Summary: The Ombudsman found no fault on Miss C’s complaint of the Council placing her in unsuitable out of borough accommodation. It took account of her personal circumstances before doing so and an independent medical advisor’s recommendation. When later deciding the property was unsuitable, it decided not to offer her an out of borough property because of the implications to her of her likely refusal. This was fault. She lost her the opportunity to make her own decision and challenge its suitability. The agreed action remedies the injustice caused.

The complaint

1. Miss C complains the Council failed to:
1. Accept her on to its housing register earlier than it did;
2. Place her and her family in suitable temporary accommodation; and
3. Place them in accommodation within borough, despite medical evidence for the need to do so.
2. As a result, she may have missed the opportunity to bid for properties earlier, her son has a 2-hour round trip to school, and they have been caused a great deal of stress, frustration, and inconvenience.

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What I have investigated

3. I have not investigated any complaint Miss C may have about the Council’s actions before April 2018. The paragraph at the end of this statement explains why. Details of events set out before that date are given only to put the complaint in to context.
4. This means I did not investigate complaint a).
5. Usually, where a council accepts a full housing duty to a homeless applicant, we do not investigate any complaint about the decision to provide temporary accommodation because it is one they can challenge initially by way of a review and then, if they remain dissatisfied, through court proceedings on a point of law. In Miss C’s situation, I exercised discretion to investigate the Council’s actions because it accepts the accommodation is unsuitable. This means there was no point Miss C asking for a review and challenging the Council’s decision about its suitability.

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The Ombudsman’s role and powers

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)
7. 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)
8. 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)
9. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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Housing and allocation scheme

10. The Council will, in each application, decide whether the people included in it will be considered as part of the household. (paragraph 2.5)
11. The Council has a housing banding system to decide who is prioritised for housing. These are:

• Band 1: This is for those with an urgent need to move due to reasonable preference plus additional priority (for example, an applicant with terminal or life-threatening condition where accommodation is a major contributory factor);
• Band 2: This is for those who need to move who have a reasonable preference and a community contribution (for example, those who are working, volunteer, in training or education, and carers);
• Band 3: This is for those who need to move who have a reasonable preference but no community contribution (for example, this includes those owed the full homelessness duty, those statutorily overcrowded, and those lacking access to a bathroom or kitchen); and
• Band 4: This is for those with reduced priority who need to move who have a reasonable preference but with reduced priority (those in this band are unlikely to be offered social housing and includes those it owes the full homelessness duty but fail to meet the full local residency criteria). (paragraph 2.12)

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How I considered this complaint

12. I considered all the information Miss C sent, the notes I made of our telephone conversations, and the Council’s response to my enquiries, a copy of which I sent her. I sent a copy of my draft decision to Miss C and the Council. I considered their responses.

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What I found

13. Miss C applied as homeless and for entry on to the housing register. She and her family were living with her mother but, this was overcrowded. In May, the Council provided her with temporary accommodation (Property 1) under section 188 of Housing Act 1996. Miss C asked for a review of it because it was in another borough and she needed the support of her family, suffered anxiety, agoraphobia, and panic attacks. Her partner did not feel safe in the accommodation as he had been stabbed many years ago in the area. The officer asked for full details about why the accommodation was unsuitable by July, but this was not sent. Miss C claims she sent the information.
14. In June, the Council accepted a full housing duty to her and, in the following month, placed her on the housing register for a 2-bedroom house in Band 4. The lower banding was because her partner could not show he met the residency criteria. The Council extended the review period for any challenge she wished to make, and an officer asked her to provide medical evidence by September. After several further telephone conversations with Miss C, the reviewing officer repeatedly asked for information including bank statements.

2017:

15. In February, the Council wrote to her with its decision the accommodation was unsuitable. The Council provided her with alternative accommodation in March (Property 2).
16. In December, she reported an infestation in the accommodation to the Council and problems with its cleanliness.

2018:

17. In April, the Council moved her to another temporary accommodation (Property 3). Miss C says this was because she reported electrical problems with the previous flat.
18. The offer letter to her said it took account of her completed Temporary Accommodation Suitability Form, which contained details about her family’s circumstances, schools, health, support needs, and income. It is outside the borough but was the most suitable, and closest property to the borough. At the time of making the offer, the only 2 other properties it could offer were further away. It explained it had excellent public transport links to the borough (40 minutes), and had considered possible disruption to her employment, caring responsibilities, education of household members, as well as the risk of violence or harassment. It also took account of the distance and accessibility to medical facilities. It told her about her right to ask for a review of the accommodation’s suitability.
19. In August, the Council told her she was in Band 3 with a registration date of August 2012. She was also told to send evidence showing her partner had lived in borough before this date or any medical evidence that might increase her banding. She failed to do so. The following month she applied for medical priority explaining the difficulties she had with her current pregnancy, too many stairs in the property, and the distance getting to her regular medical appointments.
20. From September, she started reporting repair issues. The agent made attempts to gain access. A joint inspection was done 2 months later.
21. The independent medical advisor decided there was suitable medical and support services in her current area, and she did not, therefore, qualify for medical priority.

2019:

22. In January, Miss C had another child. She is unhappy about the Council not giving her an earlier housing registration date despite her having lived in borough all her life. She is also unhappy the Council failed to move her despite agreeing the property was unfit.
23. The Council chased the letting agent about repairs.
24. At the end of April, Miss C reported ongoing hot water problems and an electrical broken socket to the Council. The Council told the agent shortly after and chased them in June about it. The agent replied saying Miss C failed to contact the gas care service provider as requested. The same month, the Council placed her on its accelerated transfer list.
25. In November, the agent argued most of the repairs she reported were covered by a service care agreement which Miss C needed to contact and arrange. Another entry the same month noted an engineer from the service care provider was to call but, Miss C told the agent she was unavailable to allow access.
26. In December, Miss C reported mice to the Council who passed the report on to the agent. She confirmed action was taken to remove the mice and a wasp nest early the following year. Shortly after, she sent the Council a list of repairs needed which it again passed on. The agent replied to the Council saying Miss C was away most of Christmas but had agreed a visit which would deal with these issues on 2 January 2020.
27. The agent told the Council Miss C failed to provide access to the contractors. The following month, the Council told the agent it would transfer Miss C as the accommodation needed extensive repairs such as rewiring, floor levelling in the bathroom, replacement of the bathroom suite, along with works to the roof.

Analysis

Complaint b): Suitability of current accommodation and Complaint c) out of borough placement

28. Miss C and her family lived out of borough in temporary accommodation where they were placed in April 2018. She argued it was not suitable because:

• It made it difficult to get her son to school which is within borough. The suitability assessment form she completed in June 2019 confirmed her son attended a primary school in the Council’s area. She also received treatment from a hospital in the area;

The Council explained her son was not in school at the time it moved her to property 3, which she disputes. The Council said there were local facilities available for him to attend. Miss C confirmed he was in a nursery. The Council explained its Temporary Accommodation Placement Policy sets out how it prioritises temporary accommodation. It gives priority when children are in key stages of education. While it prefers to place all homeless applicants in borough, this is not possible as demand outstrips supply of affordable accommodation;

• It also makes it difficult to get the support, therapy, and care she needs from the hospital she attends in borough; and
• It has outstanding repairs.

29. In response to my enquiries, the Council explained each week, officers from various teams meet to review supply and demand and those in emergency accommodation.
30. Once the Council has met its statutory duty by providing housing to the homeless, it is left with a very limited supply of temporary accommodation. Officers must prioritise those who need to ‘move-on’ from temporary accommodation. The Council considered Miss C along with these families who needed a move-on.
31. It explained the circumstances of a household are considered when allocating temporary accommodation. All applicants complete a ‘temporary accommodation suitability form’ which gives them a chance to provide relevant information for the Council to consider.
32. I have seen the Council’s temporary accommodation placement policy which has 2 parts. The first (section 1) sets out how it assesses an applicant’s priority for temporary accommodation locally in borough:

• Section 1 (categories 1-3): This is for those who: have severe and enduring health conditions needing intensive/enduring specialist medical treatment which is only available in borough; receive a significant care package and range of healthcare options which cannot be transferred; have severe and enduring mental health problems who receive treatment locally and have an established support network;
• Section 1 (categories 4-6): This is for those who: have a child with special educational needs receiving education or educational support at a local school or in neighbouring borough and where a change to another school would be detrimental to their continuing development; have children on the child protection register or have high social needs where a transfer would be against their welfare; are employed for 6 months and where a financial assessment confirms the travel costs would make the area unaffordable;

33. The second part (section 2) is about how it assesses for it outside of the borough:

• Section 2 (part 1): Properties not meeting the needs of any priority applicant can be offered to non-priority applicants in temporary accommodation in date order;
• Section 2 (part 2): This is for: applicants with a child attending a London school enrolled on a public exam course; those who have full time employment in London; those living in temporary accommodation provided by the Council outside of London who have been offered permanent employment in the London area.

34. When the Council placed Miss C in property 3, she did not come within the first section of its policy. This means there was no priority given to her to remain in borough. As a non-priority applicant already living in temporary accommodation, she came within the second part of its policy.
35. I found no fault in its decision to place her in property 3. It considered her circumstances. I accept there were pressures on its homeless and housing department because of a lack of available accommodation but, remain satisfied it considered her personal circumstances before offering her the property.
36. The Council had to keep the suitability of property 3 under review. The independent medical advisor was asked to consider medical priority for Miss C in September 2018. This was 4 months before the birth of her daughter. The independent medical advisor confirmed she had no medical priority. This was because there were medical services available locally. Put simply, she did not need to travel to the hospital in borough to get the help she received as she could get it near to where she lived.
37. The Council placed Miss C on its accelerated transfer list in June 2019. This is a list of priority applicants who are in temporary accommodation who need to move to alternative temporary accommodation for one of several reasons. These include the landlord getting the property back, the Council deciding the property is unsuitable on a long-term basis through a change of circumstances, or the applicant needing to live closer to the borough for social or medical reasons.
38. The evidence shows the Council alerted the agent to Miss C’s reports of repairs. Due to the agent’s failure to do them, the Council decided to place her on the accelerated transfer list. This is because the property had become unsuitable due to the agent’s failure to carry out required works.
39. In its response to my enquiries, the Council accepted the, ‘prolonged wait for a move’ was avoidable and a, ‘formal offer of alternative suitable accommodation could have indeed been made sooner’. It noted Miss C refused to move to accommodation outside the borough.
40. As noted, I am satisfied the Council properly considered the suitability of property 3 when it first offered it to her. Over time, mainly because of increasing problems with repairs and remedial works, the Council decided property 3 had become unsuitable. The Council had a dilemma. If it made an offer of a suitable property outside of the borough, it believed it likely Miss C would refuse it as she made it clear she wanted to live in borough. A refusal of a suitable offer would discharge the Council’s duty towards her, ending its main housing duty to her.
41. I accept the difficulty the Council had in offering her accommodation in borough. This is because in a 12-month period between 2019-2020, it had only 10 temporary properties within the borough which became available. All of these went to those who were homeless on the day or had some other emergency reason. The Council had 1,220 households in temporary accommodation and aims to house them within, or close to, the borough.
42. I appreciate the position the Council took with Miss C as its intention was to help her by not offering her a property it thought she would most likely refuse. If she refused the offer, and her challenge against the suitability of it failed, the Council would then have discharged its duty to her.
43. I consider the Council’s decision not to make her any offer of accommodation out of borough amounts to fault. It denied Miss C the right to challenge the suitability of such an offer. Ultimately, Miss C could have gone on to challenge the offer decision through the courts. The Council’s actions meant Miss C could not do so. It also meant the Council made a decision on her behalf rather than allowing her to make it.
44. While the Council believed Miss C would not accept an out of borough offer, she had accepted the initial offer of property 3, which was out of borough. Faced with the possibility of the Council discharging its duty to her, Miss C might have reflected more on the consequences of refusing it.
45. In response to my draft decision, the Council noted:

• Officers had several conversations with the family who made it clear they were only interested in moving to in borough accommodation;
• The potential negative consequences of our decision for Miss C and many other families as the Council would have to prioritise its own interest (meeting its statutory duty) over trying to meet applicants’ preferences; and
• If Miss C confirmed she would have accepted an out of borough offer, then our position is justified.

46. As a result, I spoke to Miss C who confirmed she would have accepted an out of borough offer because the Council could have made her homeless if she had not done so. In addition, she said she could have then challenged the offer. When told about this conversation, the Council pointed out she had, at this time, been offered, and moved in to, social housing. The Council argued this would have heavily influenced her decision and made the question I put to her obsolete.
47. While I appreciate the Council’s view, I remain satisfied its actions, no mater how well intentioned, denied Miss C of the right to challenge the suitability of an out of borough offer. I also remain satisfied this caused Miss C an injustice. When considering injustice, I took account of the following:

• The opportunity she lost to accept or reject an offer of out of borough accommodation;
• The opportunity she lost of challenging any offer as unsuitable;
• The outcome of any such challenge is, of course, unknowable;
• The possibility of the Council ending the duty it owed her; and
• While resistant to an out of borough placement, she had accepted property 3, which was out of borough.

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Agreed action

48. I considered our guidance on remedies.
49. The Council will, within 4 weeks of the final decision on this complaint, do the following:
1. Send her a written apology for failing to offer her out of borough accommodation;
2. Review its practice of not making out of borough offers of accommodation where the applicant lives in unsuitable temporary accommodation; and
3. Pay Miss C £300 for the distress caused (lost opportunity and uncertainty).

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Final decision

50. The Ombudsman found fault on Miss C’s complaint against the Council. The agreed action remedies the injustice caused.

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Parts of the complaint that I did not investigate

51. I did not investigate any part of Miss C’s complaint about the Council’s actions that took place before April 2018. This is because they are late complaints. Miss C complained to the Ombudsman in August 2019. Usually, we only investigate actions a person becomes aware of within the last 12 months. This would mean investigating events from August 2018.
52. Due to her various health problems, I exercised discretion to investigate the Council’s actions from April 2018. This is the date the Council moved her to her current accommodation.
53. For the sake of clarity, this means I did not investigate:

• Any complaint about the suitability of Property 1 where she lived from May 2016 to March 2017.
• Any complaint about the suitability of Property 2 where she lived from March 2017 to April 2018.

54. I did not investigate complaint a). This is because this was a late complaint. The Council decided not to add her to the housing register in 2014 and 2015 as she failed to provide the evidence requested to show she met the residency criteria for example. She would have been aware at the time of the Council failing to accept her on to the register. She did not complain to us about it within 12 months.

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Investigator's decision on behalf of the Ombudsman