The Ombudsman's final decision:
Summary: On the basis of information seen, there was no fault in the way the Council handled Mr X’s temporary accommodation from late March 2020, during the COVID-19 pandemic. It was at fault for not informing him of the service charges for alternative accommodation provided in early July 2020, for which it has apologised and waived the charges. This was an appropriate remedy.
- Mr X complained the Council:
- moved another person into the temporary accommodation it provided between late March and early July 200, which was during the COVID-19 pandemic. He said the accommodation was not suitable for sharing due to an inability to maintain social distancing and having a shared kitchen;
- did not take seriously his concerns about the other tenant and did not respond properly to the other tenant’s behaviour that risked the transmission of COVID-19;
- did not tell him about the costs involved when it moved him to alternative temporary accommodation in July 2020 and he later realised it was not affordable for him.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
- 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”.
- 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)
How I considered this complaint
- I considered:
- the information Mr X provided and spoke to him about his complaint;
- the information the Council provided;
- relevant law and guidance, as set out below; and
- our guidance on remedies.
What I found
Relevant law and guidance
- Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities (the Code) set out councils’ powers and duties to people who are homeless or threatened with homelessness.
- Where councils are satisfied a person threatened with homelessness and is eligible for assistance, they must help them take steps to secure their accommodation. This is called the prevention duty. Councils can end this duty in certain circumstances, at which point they should write to the person setting out their reasons and information about their right to ask for a review of the decision.
- Where councils are satisfied a person is homeless and eligible for assistance, they must take steps to help them secure accommodation. This is called the relief duty. Councils can end this duty in certain circumstances, at which point they should write to the person setting out their reasons and information about their right to ask for a review of the decision.
- Councils must secure interim (or emergency) accommodation for the person 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)
- Examples of priority need are:
- People with dependant children;
- Pregnant women;
- People who are vulnerable due to serious health problems, disability or old age.
COVID-19 and rough sleepers
- 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.
COVID-19 Guidance for Landlords
- The Government issued non-statutory guidance for landlords on 28 March 2020, which was updated on 6 April 2020. This said landlords should:
- carry out a risk assessment to identify suitable control measures to reduce the risk of the spread of infection when using common areas or shared facilities;
- consider whether any additional steps are needed to ensure the safe use of lifts and stairwells to reduce the risk of transmission;
- remind tenants of the need to avoid close contact with other residents, though the use of posters and/or floor markings;
- remind tenants of the Government’s guidance and advice on COVID-19 through accessible means, such as letters, posters and emails.
The guidance also detailed situations where more frequent cleaning of common areas and shared facilities was needed, and provided advice on keeping indoor areas well-ventilated.
COVID-19 AND shielding
- On 21 March 2020, the Government introduced new measures to protect the vulnerable from the effects of COVID-19. It advised those who were aged over 70 or were defined on medical grounds as being Extremely Clinically Vulnerable to shield for 12 weeks. Shielding meant they should not leave their homes and should avoid contact with anyone who had COVID-19 symptoms. Those who were in the shielding category were sent a letter to confirm the advice.
- The advice about shielding, included which conditions meant someone was Extremely Clinically Vulnerable was updated several times during the pandemic.
- There is a national shortage of social housing. Councils maintain a list called the housing register of those waiting for social housing. Councils 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))
- 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 medial or welfare grounds;
- people who need to move to avoid hardship to themselves or others.
(Housing Act 1996, section 166A(3))
- Mr X was homeless. He approached the Council for assistance on 23 March 2020 and it placed him in a local hotel using its cold weather fund. It accepted a homelessness application. It decided he was homeless and eligible for assistance but had no reason to believe he was in priority need. It wrote to him with its decision, setting out its reasons and his right to ask for a review of the decision.
- On 24 March the hotel decided to close due to COVID-19 and said all residents must leave by the following day. The same day, the Council provided accommodation for Mr X under the Government’s newly announced “Everyone In” initiative. The accommodation was a three bedroom property. Mr X said the kitchen was shared and there was a narrow stairway and corridor that made social distancing difficult.
- Although the accommodation was usually used for three single people, the Council told Mr X there would not be more than two people placed there to allow for social distancing. It said it would check any new resident did not have COVID-19 symptoms before they moved in.
- Council records show that in April 2020, the Council decided the property was suitable for two tenants if there was a rota to ensure only one person used the kitchen at any one time and took responsibility for cleaning it after use. It noted this was the same advice it gave to the public. The records show that, in reaching this decision, the Council considered the Government’s Guidance for landlords. It also sought advice from Public Health England, which said this would be acceptable provided neither tenant was “medically vulnerable”. In addition, it maintained a one bedroom property in case either tenant needed to self isolate.
- Mr X told me told the Council at the outset that he did not want to share the property because he had a health condition that meant he was at high risk from COVID-19 and was over 60. The records show he told the Council in late April 2020 that he did not want to share because he was “in a high risk group over 60”. He did not state he had a health condition or provide any information about why he was at high risk other than due to his age.
- In early May, the Council acknowledged his concerns. It said:
- it would not place anyone in the property who had symptoms of COVID-19 and would regularly check this remained the case;
- only the kitchen would be shared and a rota would ensure only one person used it at once. Tenants should clean the kitchen after use;
- if Mr X really felt he was not able to share, it could consider moving him into bed and breakfast accommodation. There would still be a shared kitchen but there would be an on-site manager to ensure social distancing was adhered to.
- It upheld the complaint about an unprofessional email and apologised;
- It had weekly contact with Mr X after he moved to the temporary house and three officers had supported him;
- It did not accept it had failed to respond effectively to COVID rule breaches. It said Mr X was not at high risk because he had not had a shielding letter from the NHS; and
- Mr X should report any illegal drug use or COVID rule breaches to the police.
- housed Mr X at short notice due to the COVID-19 pandemic and this involved some compromises, at least until more settled arrangements were made;
- had apologised for the unprofessional email that had caused Mr X offence;
- was not the housing team’s responsibility to manage the implications of Mr Y’s chaotic lifestyle. Other bodies, such as the police, were better placed to address these issues;
- did not accept Mr X was at high risk of COVID-19 because he had not received an NHS shielding letter;
- reduced the number of households sharing the temporary property from three to two after “careful though and risk assessment”; and
- provided cleaning materials, hand sanitiser and information notices. It was not realistic to expect the Council to monitor Mr Y’s behaviour in relation to using those materials or following the guidance given.
- It provided a link to information on its website about housing benefit in response to the complaint that the alternative temporary accommodation was too expensive.
- When Mr X approached it in March 2020, the Council accepted a relief duty and provided temporary accommodation, initially in a hotel but the next day, provided temporary accommodation in a shared house under the Everyone In Initiative.
- The temporary accommodation was normally suitable for three single homeless people. In light of the COVID-19 pandemic, the Council considered whether it was suitable for sharing and decided it was appropriate for two people to share. When considering this, it took into account relevant Government Guidance and consulted Public Health. There was no fault in the way it considered this.
- Mr X told the Council he did not want to share because he was high risk as he was over 60. I have seen no record to show he told the Council about his health condition and the Council said it was not aware of it. However, even if it had been aware, the specific condition is not one that meant Mr X was in the Extremely Clinically Vulnerable group. Although the complaint response refers to Mr X not having received a shielding letter, I am satisfied that the Council did not make its decision simply on the basis of the absence of a shielding letter. There was no fault in the way the Council decided Mr X could share the accommodation with advice and support, including a rota for the use of the shared kitchen, advice about cleaning and social distancing and the provision of cleaning materials.
- Before it placed Mr Y in the accommodation in mid May 2020, the Council considered a risk assessment provided by the agency supporting Mr Y. The risk assessment, which I have seen, did not raise any issues that would make it unsuitable for him to share accommodation with Mr X. The Council did not say it would test him for COVID-19 before he moved into the accommodation, only that it would check he did not have symptoms. There was no fault in the way the Council decided Mr Y could share the accommodation with Mr X.
- In the event, Mr X says Mr Y was not able to follow the guidance given to reduce the spread of infection. When Mr X raised concerns about this, and Mr Y’s drug use, the Council made appropriate enquiries but did not find evidence of the issues Mr X reported. The records show that in any event it was not able to move Mr Y before mid July. It encouraged Mr X to consider private rented accommodation but he had not secured any by early July when alternative accommodation was identified for him. Having considered all the circumstances, I consider the Council took appropriate steps to address Mr X’s concerns and was not at fault.
- The Council accepted it did not give Mr X advice about the service charges for the alternative accommodation. Those charges meant Mr X could not afford the accommodation. The failure to tell Mr X about the service charges and consider whether the alternative accommodation it offered was affordable for him was fault. The Council apologised for this and waived the service charges, which was an appropriate remedy. It offered to find Mr X further temporary accommodation but Mr X declined this and decided to sleep in his car until longer term accommodation was identified. There is, therefore, no further injustice that should be remedied.
- Mr X made a housing register application, which the Council accepted in mid July 2020. In mid August he was nominated for social housing and moved into the property in early September, following which the Council discharged its relief duty.
- Mr X’s formal complaint in June 2020, was prompted by an unprofessional email from an officer. The Council accepted the email was unprofessional in its stage 1 complaints response, which also noted that the officer had apologised personally. I do not consider this was sufficient to warrant a formal finding of fault and, in any case, the Council apologised, which was appropriate.
- I have completed my investigation. I found fault leading to personal injustice. The Council has already remedied that injustice and no further recommendations are needed.
Investigator's decision on behalf of the Ombudsman