Summary: Miss C complained about the suitability of the temporary accommodation provided by the Council which left her in unsuitable accommodation for longer than necessary with her young child. We have found fault by the Council but consider the agreed action of an apology, payment and service improvement provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Miss C, complains about the decision on her homelessness application and the suitability of the temporary accommodation provided by the Council.
2. Miss C says because of the Council's fault, she was left in unsuitable accommodation for longer than necessary with her young child.

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What I have and have not investigated

3. I have investigated Miss C’s complaint about the suitability of the temporary accommodation provided by the Council between January and May 2022. I have not investigated the period after 5 May 2022 as Miss C had a right of appeal available. I have also not investigated the Council’s homelessness decision as this formed part of Miss C’s court appeal.

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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. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

6. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
7. 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

8. I read the papers provided by Miss C and discussed the complaint with her. I have considered some information from the Council. I have explained my draft decision to Miss C and the Council and provided an opportunity for comment.

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What I found

Background and relevant legislation

9. 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)
10. Councils should avoid using bed and breakfast accommodation. It should only be used as a last resort in an emergency and then for the shortest time possible. (Homelessness Code of Guidance paragraph 17.24 and from 3 April 2018 17.30)
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 which is not self-contained, not owned by the Council or a registered provider of social housing and where the toilet, washing, or cooking facilities are shared with other households. (Homelessness (Suitability of Accommodation) (England) Order 2003 and from 3 April 2018 Homelessness Code of Guidance paragraph 17.32)

Key events

12. Miss C contacted the Council about her housing situation in January 2022 and the Council provided interim accommodation under its section 188 duty. The accommodation was at a hotel on a B&B basis with shared facilities.
13. Miss C contacted the Council to complain about her accommodation towards the end of January. The Council responded in mid-February. This set out that the Council had offered to try to move Miss C to another room with a toilet and shower but Miss C had advised she did not want to move until something permanent was available.
14. The Council wrote to Miss C in early March with a decision Miss C was intentionally homeless and that her temporary accommodation would end and provided her right of review. Miss C sought a review of the Council’s decision. The Council’s Review Panel overturned the intentional decision in May but concluded Miss C did not have a local connection and would refer her to another local authority. The Council’s letter set out how Miss C could challenge this decision.
15. The Council wrote to Miss C towards the end of May to confirm her temporary accommodation was now being provided under section 193 from early May and setting out Miss C’s right to seek a review of its suitability.
16. Miss C subsequently used her right of appeal to the County Court.
17. Miss C has confirmed she accepted a tenancy which started towards the end of June and she is now adequately housed. Miss C has explained the main issue with the temporary accommodation was that there was no toilet in her room and the shared kitchen was in another building. Miss C says she struggled to use the shared facilities as there was never any room in the fridge or cooking space which meant she had to borrow money for takeaways which left her in debt. Miss C says there was little point in moving to another room with the same communal kitchen.

My consideration

18. The accommodation provided to Miss C between January and May 2022 meets the definition of ‘B&B’ which means it is unsuitable for an applicant with a dependent child such as Miss C. It is unsuitable from day one and should only be used as a last resort. Even in these circumstances, it must not be used for longer than six weeks.
19. The Ombudsman would expect to see evidence the Council was actively looking for suitable accommodation as soon as an applicant with a child is placed in B&B accommodation. I sought the Council’s evidence to demonstrate all options were explored before placing Miss C and her child in B&B accommodation. The Council says it checked if there was any self-contained accommodation available before placing Miss C in hotel accommodation. However, the Council has confirmed it does not keep any records of efforts made to find accommodation unless a property is found. The Council’s failure to maintain adequate records is fault.
20. I also sought details of the Council’s efforts to find alternative accommodation during the period 14 January to 5 May 2022 and evidence of any offers made to Miss C.
21. The Council says that when other properties become available in self-contained temporary accommodation stock it considers all families in B&B accommodation on a case by case basis taking different factors into account such as children, health issues and property size. The Council says it would have considered Miss C taking account of these factors. The Council has not provided any contemporaneous evidence of such consideration. This is further fault.
22. In any event, the legal duty is to provide suitable accommodation rather than simply try to do so. The Ombudsman considers leaving an applicant with a child in B&B accommodation for an extended period is service failure. Miss C was in the B&B accommodation for nearly four months during the period of my investigation from 14 January to 5 May (when her right of appeal became available). This is fault.
23. Miss C raised particular concerns about there being no toilet in her room and the kitchen facilities being shared and in another building. This presented particular difficulties with a young child. I have noted the Council offered the possibility of moving to another room in the same hotel with a toilet but this would still have left the shared kitchen facilities in another building. The Council also stated in its complaint correspondence with Miss C in February that it could look for places with a kitchen ‘in the same vicinity’ as Miss C’s room. This suggests the Council was looking for other B&B accommodation which would not have been suitable.
24. The Council’s letter also asked Miss C to confirm if she wanted it to explore alternative accommodation options. This placed the onus on Miss C when we would expect the Council to have been actively seeking suitable accommodation.
25. The Council says it explored the hotels it had available some of which had en-suite bathrooms but all have shared kitchen facilities. The Council accepts that it is responsible for sourcing suitable accommodation and its comment related to Miss C having advised the Council she would prefer to stay in one place until a permanent placement was available. The Council should still have been actively seeking suitable accommodation and maintaining an adequate record of this and any offers made to Miss C.
26. The Council confirmed to the Ombudsman in September that it had 19 families that had been in B&B accommodation for over six weeks. The Council says it is striving to reduce the use of B&Bs where possible and has recently converted an office building into one bedroomed self-contained temporary accommodation units and is in the process of re-furbishing another building to provide further self-contained temporary accommodation units.

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Agreed action

27. The Council has agreed to take the following action within six weeks of my final decision to provide a suitable remedy to Miss C:
1. write to Miss C to apologise for the fault identified in my statement above;
2. pay Miss C £500 for the distress, hardship and inconvenience caused by remaining in unsuitable accommodation beyond the maximum period of six weeks;
3. pay Miss C £150 in recognition of the additional costs of buying takeaway food due to inadequate cooking facilities; and
4. make arrangements to actively monitor all cases where families are in B&B to find alternative accommodation before the six week limit is reached.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I have completed my investigation as I have found fault by the Council but consider the agreed actions above provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman