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London Borough of Lewisham (17 012 265)

Category : Housing > Homelessness

Decision : Upheld

Decision date : 23 Apr 2018

The Ombudsman's final decision:

Summary: Miss F complains the Council placed her and her baby in unsuitable, unsafe and unfit temporary accommodation when she was homeless and that she was placed there for too long. The Council has accepted Miss F was in the accommodation for too long and will apologise and pay her £300. The Ombudsman has not found fault in the other parts of the complaint.

The complaint

  1. The complainant, whom I will call Miss F, complains the Council:
      1. placed her and her baby in unsuitable, unsafe and unfit temporary accommodation when she was homeless in September 2017, and that she was placed there for too long.
      2. did not properly consider whether the accommodation was suitable when it reviewed it
      3. did not consider moving her to suitable accommodation in a different council area in London
      4. delayed in responding to her correspondence, causing her to lose her right to appeal the review decision to the county court
  2. Miss F says the Council’s failure to place her in suitable permanent accommodation meant she was unable to start her business and she is now in a property she cannot afford.

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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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
  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 spoke to Miss F about her complaint. I considered the Council’s response to my enquiries, and guidance and legislation as referred to in this statement.
  2. I sent Miss F and the Council my draft decision and considered their comments.

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What I found

  1. Where a council believes a person is homeless or threatened with homelessness it must carry out enquiries into that person’s circumstances and reach a decision on what duty it owes to them. (Housing Act 1996, s 184)
  2. If a council is satisfied someone is eligible, homeless, in priority need and unintentionally homeless it will owe them the main homelessness duty. Generally the Council carries out the duty by arranging temporary accommodation until it makes a suitable offer of social housing or private rented accommodation. (Housing Act 1996, section 193)
  3. The Council’s Housing Allocations Scheme says it may award high priority (Band 2) to people on the housing list on the ground of preventing homelessness. The Council has a “One Offer” policy for these applicants. Applicants may bid for properties under the choice based lettings scheme, Lewisham Homesearch.

Suitability of accommodation

  1. 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)
  2. The council must take into account if the accommodation is:
    • affordable
    • in good enough condition
    • available in a suitable location
    • the right size
    • suitable for any health issues or disabilities
  3. The council must consider the applicant’s personal circumstances including travel time to work, disruption to children's education, caring responsibilities and support networks in the area.
  4. Accommodation is not suitable if it falls below certain minimum standards. The council must have regard to the standards set in the Housing Act 2004. The Homelessness Code of Guidance recommends that any accommodation should, as a minimum, be free of Category One hazards assessed under the Housing Health and Safety Rating system. A Category One hazard is a hazard that poses a serious threat to someone’s health or safety. Examples can include:
    • exposed wiring or overloaded electrical sockets
    • bedrooms that are very cold
    • mould on the walls or ceiling
    • rats or other pest or vermin infestation
    • lack of security due to badly-fitting external doors or problems with locks
  5. The Council’s agreement with nightly paid accommodation providers includes a Code of Ethics which governs the required property standards. The provider manages the properties, but the Council carries out quarterly sample inspections. It will also inspect a property if there are any ongoing or escalated issues.
  6. The Court of Appeal held that what is suitable is a matter for the council; it can only be challenged where it is clearly inadequate. (Codona v Mid-Bedfordshire District Council [2004] EWCA Civ 925 [2005] HLR 1, CA)

Bed and Breakfasts

  1. Bed and Breakfast (B&B) is accommodation which is not self-contained, not owned by the Council or a registered provider of social housing, and where the toilet, washing, or cooking facilities are shared with other households. Privately run B&Bs are not suitable accommodation for families and they should not be used unless there is no alternative and then for no longer than six weeks. (The Homelessness (Suitability of Accommodation) (England) Order 2003)
  2. Councils should notify families placed in B&B accommodation that it is unsuitable and that the Council must secure alternative suitable accommodation within six weeks. (Homelessness Code of Guidance for Local Authorities 2006, paragraph 17.29)
  3. Where families are in B&B for more than six weeks, councils should have a strategy in place to tackle the problem within a reasonable timescale.

Location of accommodation

  1. The Housing Act 1996 requires housing authorities to secure accommodation within their district, in so far as is reasonably practicable. Unless, for example, the applicant, and/or a member of his or her household, would be at risk of domestic or other violence in the district. If a council decides an applicant is eligible for assistance, unintentionally homeless and has a priority need, it may notify another council of its decision if it considers the conditions for referral to another housing authority are met. However it is not required to do so.
  2. The Council’s housing allocations policy says applicants may join the pan London “housing moves” scheme.
  3. Its Location Priority Policy says the Council will try to place all households in temporary accommodation that is “within or as close as possible to Lewisham”. The policy says the Council will assess whether the applicant has priority to be located “in” the Borough, “close to” the Borough, or has no priority as to the location of a property. It also says applicants may ask for assistance in relocating to more settled accommodation.
  4. Councils must consider the location of accommodation when they consider if it is suitable for the applicant and members of their household. If a council places an applicant outside its district, it must consider, among other matters:
    • the distance of the accommodation from the “home” district
    • the significance of any disruption to the education of members of the applicant’s household
    • the proximity and accessibility to local services, amenities and transport (Homelessness (Suitability of Accommodation) Order 2012)

Review rights

  1. 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)
  2. The review must be carried out by someone who was not involved in the original decision and who is senior to the original decision maker. The reviewing officer must consider the whole application afresh and can take account of any new material or facts that have come to light since the original decision. (Allocation of Housing and Homelessness (Review Procedures) Regulations 1999)
  3. 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)

What happened

Events leading to the complaint

  1. Miss F was living with her baby, mother and stepfather. She was accepted onto the Council’s housing list on 20 November 2015 because her mother was not prepared to house her any longer due to the poor relationship with her stepfather and overcrowding. Miss F was awarded Band 2 (high priority) on the grounds of preventing homelessness. She started to bid for properties.
  2. In May 2017 there was an incident with her stepfather in which the police were called. The police advised Miss F and her child to stay elsewhere. She therefore approached the Council for help with housing. She had a notice to vacate her mother’s property. Miss F told the Council she had suffered verbal abuse from her stepfather in front of her child.
  3. The Council says Miss F agreed with her mother to return to her home because she would lose the Band 2 priority if she went into temporary accommodation. The Council says it agreed to this because no charges had been brought by the police and there had been no violence. Miss F says the Council told her she would be offered a property in the next three months.
  4. On 31 August 2017 Miss F’s mother said she had to move out. Miss F again applied to the Council for help with housing. She said it was taking too long to receive an offer of accommodation under the homeless prevention priority scheme, and the situation at home was intolerable.
  5. The Council accepted a homelessness application from Miss F on 7 September 2017, including medical information about her child’s health conditions. It placed Miss F and her child into Property X as interim accommodation whilst it carried out inquiries. This was a double bedroom on the third floor with shared kitchen and bathroom facilities.
  6. Miss F then complained to the Council that it had failed to offer her a property under its homeless prevention priority scheme and that in May 2017 it had advised her to continue waiting at home despite the abuse by her stepfather. She considered she should have Band 1 priority.
  7. Miss F also complained the accommodation was unsuitable and asked for a review. She was particularly concerned:
    • the property was infested and she and her child had been bitten
    • the shared facilities were unhygienic
    • the room was not a double room and had no space for a cot
    • there were difficult noisy neighbours
    • the heating was not working
    • it was unsafe as the front door was left open
    • it was up three flights of stairs with no lift. She said this was difficult as she had back problems and had to carry a pushchair
  8. The Council carried out enquiries and determined Miss F was homeless and in priority need. It wrote to her with this decision on 15 September 2017, accepting it had a duty to secure accommodation for her and her child. At this point the status of the B&B changed to temporary accommodation under section 193 of the Housing Act 1996.
  9. The Council responded to Miss F’s complaint. It said Miss F had agreed to return to her mother’s property in May 2017 and the average wait for a property under the homeless prevention scheme was two years. It said Miss F did not meet the criteria for a Band 1 priority.
  10. The Council reviewed the accommodation and decided on 27 September 2017 that it was suitable. The Council said:
    • the medical assessment for her child made no housing recommendations and there was no medical need for Miss F to have a ground floor property
    • the heating problem and issues with communal areas would be addressed.
    • the room had been assessed as suitable for two people
  11. It noted the accommodation was for the short term because of the shared facilities and suggested Miss F consider looking for private rented accommodation.
  12. Miss F had 21 days (until 18 October 2017) to make an appeal to the county court after receiving the Council’s review decision. Miss F says she was unable to do this due to delays by the Council in replying to her.
  13. Miss F asked the Council to escalate the complaint to stage 2 but it refused as she had the right to appeal the suitability of the accommodation. Miss F then wrote to her MP and complained to the Ombudsman.

Events since the complaint

  1. On 6 November 2017 the Council moved Miss F into alternative temporary accommodation, which was a self-contained two bedroom flat. Miss F considered this was unsuitable and asked for a review.
  2. The Council has since moved Miss F and her child into another temporary accommodation. She considers this to be unsuitable and that the Council has not taken into account her medical issues. Miss F has made a new complaint to the Council about this.

My findings

  1. I have considered each element of Miss Fs’ complaint below.

a) Placed her and her baby in unsuitable, unsafe and unfit temporary accommodation when she was homeless in September 2017, and that she was placed there for too long.

b) Did not properly consider whether the accommodation was suitable when it reviewed it

  1. We would normally expect a homeless applicant to use their statutory review and appeal rights to dispute a council’s decision about the suitability of temporary accommodation. Miss F said she could not use her right of appeal to court for Property X because of delays in responses by the Council. We therefore exercised our discretion to consider the way the Council had determined Property X was suitable.
  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.
  3. Miss F says the Council did not consider her medical issues. The Council took into account the medical information she had submitted with her homelessness application. This referred only to her daughter’s health conditions and the medical advisor had made no housing recommendations.
  4. I accept Miss F found many problems with the accommodation but it did not have a category one hazard. The Council was not required to carry out an inspection of Property X before Miss F was placed there. Its policy is to carry out sample inspections and it has an agreement with the property provider to maintain standards.
  5. The Council carried out its review when Miss F had been in Property X for three weeks. From its review decision letter I consider the Council gave due consideration to the issues Miss F raised about Property X, and to other relevant factors such as affordability and location. It also provided reasoned responses to those concerns in reaching a view that her accommodation was suitable. I do not find fault with the way the Council reviewed the suitability of Miss F’s accommodation.
  6. However, Miss F was in Property X for nine weeks. The Council has accepted it was fault to place Miss F and her child in B&B for longer than six weeks. This was in breach of the Suitability Order. The Council’s failure to move the household to self-contained housing within six weeks deprived Miss F and her child of suitable housing during a stressful period.
  7. When offering the B&B, the Council did not state in writing that B&B is unsuitable for families and the Council must secure alternative accommodation within six weeks. The Code of Guidance says councils should tell applicants of these points if it places them in B&B. As the information about suitability is significant, we consider it should be given in writing. Giving written notification ensures applicants can consider and refer back to the information later and ensures there is evidence the Council has complied with the statutory guidance. I find the Council was at fault for not giving written notification.
  8. In response to my enquiries, the Council offered to apologise and pay Miss F £300 to remedy the injustice caused by staying in unsuitable accommodation for three weeks longer than she should have. Miss F has said this offer is not acceptable to her. It is in line with the Ombudsman’s guidance on remedies and I consider it to be an appropriate and proportionate offer.

c) did not consider moving her to suitable accommodation in a different council area in London

  1. Councils are required to secure accommodation within their district, in so far as is reasonably practicable. In line with its location policy for temporary accommodation, the Council found Miss F had “close to borough” priority. It was not able to place Miss F in a different area and I do not find fault by the Council .

d) delayed in responding to her correspondence, causing her to lose her right to appeal the review decision to the county court

  1. I have seen no evidence of a delayed response by the Council to Miss F between 27 September 2017 and 18 October 2017.

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Agreed action

  1. Within a month of my final decision, the Council has agreed to:
    • Apologise and pay Miss F £300 to remedy the injustice caused by staying in unsuitable accommodation for three weeks longer than she should have.
    • Amend its standard letters when offering B&B, or reviewing the suitability of B&B temporary accommodation, to tell applicants that B&B is unsuitable for families and that the Council must secure alternative accommodation within six weeks.

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Final decision

  1. There was fault by the Council when it placed Miss F and her baby in unsuitable, temporary accommodation for too long. This caused injustice to Miss F.
  2. The Council’s agreement to carry out the above actions remedies the injustice caused and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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