Summary: Miss X complains the Council failed to make sure the managing agent of her temporary accommodation provided a satisfactory repairs service. She says, due to persistent issues with her immersion heater and the managing agent’s failure to resolve these, she received a very high energy bill. The Council has already accepted some fault around the handling of the disrepair issues and its handling of Miss X’s complaint. However, we find the Council failed to assess the affordability of the temporary accommodation. We find the Council has suitably remedied the injustice caused by delays in the complaint handling. However, the Council has also agreed to make Miss X a higher payment than the one offered for the disrepair issues and apologise to her to remedy the injustice she experienced. The Council has agreed to carry out several related service improvements.

The complaint

1. The complainant, who I shall refer to here as Miss X, was in temporary accommodation provided by the Council between April 2020 and December 2021. This was because the Council had accepted the main housing duty towards her.
2. Miss X complains:
1. between December 2020 and June 2021 she received a large electricity bill of over £1600 for the one-bedroom property. She complains the Council failed to resolve an issue with the property’s hot water immersion heater, which led to the high bill. Miss X says the Council’s managing agent, Managing Agent B, provided an unsatisfactory repairs service and had to carry out repeat visits before the faults were adequately resolved;
2. the Council failed to assess the affordability of the temporary accommodation; and,
3. the Council delayed in responding to her complaint.
3. Miss X says that she has accrued a substantial debt because of the Council’s failure to repair the hot water immersion heater. She says that she receives Universal Credit and she is unable to pay the high charge. Miss X says the situation has caused her severe stress and distress.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I spoke with Miss X about her complaint. I considered the information that Miss X and the Council sent to me.
7. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

What should have happened

The main homelessness duty

8. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need the council has a duty to secure that suitable accommodation is available for their occupation. But there is no duty on councils to provide a permanent secure or assured tenancy. The accommodation provided under the main homelessness duty is called temporary accommodation.
9. Councils will not owe the main housing duty to applicants who have turned down a suitable final accommodation offer or a Housing Act Part 6 offer made during the relief stage, or if a council has given them notice under section 193B(2) due to their deliberate and unreasonable refusal to co-operate. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)

Suitability of accommodation

10. 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)
11. Matters which councils must consider when assessing the suitability of accommodation include:

• the standards of the accommodation
• the affordability of the property. In particular, councils must take account of: the financial resources available to the applicant (all forms of income, including, but not limited to salary, fees, other remuneration and social security benefits), the costs of the accommodation (including, rent due) and “other reasonable living expenses”.

(Homelessness (Suitability of Accommodation) Order 1996, Section 210(2), and Homelessness Code of Guidance 17.11 and 17.46-17.47)

Review rights

12. Homeless applicants may request a review within 21 days of being notified of certain decisions. (Housing Act 1996, section 202). This includes council decisions about the suitability of accommodation offered to the applicant after a homelessness duty has been accepted. Applicants can request a review of the suitability of accommodation whether or not they have accepted the offer.
13. Councils have a continuing duty to keep the suitability of accommodation under review. R(B) v Redbridge LBC [2019] EWHC 250 (Admin)
14. An applicant may ask a council to reconsider the suitability of their current temporary accommodation if their circumstances change (for example, if their medical or disability-related needs change or there is an increase in the size of the household). An officer should then make a suitability decision. The officer may agree the accommodation is unsuitable and put the applicant on a transfer list. In that case, the applicant does not need to request a section 202 review.
15. However, if the officer decides the accommodation is suitable, that decision must be put in writing and the applicant must be notified of the right to request a section 202 review. The applicant can then use the section 202 review procedure to challenge the decision on suitability.

What happened

16. In April 2020, Miss X accepted an offer of temporary accommodation from the Council. She moved to the property, Property A, with her newborn baby. The Council had arranged the temporary accommodation through a managing agent, Managing Agent B.
17. Two weeks later, Miss X contacted the Council. She said there was a leak with the hot water immersion heater and it was running continuously. Miss X attached video footage, which showed the loud noise the immersion heater was making a significant amount of condensation above it on the ceiling.
18. A Council Repair and Maintenance Officer contacted Managing Agent B and asked it to arrange a plumber to attend as soon as possible.
19. Managing Agent B said it would follow up with Miss X’s landlord to see if there was an issue and anything could be done. The Council Repair and Maintenance Officer replied to flag again that there was a leak at the back of the tank.
20. In November, Miss X complained to the Council. She said:

