Summary: The Council was at fault because it did not increase the points awarded to Miss X’s housing application when it had not found suitable alternative temporary accommodation for her within three months of upholding a suitability review. The Council has agreed to provide a suitable remedy. Two other parts of Miss X’s complaint were not upheld.

The complaint

1. Miss X complains that the Council:
1. moved her to temporary accommodation on a busy main road when it knew from medical evidence already on file it would not be suitable because she suffers from chronic tinnitus;
2. took two months to complete a review of the suitability of the accommodation;
3. failed to make an alternative offer of accommodation after the reviewing officer upheld the review on 11 July 2018 and decided the property was not suitable.
2. Miss X says the constant traffic noise on the busy main road outside the flat has exacerbated a pre-existing health condition.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I have spoken to Miss X, considered the Council’s response to my enquiries and relevant records.
6. I have written to Miss X and the Council with my draft decision and considered their comments.

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What I found

7. If a council is satisfied, after making inquiries, that someone is homeless, eligible for assistance, in priority need and not intentionally homeless, it owes them the main housing duty. It will usually discharge the duty by providing temporary accommodation until the person is made a suitable offer of social or private rented sector housing.
8. The law says councils must ensure that all accommodation secured for homeless applicants is suitable for the needs of the applicant and members of his or her household. This duty applies equally to accommodation arranged under any of the duties and powers in Part 7 of the Act. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2
9. Following the Council’s acceptance of the main housing duty, homeless applicants have the right to request a review of the suitability of any temporary accommodation offered to them. (Housing Act 1996, section 202)
10. 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 review must be completed within eight weeks of receiving the review request. This period can be extended, but only with the applicant’s written agreement. 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 to the County Court on a point of law. (Housing Act 1996, sections 203 and 204 and the Homelessness (Review Procedure etc) Regulations 2018).

The background to Miss X’s complaint

11. Miss X is a single homeless woman. Many years ago, she had a stroke. She also has severe tinnitus and arthritis. These conditions have left Miss X with chronic balance problems and dizziness. She is unsteady and prone to falls. She suffers from depression and anxiety.
12. After a series of homelessness reviews, the Council decided in late March 2018 that it owed Miss X the main housing duty as a homeless person in priority need. The decision letter explained her right to request a statutory review of the suitability of any temporary accommodation offered to her.
13. The Council had accommodated Miss X in a room on the fourth floor of a bed and breakfast (B&B) hotel while it considered her homelessness application and requests to review previous adverse homelessness decisions. The Council later accepted the B&B room was not suitable for Miss X’s mobility needs.
14. In April 2018 Miss X requested a medical assessment. The Temporary Accommodation team asked the Housing Health & Disability team (HHDA) to assess Miss X’s housing needs. The notes show a manager in the HHDA team considered several letters written by Miss X’s GP and hospital consultants in 2016 and 2017 and her patient record.
15. I have read all the medical evidence the HHDA manager considered. There are several references to Miss X having severe right sided tinnitus. None of the documents explain the impact this has on her housing needs.
16. On 20 April 2018, the manager completed the health and disability assessment form. She accurately summarised Miss X’s medical conditions. With reference to the tinnitus, she noted this affected her right ear and caused some nausea and dizziness.
17. The HHDA manager recommended Miss X should not be offered accommodation above first floor level because she has balance problems and there is a risk of falls. She made no recommendations about the location of the property and did not specify any other essential requirements.
18. On 27 April, an officer in the Temporary Accommodation team spoke to Miss X to discuss her needs as part of the suitability assessment for an offer of temporary accommodation. After the call, she sent an email highlighting the following issues:
• she finds stairs difficult due to her balance problems. A ground or first floor property would be ideal and the second floor is the maximum she could manage;
• constant noise would exacerbate her tinnitus and a property in a quiet area would be ideal;
• she would prefer a one bedroom flat as her anxiety is triggered in a small space such as a studio;
• she would like to remain within reasonable travelling distance of the central London hospitals where she received ongoing outpatient treatment.
19. On 30 April, the Council updated Miss X’s case records with the Medical Adviser’s recommendations. From the records I have seen, it is not clear that the Council directly responded to the points in Miss X’s 27 April email.
20. In early May 2018, the Council offered Miss X a one bedroom first floor flat with lift access in another London borough. The flat is over a shop on a major trunk road.
21. On 14 May Miss X sent an email after office hours to the Placements team. She said the flat was not suitable for her on medical grounds. It was on a very busy road with constant traffic and over a minicab office and busy shop. She said the Council already had medical evidence confirming she has chronic tinnitus. She said her consultant had advised her to avoid excessive, loud noise because it exacerbated her condition. She asked the Council to review the suitability of the offer before she was expected to move in on 17 May 2018.

22. On 15 May Miss X spoke to an officer in the Temporary Accommodation team. She agreed to accept the offer even though she considered it unsuitable because the Council said it would otherwise discharge the main housing duty.
23. She told the officer she had requested a review and would send supporting medical evidence. The officer consulted the Health & Disability assessment team who said the offer complied with the medical recommendations and suitability assessment. He called Miss X on 17 May to say the Council considered the property was suitable for her needs and it would proceed.
24. Miss X moved to the property on 17 May. On the same day, her GP wrote a supporting letter. He stated that Miss X found noisy environments made her tinnitus worse. He said the location of the flat on a busy main road was likely to aggravate her symptoms. He supported her request to be rehoused in a residential area away from busy roads. Miss X sent this letter by email to the Council.

The review request and decision

25. Miss X sent emails on 14 and 17 May 2018 to request a review of the suitability of the flat.
26. On 22 May the Review Officer acknowledged her request and asked her to make any further representations by 11 June.
27. Miss X instructed a solicitor to make representations on her behalf. On 29 May the solicitor contacted the Review Officer to ask for a copy of Miss X’s housing file and more time to make written representations.
28. On 30 May the Review Officer sent the housing file to the solicitor and agreed to extend the deadline to 15 June.
29. On 14 June, the solicitor requested a further extension. The Council agreed. The Review Officer received the solicitor’s representations on 25 June 2018.
30. On 27 June, the Review Officer asked the solicitor for an extension to give him time to arrange for an independent Environmental Health consultant to inspect Miss X’s flat. The solicitor agreed.
31. On 3 July, the Review Officer and independent EHO made a joint visit to Miss X’s flat. The Review Officer noted there was a steady flow of commercial traffic on the road and it was on several bus routes. The EHO inspected the windows in the flat and found they were double-glazed and in satisfactory condition. The EHO did not consider the noise levels inside the flat were a statutory nuisance or a Category 1 hazard. But the Review Officer noted that the traffic noise was audible inside the flat with the windows closed. The noise was very intrusive when the windows were open.
32. The Review Officer noted the correct test was to decide whether the property was suitable for Miss X, having regard to her particular medical conditions, rather than assessing its suitability for the average person. He noted the evidence from Miss X’s doctors confirmed a noisy environment was likely to exacerbate her symptoms. Having considered this evidence, he decided the accommodation was unsuitable for Miss X.
33. On 11 July 2018 the Review Officer wrote to Miss X (and her solicitor) to inform them of his decision that the property was not suitable. He explained the Temporary Accommodation team would carry out a further suitability assessment and contact Miss X. She would receive a further offer of temporary accommodation in due course.
34. The review decision was made two days after the eight week period expired.

Events following the review decision

35. Following the review decision, Miss X was placed on the temporary accommodation transfer list.
36. As she had not been made an offer of alternative temporary accommodation by December 2018, Miss X complained to the Ombudsman. In its final response to her complaint, the Council had apologised for the time it was taking to find suitable alternative temporary accommodation. It said the Property team hoped to make a suitable offer soon. It did not uphold the other parts of her complaint. In particular, it did not find the Council had knowingly offered unsuitable temporary accommodation in May 2018.
37. On 20 March 2019 the Council offered Miss X alternative temporary accommodation in another London borough. Miss X viewed the property with a housing Occupational Therapist. She considered the location was unsuitable because it was too noisy. The Council agreed to withdraw the offer.
38. On 21 March an officer spoke to Miss X. She explained she could not be in a property close to busy roads or stations. She did not want a studio and would only accept a one bedroom flat.
39. The Council says the property team had searched for suitable accommodation for Miss X but found nothing suitable for her needs. It cannot provide any documentary evidence of the property searches. It says the Property team matches vacant properties on the day they become available to households in need of accommodation. Applicants who are “homeless on the day” have first priority. It then moves on to consider households already in temporary accommodation who need to move on medical grounds, or because the property is due to be handed back to the landlord.
40. In April the Council invited Miss X to view a social housing property in the borough. Miss X says the Council described it as a one bedroom flat. She viewed it and considered it was a studio flat. She refused the offer because she considered it was too small.

Error identified during this investigation

41. Miss X is on the Council’s Housing Register. This enables her to bid for social housing properties advertised on the Home Connections choice-based lettings scheme.
42. The Council’s housing allocations scheme says:

“Supporting health and independence (900 points)

If you are living in temporary accommodation that the Council agrees is unsuitable, you will not be awarded an additional priority for rehousing on health grounds for three months following the assessment. Instead, the Council will look to secure you alternative suitable temporary accommodation as soon as it is possible.

If the Council has not secured suitable alternative temporary accommodation within three months, you may be awarded an additional priority for rehousing on health grounds. The date of the award of this priority will be the date that the current temporary accommodation was deemed unsuitable.”

43. When the Council checked its records to respond to our enquiries, it discovered the wrong reason was entered when Miss X was placed on the temporary accommodation transfer list. The reason given was “distance to travel” rather than “medical”. Due to this error, Miss X had not been awarded the 900 additional points to which she became entitled on 11 October 2018 because it had not found alternative accommodation within three months of the review decision.
44. The Council identified this error and accepts this was fault. It apologised and proposed the following remedy:
• It would make Miss X a one-off direct offer of social housing when the next suitable property became available;
• If she refused that offer, she would retain the additional points so that she could continue making bids for social housing until such time as suitable temporary accommodation could be found.

45. The Council awarded the additional 900 points on 27 March 2019. In April 2019, it made Miss X a direct offer of accommodation which she viewed and decided to refuse.
46. I asked the Council for evidence of properties allocated between 11 October 2018 and 27 March 2019 to establish whether Miss X missed out on other potential offers of suitable social housing due to the delay in awarding the 900 points.
47. The evidence shows the Council allocated 26 studio properties and 49 one bedroom flats between 11 October 2018 and 27 March 2019. Miss X bid for one of these studio flats and was shortlisted. But she refused it because she wanted a one bedroom flat.
48. Of the 49 one bedroom flats, Miss X would have been ranked first on the shortlist for five. The Council analysed whether any of these five properties would have been suitable for Miss X’s medical needs (not above the first floor and not on a busy main road or near a station). Three flats were not suitable because they were on higher floor levels. The other two had 10 external steps to access the building and were also on a busy road or close to an underground and rail station. None of these properties would have been suitable for Miss X in view of her specific medical needs.
49. The evidence shows Miss X did not miss an offer of suitable social housing due to the delay in awarding the additional points to which she became entitled in October 2018.

The impact on Miss X

50. Miss X says the temporary accommodation allocated in May 2018 is suitable for her mobility needs. But the intrusive noise from constant traffic on the busy main road exacerbates her chronic tinnitus. She had told the Placements team before it allocated the flat that she had chronic tinnitus and needed a quiet location. She says the Council already had medical evidence confirming her medical condition.
51. Miss X told me the bedroom and living room in the flat both face the main road so she cannot get away from the constant traffic noise. She cannot open the windows. She fixed duct tape around the windows to reduce draughts and noise. During the day, she goes to the local library or park to get some peace and quiet. She takes medication at night to help her sleep.
52. She is upset that she is still in the flat so long after the Review Officer decided it was unsuitable for her.

Analysis

Complaint a)

53. There is no dispute that the Council had medical evidence confirming Miss X suffers from severe tinnitus before it allocated the temporary accommodation to her in May 2018.
54. I have carefully considered the medical evidence available to the Council at the relevant time. It confirmed Miss X has severe tinnitus. But it did not say she would be adversely affected by environmental noise and it did not recommend accommodation in a quiet location. It was not until 17 May 2018 that Miss X sent a letter from her GP that clearly stated that her tinnitus would be exacerbated by noise. By then she had already been offered, and accepted under protest, the flat.
55. Miss X’s room in the B&B hotel was unsuitable because it was on the fourth floor with no lift. The Council had focused on finding temporary accommodation that would meet Miss X’s mobility needs. The officer who carried out the medical assessment on 20 April 2018 reviewed all the medical evidence available at that time. She made recommendations based on that evidence. The flat offered in May complied with those medical recommendations.
56. Having reviewed all the evidence, I do not consider the Council deliberately offered Miss X a flat knowing it was unsuitable for her needs. During the review process, the Review Officer considered new evidence, including the findings from his visit to the flat, which led him to conclude the property was not suitable on medical grounds. However, that does not mean the decision to allocate the property on 14 May was wrong. It was made on the medical evidence available at that time and it complied with the health and disability assessment. For these reasons, I found no fault.

Complaint b)

57. The law says councils must make a review decision within eight weeks of receiving a request unless the applicant has agreed to an extension. In this case, the review decision was made within eight weeks and two days.
58. There was no significant delay in making the review decision. I also took into account that there was one bank holiday and Miss X’s solicitor’s requested two extensions during this period. There was no fault.

Complaint c)

59. The Council says its property team searched for alternative temporary accommodation for Miss X following the July 2018 review decision. However, it found nothing suitable for Miss X taking into account the maximum floor level and need for a quiet location.
60. It has no documentary evidence to show how it matched the units that became available to households needing temporary accommodation. But there is no requirement for councils to keep records of every individual property match.
61. However, the Council entered the wrong reason when it put Miss X on the temporary accommodation transfer list in July 2018. Due to this error, it did not award the 900 additional points she became entitled to in October 2018. 900 extra points should have been awarded then because the Council had not found suitable alternative accommodation within three months of the review decision. That error was fault. The Council did not identify the error when it investigated Miss X’s complaint. It only came to light when it checked its records again during this investigation.
62. I have considered whether the delay in awarding the 900 extra points led to Miss X missing an offer of suitable social housing between October 2018 and March 2019. Having reviewed evidence provided by the Council, I find she did not miss a potential offer. Miss X has said she will not accept studio accommodation. Of the 49 one bedroom properties allocated between October 2018 and March 2018, Miss X would have been ranked first for five if she had been awarded the correct points. But none of these properties were suitable for her specific needs. They were either on a higher floor level or located near a busy road or station. For this reason, I find the fault did not cause any significant injustice to Miss X. She did not miss an opportunity to be offered suitable social housing sooner due to the delay in awarding the extra points.
63. The Council apologised for this error when it replied to our enquiries. It has since made Miss X a direct offer of a Council property that it considered was suitable for her medical needs. Miss X viewed the property and decided to refuse the offer.

Agreed action

64. Within one month of my final decision, the Council will arrange for a senior officer to apologise in writing to Miss X for the error with the points award. It will also pay £200 to recognise her time and trouble in making a complaint to the Ombudsman to get the error with the points award identified and rectified.
65. The Council will continue searching for suitable alternative temporary accommodation. Meanwhile Miss X can continue to bid for social housing advertised on the Home Connections scheme.

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Final decision

66. I have completed the investigation and found no fault on parts a) and b) of the complaint.
67. I found fault in relation to complaint c). The injustice is limited to Miss X’s time and trouble in pursuing the complaint with the Council and the Ombudsman to get the error identified and put right.

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Investigator's decision on behalf of the Ombudsman