• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Ms Y complained the Council placed her in unsuitable temporary accommodation, which was made worse by the COVID-19 pandemic. The Council was at fault. It was also at fault for not proactively assisting Ms Y to find accommodation between July 2020 and February 2021, and not telling her it had cancelled her housing register application when it discharged its homelessness duty in March 2021. It will apologise, make changes to its processes, and pay Ms Y £2,800 to remedy the unsuitable accommodation.

The complaint

1. Ms X complained, on behalf of Ms Y, that the Council placed Ms Y and her son, Z, in unsuitable in bed and breakfast accommodation from June 2020 until April 2021. Ms Y said this caused difficulties for Z who was unhappy about sharing the bathroom with strangers. It also meant Ms Y and her son were sharing kitchen and bathroom facilities with strangers during the COVID-19 pandemic.

Back to top

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 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)
4. 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)

Back to top

How I considered this complaint

5. I considered:
   • The information provided by Ms X on behalf of Ms Y;
   • The information provided by the Council in response to my enquiries;
   • Relevant law and guidance, as set out below; and
   • Our guidance on remedies, available on our website.
6. Ms X, Ms Y and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

Back to top

What I found

Relevant law and guidance

Homelessness

7. 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.
8. Where a council has reason to believe the person is homeless and eligible for assistance, a number of duties arise, including the duty to make enquiries to determine if it owes a main housing duty and to take steps to relieve their homelessness. This is known as the relief duty. It applies for 56 days, following which the council must decide if it owes the main housing duty.
9. Where the person is homeless, eligible for assistance and in priority need, the council has an immediate duty under section 188 to ensure that suitable accommodation is available for them whilst it makes its enquiries. Examples of priority need are those with dependent children.
10. Accommodation provided under section 188 must be suitable for the person and their household.
11. Bed and breakfast (B&B) accommodation can only be used for households which include a pregnant woman or dependent child when no other accommodation is available and then for no more than six weeks. B&B is accommodation where the toilet, washing, or cooking facilities are shared with other households. This does not apply to accommodation that is owned by the council, or a non-profit registered provider of social housing. (Homeless (Suitability of Accommodation) Order 2003)
12. Where, after making appropriate enquiries during the relief stage, the council is satisfied the person is homeless, eligible for assistance, in priority need and not intentionally homeless, it will owe them the main housing duty. This is a duty to secure suitable accommodation for them, which may be social housing or private rented accommodation with a lease of at least 12 months. The council is also under a duty to provide suitable temporary accommodation in the meantime.

Housing allocations

13. 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))
14. This Council’s allocation scheme has three priority bands. Band 1 is for those with an urgent need to move and band 3 is for those with moderate housing needs and lower urgency. Band 3 includes those accepted as homeless with the full housing duty but are suitably housed in temporary accommodation. Priority within the band is based on how long the applicant has been placed in that band.

Complaints process

15. The Council’s complaints policy says it will acknowledge complaints at stage 1 of its complaints process within 5 days and will send a full written response within 20 working days. It says stage 2 complaints will be investigated by its corporate resolution team and it will respond within 20 working days.

What happened

16. Ms Y approached the Council for assistance in early June 2020. The Council accepted a relief duty and issued her with a personalised housing plan (PHP). This said Ms Y should look for private rented accommodation, but it did not expect her to do so until COVID-19 restrictions were lifted. The PHP shows the Council was aware Ms Y was vulnerable and had been placed in its area by another council.
17. Also in early June, the Council accepted a duty to provide Ms Y with interim accommodation. It placed Ms Y in B&B accommodation with her son, Z. The accommodation comprised a room with two single beds, and the use of a kitchen and bathroom shared with other families. The toilet was situated in the bathroom so if the bathroom was in use, they had to use the toilet in the bathroom on another floor. This meant unavoidable social mixing during the COVID-19 pandemic. Ms Y said there were regularly other families moving in and out, so they were sharing with strangers and maintaining hygiene was difficult.
18. In late June 2020, the Council considered Ms Y for a property outside its area. Ms Y declined this as it was too far away from her son’s school. In addition, the landlord required a guarantor and Ms Y did not have anyone to act as guarantor. On further consideration, the Council accepted the property was also not affordable for her and said it would not put her forward for the property after all.
19. In late July 2020 the relief duty ended. The Council confirmed it owed Ms Y a main housing duty. It confirmed it still owed a duty to provide accommodation, now temporary accommodation rather than interim accommodation. Its letter said: “we will have checked that [the B&B accommodation already provided] remains suitable for your needs” and explained Ms Y could ask for a review of its suitability.
20. Ms Y said she had not been homeless before and was not sure what she was entitled to. She said she accepted the property was suitable initially because the Council had said it was and therefore did not ask for a review. She was also suffering some physical and mental ill health at the time and did not have access to advice and support due to the COVID-19 pandemic.
21. The Council said it sent Ms Y regular listings of private rented properties that she could consider but that she did not engage with it. Ms Y says she did not receive these listings. I asked the Council to provide evidence it had sent them. It provided emails to Ms Y, which appear to be apparently dated April and July 2021.
22. There was some communication between Ms Y and the Council’s housing register team between September 2020 and March 2021. The communication shows Ms Y did not understand how the housing register worked. Nor did she know there was likely to be a long delay before she would be allocated social housing until the housing register team emailed her in December 2020. At that point, it suggested she consider registering with Homefinder.UK, a site that assists people to find social housing outside London. In March 2021 the housing register team explained Ms Y was not successful when bidding for properties because she was not high enough on the list. It advised her to consider renting privately.
23. In mid-February 2021, Ms Y instructed Ms X, a lawyer, to assist her. Ms X asked the Council to immediately move Ms Y into suitable accommodation. Ms X said the B&B accommodation was unsuitable and was in breach of the Homeless (Suitability of Accommodation (England) Order 2003 (the 2003 order). She also said it was not appropriate for a mother and son of his age to share a bedroom, particularly where there was not even a private bathroom to get changed. She also noted Z had to sit on a bed in the same room as his mother whilst schooling was online.
24. On 3 March the Council told Ms X it had identified two potential properties for Ms Y and would contact her within the next two days. Neither Ms X nor Ms Y heard from the Council until 24 March, when the Council offered Ms Y self-contained private rented accommodation, which she accepted. Ms Y moved into that accommodation on 1 April 2021.
25. Ms X made a formal complaint in mid May 2021. She said:
    • Ms Y had no complaint about the Council’s approach to the case when she first approached it and when it owed her a relief duty;
    • Ms Y understood that B&B accommodation may be all that was available in an emergency, but this was not suitable for nine months. Ms X set out the difficulties this caused Z;
    • It felt like the Council had forgotten Ms Y after confirming it owed her the main housing duty;
    • On 3 March the Council said it would contact Ms Y within two days about alternative accommodation but it did not do so until 24 March.
26. Ms X did not receive a response and complained again on 2 August 2021. The Council replied the same day. It said it had sent a response on 15 July after which it had closed its complaint file. It copied the content of that response into its email.
27. The complaint response said:
    • The accommodation was managed by a registered housing provider and therefore, under the Homelessness Code of Guidance (the Code), was exempt from the six-week rule.
    • Most of its emergency accommodation was of a studio type and, whilst this was not ideal, Ms Y was not treated any less favourably than other households in the same position.
    • Properties were allocated based on the date of the decision, suitability and availability. In October 2020 there were over 300 households with a decision date earlier than Ms Y’s. Of those, 30 were waiting for a two bedroom property, as she was. At that time, the applicant waiting longest for a two bedroom property had a decision date of March 2019.
    • Its B&B interventions team, which specialises in helping people to find affordable private rented properties, sent Ms Y regular listings of available properties which they could have helped her to secure, but Ms Y did not engage with the team.
28. Ms X was unhappy with the response and made a stage 2 complaint. She said she was not satisfied the Council’s analysis of the situation was legally correct. She pointed out that the Code was guidance, and the paragraphs the Council quoted did not reflect what the law actually said. She explained the exemption applied to non-profit registered providers of social housing. The B&B provider in Ms Y’s case was a “for profit” provider and therefore did not come within the exemption.
29. The Council acknowledged receipt of the stage 2 complaint on 5 August 2021 but did not respond. Ms X complained to us in September 2021. The Council said the lack of response was due to some confusion about which team should be dealing with the case as it involved legal issues. In September, after we contacted the Council, it decided it needed legal advice from external lawyers. It requested advice but its lawyers did not respond. I have seen no evidence the Council followed up on this. As a result, the Council did not send a stage 2 response.
30. In response to my enquiries, the Council provided records to show it accepted Ms Y’s application to join its housing register in band 3, and she was able to bid for properties. Bidding was not successful because there were too many other applicants in the same band that had been waiting longer. Her housing register application was cancelled when she accepted the private rented property in March 2021. It told Ms Y about the cancellation in October 2021 in response to her query about why she was no longer able to bid for properties.
31. The records provided also show the Council sent Ms Y general information about how to find private rented accommodation. I have seen no records that indicate any other properties were seriously considered, apart from the one mentioned at paragraph 18 above. The Council told me its ability to assist Ms Y to find private rented accommodation sooner was restricted by:
    • Ms Y’s mental health in June 2020 when she refused the offer of a property outside the Council’s area; and
    • The benefit cap that affected her ability to afford properties in its area.
32. In response to my enquiries, the Council said that at the time of writing there were 27 other households who had been in B&B accommodation for more than 6 week. It said it was developing a Temporary and Emergency Accommodation Strategy to increase the supply of accommodation to meet housing needs.

My findings

Temporary accommodation

33. The Council accepted it had a duty to provide interim accommodation as Ms Y had a priority need because she had a dependent son. Interim accommodation must be suitable for the household. The Council provided bed and breakfast (B&B) accommodation. The law says B&B accommodation can only be used for families where there is no other accommodation available and for no more than six weeks. On this basis, the accommodation was likely to have been suitable in June 2020, given the general shortage of accommodation and the additional pressures resulting from the COVID-19 pandemic at that time.
34. The Council accepted it owed a full housing duty in late July. Its letter said it had checked the accommodation provided remained suitable for Ms Y’s needs. I have seen no evidence it did so. This was fault.
35. If it had checked, it may have identified the accommodation was no longer suitable, for example, because Ms Y was sharing with her son, and they had no private bathroom to change in.
36. It would also have identified that Ms Y had been in B&B accommodation for more than 6 weeks. Although the time limit for B&B accommodation does not apply to accommodation owned by a council, or a non-profit registered provider of social housing, the provider in this case was a “for profit” provider so the exception did not apply. The Council was therefore wrong to suggest the exception did apply in its stage 1 complaint response and this was fault
37. Having established the temporary accommodation was no longer suitable, the Council should have found her alternative temporary accommodation.
38. Ms Y and X suffered a significant injustice as a result of the Council’s failings as they remained in unsuitable accommodation for a further eight months until the Council discharged its housing duty in late March 2021. The injustice was aggravated by the need to share facilities with other families, who kept on changing, during the COVID-19 pandemic.

Homelessness assistance

39. The Council accepted a main housing duty in July 2020. This required it to assist Ms Y to find suitable accommodation. Although it provided her with general information about how to find private rented accommodation, I have not seen evidence it was proactive in helping her to find accommodation between July 2020 and February 2021 when Ms X became involved.
40. By late July 2020, the property market was opening up again after the government relaxed COVID-19 restrictions. Therefore, it was probably possible for the Council to assist Ms Y to find private rented accommodation after accepting the main housing duty.
41. It is unclear when it sent Ms Y listings of possible private rented properties but the emails I have seen do not indicate the Council provided her with advice or support beyond sending the lists. The Council was aware Ms Y was vulnerable and identified in June 2020 that she may have mental health issues as a result of her history. Therefore, I consider the Council should have provided more support to assist her to find suitable accommodation. The failure to do so was fault.
42. As a result of the fault, Ms Y remained in unsuitable accommodation for longer than she should have done. I cannot say how quickly she might have found accommodation but for the fault. However, I note the Council identified private rented accommodation within two months of Ms X becoming involved.
43. The Council issued a personalised housing plan (PHP) in June 2020. I have seen no evidence it reviewed and updated the PHP. The failure to do so was further fault.

Housing register application

44. Ms Y has not complained about the housing register application. However, I note this was cancelled in March 2021 when the Council discharged its homelessness duty. I have seen no record the Council told Ms Y that this meant she was no longer eligible for its housing register. It did not do so until October 2021, in response to her query about being unable to bid. The failure to write to her to explain the housing register application had ended and the reasons for that, was fault. This caused uncertainty and confusion for Ms Y.

Complaints handling

45. Ms X complained in mid-May. On balance, I find the Council did respond on 15 July 2021, although I accept Ms X did not receive it. This was within the 20 working days set out in its complaints policy. When Ms X contacted it to say she had not received a response, the Council immediately sent a further copy. There was no fault at this stage.
46. Ms X then sent a stage 2 complaint in which she said the Council’s interpretation of the 2003 order was wrong. There was then some confusion about whether the complaints team or legal team would respond, following which the Council requested external legal advice that was not received and not followed up. As a result, the Council did not respond to the complaint at stage 2, which was fault.

Back to top

Agreed action

47. The Council will, within one month of the date of the final decision:
    • Apologise to Ms Y for its failure to provide appropriate assistance to secure accommodation for her between July 2020 and February 2021, for the unsuitable accommodation it provided between July 2020 and March 2021, for its failure to tell her it had ended her housing register application, and for its failure to respond to her complaint at stage 2 of its complaints process; and
    • Pay her £2,800 to remedy the injustice caused by eight months in unsuitable B&B accommodation. This is calculated on the basis of £350 per month, in line with our guidance on remedies. This takes into account Ms Y shared a room with her son, as well as sharing facilities with other families, and that this was made worse by the COVID-19 pandemic. On this basis, the case sits at the top of our usual scale.
48. The Council will, within six months of the date of the final decision:
    • Review its policy and process in relation to the provision of bed and breakfast accommodation to families and pregnant applicants, to ensure its approach is in line with the 2003 order, and provide appropriate guidance to relevant staff;
    • Complete the development of its Temporary and Emergency Accommodation Strategy. It should provide a copy and a report on the progress made in increasing the supply of temporary accommodation, particularly for families who would otherwise be in B&B accommodation;
    • Review its complaints process to ensure that a manager is responsible for ensuring a complaint response is sent where input is needed from more than one team, and that requests for legal or other advice are followed up to ensure that complaint responses are issued within the timescale set out in the Council’s complaints policy.

The Council will provide an update on the actions in this paragraph within three months and evidence of the actions taken within six months of the final decision.

Back to top

Final decision

49. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page