Summary: We found fault with the Council for its failure to assess the suitability of temporary accommodation offered to Mr X, delayed complaint handling, and failure to carry out a suitability review. This deprived Mr X of his appeal rights and he incurred time and trouble in pursuing his complaints. The Council agreed to apologise, make a payment to Mr X and carry out a suitability review.

The complaint

1. Mr X complains the Council has delayed in finding suitable accommodation for his family. He says the Council has failed to properly assess his housing application and left the family living in overcrowded and unsafe accommodation for three years. Mr X would like the Council to award his family additional points, make a payment to recognise their injustice and offer them permanent accommodation.

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The Ombudsman’s role and powers

2. 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)
3. We cannot question whether an organisation’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)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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. I have considered the complaint made by Mr X and the documents he provided.
7. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
8. Mr 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

Homelessness

9. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities (‘the Code’) set out councils’ powers and duties to people who are homeless or threatened with homelessness.
10. The Code says if there is reason to believe a person may be homeless or threatened with homelessness within 56 days the council must carry out an assessment to determine if this is the case, and whether the person is eligible for assistance. The council must then carry out inquiries into what duty, if any, is owed to the applicant.
11. The council must notify the applicant in writing of the outcome of the assessment and try to agree with the applicant the steps the applicant and council should take to prevent the applicant from becoming homeless. This is the prevention duty. (Housing Act 1996, section 195). The local authority should record these actions in a personalised housing plan (PHP).
12. Where the council is satisfied that an applicant is homeless (rather than just threatened with homelessness) and eligible for assistance, it is subject to a duty to take reasonable steps to help the applicant secure accommodation that will be available for at least six months. (Housing Act 1996, section 189B). This is the relief duty.
13. When the relief period ends the council must decide whether it owes the person the main housing duty. Under the main housing duty, councils must ensure that suitable accommodation is available for the applicant and their household until the duty is brought to an end, usually through the offer of a settled home.

Temporary accommodation

14. Temporary accommodation is accommodation provided to homeless applicants as part of a council’s main homelessness duty.
15. 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)
16. Councils must consider the location of accommodation when they consider if it is suitable for the applicant and members of their household. If a council places an applicant outside its district, it must consider, among other matters:
• the distance of the accommodation from the “home” district;
• the significance of any disruption to the education of members of the applicant’s household;
• the proximity and accessibility to local services, amenities and transport. (Homelessness (Suitability of Accommodation) Order 2012)
17. The Council’s procedures for assessing the suitability of interim accommodation say:
• the most suitable vacancy must be picked from those available. Size and make up of household versus size of accommodation available must be considered.
• officers should check journey time for work and school. They should also check any journey times to hospital/clinics.
• families and pregnant women should be placed in self-contained vacancies.
• the officer should complete a placement information form and identify and discuss any risk issues with a manager. They should enter notes on the database to reflect the above considerations.
18. 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)
19. Homeless applicants must seek 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)

Protection of property

20. Where the council owes or has owed certain housing duties to an applicant, it must protect the applicant’s personal property if there is a risk it may be lost or damaged and the applicant is unable to deal with it himself. A council may make a reasonable charge for storage and reserve the right to dispose of the property if it loses contact with the applicant. (Housing Act 1996, section 211, Homelessness Code of Guidance chapter 20)

Allocations

21. 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. 
22. 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; and
• people who need to move to avoid hardship to themselves or others.
23. The Council operates a choice-based lettings scheme which enables housing applicants to bid for available properties which it advertises.
24. The Council places applicants who qualify to join the housing register into a priority group based on their housing need. These include applicants who need to move on medical or welfare grounds and those in overcrowded accommodation.
25. The Council uses four categories for mobility assessments. The first two are for applicants who use a wheelchair for all or some of the time. The third category is for applicants who needed a ground floor property or property with a lift, with level access and no internal stairs. The fourth category is for all other applicants.
26. Applicants who have been accepted as homeless and are living in temporary accommodation will not be eligible for priority on medical grounds because the Council is required to ensure the temporary accommodation is suitable for their needs.
27. The Council awards each applicant points to decide their priority need for rehousing. It awards points based on the priority group, with additional points for at least two years’ continuous employment or engagement with a named local employment support organisation, and for local connection to the borough evidenced by 10 years’ continuous residence.
28. The Council shortlists bidders for a property based on those with the most points. Where there are applicants with the same number of points, those with the oldest registration date will be highest on the list.
29. In response to the COVID-19 pandemic, the government issued non-statutory guidance. This recommended pausing “all non-essential allocation and transfer activity” to help prevent the spread of infection. The guidance said other allocations activity, such as facilitating the move-on from temporary accommodation, should continue. This guidance was in place from 27 April to 13 May 2020.
30. We recognise that the demand for social housing far outstrips the supply of properties in many areas. We may not find fault with a council for failing to re-house someone if it has prioritised applicants and allocated properties according to its published lettings scheme policy. The current average waiting time for a three-bedroom property for those on the Council’s housing allocation list is 16 years.

Reviews

31. Housing applicants can ask a council to review a wide range of decisions about their applications, including decisions about their housing priority.
32. Review procedures should be clear and fair with timescales for each stage. Government guidance suggests eight weeks is a reasonable timescale for carrying out a review. Reviews should be carried out by an officer senior to the original decision maker, or by a panel not including the original decision maker.

Complaint handling

33. The Council has a two-stage complaint procedure. It says stage one complaints should be responded to in 10 working days and stage two complaints in 20 working days.

What happened

34. Mr X lives with his family. His landlord took eviction proceedings in April 2018. Mr X approached the Council for help. The Council accepted it owed Mr X the prevention duty. Following its enquiries, it accepted the relief duty to Mr X. It developed a personalised housing plan (PHP) and offered his family three-bedroom interim accommodation in June 2018.
35. The Council accepted a main housing duty to Mr X in September 2018 and so the interim accommodation became temporary accommodation. Mr X moved to a second three-bedroom temporary accommodation in June 2021 where the family remains living.
36. Mr X first complained to the Council in July 2018 and made a further complaint in July 2020.

My findings

Personalised housing plan

37. Mr X says the Council failed to contact his landlord and share information about his benefit entitlement, as listed in his PHP. In its complaint correspondence with Mr X, the Council says it did contact Mr X’s landlord but he declined to allow the family to stay in the property. It accepted it did not write to Mr X to tell him whether it was reasonable for him to remain in the property but it did assess his circumstances and accepted the relief duty. It accepts it delayed sending Mr X information about his benefits until July 2018.
38. While there was fault in the Council’s handling of the PHP, I do not consider this caused Mr X an injustice because it was unlikely the family would have been able to remain living in their property, and the Council promptly confirmed it owed the family a relief duty.

Interim and temporary accommodation

39. Mr X says the Council failed to assess the suitability of the interim accommodation offered to his family in June 2018. The Council has been unable to evidence it assessed the property in line with the requirements set out in paragraph 16. This is fault. However, records provided by the Council show the only other available properties at the time were even further away from Westminster. It also offered Mr X a property in a nearer borough two weeks after he moved in, which he declined. Therefore, I do not consider this lack of assessment caused an injustice to Mr X as the Council offered him the nearest available accommodation at the time.
40. Mr X says the family is assessed as needing a three-bedroom property comprising two double and one single bedroom. Mr X says the accommodation they were offered comprised one double and two single bedrooms. In its response to my enquiries, the Council confirmed the property did not meet the definition of statutory overcrowding.
41. Mr X says the interim accommodation was in a poor state of repair. He reported issues to the Council and to the accommodation provider, who inspected the property and arranged for repair work. I did not find evidence of unnecessary delays which would amount to fault.
42. Mr X remained living in the temporary accommodation until June 2021 when he was given notice the property was being sold. In response to my enquiries, the Council said it was told on 14 June the landlord required the property back, and it told Mr X on 18 June it would find alternative accommodation for him. He accepted an offer of first-floor alternative accommodation on 28 June. While it will have been inconvenient for Mr X to have to move on relatively short notice, this was not the fault of the Council and it acted promptly to secure him alternative accommodation.
43. Mr X asked for a review of the suitability of the new temporary accommodation in July 2021, shortly after he moved in. The Council cancelled the review in September as Mr X was on the waiting list for a transfer to alternative temporary accommodation. It is unclear whether the Council informed Mr X of its decision or his appeal rights. This was fault. The Council’s failure to carry out a review has deprived Mr X of his appeal rights.

Protection of property

44. Mr X says the interim accommodation was too small to move all the family’s belongings into. The Council said it stored some belongings for Mr X for one day while the family moved to interim accommodation, and these belongings were returned to Mr X. The Council advised him to ask the storage provider if it would be willing to return some of the items to storage. There is no record of further contact between the Council and the storage provider. There is also no record of Mr X raising any concerns about the arrangements for storage from June 2018 until he made his second complaint in July 2020. Mr X arranged for the items to be returned to him in June 2022. While it may have been frustrating for Mr X not to have all the family’s belongings to hand, there was no fault by the Council in how it fulfilled its duty to protect his property.

Allocations

45. The Council accepted it owed Mr X the main housing duty in September 2018. It assigned him 150 points as a homeless household. In its complaint response the Council accepted there was a delay in deciding it owed Mr X a main housing duty and agreed to backdate the date of his registration. This is sufficient to remedy any injustice caused by the delay.
46. Mr X said the Council delayed in issuing information about how to bid for properties. I did not find fault with the Council. Mr X became eligible to bid for properties once the Council accepted the main housing duty. It sent him information about bidding within one week of its decision.
47. Mr X said the Council failed to take account of evidence he provided of his residence and employment history, which would have resulted in his family receiving more points to bid on properties. He said he emailed this evidence in October 2018 and an officer acknowledged receipt. The Council said it has no record of it. It is not possible for me to form a view on what happened to this information or why the Council did not record it. However, Mr X has had opportunities since then to provide evidence of his residence and employment history and it is unclear why he has not done so. If he wishes, Mr X can provide the information and the Council can consider whether he is eligible for additional points and whether these can be backdated.
48. Mr X said the Council failed to take account of his engagement with a different employment support organisation when calculating his eligibility for additional points. The Council’s allocation policy only offers additional points to applicants who have been actively engaged with a specific local employment support project for at least two years. The Council is entitled to set its own additional criteria for allocations, as long as it prioritises the groups set out in paragraph 22. The Council arranged an initial appointment for Mr X with the local employment support project in April 2018. It is not fault for the Council to disregard Mr X’s engagement with an alternative organisation. If Mr X has evidence of his ongoing engagement with the project he can provide this to the Council for it to consider. The Council was also not at fault for refusing to accept Mr X’s evidence of self-employment because it did not demonstrate he had generated any income.
49. Mr X said the Council failed to carry out a housing needs assessment after he provided evidence of his medical needs. The Council completed a housing needs assessment in March 2019 and made several unsuccessful attempts to speak to Mr X and his wife. The Council considered Mr X’s medical information in May 2019, within one month of him submitting it, and recorded his request to be moved to a first-floor property. The Council decided the information Mr X provided was not sufficient to move Mr X into a different mobility category.
50. However, the Council exercised its discretion to put Mr X’s family on the waiting list for a transfer to first-floor temporary accommodation. In its response to my enquiries, the Council said there are over 250 households awaiting a transfer to alternative temporary accommodation. The Council completed a further housing needs assessment in July 2020, but this did not lead to a change in Mr X’s priority on the housing register.
51. Mr X said he requested a review of the Council’s decisions about his housing needs in November 2019 but the Council failed to respond. The Council said it did not receive he request. It is not possible for me to make a finding about this.
52. Mr X says the Council restricted access to its bidding system to certain groups. The Council told him demand for housing means there are times when bidding is restricted to certain groups to allow others on the housing register the opportunity to bid for properties. Given each of the properties Mr X has bid on have been allocated to bidders with more points than him, I consider this did not cause him an injustice because he was unlikely to have been successful had he been able to bid without restriction.
53. In response to the COVID-19 pandemic, the Council suspended bidding on properties due to the national lockdown and the difficulty of arranging property viewings safely. It lifted the suspension in mid-May 2020 and wrote to applicants on the housing register to advise them of the interim approach to lettings. These were decisions the Council was entitled to make in response to the pandemic and I have not seen evidence this caused Mr X an injustice.
54. The Council has apologised to Mr X for any delays or failure to respond to him by officers in its housing service. I consider this apology is sufficient to remedy any injustice this may have caused.

Complaint handling

55. Mr X first complained to the Council in July 2018 and the Council responded in October 2018. Mr X asked the Council to consider his complaint at the next stage of its complaint procedure but the Council failed to do so. This was fault. Mr X resubmitted his complaint, with additional details, in July 2020 and escalated it to stage two in January 2021. The Council responded in June 2021. This delay was also fault.
56. In response to my enquiries, the Council said it would be willing to offer Mr X £50 to recognise the time and trouble taken to address his complaint. I do not consider this sufficient remedy and have made a further recommendation to address this below.

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Agreed action

57. Within one month of this decision, the Council will:
• apologise to Mr X for the injustice caused by faults identified in this investigation.
• pay Mr X £100 to reflect the time and trouble taken to respond to his complaint.
• remind officers of the need to document any decisions about the suitability of interim accommodation, in line with the Council’s procedure.
58. Within eight weeks of this decision the Council will reconsider Mr X’s request for a review of the suitability of his current temporary accommodation. The Council will ensure it providers a written response including advising Mr X of his appeal rights.

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Final decision

59. I have completed my investigation with a finding of fault for the reasons set out in this statement. Mr X was caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman