The Investigation

The complaint

1. Ms X complained the Council failed to provide suitable temporary accommodation for over three years despite knowing since April 2019 that her private rented accommodation was unsuitable for the needs of her disabled child.

2. Because of the unsuitable accommodation, Ms X says her child had to delay necessary surgery and experienced avoidable pain and distress.

Legal and administrative background

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)

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)

Homelessness law and guidance

5. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities (the Code) set out councils’ powers and duties to people who are homeless or threatened with homelessness.

6. If a council has ‘reason to believe’ someone may be homeless or threatened with homelessness, it must take a homelessness application and make inquiries. The threshold for taking an application is low. The person does not have to complete a specific form or approach a particular council department. (Housing Act 1996, section 184 and Homelessness Code of Guidance paragraphs 6.2 and 18.5)

7. Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. Councils must notify the applicant of the assessment. This assessment must include:

• The circumstances that have caused them to become homeless or threatened with homelessness
• Their housing needs
• Their support needs (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.7)

8. Councils should work with applicants to identify practical and reasonable steps for the council and the applicant to take to help the applicant keep or secure suitable accommodation. These steps should be tailored to the household, and follow from the findings of the assessment, and must be provided to the applicant in writing as their personalised housing plan. (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.18)

9. If councils are satisfied applicants are homeless and eligible for assistance, they must take reasonable steps to secure accommodation. This is called the relief duty. When a council decides this duty has come to an end, it must notify the applicant in writing. The relief duty lasts a maximum of 56 days. (Housing Act 1996, section 189B)

10. A council must secure accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need. This is called interim accommodation. (Housing Act 1996, section 188)

11. If, at the end of the relief duty, a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need the council has a duty to secure that accommodation is available for their occupation. This is called the main duty. (Housing Act 1996, section 193)

12. After completing inquiries, the council must give the applicant a decision in writing. If it is an adverse decision, the letter must fully explain the reasons. All letters must include information about the right to request a review and the timescale for doing so. (Housing Act 1996, section 184, Homelessness Code of Guidance 18.32 and 18.33)

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. 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)

15. 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)

16. The duty to provide suitable accommodation is immediate, non-deferrable, and unqualified. Elkundi, R (On the Application Of) v Birmingham City Council [2022] EWCA Civ 601

Allocations

17. Every local housing authority must publish an allocations scheme that sets out how it prioritises housing applicants, and its procedures for allocating properties.

All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))

18. 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))

19. Applicants have a right to request a review of a council’s decision about the priority band they have been awarded.

20. The Council operates a choice-based lettings scheme. This means housing applicants can express an interest in available properties. This is called bidding.

21. The Council places applicants who qualify to join the housing register in a priority band from Band A (highest priority) to Band D (lowest priority). This priority is the first factor the Council uses to allocate a property.

22. So far as is relevant to this complaint, the Council awards Band B to applicants who:

• Previously accepted a tenancy in the private rented sector to end a homelessness duty

• Have an urgent medical need to move

23. So far as is relevant to this complaint, the Council awards Band A to applicants who:

• Have a ‘life or death’ need to move because of ill-health or disability

• Social services say there is a need to move to prevent harm to a child

How we considered this report

24. We produced this report after examining relevant documents and interviewing the complainant.

25. We referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.

26. We gave the complainant and the Council a confidential draft of this report and invited their comments. The comments received were taken into account before the report was finalised.

What we found

What happened

27. Ms X has two children. One of her children, whom we shall call Y, has significant disabilities. Y uses a specialist wheelchair and needs help with all activities of daily life, such as washing, dressing, and eating.

28. Ms X was homeless in 2018. In December of that year, the Council arranged a two-year tenancy with a private landlord to end its duty. This was in another area, which we will call Borough B.

29. In April 2019, an OT (Occupational Therapist) from Borough B wrote to the Council after assessing Y. The report said the property was unsuitable for the family, and Y in particular, because:

• They could not get the wheelchair into the property, even to store it, and so had to leave it outside

• The alleyway to access the property was only 700mm wide at its narrowest

• Y could not access any of the essential facilities in the home

• There was not enough space to have any of the specialist equipment Y needed

30. As a result, the OT said that both Y and Ms X were at risk of injury because Ms X had to carry Y from room to room. The report also noted that Y needed surgery but this could not take place because there was no room in the property for the hoists and other equipment Y would need when recovering from the operation.

31. The OT said the family needed to move to accommodation which had:

• Level access
• A bedroom and bathroom on the same level for Y or a through floor lift
• Doorways wide enough for Y’s wheelchair
• A level access shower or wet room
• Enough space in Y’s bedroom for the bed, hoisting equipment, and wheelchair access

32. The Council did not respond to this report.

33. Between July and November 2019, Y’s social worker at Borough B emailed the Council five times asking for updates about moving the family.

34. In October, the Council responded and said it had referred the matter to its ‘tenancy sustainment’ service. When this service responded to the social worker in November, it said the tenancy could not be sustained since it was unsuitable. It had therefore referred Ms X to its Housing Advice team. The Council said this team would contact Ms X to make an appointment.

35. Ms X missed the Council’s call to arrange this appointment. When she called back, she says the Council told her she could not make an appointment because she was not homeless. The social worker reported this to the Council, which then arranged an appointment with Ms X for early December.

36. In late January 2020, the social worker contacted the Council again. Ms X had not heard anything since her appointment in December.

37. The records suggest that the Council accepted the relief duty in late January. There is a personalised housing plan but no letter to Ms X accepting this duty.

38. Ms X provided the Council with a copy of a letter from Y’s consultant dated November 2019. It said Y needed surgery, which would take place "once home arrangements are suitable”.

39. In February, the Council wrote to the social worker to explain that although it was looking for alternative accommodation for the family this was an “impossible task” because of the extensive adaptations needed.

40. In June, the OT wrote to the Council. The OT said the family needed to move urgently and not having suitable accommodation was delaying Y’s surgery. The OT set out the ongoing risks to Y of remaining in the accommodation which included:

• injury from manual handling because there was no space for necessary equipment

• the lack of space for specialist seating for Y meant Y could not be positioned properly for eating and was therefore at risk of choking

• Y was in pain, which could only be alleviated through the surgery

  41. In October, the social worker from Borough B again wrote to the Council about its failure to provide suitable accommodation for the family. The social worker said Borough B had been trying to get information from the Council for a long time without success. Y was in pain and needed surgery. The social worker asked the Council:

• What Ms X’s banding was for rehousing on the housing register

• What steps the Council had taken to try and find suitable accommodation

• The timescale for a likely move

• If they could arrange a meeting to discuss the case

42. In response, the Council said it was clear the family needed to move. It said the adaptations required could not be provided in temporary accommodation. Internally, the Council asked if Ms X could be “prioritised for adapted accommodation” on the housing register.

43. The Council did not review Ms X’s priority on the housing register following this email.

44. In December, the Council offered Ms X a property. However this was unsuitable because it did not have level access.

45. In March 2021, Y’s social worker again contacted the Council. The social worker said Y’s need for surgery was increasingly urgent but could not take place while the family remained in unsuitable housing. The medical professionals had raised safeguarding concerns with Borough B about Y because the surgery was urgent but if it took place, Y could not safely return home.

46. Later in March, the records say the Council accepted the main duty to Ms X. There is no evidence it wrote to Ms X explaining this.

47. The Council offered Ms X two properties in March, neither of which met Y’s needs.

48. In October, the social worker from Borough B emailed the Council again to say Y’s health was deteriorating. This prompted an internal email because “we reported in June that [Ms X] was on the TA transfer list” but she had not moved.

49. In January 2022, Y’s school complained to the Council on Ms X’s behalf. The Council responded to the complaint in March. It apologised for the delay responding. It said the Council was looking for accommodation but due to the shortage of available properties, this was “proving difficult to find”.

50. In April, the Council responded at stage two of its complaint process. It said:

• It was sorry for the delay finding suitable accommodation

• An OT from the Council would be asked to visit any future properties before they were offered to Ms X and it was sorry it had not done this before now

• It would raise the case with the allocations manager to consider Ms X’s priority band and it was sorry it had not done this before

51. An internal email from April says “Band B has been awarded. I’m wondering whether we might consider a direct offer of permanent housing that can be adapted…or increase priority.”

52. The Council did not review Ms X’s priority on the housing register following this email.

53. In May, Ms X was shortlisted for a property she bid for. She viewed this property and wanted to accept it but it was let to an applicant shortlisted ahead of her. Following this both Y’s school and the OT contacted the Council to ask whether it could consider Ms X for a higher priority band. The OT said Y’s surgery had now been delayed to the point that a different procedure was required. The OT said:

“the long-term impact of [Y] being unsuitably housed means [Y] will have no bones in [their] hips to keep [their] legs in place. This will make it more difficult to support [Y] with manual handling and positioning. [Y] will also never be able to be supported in standing.”

• Y was in constant pain requiring medication and injections
• Because sitting in the wheelchair caused too much pain, Y’s school had to buy a specialist bed, in which Y was wheeled around school to access education

54. The Council did not respond to the OT’s email.

55. In June the OT told the Council that its lack of response and failure to move the family meant they would support Ms X to complain to the Ombudsman. The Council responded to this email. It said the Council was trying to find suitable accommodation, but it was “very difficult to find temporary accommodation in which the adaptations required can be met.”

56. To make sure any properties it offered were suitable, the Council asked the OT to confirm:

• The number of children in the household

• The services and medical care and support received

• Where such support was located

57. The Council began reviewing Ms X’s priority band in June. It referred the matter to its medical advisor who said that it didn’t have a report showing that Y needed surgery or that the delay was due to the housing. However “if this is correct” then Band A would apply.

58. Before the Council could act to amend Ms X’s banding, she successfully bid for a property in July 2022. She moved into this property, which is suitably adapted for Y, in October 2022.

Analysis

59. The matters Ms X complains about date back to 2019. This is more than 12 months before she complained to the Ombudsman and so part of the complaint is late. We can exercise our discretion to investigate such matters if we consider there were good reasons why the complainant could not come to us sooner. Ms X speaks limited English, making accessing services more difficult for her. She is a lone parent and was caring for a child with significant needs in difficult circumstances. Since April 2019, Ms X has been engaged with multiple services across two different local authorities trying to make sure Y’s needs were met. The complaint of fault and injustice is ongoing until October 2022. In these circumstances, we are satisfied that Ms X could not have complained to us sooner. The passage of time has not affected our ability to conduct a thorough investigation to reach sound conclusions. We have therefore exercised discretion to investigate matters from April 2019 onwards.

Homelessness- duties

60. When the OT sent the report to the Council in April 2019 it said the family needed to move. This was a request for accommodation on behalf of Ms X. The Council should have considered whether it had reason to believe Ms X was homeless or threatened with homeless. Failure to do so was fault.

61. The threshold for this is low and the OT’s report meets this threshold. Therefore, the Council should have made inquiries into what duties it owed Ms X and her household. Failure to do so was fault.

62. An applicant is homeless if, despite having accommodation, it is not reasonable to continue to occupy that accommodation. As the Council eventually accepted, the property was not reasonable for Y to continue to occupy. Therefore, the Council should have accepted a relief duty in April 2019. It did not do so until December, a delay of 9 months. This delay was fault.

63. The Council’s assessment of Ms X was inadequate. It failed to set out her housing needs or the support needs of the family. This was fault.

64. The relief duty lasts a maximum of 56 days. After 56 days, the Council must decide whether it owes the main housing duty. Had it accepted the relief duty in April 2019, the Council should have decided whether it owed the main duty by July. Having actually accepted the relief duty in December 2019, the Council should have decided whether it owed Ms X the main duty by early March 2020.

65. The Council did not accept the main duty until March 2021, over a year after it accepted relief and 21 months after it should have done so had it acted without fault. This delay was fault.

66. When it accepts and ends duties, the Council must tell the applicant in writing and explain the statutory right to review the decision. There is no evidence the Council wrote to Ms X when it accepted the relief or main housing duties. This failure was fault.

67. The Council’s failure to write to Ms X when it accepted the relief duty raises doubt as to whether it sent her the PHP it produced. Ms X says she did not receive one. In any event, the Council must keep personalised housing plans under review, at a minimum with each change in duty. The Council did not review Ms X’s PHP when it accepted the main duty. This was fault.

68. When Ms X called the Council in November 2019 to make an appointment, the Council told her she was not homeless and so refused to make an appointment with her. This was despite an internal referral to the service advising Ms X needed an appointment. This was fault.

Homelessness – accommodation

69. The Council must provide interim accommodation if it has reason to believe an applicant is eligible, homeless and in priority need. The Council should have provided interim accommodation while it carried out its inquiries into what duty it owed Ms X. Failure to do so was fault.

70. The Council should have accepted the main duty in July 2019. From that point it had an immediate statutory duty to provide suitable temporary accommodation to Ms X. It failed to do so, leaving Ms X and her children in unsuitable accommodation for 42 months.

71. We recognise the adaptations Y needs for a property to be suitable are extensive. This makes sourcing a suitable property difficult. The Council described it as an “impossible task”.

72. However, there is no evidence the Council made any efforts to find suitable accommodation for the family:

• It assumed the landlords from whom it lets its temporary accommodation would refuse permission to adapt their properties. There is no evidence it approached any landlords or other housing providers to ask.

• There is no evidence the Council considered using its own housing stock as temporary accommodation.

• Despite raising the possibility of a direct let or increased priority in October 2020, the Council took no action to follow up these options until June 2022.

73. Instead, the Council allowed the matter to drift for over three years. The lack of attention to this case is demonstrated by the Council asking the OT for basic information about the family and Y’s needs in June 2022. This information was essential to the Council being able to effectively search for suitable accommodation. It should have confirmed this information during Ms X’s homeless assessment, which we found it failed to do. At the very latest, it should have done so when it accepted the main duty in March 2021. Not to have done so was fault.

Allocations

74. Ms X was in Band B on the Council’s housing register under its scheme for homeless households who accepted private tenancies.

75. When the OT sent the report to the Council about Y’s needs in April 2019, the Council should have reviewed the housing application. Its failure to do so was fault.

76. At the latest, the Council should have reviewed Ms X’s priority in October 2020 when the Council said it was unlikely to find suitable temporary accommodation and asked about increased priority or a direct let.

77. The Council’s scheme says it awards Band A to applicants who need to move because, on the advice of children’s services, rehousing will:

• Prevent the likelihood of significant harm to a child, where the harm relates to specific aspects of the accommodation

• Facilitate the discharge from, or prevent admission into, hospital or residential care

78. It also has discretion to award Band A in other exceptional circumstances not covered by its policy.

79. The information from Y’s OT and social worker set out that Y needed to move to prevent significant harm. As it eventually went on to decide in June 2022, the circumstances of this case met the criteria for Band A.

80. Had the Council properly considered Ms X’s priority for rehousing in April 2019, October 2020, or at any time since, we find it likely it would have awarded Band A. Failure to do so was fault.

Communication and complaints

81. The failings in homelessness and allocations in this case were aggravated by a series of faults in communication, administrative practice, and complaint handling.

82. It took the Council three months to respond to the complaint at stage one. Its policy says it aims to respond within 20 working days. If it cannot do so, it will explain why and say when it will respond. It did not do so in this case. This was fault.

83. Internally, the evidence indicates poor processes for responding to contacts, lack of coordination and poor information sharing. The Council:

• Passed Ms X’s case from its temporary accommodation team to tenancy sustainment, then to housing advice. This means it took almost three months just to contact Ms X for a homelessness assessment.

• Despite referring internally to the housing advice team to arrange an appointment, told Ms X she could not make one when she called

• Raised the issue of Ms X’s priority on the housing register on at least two occasions with the allocations service but failed to follow this up or share the information it had about Y’s needs

• Failed to refer the case to its medical adviser until June 2022 and when it did so, did not send the information showing Y’s need for surgery

84. The Council was also at fault for how it communicated with Borough B. It did not acknowledge or respond to the OT’s report in April 2019. Y’s social worker sent over 10 emails to the Council seeking information and updates. In October 2020, the social worker asked to meet with the Council to discuss the case. The Council did not respond to this request. There is a similar pattern in response to emails from Y’s OT and school.

85. There is no evidence the Council provided any updates or information to Ms X at any point after the initial assessment in December 2019. It is notable from the chronology of events in this case that the Council only progressed Ms X’s case or took any action following increasingly urgent contact from Borough B and Y’s school:

• It did not arrange a homeless assessment with Ms X until the social worker emailed at least five times.

• It did not accept the relief duty until the social worker complained no one had contacted Ms X since her assessment in December

• It did not raise the matter of increasing Ms X’s priority on the housing register until both the social worker and the OT sent emails stressing the urgency

• It did not accept the main duty until Y’s school alerted the local MP and the social worker told the Council there may be a safeguarding issue if the family did not move

• It did not consider awarding Band A or referring to the medical adviser until Y’s school complained at stage two of the complaints process

86. The Council’s handling of this case shows a concerning lack of oversight and coordination of homeless cases. The Ombudsman recognises that this Council has a lot of homeless applicants, even among London Boroughs. In response to our enquiries the Council said it has over 3,500 households in temporary accommodation. However, this should indicate the importance of robust processes to keep track of individual applicants and their circumstances. It should not be an excuse for vulnerable people to “fall off the radar” unless they make a complaint or have other services to advocate for them.

Injustice

87. When we find fault, we then consider whether that fault has caused injustice.

88. The OT told the Council that because of its delays, Y needed an entirely different surgery and would never stand up again. This is more properly dealt with as a personal injury claim. It is open to Ms X to pursue this matter in court or with the Council’s insurers.

89. The lasting impact on Y’s health aside, there is significant injustice to Ms X and Y from the Council’s faults in this case.

90. The family remained in unsuitable accommodation for almost three and a half years. During that time:

• Ms X had to meet all Y’s daily living needs without any specialist equipment by carrying and lifting Y.

• They had to leave Y’s wheelchair outside, denying Y the dignity of moving around independently in their home

• Y could not have the special bed and supportive seating they needed to relieve pain and keep them safe while eating, drinking, and sleeping

91. As a result, Ms X and Y were at avoidable risk of harm. Y was in increasing pain. They lived with significant and avoidable distress for over three years.

92. We have found the Council would have increased Ms X’s priority on the housing register to Band A sooner were it not for its fault. Since Ms X missed out on at least one property to an applicant higher on the shortlist, it is likely that had the Council increased her priority, she would have secured suitable accommodation sooner. This is a significant injustice.

93. Instead, Ms X eventually secured a property through the bidding scheme in Band B, which she was awarded in November 2018. In other words, Ms X secured a property no more quickly than she would have had she had no contact with the Council at all and continued to bid. This means she and those working with her spent over three years and significant time, trouble, and frustration pursuing the Council to no benefit. This is a significant injustice.

Conclusion

94. We find the Council at fault for failure:

• in its duties to Ms X under homelessness law

• to make efforts to secure suitable accommodation in a timely way

• to review and increase her priority band on the housing register

• in its communication with Ms X, professionals working with the family, and internally among teams and departments

95. The Council’s faults caused Ms X and Y significant and avoidable injustice.

Recommendations

96. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet, or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

97. To remedy the injustice to Ms X and Y from the faults we have identified, within three months of the date of this report the Council should:

• Apologise to Ms X. Ms X’s first language is not English. To ensure the apology is meaningful, the Council should provide a written apology translated into Ms X’s first language.

• Pay Ms X, for the benefit of Y, £14,700 being £350 for each month spent in unsuitable accommodation at avoidable risk of harm, in increasing pain, and denied the dignity of moving around in their wheelchair in their own home

• Pay Ms X £6,300, being £150 for each month spent in unsuitable accommodation at avoidable risk of harm from not being able to handle Y safely and for the significant distress of caring for Y without the necessary equipment

98. When we find fault causing injustice, we can recommend the Council act to improve its services. In the last three years, we have made recommendations to the Council about:

• Identifying and taking homeless applications

• Issuing the correct decision letters and advising applicants of review rights

• Keeping records of assessments and interviews of homeless applicants

• Completing and reviewing personalised housing plans

• Joined up working between homelessness and allocations

• Addressing the supply of temporary accommodation

99. Despite these recommendations, this case shows an ongoing problem with the Council’s homelessness services. We appreciate the Council’s challenges with meeting the demand for its services with limited resources. Nevertheless, the law says councils must meet their homelessness duties.

100. In response to a draft of this report, the Council told us about steps it has already taken to improve its service. These include:

• A new system to manage booking temporary accommodation, which will improve monitoring

• Introducing a single computer system to manage homelessness and temporary accommodation, which will be in place by April 2023

• More thorough assessments before making offers of accommodation

• Improving the process for monitoring and prioritising accommodation transfers.

101. These changes are welcome. To further improve its service, the Council has should:

• Share a copy of this report with all staff in the relevant departments to discuss and identify learning

• Commission an independent, external review of the homelessness service. The form of this review is for the Council to decide, however it might consider including:

  1. Processes for identifying potential homelessness cases, regardless of point of contact within the Council

  2. Mapping of the applicant journey and the number of teams and officers potentially involved

  3. Systems to track individual cases and statutory timescales

  4. Designation of responsibility for performing, coordinating and communicating statutory duties

• Produce an action plan, based on learning from this case and the wider review of the homeless service, of how the Council will ensure it is able to meet its statutory duties to homeless applicants. Progress against this plan should be reported to or overseen by the relevant scrutiny committee or cabinet member.

102. The Council has accepted our recommendations.

Decision

103. We have completed our investigation. There was fault by the Council. The agreed actions are a suitable remedy for the injustice caused.

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