Summary: The Council’s failure to provide Ms X a reviewable decision about the suitability of her temporary accommodation is fault. There is also fault in the Council’s failure to keep accurate records. There is no fault in the Council’s decision Ms X didn’t need a level access shower. There is no fault in how the Council decided not to award Ms X lease end points on her application to the housing register. The Council has agreed to apologise, make a financial payment to Ms X, and take action to improve its services.

The complaint

1. Ms X complains that the Council have failed to provide her with suitable temporary accommodation despite accepting in May 2020 that her current accommodation is unsuitable.
2. Ms X also complains about how the Council handled her request for an assessment of what kind of property she needs and its failure to award lease end points to her application to the housing register.
3. As a result, Ms X and her four children continue to occupy a flat which is too small and does not meet Ms X’s needs.

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The Ombudsman’s role and powers

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. We cannot question whether a council’s 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)
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. I spoke to Ms X about the complaint.
8. I made written enquiries of the Council and considered its response along with relevant law and guidance.
9. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
10. 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

Temporary accommodation

11. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
12. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need the council has a duty to secure that accommodation is available for their occupation. This is called the main duty. (Housing Act 1996, section 193)
13. 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)
14. The accommodation provided under the main homelessness duty is called temporary accommodation. Councils meet this duty in different ways, including:
• the council’s own housing stock
• dedicated hostels or purpose-built accommodation
• properties procured from housing associations or other Registered Providers of social housing
• properties leased from private landlords

Housing allocations

15. Every local housing authority must publish an allocations scheme that sets out how it prioritises housing applicants, and its procedures for allocating properties.  All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
16. An allocations scheme must give reasonable preference to applicants in the following categories:
• homeless people;
• people in insanitary, overcrowded or unsatisfactory housing;
• people who need to move on medical or welfare grounds;
• people who need to move to avoid hardship to themselves or others;
  (Housing Act 1996, section 166A(3))
17. Applicants have a right to request a review of a council’s decision about the priority band they have been awarded.

The Council’s scheme

18. The Council operates a choice-based lettings scheme which enables housing applicants to bid for available properties which it advertises.
19. Priority Group: the Council places applicants who qualify to join the housing register into a priority group based on their housing need. So far as is relevant to this complaint, these Priority Groups include homeless applicants.
20. Points: the Council awards each applicant a number of points to decide their priority need for rehousing. It awards points based on the Priority Group, with additional points for employment and local connection to the borough.
21. Mobility Categories: the Council uses Mobility Categories to indicate the type of housing an applicant needs. So far as is relevant to this complaint, this includes:
• Category 3: applicants who need a property on the ground floor or with a lift that has level access.
• Category 4: those with no mobility needs
22. Lease end points: the Council has discretion to award extra points if the lease on an applicant’s temporary accommodation will end within 12 months. The policy says applicants will not be awarded these points if their position on the list “means they are unlikely to be successful” in bidding for a property within those 12 months.

What happened

Overcrowding

23. Ms X is homeless. The Council provided 2-bedroom temporary accommodation in 2016. At that time, this was the correct size for her household. Since then, however, Ms X had more children, and her children reached ages where it is not suitable to share a bedroom.
24. In May 2020, Ms X contacted the Council about the overcrowding. The Council accepted that the current accommodation was too small and put Ms X on its transfer list for a three- or four-bedroom property.

Adaptations

25. Ms X has a health condition which affects her mobility. The Council provided temporary accommodation which is mobility category three. This means it is a level access property.
26. In October, Ms X asked the Council to consider her medical needs and whether this meant she needed a level access shower. The Council accepts that it delayed in processing this assessment.
27. The Council apologised for this delay in response to Ms X’s complaint. It offered to pay her £300 in recognition of this. However, since the conclusion was that Ms X did not need a level access shower, the Council does not consider the delay caused Ms X significant injustice.
28. The Council says its OT recommended some equipment to help Ms X with bathing. The Council has provided these aids. Ms X says she is still unable to safely use the bathroom. She says she needs a level access shower.

Lease end points

29. Ms X says her application to the housing register should include the additional lease end points. She had to leave her previous temporary accommodation in 2015 because it was being demolished.
30. The Council decided Ms X did not qualify for these additional points. This is because at the time it decided not to award them, Ms X was in position 309 on the waiting list. As a result, the Council decided Ms X was not likely to be successful in bidding in the relevant time.
31. Ms X says this decision was wrong because she was offered a property just a few months later. Although this property was unsuitable, Ms X says this shows that she was likely to be successful.

My findings

Overcrowding

32. Ms X’s current temporary accommodation was suitable when she first moved into it in 2016. Since then, however, her circumstances changed. The Council has a duty to keep the suitability of temporary accommodation under review.
33. The Council put Ms X on its transfer list in May 2020. In June, Ms X asked the Council for a suitability review under section 202 of the Housing Act 1996. The Council did not formally review its decision about suitability, which would have given Ms X a statutory right to appeal an adverse decision in court. The Council says this is because the outcome of a suitability review would have been to put Ms X on the transfer list, which it had already done.
34. In response to my enquiries, the Council said that, although overcrowded, the accommodation is not statutorily overcrowded and therefore is not unsuitable. However, the Council’s assertion that the accommodation is suitable is not reflected in its contemporaneous records. A file note from July 2020 says “we are satisfied it is not suitable”. The Council says this note was made in error. It says the Officer failed to check the reason it agreed to move Ms X, and instead assumed it was because the accommodation was unsuitable.
35. The Ombudsman makes decisions on the balance of probabilities. This means, we decide what is more likely than not to have happened. In this case, there is conflicting evidence. The Council’s file note and cancellation of the suitability review weigh in favour of a finding that the Council decided Ms X’s temporary accommodation was unsuitable. The fact that Ms X is not statutorily overcrowded, and the Council’s statement that the file note was a mistake suggest otherwise.
36. On balance, I think it is more likely that the Council did not decide Ms X’s temporary accommodation was unsuitable. This is because the Council’s transfer scheme includes “[h]ouseholds who are in accommodation that is suitable and meets standards, but we have agreed should be moved.” Given that Ms X is not statutorily overcrowded, and the accommodation otherwise meets her needs, it is likely this is the basis on which the Council added her to the transfer list.
37. However, the conflict between the Council’s response to my enquiries and the contemporaneous evidence would not have arisen had the Council’s records contained sufficient detail of a decision-making process in this case. Failure to keep proper records is fault. This has caused Ms X avoidable uncertainty, which is an injustice.
38. If, as I have found, the Council decided the property was suitable, then it should have told Ms X as much in writing and explained her right to ask for a review of this decision under s202 of the Housing Act 1996. Failure to do so was fault. This denied Ms X her statutory right of review and appeal to court. This is a significant injustice to Ms X.

Adaptations

39. Ms X told the Council she could not safely use the bath in her accommodation. The Council accepts that it delayed referring Ms X to its Occupational Therapist for assessment. It has offered Ms X £300 as a remedy for the injustice caused by this delay. I consider this to be a suitable remedy for the delay.
40. Ms X says she needs a level access shower. The Council say its OT decided she did not. Ms X’s current accommodation has no shower at all.
41. In the assessment, the OT says “[Ms X] does not have an over bath shower and has accepted one will not be provided as she is in temporary accommodation”. The OT does not say Ms X does not need a shower. Rather, that the Council’s policy is not to provide such adaptations in temporary accommodation.
42. In the OT’s report about Ms X’s housing needs, however, there is no reference to a need for a shower. Since the housing needs report from the OT does not specify a need for a level access shower, it is not fault for the Council not to provide one.

Lease end points

43. The Council’s allocations policy says it has discretion to award additional lease end points. It says it will not award these points if the applicant is unlikely to be successful within 12 months.
44. At the time the Council made this decision, Ms X was in position 309. There is no evidence the Council failed to take any relevant information into account before deciding this meant she was unlikely to be successful in the relevant period. There is therefore no fault in how it reached this decision. The Ombudsman cannot question the merits of a decision made without fault.
45. Although Ms X was offered a property a few months later, the Council has explained that this was because the seven households ahead of her on the shortlist refused it. This was an unusual situation and does not mean that the Council’s decision she was unlikely to be successful wasn’t properly made.

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Agreed action

46. To remedy the injustice to Ms X from the faults I have identified, the Council has agreed to:
• Apologise to Ms X.
• Pay Ms X £500 in recognition of her avoidable uncertainty and failure to give her statutory rights of review.
47. The Council should take this action within four weeks of my final decision.
48. The Council should also take the following action to improve its services:
• Remind relevant staff that records should include sufficient detail to evidence the decision-making process. Provide guidance or training as needed.
• Remind relevant staff that all decisions about suitability should be communicated in writing and set out the statutory right to a review.
49. The Council should take this action within eight weeks of my final decision.

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Final decision

50. I have completed my investigation. There is some fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman