Elkundi & Ors, R (On the Application Of) v Birmingham City Council [2021] EWHC 1024 (Admin) 308)

What happened

18. The following is a summary of key events. It does not include everything that has happened.
19. Miss X made a homelessness application for her and her children. The Council placed them in interim accommodation.
20. The Council accepted Miss X and her children were owed the main homelessness duty.
21. The Council placed Miss X and her children in a temporary accommodation. This was a three-bedroom house located in another local authority.
22. Miss X told the Council her temporary accommodation was not suitable for her needs. She asked it to complete a Section 202 review. Miss X said it was unsuitable because:
• her children had long commutes to get to their schools in the Council’s area;
• she has caring responsibilities for someone in the Council’s area;
• her son, Q, has behaviour challenges; and
• she suffers from depression and anxiety. Her mental health is being negatively impacted by the stress of the long commutes to her children’s schools.
23. The Council completed the Section 202 review. It concluded Miss X’s temporary accommodation was suitable for the needs of her and her family. The Council’s decision told Miss X she could appeal the decision on a point of law to the County Court within 21 days. Miss X did not appeal the decision.
24. In March 2023 Miss X asked the Council to review the suitability of her temporary accommodation again. It said it was too late to do so but it’s Duty Placement Team would conduct a non-statutory review of Miss X’s accommodation. There is no evidence demonstrating it did so.
25. In April Miss X was offered a three-bedroom property (property Y) within the Council’s boundaries. However, the Council then offered Miss X a four -bedroom property (property Z) in a similar location that was more suitable for her needs. Miss X said she would accept the four-bedroom property.
26. Property Z is owned by a private landlord who agreed to let it to the Council for it to use as temporary accommodation. The property required repairs which needed to be completed before it could be let to Miss X.
27. The repair works on Property Z took longer than anticipated. Once completed the Council asked for the works to be checked by its voids department. This also took longer than expected.
28. During this time Miss X chased up progress on the works, but she received little information.
29. In late summer the Council told Miss X it would not be able to offer her property Z because the landlord did not want to let the property.
30. Also, during the summer Miss X submitted medical information supporting her request for a review. The information was assessed by the Council’s medical adviser. The outcome of the assessment was that Miss X had a moderate need to move and her housing application was awarded priority band 3 on medical grounds. However, Miss X was already entitled to priority band 2 because of her homelessness and so, her application remained in band 2.
31. The medical adviser also made recommendations that any future housing for Miss X allowed for her son Q to have his own bedroom, was less than a 30-minute commute to his school, was not above the first floor with or without a lift and had access to a garden or nearby park.
32. In October Miss X complained to the Council about its handling of her case.
33. The Council’s response explained why property Z was not let to Miss X and apologised for the delays in completing the repairs to the property. It also said that property Y would not have been suitable for Q, following the outcome of the medical assessment.
34. Also, in October Miss X reported problems with mice in her temporary accommodation. The Council said it would visit. Miss X explained she could only be home at certain times because of her lengthy daily commute. The Council’s pest control team visited in November, but Miss X was not in. No details of any other visits have been provided.
35. In November Miss X submitted new medical information. The Council’s medical assessor considered the information and said she had a moderate need to move on medical grounds and said she was entitled to priority band 3. It recommended that future housing was not overcrowded and was near to the schools attended by Miss X’s children and her support network.
36. Also, in November Miss X escalated her complaint to stage two. She said her initial complaint was considered by the person dealing with her case and so it was not independently investigated.
37. In December the Council replied to Miss X’s complaint. The response said:
• stage one complaints are considered by the service complained about. However, it accepted it might have been better for another officer to have considered her complaint.
• The repairs and voids process for property Z took too long.
• It was unfortunate the landlord of property Z asked changed his mind about letting the property however the Council has no control over this matter.
• Property Y would have been unsuitable for her following the medical assessment for Q. Furthermore, the medical assessment in November also recommended further housing was not overcrowded. Property Y would also have been unsuitable on this basis.
• There is a shortage of housing suitable for Miss X’s needs. This means suitable properties do not become available very often.
• It accepted communication with Miss X could have been better. The poor communication caused her uncertainty, and it offered her a payment of £260 in recognition of this.
38. Miss X remained unhappy and complained to the Ombudsman.

Finding

39. In July 2023 the Council considered that Miss X and her family had a moderate need to move on medical grounds. I consider this determination means the Council accepted Miss X’s temporary accommodation was unsuitable.
40. The Council has a duty to secure suitable accommodation for homeless households that it owes a housing duty to. This means the Council need to provide suitable accommodation to Miss X as soon as it decided her temporary accommodation was not suitable.
41. The Council has explained there is a scarcity of accommodation suitable for Miss X’s needs in its area. I recognise the difficulties the Council has securing housing in its area. However, the law is clear that temporary accommodation must be suitable and the duty to provide this is immediate and cannot be deferred.
42. For the above reasons Miss X and her children remain in the same temporary accommodation a year later. This is causing Miss X frustration, distress and affecting the mental health of her and her children. This is injustice.
43. The Council must keep the suitability of temporary accommodation under review. Miss X asked for section 202 suitability review to be carried out in March 2023 and explained that her circumstances had changed. The Council refused the request. This is fault.
44. I note the Council said it would carry out a non-statutory review of Miss X’s accommodation following her request in March 2023. However, I have seen nothing to demonstrate the review was undertaken. This is also fault.
45. The Council’s response to Miss X’s complaint states that it had a shortage of housing stock and so housing applicants were waiting longer for rehousing. This matter relates to the Council’s housing register for long term housing. The Council’s response suggests it did not properly consider its legal duty to provide Miss X and her family with suitable temporary accommodation immediately.
46. Miss X reported problems with mice in her temporary accommodation in October 2023. She made the Council aware her availability for pest control appointments was limited due to the lengthy commutes she has each day. The Council has provided evidence showing it attempted to visit on one occasion. I have seen nothing to suggest it has arranged other appointments or that it has inspected Miss X’s temporary accommodation. This is fault. Miss X says the problem persists and is causing her distress and damaging her belongings. This is injustice.
47. The Council offered Miss X property Z in April 2023. It accepts it took too long to complete repairs and its communication with Miss X was poor. This is fault. It caused Miss X frustration and uncertainty. This is injustice.
48. The landlord of Property Z decided not to let the property to the Council. I have seen nothing to suggest the landlord’s decision was due to the delay in completing repair works or that there was anything the Council could have done to prevent the landlord’s decision.
49. Miss X says she missed out on moving to Property Y because she was offered Property Z. I agree. However, property Y would not have meet Miss X’s needs as it was a three-bedroom home. The Council’s medical adviser stated Miss X’s son, Q, needs his own bedroom and so she needs a four-bedroom home. For this reason, I do not consider that Miss X has been disadvantaged.

Agreed action

50. To remedy the fault, I have identified in this case the Council will, within one month of my final decision:
• Send a written apology to Miss X;
• Pay Miss X £250 per month to recognise the unsuitability of her temporary accommodation and the impact it has had on her and her family since July 2023. This is a total of £3000.
• Pay Miss X £250 per month until she is provided with suitable temporary accommodation. In the meantime, the Council should make its best endeavours to secure suitable accommodation for Miss X.
51. Within in two months of my final decision the Council will provide a guidance note to staff explaining:
• the duty to provide suitable temporary accommodation to applicants living in unsuitable accommodation is immediate and non-deferable and;
• the suitability of temporary accommodation is a continuing obligation, and it must reconsider if the accommodation remains suitable when it is told about a change in the applicant’s circumstances.
52. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

53. I have completed my investigation. I found fault and the Council agreed to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman