Summary: Mr F complains the Council placed him and his family in unsuitable temporary accommodation, did not protect their belongings, took back a duty of care despite earlier stating it had ended and did not give them long enough to consider an offer of permanent accommodation. The Ombudsman upholds the complaint, because we have found some fault with the Council’s administration. But with the key issue of the duty of care, our view is the Council did retain the duty of care to Mr F and his family.

The complaint

1. The complainant, whom I shall describe as Mr F, complains the London Borough of Newham (which I shall refer to as Council B):

• placed him and his family in unsuitable housing, that another Council found to be unfit for human habitation;
• took back a housing duty of care to re-house them, despite having told a Court it had ended its duty;
• assisted in an unlawful eviction from temporary accommodation;
• did not protect their belongings when they left the temporary accommodation;
• did not tell them that it had taken back its homeless duty until four days before it told them they had to leave temporary accommodation;
• advised them it would find them intentionally homeless if they did not accept an offer of accommodation. They accepted the accommodation under duress, as Council B told them there was nowhere else for them to go;
• did not give them long enough to consider the offer of accommodation.

2. Mr F says he wants a different council to accept that it has a homelessness duty towards them. He feels Council B’s action have allowed the other council to evade its duties.

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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. 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. 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)
6. Homeless applicants may request a review within 21 days of being notified of the decision on their homelessness application, including about the suitability of accommodation provided. If the applicant wishes to challenge the review decision, or if a council takes more than eight weeks to complete the review, they may appeal on a point of law to the County Court (Housing Act 1996, sections 202 and 204)
7. 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

8. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr F;
• made enquiries of Council B and considered its responses;
• spoken to Mr F;
• sent my draft decision to Mr F and Council B and considered their responses.

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What I found

Legal and administrative background

The ‘main housing duty’ for homeless applicants

9. If a council is satisfied someone is eligible, homeless, in priority need and unintentionally homeless it will owe them the main homelessness duty. Generally, a council will carry out the duty by arranging ‘temporary’ accommodation until it makes a suitable offer of housing. (Housing Act 1996, section 193) While a council is making its initial enquiries it must offer an applicant ‘interim’ accommodation.
10. There are some circumstances when a council can end its duty before re-housing an applicant. But a council must notify an applicant of a decision in writing. An applicant has a right to a review of a decision to end a duty.
11. A council can end its housing duty by making an offer of social or private rented sector (PRS) accommodation.
12. If an applicant who has accepted PRS accommodation tells a council, within two years, they are homeless again, the council must provide interim accommodation while it investigates whether the applicant is eligible, homeless and in priority need. If the council agrees the applicant meets those criteria, it retains a duty to re-house the applicant.
13. People living in interim and temporary accommodation can be evicted more easily than tenants in settled accommodation.

Offers of accommodation and suitability

14. The law says councils must ensure all accommodation (including interim and temporary accommodation and that provided in discharge of the housing duty) is suitable for the needs of the applicant and members of his or her household. (Housing Act 1996, section 206 and (from 3 April 2018) Homelessness Code of Guidance 17.2)
15. The Homeless Code of Guidance (the Code) says:
• as a minimum an address should be free of category 1 Housing Health and Safety Rating System (HHSRS) hazards (see below) and fit for habitation. But a council is not under a duty to carry out a full inspection or HHSRS hazard assessment before deciding accommodation is suitable;
• for PRS, offered to discharge a housing duty, councils must be satisfied the accommodation is in a 'reasonable physical condition' and that there is evidence of safe electrical and gas appliances.
16. The Code also recommends:
• applicants are allowed a 'reasonable period' (the length depending on the circumstances of the applicant) to decide whether to accept an offer of accommodation;
• applicants should be able to view properties before being asked to accept;
• ideally, applicants should be able to consider more than one address.
17. Applicants who are offered accommodation as temporary accommodation or accommodation in discharge of a duty, can request a review of suitability, whether or not they have accepted the offer.

Council B’s Policy for the Allocation of Temporary Accommodation and Private Rented Sector Offer in Discharge of the Main Homelessness Duty

18. The Council’s Policy says:
• It would try to provide suitable accommodation within the Borough, ‘wherever reasonably practicable’. But it notes there is not enough local accommodation available.
• ‘…increasingly, we are having to procure accommodation that is further away due to the difficulty in finding affordable accommodation within 90 minutes travelling time to Newham by public transport.’

Protection of belongings

19. Where a council owes, or has owed, certain housing duties to an applicant, it must protect the applicant’s personal belongings if there is a risk they may be lost or damaged. A council may make a reasonable charge for storage and reserve the right to dispose of the belongings if it loses contact with the applicant. (Housing Act 1996, section 211, Homelessness Code of Guidance chapter 20)

Prohibition Order

20. The HHSRS is the way council environmental health teams assess housing conditions. It lists 29 ‘hazards’ that are risks to the health and safety of the occupiers. If the officer finds a serious (Category 1) hazard, a council has a duty to take enforcement action.

What happened

Background events

21. In 2014 Mr F and his family approached Council B, as they were street homeless. Following a review, Council B accepted a full housing duty to Mr F. In 2015, it discharged this duty by placing the family in PRS accommodation in a town near London.
22. In mid-2017 Mr F went back to Council B. He told it they could not afford to stay in the PRS address, because of changes in welfare benefit law, leading to rent arrears. Council B accepted it still had a housing duty. In July it placed Mr F in temporary accommodation (Address 1) in a neighbouring borough (Council C). Mr F requested a review of the suitability of that accommodation. He cited a gas leak and a faulty cooker. Council B did not uphold the review. The decision letter advised Mr F of his appeal rights.
23. After this, an engineer tried to visit Address 1 to investigate the gas leaks. Council B and the letting agent also visited. Mr F refused entry. These events are the subject of a previous decision by the Ombudsman. We did not uphold the complaint.

The possession action and Council B’s letter

24. By October 2017, Mr F had representatives acting on his behalf. Council B told them Mr F and his family needed to move out of the address, so the landlord could carry out repairs. It advised it had arranged a hotel for Mr F to move to, temporarily. But it did not agree this meant the address was unsuitable.
25. It is unclear from Council B’s records exactly what Address 1’s agents did after this, although it is recorded they started possession action for rent arrears. On 16 October Council B wrote to the letting agents advising it was aware of the possession proceedings. It advised it had discharged its duties and cancelled Mr F’s booking.
26. In response to my enquiries Council B has advised:
• The advice in this letter was incorrect in one respect – it had not then discharged its homelessness duties.
• The error happened because an officer had not deleted one part of a template letter.
• But it had cancelled the booking, due to Mr F’s rent arrears.
27. Mr F says the agents presented Council B’s letter at a Court hearing about the possession action a few days later. The possession action was not successful, because the landlord did not attend the hearing.
28. Around the same time, Council C served Address 1’s landlord an improvement notice, as it had found Category 2 HHSRS hazards.
29. For the rest of 2017 and into 2018 Mr F’s representative and Council B were in correspondence about repairs to Address 1. Council B again agreed to provide Mr F and his family with alternative accommodation, to allow the landlord to carry out repairs to Address 1. There followed a further dispute about how the landlord would carry out the works.
30. In May 2018 Council C served a new Prohibition Order on the landlord. This Order had both Category 1 and Category 2 hazards.

Mr F and his family’s move to Address 2

31. Shortly after Council C served the Prohibition Order, Mr F approached a third council (Council D). Mr F says this is the borough he grew up in. He told Council D he was homeless. On 18 May 2018 it provided Mr F and his family with interim accommodation (Address 2), while it made enquiries about whether it owed him a duty to rehouse him, under homelessness law.
32. At the end of May, Council D wrote to Council B asking it for information about Mr F’s housing status with it. Council B’s response advised Council D it still owed Mr F a full housing duty. It noted Address 1’s landlord was taking steps to evict Mr F, because of rent arrears.
33. Council B has a June 2018 note in its files that says it expected Council D would decide it did not owe Mr F a housing duty, as that still resided with Council B. So it wanted Address 1 repaired so the family could return to it.

Mr F’s possessions

34. In February 2018 Council B wrote to Mr F’s representatives advising he would need to move to alternative accommodation while Address 1’s landlord carried out repairs. It advised them Mr F would need to remove any valuables from Address 1. And where possible, to put other possessions in cupboards. The representative responded to say, as the landlord had served Mr F with a notice to quit, Mr F would not be leaving his possessions in Address 1. The representative advised Council B Mr F would not be returning.
35. Mr F’s representative then sought to delay the works. Council B advised it would not delay. It advised it could decide later about Mr F’s return to Address 1. It advised Mr F again to remove any valuables.
36. Council B’s records show it was not aware Mr F had had left Address 1 until Council D approached it at the end of May 2018 – some weeks after Mr F and his family left. Mr F disputes this – he says Council B knew within days that he had left. In either case, I can see no record of Mr F contacting Council B asking it to take his belongings into storage.
37. Mr F says they had to leave possessions at Address 1. Council B says it understands Mr F contacted the agents and was able to collect their possessions at the beginning of June. Mr F says the agents had changed Address 1’s locks. And when they collected their possessions most of them were missing or damaged.
38. On Council B’s files is a copy of a claim Mr F bought against Address 1’s landlord for damages, because the agent lost everything when they changed the locks. The Court dismissed the claim.

The move to Address 3

39. On 30 September 2018 Council D ended its provision of interim accommodation (Address 2), because it decided it did not owe Mr F a homelessness duty, as that remained with Council B.
40. Council B accepted it retained a duty of care to Mr F and his family. Its view was it was pragmatic for it to take over management of Address 2, as it also worked with the agents managing that property. But that needed a formal transfer of the license agreement.
41. On 1 October Council B called and texted Mr F, advising him he would need to sign a new licence agreement, as it had taken over the management of Address 2.
42. On 5 October, Council D wrote to Mr F to advise it had not accepted it owed him a housing duty, as that remained with Council B. The letter asked Mr F to vacate Address 2 by 15 October.
43. Council B has records of telephone calls from Mr F on 5 October. He spoke to officers and asked to speak to a manager.
44. On 10 October Mr F contacted Council B again. Its records note:
• an officer told Mr F Council B had taken over management of Address 2. So he would need to visit to sign a licence agreement.
• Mr F said he would not visit, as he had a review with Council D and wanted nothing to do with Council B.
• Mr F cited the October 2017 letter where Council B had noted it had ended its housing duty.
• Mr F started shouting and became abusive.
45. Council B has a letter in its files dated 15 October advising Mr F it was fulfilling its duties to providing him and his family with temporary accommodation by taking over responsibility for Address 2, from 1 October. The letter noted Mr F and his family occupied the address on a day to day basis. So they might have to move if the landlord wanted the address back. Council B does not have a returned, signed, copy of this letter in its file. Nor does it have any record of conversations or other contact with Mr F between 10 and 25 October.
46. On 15 October, Council D wrote to Mr F again advising it had ended it duty. This letter advised Council B had agreed to take over the booking for Address 2, from 1 October.
47. On 16 October, Council B emailed Address 2’s letting agent advising it was unable to take over the booking, as Mr F would not engage with it. So it could not set up a rent account. It advised the agent this meant Council D was still liable for the rent.
48. On 24 October Address 2’s agents contacted Council B ‘following our conversation’. They advised they could not accept a new booking, as the landlord wanted the property back. It advised Council B that Council D had paid the rent until 28 October, so Mr F and his family needed to vacate on 29 October. There is no contemporaneous record of the conversation referred to in Council B’s records.
49. Council B’s next record of contact from Mr F is a note of a telephone call from him on 25 October. It noted Mr F wanted Council B to accept it was in breach of the law. The record notes Mr F started shouting, as he had not been called back, as promised. The officer advised Mr F he could stay in Address 2 until Council B found him an alternative. The officer terminated the call, as Mr F was shouting.
50. Also on 25 October Council B:
• Wrote to Mr F advising it had to withdraw its offer for his family to stay in Address 2, as the landlord wanted the property back. So it would not be carrying out an inspection planned for the following day.
• Wrote to Mr F advising it had found an address for them to move to in another London Borough (Address 3). It carried out a review that day of its suitability – including its size, condition, location and affordability. The letter gave reasons why it was not practicable for it to find accommodation in its own area. It says if Mr F did not take up the offer it would end its duty to him. It advised him of his right to request a review of the suitability of the address, including after he accepted the address.
51. Council B says Mr F viewed Address 3 before agreeing to the move, although the only record of the viewing in its files is correspondence setting it up.
52. The 25 October letter to Mr F advised him the offer of accommodation expired on 29 October. Mr F says he signed a tenancy agreement under duress, as he was advised he would be found intentionally homeless if he did not. The start date of the tenancy was 29 October 2018.
53. Mr F’s representative advised him to accept the tenancy and then challenge suitability afterwards. Mr F later challenged that advice, but not in relation to Address 3’s suitability. Mr F did not ask Council B for a review of the suitability of the property.
54. At the beginning of 2019 Mr F complained to Council B about its actions. Its response advised:

‘I appreciate you may have had very little time to consider the offer of [Address 3] but this was a private rented sector offer considered to be more suitable, as opposed to the temporary accommodation offered to you by [Council D].’

55. In March Mr F complained at stage 2 of Council B’s complaints procedure, including a complaint about the Council not protecting their belongings when they left Address 1. Council B responded towards the end of August. It advised it had no excuse for the delay in responding. But did not uphold the complaint. Its view was Mr F had ‘ample opportunity’ to retrieve his possessions.
56. Mr F complained to the Ombudsman in October 2019. He told me the reason why he did not complain earlier about some of the events was because it was only when he saw his housing file (obtained from Council B under a Freedom of Information request) that he realised the degree in which Council B was involved in Address 1’s landlord’s actions against him.
57. In response to my enquiries, Council B told me:
• It was not aware Mr F had left Address 1. And he approached Council D without its knowledge.
• ‘Mr [F] accumulated significant rent arrears at [Address 1] and as a result the Newham rents team did send out various warning letters and finally cancelled the accommodation due to rent arrears.’
• ‘It is standard practice at Newham that when … [the October 2017] letter is issued the rent account is closed and payment to the agent is then cancelled. Under the B&B nightly paid temporary accommodation agreement between Newham and the provider it is the responsibility of the managing agent to gain possession of their address.’

Was there fault by Council B?

Jurisdiction

58. Mr F complains about events going back to mid-2017 – that is around two years before his complaint to the Ombudsman. So part of the complaint is late.
59. I am not persuaded that we should investigate Council B’s placement of Mr F’s family in Address 1. I can see he did ask Council B to review the decision. He had the option to then take the matter to Court. My view is it was reasonable for him to have done so. And, anyway, I do not agree the housing file provides any information about this suitability decision that was not available beforehand. Mr F has made earlier complaints to the Ombudsman, so was aware of our role. So my view is it was also reasonable for him to have come to us earlier.
60. I will also not investigate the repairs issues at Address 1. We have already considered a complaint about repairs for part of Mr F’s stay. Mr F has not advised me of any information in Council B’s housing file, about repairs, that he was not already aware of. So I see nothing to persuade me it was not reasonable to have expected Mr F to have complained earlier to us about any later repair issues.

Had Council B discharged its homelessness duties to Mr F?

61. I will however consider whether Council B retained a duty to re-house Mr F. This is because that issue became significant when Council D ended its enquiries and its provision of interim accommodation – it wrote to Mr F about this on 5 October 2018, so within 12 months of his complaint to us.
62. Mr F has cited the 16 October 2017 letter from Council B to Address 1’s letting agents. In it the Council says it had ‘discharged its duties’ (ie its duty to rehouse Mr F in more permanent accommodation). He concludes the Council was colluding with the letting agent to evict him, as the letter would have assisted the agents in the Court hearing for possession.
63. Council B says the confusing letter was because of an error in deleting standard sentences. That error was fault. But a review of the Council’s file leads me to conclude, on the balance of probabilities, Council B had not intended then to discharge its duties. Instead it intended to tell the agent it had cancelled the accommodation it was providing, because of the rent arrears. And, so, they would need to take possession action.
64. I have reached that view because:
• elsewhere in Council B’s records it notes it had not ended its duty;
• there is nothing in Council B’s file (apart from the letter) to suggest it had taken any steps to (either formally or informally) end its housing duty;
• if Council B had discharged its duties, it would have likely told Council D that when it asked. Councils will not usually accept a duty (with the attendant time and financial costs) when they believe the duty lies elsewhere. So the fact Council B did not try to pass the duty to Council D shows its view was it had not discharged its duty.
65. So I cannot agree with Mr F about the significance of the October 2017 letter. Council B had never ended its housing duty and Council D never accepted a duty. Council D housed Mr F and his family in interim accommodation while it investigated his homelessness application. I know Mr F strongly disagrees with Council D’s decision. But that is not the subject of this investigation.

The move to Address 3

66. After Council D concluded its investigation and decided it did not owe Mr F a duty, its duty to provide interim accommodation (Address 2) ended. The responsibility for housing Mr F returned to Council B. Several of Mr F’s complaints are about issues relating to the transfer and the move to Address 3 (an offer of permanent private rented sector housing). I consider these in what follows.

Council B did not tell Mr F that it had taken back its homeless duty until four days before it told them they had to leave Address 2

67. The Council’s records note it had been asking Mr F to sign a new licence agreement for Address 2 from 1 October. Mr F refused to accept this, as he wanted Council D to assist him. So I cannot agree with Mr F that Council B delayed contacting him about its continuing duty of care.
68. There is a suggestion that Council D’s advice (for example its 5 October letter that Mr F needed to vacate Address 2 by 15 October), was wrong. But even taking this into account, my view is Council B took reasonable attempts to engage with Mr F about this. Mr F’s actions in some of his contacts did not allow Council B to take over the licence, as it intended to do. I cannot say that the lack of progress during the time was due to fault by Council B.

Council B advised Mr F it would find him intentionally homeless if he did not accept an offer of accommodation.

69. The Homeless Code of Guidance sets out a relatively modest minimum standard on the ‘suitability’ of accommodation offered in discharge of a housing duty. Once those minimum standards were met, it was up to Council B to decide the standard of the accommodation it offered. Council B’s view was Address 3 was suitable for Mr F and his family.
70. Given the above, Council B was right to warn Mr F that, if he did not accept the accommodation, it would be entitled to discharge its duty. Mr F was advised by his representative that he could have accepted the offer and then challenged its suitability. It seems Mr F did not do this. But my view is Council B acted correctly. So I cannot uphold this part of the complaint.

Council B did not give Mr F long enough to consider the offer of accommodation.

71. By 16 October, Council B had decided that, as Mr F would not agree to pay the rent at Address 2, it would not be able to take on the booking. It let the agent know this. Its records are silent on what happened after this.
72. The next record is a 24 October contact from the agents responding to a conversation that is not on file.
73. Clearly there had been some action in the intervening period – at the least the conversation the agents’ email referred to. There is also a copy of a letter to Mr F on file offering him Address 2 as temporary accommodation. But there is no corresponding record in the case notes about it being sent to Mr F, or if he responded. The lack of records is fault.
74. There should also have been records of further attempts to contact Mr F, after 16 October. Council B should have advised Mr F of the changed situation and set out what it would do if he did not engage. There should also be a record confirming Mr F had viewed property 3.
75. The lack of records for this period is fault. And it suggests some delay by Council B between 16 and 25 October (albeit with the possibility Mr F was still not engaging with it in this period).
76. But, by 24 October at the latest, Council B realised it had to move Mr F and his family. This urgent need to move is confirmed by an email from the agent advising that Mr F needed to vacate by 29 October.
77. So by 24 October, the Council had to ask Mr F to make a decision on Address 3 at relatively short notice. This is always a risk in temporary accommodation, that does not have the security of tenure of more settled accommodation. So given the circumstances then, I cannot say that was fault.

Mr F’s belongings

78. I appreciate the upset to Mr F and his family to find their belongings to be damaged and missing when they went back to Address 1 to collect them. But I need to consider whether that was because of any fault by Council B.
79. I note Council B told Mr F at least twice he should take all valuables with him when he temporarily left Address 1. I acknowledge it told Mr F to store his non-valuable possessions in cupboards. But I cannot say that advice was fault. Its intention was for Mr F to return to the property. Mr F never asked Council B to store his belongings.
80. In those circumstances I cannot see Council B could have done anything more. Mr F correctly sought damages from the landlord for the loss of his belongings.

The complaint

81. The Council has accepted it delayed responding to Mr F’s stage two complaint. That delay was fault.

Recommended action

82. To recap, the parts of the complaint where I have found fault are:
• The October 2017 letter that mistakenly noted Council B had ended it housing duty.
• The poor record keeping about what happened between 16 and 25 October.
• The lack of a record of the visit to Address 3.
• A delay in giving Mr F advice, after Council B decided to cancel the booking of Address 2, about its implications for Mr F and his family.
• The delay in responding to Mr F’s complaint.

Injustice

83. These faults will have caused Mr F some frustration.
84. But they do not have any bearing on Mr F’s desired outcome – for Council B to accept it wrongly rehoused him and that duty lay with Council D. With the events around that issue, I have not found fault.
85. Mr F says Council B’s October 2017 letter was meant to help the landlord evict him. But the Court did not grant that application. So I cannot agree with Mr F that this caused him any significant injustice.
86. Mr F had his reasons for not wanting Council B to take over responsibility for rehousing him. Having spoken to him, I can understand his strong desire to return to the area where he grew up. But when assessing injustice, I must take account the fact that Mr F’s refusal to engage with Council B likely contributed to the situation that culminated in Council B needing to move Mr F and his family at relatively short notice.

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Agreed remedy

87. I recommended the Council write to Mr F and his family apologising for the faults I have identified. The Council has agreed to my remedy.

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Final decision

88. I uphold the complaint. As the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman