Summary: The Council failed to move Ms Y and her family from temporary accommodation which was overcrowded and hazardous. This caused significant injustice which the Council will remedy with a payment of £8,050. The Council will also review Ms Y’s rent account and any outstanding arrears in light of the Ombudsman’s findings. If the Council maintains that Ms Y is liable to repay the arrears, it should propose an affordable repayment plan.

The complaint

1. Ms Y complains the Council failed to move her family from unsuitable temporary accommodation despite knowing that it was unaffordable, overcrowded and hazardous. As a result, Ms Y says her family suffered significant injustice in the time they lived there, and she accrued excessive rent arrears due to the property being unaffordable for her family.

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What I have investigated

2. I have exercised the Ombudsman’s discretion to investigate matters dating back to January 2019. I have chosen this as a starting point for my investigation because the Council’s records show a commitment to move Ms Y from January 2019. The Council’s failure to do so caused an ongoing injustice to Ms Y and so I consider it reasonable to consider this matter despite Ms Y having been aware of it for more than 12 months.

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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. 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)
5. 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)
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)

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How I considered this complaint

7. During my investigation I considered the information provided by Ms Y and the Council about the complaint and I consulted the relevant law and guidance about homelessness and the suitability of temporary accommodation.
8. I issued my provisional findings in a draft decision statement and invited comments from the Council and Ms Y. I considered any comments received before making a final decision.

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What I found

What should happen

9. If the Council is satisfied someone is eligible, unintentionally homeless and in priority need, it will owe them the main homelessness duty. Generally, the Council carries out the duty by arranging temporary accommodation until it makes a suitable offer of social housing or private rented accommodation. (Housing Act 1996, section 193)
10. The law does not say what type of accommodation the Council should provide, but there is a legal duty for it to be “suitable” for the applicant and household members. This duty applies to both 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)
11. When offering accommodation, councils must have regard to the following:
• the space and arrangement of the accommodation.
• the state of repair and condition of the accommodation. As an absolute minimum it must be free of ‘Category 1’ hazards.
• location, including ease of access to established employment, schools and specialist health care.
• the specific needs of the applicant and any household members due to a medical condition or disability.
12. The Housing Health and Safety Rating System (HHSRS) is a risk-based evaluation tool to help authorities identify and protect against potential risks and hazards to health and safety from deficiencies in dwellings. It was introduced under the Housing Act 2004 and applies to residential properties in England.
13. The HHSRS assesses 29 categories of housing hazard. Each hazard has a weighting which will help determine whether the property is rated as having category 1 (serious) or category 2 (other). Category one hazards are those which are deemed to pose a serious and immediate risk to a person’s health and safety.
14. The Homelessness Code of Guidance says that affordability of accommodation must be considered in all cases. The Homelessness (Suitability of Accommodation) Order 1996 requires the authority to consider the affordability of the accommodation for the applicant. Councils must take account of the costs of the accommodation, the applicant’s financial resources and other reasonable living expenses.

What happened

15. In April 2016 Ms Y, who was pregnant at the time, and her two other children approached the Council as homeless after being evicted from their previous address. The Council placed the family into interim accommodation: a two-bedroom flat outside of the Council’s area.
16. After making enquiries the Council initially decided that Ms Y was intentionally homeless due to non-payment of rent at her previous address. But Ms Y appealed the decision and the Council decided that Ms Y’s financial difficulties, and her inability to pay rent, were outside of her control due to the wrongful termination of her Housing Benefit claim.
17. Ms Y resigned from her part-time job in November 2016 because she said the commute from the new address was too far.
18. The Council accepted the main housing duty in June 2017 and the interim accommodation became temporary accommodation.
19. Dissatisfied with the accommodation’s state of disrepair and its location, Ms Y asked the Council to conduct a suitability review. After some considerable delay, the Council concluded in September 2017 that the property was suitable for Ms Y and her family. The Council advised Ms Y of her right to challenge the decision.
20. Ms Y made several reports of disrepair to the Council about a lack of heating, cracks in the wall and mould and damp. Internal emails provided by the Council show it decided on 24 January 2019 that Ms Y should transfer to alternative three-bedroomed accommodation.
21. Further internal emails, dated 29 March 2019, show a discussion about Ms Y’s transfer: “Applicant called to advise she was expecting her 4th child and wanted to know what to do. Gave her email address to write to when the child is born. Noted an internal transfer request. Discussed with [officer name] client is meant to be on the transfer list due to disrepair issues in the property. [officer name] will ask [other officer name] to put the client on the transfer list”
22. In June 2019 the Council completed another affordability assessment and concluded that Ms Y’s temporary accommodation was unaffordable “… with a disposable income of -£150.23”.
23. Ms Y’s partner, whom I will call Mr X, moved into the temporary accommodation in July 2019. Ms Y also had a fourth child that year. Ms Y describes how she shared a bedroom with Mr X and the youngest child, and the other three children shared the second bedroom, which she described as a ‘box room’. The Council added Mr X and her youngest child to the property’s licence in August 2019 and a housing officer raised a query about Ms Y moving to a larger property.
24. The family remained in the property despite it being overcrowded. The Council made assurances it would offer alternative accommodation.
25. The Council’s Housing Benefit team wrote to Ms Y in October 2019 to advise that she had received an overpayment of £1779.70 Housing Benefit due to a change in her household’s income. The Council invited Ms Y to provide evidence within one month if she disagreed with the Council’s calculations. Otherwise, the Council said it would deduct £16.10 each week from any future payments.
26. The letter also provided Ms Y with the right to appeal the Council’s decision.
27. In November 2019 the Council received contact from the Environmental Health (EH) team based in the neighbouring council where Ms Y’s property was located. After inspecting the property, EH concluded that it contained several category one hazards due to excessive cold from a lack of functioning heating, excessive mould and damp and overcrowding. EH served an enforcement notice on the property’s management agents.
28. The agents installed a new heating system at the property on 3 February 2020.
29. Ms Y complained to the Council in August 2020 because she was dissatisfied with the lack of action taken to locate and offer suitable accommodation for her family. In the meantime, the family were accruing significant rent arrears. In response to the complaint, the Council concluded:
• The family made no attempt to contribute to the weekly rent as per their written agreement. As a result, arrears accrued from October 2019.
• Recent information shows that Housing Benefit payments of £73.44 a week are credited to the account, which leaves a weekly rent shortfall of £314.17.
• The Council will make an offer, on a non-secure basis, of a three-bedroom house in the private sector if the family agree to make regular payments to reduce their debt.
• The Council accepts fault for leaving the family in unsuitable accommodation since November 2019, when it was first considered to be unaffordable. As a result, the Council apologises and offers £1200 and an additional £50 for the time taken by the Council to respond to the matter.
• The Council advised Ms Y that any payments would be offset against the debt owed to the Council and that it is awaiting an update on Ms Y’s rent situation.
30. Records between September 2020 and January 2021 show the Council made efforts to secure alternative three-bedroomed accommodation for Ms Y. However, in December 2020 Ms Y and Mr X found alternative housing in the private rented sector and cancelled their licence for the temporary accommodation on 30 December 2020. The Council subsequently discharged its duties as Ms Y was no longer considered homeless.

Was there fault causing injustice in the Council’s actions?

31. The Council has already accepted there was fault in its actions causing injustice to Ms Y, which it has proposed to remedy with a financial payment totalling £1250. Ms Y is dissatisfied with this offer and has approached the Ombudsman for an impartial review of her case. As the fault and injustice in the main part of Ms Y’s complaint has already been established, it is my role to consider whether there is any additional fault and if the remedy offered by the Council is suitable and in line with the Ombudsman’s own ‘Guidance on Remedies’.
32. Since approaching the Ombudsman Ms Y has moved house. Therefore, there is no scope for us to ask the Council to expedite a move out of unsuitable accommodation. Therefore, my focus will be whether Ms Y has received a proportionate remedy for the remaining injustice caused by fault.
33. Records show that from January 2019 the Council agreed it was necessary for Ms Y to transfer to alternative accommodation due to the extent of disrepair in the temporary accommodation. However, the records do not show any action taken by the Council to secure another property for Ms Y until September 2020. In fact, the March 2019 records indicate there was an oversight by the Council because it failed to place Ms Y on its transfer list in January 2019. This is fault.
34. We cannot establish how quickly Ms Y may have moved, had the Council placed her on the transfer list when it committed to doing so in January 2019. However, despite this, the Council has a legal duty to provide suitable accommodation and the Ombudsman considers it is service failure for the Council to leave a family in admittedly unsuitable accommodation.
35. The Council has agreed to make a payment to Ms Y and her family in recognition of the significant injustice they experienced from this fault. The Ombudsman’s ‘Guidance on Remedies’ suggests a payment of up to £350 for each month during which a resident remains in unsuitable accommodation due to Council fault. The disrepair in Ms Y’s home was assessed as a category one hazard. Due to the serious nature of such hazards, and the age of Ms Y’s four young children, I consider the Council should pay £350 for each of the 23 months I have investigated (January 2019 – December 2020). This payment is further justified due to the property being overcrowded from August 2019.
36. Turning now to the issue of rent arrears. I have considered the extent of the Council’s legal duty to ensure that interim and temporary accommodation is affordable. I am mindful the property was deemed to be affordable when first offered to Ms Y in 2016; this was primarily because Ms Y was in receipt of a part-time income and benefits. The rent account shows the Housing Benefit and Discretionary Housing Payments Ms Y received at the time covered most of her rent payments.
37. Ms Y’s circumstances changed soon after because she resigned from her employment following a period of maternity leave. I appreciate Ms Y feels the Council had a part to play in her decision to resign because the commute to work was too far. However, the suitability review completed in September 2017 took this into account and found the property to be in a suitable location. This is beyond the time period I have investigated, and Ms Y had the right to formally challenge this decision, so I have not considered this point further.
38. The Council’s records show that in June 2019 it considered the property was unaffordable because at the time Ms Y had disposable income of -£150.23. Ms Y’s entitlement to Housing Benefit then changed and she was entitled to the maximum uncapped award from 25 July 2019. However, the family’s circumstances changed again from August 2019 when Ms Y’s partner moved into the property. Mr X’s payslips indicate he is in full-time employment with a variable net income usually amounting to at least £300 per week.
39. The Council then received notification of a significant increase in the family’s income which resulted in a sizeable reduction in their Housing Benefit entitlement. This in turn created an overpayment. The Council then reassessed Ms Y’s claim in October and this resulted in an increased award of £61.41 per week. The Council says Ms Y did not dispute any of the Housing Benefit decisions and that Ms Y and her partner did not contribute anything to their rent payments, despite Mr X receiving a regular income.
40. Based on the information I have it is not possible to accurately calculate the affordability of the property for the period I am investigating. It is clear the Council, at times, considered it was unaffordable as per the June 2019 records. However, the family’s circumstances changed from August 2019 when the household income increased significantly. It is not possible for me to establish whether Ms Y was, at times, in unaffordable accommodation for a period in 2019. Therefore, to resolve this uncertainty the Council should undertake a full review of Ms Y’s rent account taking into account the issues raised in this statement. When doing so, it should consider all relevant factors such as the change in Ms Y’s entitlement, Mr X’s earnings, the overall household expenditure, and any disposable income.

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Agreed action

41. Within four weeks of my final decision, the Council has agreed to:
• pay £8,050 to Ms Y and her family in recognition of the injustice caused during the 23 months her family remained in unsuitable accommodation. In line with standard practice, the Council is entitled to offset this payment from any outstanding debt; and
• pay an additional £200 to Ms Y for the time, trouble and frustration caused by the Council’s delay in handling her complaint.
42. Within eight weeks of my final decision, the Council has also agreed to:
• undertake a full review of Ms Y’s rent account, taking into account the issues raised in this statement. When completing the review, the Council will consider all relevant factors such as the change in Ms Y’s benefit entitlement, Mr X’s earnings, the overall household expenditure and any disposable income. The Council will communicate its decision, in writing, to Ms Y and set out its calculations and the basis for its decision; and
• after completing the above, if the Council considers that Ms Y remains liable for some or all the arrears, it should offer to create a manageable and affordable payment plan for Ms Y.

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Final decision

43. We have completed our investigation with a finding of fault causing injustice for the reasons explained in this statement. The actions agreed above provide an appropriate remedy for the injustice caused by fault.

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Parts of the complaint that I did not investigate

44. I have not investigated matters which Ms Y was aware of between 2016 and 2019. These include early disrepair issues and the first suitability review completed by the Council in 2017. This is because, in my view, Ms Y could and should have complained to the Ombudsman about these matters sooner and there is no good reason to exercise our discretion further.
45. Furthermore, Ms Y had the right to formally challenge the outcome of the 2017 review in the courts if she disagreed with it. The Ombudsman would not normally investigate matters which carry their own right of appeal.

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Investigator's decision on behalf of the Ombudsman