Summary: There was fault in how the Council managed reports of disrepair in temporary accommodation. This meant the complainant and her son had to live with fixable problems for several years. The Council has agreed to offer a financial remedy to reflect this, and contact other residents of temporary accommodation to review how repairs have been handled.

The complaint

1. The complainant, to whom I will refer as Miss Y, says the Council failed to resolve several disrepair issues with her temporary accommodation for a number of years. Although it appears these issues have now been addressed, she complains the Council should have done so much sooner.

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The Ombudsman’s role and powers

2. 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)
3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
4. 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)

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How I considered this complaint

5. I reviewed Miss Y’s correspondence with the Council, the Council’s case notes, and the Council’s agreement for contracted property management agencies.
6. I also shared a draft copy of this decision with each party for their comments.

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What I found

7. In September 2013, Miss Y made a homelessness application to the Council. The Council accepted a full duty, and in October, arranged a move into temporary accommodation (TA) for her and her young son. The TA property is a split-level flat, located in the London Borough of Croydon. The Council has a contract with a private firm (‘the Agency’) to manage the property.
8. In November, Miss Y contacted the Council to complain about a mouse infestation, and other disrepair issues. The Council’s records state it referred the matter to the Agency.
9. In March 2014, Miss Y contacted the Council again with a similar complaint. The Council informed the Agency, and noted it would arrange a joint visit to the property. In September, after further contact from Miss Y, the Council asked the Agency to cut back growth in the garden to help remedy the mouse infestation. The Council’s note says it “followed up with a Notice of Disrepair”.
10. In November, Miss Y reported problems with the oven and hob. The Agency attended the following day, but contacted the Council to complain about Miss Y’s conduct during the visit. The Council says it spoke to Miss Y about this, and noted she had said she owed the Agency staff member an apology.
11. In March 2016, Miss Y visited the Council. She again complained about disrepair at the property, and the Council arranged for a further visit from the Agency. The Council also gave Miss Y advice on obtaining private rented property.
12. On 3 June, the Council contacted Miss Y. Because of the ongoing mouse infestation, the Council agreed to place Miss Y on the transfer list for a different TA property.
13. In July, the Agency visited the Property again to attempt to address the mouse infestation.
14. Miss Y made further complaints about mice and other issues in 2017.
15. On 13 November 2018, Miss Y submitted a complaint to the Council through her solicitor. She complained about the failure to address the mouse infestation. She also said there had been a gas leak at the property in 2014, and other gas issues since then which had received temporary fixes; problems with mould and damp; protruding nails; a dangerous stair case, which had caused Miss Y and her son to fall, and exacerbated a back problem of Miss Y’s; problems with kitchen appliances caused by the kitchen layout; and a broken washing machine, which she said the Agency was refusing to replace.
16. Miss Y referred to the fact the Council had offered to move her to alternative TA in 2016, but this had come to nothing. She asked the Council to accept the property was unsuitable, and to provide her with suitable TA as soon as possible.
17. Separately, in December, Miss Y’s solicitor raised the problems of disrepair with Croydon Council. Croydon inspected the property and identified a number of hazards, including a lack of working smoke alarms, damp and mould growth, excessive cold because of a failure of the double-glazing, and a mouse infestation. It served an improvement notice on the Agency, requiring it to address the hazards.
18. On 3 January 2019, Miss Y’s solicitor chased the Council’s response to her complaint. She also notified the Council of the outcome of Croydon’s inspection, and said the Agency had not yet acted on the improvement notice. Miss Y said, if the disrepair issues were resolved, she was willing to remain in the TA, but asked the Council to exercise discretion to increase her priority for permanent social housing as a remedy for the complaint.
19. The Council replied on 5 February. It said it would accept her complaint as a request for a statutory review of the suitability of her TA, and let her know the outcome by 5 March. However, it explained it could not increase her bidding priority, and could only move her to alternative TA if it found the current property was unsuitable.
20. Miss Y’s solicitor replied on 12 February. She complained the Council had “unilaterally” decided to undertake a suitability review, without asking Miss Y if this is what she wanted. She explained Miss Y was settled at the property and was concerned about the financial implications of moving to new TA, as well as the effect it might have on her priority for permanent housing.
21. Miss Y’s solicitor said the Council should address the disrepair at the property, and again asked it exercise discretion around Miss Y’s priority. She also reminded the Council it had agreed to move Miss Y in 2016.
22. On 21 February, the Council wrote to Miss Y’s solicitor. It said the Agency would be dealing with the repair issues and removing the washing machine, although it said the Agency had established there was no problem with the kitchen layout. It also said the property had a gas safety certificate. The Council also said the Agency had previously had problems with gaining Miss Y’s cooperation for its visits.
23. The Council said it had no record of Miss Y or her son having mobility problems, and asked for more information about the problems she reported with the stairs and her medical issue.
24. The Council went on to say Miss Y had the right to pursue a complaint with it if she was dissatisfied with the Agency’s response to her reports. The officer writing the letter said they could not recall discussing Miss Y’s case previously, but noted her name had been added to the TA transfer list in 2016. The Council reiterated it could not change Miss Y’s priority for permanent housing.
25. On 26 April, having received no further formal response to the complaint, Miss Y referred it to the Ombudsman.
26. The Council issued its final response to Miss Y’s complaint on 21 May.
27. The Council acknowledged it had agreed a transfer for Miss Y in 2016, but its records did not show an offer had then been made. It said there had been no previous formal request for a suitability review, and at no point had it been established the property was unsuitable. The Council explained the various factors it took into account during a review.
28. The Council accepted it had been at fault for not progressing Miss Y’s transfer, but noted she had also not raised the issue herself in the intervening period. It also noted she now said she did not want to transfer to alternative TA, but confirmed this offer remained open.
29. The Council apologised for the length of time it had taken to resolve the disrepair issues Miss Y had raised. However, it said Miss Y’s failure to keep appointments with the Agency when they visited the property had contributed to this delay.
30. The Council said Croydon Council had chased the Agency for its progress on the improvement work, and had agreed an extension on 1 April. However, the Council said it had been told the remedial work was now complete, and it would now arrange an inspection of the property.
31. The Council reiterated it could not change Miss Y’s priority for permanent housing. It said she had not been put at a disadvantage in this respect, and that moving to alternative TA would make no difference to her priority.
32. Miss Y’s solicitor replied to the Council on 4 June. She questioned why the Council had not previously carried out a suitability review, given all Miss Y’s complaints about the property, and suggested its offer to move her in 2016 was a tacit acceptance the property was unsuitable. She also said it was not “strictly accurate” to say Miss Y had not followed up the transfer offer, as she had continued to make reports of disrepair to the Agency in that time.
33. Miss Y’s solicitor criticised the Council for accepting the Agency’s word that Miss Y had acted unreasonably, and said the Agency had also failed to attend appointments. The solicitor asked the Council for copies of the Agency’s monthly inspection reports to the Council, which its contract required it to provide, and questioned whether it was fit to provide services to the Council at all.
34. In response to my enquiries, the Council provided evidence the issues Miss Y had raised had now been addressed, with the exception of the installation of a handrail on the external steps leading to the front door of the property.

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Legislative background

35. Under section 210 of the Housing Act 1996, local authorities must take account of the provisions of Parts 1-4 of the Housing Act 2004 when assessing the suitability of accommodation provided to a homelessness applicant. This includes hazards and disrepair.
36. Under section 202 of the Housing Act 1996, a person has the right to request a review of the suitability of their temporary accommodation.

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Analysis

37. Miss Y’s complaint raises a number of points. For ease of understanding, I will address each under a separate header.

Jurisdiction

38. The Ombudsman generally expects people to approach him within 12 months of becoming aware of the main issue they wish to complain about. He will not generally accept complaints older than this, because it can be difficult to access records, officers may be unable to explain the reasons for their decisions, and it can be more difficult to remedy injustice.
39. The Ombudsman can exercise discretion to accept late complaints, but would need to be satisfied there were good reasons the complainant could not have approached him sooner. He would also need to be satisfied there was still the possibility of undertaking an effective investigation.
40. Miss Y has been aware of the disrepair issues at the property since a short time after she moved in – the Council’s notes show her first report about this was approximately one month into her tenancy. By mid- to late 2014, it appears clear the problems she was reporting were not being readily addressed. So I consider Miss Y could reasonably have raised a complaint around that time.
41. However, it is evident the issues which Miss Y was raising for a number of years have only recently been resolved. And I cannot logically separate the more recent events from the more historic ones.
42. So while I will not seek to make detailed findings on what happened in (for example) 2014, I will exercise discretion to include these in the scope of my investigation.

Section 202 of the Housing Act 1996

43. Under s202 of the Housing Act, a person has the right to request a review of the suitability of their temporary accommodation. What might make a property ‘unsuitable’ includes a range of factors, but can include repair and maintenance issues.
44. There is no specific format in which a review request must be made, although it should be clear this is what the person is seeking.
45. In its complaint response, the Council said it has never undertaken a suitability review of the TA.
46. Miss Y emailed the Council on 25 March 2016. At the end of the email, she wrote she was “asking … to be moved from the property”. I consider this a clear request for a review.
47. The Council has also said its offer to move Miss Y was not an acceptance the property was unsuitable. But it also says it offered it in recognition of the continued problem with mice.
48. This appears highly contradictory. Miss Y asked to transfer because of the infestation, and the Council offered to transfer her, apparently because of the infestation. Whatever mechanism the Council followed to come to this conclusion, it appears fundamentally to constitute a suitability review.
49. In either case, it is fault the Council did not implement Miss Y’s transfer to alternative TA when it said it would.
50. However, I note, and it does not appear to be in dispute, that Miss Y also did not pursue the Council’s offer of a move. And she has now made clear she does not really want to move to alternative TA, because of the disruption this would cause, and the possibility a new property would also be in a poor state of repair.
51. If it were clear Miss Y had been waiting to move to alternative TA since 2016, I would consider this a significant injustice in its own right. But this is not clear, as it appears Miss Y instead wished to remain in the current TA, with the necessary repair work, rather than to move.
52. So while I have found fault here, I will not make a finding of injustice on this issue. I will instead explore the Council’s handling of the disrepair as a matter in isolation.

Disrepair

53. The Council’s notes show Miss Y has made frequent reports of disrepair since 2013. The most consistent point she has raised is that of the mouse infestation.
54. It would be unfair to say the Council, or Agency, has generally failed to respond to these reports. I cannot say whether they handled each report efficiently, but it is clear there have been numerous visits to the property over the years, in response to Miss Y’s complaints about disrepair.
55. However, it is clear these visits ultimately failed to resolve the issues Miss Y was raising.
56. The Housing Act requires accommodation provided by local authorities, be it temporary or permanent, to be ‘suitable’. Suitability includes ensuring the property is adequately maintained. I cannot accept the management of Miss Y’s property met this requirement.
57. This failure is highlighted, particularly, by the fact that the Agency has now finally resolved the issues. This seems to be principally because of the involvement of Croydon Council and its service of an improvement notice.
58. While the necessary remedial work seems to have been relatively extensive, it was completed in a matter of a few months. So there does not appear to be any real reason why this could not have happened much sooner.
59. The Council has referred to experiencing some problems with Miss Y’s cooperation, and says this has contributed to the failure to resolve matters sooner.
60. I can see there is an occasional reference to Miss Y’s behaviour in the Council’s records. For example, it notes a complaint from the Agency in 2014, and a reluctance by Miss Y to allow the Agency to confirm appointments in writing after receiving advice from Croydon Council to do so.
61. But without passing judgement on this, I do not consider this can be said to explain why the Agency – and by extension, the Council – have failed to resolve disrepair issues on numerous occasions for more than five years, when the same issues have now been addressed in a matter of months.
62. Miss Y’s solicitor has provided me with a copy of the Council’s management agreement document, given to her by the Council in response to an information request. This is a generic document, but I assume it represents the Council’s contract with the Agency in this case.
63. The agreement says the Agency should inspect each relevant property on a minimum monthly basis, and provide its inspection report to the Council. It sets out a schedule, which categorises different types of maintenance issues by priority – P1 being the most urgent, P4 the least – and gives the Agency a fixed deadline to these issues when instructed to by the Council. There is also a fixed penalty for each day the deadline is missed.
64. According to the agreement, a pest infestation is a P2 category issue, with a deadline of 48 hours to resolve. Failure to do so incurs a fine of £175 each day the deadline is missed.
65. I asked the Council whether the Agency had complied with its inspection duties with respect to Miss Y’s property. The Council explained it had agreed a reduced schedule of bi-monthly inspections with the Agency, because inspecting on a monthly basis was unnecessary and burdensome for both contractor and residents. It provided a summary of the outcome of these inspections for Miss Y’s property, from the beginning of 2016.
66. Though not always every two months, I accept the Agency has inspected the property with reasonable regularity. But the outcome of the inspections was frequently to report a problem, most commonly ‘mice’.
67. The Council has explained it regularly audits a sample of the Agency’s reports, but only to ensure it is meeting its inspection duty, not to identify repairs to individual properties.
68. While I accept it is, first and foremost, the Agency’s duties to act on identified maintenance issues, it is clear (a) the Council was aware of ongoing, unresolved problems at Miss Y’s property, (b) the Council was aware the Agency knew about this, and (c) the Council was aware the Agency’s attempts to resolve the problems were not working.
69. I do not know whether the Council ever fined the Agency for this, in accordance with the agreement. But given the contrast with the Agency’s response after receiving the improvement notice from Croydon, it is difficult to escape the conclusion the Council simply failed to ensure the Agency lived up to its contractual responsibilities.
70. This is fault. The fault meant Miss Y and her son have lived unnecessarily with a mouse infestation and other disrepair issues for more than five years, which is a significant injustice.

Remedy

71. In her letters to the Council, Miss Y’s solicitor suggested an appropriate remedy to the complaint would be to increase her priority on the social housing register. The Council explained it could not do this.
72. I accept the Council’s position here. Although closely inter-linked, homelessness and social housing allocation are different matters. While I accept Miss Y wishes to obtain permanent accommodation as soon as possible, she is one of many thousands of people in the same situation.
73. While the Council should have ensured her TA was suitable, having lived with this problem does not, in itself, represent a change in her circumstances which would increase her priority. And it would be unfair to others who are on the waiting list for housing if she were allowed to ‘jump the queue’ in this manner. So I cannot recommend the Council review Miss Y’s priority.
74. And I am satisfied, on the evidence, that the disrepair at Miss Y’s TA has now been addressed, and that she does not wish to move to alternative TA. So there is nothing further for the Ombudsman to recommend in this respect.
75. However, the Ombudsman considers the Council should offer a financial remedy to recognise the length of time Miss Y and her son have had to endure disrepair in their TA. The Council should also recognise Miss Y’s time and trouble pursuing the matter.
76. The Ombudsman also considers the Council should review its handling of other TA residents who may have experienced similar problems to Miss Y.

Agreed action

77. Within one month of the date of my final decision, the Council has agreed to:

• offer to pay Miss Y £1000, to recognise she has been left in unsuitable TA conditions for a very extended period of time;
• offer to pay Miss Y a further £1000, to recognise her son has been left in the same situation; and
• offer to pay Miss Y a further £300, to reflect the time and trouble she has been to pursuing this matter.

78. Within three months of the date of my final decision, the Council has agreed to write to all TA residents, enquire whether they have reported maintenance issues in the last 12 months, and whether the relevant management agent resolved the issue effectively. It will also advise residents of their right to complain to the Council, and then to the Ombudsman if they were dissatisfied with the outcome.

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Final decision

79. Subject to further comments by Miss Y and the Council, I intend I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman