Summary: The Ombudsman found no injustice to Miss W on her complaint of the Council leaving her and her family in unsuitable temporary accommodation. The Council made 2 offers of alternative accommodation she could have accepted. One was in an area she did not want to live in due to past problems, but this caused no injustice. She has now accepted an offer of accommodation. Records failed to show how officers considered the medical advisor’s recommendations and Miss W’s evidence. This caused no injustice.

The complaint

1. Miss W complains the Council placed her in unsuitable temporary accommodation after accepting it owed her a full housing duty following her homeless application and failed to move her and her family to alternative accommodation that is suitable for all their needs; as a result, she struggles with access because of mobility problems and her family is under great pressure.

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The Ombudsman’s role and powers

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)
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)

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Law on homelessness

4. 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.
5. If a council is satisfied someone is eligible, homeless, in priority need and unintentionally homeless, it will owe them the main homelessness duty. Usually a council arranges temporary accommodation until it makes a suitable offer of social housing or private rented accommodation. A council’s duty to a person it owes the main duty to ends when it offers a suitable tenancy, or the applicant accepts an offer made under the allocation scheme. (Housing Act 1996, section 193)
6. A council must ensure all accommodation it provides to homeless applicants is suitable for the needs of the applicant and members of his or her household. This applies to interim duties as well. (Housing Act 1996, section 206)
7. The duty to provide suitable accommodation is a continuing obligation. The council must keep the issue of suitability of accommodation under review. (Homelessness Code of Guidance (February 2018) paragraph 17.8)

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Council housing allocation scheme

8. Applicants wanting consideration of a health or disability of anyone in their household on the ground that it is seriously aggravated by their current housing conditions should provide as much information as possible on their medical needs. Applications involving a health-related issue will be assessed by the Council with advice either from the applicant’s doctor and/or the Council’s medical advisor as appropriate. The criteria for awarding medical points within the scheme will be applied. (paragraph 3.6.0)
9. Applicants are placed in bands and allocated points under the scheme:

• Band A: The highest band includes those accepted as homeless with, or expecting, a child in bed and breakfast for example;
• Band B: This includes those accepted as homeless in temporary accommodation provided by the Council or referring accommodation;
• Band C: This includes those with between 50-149 points; and
• Band D: The lowest band, including those with 1-49 points for example.

10. Points are awarded only to applicants on its ‘general needs’, ‘council tenant transfer’, and ‘older persons’ housing queues. Points are awarded for various needs including lacking bedrooms (50-200 points) and medical needs (0-150). (paragraph 3.10.0)
11. Homeless applicants, for which the Council accepts it owed a duty under s193 (2) Housing Act 1983, are placed in the ‘Homeless queue’. They are placed in one of 2 bands, Band A or Band B. Priority between applicants in the same band is decided by time waiting. (paragraph 4.0.0)

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How I considered this complaint

12. I considered all the information Miss W sent, the notes I made of my telephone conversations with her and her mother, and the Council’s response to my enquiries, a copy of which I sent her. I sent a copy of my initial draft decision to Miss W and the Council. I considered their responses including further information from the Council. I sent my revised draft decision to Miss W and the Council.

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What I found

13. Miss W has lived in private temporary accommodation arranged and managed by the Council since May 2017 after accepting it owed her a full homelessness duty. She lives in the 2-bedroom flat, split on two levels, with her partner, her 15-year-old daughter, her 11-year-old daughter who has mental health and behavioural support, and her 14-month-old daughter. Miss W is about to have another child and has various health problems.
14. The Council explained it moved her to this accommodation as the family were in a B+B at the time. She raised no concerns about mobility issues or the accommodation’s suitability at the time.
15. Miss W argues their first-floor accommodation is now unsuitable for her and her family’s needs because:

• She struggles with the 36 stairs to the flat from street level and the 13 internal stairs to an attic bedroom. Her health problems mean she gets dizzy which poses a risk to her and her baby when going up and down stairs. She also has problems with a weak hip and knees. Complications with the pregnancy are not helped by the stairs. In addition, she struggles carrying a pushchair up and down the stairs and because of access difficulties, feels trapped in her flat;
• She cannot fit a stairgate to the top of the stairs resulting from her baby falling down them;
• Her eldest daughter is a high-risk runaway who lives with her but stays with Miss W’s mother for part of the week. She claimed her second daughter broke her arm falling down the stairs. Her daughter needs the stability of a permanent home;
• Miss W struggles to clean the baby in the narrow shower and needs a property with a bath;
• The attic bedroom is cold as it lacks insulation between the wooden rafters. This means Miss W, the baby, and her partner sleep in the living room. There is also a lack of space for a cot; and
• The 11-year-old cannot share a bedroom because of behavioral issues.

16. In January 2019, the Council received an email from her saying the property was no longer suitable as she had a mobility condition since the birth of her last child. She explained it was no longer suitable because of problems with her knees, about which she would get a diagnosis the following week, her pelvic problem which affects movement, her thyroid, and back ache. She worried about the steep stairs to the flat and internal stairs to the attic bedroom, especially when carrying 2 babies. She explained how she struggled washing the baby in the shower and her middle daughter needed to be within easy travelling distance of school.
17. Her social worker supported a move on medical grounds. Miss W provided medical evidence which was sent to a Council Medical Advisor (CMA). The referral to the CMA noted there were 2 adults, 2 females under 18, and 1 male under 18 in the property. This was wrong as there were 3 females under 18.
18. The CMA recommended a property up to 1st floor if there was no lift but it had level access, and up to 5th floor with lift and level access. The Council accepted these recommendations and confirmed it meant the family now had to move. It placed her on the transfer list for alternative temporary accommodation.
19. The same month, it also received an email from Miss W saying one of her daughters was not living with her but with her mother. The Council failed to send a copy of this email.
20. The Council explained the CMA makes recommendations based on medical evidence received. It is for officers to accept or reject those recommendations. The officer accepted the CMA’s recommendations on Miss W’s application. This was because her letter from the GP did not give medical reasons for her and her family to have ground floor accommodation. The CMA did not consider it necessary to contact the GP to discuss the case.
21. In April, the Council sent her its stage 1 response on her complaint. This confirmed her accommodation was not suitable and it agreed to transfer her. It confirmed she needed a 3-bedroom property. Several days later, the Council sent her MP a letter confirming the outcome of its review. The Council again acknowledged her accommodation was unsuitable. The letter said the officer reached this decision after considering her representations, household composition, medical issues, and the personal circumstances of her household. It placed her back on the transfer list to find an alternative suitable property.
22. The following month she sent medical evidence from her psychotherapist.
23. Miss W told an officer she would not move into the private sector and nor could she live near a named estate because of threats of violence from a resident there. The Council offered her the following alternative temporary accommodation in 2019:

• Property 1 (January): A 1st floor self-contained 2-bedroom accommodation. Although it had no lift, Miss W said this was not a problem. The Council offered it but she then changed her mind as she realised it was in the private sector and too expensive. The officer had carried out an affordability assessment which found it suitable. In its response to my initial draft decision, the Council said it had 3 bedrooms (2 bedrooms and a living room);
• Property 2 (April): A Council hostel 2-bedroom ground floor property with the possibility of converting a second kitchen into a bedroom. The Council said a kitchen had already been removed. After viewing it, Miss W refused saying it needed too much work. In an email to her MP, the Council confirmed at a meeting at the property, ‘it was found to be unsuitable and the offer was withdrawn’. This was confirmed in a letter to the MP as well. The Council maintained it was suitable. In response to my draft decision, the Council said it had 4 habitable rooms; and
• Property 3 (May): A self-contained 1st floor Council flat. It was not on the estate she named but shared the same area postcode. The Council said it was 3 bedroomed. She refused saying it was unsuitable. Nor would she manage the stairs. The Council considered it suitable but because of her situation, decided not to discharge its duty.

Analysis

24. The medical evidence Miss W sent in May 2017 did not refer to any problems with mobility. She raised no concerns about its suitability until January 2019. At this point she sent the Council information about her various problems with the accommodation. The Council sent a referral to the CMA the same month along with the evidence Miss W provided and the need for her to stay in borough. The CMA recommended a property up to 1st floor (if not lifted) but to have level access. Miss W’s accommodation is not level throughout as it has stairs to the attic bedroom.
25. While the Council agreed to place her on the transfer list in January, it was only after a review in April that it decided the accommodation was unsuitable.
26. I consider placing her on the transfer list in January was an acceptance her accommodation was no longer suitable for her. Its stage 1 complaint decision, reached shortly before the review, confirmed she now needed a 3-bedroom property.
27. While Miss W has lived in unsuitable accommodation since January 2019, I am satisfied the Council took steps to find and offer her suitable accommodation:

• Miss W refused Property 1 because it was in the private sector. While she may well have preferred not to move into the private sector, councils can discharge the main homelessness duty by offering accommodation through a private landlord or a private registered provider of social housing.
• While Miss W decided Property 2 was unsuitable, the Council could have converted the kitchen that had been removed in to a third bedroom/living room. Section 325 (2) (b) of the Housing Act 1985 states a room can count as sleeping accommodation if it is of the type used in the area as a bedroom or living room.

28. I considered the Council’s arguments about Property 3. It noted the incident Miss W said involved her took place 2 years earlier in a school that was not in the estate she wanted to avoid. There was no police evidence or any corroborating evidence to support any claim of continuing risk to Miss W. Nor was there evidence the other party involved lived on this estate. It explained the estate is very large and found no reason to suggest she would be at risk. It pointed out that despite this, it accepted her rejection of this offer.
29. I consider the Council failed to properly consider Miss W’s reasons for not wanting to live close to her previous address because of her daughter’s experiences with a neighbour. Property 3 was within 200 metres of her previous address. I am not satisfied this caused an avoidable injustice. This is because the Council offered her Property 1 and 2 which she could have accepted on a temporary basis which would have resolved some of the problems experienced with her current accommodation. In addition, the Council decided to accept her reasons for rejecting all 3 properties without forcing her to use the statutory review procedure. Miss W has now accepted a ground floor property the Council invited her to visit.
30. I also considered how the Council assessed Miss W’s needs after it received information and evidence from her in January.
31. The CMA’s recommendation entry on the referral form about the need for level access, stair restrictions, and other specific recommendations stated, ‘nil specific’. The form has a section for the authorising officer’s comments. This includes the officer’s name, the date, and whether the officer accepted, rejected, or decided to review the CMA recommendation. This part of the form was blank.
32. A further CMA referral resulted in a recommendation for Miss W to live within the borough. Again, the part of the form for the authorising officer to complete was blank.
33. The Council failed to provide evidence showing officers weighed all the evidence alongside the CMA recommendation when deciding whether to accept or reject the recommendations and reaching their own decisions. While fault, the Council accepted the recommendations, which meant her current accommodation became unsuitable, so I am not satisfied this caused any significant injustice.
34. In response to my initial draft decision, the Council confirmed officers will in future complete the form.

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Final decision

35. The Ombudsman found no injustice on Miss W’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman