Summary: Miss Y complained about the length of time she and her family have spent on the Council’s housing register waiting for an offer of permanent accommodation. She also complained about a delay by the Council in transferring her to suitable alternative temporary accommodation. We have not propose found fault by the Council in the way it has dealt with Miss Y’s housing application. We have found fault in its delay transferring Miss Y to suitable accommodation, causing her injustice. The Council has agreed to remedy this by apologising, making a payment to Miss Y for the time spent in unsuitable accommodation and providing us with evidence of the service improvements it has made.

The complaint

1. The complainant, who I am calling Miss Y, complains the Council failed to provide her and her family with suitable temporary accommodation. She also complains about the delay in offering her permanent accommodation. Miss Y says:

• The Council failed to respond to her complaints about the unsuitability of her temporary accommodation in 2020;
• When it finally inspected the accommodation in September 2020 and accepted the accommodation was unsuitable, it delayed finding her alternative suitable temporary accommodation;
• She and her family were not provided with alternative temporary accommodation until February 2022; and
• Her and her family’s need for permanent accommodation, and the unsuitability of their temporary accommodation, have not been properly considered by the Council and taken into account under its Housing Allocation scheme.

2. Because of the delays, Miss Y says she and her family have had to live in unsuitable temporary accommodation for longer than they should have done. This has affected their wellbeing.

The Ombudsman’s role and powers

3. 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)

• In our published Guidance on Jurisdiction, we explain ‘service failure’ or the ‘failure to provide a service’ is a straightforward, objective and factual test of what happened in any particular set of circumstances, independent of any judgement about the body’s intentions.

4. We may conclude that service failure has occurred, causing a significant injustice to the complainant, in the absence of any specific flaws in the Council’s policy or process, and despite the best endeavours of the Council. 
5. This might be the case where, for example, an otherwise sound system is undermined by the absence of key staff or the inability to recruit to key roles, or where external market factors (such as the availability of temporary accommodation for the homeless) prevent a statutory duty being delivered. In these circumstances we can find fault and recommend a remedy for the injustice that arises. We will identify any external factors that led to the failure of the service.
6. 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)

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How I considered this complaint

7. I spoke to Miss Y, made enquiries of the Council, and read the information Miss Y and the Council provided about the complaint
8. I invited Miss Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Temporary accommodation

9. Temporary accommodation is accommodation provided to homeless applicants as part of a council’s main homelessness duty.
10. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of their household.  (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)
11. Councils must assess whether accommodation is suitable for each household individually. Whether accommodation is suitable will depend on the relevant needs and circumstances of the homeless person and their household. (Homelessness Code of Guidance 17.4 & 17.9)
12. The duty to provide suitable accommodation is immediate, non-deferable, and unqualified. Elkundi, R (On the Application Of) v Birmingham City Council [2022] EWCA Civ 601

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))

The Council’s scheme

14. The Council uses a points system for assessing applications for social housing. Applicants are awarded points to measure their housing priority by their circumstances. The maximum number of points within the scheme is 1,000.
15. The scheme sets out the number of points awarded to the different reasonable preference and additional preference groups.
16. Applicants who became homeless before 9 November 2012 are awarded 650 points and made one direct offer of suitable accommodation. However, if the household moves into the private rented sector, their points award will be increased to 750 and they can bid on properties through the Council’s choice-based lettings system.
17. An applicant assessed as having a high health and wellbeing need may be awarded 1,000 points and will be made one direct offer.
18. Additional preference points for health and wellbeing are not awarded to applicants awarded points as being homeless.

Housing Health and Safety Rating System

19. This is a system for assessing housing hazards and the effect they may have on the health and safety of occupants.
20. If a hazard is serious and immediate risk to a person’s health and safety, it is known as a Category 1 hazard.

What happened

21. I have set out a summary of the key events below. It is not meant to show everything that happened.
22. I am looking at what happened from September 2020 but have set out some background by way of context.
23. In 2011 the Council accepted Miss Y’s homelessness application and decided it owed her the main housing duty. She and her children were placed in temporary accommodation.

September 2020 to October 2020

24. As at September 2020, Miss Y and her family were still living in temporary accommodation. On 7 September Miss Y complained to the Council. She said:

• The temporary accommodation was in a very run-down condition and not suitable for her family;
• The property needed to be renovated and they would need to move out while this was completed; and
• She had been in temporary accommodation for nine years now. One of her children had health conditions but they had been placed in band D despite her appeals.

25. The Council visited the property on 25 September. It accepted the accommodation was unsuitable because of its condition.
26. On 9 October the Council replied to Miss Y’s complaint. It accepted the property required a complete refurbishment to bring it up to an acceptable standard. It listed the defects which included:

• The front door was in a poor state and should be replaced. There was mould on the wall area next to the door;
• Carpeting in all rooms was in a poor state and needed to be cleaned thoroughly or renewed. There were areas where carpet was torn and could pose a trip hazard. This was a health and safety concern;
• Some rooms were in a very poor state. Full redecoration of all rooms was required;
• There were damp issues below windows in the living and dining rooms. Slugs and ants were reported as seen and being treated;
• The kitchen was in a very poor state and needed a complete refurbishment. Work surfaces were damaged. Cupboard units had no doors. There was a defective light fitting and the gas cooker needed to be replaced; and
• Glass in a bedroom door was smashed which was a health and safety concern. There was slight mould in the corners of one bedroom.

27. The Council said it would transfer Miss Y and her family to alternative suitable temporary accommodation while the refurbishment was being carried out. They would be placed on the transfer list pending allocation of new temporary accommodation.

October 2020 to February 2021

28. I have not seen any evidence the Council contacted Miss Y or took any action to transfer her to new suitable temporary accommodation in the period between October 2020 and February 2021.

February 2021 to December 2021

29. On 18 February, Miss Y contacted the Council again. She said the continual cycle of moving from one temporary property to another over the last ten years was having a terrible effect on the psychological and physical well-being of her children, in particular her youngest child because of his disabilities. She said they needed permanent accommodation now.
30. In March the Council placed Miss Y on its transfer list for a move to new suitable temporary accommodation.
31. In November Miss Y’s transfer was prioritised. The Council’s notes said an immediate move was required. The property was in exceptionally poor condition, affecting the mental health and wellbeing of the family. One of the children had special needs and health conditions.

January 2022

32. On 7 January the Council offered Miss Y three- bedroom temporary accommodation out of borough. Miss Y refused this offer because her children attended local schools and she could not move them again.
33. The Council then offered Miss Y another property within its borough. Miss Y said this was not suitable because her youngest child needed bathroom and bedroom facilities on the same level because of his disabilities.
34. Miss Y contacted us about her complaint.

February 2022

35. Miss Y accepted an offer of alternative temporary accommodation within the borough.

The Council’s response to Miss Y’s complaint

36. The Council told us:

• There was no movement with Miss Y’s transfer to suitable temporary accommodation from October 2020 until March 2021 when she was placed on its transfer list. Her transfer was prioritised in November 2021 when the Council says it became aware of Category 1 hazards at her current property;
• Although lockdown restrictions were eased during the period from September 2020 to February 2021, the availability of temporary accommodation was, and remains, limited. This is in part because of Covid-19 polices, including the ban on evictions and the ongoing restructuring of the private rented housing market; and
• It introduced new guidance and procedures in Summer/Autumn 2021 to manage temporary accommodation transfers. The service prioritised households living in accommodation with Category 1 hazards prior to these changes but it is unable to provide written evidence of this.

37. The Council also said, with regard to the time Miss Y and her family have spent in temporary accommodation:

• The average waiting time in temporary accommodation for an offer of a permanent three-bedroom property is 15 years. Miss Y’s application date is 2011. She is one of 400 households with application dates before 2012 who are still living in temporary accommodation. There are a significant number of other families living in temporary accommodation with earlier application dates than Miss Y;
•  Until 11 February 2022 Miss Y had 650 points which is the reasonable preference awarded to main duty applicants residing in temporary accommodation. This group of applicants are made direct offers;
• Miss Y has had 750 points from February 2022. This is on the basis she is a homeless household, owed the main duty and agreed to move into the private sector. Miss Y is now eligible to bid through its choice-based lettings system; and
• Under its allocations scheme additional medical priority is not available to homeless applicants. Medical information may be used to make recommendations about the type of property suitable for Miss Y’s family. But the Council has no record of a request from Miss Y for additional priority on medical grounds.

My findings – was there fault by the Council causing injustice?

Response to Miss Y’s complaint about her temporary accommodation

38. I have not seen any evidence Miss Y complained to the Council about the condition of the property before September 2020.
39. My view is the Council responded promptly to Miss Y’s complaint about the condition of the property in September. It arranged an inspection and confirmed to Miss Y in October 2020 it accepted her temporary accommodation was unsuitable and she would be placed on the transfer list.
40. I do not consider there was fault by the Council in the way it responded to Miss Y’s complaint about the condition of her temporary accommodation.

Delays in placing Miss Y on the transfer list and prioritising her move

41. Although the Council told Miss Y in October 2020, it would place her on the transfer list for a move to suitable temporary accommodation, it did not do this until March 2021. The Council has not provided any explanation for this delay.
42. Although the Council has told us its policy was to prioritise moves for households living in unsuitable accommodation with Category 1 hazards, it did not prioritise Miss Y’s transfer until November 2021, more than a year after it accepted the family needed to move. I consider the Council knew, or should have known from the contents of the inspection report, in September 2020, there were Category 1 hazards at the property.
43. In my view, the Council’s failure to place Miss Y on the transfer list, with priority for a move because of the Category 1 hazards, in October 2020 was fault. Because of this Miss Y and her family continued living in unsuitable accommodation for longer than necessary.

Delay in providing Miss Y with suitable alternative temporary accommodation

44. The Council has explained the difficulties it faces in finding suitable temporary accommodation for applicants within its borough. I recognise the difficulties the Council faces in trying to secure affordable properties in its area.
45. Nevertheless, the law says temporary accommodation must be suitable. The duty is immediate, non-deferable, and unqualified. The Council accepted in September 2020 Miss Y’s temporary accommodation was not suitable. The Council therefore had a legal duty to secure alternative accommodation for the family immediately. It did not do so. This service failure is fault.
46. As a result, Miss Y and her three children continued to live from September 2020 to February 2022 in unsuitable temporary accommodation.
47. Our guidance on remedies recommends a payment of £150-£350 for each month spent in unsuitable accommodation. The figure we consider appropriate is based on the impact on the complainant and members of their household, taking account of such factors as disrepair, any needs arising from a disability or particular vulnerability.
48. The inspection report confirms Miss Y’s accommodation was in a serious state of disrepair, with Category 1 hazards. Her son had special needs and health difficulties. On this basis I consider the monthly figure should be at the highest end of the scale.

The amount of time Miss Y has spent in temporary accommodation

49. The Council has explained the basis on which it awarded Miss Y’s points for reasonable preference. It has also provided information about waiting times in temporary accommodation for other families in the same circumstances as Miss Y and her family.
50. I understand the difficulties Miss Y and her family face living in temporary accommodation and her concern to move to permanent accommodation. But based on the evidence I have seen, my view is the Council has properly assessed Miss Y’s housing application in accordance with its allocations scheme. I do not consider there has been fault by the Council in the way it has dealt with Miss Y’s housing application.

Agreed action

51. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:

• apologise to Miss Y for its faults, failures and delays in placing her on the transfer list, prioritising her move and providing her with suitable temporary accommodation;
• pay Miss Y £5.950 for the time she and her children spent in unsuitable accommodation (£350 a month for 17 months from September 2020 to February 2022); and
• provide us with details of the new guidance and procedures for managing temporary accommodation transfers it put in place in Summer/Autumn 2021.

52. The Council should provide us with evidence it has completed the above actions.

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Final decision

53. I have completed my investigation of this complaint. I have not found fault by the Council in the way it dealt with Miss Y’s housing application. I have found fault in its delay transferring her to suitable temporary accommodation, causing injustice. The Council has agreed to carry out the above actions as a suitable way to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman