Summary: The Council’s delay conducting a statutory homelessness review and failure to provide suitable temporary accommodation was fault. Ms X and her children remain in overcrowded accommodation and missed an offer of housing, causing them injustice. The Council has agreed to apologise, pay Ms X £10,500, offer her a property, and act to improve its services.

The complaint

1. Ms X complains about the Council’s handling of her homelessness. In particular, she says the Council:
1. failed to provide suitable temporary accommodation despite accepting in 2019 that she is statutorily overcrowded.
2. took over a year to deal with a statutory review request about the suitability of an offer of accommodation.
3. failed to consider all the medical information she provided.
4. wrongly determined her priority on the housing register.
2. As a result, Ms X and her children remain in an overcrowded and unsuitable property. This is causing them significant stress.

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What I have investigated

3. Ms X said she first complained about the overcrowding in 2009 when she had another child. This part of the complaint is late.
4. 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)
5. There is no good reason Ms X could not have complained to us sooner. Therefore, I have only investigated matters from March 2018.

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The Ombudsman’s role and powers

6. 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)
7. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
8. 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

9. I spoke to Ms X about her complaint and considered the information she provided.
10. I made written enquiries of the Council. I considered its response along with relevant law, guidance and Council policies, including:
• The Housing Act 1996, as amended
• The Homelessness Code of Guidance for Local Authorities
• Allocation of accommodation: guidance for local authorities
• The Council’s Housing Allocations Scheme
11. I referred to the Ombudsman’s Guidance on Remedies, a copy of which is available on our website.
12. Ms 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

13. Temporary accommodation is accommodation provided to homeless applicants as part of a council’s main homelessness duty.
14. 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)
15. 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)
16. 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

Statutory reviews

17. 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. This includes the suitability of accommodation provided under the main homelessness duty or offered to end the duty. (Housing Act 1996, s202)
18. Councils must complete reviews of these decisions within eight weeks of receiving the review request. This period can be extended but only if the applicant agrees in writing. If the applicant wishes to challenge the review decision, or if a council takes more than eight weeks to complete the review, they may appeal on a point of law to the County Court (Housing Act 1996, sections 202 and 204)
19. The council must advise applicant of their right to appeal to the county court on a point of law, and of the period in which to appeal. (Housing Act 1996, sections 202, 203 and 204)

Housing allocations

20. 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))
21. An allocations scheme must give reasonable preference to applicants in the following categories:
• homeless people;
• people in insanitary, overcrowded or unsatisfactory housing;
• people who need to move on medical or welfare grounds;
• people who need to move to avoid hardship to themselves or others;
  (Housing Act 1996, section 166A(3))

The Council’s scheme

22. The Council places applicants who qualify for an allocation under its scheme into priority bands from Band 1 (highest priority) to Band 4 (lowest priority). This priority is the first factor the Council uses to allocate a property.
23. The date on which the Council placed the application into the priority band is called the date into band. This date is important because the Council uses it to decide priority within a band. For example, if there are three applicants with Band 1 priority, the applicant with the oldest priority band date will be considered first for a property.
24. So far as is relevant to this complaint, the Council awards Band 2 to applicants who:
• are owed the main housing duty; or
• are lacking two bedrooms; and
• qualify for the Council’s Community Contribution criteria, which includes being in employment.
25. So far as is relevant to this complaint, the Council awards Band 4 to applicants who:
• the council has placed in suitable tong-term temporary accommodation.
• are owed a main housing duty but have their priority reduced due to rent arrears.

What happened

Homelessness

26. The Council accepted a main housing duty to Ms X in 2003. The Council provided temporary accommodation in a two-bedroom flat. At that time, Ms X had three children. Since then, she has had two further children.
27. In March 2018, Ms X contacted the Council. She said their temporary accommodation was extremely overcrowded and this was affecting her and her children’s health and wellbeing.
28. In September 2019, the Council accepted Ms X was statutorily overcrowded because she needed a four-bedroom property.
29. In July 2020, the Council offered Ms X a private tenancy. The letter offering the property was confusing. It said in some places the offer was temporary accommodation. In others, it said it was a final offer to end the Council’s main duty. Ms X refused the offer. She said she would not be able to afford the rent.
30. In August, the Council wrote to Ms X ending its main duty to her on the basis she had refused a suitable offer. This meant she also had no priority under the allocations scheme.
31. In September, with help from a solicitor, Ms X sought a review of the offer and subsequent decision to end duty under s202 of the Housing Act.
32. The Council acknowledged receipt of the review request in October by email. The email gave a deadline for the review decision in mid-November.
33. In late November, the Council wrote to Ms X’s solicitor apologising for missing the deadline. It proposed a new deadline in mid-January 2021.
34. The Council completed its review in November 2021. The review overturned the previous decision. This meant the Council continued to owe Ms X the main duty.

Allocations

35. In response to my enquiries, the Council said Ms X remained in Band 4 in 2019 because she had rent arrears.
36. In July 2020, Ms X’s solicitor wrote to the Council asking for a review of her priority banding. The letter referred to Ms X’s medical needs and the overcrowding in the temporary accommodation. It said Ms X would clear her arrears by the end of the month.
37. In late July, the Council referred the information to its housing medical team. It considered the information and identified no particular medical needs affecting what housing would be suitable. Ms X remained in Band 4.
38. In January 2022, the Council reassessed Ms X’s banding and awarded Band 2 with a date into band in January 2022. Ms X complained about the date into band not being backdated. The Council said it used its discretion to backdate Ms X’s application to November 2020.

My findings

Temporary accommodation

39. The Council accepts that it has not provided Ms X with suitable accommodation despite accepting in 2019 that she is statutorily overcrowded.
40. However, Ms X told the Council about this in March 2018. She provided all the information about her children by May. It took the Council a further 15 months to accept she was statutorily overcrowded. This delay was fault.
41. The Council has provided some evidence of its efforts to find alternative accommodation, both for Ms X specifically and to meet the demand in its area. I recognise the difficulties the Council faces in trying to secure affordable properties in its area. Especially larger properties with four or more bedrooms.
42. Nevertheless, the law says temporary accommodation must be suitable. The duty is immediate, non-deferable, and unqualified. The Council accepts that Ms X’s temporary accommodation is not suitable. The Council therefore has a legal duty to secure alternative accommodation for the family. It has not done so. This service failure is fault.
43. As a result, Ms X and her five children continue to live in a property much too small for their needs. This causes injustice to Ms X and to the rest of the family. One of Ms X’s children is at a critical point in her education. She needs space to study for her exams. The lack of space has caused avoidable stress and anxiety to all the family.
44. In response to my enquiries, the Council acknowledged fault. It offered to pay Ms X £3,000 in recognition of her time spent in unsuitable accommodation.
45. That the Council has accepted fault and sought to remedy the injustice caused is welcome. However, our guidance on remedies recommends a payment of £150-£350 for each month spent in unsuitable accommodation. I consider the Council should have accepted Ms X was statutorily overcrowded in May 2018. She remains in the property at time of writing. This is 50 months. Therefore, I do not consider £3,000 to be a suitable remedy for the injustice caused.

Statutory reviews

46. Ms X asked for a statutory review in September 2020. The law allows 56 days to complete the review. Extensions to this must be agreed by both parties. The Council did not complete the review until November 2021. This delay of a year was fault.
47. Throughout this period, the Council was not looking for suitable temporary accommodation for Ms X. Her application for housing under the allocations scheme was suspended. This is an injustice to Ms X.

Allocations

48. The Ombudsman cannot question the merits of a decision made without fault. There is no evidence of fault in how the Council considered the medical information Ms X provided and decided she did not have a medical priority.
49. The Council’s allocations scheme awards Band 4 to applicants in long-term temporary accommodation “unless the property does not meet the needs of the household.” Since Ms X is statutorily overcrowded, her long-term temporary accommodation does not meet the needs of the household.
50. Therefore, from May 2018, Ms X met the criteria for priority Band 2 since she is homeless and employed. However, Ms X had rent arrears in November 2019 when the Council accepted she needed to move. Under the Council’s scheme, this meant she remained in Band 4. This was not fault.
51. However, the evidence suggests Ms X had cleared her arrears by July 2020. She should, therefore, have been in Band 2 from then.
52. In response to my enquiries, the Council provided details of the four-bedroom properties it allocated in that time. From this evidence, I find that Ms X missed out on at least two properties, which the Council allocated to applicants in Band 2 with a date into band later than July 2020. This is a significant injustice to Ms X.

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Agreed action

53. To remedy the injustice to Ms X from the faults I have identified the Council has agreed to:
• Pay Ms X £200 a month for the 50 months she has been in unsuitable temporary accommodation, being £10,000
• Pay Ms X a further £500 to acknowledge the avoidable distress caused by the delay completing the statutory review
• To recognise the impact of the missed opportunity to be allocated permanent housing, make Ms X a direct offer of the next available four-bedroom property which meets her needs
54. The Council should agree a method of payment with Ms X which does not impact on her claim to any welfare benefits.
55. The Council should take this action within four weeks of my final decision.
56. The Council should also take the following action to improve its services:
• Share this decision with staff in the relevant departments
• Ensure staff communicate any delays completing statutory reviews of homeless decisions and agree extensions.
• Ensure communications about statutory reviews tell the applicant about their right to appeal to the county court if the Council fails to meet the deadline for a decision. Amend any template letters and emails as necessary.
57. The Council should tell the Ombudsman about the action it has taken within eight weeks of my final decision.

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Final decision

58. I have completed my investigation. Fault by the Council caused Ms X and her family injustice. The action I have recommended is a suitable remedy for this injustice.

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Investigator's decision on behalf of the Ombudsman