Summary: Mr X complained the Council failed to provide suitable accommodation from November 2020 until April 2021. He says his accommodation during this period was unsuitable because of his medical conditions. Mr X says the Council’s actions caused him avoidable distress. We found fault by the Council. The Council has agreed to apologise and provide a financial remedy to Mr X.

The complaint

1. Mr X complained the Council failed to provide him with suitable accommodation from November 2020 until April 2021. He says his accommodation during this period was unsuitable because of his medical conditions.
2. Mr X also complained:
1. the Council failed to provide accommodation when he initially asked for assistance in 2018;
2. the Council delayed providing its decision about its housing duty to him;
3. about the suitability of his accommodation for the period prior to November 2020, and
4. about the lack of a parking space at his current accommodation.
3. Mr X says the Council’s actions caused him avoidable distress.

Back to top

What I have investigated

4. I have investigated the complaint referred to in paragraph one. The final section of this decision statement explains the reasons why I have not investigated the complaints referred to in paragraph two.

Back to top

The Ombudsman’s role and powers

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. 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)
7. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
8. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
9. If we are satisfied with an organisation’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)

Back to top

How I considered this complaint

10. I discussed the complaint with Mr X and considered the information he provided.
11. I made enquiries to the Council and considered the information it provided.
12. Mr X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

Back to top

What I found

The law and guidance

13. If a council has ‘reason to believe’ someone may be homeless or threatened with homelessness, it must take a homelessness application and make inquiries. (Housing Act 1996, section 184 and Homelessness Code of Guidance paragraphs 6.2 and 18.5)
14. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. When a council decides this duty has come to an end, it must notify the applicant in writing (Housing Act 1996, section 189B)
15. 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)
16. Examples of applicants in priority need are:
• people with dependent children;
• pregnant women;
• people who are vulnerable due to serious health problems, disability or old age.
17. If satisfied an applicant is homeless, eligible for assistance, and has a priority need the council has a duty to secure accommodation that is available for their occupation. (Housing Act 1996, section 193, and Homelessness Code of Guidance 15.39)
18. 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)
19. Homeless applicants may ask for a review within 21 days of receiving notice of certain decisions. This includes the suitability of accommodation offered to the applicant after a homelessness duty has been accepted (and the suitability of accommodation offered under section 200(3) and section 193).

Equality Act

20. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
21. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
22. The ‘protected characteristics’ referred to in the Act are:

• age,
• disability,
• gender reassignment,
• marriage and civil partnership,
• pregnancy and maternity,
• race,
• religion or belief,
• sex, and
• sexual orientation.

23. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.

Background

24. This chronology includes key events in this case and does not cover everything that happened.
25. Mr X received an eviction notice in September 2019. In February 2020, Mr X was evicted from his home.
26. Following his eviction, the Council placed Mr X into temporary accommodation in a hotel.
27. In March 2020, the hotel in which Mr X was living closed due to Covid-19 restrictions.
28. Mr X asked the Council to provide him with emergency accommodation and completed a medical application form in support of his request. Mr X told the Council about his medical conditions, including a history of heart disease and reduced mobility due to chronic back pain. Mr X told the Council he often used a wheelchair as a result of his medical conditions.
29. The Council’s medical advisor reviewed the information provided by Mr X. Based on this information, the medical advisor considered Mr X was “significantly more vulnerable than an ordinary person if homeless”, and recommended housing on medical grounds.
30. The Council accepted the relief duty and placed Mr X in alternative temporary accommodation in March 2020.

What happened

31. Mr X complained to the Council in June 2020. He said his belongings were in storage and he had not had access to them for four months. Mr X said the Council did not respond to him when he told it in 2018 that his landlord had given him notice to leave and said it did not respond when he told it about his eviction notice in 2019. Mr X also complained the Council did not include him on a housing priority list despite his medical conditions. He said he appealed against the Council’s Homeless Prevention Service regarding this matter and was advised to make a complaint.
32. Mr X made a further complaint to the Council in July 2020 and said the Council did not take action when he initially received the eviction notice in 2019. Mr X said he was still living in temporary accommodation which he complained was unsuitable due to his medical conditions.
33. The Council carried out a medical needs assessment in August 2020. It acknowledged Mr X used a wheelchair and that the accommodation did not have enough space for additional recommended specialist equipment such as a hospital bed and toileting/bathing equipment. The assessment identified Mr X’s accommodation was not suitable for long-term living and recommended a property with level access throughout, including level access shower facilities. The assessment also recommended Mr X required a property with enough space to fit the equipment identified to support his needs.
34. The Council responded to Mr X’s complaint and said Mr X had clarified his main concern was the suitability of his accommodation. The Council acknowledged it accepted the relief duty on 20 March 2020 and that this duty should have ended with a decision regarding Mr X’s homelessness application. The Council said Mr X was not eligible for a formal review of the suitability of his accommodation until it had accepted the full housing duty.
35. Mr X contacted the Council in September 2020. He complained he felt discriminated against because he considered the Council refused to accept evidence of his medical conditions and said he was not sick enough. Mr X said he had been homeless for about a year, and nobody had told him how long he would have to wait to receive the Council’s decision.
36. The Council responded to Mr X and said it hoped to provide an outcome soon.
37. Mr X complained to the Council again in October 2020 about the suitability of his accommodation. He said the issue was seriously affecting his mental health and he felt neglected and discriminated against.
38. The Council wrote to Mr X on 19 October 2020 and told him the relief duty had ended. It said it had made its enquiries and accepted the main housing duty. The Council told Mr X about his right to request a review of the suitability of his accommodation.
39. Mr X requested a review of the suitability of his accommodation on 21 October 2020.
40. On 26 November 2020, the Council told Mr X of its review decision. It decided Mr X’s temporary accommodation was unsuitable for him due to his medical condition. The Council said there was a serious shortage of accommodation available to it and it was unable to give a realistic indication of when it could make an offer of alternative accommodation.
41. The Council wrote to Mr X again on 1 December 2020 and told him it had awarded emergency medical priority to his application.
42. On 27 January 2021, the Council offered Mr X alternative accommodation via a third-party housing association.
43. Mr X moved into the property on 23 April 2021.

What happened next

44. Mr X remained dissatisfied with the Council’s handling of his complaint and brought the matter to us in August 2021.
45. As the Council had not completed its consideration of Mr X’s complaint via its own complaints procedure, we asked it to consider the complaint again.
46. The Council provided its stage two complaint response on 4 January 2022. It confirmed it had offered Mr X accommodation and said his tenancy started on 15 March 2021, although he did not move in until 23 April 2021. The Council said Mr X’s current accommodation met his needs and said it had acted appropriately regarding his homelessness application.
47. Mr X remained dissatisfied with the Council’s response and referred his complaint to us in February 2022.

Analysis

48. Mr X complains the Council failed to provide him with suitable accommodation. My investigation focuses on the period from the date the Council decided Mr X’s accommodation was unsuitable, (26 November 2020) to the date Mr X moved into alternative accommodation, (23 April 2021).
49. I acknowledge the Council’s comments regarding the shortage of accommodation available. However, if a council has decided an applicant’s current accommodation is unsuitable, it is in breach of its statutory duty under section 206 of the Housing Act, (as referred to in paragraph 18), from that point until it provides suitable accommodation. We consider delay in transferring the applicant to suitable accommodation, even when this is due to external factors such as a shortage of temporary accommodation, is service failure.
50. The Council made its offer of alternative accommodation in January 2021; however, Mr X’s tenancy did not start at this time, and he did not move in until 23 April 2021.
51. There is conflicting information about the tenancy start date and the reasons Mr X did not move into the property until 23 April 2021. The Council’s complaint response to Mr X says the tenancy start date was 15 March 2021, whereas in its response to our enquiries, it said it was 15 April 2021. Mr X also says he signed the tenancy agreement on 15 April 2021 and has provided evidence to support this.
52. The Council says it was Mr X’s decision to delay moving into the property until 23 April 2021. However, Mr X says he does not know the reason why he was unable to move sooner and says other tenants were moving into the property at about the same time, as it was newly built. He says the Council told him it could not allow everyone to move in at the same time. Mr X also says he was unable to move into the property on 15 April 2021 because it was unfurnished, and he needed help from friends to move in.
53. Whilst I acknowledge the Council offered alternative accommodation to Mr X in January 2021, it remains that Mr X was unable to move into the property until five months later. The evidence shows the Council was aware Mr X was living in unsuitable accommodation during this period. As previously stated, we consider delay in transferring applicants to suitable accommodation is service failure, and on this basis, the Council is at fault.

The Council’s consideration of Mr X’s complaint of discrimination

54. Mr X complained the Council discriminated against him. He said the Council refused to accept evidence of his medical conditions and said he was not sick enough.
55. It is not for the Ombudsman to determine whether the Council discriminated against Mr X. This is because only a court can determine whether a body has unlawfully discriminated against an individual. The Ombudsman can, however, decide whether a council has acted with fault when investigating a complaint about discrimination.
56. Procedurally, the Council should have contacted Mr X to ensure it fully understood his view and to obtain any evidence he had to support his claim of discrimination. I have seen no evidence the Council sought to clarify this. As a result, the Council is at fault.
57. Having identified fault, I must consider if this caused a significant injustice to Mr X. He says the Council’s actions caused him avoidable stress and upset which had a serious impact on his mental health.

Back to top

Agreed action

58. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Mr X, and
2. Make a payment of £1,750 to Mr X in recognition of the distress caused. This equates to £350 per month for the period of five months from November 2020 to April 2021.

Back to top

Final decision

59. I have found fault by the Council and the Council has agreed to take the above action to remedy this complaint. I have therefore concluded my investigation.

Back to top

Parts of the complaint that I did not investigate

60. I have not investigated Mr X’s complaint that the Council failed to provide him with accommodation when he initially asked for assistance in 2018, or that the Council delayed providing its decision about its housing duty to him. This is because these aspects of Mr X's complaint are late, and there is no good reason to exercise discretion to investigate them.
61. I have not investigated Mr X’s complaint about the suitability of his accommodation for the period before November 2020. This is because in November 2020, Mr X was successful in his review regarding the suitability of his accommodation.
62. I have not investigated Mr X’s complaint about the lack of a parking space at his current accommodation. This is because Mr X did not include this aspect of the complaint as part of his initial complaint to the Council. It is reasonable for Mr X to notify the Council of this complaint and give it an opportunity to investigate and reply.

Back to top

Investigator's decision on behalf of the Ombudsman