• she had been tirelessly raising disrepair issues with Managing Agency B since she moved in.
• in mid-April 2020, she reported a loud noise from the hot water immersion heater to Managing Agent B and the Council at the time of viewing Property A, but the issue was unresolved when she moved in.
• Managing Agent B carried out an unsatisfactory repair to a broken toilet, which led to a blocked toilet and the complete repair took two weeks to resolve.
• in mid-May, Managing Agent B took two weeks to repair a broken window, which caused her stress and anxiety as the window was not secure.
• in early November, Miss X reported the loud noise from the hot water immersion heater, along with overheating, smoke and water leaking from it. She said it took Managing Agent B several days to replace the thermostat. Miss X said a plumber repaired the thermostat, which had stopped working, and told her the immersion heater could have exploded if Miss X had not turned it off.
• in mid-November, it took Managing Agent B two weeks to replace a broken washing machine once it found a leaking pipe.

21. In early December, the Council replied to Miss X. The Council asked her if she was requesting a transfer to alternative temporary accommodation and whether there were any outstanding repair issues.
22. A few weeks later, Miss X replied to say she would like to move to another property as she did not feel Property A was safe for her and her young child. Miss X said the extractor fans in the kitchen and main intercom were broken; there was a hole in the bathtub; and the seals on the fridge no longer worked. Miss X said she had become depressed and tired of continually having to chase Managing Agent B to fix the issues. She asked the Council to look into these issues and let her know what could be done to help.
23. The Council replied to say Miss X’s repair requests had been forwarded to its housing inspectors’ team and Managing Agent B. It said Miss X’s transfer request would be considered by a senior housing officer.
24. On 11 October 2021, Miss X complained to the Council again. She said that she had received an electricity bill of £1,001 for the period from December 2020 to June 2021. Miss X said:

• her energy provider told her the immersion heater was effectively running all day long to keep the water warm, which was why her bill was so high. Miss X asked the Council why it had not considered the higher utility costs with such a property when assessing the affordability of Property A;
• between April and November 2020, she had experienced repeated issues with the immersion heater. It took until early November for the thermostat to be replaced, which seemed to resolve the issues temporarily. But, in late July 2021, the immersion heater overheated again and stopped working leaving her without hot water for two days. Miss X asked the Council to look into why the issue kept occurring.
• she was having to continuously chase Managing Agent B to complete repairs. Miss X said she told Managing Agency B in March 2021 that her oven was not working, but she was still without a working oven and had received no further contact.
• she was under immense stress due to the pressure to pay the high energy bill and this was causing her anxiety. Miss X asked the Council to assist her with her housing options.

25. A few days later, Miss X contacted her local Councillor who raised a member’s enquiry with the Council about her complaint.
26. On 18 October, internal emails show the Council considered Miss X’s situation and decided a transfer to a different temporary accommodation should take place. A Council Repairs and Maintenance Officer recommended a move to a property where bills were included in the rent.
27. The same day, a Council Repairs and Maintenance Officer spoke with Miss X. The Officer said he was unable to say why the energy bill from December 2020 to July 2021 was so high (£1,001.18). He recommended transferring Miss X to alternative temporary accommodation.
28. On 19 October, the Council placed Miss X on the transfer list for alternative temporary accommodation. The recorded reason for this was: “Heating/hot water system in flat too costly”.
29. In mid-November, internal emails from the Council show a Council Temporary Accommodation Services Officer contacted Managing Agent B and asked it to look into the condition of the immersion heater. This was because Miss X said there was no timer where she could regulate the supply of hot water, which contributed to the high utility cost, and the boiler was too old and not energy efficient. Managing Agent B said it would send a contractor to check whether the immersion heater should be replaced.
30. On 23 November, the Council offered Miss X alternative temporary accommodation.
31. A few days later, the Council chased Managing Agent B about the energy bill and immersion heater issues as Miss X said she had not heard anything.
32. In December, Miss X told the Council that she was unable to move to her alternative temporary accommodation because the boiler was not working.
33. On 10 December, a Council Officer in homelessness prevention spoke with Miss X. Following the call, the Council Officer sent Miss X information on possible grants to help manage energy-related debts.
34. On the same day, the Managing Agent also attended Property A to repair an ongoing fault with the immersion heater that Miss X had reported on 4 December.
35. On 13 December, Miss X complained again to the Council about issues with the immersion heater and Managing Agent B’s failure to inspect this.
36. Several days later, the Council chased Managing Agent B for information it required about Miss X’s complaint. The Council asked Managing Agent B to:

• report back on its contractor’s finding from their visits on 6 and 10 December
• send a copy of the contractor’s report and written confirmation that the hot water system was fit for purpose and did not need replacing
• send a copy of the hot water system service record and, if necessary, a new electrical certificate
• send photographs of Property A’s heaters and hot water system

37. The Council noted that Managing Agent B failed to visit Miss X’s home on 23 November.
38. On 20 December, Managing Agent B replied to the Council to say it had completed all repairs referred to in Miss X’s complaint from November 2020. It said the boiler issue was resolved from November 2020 until 29 July 2021 when Miss X reported a further issue. Managing Agent B said the bill sounded fair as there was no gas in the property meaning all facilities ran on electricity.
39. On 23 December, Miss X moved to the alternative temporary accommodation.
40. In January 2022, the Council sent Miss X its stage one complaint response. It said:

• it apologised for the delay in responding to her complaint from October 2021 and that Miss X had to frequently chase the Council for a reply. The Council said it would reply separately to the enquiry made by Miss X’s local MP.
• Miss X’s complaint restated the issues raised in her complaint from November 2020. It said, by the time of the November 2020 complaint, most of the disrepair issues had been resolved with the exception of her concerns about the standard of the accommodation. The Council said its inspection report and photographs from early April 2020 and before Miss X moved in showed Property A was of a suitable standard and none of the repairs complained of were present. It said it received a video recording from Miss X of the hot water tank on 23 April 2020. It said the issues were resolved towards the end of April 2020.
• Miss X remained concerned about future bills. In October 2021, a Council Officer had recommended transferring Miss X to alternative temporary accommodation. At this point, the hot water immersion heater seemed to be functioning as Miss X had reported no further issues with it since 29 July 2021.
• However, in early December 2021, Miss X reported further issues with the hot water immersion heater, which took a week for Managing Agent B to resolve.
• it upheld Miss X’s complaint that Managing Agent B, at times, failed to deliver repairs to the standard expected and failed to sufficiently communicate with Miss X about the status of repairs. It acknowledged Miss X went to time and trouble repeatedly pursuing Managing Agent B to complete repairs.
• following its investigations, it was unable to establish whether and to what extent the hot water immersion heater issue affected Miss X’s bill. It said the bill of £1,001.18 reflected Miss X’s usage to some extent. The Council said the higher bill was affected by the energy provider sending a revised bill based on meter readings, as opposed to estimates, and the fact Miss X’s standard tariff with the energy provider was expensive. But, the Council recognised the issues with the hot water immersion heater caused her distress and offered £250 to remedy this.
• Miss X had asked why the affordability of utilities had not been considered by the Council when offering Property A. The Council explained, when assessing the suitability of temporary accommodation, it was not required to consider the affordability of energy bills at the property. Rather, it must consider whether the rent is affordable and look at, for example, whether the housing costs element of universal credit or local housing allowance would cover the rent in full.
• in December 2021, a Council Officer spoke with Miss X about managing her energy debt and emailed her details of energy suppliers who possibly had grants available for customers who were struggling to pay their charges.

41. A few days later, the Council replied to the members enquiry from Miss X’s Councillor. It said:

• its inspection prior to Miss X moving to Property A showed the property was not in a state of disrepair and the issues Miss X raised were not present.
• However, during Miss X’s time at Property A, she experienced various disrepair issues, including with the hot water immersion heater. The Council found there were instances when Managing Agent B should have resolved the disrepair issues sooner and provided more frequent communication with Miss X about the status of repairs. The Council said it had expressed concern to Managing Agent B around customer service delivery and said “repairs must always be completed within a reasonable timescale and to a satisfactory standard”.
• the Council had been unable to confirm that the water immersion heater alone was the sole contributing factor to the high bill.

42. Miss X asked the Council to escalate her complaint. She said the Council should accept full responsibility for the high energy bill.
43. In April, Miss X complained to the Ombudsman.
44. In May 2022, the Council sent Miss X its stage two complaint response. The Council said:

• it accepted Miss X’s request for a stage two response should have been registered on 19 January 2022, but the Council failed to do this until 27 April. It apologised and offered a further £250 to remedy the uncertainty caused; and
• it did not accept it was responsible for the high energy bill. However, its offer of £250 remained as a gesture of goodwill and to provide some assistance in meeting the cost.

Analysis – was there fault by the Council causing injustice?

Managing Agent B’s repairs services

45. As explained above, Managing Agent B was acting on behalf of the Council in providing Miss X temporary accommodation at Property A. Therefore, the Council is responsible for the actions of the provider.
46. In April 2020, the Council carried out an inspection of Property A to assess whether it met its minimum property standards. I asked the Council to send me a copy of the inspection report. Of relevance to this complaint, the report shows:

• under the section “Boiler location”, this was left blank;
• the question “the heating system has a timer and or/thermostat” was unanswered; and,
• the “hot water system type” was left blank.

47. Based on the evidence I have seen, the Council failed to complete these initial checks of Property A, which relate to Miss X’s complaint that there were issues with the hot water immersion heater when she moved to the property. This is fault. I am unable to say, based on the records I have seen, whether the Council had made sufficient checks the immersion heater met its minimum property standards.
48. In the Council’s complaint responses to Miss X and response to its members enquiry from Miss X’s local Councillor, it accepted Miss X experienced repeated issues with the immersion heater. It accepted Miss X had experienced poor communication and an unsatisfactory repair service from Managing Agent B. This is fault (part a of the complaint). Following its investigations, however, the Council said it was unable to establish whether and to what extent the hot water immersion heater issue affected Miss X’s bill of £1001.
49. I must now consider whether the Council has suitably remedied any fault causing injustice here. After considering the evidence available to me, I find Miss X experienced repeated issues with the boiler. It is my understanding that, between April and November 2020, there were periods when Miss X was unable to turn the boiler off and there were issues with the thermostat. During this time, Miss X’s energy bills were based on estimates. However, she received a high bill following this period when she began providing the energy provider with meter readings. In my view, on balance, it is likely some of the high bill is linked to faults with the immersion heater. This seems in line with the Council’s overall assessment of this issue and the fault it attributed to Managing Agent B’s repair service.
50. Miss X says the final bill came to almost £1600. However, I have not received any evidence confirming this figure for the time period in question. I have, therefore, considered the total figure of £1001 contained in a bill considered by the Council.
51. I find, however, that it would not be fair to recommend the Council make a payment that covers the bill in full given it includes electricity consumed from all appliances and facilities, not just hot water. I also understand that charges were higher as Miss X was on a higher tariff during the relevant time period. I am, therefore, unable to clearly say what portion of the bill is due to any fault with the immersion heater.
52. The Council offered Miss X a payment of £250 to provide some assistance in meeting the cost of the bill and in recognition of the unsatisfactory management of disrepairs and the worry and inconvenience caused. However, I do not find this sufficiently remedies the fault causing injustice in Miss X’s case. This is based on the following:

• the Council missed several opportunities to review the suitability of Miss X’s temporary accommodation in terms of the standard of the accommodation. In November and December 2020, Miss X requested what I consider to be a review of the suitability of Property A. She said she was at breaking point as she felt Property A was unsafe due to the unacceptable conditions. Miss X said she was constantly having to follow up on repairs with Managing Agent B. She asked the Council what it could do about her temporary accommodation as she was unable to continue living in Property A. Miss X said there were various outstanding repairs with the property and very little functioned as it should do. However, the Council told me it did not carry out a review. This is fault. Miss X missed out on the opportunity to have a suitability review and the review rights associated with this.
• In my view, if the Council had promptly carried out a suitability review based on the disrepair issues Miss X had raised, this would likely have led to the Council inspecting the property or ensuring Managing Agent B provided sufficient evidence about whether the hot water system was fit for purpose and did not need replacing. However, the Council did not ask Managing Agent B to carry out such an inspection until mid-November 2021 and Managing Agent B failed to report back on the key questions the Council raised. Managing Agent B also failed to provide suitable records of inspections or to demonstrate the immersion heater was repaired acceptably each time. The Council failed to inspect Miss X’s property at any point between April 2020 and December 2021 while she continuously raised issues with the Council. This is fault. This caused Miss X significant distress and uncertainty about what action, if any, the Council would take to ensure repairs were carried out to a satisfactory level.
• as explained above, the Council has a continuing duty to ensure the suitability of temporary accommodation and to keep this under review. To be suitable, the accommodation must be in a decent state of repair and free from hazards. The Council told me Miss X provided it with the dates and details of the faults with the hot water immersion heater that she had reported to Managing Agent B. She provided evidence of Managing Agent B failing to keep repair appointments and her repeatedly raising the same issues with the Agent. The Council told me Managing Agent B failed to provide evidence of any inspection reports produced following Miss X’s reports of disrepair between April 2020 and December 2021. We expect robust record keeping on the action taken by the Council and managing agents acting on its behalf in response to disrepair issues in temporary accommodation.
• I find it is likely, on balance, that some of the fault identified here was caused by the Council failing to have a written repairs policy for temporary accommodation that it has arranged to be provided through a third party managing agent, such as Managing Agent B. Under this type of arrangement, the Council told me it expects managing agents to have in place a responsive repairs schedule classifying categories of repairs and time scales to repair, which should be made available to the Council upon request. However, the Council said it was unable to locate such a policy from Managing Agents B. This is fault. When the Council has outsourced the provision of temporary accommodation in this way, it must retain oversight of how the managing agent responds to disrepair issues. The Council should have ensured there was a disrepairs policy in place with Managing Agent B so that it was clear to homelessness applicants, like Miss X, when they can expect repairs to be carried out and the action the Council would take if Managing Agent B failed to complete any repairs. I have recommended a service improvement around this below.
• Finally, I asked the Council to provide a copy of the Council’s assessment of the suitability of Miss X’s former temporary accommodation before Miss X moved to Property A. The Council told me the suitability assessment was carried out through its inspection. I have considered the inspection report from April 2020. While, as explained above, this does consider the condition of the property, this does not provide evidence showing how the Council assessed the affordability of the property. When securing temporary accommodation for a homeless applicant, the Council must be satisfied the accommodation is suitable for the needs of the applicant and members of their household, which includes considering affordability. However, the Council failed to provide evidence showing how it assessed the affordability of Property A when offering Miss X the property. It is my understanding that the Council failed to consider the affordability of Property A until October 2021 when Miss X raised the issues with the energy bill. This is fault. I cannot say whether this would have led to the Council finding the property was not affordable if the Council had carried out this assessment. But, this fault meant Miss X missed out on a clear suitability assessment of Property A (part b of the complaint).

53. Due to the significant fault causing injustice identified above (regarding parts a and b of the complaint), and given this occurred over a prolonged period of time (approximately twenty months covering April 2020 to December 2021), I consider a payment of £500 is fair and justified. This is above our usual range of £100 to £300. I have considered the Ombudsman’s published guidance on remedies when recommending this payment.

Complaint handling

54. Miss X first complained to the Council on 30 November 2020. In response to my questions, the Council said this complaint was received by the Temporary Allocations Service, but it was not dealt with as a formal complaint and the Council found no substantive response. This is fault. This caused Miss X uncertainty about how the Council would respond to her complaint under its complaints procedure and she missed an early opportunity for the Council to respond to her complaint. I have recommended the Council apologise to Miss X to remedy the injustice caused here.
55. In its complaint responses to Miss X, the Council accepted it delayed in responding to her subsequent complaints from October 2021 and January 2022. It apologised to Miss X and offered a payment of £250 to recognise the uncertainty caused by delays in its complaint handling. I find the Council has already suitably remedied the fault causing injustice here.
56. Based on the above findings of fault, I uphold part c of Miss X’s complaint.

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Agreed action

57. Within four weeks of my final decision, the Council has agreed to:
1. apologise in writing to Miss X for the fault causing injustice related to: the missed opportunity to promptly respond to her complaint in November 2020 and the missed opportunities to review the suitability of Property A and assess its affordability when offering the property;
2. make Miss X a payment of £500 to remedy the significant distress and stress caused by the unsatisfactory management of disrepairs and missed opportunities to inspect and review the suitability and affordability of Property A. This is instead of the £250 offered by the Council; and,
3. make Miss X the payment of £250 offered by the Council to remedy the uncertainty and time and trouble she was put to by the Council’s delays in responding to her complaint. I consider this payment suitably remedies the injustice caused here.
58. I have considered the Ombudsman’s published guidance on remedies when recommending the above payments
59. Within three months of my final decision, the Council has also agreed to:

• establish a responsive repairs schedule classifying categories of repairs and time scales to repair with Managing Agent B. This should provide clear guidance to Council officers on how to handle reports of persistent disrepair issues with Managing Agent B from homeless applicants, including details of when to consider inspecting the property. The Council should consider publishing this repairs policy on its website so it is easily accessible to relevant homeless applicants and report back on this;
• circulate a reminder to relevant staff on the need to retain robust records of suitability assessments of temporary accommodation, including with regards to affordability; and,
• circulate a reminder to relevant staff on the duty to keep the suitability of temporary accommodation under review and to respond to suitability review requests in writing with clear reasons for any decision that is made. This reminder should clearly set out the circumstances when the Council must notify the applicant of their right to request a section 202 review of a suitability decision.

60. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

61. I have completed my investigation.
62. I have decided to uphold parts a to c of Miss X’s complaint. This is because I have seen evidence of fault by the Council causing injustice. The Council has already partly remedied the injustice caused. The above additional recommendations are suitable ways for the Council to suitably remedy the injustice, which it has agreed to.

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Investigator's decision on behalf of the Ombudsman