Summary: The Council was at fault because it did not review the suitability of Mr & Mrs X’s bed and breakfast accommodation and consider moving them to self-contained temporary accommodation. It also took far too long to make a decision on their request for a review of their bedroom needs for their Homemove social housing application. The Council has agreed to provide a suitable remedy for the injustice caused by these faults.

The complaint

1. Mr X complains that the Council:

1. did not properly consider his concerns about the unsuitability of his interim and temporary accommodation in a bed and breakfast hotel. Mr X raised concerns in a complaint to the Council and in emails to his case officer;

2. did not properly consider his request for an extra bedroom on medical grounds for the purpose of his Housing Register application. In particular, it did not properly assess all the supporting medical evidence he submitted about his and his wife’s medical needs and the impact sharing a bedroom had on their health.

2. Since making this complaint, Mr X and his wife have been rehoused to a one bedroom Housing Association flat. However they say they spent far too long living in unsuitable bed and breakfast accommodation. They also say the Council failed to properly consider their need for separate bedrooms on medical grounds and they believe they are still not adequately housed.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons to do so. A complaint is late 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. 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. 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

6. We received Mr X’s complaint in June 2021.
7. Part of the complaint is about what happened between September 2019 and April 2021 when Mr X and his wife were homeless and placed in a bed and breakfast hotel. The other part is about the way the Council considered his request for an additional bedroom for his Homemove application. This complaint was made within 12 months of the date he received the Council’s review decision.
8. As a significant part of the complaint was made in time, we exercised discretion to disapply the time bar and investigate the whole complaint. This allowed us to consider the way the Council responded to Mr X’s concerns about the suitability of the B&B placement. In deciding to exercise discretion, we also took into account Mr & Mrs X’s age and vulnerability.
9. I have spoken to Mr X and considered all the information he sent us. I considered the Council’s reply to my enquiries and evidence from the housing file. I also referred to the relevant parts of the Council’s housing allocations policy.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

11. Mr and Mrs X are a pensioner couple. They both have multiple chronic medical conditions and are clinically vulnerable. Mr X’s mobility is very limited.

Complaint (a) - unsuitable accommodation in a bed and breakfast (B&B) hotel

The duty to provide interim accommodation

12. A council must secure interim accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need. (Housing Act 1996, section 188)

The main housing duty

13. 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 commonly known as the main housing duty. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)

Suitability of accommodation and guidance on the use of B&B

14. The law says councils must ensure all accommodation it arranges for 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 housing duty.  (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)
15. Paragraph 17.31 of the statutory Code of Guidance on Homelessness says:

“bed and breakfast (B&B) accommodation caters for very short-term stays only and affords residents only limited privacy, and may lack or require sharing of important amenities, such as cooking and laundry facilities. Wherever possible, housing authorities should avoid using B&B accommodation as accommodation for homeless applicants, unless, in the very limited circumstances where it is likely to be the case, it is the most appropriate option for the applicant.

Review rights

16. Homeless applicants have the right to request a review of certain decisions, including the suitability of temporary accommodation provided once the Council has accepted the main housing duty. (Housing Act 1996, section 202)
17. Homeless applicants can ask a council to reconsider its decision about the suitability of their temporary accommodation at any time. This might be necessary, for example, if there is a change in the applicant’s circumstances. This new decision carries a right of review, with a new 21 day timescale. R(B) v Redbridge LBC [2019] EWHC 250 (Admin)
18. The review must be carried out by someone who was not involved in the original decision and who is senior to the original decision maker. The reviewing officer needs to consider any information relevant to the period before the decision was made (even if only obtained afterwards) as well as any new relevant information the Council has obtained since the decision. (The Homelessness (Review Procedure etc.) Regulations 2018, Homelessness Code of Guidance Chapter 19)

What happened

19. Mr & Mrs X were homeless when the Council placed them in emergency accommodation in a B&B hotel in late September 2019. The Council arranged this as interim accommodation while it made inquiries into their homelessness application.
20. A Homelessness Prevention Officer, “Officer A”, was responsible for Mr & Mrs X’s case. He completed a form for the Emergency Accommodation placement team which summarised their medical conditions and accommodation needs. He said Mr X could only manage about three steps with support from his partner. He therefore needed accommodation with a lift, or as few steps as possible, to the property and room. He also recorded on the form that Mr X had diabetes but he did not note any specific needs relating to this condition.
21. On 21 November 2019 the Council informed Mr X it had completed its homelessness inquiries and owed them the main housing duty. The letter also said the Council would usually perform this duty by securing “long term temporary” leased accommodation. The decision letter explained their right to request a review of the suitability of the accommodation and gave details of who to contact about a review.
22. Mr X told me he contacted Officer A several times to tell him the hotel room was unsuitable for their needs. He says Officer A said it was the best accommodation available and did not mention his right to request a suitability review. Mr X said officers told him there was nothing else available when he asked about moving from the hotel to self-contained temporary accommodation.
23. Mr X told me their hotel room had a microwave, a mini-hob and a mini-fridge. He said they were unfamiliar with using a microwave and there was not enough space to prepare healthy meals suitable for diabetics. There was very little room to store food in the mini-fridge so they often ate out. They had their own bathroom with a walk-in shower. The room was on the third floor of the hotel with lift access.
24. Due to their age and health conditions, they were clinically vulnerable and had an increased risk of infection from staying in a hotel with many other homeless residents during the COVID-19 pandemic.
25. On 13 January 2020, Mr X sent the Homemove team an email saying the hotel was not suitable for these reasons.
26. On 25 March 2020, during the first national lockdown, Mr X sent an email to Officer A. He said the hotel accommodation was not suitable because it lacked adequate facilities to store and cook food. He also said they could not self-isolate or shield in shared accommodation.
27. Officer A replied on 26 March. He said the Council could not move Mr X because the only available emergency accommodation was similar to, or less suitable, than his current hotel room.  
28. In response to my enquiries, the Council said Officer A is no longer employed by them. It accepts Mr X’s 25 March email should have been treated as a request for a review of the suitability of the accommodation and passed on for consideration.
29. I asked the Council if it had considered moving Mr & Mrs X from the B&B hotel to self-contained temporary accommodation, in view of their age and health conditions, after it accepted the main housing duty in November 2019. The Council says its records suggest Officer A had focused instead on Mr X’s request for an additional bedroom for his Homemove application (see the following section of this statement). 
30. Mr & Mrs X remained in the bed and breakfast hotel until 19 April 2021. They were then rehoused after they made a successful bid for a one bedroom Housing Association flat. They had been in the bed and breakfast hotel for 18 months by then.

My analysis

31. The Council’s records show a suitability assessment was completed before the emergency placement in the B&B hotel was made in September 2019. The assessment considered Mr X’s mobility needs. Their room on the third floor of the B&B hotel had lift access and it was noted that Mr X could only manage a few steps due to his limited mobility. The assessment did not refer to any other specific accommodation needs arising from his or his wife’s medical conditions. There was no fault at this stage.
32. When it accepted the main housing duty in November 2019, the Council properly informed Mr X in writing about his right to request a review of the suitability of the accommodation. Mr X did not request a review at this stage.
33. However, the B&B hotel was not designed to be long term temporary accommodation. Mr X had a reasonable expectation, based on the November 2019 letter, that the Council would move them to leased temporary accommodation. I have seen no evidence that the Council considered the need to move Mr & Mrs X to self-contained leased temporary accommodation at any time after it accepted the main housing duty in November 2019. Instead they were left in the B&B hotel. That was contrary to statutory guidance which says B&B is only suitable for very short-term use. It seems that the Council overlooked their case despite Mr X’s efforts to raise concerns about the suitability of the hotel accommodation. That was fault.
34. There was further fault. Officer A did not take appropriate action when Mr X raised specific concerns about the suitability of the B&B room in March 2020. This should have been treated as a request for reconsideration of the suitability of accommodation and a potential review request. Instead Mr X was simply told no other accommodation was available. Understandably Mr X was frustrated that the Council did not give proper consideration to his concerns and that his request for a review was effectively ignored.
35. Mr & Mrs X had their own shower room and basic cooking and food storage facilities in their room. They did not have to share a kitchen or bathroom with other residents. Nevertheless, they lived for an extended period in a single room. And during the COVID-19 pandemic, they worried about the risk of exposure to infection from other residents every time they left their room.
36. It is too late for the Council to review the suitability of the B&B accommodation now because Mr & Mrs X moved out in April 2021. On the balance of probabilities, it seems likely the Council would have decided a room in a bed and breakfast hotel was not satisfactory as long-term accommodation for Mr & Mrs X. It seems more likely than not that the Council would have agreed to move them to self-contained temporary accommodation. In reaching that view, I took into account:
• The Code of Guidance on Homelessness says councils should avoid using bed and breakfast accommodation and, when it must be used, it should only be used for very short-term stays;
• The letter accepting the main housing duty in November 2019 indicated the Council would perform the main housing duty by securing leased accommodation;
• Mr & Mrs X were both clinically vulnerable due to multiple health conditions and they were at greater risk of exposure to COVID-19 in a multi-occupied property.
37. On the evidence seen so far, it seems reasonable to assume they should have been moved to self-contained temporary accommodation by the spring of 2020 if their request had been acted on.
38. The injustice to Mr & Mrs X is that they spent about 12 months longer than they should have done living in bed and breakfast accommodation. The prolonged stay in a hotel room resulted in Mr X paying significant storage charges for his furniture and other belongings. Invoices from the storage company he used show total charges of £4,784.28.

Complaint (b) – Mr X’s request for an extra bedroom on medical grounds

The relevant law

39. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing.  All allocations must be made in strict accordance with the published scheme.  (Housing Act 1996, section 166A(1) & (14))
40. Housing applicants can ask the council to review a wide range of decisions about their Housing Register applications, including decisions about their housing priority and bedroom need.
41. Statutory guidance on the allocation of accommodation says:

• review procedures should be clear and fair with timescales for each stage of the process;
• there should be a timescale for requesting a review - 21 days is suggested as reasonable;
• the review should be carried out by an officer senior to the original decision maker, or by a panel not including the original decision maker;
• reviews should normally be completed within a set deadline - 8 weeks is suggested as reasonable.

The Council’s housing allocations scheme – bedroom need and review timescale

42. The Council’s housing allocations scheme says a couple without children is entitled to a one bedroom property unless they qualify for an extra bedroom for medical reasons or reasons relating to a disability.
43. The scheme says applicants may apply for an extra bedroom by submitting medical and/or mobility information. It says the medical or mobility need must be very high to qualify for an extra bedroom. Homemove officers must seek advice from the Council’s medical adviser on these requests.
44. The Council’s housing allocations scheme says reviews should be completed wherever practicable within eight weeks from the date the review is requested. The Council will look to notify the applicant if the review cannot be completed in time and give reasons for needing an extension. Applicants must be notified in writing of the review decision and reasons.

What happened

45. In November 2019 the Council accepted Mr X’s application to join the Housing Register and awarded Band C priority. As a couple, Mr & Mrs X were eligible to bid for a one bedroom property.
46. Mr X asked the Council to consider them for a two bedroom property. He said he and his wife needed separate bedrooms due to their medical conditions.
47. In December 2019 Mr X submitted medical reports from two hospital consultants about his medical conditions. One of these reports said it was important for Mr X to keep his blood pressure carefully controlled at night to delay the progress of his chronic kidney disease.
48. On 16 January 2020 Mr X sent the Council evidence from the GP about the impact sharing a bedroom had on his wife’s health. The GP confirmed that due to a medical condition, Mr X had to get up several times in the night to use the toilet. This disturbed Mrs X’s sleep and aggravated her high blood pressure. Mr X also provided his wife’s patient summary record and blood pressure monitoring records.
49. Eight days later, the Council’s medical adviser considered the request for an extra bedroom and the medical evidence. She made a brief summary of the two consultant’s reports and said:

Conclusion; Not known to Care First. No formal assessments available confirming need for own bedroom for medical reasons. No evidence of 24hr care. Based on the info available - would not advise extra bedroom.

50. The medical adviser did not refer to the medical evidence Mr X had sent on 16 January about his wife. It seems this evidence was not forwarded to the medical adviser in time for her to consider it in the assessment.
51. On 24 January 2020 the Homemove team informed Mr X that the Council had refused his request for an extra bedroom. The letter said that due to the severe shortage of housing stock, the Council only agreed to an extra bedroom in extremely serious medical circumstances. It gave some examples: a person who has to use a dialysis machine, someone at high risk of infection from sharing a bedroom, or someone with severe behavioural issues. It advised Mr X to keep bidding for one bedroom properties.
52. On 11 February 2020 Mr X asked for a review of this decision. He said the Council had not properly considered the medical evidence about the impact sharing a bedroom had on his and his wife’s health. He said the Council should also consider the need to prevent any deterioration in their medical conditions. He made the point that the Council’s Benefits Service had awarded Housing Benefit for a two bedroom property when they were in private rented accommodation. He considered the Homemove team should be consistent and apply the same criteria.
53. On 13 May 2020 an officer in the Housing Needs team contacted Mr X to ask if he wanted to provide any further evidence for the review. The Council acknowledged Mr X’s review request had wrongly been moved to the “done” folder. Mr X asked the Council to carefully review all the medical evidence already submitted. He urged the Council to make the decision without further delay.
54. In late November 2020 Mr sent the officer responsible for reviewing his case a recent letter from his GP. The GP referred to Mr X’s cardiac and kidney problems. He said Mr X needed a quiet environment to avoid stress. He also said Mr X had a condition which made him to get up to use the toilet frequently during the night. The GP said this disturbed Mrs X’s sleep and exacerbated her high blood pressure. He concluded by saying that a separate bedroom would greatly improve Mr X’s quality of life.
55. On 7 December 2020 the officer sent Mr X the review decision letter, almost ten months after he requested the review.
56. The review decision letter refers to the content of the 2019 reports from the two consultants. It also summarised the January 2020 evidence from Mrs X’s GP about the impact sharing a bedroom with Mr X had on her own medical condition and the more recent letter from the GP.
57. The reviewing officer said Mr X had not submitted any “formal medical assessment” confirming the need for a separate bedroom. She also noted they did not have a 24 hour live-in carer who needed a bedroom. In her view the medical evidence did not demonstrate an essential need for separate bedrooms due to a severe disability or medical condition. She said Mr X could seek legal advice about a judicial review, or he could complain to the Ombudsman, if he wished to challenge the review decision.
58. In February 2021 Mr X provided a supporting letter from a renal welfare officer at the hospital where he received treatment for his kidney condition. The letter stressed Mr X’s need to move to more suitable accommodation and queried his priority band on the Homemove scheme. This letter did not mention the need for the couple to have separate bedrooms.
59. In April 2021 Mr X accepted the offer of a one bedroom Housing Association property because they were desperate to move out of the bed and breakfast hotel. After he accepted this offer, the Council closed his Homemove application.
60. Mr X says the Council should reinstate his Housing Register application, award Band A priority, and recognise they still need a two bedroom property on medical grounds.

My analysis

61. There was unreasonable delay in making the review decision. It took the Council ten months which is far longer than the target timescale of eight weeks in the statutory guidance and its own housing allocations policy. The impact of the delay was that Mr X and his wife experienced considerable frustration and uncertainty while waiting for a decision. As the original decision was not changed on review, the delay had no other adverse impact.
62. Our experience from investigating other complaints against Brighton & Hove City Council shows the delay in this case was not an exceptional or one-off occurrence. We have found similar delays in other cases. The Council has already accepted our recommendation to draw up an action plan to reduce the backlog and the time taken to make review decisions. It has assigned officers to work on the backlog and agreed to give regular progress updates to Councillors.
63. The Council did not consider the medical evidence Mr X sent in January 2020 about the impact on Mrs X’s health before it made the original decision. That was fault. Although that evidence was received in time, it was not referred to the Council’s medical adviser so she did not consider it in her assessment. However the reviewing officer did consider this evidence in the later review which rectified the earlier fault.
64. Mr X disagrees with the Council’s review decision. He does not accept the Council’s assessment that he and his wife’s medical needs do not require them to have separate bedrooms. However the Ombudsman cannot question the merits of the review decision if it was properly made. All the relevant medical evidence was considered at the review stage. Mr X disagrees that he is not entitled to a two bedroom property but I see no fault in the decision-making process.
65. The Council correctly closed Mr X’s Homemove application in April 2021 when he accepted the offer of a Housing Association flat. Mr X can make a new Homemove application if he considers he is not suitably housed. The Homemove team would then decide whether he qualifies to join the Housing Register, and if so, his priority band and bedroom needs, based on an assessment of his housing needs in the current accommodation. The Ombudsman cannot therefore recommend that the Council reopens his old application and awards Band A priority.

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Agreed action

66. Within one month of my final decision, the Council will complete the following actions:
• Apologise in writing to Mr X for its poor handling of his case;
• Pay £150 to recognise the uncertainty and distress caused by the delay in making the review decision;
• Pay an additional £1,800 to recognise the impact on Mr & Mrs X of living in bed and breakfast accommodation for about 12 months longer than necessary;
• Reimburse the storage charges of £4,784.28 provided Mr X submits evidence of payment to the Council;
• Issue a written reminder to case officers about the need to identify and forward requests for reviews or reconsideration of the suitability of temporary accommodation.

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Final decision

67. I have completed the investigation and found the Council was at fault and this caused injustice to Mr X and his wife. The Council has accepted my recommendations for a suitable remedy.

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Investigator's decision on behalf of the Ombudsman