Summary: Ms X’s representative complained about the way the Council handed homelessness applications made by Ms X and the suitability of the accommodation the Council offered her. The Council was at fault when it failed to offer Ms X two rights to a review, placed her in unsuitable accommodation, including bed and breakfast placements, and delayed at times in its communications with her. The Council has agreed to make a financial payment of £3,225 and make procedural changes to remedy the distress and frustration this caused Ms X and her family.

The complaint

1. Ms X’s solicitor complained the Council:
• wrongly determined on a number of occasions that Ms X made herself deliberately homeless;
• failed to obtain the appropriate assessments for Ms X’s son, Z, before making Ms X offers of housing;
• failed to respond to Ms X or her solicitor’s correspondence in a timely manner and provide the information requested;
• delayed in finding Ms X suitable temporary or permanent accommodation after accepting the full homelessness duty.
2. Ms X’s solicitor states the Council’s actions have caused Ms X and Z distress and anxiety over a prolonged period of time.

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The Ombudsman’s role and powers

3. 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)
4. In this case I have exercised my discretion and looked at events relating to Ms X’s submission of homelessness applications from June 2015 onwards. This is because the matters complained only completed the Council’s complaints process in May 2018 and the Council has detailed records of the events which enables a meaningful investigation to take place. I have not exercised my discretion to look at the events which occurred in 2012 or the subsequent eviction.
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. 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

7. I considered the information provided by Ms X’s solicitor. This included complaints correspondence and other communications with the Council.
8. I made enquiries of the Council and considered the information it provided. This included details of the properties Ms X lived in, medical documents considered by the Council and details of housing offers the Council made Ms X.
9. I considered the Ombudsman’s Guidance on Remedies.
10. I have written to Ms X’s solicitor and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

11. Under section 17 of the Children Act 1989, councils have a general duty to safeguard and promote the wellbeing of children in need in their area.
12. Section 17 can be used by councils to provide accommodation for a child and their family if they are homeless.
13. A child in need is defined under the Children Act 1989 as a child who is unlikely to achieve or maintain a reasonable level of health or development, or whose health and development is likely to be significantly or further impaired, without the provision of services; or a child who is disabled.

Homelessness duty

14. 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.
15. 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 this duty by arranging temporary accommodation until it makes a suitable offer of social housing or private rented accommodation. (Housing Act 1996, section 193)
16. Councils no longer have a homelessness duty if the applicant, having been informed of the consequences of refusal, refuses an offer of accommodation which the council is satisfied is suitable for them. (Housing Act 1996, section 193(5))

Timescales for dealing with homelessness applications

17. Government guidance says councils should be able to complete their enquiries into a person’s circumstances to determine if the council owes then the homelessness duty within 33 days “and in many cases it should be possible for authorities to complete their inquiries significantly earlier”. (Homelessness Code of Guidance for Local Authorities June 2006).
18. Councils must complete a review of their decision within eight weeks of receiving the request. This period can be extended but only with the agreement of the appellant in writing.

Suitability of accommodation

19. The law says councils must ensure all accommodation provided to homeless applicants is suitable to meet the needs of the applicant and their household. (Housing Act 1996, section 206 and (from 3 April 2018) Homelessness Code of Guidance 17.2)
20. Homeless applicants may request a review of the suitability of temporary accommodation provided once the council has accepted the main homelessness duty. (Housing Act 1996, section 202)
21. The review must be completed within eight weeks. If the applicant is dissatisfied with the review decision, or if the council fails to reach a decision within eight weeks, the applicant can appeal to the county court on a point of law within 21 days. (Housing Act 1996, sections 203 and 204)

Bed and breakfast accommodation

22. In April 2004, the government introduced The Homelessness (Suitability of Accommodation) (England) Order 2003. This says bed and breakfast accommodation is not suitable for families unless no other accommodation is available and, even then, it must only be provided for a maximum of six weeks.
23. The law defines bed and breakfast accommodation as accommodation which is not separate and self-contained and where some or all of the facilities are shared by more than one household, for example toilet, washing and cooking facilities. There is no requirement for breakfast to be provided.

Statutory overcrowding

24. Section 325 of the Housing Act 1985 deals with statutory overcrowding. The room standard states that there is statutory overcrowding when there are so many people in a property that any two or more of these people who are ten years old or over and of the opposite sex have to sleep in the same room (other than people living together as partners). Living rooms are considered as bedrooms and kitchens can be considered as bedrooms if they are big enough for a bed.

What happened

25. During the period of this complaint, Ms X had two children. One of the children, Z, has autism and complex learning difficulties.
26. In 2009, the Council accepted it owed Ms X the main housing duty under section 193 of the Housing Act 1996.
27. The Council housed Ms X in temporary accommodation, Home A. This was owned and run by a housing association.
28. The Council made Ms X a direct offer of housing in 2012, Home B. Ms X did not accept the offer because she thought it was unsuitable to meet Z’s needs.
29. The Council wrote to Ms X in 2012 to say Ms X had now made herself deliberately homeless because she had refused this direct offer. The Council said that as a result of this, it had discharged its main housing duty.
30. Ms X remained in Home A until 2015, when Z’s social worker contacted the Council’s Housing Needs Service about help for the family. By this stage, Z was classed by the Council as a ‘child in need’.
31. Z’s social worker stated that “It is evident that having an extra bedroom and garden would greatly improve [Z and his sibling’s] lives… his safety being priority”.
32. The Council realised Ms X was still in Home A even though it had discharged its homelessness duty in 2012. Therefore, it informed Ms X it would take steps to evict her.
33. On 26 June 2015, Ms X submitted a homelessness application together with a medical form to the Council.
34. On 15 July, the Council refused Ms X’s homelessness application. It said that her relevant circumstances remained the same as they had in 2012 because she had continued to live in Home A since it discharged its homelessness duty to her. The Council failed to offer her a review of that that decision.
35. The Council evicted Ms X on 4 August 2015.
36. The Council’s Children and Young People Service (CYP) provided Ms X with emergency housing under the Children Act 1989 when she was evicted. Between 4 August 2015 and 10 May 2017, CYP placed Ms X in four different locations as follows:
• From 4 August to 26 August 2015 - Hostel 1 – one bedroom, no living room, with own bathroom and kitchen facilities;
• From 27 August to 8 December 2015 - Hostel 2 – one bedroom, no living room, own toilet, shared kitchen and bathroom. The family had a kettle, microwave and fridge freezer in their room;
• From 9 December 2016 to 17 January 2016 - Hostel 3 – one bedroom, no living room, shared kitchen and toilet, shower in their room; and
• From 18 January 2016 to 10 May 2017 – Hostel 4 – one bedroom, no living room, own shower and toilet and kitchen facilities. Ms X said she had to disconnect the cooker because of safety reasons relating to Z.
37. A firm of solicitors agreed to represent Ms X. At the end of 2015, they wrote to the Council and said that its decision not to accept Ms X’s homeless application was unlawful. They said this was because of the period of time that had elapsed since Ms X had made her previous application and also because there had been a change in circumstances because Z was now a child in need.
38. On 7 January 2016, the Council issued Ms X with a new decision on her homelessness application. It said she had provided no new details and there had been no change in circumstances because Z’s medical condition had not changed. The Council did not offer Ms X a right of review of this decision.
39. On 19 January the solicitors sent the Council a letter to say it would challenge the Council’s decision not to accept Ms X’s housing application in court by judicial review. It cited Z’s social worker’s comments that Z would benefit from his own bedroom and a garden and requested that the Council carry out an Occupational Therapy assessment before it offered Ms X any properties.
40. On 25 January, the Council emailed the solicitors and said it would accept a homelessness application from Ms X.
41. Ms X attended a meeting with Housing Services on 29 January. She heard nothing further from the Council and so her solicitors requested an update.
42. On 1 April, the Council wrote to Ms X and said she had made herself intentionally homeless in 2012. The Council offered her a right to a review.
43. Ms X requested a review and on 27 June, the Council concluded the decision made on 1 April should be overturned because the reviewing officer was satisfied Ms X had not made herself intentionally homeless. The Council accepted Ms X’s housing application on 7 July 2016. It placed her in Priority Band C.
44. In February 2017, the Council offered Ms X a two bedroom private flat. Ms X refused this offer because she considered it was unsuitable.
45. On 10 May 2017, the Council formally offered Ms X Home H. It told Ms X the Council was likely to discharge its homelessness duty if she refused the property. Home H provided Z with his own room and had a garden. It was also close to Z’s school. Ms X accepted the offer and the solicitors asked for a suitability review of the property on 15 May. Ms X moved into Home H.
46. The Council replied to the solicitor on 18 May to confirm the District Medical Officer had been consulted about Z’s needs and an OT’s assessment of the property was not essential prior to offering it to Ms X.
47. On 5 October 2017, the reviewing officer wrote to Ms X and said Home H was not suitable for her household’s needs. The letter also said Ms X should meet with her housing officer to discuss applying for a priority banding upgrade on medical grounds through the Hardship Panel. It went on the say “The Council would certainly consider exercising its discretion if there are suitable and available accommodations that would meet the criteria for an allocation”.
48. Ms X emailed the reviewing officer for information about how to apply to the Hardship Panel. She did not receive a response until 17 November 2017, despite chasing for a reply. At this point the Council gave Ms X medical and suitability assessment forms to complete. Ms X stated she had already provided this information and asked why she had to provide it again.
49. The Council replied in January 2018 and said it had not received the suitability and medical assessment forms. It did not respond to Ms X’s query about why she had to submit the same information again. The letter stated Ms X was in the correct priority banding C based on the District Medical Officer’s recommendations and Ms X’s current circumstances.
50. A housing officer emailed Ms X later in January to ask her to complete the suitability form because this needed resubmitting every six months. The officer said Ms X did not need to complete the medical form. Ms X submitted the suitability form in April 2018.

