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Royal Borough of Kensington & Chelsea (21 011 447)

Category : Housing > Homelessness

Decision : Upheld

Decision date : 10 May 2022

The Ombudsman's final decision:

Summary: The Council’s failure to consider whether Mr X’s physical health means he needs a property with a bath is fault. The Council is also at fault for failing to provide Mr X with suitable temporary accommodation for 10 months. However, Mr X contributed to this by not bidding on the housing register. The Council has agreed to apologise, assess whether Mr X needs a bath, and pay him £850.

The complaint

  1. Mr X complains that the Council failed to provide suitable temporary accommodation despite accepting that his accommodation was unsuitable in April 2021. In particular, Mr X says the Council failed to:
    • properly assess and establish his needs in relation to accommodation.
    • consider whether it could meet his needs using a property from its own housing stock.
    • identify any aids, adaptations, or compromises to make an otherwise unsuitable property more suitable.
    • deal with his complaint in line with its complaints policy.
  2. As a result, Mr X says he remains in unsuitable accommodation which has a negative impact on his physical and mental health.

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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 Mr X and considered the information he provided.
  2. I made written enquiries of the Council and considered its response along with relevant law and guidance.
  3. I referred to the Ombudsman’s Guidance of Remedies, a copy of which can be found on our website.
  4. Mr X and the organisation 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. Councils must assess whether accommodation is suitable for each household individually. Whether accommodation is suitable will depend on the relevant needs, requirements and circumstances of the homeless person and their household. (Homelessness Code of Guidance 17.4 & 17.9)
  4. 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)

Background

  1. Mr X is homeless. The Council accepted a duty to him in 2017. Since then, he has lived in temporary accommodation.
  2. Mr X has disabilities. These disabilities mean Mr X has specific accommodation needs. Mr X’s disabilities also affect his communication.
  3. Mr X moved into temporary accommodation in a studio flat in 2018. At that time, the Council considered it was suitable to meet Mr X’s needs.
  4. In April 2021, the Council decided that Mr X needed a one-bedroom flat. This meant his temporary accommodation was unsuitable.
  5. In February 2022, Mr X moved into alternative temporary accommodation, a one-bedroom flat. The Council says Mr X has asked to move back to his previous accommodation, despite it being unsuitable.
  6. In response to Mr X’s complaint, the Council agreed:
    • Not to end its main duty to Mr X if he refuses an offer of housing
    • To consider any private rented properties Mr X identifies as possible temporary accommodation
  7. It also offered him £200 as a remedy for the impact the lengthy process, which it accepted was not sufficiently personalised, had on Mr X.

Accommodation needs

  1. Based on its medical assessment and suitability review, the Council considers Mr X needs:
    • one-bedroom self-contained
    • Maximum second floor
    • In the local area
    • With or without a lift
  2. Mr X says he needs:
    • two-bedroom self-contained
    • Ground floor
    • In specific parts of the area
    • A garden
    • A bath
    • High enough ceilings to accommodate his height
    • Thick walls to limit the spread of sound
  3. Mr X provided the Council with supporting medical information from the professionals treating him.
  4. In considering whether Mr X needs a garden, the records show the Council considered the information Mr X provided, along with its own medical assessment, and decided this was not necessary. The Ombudsman cannot question the merits of a decision made without fault. There is no evidence the Council failed to consider relevant information or relied on irrelevant information. Therefore, I find no fault in how the Council decided Mr X did not need a garden.
  5. Mr X told the Council that he would benefit from a two-bedroom property. This is both because it would allow him more space and because he has a Personal Assistant who supports him with his daily living needs. The Council decided Mr X did not need a two-bedroom property. This is because although he has care and support needs, there is no evidence Mr X needs a carer to stay overnight. There is no fault in how the Council decided Mr X did not need a two-bedroom property.
  6. Mr X says his physical health conditions mean that he needs a property with a bath. This is supported by information from Mr X’s GP in a letter in March 2021.
  7. The Council’s Suitability Assessment, completed in May, only asks whether Mr X can use a bath, not whether he has any difficulties using a shower.
  8. The Council’s own medical assessment, from September, only considers Mr X’s mental health needs. It is not concerned with his physical health.
  9. I therefore find that the Council has not properly considered whether Mr X’s physical health means he needs a property with a bath. This is fault.
  10. As a result, the Council has also not considered whether it could provide any aids or adaptations, such as grab-rails, to improve his ability to use the shower. This is also fault.

Providing alternative accommodation

  1. Mr X says the Council has not considered whether it could use a property from its own housing stock to provide him suitable temporary accommodation.
  2. The Council’s allocations scheme awards an extra 900 points to applicants in unsuitable temporary accommodation if the Council has not provided suitable alternative accommodation after three months.
  3. In effect, this means most homeless applicants in unsuitable temporary accommodation for more than three months will have 1000 points on the housing register. This places them significantly ahead of most other applicants on the register seeking an offer of permanent social housing.
  4. In the circumstances, I consider this to be a suitable alternative to the Council using its own housing stock as temporary accommodation. It allows homeless applicants in unsuitable temporary accommodation the best opportunity to secure housing that is not only suitable, but also permanent.
  5. However, the law says temporary accommodation must be suitable. The Council’s review found that it is not. The Council therefore has a legal duty to secure alternative accommodation for Mr X. It did not do so for almost a year. This is fault.

Complaint handling

  1. Mr X complained to the Council in June 2021. The Council responded on 2 August. This is 35 working days. The Council’s policy says it will respond to stage one complaints within 10 working days, up to a maximum of 20 working days if necessary. Therefore, the Council delayed responding to Mr X’s complaint by at least three weeks. This is fault.
  2. The Council’s response at stage one also said that Mr X had provided no medical evidence that he needed a bath. This is inaccurate. Mr X’s GP wrote a letter explaining why he needed a bath. Failure to consider this was also fault.
  3. Mr X asked the Council to consider his complaint at stage two of its process on 6 August. The Council sent its response on 1 October, 40 working days later. The Council’s policy says it will respond to stage two complaints within 20 working days, up to a maximum of 30 working days if necessary. Therefore, the Council delayed responding to Mr X’s complaint by at least two weeks. This is fault.
  4. However, the Council did arrange a meeting with Mr X in September, 27 working days after he made his stage two complaint.

Injustice

  1. In summary, I have found fault with the Council for:
    • Failing to consider whether Mr X’s physical health condition means he needs a property with a bath
    • Failing to consider whether it can provide any temporary aids or adaptations to support Mr X
    • Delay providing Mr X with suitable temporary accommodation
    • Delay in responding to Mr X’s complaints
  2. When we find fault, we must then consider whether the fault has caused the complainant an injustice. In doing so, we also look at whether the complainant’s own actions have contributed to the injustice.
  3. The Council’s failure to consider whether Mr X needs a property with bath and whether it can provide any aids means there is uncertainty about what kind of property will meet Mr X’s needs. This is an injustice to Mr X.
  4. The Council’s delay responding to Mr X’s complaint at stage one of its process caused Mr X avoidable frustration. The nature of his disability means that this was particularly distressing for him. This is an injustice to Mr X.
  5. The Council also delayed responding to Mr X at stage two of the complaints process. In this case, I find that the Council having arranged a meeting with Mr X in his home mitigated some injustice caused by the delay. However, it added more time and frustration to an already protracted process. This is an injustice to Mr X.
  6. Mr X lived in unsuitable temporary accommodation from April 2021 until February 2022. This is an injustice to Mr X.
  7. However, Mr X is very high on the list for a one-bedroom property. The records show that he is not bidding often. Since April 2021, the Council has advertised 25 properties that have one bedroom, are at or below the second floor, and are in Mr X’s preferred post-code areas. In the same period, Mr X has only bid on 3 properties. Of those properties, the lowest Mr X placed was fourth.
  8. Since the Council has agreed not to end its duty to Mr X if he refuses an offer, there is no detriment to him in bidding on as many properties as might meet his needs. He can then view the properties and decide whether to accept them.
  9. Given the number of properties advertised and Mr X’s position on the list, I consider it likely he would have received more than one offer since the Council awarded extra points in August 2021. Mr X’s failure to bid actively therefore contributed to the delay in securing suitable accommodation.

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Agreed action

  1. To remedy the injustice to Mr X from the faults I have identified, the Council should:
    • Apologise to Mr X
    • Assess whether Mr X’s physical health means he needs a property with a bath
    • Pay Mr £150 a month for his time in unsuitable accommodation between April and August 2021, for a total of £600
    • Pay Mr X £250 in recognition of his avoidable uncertainty and distress.
  2. The Council should take this action within four weeks 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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