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London Borough of Brent (20 000 450)

Category : Housing > COVID-19

Decision : Upheld

Decision date : 24 Mar 2021

The Ombudsman's final decision:

Summary: Mr X complained about the standard of accommodation the Council provided during the COVID-19 pandemic, and about failings in the way it handled his homelessness application. The Council was at fault for a delay in responding to Mr X’s concerns about the accommodation, which it later accepted fell below its standards. It was also at fault for failing to review its decision that Mr X was not in priority need. It has already apologised, made a payment of £500 and taken action to prevent recurrence so no further recommendations are needed.

The complaint

  1. Mr X complained about the accommodation the Council provided under the “Everyone In” initiative between April and July 2020, which he says was not clean, was infested with insects and had a blocked fire escape. He also says security staff acted inappropriately towards residents and the food provided was out-of-date. Mr X says the experience caused him significant distress and he had ongoing mental health problems as a result.
  2. Mr X also complained the Council delayed in dealing with his homelessness application, wrongly decided he was not in priority need, and failed to review its decision when he asked it to do so. He said the delay and lack of communication with him added to his distress at an already difficult time.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot question whether a council’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)
  3. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
  4. 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)
  5. If we are satisfied with a council’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

  1. I considered:
    • The information Mr X and the Council provided;
    • Relevant law and guidance, as set out below; and
    • Our guidance on remedies.
  2. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Homelessness

  1. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
  2. Councils must take reasonable steps to secure accommodation for any eligible homeless person. This is called the relief duty. The council can end the duty in certain circumstances, at which point it should notify the applicant in writing. (Housing Act 1996, section 189B)
  3. To decide if it owes a main housing duty, the council will make enquiries to find out if the applicant is:
    • Eligible for assistance;
    • Homeless or threatened with homelessness;
    • In priority need; and
    • Not intentionally homeless.
  4. A council must secure interim accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need. (Housing Act 1996, section 188)
  5. Examples of priority need are:
    • People with dependant children;
    • Pregnant women;
    • People who are vulnerable due to serious health problems, disability or old age.
  6. After completing inquiries, the council must give the applicant a decision in writing. If it is a negative decision, the letter must fully explain the reasons.  All letters must include information about the right to request a review and the timescale for doing so. (Housing Act 1996, section 184, from 3 April 2018 Homelessness Code of Guidance 18.32 and 18.33)

COVID-19 and rough sleepers

  1. In March 2020, the Government announced emergency funding for councils in England to help rough sleepers self-isolate during the COVID-19 outbreak. This became known as the Everyone In initiative. Many councils booked empty hotel and hostel accommodation to accommodate rough sleepers.
  2. Rough sleepers were not routinely tested for COVID-19 before being placed in accommodation but a triage system was used to try to identify those with symptoms of COVID-19 and those at clinical risk, so they could be accommodated separately.

What happened

  1. Mr X was referred to the Council by a homeless charity on 14 April 2020 as he was homeless and sleeping rough. This coincided with the Everyone In initiative. The Council completed a triage assessment for Mr X, which did not identify any current COVID-19 symptoms, or any clinical risk, nor any particular support needs. It placed Mr X in a local hotel on 17 April 2020, with others accommodated under the Everyone In initiative.

Concerns about the hotel accommodation

  1. Mr X said he told an officer he had concerns about the hotel around a week after he was placed there. The Council’s record of the conversation indicates the call focussed on his homelessness application and, when questioned during the formal complaint investigation, the officer did not recall Mr X saying he was concerned about conditions in the hotel. The Council said the emails between Mr X and its officer during May did not refer to concerns about the hotel.
  2. Mr X raised concerns about the hotel via posts on the internet between mid June and mid July 2020. He made a formal complaint on 17 July 2020. He said:
    • The hotel was not clean and a fire escape was blocked;
    • There was an insect infestation in his room;
    • The food provided was out-of-date;
    • Security staff were being heavy handed with residents;
    • Residents were subject to abuse and violence from other residents.
  3. The council contacted the hotel, security manager and food provider for their comments. In its formal complaint response in late July 2020, it acknowledged that standards fell below its expected standards and apologised.
  4. Mr X was unhappy with this response and asked the Council to consider the complaint further at stage 2 of the complaints process. In early September, a Council officer spoke to Mr X at length about his concerns. In its formal response, the Council said:
    • Some of his complaints about cleanliness and food were difficult to substantiate, in part because concerns made to hotel staff had not been relayed to the Council at the relevant time and also because some issues had been addressed by hotel staff without Council involvement;
    • Photos did indicate some communal areas were unclean where food waste was dropped and where some residents had behaved in an antisocial manner. It was difficult to confirm how long it took for the areas to be cleaned but it noted Mr X said some of the areas he filmed had not been cleaned for several days;
    • With regard to food, such as crisps and cereal bars, with an expired “best before” date when Mr X took photos, the food was donated and the Food Standards Agency stated food is safe to eat after its best before date, although it may not be at its best in terms of flavour and texture;
    • It had identified one instance of serious misconduct by security staff, which was not directed at Mr X;
    • During the stage 2 process, Mr X told it a team leader briefed security staff that residents were “tramps” and should be dealt with in a physically aggressive manner, and this would be raised with the security contractor;
    • It accepted there was a delay in responding to the concerns raised during June 2020.
  5. The Council’s record of the stage 2 complaint investigation show it identified the following action to prevent a recurrence of the complaints:
    • To take into account the concerns raised about cleaning, food provision and security staff when procuring similar contracts in future, including considering whether or not to use those contractors again;
    • To raise Mr X’s concerns about security staff with the security contractor; and
    • To ensure in future such schemes that all contractors are fully briefed on the importance of promptly feeding back to the Council any concerns and complaints that cannot be resolved locally.
  6. In response to our enquiries, the Council provided records to show it had raised Mr X’s concerns with the security contractor, which had not accepted Mr X’s account. It said its contracts manager was on site regularly to support the team, which was given extra training for dealing with difficult situations. The Council also said it had not received any complaints about the hotel from other residents placed there, although Mr X does not accept this was the case.

My findings – hotel accommodation

  1. The Council had to secure accommodation for rough sleepers very quickly after the national lockdown due to the COVID-19 pandemic was announced. It was accommodating large numbers of people and inevitably there would be some difficulties arising due to the particular needs of the individuals accommodated. It is likely that Council resources were stretched as staff were off sick or self-isolating.
  2. The Council completed a triage assessment, which did not identify any particular support needs for Mr X. It was not aware of his concerns until mid June but accepts there was a delay in investigating them at that point. It did not respond to Mr X until late July 2020, after he had made a formal complaint. That delay was fault. The delay in addressing his concerns added to the distress Mr X was experiencing living in the hotel.
  3. From July 2020 onwards, the Council took appropriate action to investigate and address the concerns Mr X had raised. This included contacting its contractors, discussing the complaint with Mr X and responding in writing to the concerns he raised. It accepted that the accommodation provided fell below the standards it would expect, which was fault.
  4. Mr X says he is experiencing ongoing mental health issues following his stay at the hotel. He said he had suffered a family bereavement a few months before becoming homeless, and was suffering from depression when he asked the Council for help with housing but this had not been formally diagnosed. Whilst I accept Mr X found living at the hotel a difficult experience, and that this caused him distress, I cannot say that this experience alone has caused his current mental health difficulties.
  5. The Council apologised and made a payment of £500 to Mr X to address the distress he suffered, and his time and trouble pursuing the complaint. I consider this payment was a sufficient remedy for the distress suffered by Mr X when he lived in the hotel and its delay in responding to his concerns, and it is in line with our guidance on remedies. The Council also took appropriate action to prevent a recurrence of the concerns raised so no further recommendations are needed.

Homelessness application

  1. The Council accepted a homelessness application, following a referral from a housing charity on 15 April 2020. It did not have to consider whether it was under a duty to provide interim accommodation because it was able to provide accommodation under the Everyone In initiative on 17 April. On balance, based on the information seen, it is likely the Council would not have considered itself under a duty to provide interim accommodation in the absence of the Everyone In initiative.
  2. The Council issued a decision letter accepting the relief duty on 24 April, following which it made enquiries about whether it owed a main housing duty. On 15 June 2020 it decided Mr X was not in priority need and therefore it did not owe Mr X the main housing duty. It wrote to him, setting out its reasons, and his right of review. There was no undue delay in carrying out these actions.
  3. Mr X did ask for a review of the decision that he was not in priority need. He sent this to the wrong team. That team did not pass on the request to the correct team, nor did they remind Mr X of the correct process for requesting a review. This was fault. The Council did not carry out a review.
  4. In its stage 2 complaint response, the Council accepted it had not dealt with the request correctly and said it would remind staff that in future requests are passed on to the correct team, which it has now done. It said this had not caused Mr X a significant injustice because even if, on review, it had accepted a housing duty, it could have discharged this by offering Mr X private rented accommodation, which it had subsequently done.
  5. I accept the fault did not cause Mr X a significant injustice. This is because, even if it had carried out a review, it was unlikely this would have been concluded before Mr X accepted private rented accommodation. And also because the Council was able to end the duty by offering private rented accommodation for at least six months, which it has done. Therefore, the Council’s apology is a sufficient remedy.
  6. We would not usually investigate complaints about the decision itself where there is a right of review. In this case, although there was a right of review, Mr X was not able to exercise it, as explained above. Therefore, I have considered whether there was fault in the Council’s decision-making. The records provided show the Council applied the correct test, and that Mr X did not provide any medical or other evidence to show he was vulnerable, such as evidence of a mental health diagnosis, or say he was taking any medication. The Council’s decision letter set out its reasons for deciding he was not in priority need in some detail. Although Mr X disagrees with it, there is no evidence of fault in the way the Council made its decision.
  7. The Council had a duty to assist Mr X to secure accommodation, which it confirmed would continue to do despite deciding Mr X was not in priority need in June 2020. Its records show it identified a property for Mr X to view in mid May but Mr X refused to view it due to its location. He viewed a second property identified later in May but did not accept it because it was shared accommodation.
  8. The Council identified a third property, which Mr X viewed. The Council sent an email to Mr X on 28 May 2020 to say the landlord was considering the financial incentives on offer and would confirm whether he wished to go ahead. The landlord decided not to let the property and there was a short delay in the Council informing Mr X of this, which it did not do until 12 June, but this is not sufficient to warrant a finding of fault.
  9. The Council assisted with an incentive payment to the landlord to secure another property, which Mr X found himself, and Mr X moved to that property in mid July 2020. The Council also negotiated with the landlord for the landlord to provide a bed, new mattress and to replace the sofa. Mr X was unhappy the Council had negotiated this with the landlord as he felt it might adversely affect his relationship with the landlord. He said he would purchase his own furniture. As part of its complaint response, the Council offered to reimburse his reasonable expenses for buying furniture, if he provided valid receipts. At the time it responded to our enquiries Mr X had not done this but the Council confirmed the offer was still open to him.

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Final decision

  1. I have completed my investigation. I found fault causing personal injustice, which the Council has already remedied.

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Investigator's decision on behalf of the Ombudsman

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