Complaints process

51. The solicitor made a formal complaint to the Council on 13 December 2017. The details were similar to the complaints outlined in paragraph 1 of this decision statement. The Council responded at stage 1 of its complaints procedures on 11 January 2018. It did not uphold any of the solicitor’s complaints.
52. The solicitor requested the complaint be escalated to stage 2 of the Council’s complaints procedures. The Council replied on 9 May and made the following points:
• Ms X presented substantive new facts during her meeting with the housing service in June 2015. At this point, the Council should have accepted a homelessness application from her, made more detailed enquiries and offered her a formal right of review. If the Council had followed the correct procedures, Ms X would have been informed of its decision that she made herself intentionally homeless the week commencing 10 August 2015. Instead, because of fault by the Council, this decision was not made until 1 April 2016 which was when Ms X was informed of her right to a review.
• Ms X’s solicitor asked for a review of the Council’s decision that Ms X made herself intentionally homeless. This took around 11 weeks to determine which was three weeks longer than allowed by the statutory procedures. However, these delays were caused by the solicitor who requested an extension to provide information for the review;
• The Council was under no duty to have an OT assessment carried out before making the offer of a property to Ms X;
• When the Council made an offer of Home H, the solicitor requested a review. The outcome of the review took longer than eight week timescale but the Council considered the delays were caused primarily by the solicitor’s requests for extensions; and
• Home H was not not suitable. The Council advised Ms X to liaise with it to make an application to the Hardship Panel.
• The Council did not consider the offer of Home H was unreasonable and the matter was dealt with through the statutory procedures via the review process which was successful.
53. The Council apologised to Ms X for the delays that occurred, particularly in relation to it not accepting homelessness applications from her in 2015 and 2016. It also offered her £2,750 to recognise the impact of these delays on herself and her family.
54. The Council also stated that it had circulated an anonymised version of Ms X’s case to ensure relevant officers were aware of the types of issues that may arise in re-application cases. The Council has provided evidence it has carried this out.
55. Ms X remained unhappy with the remedy offered by the Council and her solicitor complained to the Ombudsman.
56. During my investigation the Council informed me that the Hardship Panel had considered Ms X’s application and had increased her banding to Band B. This was because the previous Panel had said it would do so if the Council was unable to find suitable temporary accommodation for her within three months. The Council has set the effective date for Ms X’s Band B priority to 1 March 2019 when the first Hardship Panel met. The Council said it was working to find suitable temporary accommodation and if it did so, Ms X’s priority would reduce again to Band C.
57. The Council said the waiting time for a property for an applicant in Band C was 16 years. The waiting time for a Band B applicant was around 2 to 3 years.

My findings

Events from 2012 to June 2015

58. In 2012, Ms X refused an offer of permanent accommodation. The Council informed her that as a result, she had made herself intentionally homeless and it had therefore discharged its homelessness duty towards her.
59. However, at this stage, the Council took no further steps to evict Ms X. Therefore, even if there was fault in the Council’s actions, it did not cause Ms X a significant personal injustice. I will not investigate these matters further.

June 2015 to May 2017

60. The Council accepted prior to my investigation that it acted with fault when it did not accept Ms X’s homelessness application in June 2015 and failed to take substantive new facts into account. It also accepted it should have offered Ms X a right to a review on two occasions but failed to do so.
61. The Council accepts that if it had followed the correct process within the statutory timescales, the following would have occurred:
• the Council would have initially refused Ms X’s homelessness application on 10 August 2015, 33 days after it had been received and it would have informed her of her right to a review of that decision;
• the review would have overturned the decision within eight weeks at the latest at the beginning of October 2015 and Ms X would have been accepted onto the housing register at that time.
62. However, because of fault by the Council, it did not accept Ms X onto the register until 7 July 2016, around eight months later. Around three weeks of this delay was caused by Ms X’s solicitor.
63. Where a complainant has been deprived of suitable accommodation, we can recommend the council makes a financial payment to remedy any injustice caused by any fault by the Council. The type of factors we will take into account include:
• the size of the accommodation and whether there are enough rooms for the family;
• whether there are private toilet and bathing facilities;
• whether there are adequate facilities to store and prepare food; and
• any vulnerabilities and disabilities of the household members.
64. During the period August 2015 to May 2017, when the Council made Ms X an offer of House C, she and her two children lived in four different hostels.
65. The family lived in Hostel 1 for about three weeks. However, the Council said the family were on holiday and away from the Hostel for most of the time. Therefore, during this period, the family only experienced a significant injustice for a period of around one week.
66. The law defines Hostels 2 and 3 as B&Bs, because the family had to share bathroom and/or kitchen facilities. B&B accommodation is unsuitable for families who should not be placed there. However, if they are, the family must not remain in a B&B for more than six weeks.
67. The family lived in Hostels 2 and 3 for about four months. In Hostel 2 they had limited kitchen facilities and no private bathing facilities. In Hostel 3, the family had to share kitchen and toilet facilities.
68. The family lived in Hostel 4 for around 16 months. They had private kitchen, toilet and bathing facilities although Ms X said she had to disconnect the cooker in Hostel 4 because of Z’s medical conditions made it a safety hazard.
69. In all four hostels, the family slept in one room. As a result, they experienced statutory overcrowding. The situation was significantly worsened by Z’s medical conditions and lack of space, both internally and externally.
70. However, the Council did make Ms X an offer of a two bedroom flat with private facilities in February 2017. It was open to Ms X to accept this offer and request a suitability review once she had moved in. Ms X refused the offer and remained in Hostel 4. I have, therefore, calculated any injustice for this period up to February 2017.
71. The family experienced a significant injustice for just over 17 months from the end of August 2015 to February 2017. The Council has offered a financial payment of £2,750. Taking into account the factors in paragraph 60, the fact the family spent 15 weeks in significantly unsuitable accommodation and the overall length of time they lived in hostels, this is not sufficient.

May 2017 to January 2018

72. In May 2017, the Council offered Ms X Property H which she accepted. Ms X’s solicitor requested a suitability review of the property on 10 May. The Council completed its review on 5 October, around 20 weeks later. This is around 12 weeks longer than the statutory timescales.
73. However, some of the delay was caused by the solicitor who was waiting for medical reports before he could submit Ms X’s review papers. The solicitor submitted these documents at the beginning of August 2017. The Council made its decision around 11 weeks later. Although this is longer than the statutory timescales, it is not significant enough for me to make a finding of fault.
74. The review determined Property H was not suitable for Ms X and her family. I have considered the facilities at the property and the reasons why the Council states it is unsuitable in the context of the factors in paragraph 60.
75. When the Council requested more information on 7 October 2017, Ms X queried why it needed this and said she had already provided the information. The Council failed to provide her with a proper response to her queries until 17 January 2018, around 14 weeks later. This is longer than the Council should have taken. Although this is fault, Ms X then took a considerable amount of time to return the forms the Council required.

Change of priority from Band C to Band B

76. The Council agreed to increase Ms X’s priority banding to Band B if it was unable to identify suitable accommodation within three months. It has now done this and backdated the effective date to 1 March 2019. There is no fault in the Council’s actions.

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Agreed actions

77. Within one month of the date of the final decision the Council has agreed to pay Ms X the total sum of £3,225 to remedy the frustration and distress caused by the Council’s faults in dealing with her homelessness applications and the unsuitability of the accommodation she and her family have lived in since August 2015.

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Final decision

78. There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman