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Westminster City Council (21 000 049)

Category : Housing > Homelessness

Decision : Upheld

Decision date : 11 Mar 2022

The Ombudsman's final decision:

Summary:. The Council’s failure to tell Miss X about her statutory right to review decisions about the suitability of temporary accommodation is fault. The Council also failed properly to assess the risk to Miss X from COVID-19 of remaining in the property while it underwent repairs. The Council has agreed to apologise, pay £500, and take action to improve its services.

The complaint

  1. Miss X complains that the Council has refused to move her to alternative temporary accommodation. She says her current accommodation is unsuitable because of overcrowding and extensive disrepair.
  2. Miss X says this is negatively affecting the mental and physical health of her and her children.

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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 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)
  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. I spoke to Miss X about the complaint.
  2. I made written enquiries of the Council and considered its response along with relevant law and guidance, including the Housing Act 1996, as amended, and the Homelessness Code of Guidance.
  3. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
  4. 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

Temporary accommodation

  1. Temporary accommodation is accommodation provided to homeless applicants as part of a council’s main homelessness duty.
  2. 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 Homelessness Code of Guidance 17.2)
  3. Certain decisions councils make about homelessness carry a statutory right of review. The review decision then carries a right of appeal to court on a point of law. Homeless applicants have a right to review the suitability of temporary accommodation provided under the main homelessness duty. (Housing Act 1996, s202)
  4. Homeless applicants must request a review within 21 days of the decision. However, applicants can ask a council to reconsider its decision about the suitability of temporary accommodation at any time. This might be necessary, for example, if there is a change in the applicant’s circumstances. This new decision is open to review under s202, with a new 21-day timescale. R(B) v Redbridge LBC [2019] EWHC 250 (Admin)

Overcrowding

  1. The law says a household is overcrowded if children of different genders who are over 10 years old must sleep in the same room. All living and bedrooms are included in considering if a household is overcrowded.

What happened

  1. Miss X is homeless and the Council owes her the main housing duty. In 2015, Miss X moved into her current temporary accommodation. The property has two bedrooms. At that time, she had two children both of whom were under 10 years old.
  2. In 2020, Miss X had a third child. Her oldest child is now over 10.
  3. In October 2020, Miss X asked the Council to transfer her to different temporary accommodation. She said that it was no longer suitable for her children to share a bedroom.
  4. She also told the Council that her temporary accommodation was in a poor state of repair. In particular, she said there was extensive damp and mould and a problem with mice.
  5. The Council refused Miss X’s request for a transfer. It said the temporary accommodation was suitable. It wrote to her with its reasons. It said that although Miss X’s two older children should have their own bedrooms, it did not consider Miss X statutorily overcrowded. This is because she can use the living room as a bedroom.
  6. The Council said that it did not consider the disrepair made the property unsuitable because Miss X had refused to allow contractors access to carry out repairs.
  7. Miss X says she did not want to allow contractors into the property while she and her children were there due to the COVID-19 pandemic. She says the Council should have provided alternative accommodation while the contractors did the necessary work.
  8. Since complaining to the Ombudsman, Miss X experienced a further significant ingress of water at the property. The Council has now provided Miss X with alternative emergency accommodation.

My findings

Disrepair

  1. The property is let and managed by a housing association. Miss X first reported issues of damp and rodents in the property to the housing association in July 2020.
  2. She also reported frequent issues, including ingress of water and resulting damp, because of a leak from the flat above hers.
  3. The Council says, and its records show, that the housing association tried to arrange access to the property at this time. However, Miss X was in hospital.
  4. In response to my enquiries, the Council says the property is not damp. It says the issue is “condensation from poor ventilation”.
  5. The evidence does not support this assessment, however. In an email to the landlord in July 2020, the housing association said:
    • an uncovered drain in the garden was the cause of the mice infestation
    • there was damp in the kitchen due to a leak from the flat above
    • there was damp in one of the bedrooms on the walls by the window.
  6. About this damp, it said it was “obviously connected to outside there might be water ingress”. The photographs Miss X provided, which I have seen, also suggest an issue beyond “condensation from poor ventilation”.
  7. The housing association was in contact with Miss X intermittently over the next several months. In October, it sent contractors to the property, but Miss X refused to allow access. She said the works would take more than a day and she was not happy about the COVID-19 risk this would pose.
  8. In its letter refusing her transfer request, the Council says this refusal was part of its consideration of the suitability of the property. Without an inspection of the condition of the property, it could not confirm the extent of the disrepair.
  9. However, Miss X had recently given birth, and had frequent stays in hospital. Furthermore, one of her children has asthma. Miss X’s concerns about her family being at risk were therefore not unfounded. Due to the ongoing restrictions, and the time of year, as well as the ages of her children, it was not practicable for Miss X to be away from the property all day while works were carried out, as she might have done in other circumstances. She said the Council should have offered them somewhere else to stay temporarily while the contractors completed works.
  10. There is no evidence the Council completed a risk assessment of Miss X’s specific circumstances. It reassured her that all visitors would wear protective equipment and maintain distancing but did not ask her for details of her specific circumstances or vulnerabilities. In the circumstances, where Miss X had reason to be concerned, I consider the Council’s failure to carry out a more specific risk assessment to be fault.
  11. However, the terms of occupation signed by Miss X says she must allow access to the property for inspection and repair “at all reasonable times by prior appointment.” There was also, therefore, an expectation that Miss X would cooperate with the housing association’s efforts to attend the property. To assess the suitability of the property, the Council needed an accurate assessment of the problems. Although Miss X provided photographs and videos, it would be reasonable to expect her to allow an inspection of the necessary works. If the works required were confirmed to be extensive, the Council might have identified the need for a temporary move. Therefore, Miss X has also contributed to the delay in resolving the disrepair.
  12. The Council could have explored alternatives with Miss X, including alternative accommodation or assessing the suitability of the property remotely. Instead, however, the Council appears to have left the matter to the housing association to deal with. In its communication with Miss X, the Council says repair issues are the responsibility of the housing association. This is contrary to Miss X’s terms of occupation, which says she must report repairs to the Council. This confusion added to Miss X’s sense that the Council and the housing association were “passing the buck” to each other.
  13. Day-to-day repair issues are the responsibility of the housing association under its contract with the Council. However, the Council remains responsible for ensuring that homeless households live in safe and suitable accommodation. The rodent infestation and the serious leaks Miss X reported should have prompted the Council to consider whether it needed to act to ensure the property remained safe and suitable.
  14. There is no evidence that the Council told its Environmental Health or Housing Health and Safety teams about the rodents or the leak, although both could be a hazard or a statutory nuisance. This is fault. The Housing Act 2004 places a responsibility on councils to inspect where there might be a category one or two hazard. The only contact Miss X had from Environmental Health was an email in January 2021, after she contacted the service, saying that its officers were not currently conducting visits because of the pandemic.
  15. Miss X’s frustration with the Council’s assertion that she should have allowed contractors into the property, while not allowing its own officers to visit, is therefore understandable.

Suitability

  1. The Council found that Miss X’s accommodation is suitable. This is a decision about suitability which carries a right of review and then appeal to court on a point of law. The Council’s letter to Miss X setting out its decision does not tell her about this right of review. This is fault.
  2. The Council says the property is not statutorily overcrowded because Miss X can sleep in the living room. However, Miss X says the extent of the disrepair, in particular the damp, means one of the bedrooms is unusable. Miss X should have been able to raise this issue on seeking a review. The Council’s failure to tell her about her review rights denied her this opportunity. This is an injustice to Miss X.
  3. The Council found that the disrepair at the property did not make it unsuitable because Miss X had not allowed access to made repairs. In seeking a review, Miss X would have been able to set out her concerns about COVID-19 and the reasons she did not want contractors in the property while she and her family were there. The Council’s failure to tell her about her review rights denied her this opportunity. This is an injustice to Miss X

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Agreed action

  1. To remedy the injustice to Miss X from the faults I have identified, the Council has agreed to:
    • Apologise to Miss X
    • Pay Miss X £500 in recognition of the Council’s failure to tell her about her review rights and her time and trouble
  2. The Council should take this action within four weeks of my final decision.
  3. The Council should also take the following action to improve its services:
    • Ensure the occupation agreements for temporary accommodation make it clear to whom repair issues should be reported in the first instance
    • Produce guidance for households in temporary accommodation setting out a process for escalation of repair issues in temporary accommodation, including information about Environmental Health and Housing Health and Safety, to ensure the Council keeps oversight of its temporary accommodation.
    • Remind relevant staff that decisions to refuse a transfer request on the basis that the existing temporary accommodation is suitable are subject to statutory review under s202 of the Housing Act 1996.
  4. The Council should tell the Ombudsman about the action it has taken within three months of my final decision.

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Final decision

  1. I have completed my investigation. There is 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

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