Summary: Ms Y complains the Council placed her family into unsuitable temporary accommodation in October 2015 and has since failed to resolve her concerns about the property. The Council did not properly explain Ms Y’s right to request a suitability review of the accommodation. The Council will now undertake a review and pay £150 to Ms Y in acknowledgment of her avoidable time and trouble.

The complaint

1. The complainant, whom I will call Ms Y, complains the Council placed her into unsuitable temporary accommodation in October 2015 and has failed to resolve her concerns about the accommodation.
2. Ms Y says the property has affected the health and well-being of her household.

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What I have investigated

3. I have investigated the Council’s procedure around the notification of suitability reviews. Although the Council’s offer of temporary accommodation was made back in October 2015, I am satisfied that it was not reasonable for Ms Y to have complained about this point sooner because the notification letter was unclear.
4. I have investigated the Council’s responses to any reports of disrepair made by Ms Y since December 2016 onwards. I have not investigated any earlier reports for the reasons explained at the end of this statement.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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

8. During my investigation, I have:
• Discussed the complaint with Ms Y, and considered any information she has submitted;
• Made enquiries of the Council, and considered its response;
• Consulted the relevant law and guidance, referenced where necessary in this decision statement; and
• Issued a draft decision statement and invited comments from Ms Y and the Council. I considered any comments received before making a final decision.

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What I found

9. When a person applies to a council for accommodation, and it has reason to believe they may be homeless or threatened with homelessness, a number of duties arise, including:
• to make enquiries;
• to secure suitable accommodation for certain applicants pending the outcome of the enquiries;
• to notify the applicant of the decision in writing and the right to request a review of the decision.
10. When it has completed its enquiries, the Council must issue a decision on the homeless application and issue notification of this under section 184 of the Housing Act 1996. This notice must advise the applicant of their right to ask for a review of the Council’s decision including any offer of temporary accommodation. The time limit to request such a review is 21 days from the date of the notice.
11. Both the Housing Act and the Homelessness Code of Guidance (2006) make clear that councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of their household.

What happened

Key background information

12. Ms Y lives with her three children. In 2015 she became homeless when her previous landlord decided to renovate the property ahead of their own family moving in. The landlord evicted Ms Y, and she approached the Council for assistance with housing.
13. Ms Y suffers with Osteoarthritis, which causes joint pain and affects her mobility. Ms Y says she told the Council that she may have to rely on walking aids in the future due to the decline in her mobility. Ms Y also suffers with gynaecological issues and incontinence.
14. At the time of approaching the Council, Ms Y’s son was 12 years old and attending a secondary school within the borough. Ms Y also worked full-time within the area.
15. The Council accepted a full homeless duty to Ms Y on 5 November 2015. Shortly before confirming acceptance of the duty, the Council made an offer of temporary accommodation (TA), located outside of its borough, to Ms Y on 26 October 2015. Ms Y and her family remain in the TA to date.

Suitability of temporary accommodation

16. The letter confirming the Council’s offer of TA stated: “The Council has accepted an application from you under Part VII of the Housing Act 1996 and Homelessness Act 2002. The Council has arranged for you and the following persons [names removed] to be temporarily housed in accommodation provided to you by a private agent…”
17. The Council then confirmed acceptance of the main homeless duty within its section 184 letter. It confirmed on 5 November: “The accommodation you are currently occupying will remain available to you as the first stage in discharging our duty to provide you with suitable accommodation. Whilst you keep to the terms of your temporary accommodation agreement it will remain available to you until we make an offer of further suitable housing or you make a bid under the Choice Based Lettings Scheme”. The letter went on to say: “In case of an offer of suitable accommodation, the 21 day time limit for requesting a review of the offer begins with the date of the offer”.
18. But further on, the letter then states: “you can request a review of this decision under section 202 of the Housing Act 1996 Part VII within 21 days of this decision”.
19. In Ms Y’s case, the offer was made on 26 October and so, according to the Council’s information, she had 21 days from that date to request a review.
20. Almost immediately after receiving the offer of TA, Ms Y contacted the Council to request a review. In an email dated 30 October, which Ms Y entitled the subject as ‘review of temporary accommodation’, she said: “I would like the placement reviewed and if possible a placement in Waltham Forest due to my mobility suffering and now what looks like my son’s mental health”. Ms Y went on to list the reasons for requesting a review, which I have summarised as follows:
• Location. The journey to and from work is too long and the drive causes her pain. Public transport is not an option because of the length of the journey. Nor is it feasible for her son to travel to school by public transport, as the journey would take an hour and a half.
• Health. Ms Y’s son has become angry and tearful because he does not feel safe in the property.
• Parking. There is no parking within the local area and there is a waiting list for a residential parking permit. The nearest area to park is 15-minute walk away.
21. Ms Y’s casework officer responded later that day. She confirmed that she had passed Ms Y’s email to her manager for further consideration. The files show that Ms Y received no further contact from the Council about her request for a review.

Disrepair in temporary accommodation

22. The responsibility for undertaking repairs lies with the managing agent of the property, rather than the Council. However, the Council retains an overarching responsibility to ensure any accommodation provided to homeless applicants is suitable under the Housing Act. The Council therefore has a duty to ensure managing agents complete any works necessary to make the property suitable.
23. Throughout her residency, Ms Y has reported disrepair within the TA. For the reasons explained elsewhere in this statement, I have limited the scope of my investigation to only consider reports of disrepair made since December 2016. According to the Council’s files, the reports made in this period are as follows:
• Windows. Ms Y raised concerns about the adequacy of the window seals in December 2017. The managing agent inspected the property and arranged for a new seal to be fixed onto the double-glazed frame in January 2018.
• Hot water. Ms Y said water was not reaching the required temperature in February 2017. A plumber attended four days later to increase the boiler temperature. The Council confirms the boiler is gas safety compliant.
• Electricity. Ms Y reported in December 2017 that her daughter could not turn the light on in her bedroom as this tripped the fuse. Ms Y had concerns about the safety of the wiring. The Council confirms that its contractor attended the property nine days after the report and confirmed the electrics were safe. The contractor also made repairs to the bedroom light and two sockets.
• Sewage. Ms Y reported a smell of sewage to the Council in April 2017. She also raised concerns with her home authority’s Environmental Health team in April 2017. The managing agents inspected the internal drains in May 2017 and found these to be in good working order. The Housing Association also jetted the external drains after Ms Y made a further report in October 2017.
• Leaking toilet. Ms Y reported a leak in the toilet in 2016. A plumber attended twice and found no evidence of a leak. However, a routine inspection by the managing agents in December 2017 located a small leak between the toilet and pipe, which was later fixed.

Injustice caused by fault

Suitability of temporary accommodation

24. The Homelessness Code of Guidance (2006) states: “All notifications must inform applicants of their right to request a review of the housing authority’s decision and the time within which such a request must be made. At this stage, it is also recommended that housing authorities explain the review procedures”.
25. In response to the Ombudsman’s enquiries, the Council confirmed it did not treat Ms Y’s correspondence of 30 October 2015 as a formal review request. This is because the Council says Ms Y did not, at that time, have the right to request a review because it had not yet issued its homelessness decision under section 184 of the Housing Act (1996). But there is no evidence that the Council explained this to Ms Y. Had it done so, Ms Y could have re-submitted her review request within the correct timescales.
26. I also consider the Council’s section 184 letter is, in parts, confusing and contradictory. In one part, it states that the 21-day deadline for requesting a review “of an offer of suitable accommodation” begins from the date of the letter in which the Council makes the offer of temporary accommodation. It then goes on to say the 21-day period begins from the date of the section 184 decision.
27. The right to request a section 202 review of the suitability of temporary accommodation does not arise until the Council has confirmed acceptance of the full homeless duty, as per the section 184 letter. However, the Council did not make this clear in its letters to Ms Y, thus creating some confusion about her eligibility for requesting a review. This is fault.
28. As the Council did not make Ms Y’s rights clear, or explain the review process, I have exercised discretion to investigate this part of the complaint because I am satisfied it was not reasonable to have expected Ms Y to complain sooner.
29. In the draft version of this statement I asked the Council to review its decision letter and to provide evidence that they give clear and correct information about the timescales for requesting a review. In response to my draft decision the Council provided a copy of its current decision letter, and I am satisfied the information within this is clearer than the version Ms Y received.
30. Despite the 21-day deadline lapsing in 2015, the Council has recently agreed to review the suitability of Ms Y’s TA. But to date, Ms Y has not submitted a review request.
31. The Ombudsman is not the correct body to determine whether temporary accommodation is suitable. This is a matter for the Council to determine, using the criteria set out in the Housing Act and the Code of Guidance. Councils must also have regard to any relevant case law. In April 2015 the Courts reached a judgement on the case of Nzolameso V City of Westminster. In this case the applicant argued the council had rehoused her family outside of borough and, when doing so, had failed to take account of her family’s needs.
32. The Courts found that the council “… cannot show that their offer of the property in Bletchley was sufficient to discharge their legal obligations towards the appellant under the 1996 Act. Moreover, their notification to the appellant that their duty towards her had come to an end was purportedly given in circumstances where she did not know, and had no means of knowing, what, if any, consideration had been given to providing accommodation in or nearer to the borough, apart from the general standard paragraph in the letter…”
33. As a result, since April 2015, councils are required to evidence any searches made for accommodation within, or close, to its borough. This step should be taken before a council can justify an out of borough placement. It is not acceptable for councils to make out of borough placements for the sole reason that there is a shortage of accommodation within the borough.
34. In Ms Y’s case, the Council says it cannot evidence any searches it made before offering TA outside of its borough. Ms Y’s request for a review in October 2015 made clear that the location was unsuitable due to her place of work and the location of her son’s school. There is no evidence that the Council considered this before making its offer, other than to state the location of the school on its standard pro-forma.
35. It is my view that Ms Y experienced avoidable time and trouble by the Council’s lack of information about her review rights. The Council should undertake the actions recommended at the end of this statement to remedy that injustice.
36. However, I cannot measure the substantive injustice because the Council first needs to undertake a formal review of the TA’s suitability. Ms Y may decide to make a further complaint to the Council, and return to the Ombudsman, depending on the outcome of that review. She should be mindful that challenges to review decisions should be made to the County Court. However, if the review does find that the accommodation is unsuitable, the Ombudsman could consider whether there is any outstanding injustice requiring further remedy i.e. the effects of occupying unsuitable housing. Ms Y should make any additional complaints to the Ombudsman within 12 months of receiving the Council’s review decision.

Disrepair

37. Based on the information seen, which includes copies of reports made by Ms Y, as well as the Council’s own chronology, I find no evidence of fault in the Council’s handling of the disrepair reported by Ms Y. I appreciate some of Ms Y’s concerns date back to early 2016, but I have not investigated these because I find it was reasonable for Ms Y to have pursued a formal complaint at the time.
38. During the period investigated, I found the Council and its managing agents responded appropriately to the reports made. The reports made by Ms Y often resulted in a visit or inspection, as well as the completion of any necessary remedial works. The Council has also provided evidence of the quarterly inspections undertaken in 2017.
39. Ms Y has ongoing concerns about sewage smells. But both the external and internal drains have been inspected, with no concerns found. I am also aware that Ms Y made more than one report about the leak in her toilet before it was eventually fixed. However, the Council has explained that the plumber who attended did not locate a leak. The managing agents later found a small leak which was repaired in December 2017. I appreciate this was frustrating for Ms Y, but I cannot speculate why the plumber did not locate the leak in 2016. Nevertheless, Ms Y could have complained about this sooner if she was unhappy with the outcome of the plumber’s investigation.
40. For the reasons explained, I do not find evidence of fault in the actions taken following Ms Y’s reports of disrepair.

Agreed action

41. Upon closure of this case the Council will immediately contact Ms Y and begin a review into the suitability of her temporary accommodation. The Council should ensure the review is completed within the statutory eight-week period.
42. Within four weeks of my final decision, the Council will also:
• Apologise to Ms Y and pay £150 for the avoidable time and trouble caused by the conflicting information provided within its decision notification letters, and its failure to notify Ms Y that her review request of 30 October 2015 had been rejected.

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Final decision

43. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed action appropriately remedies the injustice caused by fault.

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Parts of the complaint that I did not investigate

44. I have investigated the Council’s actions in response to reports of disrepair made by Ms Y since December 2016, as this falls within 12 months of Ms Y’s complaint. However I have not investigated any reports made in 2015 and 2016 because it was reasonable for Ms Y to have complained about these matters sooner.

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Investigator's decision on behalf of the Ombudsman