Summary: The Council is at fault as it delayed in providing suitable temporary accommodation for her following its decision that her existing temporary accommodation was unsuitable. The Council also failed to ensure repairs to Miss X’s property were carried out. As a result Miss X lived in unsuitable accommodation for longer than necessary. The Council has agreed to remedy this injustice by apologising to Miss making a payment of £3000.

The complaint

1. Miss X complains that the Council:
1. Has failed to move her to suitable temporary accommodation despite the Council considering her two bedroom accommodation to be unsuitable for her and her children to occupy.
2. Offered further unsuitable temporary accommodation and ended its main housing duty as she did not accept the accommodation. Miss X says the time and trouble she was put to in challenging the Council’s decision meant she had to defer her education.
3. Failed to carry out repairs to her temporary accommodation and wrongly told her it was her responsibility to remove a carpet
4. Failed to increase her priority to band A despite her property being overcrowded and unaffordable.
2. As a result Miss X considers she and her children lived in unsuitable accommodation for too long.

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What I have investigated

3. I have investigated complaints a, c, and d. I have not investigated complaint b as Miss X had the right to request a review of the suitability of the temporary accommodation and the Council’s decision to end its main housing duty. Miss X sought a review of these decisions. I cannot separate how the Council dealt with Miss X at this time from its decisions that the property offered to Miss X was suitable and that it should end its main housing duty.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I have:

• Considered the complaint and the information provided by Miss X;
• Discussed the issues with Miss X;
• Made enquiries of the Council and considered the information provided;
• Interviewed a Council officer to obtain more information;
• Invited Miss X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

7. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of his or her household. This duty applies to interim accommodation and accommodation provided under the main homelessness duty. (Housing Act 1996, section 206 and (from 3 April 2018) Homelessness Code of Guidance 17.2)
8. There is a right to request a review of the suitability of temporary accommodation provided once the Council has accepted the main homelessness duty. (Housing Act 1996, section 202)
9. The high court has considered a case where a council did not provide suitable temporary accommodation after accepting the applicants existing temporary accommodation was unsuitable. The court found the council was in breach of its statutory duty under section 193 (2) of the Housing Act 1996 to provide suitable accommodation and ordered it to provide suitable accommodation within 12 weeks. (Miah v London Borough of Newham [2020] EWHC 327 (Admin))

Council’s temporary accommodation policy

10. The Council’s temporary accommodation policy provides that it will often place households in temporary accommodation into units with one bedroom less than they would be entitled to on a permanent basis with the expectation the living room will be used as a living and sleeping area.

Council’s housing allocations policy

11. The Council’s allocations scheme has three bands which eligible applicants are placed in according to their housing need. Band A is the highest priority band and include applicants who need to move urgently because of a critical medical or welfare need, including emergencies or severe need and have been accepted for rehousing under the homelessness legislation. Band B includes applicants whom the Council has accepted for rehousing under the homelessness legislation.

What happened

12. In 2013 Miss X made a homelessness application and the Council accepted it had a duty to accommodate her. It placed her and her child in temporary accommodation which was a two-bedroom property. I shall call this property A. A few years later Miss X had triplets. Miss X is in band B on the Council’s housing allocation scheme.
13. In February 2018 the Council carried out a move on assessment and placed Miss X on its transfer list for temporary accommodation as it considered her to be overcrowded. The Council does not have a copy of the move on assessment on file.
14. Miss X made a complaint in August 2018. In her complaint she said the Council had acknowledged property A was unsuitable due to overcrowding, her house had several hazards including nails sticking out of the stairs which was dangerous to her children. Miss X said the landlord would only replace the carpet if she removed the old one. Miss X also said the property was not affordable and she had been in receipt of discretionary housing payment (DHP) for over a year to top up her rent. Miss X asked the Council to increase her priority as she had been bidding on properties to no avail.
15. The Council responded to Miss X at stage one of its complaints procedure. It confirmed Miss X was on the transfer list for a move to a more suitably sized property but the Council was experiencing problems in sourcing suitable temporary accommodation. The Council asked Miss X to report the repairs to its repair line.
16. Miss X made a complaint at stage two of the Council’s complaints procedure. Miss X said:

• she was severely overcrowded as her four children were sleeping in a single room which did not have enough room for their beds.
• she could not afford to rent a larger property in the private sector.
• she had previously reported the repairs but the Council told her she would need to remove the carpet herself which she could not do.
• she wanted her housing band increasing so she could successfully bid on a property.

17. The Council responded to Miss X’s complaint. It said that a formal review of the suitability of Miss X’s property had not taken place but the Council considered Miss X’s property was not suitable so it had placed her on the temporary accommodation transfer list. The Council said she was a high priority case for overcrowding.
18. The Council said it was at fault as it should have contacted Miss X sooner to discuss alternative accommodation options. An officer would contact her soon.
19. The Council also said it would not consider her request for an increase in her housing band as her current band was correct and reflects the fact the Council had accepted a fully housing duty to her under homelessness legislation. Band A was reserved for applicants with severe housing need and these circumstances did not apply in her case.
20. The Council acknowledge Miss X had spent considerable time reporting the repairs, that the repairs had been outstanding for some time and it should not have asked Miss X to remove the carpet herself. The Council apologised for the poor experience. The Council also said it had visited Miss X’s property and listed the repairs which were the landlord’s responsibility.
21. In February 2019, the Council offered alternative three bedroom temporary accommodation to Miss X following her complaint. I shall call this property B. Miss X declined the offer as she considered the property was unaffordable, damp, insecure and too small. The Council wrote to Miss X notifying her that its duty to accommodate her had ended as she refused the offer of property B. It asked Miss X to leave her property and referred her to children’s services due to the risk she and her children would be homeless. Children’s services carried out an assessment but did not take any action. Miss X considers the Council was wrong to make the referral as it had not served a notice to quit.
22. In an email dated 18 February 2019 Miss X’s housing officer said property A was not suitable for five people.
23. Miss X requested a review of the suitability of property B. She remained at property A while the Council carried out the review. In early June 2019, the Council decided property B was not suitable as it was not affordable for Miss X. It notified Miss X that it still had a duty to accommodate her.
24. In response to my enquiries the Council has said:

• It agreed Miss X was overcrowded at property A. But its temporary accommodation policy allows Miss X to be overcrowded by one bedroom.
• There are over 200 households on the transfer list at any one time and given the acute shortage of housing it is difficult to predict how long it will take to make an offer of alternative accommodation. It was also difficult to find affordable three bedroom accommodation for Miss X.
• It placed Miss X on its waiting list for temporary accommodation from its own social housing stock as the rents are cheaper. These properties are usually reserved for people who applied before the Localism Act 2011 came into force. The average wait for social housing temporary accommodation is 51 weeks. Between February 2019 and February 2020, the Council offered temporary accommodation from its social housing stock to 13 households who had greater housing need than Miss X.
• It accepts the repairs to property A were not carried out by the landlord following its stage two response. The Council inspected property A in February 2020 and will replace the carpets on the landing and second bedroom, replace the kitchen floor and carry out mould treatment in the bedrooms and living room.

25. The Council offered Miss X a three bedroom property with a more affordable rent from its own temporary accommodation stock. Miss X moved to this property on 2 March 2020.

My assessment

Temporary accommodation

26. I note the Council considers its temporary accommodation policy allows an applicant to be overcrowded by one bedroom and Miss X was overcrowded by one bedroom. However, the Council decided property A was unsuitable for Miss X and her children in February 2018 as it was too small. It did not move Miss X to suitable temporary accommodation until 2 March 2020. I acknowledge there is a shortage of housing which will impact on the Council’s ability to procure accommodation. But the Council has a statutory duty to provide suitable temporary accommodation. It did not provide suitable accommodation for Miss X for two years. This is fault.
27. I consider the Council should have found Miss X suitable temporary accommodation within 12 weeks of deciding property A was unsuitable. In reaching this view, I have taken account of the recent high court decision.
28. I also consider there is evidence to show the Council could have been aware of the affordability issues for Miss X in February 2018. The Council does not have a copy of Miss X’s move on assessment on file so it is not known if affordability was considered at that point. But Miss X said in her complaint of August 2018 that property A was not affordable as she was claiming DHP. The Council would therefore have been aware that Miss X may not be able to afford a three bedroom property as early as 2018 as she could not afford her two bedroom property. So, the Council should have considered whether social housing temporary accommodation was the only feasible option at this point. Had it done so, it is likely the Council would have added Miss X to its social housing temporary accommodation list at this time.

Repairs

29. The Council is at fault for failing to property deal with Miss X’s request for repairs. Miss X reported the repairs before she made a complaint in August 2018. The Council’s response to Miss X’s complaint in February 2019 acknowledged the process put in place following her stage one complaint had failed. In response to my enquiries the Council has accepted the repairs had not been carried out following its response of February 2019. This is fault.

Request for Band A

30. On balance, I consider the Council did not give adequate consideration to Miss X’s request for increased priority. Miss X was seeking an increase in her priority as she was overcrowded and due to the affordability issues. In response to Miss X’s complaint the Council said band A is reserved for applicants with severe housing need and gives the example of a life threatening illness. But there is no evidence to show the Council considered the actual circumstances of Miss X’s case when reaching its decision not to increase her priority. There is no evidence to show the Council considered if Miss X’s overcrowding was a critical welfare need or whether the overcrowding amounted to severe need. This is fault.

Other issues

31. Miss X has said the Council should not have referred her children to children’s services as it had not served a notice to quit so they were not in danger of being made homeless. I will not pursue this matter as further investigation would be disproportionate to the injustice Miss X could have been caused by the Council’s referral to children’s services.

Injustice to Miss X and proposed remedy

32. As a result of the Council’s delay in finding suitable temporary accommodation Miss X remained in unsuitable temporary accommodation for one year and nine months longer than she should have done. Miss X also had to live with disrepair for longer than she should have done due to the Council’s failure to deal with the repairs. This will have contributed to the stress of living in an unsuitable property for longer than necessary. The Council should remedy this injustice.
33. I have considered if I should recommend the Council considers again whether Miss X’s circumstances warranted an increase to band A. This would not be appropriate as the Council has now moved Miss X to suitable temporary accommodation so her circumstances have changed.
34. In response to my draft decision Miss X said the Council should review her banding as she considers he current property to be unsuitable. It was open to Miss X to seek a review of the suitability of her current accommodation when she accepted it. I therefore do not consider it appropriate to recommend the Council reviews her priority band.
35. I therefore consider an apology and payment of £3000 to Miss X is appropriate and proportionate to acknowledge she lived in unsuitable accommodation and with disrepair for longer than necessary. This remedy is in accordance with our guidance on remedies.
36. Miss X considers the recommended payment is insufficient as there was significant mould throughout property A which she considers affected her children’s and her health. I note there is evidence of mould throughout the property. I have taken account of the disrepair to the property when making my recommendation. There are many factors which can contribute to mould growth and I do not consider the presence of the mould warrants an increase in the recommended remedy.

Agreed action

37. That the Council will
1. Send a written apology to Miss X for the distress caused by living in an unsuitable property and with disrepair for longer than necessary.
2. Make a payment of £3000 to acknowledge Miss X lived in an unsuitable property and with disrepair for longer than necessary. The Council should take the action at a) and b) within one month of my final decision.
3. Consider the steps it can take to ensure the Council meets its statutory duty to provide suitable temporary accommodation.
4. Review its process for dealing with repairs in private rented temporary accommodation to ensure the repairs are carried out and the delays experienced by Miss X are avoided. The Council should take the action at c) and d) within three months of my final decision and explain to the Ombudsman the action it intends to take to improve its performance in this area.

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Final decision

38. The Council is at fault as it delayed in providing suitable temporary accommodation for her following its decision that her existing temporary accommodation was unsuitable. The Council also failed to ensure repairs to Miss X’s property were carried out. As a result Miss X lived in unsuitable accommodation for longer than necessary. The Council has agreed to remedy this injustice so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman