Royal Borough of Kensington & Chelsea (20 008 757)

Category : Housing > Homelessness

Decision : Upheld

Decision date : 21 Jul 2021

The Ombudsman's final decision:

Summary: Miss X complained the Council has housed her and her family in unsuitable accommodation for five years. She complains the Council has discriminated against her disabled son and has refused to provide permanent accommodation. The Council’s failure to provide Miss X with suitable accommodation since February 2019 amounts to fault. This fault has caused Miss X an injustice.

The complaint

  1. The complainant, whom I shall refer to as Miss X complains the Council has housed her and her family in unsuitable accommodation for five years. She complains the Council has discriminated against her disabled son and has refused to provide permanent accommodation.

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What I have investigated

  1. Although Miss X complains the property has been unsuitable since she moved there in 2015, I have not exercised discretion to consider the events from almost six years ago. However, I have exercised discretion to consider events since 2019.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by Miss X;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • discussed the issues with Miss X; and
    • Miss 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

Suitability of temporary accommodation

  1. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of their household. (Housing Act 1996, section 206)
  2. As the duty to provide suitable accommodation is a continuing obligation, councils must keep the issue of suitability of accommodation under review. If there is a change of circumstances the council must reconsider whether the accommodation remains suitable.

What happened here

  1. In 2015 the Council accepted a homelessness duty to Miss X and provided temporary accommodation for her and her son, Y. Miss X had a second child a few years later and has repeatedly complained that the temporary accommodation is unsuitable for her family’s needs.
  2. In February 2019 the Council deemed Miss X’s current accommodation was not suitable for Y’s needs due to the safety risks of the open plan kitchen and living room. A Health and Disability Assessment recommended any future accommodation should not be in maisonettes or have an open plan living/ kitchen area.
  3. The Council increased Miss X’s priority on the housing register and told her it would try and source alternative temporary accommodation. In June 2019, the Council identified alternative temporary accommodation for Miss X. As Miss X had been shortlisted for permanent accommodation, and did not want to repeatedly move, the temporary accommodation was offered to another family. Unfortunately, Miss X was not offered the permanent accommodation and she remained in the unsuitable temporary accommodation.
  4. In July 2019 Miss X provided additional medical information regarding Y’s condition and his need for his own bedroom. The Council reassessed and concluded there was insufficient medical evidence of the need for an additional bedroom. It considered Miss X and her youngest child could share a room to allow Y to have his own room, or alternatively Miss X could use the living room.
  5. According to the Council’s records, it did not contact Miss X again until April 2020 when the Council’s COVID-19 team made a welfare check. In May 2020 Miss X asked the Council to reassess her family’s circumstances. The Council carried out a medical assessment by telephone but did not advise Miss X of the outcome. Miss X chased the Council in July 2020 and asked the Council to provide her with suitable permanent accommodation as soon as possible.
  6. In August 2020 Miss X made a formal complaint to the Council about the way it had handled her housing situation and the delay in concluding the assessment in May 2020. The Council’s response confirmed it now agreed Y needed his own bedroom and it had updated her application to reflect the need for a three-bedroom property.
  7. The Council also confirmed it would continue to look for more suitable temporary accommodation and encouraged Miss X to bid on properties she believed would meet her needs.
  8. As Miss X did not consider this resolved her complaint she asked for it to be reviewed. The Council considered her complaint at stage two and then three of its complaints procedure. The Council considered the accommodation provided was suitable in 2015 when Miss X moved in. It acknowledged the suggestion in 2019 that Miss X use the living room as an extra bedroom was not a feasible option and should not have been suggested.
  9. The Council also acknowledged that moving would be disruptive for Y. But as there are a limited number of properties available as permanent accommodation, temporary accommodation is usually the only option available while bidding.
  10. The Council was satisfied it had considered all the evidence Miss X had provided and had considered the full extent of Y’s needs. It noted that having a medical condition or disability does not mean someone is automatically prioritised for housing. Each family is assessed on the individual circumstances. The Council did not agree Y was being discriminated against.
  11. Miss X remains unhappy with the way the Council has dealt with her housing and has asked the Ombudsman to investigate. Miss X states the Council has not properly assessed Y’s disability and the impact of the unsuitable housing on their development and wellbeing. She states the confined space is extremely hazardous and Y has made more than 20 attempts to jump out of the window from their first floor flat. Miss X would like the Council to provide suitable permanent accommodation.
  12. In response to my enquiries the Council states there are over 30 families on the housing register with either higher points and/ or an earlier priority date than Miss X. The Council states it can make a direct offer but must ensure it makes direct offers to those with the highest need first. Since 2019 the Council has made eight direct offers for three-bedroom properties.
  13. It will only make direct offers where an applicant is considered particularly vulnerable and in greater need when compare with the wider list of applicants. It does not consider Miss X’s needs warranted a direct offer.
  14. Similarly, when considering whether to award exceptional priority the Council must have regard to the wider waiting list and the number of properties likely to become available each year. It states the threshold for exceptional priority is high and will and be awarded where there are no other suitable accommodation options available. As Miss X is in temporary accommodation the Council is seeking alternative temporary accommodation. Miss X is also able to bid on permanent accommodation and seek to secure accommodation in the private sector with financial assistance from the Council. The Council does not therefore consider Miss X’s housing situation warrants the award of exceptional priority. It considers her current priority is correct.
  15. In relation to Miss X’s temporary accommodation, the Council states it was agreed in September 2020 that it would not make any further offers of temporary accommodation until it had completed a review of the medical recommendations.
  16. This was completed in November 2020 and the Council continued to look for alternative temporary accommodation in line with the medical recommendations. These recommendations are for a 3-bedroom, general needs property but only up to the 1st floor if there is no lift, and up to 4th floor if there is a lift. No maisonettes or open plan kitchen/living area. And it should be in local or neighbouring boroughs.
  17. The Council states that due to the lack of three-bedroom properties, especially with the specific recommendations, there has been a delay in securing an alternative suitable property. The Council identified alternative accommodation which became available in early May 2021. Miss X rejected this property as it was a maisonette flat, which the Council has deemed suitable for Y’s needs. Miss X was also concerned about how long she would be able to remain in the property as Y has difficulty with transition and would be unable to cope with repeated moves.
  18. Since complaining to the Ombudsman, Miss X has had a third child. She states it is now even more important that her family is rehoused as the property is too small and hazardous for her family. Miss X states there is no space to put a Moses basket or cot for her new baby.
  19. In response to the draft decision Miss X maintains that she and her family have been living in unsuitable temporary accommodation for six years. She states the accommodation has hindered Y’s physical development and his mobility has been affected by living in such a confirmed space. The accommodation has also had a detrimental effect on Miss X’s own health and wellbeing.
  20. Miss X has repeated her request that the Council provides her with permanent accommodation suitable for Y’s needs. She has reiterated that a move to further temporary accommodation or private sector renting would not be an option for Y, who would not cope with repeated transitions.

Analysis

  1. I recognise Miss X considers the accommodation has been unsuitable throughout the time she has lived there, but as set out above, my investigation has only focused on events since 2019.
  2. The Council accepted in February 2019 that Miss X is in unsuitable accommodation. It agreed to try and identify alternative suitable accommodation, but over two years later Miss X is still in accommodation which is unsuitable.
  3. It is unclear what action the Council took to identify alternative accommodation. The Council’s records show that since February 2019 it has only identified two alternative properties. The first was offered to another family as Miss X was shortlisted for permanent accommodation, and the second was not suitable as it did not meet the medical recommendations.
  4. I recognise there is a shortage of suitable properties, but the law is clear that the Council has a duty to provide accommodation to homeless applicants that is suitable. The Council has not done so. This is fault.
  5. As a result, Miss X and her children have been in unsuitable accommodation for 28 months. This is causing Miss X and her children significant injustice. The property is overcrowded, and the open plan design is a safety risk for Y, and consequently the rest of the family. The unsuitable accommodation is negatively affecting the family’s health.

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Agreed action

  1. The Council has agreed that, within one month of my final decision on this complaint, it will:
    • apologise to Miss X for the failure to provide suitable temporary accommodation and the injustice this has caused;
    • pay Miss X £7,000 (£250 a month for the 28 months she has lived in accommodation the Council deems unsuitable); and
    • pay Miss X £250 in recognition of the time and trouble she has been put to in trying to resolve this matter.
  2. The Council has also agreed to pay Miss X a further £250 for each month she remains in this unsuitable accommodation. Should Miss X refuse an offer of suitable temporary accommodation these payments would end.
  3. Further, the Council has agreed that within two months of the final decision on this complaint it will:
    • review Miss X’s priority on the housing register in light of the recent change in her circumstances, with the birth of her third child; and
    • produce an action plan to identify ways of improving its supply of temporary accommodation and making better use of existing stock. This should include a timeframe for any action.

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Final decision

  1. The Council’s failure to provide Miss X with suitable accommodation since February 2019 amounts to fault. This fault has caused Miss X an injustice.

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Investigator's decision on behalf of the Ombudsman

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