Kirklees Metropolitan Borough Council (17 009 782)

Category : Housing > Homelessness

Decision : Upheld

Decision date : 20 Mar 2018

The Ombudsman's final decision:

Summary: Mr X complains the Council provided him with unsuitable accommodation following his homelessness application and denied him a right of review. The Council also delayed in carrying out repairs to a property it offered him and failed to record an offer to ‘un-match’ his bid. The Ombudsman found fault because the Council denied Mr X an opportunity to request a review of the suitability of his temporary accommodation. And to be ‘un-matched’ from an offer of secure accommodation causing uncertainty and distress. The Council has accepted it was at fault. It will apologise to Mr X and pay him £200. It accepts the Ombudsman’s recommendations to carry out service improvements.

The complaint

  1. The complainant, who I refer to here as Mr X, has complained about the way the Council provided him with accommodation following a homelessness application causing distress to him and his family. Mr X complains;
    • The Council allocated him unsuitable temporary accommodation due to being high-rise and this exacerbated Mrs X’s medical conditions. In addition, there were drug users, loud music and unhygienic communal areas at the accommodation.
    • The Council failed to tell him about his right to request a suitability review of the temporary accommodation.
    • Officers ‘threatened’ him to place bids on more secure properties otherwise it would evict him. And officers said they would bid on his behalf without considering the suitability of the properties. Mr X thought he had eight weeks to bid for properties but officers allowed him just over a week to find a property.
    • The property he successfully bid for was still occupied. Due to this and the property needing repairs it was six weeks before he could move in. Mr X said officers did not allow him to bid for other more suitable properties becoming available while he was waiting.
    • The Council failed to carry out agreed repairs to the property as there is still evidence of rats so potentially affecting the health and safety of his family.
  2. Mr X says the current property is unsuitable as Mrs X is unwell and he wishes to move to be near to family for support.

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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. 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 have read the information submitted by Mr X. I considered the Council’s comments about the complaints and the supporting documents it provided. I have explained my draft decision to Mr X and the Council and considered the comments received.

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What I found

  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. A council must provide interim accommodation while it considers a homelessness application if it has reason to believe the applicant may be homeless, eligible for assistance and in priority need. (Housing Act 1996, section 188 and Homelessness Code of Guidance for Local Authorities, paragraph 6.5)
  2. The law says 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)
  3. Councils must consider the location of accommodation when they consider if it is suitable for the applicant and members of their household. (Homelessness (Suitability of Accommodation) Order 2012).
  4. The Homelessness Code of Guidance 2006 sets out factors councils should consider when deciding if accommodation is suitable. This includes the needs, requirements and circumstances of each household, space and arrangement: health and safety considerations, affordability and location. A court ruling in Nzolameso v City of Westminster (2015) UKSC 22 says councils should have a policy for procurement of temporary accommodation and a policy for the allocation of temporary accommodation.
  5. After completing inquiries, the council must give the applicant a decision in writing. If it is an adverse 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) . Homeless applicants may request a review within 21 days of being notified of the decision on their homelessness application. There is also a right to request a review of the suitability of temporary accommodation provided once the Council has accepted the main homelessness duty. (Housing Act 1996, section 202)
  6. Councils must complete the review within eight weeks of receiving the review request. This period can be extended but only if the applicant agrees in writing. If the applicant wishes to challenge the review decision, or if a council takes more than eight weeks to complete the review, they may appeal on a point of law to the County Court (Housing Act 1996, sections 202 and 204)

Events leading to the complaint

  1. Mr and Mrs X with their infant child approached the Council as homeless on 13 March 2017. The Council placed them in interim accommodation in a high-rise property. On 22 March 2017, the Council accepted a duty to secure accommodation for them and to provide them with temporary accommodation.
  2. The Council placed Mr X in housing Band B and advised he could place bids for properties. The Council told Mr X he had a right to request a review if he disagreed with the assessment of his situation and allocated housing band. Mr X successfully bid for a property on 25 March 2017 and he later moved there in May 2017.

Offer of temporary accommodation

  1. The Council says it does not have a policy on allocating temporary accommodation to homeless applicants. It says it usually provides temporary accommodation in an emergency with short notice and so it has limited choices. The accommodation is usually of a basic standard.
  2. The Council says it considers the Homeless Code of Guidance when allocating properties and officers assign accommodation on a case by case basis. Officers base this on property availability and the needs and risks known at allocation. This includes family size, needs and geographical preferences.
  3. In Mr X’s case, the Council has no documentation about why it considered the temporary accommodation suitable when allocated to Mr X. But explained it based the allocation on Mr X’s homelessness assessment and the Homeless Code of Guidance. The assessment included Mr and Mrs X and their infant child. It says it does not place older children in high rise flats but it would place a parent with infant child there while looking for more sustainable accommodation. The Council did not consider Mr X and his family overcrowded at the accommodation and felt it suitable for a temporary stay.
  4. The Council apologised if Mr X considered the lifestyle of his neighbours unacceptable. And passed Mr X’s comments to the Neighbourhood Housing service who manage the units.
  5. The Council says there was no right of review of its suitability as it was temporary accommodation. It says it explained this to Mr X in its correspondence.

My assessment

  1. Case law has established that Councils should have a policy for allocating temporary accommodation. The Council has confirmed it does not have such a policy. I consider this is fault by the Council and recommend its draws up such a policy to ensure it is correctly allocating temporary accommodation according to the law and the Homelessness Code of Guidance.
  2. The Council has confirmed it has no written documentation to show why it considered the temporary accommodation suitable when allocated to Mr X and his family. The Ombudsman considers Councils should have a good record keeping system in place so they can show the reasons for decisions. So, I consider the Council’s failure to have written records on the allocation to Mr X is fault. I recommend the Council set up a system to ensure it records decisions why it considers the temporary accommodation it allocates to each homeless family or person is suitable. If properly recorded it will ensure transparency in its decision making.
  3. The Council said Mr X has no right of appeal on the suitability of temporary accommodation. This is not the case. There is no right to request a review when an applicant is placed in interim accommodation while a Council is making enquiries about whether it has a homeless duty owed to the applicant. But once a Council accepts a duty to a homeless person or family there is a right to request a review of any accommodation offered whether it is temporary or permanent. Then, if the applicant is unhappy with the Council’s review, they have a right to appeal to the County Court. So, once the Council made a decision on Mr X’s homelessness application on 22 March 2017, his interim accommodation then became temporary. And Mr X had a right to request a review of its suitability.
  4. The Council’s decision letter of 22 March 2017 saying it had a duty to secure Mr X accommodation did not include an explanation of Mr X’s appeal rights on the suitability of his temporary accommodation. This is fault by the Council. I recommend the Council revises its homelessness decision letters to applicants to include the right to request a review of temporary accommodation.
  5. While I identified the faults listed above I do not consider it caused a significant injustice to Mr X. This is because the Council responded to Mr X’s complaints about the suitability of his temporary accommodation. It explained it had considered the family’s needs and circumstances and location of the property. The Council also said it would allocate high-rise accommodation to people with infant children and there was no good reason not to allocate the accommodation to him. So, I consider on balance the Council’s decision on the suitability of the temporary accommodation would not have been any different if Mr X had submitted a formal review request.
  6. However, I do consider Mr X has suffered a loss of opportunity to submit an appeal to the County Court if he disagreed with the Council’s decision on suitability. So, I recommend the Council pays Mr X £100 as an acknowledgement for this loss of opportunity.

Bidding procedure

  1. The Council explained it recently changed its assisted bidding procedure. Under the previous scheme officers reviewed the bidding history of applicants in housing bands A and B after eight weeks. Officers advised applicants to proactively bid to keep any temporary accommodation placements to a minimum. If the applicant had not been proactively bidding and rehoused after eight weeks, the Council would bid on their behalf or make an offer of an available vacant property.
  2. Under the changed assisted bidding scheme all applicants in temporary accommodation can have bids placed by the Council. Or be offered an available vacant property if it is suitable to their needs within the eight weeks. The Council will place assisted bids if a household is not actively bidding, they cannot do so due to circumstances or the Council has no duty or has discharged its duty to provide temporary accommodation.
  3. The Council says officers explained the bidding procedure and the assisted bidding approach to Mr X while he was in temporary accommodation. And the results of not placing regular appropriate bids. The Council confirmed this in a letter to Mr X. Mr X placed the bid for more secure accommodation through a 12-month introductory tenancy and this was successful. It was not an assisted bid made by the Council. The Council apologised if Mr X felt pressured into bidding for the property.

My assessment

  1. The Council has explained its assisted bid procedure to encourage applicants to place bids for more secure accommodation. It told Mr X it would be actively checking his account during the eight-week period to ensure he placed regular bids otherwise officers would do so for him. The Council confirmed it was Mr X who chose to place a bid for the property and successfully matched. There is no evidence to suggest Mr X was ‘threatened’ to do so or it was a bid by officers. So, I do not consider there is any fault by the Council.

Property Repairs and Offer to ‘un-match’ Mr X from his bid

  1. The Council said the property Mr X successfully bid for was pre-allocated so advertised in the termination period 22 March to 26 March 2017, to minimise turnaround time. The Council says it is not unusual for council properties to remain occupied while being advertised. And that it identifies some disrepair once the tenant has left. The Council says it may lead to a delay in getting a property ready to re-let. But its housing services works closely with building services to minimise any delay.
  2. The Council matched Mr X to the property on 27 March 2017 and made him an offer. Mr X said he was unhappy with the offer. Officers advised Mr X the property had the correct number of bedrooms and located in an area Mr X wanted.
  3. The property became void on 9 April 2017 and the Council estimated it would be available on 25 April 2017. The Council provided a schedule of the void works carried out to the property before Mr X accepted the offer. It says housing services found evidence of rats at the property in April 2017 and reported the matter to pest control. There had been no previous reports of rats at the property.
  4. Pest control officers visited the property to lay bait and arranged a CCTV survey of the drains. This found no defects. Pest control officers visited again and found the bait removed. Officers found a break at the base of the soil pipe, ordered a repair and closed the job after the work was completed.
  5. Mr X also complained about low water pressure said the garden was unsafe for his child due to some uneven garden slabs. The Council confirmed it checked the water pressure but did not considered a repair issue. This was because it was due to mains water pressure. It asked Mr X for information about the garden slabs and it would arrange repairs. Officers found some flags stones had been installed by housing services and some by the previous tenant. A Building Surveyor checked the flags and said they were not a hazard. The Council offered to remove the flags installed by the previous tenant, then topsoil and grass the area. It says Mr X did not accept the offer.
  6. The Council says a week after Mr X placed the successful bid for the property he saw another property advertised on the Council’s web site he considered more suitable. The Council advised him it does not allow applicants in temporary accommodation to pass on a suitable secure tenancy in the hope something more desirable may appear later. This again can directly impact on families needing a temporary emergency address.
  7. In addition, the Council said each property receives bids from housing applicants with a higher or longer established banding. So even if Mr X had placed a bid on the other property he saw he may not have been successful in gaining an offer.
  8. In responding to my enquiries, the Council confirmed delays in preparing the property for Mr X as housing services had to excavate and repair a drain at the property to resolve the rat problem. So, it says a Housing Manager contacted Mr X and offered to ‘un-match’ his bid to enable him to bid on alternative suitable properties to allow a quicker move. The officer agreed whatever the result the property would be a fall back option.
  9. The Council says it has no written correspondence on this offer to Mr X and no notes of the telephone call on its record system as it was not updated. The Council says it understood Mr X did not accept the offer.
  10. Mr X accepted the offer of the property on 11 May 2017 and started the tenancy on 15 May 2017.
  11. Mr X complained about rats at the property in September 2017 so Pest Control officers visited again. They retested the drainage and found repair work completed satisfactorily. But identified some defects in the water company inspection chamber. The Council raised a repair job which the water company carried out.
  12. Pest control officers visited again and found the water company repairs completed. Mr X reported a further rat sighting in October 2017. Pest Control officers revisited and found evidence of renewed rat activity. The Council arrranged a drainage investigation into the surface water system at the front of the property. The Council reports the investigation went beyond the boundaries of the property and eliminated the active drainage on the property as a source of infestation. The Council says it has no more evidence of rats in the property since the repair to the soil vent pipe or received further reports from Mr X.
  13. The Council acknowledged Mr X unhappiness with the property, its location and wish to move nearer to family members. So, it offered to identify a suitable property in or nearer to the area he would like to live. The Council has now managed to do so and made an offer of a property to Mr X. Mr X has accepted the offer.

My assessment

  1. It is unfortunate the repairs to the property took longer than planned and it found an unexpected issue with rats at the property. The Council’s records show officers responded to Mr X’s complaints about repair work at the property. Officers investigated the rat infestation and carried out repairs to the drainage. Officers also arranged for further drainage investigations after renewed rat activity. While the renewed activity was unfortunate and I accept it was unpleasant for Mr X I do not consider it was due to any fault by the Council.
  2. The Council acknowledges the repairs took longer to complete than anticipated. When Mr X complained about the delay and wanted to bid for other properties the documents show the Council advised him it did not allow residents in temporary accommodation to pass on a suitable tenancy. But the Council says it later advised Mr X it would ‘un-match’ him from his bid. However, it has no written correspondence about the offer and no record of this conversation so it has no evidence it made the offer. And Mr X has made no mention of the offer in his complaint correspondence.
  3. I consider the lack of evidence is fault by the Council as it should have confirmed the offer to Mr X. And properly record the conversation on its case records. I recommend the Council ensures it keeps adequate records of conversations with applicants.
  4. There are other applicants with a higher priority and banding than Mr X. So, I consider on the balance of probabilities that Mr X may not have been successful in bidding for any other properties if he had been un-matched. Because of this, I consider Mr X’s injustice is a missed opportunity to bid for other properties to see if he could move sooner and uncertainty as to whether he could have moved earlier. I recommend the Council pays Mr X £100 as an acknowledgement of this loss of opportunity and uncertainty.
  5. In responding to my draft decision, the Council confirms that its guidance now states under these circumstances when a property is not ready, it will have discussions at an early stage with a customer. Its procedure is now that where a property is not ready for letting the shortlist should remain open and the offer not confirmed in the system. This enables a customer to continue bidding for other properties while the property becomes ready. It may be that they are successfully matched to another property that is ready sooner. The Council says the customer will be encouraged to actively bid for other properties in these circumstances.
  6. The Council has now offered Mr X a property to move to in a location near to his family. Mr X has accepted the offer. As this is the outcome Mr X was seeking I do not consider any further investigation can achieve anything more for Mr X.

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Agreed action

  1. To remedy the fault in this case the Council has agreed to, within one month of my decision;
    • To take action to draw up a policy for allocating temporary accommodation.
    • To ensure it keeps records explaining why it considers suitable the offer of temporary accommodation to a homeless person or family.
    • To amend its decision letter for homeless applicants to include a reference to a right to request a review of the suitability of temporary accommodation including to the County Court.
    • To ensure it discusses any offers about ‘un-matching’ bids to applicants according to its new guidance to and ensure it keeps notes of conversations with applicants updated on their records.
    • To pay Mr X £100 as an acknowledgement of his lost opportunity to request a review of the suitability of his temporary accommodation to the County Court.
    • To pay Mr X £100 as an acknowledgement of his lost opportunity to be ‘un-matched’ and bid for other properties.
    • To apologise to Mr X for the loss of opportunity and uncertainty he has been caused.

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Investigator's decision on behalf of the Ombudsman

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