Summary: Miss B complains about the way the Council dealt with her homelessness application and her concerns about the suitability of the accommodation it provided. The Ombudsman has not found fault in the Council’s actions except some delay and procedural failings in the handling of Miss B’s homelessness application. We do not consider that this fault has caused injustice for which we would seek a personal remedy but have made recommendations as to the Council’s future practices, which the Council has agreed.

The complaint

1. Miss B complains that the Council:
• took too long to decide on her homelessness application;
• did not respond to her request for a review of the suitability of the out-of-borough accommodation provided;
• did not deal with problems with damp and mould in the flat, even though she told the Council that the heating did not work properly; and
• told her she would be put on the transfer list for a larger property when her child reached the age of six months but did not offer her a larger property.
2. This has caused her (and her former partner) considerable stress and financial difficulty and affected her mental health, his physical health, and that of their infant child.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by “maladministration” and “service failure”. 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)
4. We cannot question whether a decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with a body’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. Miss B’s complaint to the Council was about the condition of the property in which she was housed from August 2019. In her complaint to the Ombudsman, she also raised concerns about the time taken to deal with her homelessness application, the suitability of the accommodation, and when she would be offered new accommodation. Given that Miss B’s concerns all related to her then housing situation, I have exercised discretion to consider those additional matters.
7. I have considered Miss B’s written complaint and supporting correspondence and spoken with her. I have written to the Council and considered its response and supporting papers. I have had regard to relevant legislation and guidance. I have also sent Miss B and the Council a draft decision and invited their comments.

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What I found

Legal and administrative background

8. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities (the Code) set out councils’ powers and duties to people who are homeless or threatened with homelessness. The Code is not a statutory Code, i.e., it does not carry the force of law. That said, Councils must have regard to the Code when considering homelessness applications.

Assessments and Personal Housing Plans

9. Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. Councils must notify the applicant of the assessment. They should work with applicants to identify practical and reasonable steps for the council and the applicant to take to help the applicant keep or secure suitable accommodation. These steps should be tailored to the household, and follow from the findings of the assessment, and must be provided to the applicant in writing as their personalised housing plan. (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.18)

Applications

10. If a council has “reason to believe” someone may be homeless or threatened with homelessness, it must take a homelessness application and make inquiries. The threshold for taking an application is low. The person does not have to complete a specific form or approach a particular council department. (Housing Act 1996, section 184, and Homelessness Code of Guidance paragraphs 6.2 and 18.5)

The relief duty

11. Councils must take reasonable steps to secure accommodation for any eligible homeless person. When a council decides this duty has come to an end, it must notify the applicant in writing. (Housing Act 1996, section 189B)

Duty to arrange interim accommodation

12. A council must secure interim accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need. (Housing Act 1996, section 188) Examples of applicants in priority need are: people with dependent children; pregnant women; and people who are vulnerable due to serious health problems, disability, or old age.

The main homelessness duty

13. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need, it has a duty to secure accommodation that is available for their occupation. But councils will not owe the main housing duty to applicants who have turned down a suitable final accommodation offer or a Housing Act Part 6 offer made during the relief stage, or if a council has given them notice under section 193B(2) due to their deliberate and unreasonable refusal to co-operate. (Housing Act 1996, section 193, and Homelessness Code of Guidance 15.39)

Suitability of accommodation

14. The law says councils must ensure that all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of his or her household. This duty applies both to interim accommodation and accommodation provided under the main homelessness duty. Accommodation that is suitable for a short period, for such as interim accommodation, may not necessarily be suitable for a longer period, for example to discharge a duty under section 193(2). (Housing Act 1996, section 206, and Homelessness Code of Guidance 17.2 and 17.7)
15. Councils must consider the location of accommodation when they consider if it is suitable for the applicant and members of their household. If a council places an applicant outside its district, it must consider, among other matters:
• the distance of the accommodation from the “home” district;
• the significance of any disruption to the education of members of the applicant’s household;
• the proximity and accessibility to local services, amenities, and transport. (Homelessness (Suitability of Accommodation) Order 2012)
16. Councils should avoid using bed and breakfast accommodation. It should only be used as a last resort in an emergency and then for the shortest time possible. Bed and breakfast accommodation can only be used for households which include a pregnant woman or dependent child when no other accommodation is available and then for no more than six weeks.  (Homelessness Code of Guidance paragraphs 17.24, 17.30 and 17.32)

Review rights

17. Homeless applicants may request a review within 21 days of being notified of the following decisions (and others not listed here):
• what duty (if any) is owed to them if they are found to be homeless or threatened with homelessness;
• giving notice to bring the relief duty to an end;
• giving notice in cases of deliberate and unreasonable refusal to co-operate;
• the suitability of accommodation offered to the applicant after a homelessness duty has been accepted (and the suitability of accommodation offered under section 200(3) and section 193). Applicants can request a review of the suitability of accommodation whether or not they have accepted the offer.

What happened

18. Miss B previously lived with her family within the borough. Her partner, Mr D, lived with his family in another London borough. During 2018, they moved into private rented accommodation until October 2018. Miss B then moved to a relative’s house for a short period before moving back to the family home, while Mr D moved back to his family home in his home borough. In November 2018, Miss B and her partner applied to join the Tower Hamlets housing register.
19. In 2019, Miss B became pregnant. Both she and her partner were asked to leave their respective family homes. In June and July 2019, they lived at several addresses but had no permanent accommodation.
20. On 27 July, Miss B contacted the Council’s Housing Options team. She explained that she was pregnant and that she and her partner had nowhere to sleep. The Council placed her in bed and breakfast accommodation. Miss B and Mr D then completed a homelessness application on 6 August. The Council arranged nightly-let interim accommodation in privately rented studio flat in a North London borough beginning the same day.
21. On 21 August, the Council received a letter from Miss B asking for a review of the property offered. She explained that the flat’s location was not ideal as she was pregnant and she had to travel back to Tower Hamlets for hospital appointments, to see her GP and or housing assistance. Her partner also had to travel to central London for hospital appointments. There was no underground station within 30 minutes so this made travelling difficult. She was also concerned that the flat would be too small when she had her child. She asked if the Council could look into relocating her back into Tower Hamlets or nearby.
22. On 10 September, the Council carried out a settling in visit/inspection at the flat, which was found to be in good condition. Miss B was advised to contact her Housing Officer about any housing issues, and to report any concerns over repairs to her landlord.
23. In late October, Miss B emailed the Council explaining that the flat was very cold and difficult to warm up. Only the bottom of the radiator would heat up even if left on for three hours and there were problems opening and closing windows. She said this was making the property damp, but the landlord was not responding to her. She also said the officer assessing her homelessness application was not returning her calls.
24. At the start of November, the Housing Officer emailed the landlord’s agent about the windows and damp and asked for an additional heater, which was provided soon after. He also asked the Assessment Officer to respond to her.
25. In early December, Miss B contacted the Council. She said that someone had attended the property to look at the damp. However, this had made it worse, so the landlord had said they would follow up and fix the problem in the New Year. The Housing Officer followed up with the landlord’s agent two weeks later.
26. On 19 December, the Council issued a decision on Miss B’s and Mr D’s homelessness application. It said it had ended the relief duty and accepted the main housing duty to secure suitable accommodation under section 193(2) of the Housing Act. It would continue to provide housing until that duty was satisfied.
27. Miss B’s child was born shortly after.
28. In early January 2020, Miss B told the Housing Officer that the landlord’s agent had attended the property. However, there were still damp problems and she had been advised to leave the window open to remove moisture.
29. The following week, the Housing Officer emailed the agent asking them to complete the repairs within seven days. He advised Miss B to ventilate the property as much as possible. He also explained that they would go on the transfer list for a larger property when her child was six months old.
30. Three days later, the agent emailed the Housing Officer and explained that a contractor had attended the property and would treat and paint areas of the ceiling and around the windows. He said that Miss B was happy with that and would let the agent know a suitable day for the works. The works were carried out on 23 January.
31. In early February, Miss B made a formal complaint to the Council about the Council’s response to her concerns about the property condition.
32. Later that month, the Housing Officer contacted the agent. The agent explained that he had attended the property on a cold day. He said there were clothes drying, the windows and the kitchen window vent were shut, moisture was being left on the windows, and there was no heat on. The agent had spoken to the contractor working in the property; he said that the client was cooking and steam was going everywhere, with the windows closed and the heating off. The agent said had advised the complainants to use the central heating, as this was cheaper than the electric heater, to open windows especially when drying clothes, and to clean moisture from windows.
33. The Housing Officer visited the flat at the end of February and observed that it was cold, there was washing out and mould in some areas. He emailed Miss B and emphasised the need to ventilate the property, particularly if drying clothes, and to clean areas of damp and mould. He also sent her booklet about mould and condensation. Miss B disagreed with the officer’s assessment.
34. In early March, the Housing Officer contacted the agent about water on the ceiling and concerns that Miss B had raised about the boiler switching off after 20 minutes. He asked the agent to check the wall on the outside for a possible leak, and to carry out another wash of the mould patches and said he would ask Miss B to keep on top of the mould problem thereafter. The agent agreed to the Housing Officer’s requests.
35. The Council responded to Miss B’s complaint. It explained the action taken, the further investigation that would be undertaken, and the landlord’s responsibilities. It also explained that the way the flat was being occupied was contributing towards the condensation. It did not uphold her complaint.
36. Miss B then complained to the Ombudsman about the condition of the flat and the impact on her family and her child’s health. She complained about the size and location of the property and the impact on her day-to-day life, keeping in touch with her support network, and attending medical appointments. She also complained about the time that the Council had taken to decide on her homelessness application, which caused her uncertainty and stress.
37. In May, Miss B asked her Housing Officer if they would be moving the next month when her son would be six months old. She said the ceiling was still damp when it was cold and she wanted to move before winter. The Housing Officer said she would be added to the transfer list when her child was six months old. But he could not provide a timescale for a move due to the shortage of properties and COVID-19 lockdown. Miss B later explained that she and her partner were having problems and having a break from each other and was advised that this would not affect her being added to the transfer list.
38. Miss B was put on the transfer list in June for a direct offer of housing, when available. She was also able to bid for a property. Her bids would be prioritised according to the banding awarded under the Council’s allocations policy. She had Band 2A priority, together with other homeless and overcrowded families, and was eligible to bid for permanent two-bedroom homes.
39. Miss B contacted her Housing Officer again in June. She repeated that the ceiling was damp when it was cold and asked to be moved.
40. The Housing Officer advised her that, since the damp occurred when it was cold, this showed that this was condensation and she should continue to wipe down the affected areas. He said he would request a transfer back to Tower Hamlets but this could not be guaranteed. The Allocations Manager would transfer families as soon as possible, but this would depend on the affordable property available at the time, and emergency cases and families in bed and breakfast accommodation that are a priority. He could not therefore provide a timescale for a move.
41. Miss B contacted her Housing Officer again in September 2020 repeating her concerns that damp problems would recur with winter approaching. The Housing Officer replied that the Allocations Manager had agreed to prioritise her case. He said she could submit a request to review the suitability of the property but, as she already had priority on the transfer list, she might not think this necessary.
42. In late October, the Council offered Miss B new temporary accommodation in a one-bedroom property. She attended the property but was dissatisfied with its condition and sent the Council photographs. The Council accepted that the property was not ready in line with the expected standards and withdrew the offer.
43. Shortly after, Miss B was offered temporary accommodation in a one-bedroom second-floor flat in Tower Hamlets. She moved into the property but had concerns over its suitability.

My assessment

Delay dealing with homelessness application

44. Miss B contacted the Council in late July 2019 and made a homelessness application on 6 August. The Council accepted the relief duty to her but did not refer to this in its notification when providing interim accommodation. It should also have prepared a personal housing plan setting out the proposed steps to secure accommodation for Miss B but has provided no evidence of this. On 19 December, the Council ended the relief duty and accepted a full housing duty.
45. The Code says that where the housing authority is satisfied that it has the necessary information to determine that an applicant is in priority need and not intentionally homeless, it should be possible to notify them when the relief duty normally comes to an end after 56 days. If not, the Code recommends that inquiries be completed and a decision issued within a further 15 working days.
46. In the case of Miss B’s application, it is not clear that the Council needed additional information to reach a homelessness decision, so this took two months longer than the maximum recommended in the Code. I appreciate that this delay would have caused Miss B some stress and uncertainty.
47. However, the timetable for issuing a decision is not binding and the Council continued to provide her with interim accommodation. Moreover, Miss B did not make a formal complaint about this delay at the time. On balance, I do not therefore consider that this delay has caused personal injustice that warrants a personal remedy to Miss B. However, I will ask the Council to remind officers of the recommended timescales for decisions, even in cases where interim accommodation has been provided. I will also ask the Council to remind officers of the need to prepare a personal housing plan, and to refer to the relief / prevention duties in correspondence, as appropriate, so that applicants can understand the Council’s duties towards them.

Failure to respond to request to review suitability of accommodation

48. Miss B wrote to the Council in August 2019 saying that the flat was not suitably located given her support network, the location of her and her partner’s medical appointments, and the distance from an underground station. She was also concerned that it would be too small when she had her baby.
49. As set out above, councils must consider a range of factors in relation to the suitability of accommodation. However, there are also practical limitations on the availability of accommodation particularly where this is required urgently. As a result, what is considered suitable may vary depending on the individual circumstances and the period for which the accommodation is occupied.
50. At the point that Miss B made her review request in August 2019, there was no statutory right to request a review, though it was for the Council to take into account her concerns. The Council did not respond to her in writing but I note that the Housing Officer visited Miss B in her home soon after, and Miss B did not complain about the location thereafter. Moreover, I note that Miss B did not request a review of the suitability of her accommodation when she was notified of her review right on 19 December 2019.
51. I appreciate that being placed out of borough was not ideal for Miss B, particularly as she was pregnant. However, given the constraints on availability of accommodation at short notice, given that Miss B could have made a formal complaint if she were dissatisfied with the Council’s response to her letter, and as she did not request a review when she had a statutory right to do so, I see no grounds to pursue this aspect of her complaint further.

Delay and failure to deal with a leak, damp, mould and faulty heating

52. The Council had a duty to provide suitable accommodation and to keep that under review. However, the responsibility for maintenance and repair of the property rested firstly with the landlord.
53. I note that the Housing Officer inspected the flat soon after Miss B moved in and it was found to be in good condition. When the weather became colder, Miss B contacted her Housing Officer as the landlord had not responded to her concerns about damp, cold and mould in the property. The Housing Officer responded by having the landlord’s agent visit and provide an electric heater. He followed up with the agent in the New Year when Miss B complained that the damp problem had not been resolved, after which the damp areas were painted and treated. When Miss B complained again, he again arranged for the agent to visit, visited himself and arranged for the agent to redecorate the damp areas, to check for any leaks and to check why the boiler was switching off after 10 minutes. I consider that the Housing Officer took reasonable streps to try to resolve the problems that Miss B was experiencing with damp in the property.
54. I see nothing to suggest that the Housing Officer was wrong to advise Miss B that this was condensation, based on the observations of the use of the flat. This appears to be borne out by the damp problems only occurring in cold weather. It seems to me that the Housing Officer provided appropriate advice in response.
55. With regard to the radiator / boiler. Miss B’s first complaint was that, even when the radiator was left on for three hours, only the bottom of the radiator heated up -this suggests that the boiler was working but that that air needed to be bled from the radiator. The second problem with the boiler switching off appears to a new matter. I note that the Housing Officer had the agent attend on both occasions and also provide additional heating. I see no fault on the part of the Council here.

Delay offering larger accommodation once child reached age of six months

56. I understand Miss B’s concerns that she had to remain in the accommodation longer than appropriate and the difficulty that living in such a small flat must have presented. However, under Council’s allocations policy, Miss B was considered suitably housed in terms of space until her child reached six months. At that point, she was eligible for and able to bid for a two-bedroom property and was also placed on the transfer list for a direct offer.
57. Unfortunately, being eligible for a direct offer did not mean that she would immediately be offered a new larger flat. This would depend on availability. In the event, however, she has now been able to move to a larger flat and return to Tower Hamlets. I see no fault here.

Agreed action

58. The Council has agreed to the Ombudsman’s recommendations that, within one month of the decision date on this complaint, it remind officers that, even in cases where interim accommodation has been provided, they should:
• aim to meet the recommended timescales for reaching decisions on applications;
• prepare a personal housing plan; and
• refer to the relief / prevention duties, as appropriate, so that applicants can understand the Council’s duties towards them.

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Final decision

59. I have closed my investigation into Miss B’s complaint because I consider that the actions recommended above are a suitable response to the fault in the way the Council dealt with Miss B’s housing situation.

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Investigator's decision on behalf of the Ombudsman