Summary: Ms X complains about the Council’s failure to resolves disrepair issues with her temporary accommodation since she and her children moved in. The Council was at fault for failing to ensure the Managing Agent of the property resolved defects promptly. Ms X and her children remained in unsuitable accommodation for 10 months longer than they should have, which was fault causing significant injustice. The Council has agreed to apologise, make a payment to Ms X and reviews its procedures.

The complaint

1. The complainant, who I have called Ms X, complains the Council failed to resolve disrepair issues with her temporary accommodation since she moved into the property in February 2018. She has repeatedly contacted the Council and the Managing Agent since she moved in to try and get the defects repaired without success. The property has now become uninhabitable and extremely unsafe for her and her two young children. Ms X and her children do not have facilities to bathe or cook in the property and she has had to spend significantly more than usual on take away food and to access bathing facilities at her mother’s home. The defects in the property have already caused injury and continuing health issues for her three-year old child. Ms X’s own existing mental health issues have been exacerbated by the poor state of the temporary accommodation. Ms X is desperate for the Council to move her and her children to safe accommodation in the Council’s area so she can continue to access her support networks and medical treatment for her younger child, who was born with a disability.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
4. 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

5. I have spoken to Ms X and considered the information she has provided in support of her complaint.
6. I have considered the information the Council has provided in response to our enquiries. This includes information the Council has obtained from the Managing Agent.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Duties to the homeless and suitability of temporary accommodation

8. If a council is satisfied someone is eligible, homeless, in priority need and unintentionally homeless it will owe them the main homelessness duty. Generally, the Council fulfils this duty by arranging temporary accommodation until it makes a suitable offer of social housing or private rented accommodation. (Housing Act 1996, section 193)
9. 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)
10. Accommodation is not suitable if it falls below certain minimum standards. The Council must have regard to the standards set in the Housing Act 2004. The Homelessness Code of Guidance recommends that any accommodation should, as a minimum, be free of category 1 hazards under the Housing Health and Safety Rating System (HHSRS). Councils should explicitly consider a buildings condition and risks to the health and safety of occupiers.
11. The Court of Appeal held it is for the council to determine what is suitable; it can only be challenged where it is clearly inadequate; ‘Suitability [is] to a Wednesbury minimum level of suitability in the nature, location and standard of condition of the accommodation, having regard to the circumstances of the applicant and his or her resident family, including the duration of the likely occupation of it’. (C v Mid-Bedfordshire District Council [2004] EWCA Civ 925 [2005] HLR 1, CA)
12. A judgment issued by the Supreme Court confirmed councils have a legal duty under section 11 of the Children Act 2004 to consider the need to safeguard and promote the welfare of a child when they decide whether accommodation is suitable. (N v City of Westminster [2015] UKSC 22)

Review rights

13. Homeless applicants may request a review within 21 days of being notified of the decision on their homelessness application. There is also 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)
14. Councils must complete the review within eight weeks of receiving the review request. This period can be extended but only if the applicant agrees in writing. 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. Councils must notify the applicant in writing of the review decision. (Housing Act 1996, sections 202 and 204)

What happened

15. Ms X and her two young children are homeless. The Council placed them in temporary accommodation at the end of February 2018. The property is maintained by Managing Agents. Since moving in, Ms X has reported issues to the Managing Agent and the Council about defects at the property, which the Managing Agent largely sought to resolve.
16. In October 2019, Ms X told the Managing Agent and the Council there was a significant leak in the property, which was causing damp and mould. Ms X’s MP also wrote to the Council and provided photographs showing the damage caused by the water leaks. On 7 October 2019, Ms X made a stage one complaint to the Council as the property was unsafe and living conditions were having an impact on her and her children’s health.
17. The Managing Agent sent a surveyor to assess the property who found leaks in the hallway which only occurred when it rained and seemed to be caused by slipped roof tiles or a faulty rain gully.
18. On 23 October 2019, the Managing Agent advised the Council the property needed significant repairs to address the water leaks and other issues. The Managing Agent said Ms X and her children would need to move out of the property while contractors completed the repair work. On the same day, the Council agreed and notified Ms X that she and her children should be moved. A contractor attended the property to erect scaffolding on 6 November 2019.
19. The Council responded to Ms X’s complaint on 7 November 2019 and explained that it was awaiting a copy of the surveyor’s report before deciding whether the property was safe for Ms X to remain in while repair work was completed.
20. In early December 2019, Ms X reported the fire alarms in the property were going off in the middle of the night. The Managing Agent sent an engineer ten days later to replace three fire alarms in the property. The engineer was unable to replace the alarm in the hallway because water was still leaking onto electrics in that part of the property.
21. On 8 January 2020, Ms X requested a suitability review of the property. She had reported the water leak had yet to be resolved. On 24 January 2020, Ms X’s MP made a referral to the Council’s Children Services Team about the family’s housing conditions and the impact this was having on Ms X’s two children, the youngest of which was born with a disability. Repairs to the roof of the property were completed at the end of January 2020.
22. In early March 2020, Ms X sent the Council’s Housing Team information from its Children Services Team which supported her request for permanent housing in a three-bed property rather than the two-bed properties she was entitled to bid on.
23. On 20 April 2020, the Council asked Ms X’s solicitor for an extension of time to 7 May 2020 for the suitability review of the property. Ms X’s solicitor contacted the Council again on 13 May 2020 and it asked for a further extension until 3 June 2020. Throughout this period, Ms X continues to report that the water leaks have not been fixed.
24. On 9 June 2020, a 0.5m2 portion of kitchen ceiling collapsed in Ms X’s accommodation, onto the head of her three-year old child, who I have called Child Y. Child Y suffered minor injury but was significantly shaken by the incident. Ms X reported the incident to the Council (Housing and Children Services Teams), Managing Agent, her MP and solicitor on the same day.
25. The Managing Agent’s surveyor attended to inspect the ceiling on 11 June 2020. The surveyor concluded there was no risk of further ceiling collapse but advised Ms X to keep her two children out of the kitchen and away from doors in the property. The surveyor believed the collapse was caused by slamming the kitchen door. The following day, an electrician attended the property to replace the strip light in the kitchen with a pendant light fitting.
26. On 15 June 2020, Ms X told the Council she could not live in the property. She said she and her children have been confined to her bedroom, which was significantly damp, as this was the only room where there was no risk of ceiling collapse. On 17 June 2020, Ms X reported to the Council that rainwater was leaking through the lights in the kitchen and living room. Ms X sent the Council and the Managing Agent video clips of the water leaking through cracks in the ceilings. Ms X told the Council the Managing Agent’s contractor said she must leave by the end of the day.
27. On 18 June 2020, the Council offered Ms X emergency self-contained accommodation in a hotel. Ms X declined the offer because the hotel was too far away from her support network and the hospital where her younger child was due to attend for surgery on 4 July 2020. Ms X said she would move in with her mother for the weekend from 19 June 2020.
28. On 22 June 2020, an Officer from the Council’s Environmental Health Team inspected the property. On the same date, the Managing Agent’s contractor reported it could not access the property to complete repair work. The Environmental Health Officer inspected the entire property and took photographs of the damage caused by the water leaks in the property. The Officer concluded the property was uninhabitable due to the smell in the bathroom and the raw sewage from the bathroom taps, which meant there were no safe bathing facilities in the property. The Officer noted there were no working lights or power in the kitchen meaning this room was also unusable.
29. Ms X told the Council she had to leave her mother’s home because there was no room for her and her children there. On 25 June 2020, Ms X and her children moved into the emergency hotel accommodation the Council offered on 18 June. Ms X and her children stayed in the hotel for one week until conditions there became unbearable. Ms X reported she and her children had been bitten by bugs throughout their time at the hotel. Ms X and her children moved back to the temporary accommodation because all their belongings were still stored there, and they had nowhere else to go. On 23 July 2020, Ms X reported to the Council that there was still no electricity in the kitchen and sewage in the bathroom.
30. In the last week of July 2020, the Council offered Ms X three alternative properties, which it subsequently withdrew as none of the properties met Ms X and her children’s needs. Ms X escalated her complaint to us on 27 July 2020 as she remained dissatisfied with the Council’s handling.
31. The Council offered two further properties to Ms X on 19 August 2020. One offer was then withdrawn. Ms X accepted another temporary accommodation property, which she and her children moved into on 24 August 2020.

Analysis

32. There was delay in the Council’s response to Ms X’s stage one complaint, which should be sent in 10 working days according to the Council’s policy. It took the Council 24 working days to send its complaint response to Ms X and it did not keep her updated or explain the reasons for the delay during this time. This was fault and caused Ms X avoidable frustration.
33. Ms X’s stage one complaint gave a clear indication of how her temporary accommodation was unsuitable. The Council should have accepted this as a suitability review request and progressed it in line with statutory guidance. Not to do so was fault and put Ms X to further time and trouble by having to request a review in early January 2020.
34. The Council’s completion of the suitability review was considerably delayed. While it wrote to Ms X or her solicitor to indicate each time it extended the deadline, these letters did not seek Ms X or her representative’s agreement in line with the legislation. In any event, it took the Council 24 weeks to complete a suitability review which should have taken eight weeks.
35. This delay in completing the suitability review was fault which caused significant injustice to Ms X and her children, particularly as the eventual outcome of the review was that the property was unsuitable. Ms X and her children had to remain in unsuitable living conditions for much longer than necessary. This had an impact on their health as Ms X’s doctor said their breathing difficulties were likely caused by the mould and damp in the property. Ms X says Child Y suffers from nightmares since the ceiling collapsed on their head and was referred to mental health services following the incident. Ms X’s existing mental health conditions were exacerbated by her living conditions and her distress at feeling unable to keep her children safe. All this could have been avoided if the Council had acted sooner to review the state of Ms X’s temporary accommodation.
36. The Council and Managing Agent’s records show both agreed Ms X and her children needed to move out of the property so repairs could be completed at the end of October 2019. Failure to act promptly to move Ms X and her children into alternative temporary accommodation for a further 10 months was fault. Had she and her children moved soon after this, they might have avoided the injury and distress caused by the kitchen ceiling collapse.
37. When the Council offered Ms X alternative emergency accommodation, it does not appear to have taken account of Ms X’s and her family’s circumstances. Ms X’s youngest child needed surgery for their disability. It was critical for Ms X and her children to live close to their support network and the medical professionals treating Ms X’s youngest child. The child also needed safe and clean living conditions to minimise the risk of infection following surgery. The Council was at fault for not taking these factors into account.
38. The hotel Ms X and her children moved into at the end of June 2020 was unsuitable. Within a week of staying there, the family suffered considerable discomfort which seem to have been caused by bugs biting them. Ms X has shared photographs of the rashes and bites on her and her children with us and the Council at the time. While moving back to the temporary accommodation was unlikely to be better for Ms X and her children, I can understand why she did this. Ms X and her children’s belongings were still at the property and it is clear she felt she had no choice but to move back in.
39. The Managing Agents told the Council their contractor could not gain access to the property on 22 June 2020, despite Ms X giving access to the Council’s Environmental Health Officer on the same date. On balance, I am persuaded Ms X’s account that she did not prevent access to the property is most likely based on the evidence I have seen.
40. The Environmental Health Officer’s inspection recorded there was no lighting or power in the kitchen and that the bathroom was unusable because of sewage pouring into the bath. The Officer stated the property was uninhabitable purely because of the smell from the bathroom. It is unclear if the Environmental Health inspection report was shared with the Council’s Housing Team. A lack of joined up approach between Council departments in any event is evidence of fault, which unnecessarily prolonged the length of time Ms X and her children had to endure such poor living conditions.
41. There was no evidence from the Council or the Managing Agent to show it addressed the issues of no cooking or bathing facilities in the property by the time Ms X and her children moved out on 24 August 2020. This means, barring the one week when they moved into the hotel, the family had no access to cooking and bathing facilities in their temporary accommodation for eight weeks.
42. The Council’s failure to address these issues was fault causing significant injustice. Ms X had to make daily trips to her mother’s home to bathe herself and her young children. She also had to rely on take away food for all the family’s meals. Ms X says this was the first time she had been unable to financially support her family with their benefit payments and had to rely on food banks and loans from relatives to survive.

Agreed action

43. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although we found fault with the actions/service of the Managing Agent, we have made recommendations to the Council.
44. Within one month of our final decision, the Council agrees to:

• make a written apology to Ms X for faults identified in the analysis above;
• make a payment of £4,500 to Ms X for:

• eight weeks of no bathing and cooking facilities at the property;
• 10 months remaining in unsuitable accommodation;
• the physical and mental harm caused to Child Y by the ceiling collapse;
• exacerbating Ms X’s existing mental health conditions
• distress caused to Ms X by the uncertainty of the situation and worry over living conditions and keeping her children safe; and,
• time and trouble of making repeated complaints and contact with the Council and the Managing Agent, raising concerns via her MP, solicitor and Children Services.

45. Within three months of our final decision, the Council agrees to:

• review its service level agreements with managing agents and property owners to ensure this includes specific information about the standards expected of self-contained temporary accommodation and the timescales for repair works to be completed;
• adopt a procedure of regular reports from its managing agent on how the agent is handling reports of disrepair, so the Council can identify, and if necessary address, any persistent or long-lasting disrepair issues; and,
• review the existing online guidance it provides individuals owed a main homelessness duty giving details of who they should contact if initial reports of issues with any accommodation are not resolved by the managing agent or property owner.

46. The Council should provide us with evidence it has completed the above actions.

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Final decision

47. I have completed my investigation and uphold Ms X’s complaint. The Council’s actions have caused Ms X and her children significant injustice. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman