Summary: Ms X complained about how the Council supported her while she was homeless. There was fault in how the Council arranged suitable, alternative temporary accommodation after it knew Ms X would need to move. This caused Ms X to be without suitable housing for several months and also caused her avoidable distress and worry. The Council agreed to arrange suitable accommodation, apologise to Ms X, and pay her a financial remedy.

The complaint

1. Ms X complains the Council has not given her enough priority on the housing register, in view of her son’s special needs, from 2020 and it unreasonably failed to find suitable temporary accommodation despite knowing well in advance that she was due to be evicted from her private rented property in 2021. Ms X also feels the Council has breached the Equality Act 2010 and the Children Act 1989 in the way it dealt with her case.
2. As a result, Ms X says she had to live in an unsuitable home and stay with family in cramped conditions after she became homeless, which has caused her and her children significant distress. She wants the Council to arrange suitable accommodation for her and her family.

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What I have and have not investigated

3. I have investigated the Councils actions and decisions from August 2021 onwards.
4. I have not investigated events before this.
5. 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)
6. Ms X complained to the Ombudsman in August 2022. Therefore, her complaint about any decisions of the Council in 2020 are late. If Ms X had any concerns about her housing priority in 2020, she could have complained to the Council and the Ombudsman about this sooner. I am satisfied there are no good reasons to consider her complaint about those events now.

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The Ombudsman’s role and powers

7. 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)
8. 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)
9. 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

10. I considered:
• the information Ms X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law, guidance and Council policy.
11. Ms X and the Council had an opportunity to comment on my draft decision. I considered all comments I received before making a final decision.

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What I found

Homelessness

12. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
13. 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 accommodation is available for their occupation. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)
14. 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)
15. When deciding if accommodation is suitable, Council’s must take into account:
• the size of the property and whether it is legally overcrowded;
• affordability for the applicant;
• the location of the accommodation;
• the Council’s duty to safeguard and promote the welfare of any children living in the accommodation and their rights to an education;
• the Homelessness Code of Guidance for Local Authorities; and
• any relevant parts of the Council’s homelessness strategy.
16. 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. must not place families with children in bed and breakfast accommodation for more than six weeks. (Homelessness Code of Guidance paragraph 17.24 and from 3 April 2018 17.31 – 17.34)
17. The High Court held that a local authority is not entitled to defer performance of its duty under s193 (the main housing duty) and the courts should not be persuaded by the alleged impossibility of finding suitable accommodation unless it was satisfied all reasonable steps had been taken. (R v Newham LBC ex p Begum [2000] 2 All ER 72, 32 HLR 80)
18. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
19. We consider delay in arranging suitable accommodation can be ‘service failure’ even when that is due to external factors beyond a council’s control (such as a shortage of temporary accommodation). The fact that a council has not met the statutory duty to provide suitable temporary accommodation is, in itself, enough to make a finding of service failure.

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))
22. The Ombudsman may not find fault with a council’s assessment of a housing applicant’s priority if it has carried this out in line with its published allocations scheme.
23. The Ombudsman recognises that the demand for social housing far outstrips the supply of properties in many areas. He may not find fault with a council for failing to re-house someone, if it has prioritised applicants and allocated properties according to its published lettings scheme policy.

Council’s housing allocations policy

24. The Council is part of a choice-based lettings scheme which enables housing applicants to bid for available properties which the scheme advertises.
25. The Council assigns applicants for social housing to one of four priorities:
• Band 1: Emergency – the most urgent emergency cases, including where someone cannot be discharged from hospital because of the condition of their housing.
• Band 2: Urgent – this includes applicants whose current housing has a significant impact on their health or welfare.
• Band 3: Priority – this includes most applicants who are entitled to a reasonable preference under the law, including homeless people.
• Band 4: Reduced priority – applicants who are entitled to some preference, but that the Council has reason to place below other applicants.

What happened

26. Ms X has three children, all 10 years old or younger. Ms X’s son was diagnosed with autism spectrum disorder and has an Education Health and Care plan from the Council to support him at school.
27. Ms X joined the Council’s housing register in 2012 after she became homeless. The Council accepted it had a duty to house Ms X and placed her in temporary accommodation, a three-bedroom house, in 2019.
28. In January 2022, the owner of the temporary accommodation told the Council they wanted their property back. The Council met with Ms X in February 2022 and completed what the Council called a ‘move on assessment’. This reviewed Ms X’s current household situation and identified ways in which Ms X might be able to find alternative housing.
29. Ms X’s landlord started court action in late March 2022 and obtained a court order for possession of the property in May. Ms X kept the Council updated about these events and asked the Council, several times, to tell her where it would place her next, so that she could prepare her son for the change.
30. Ms X complained to the Council in May 2022 about:
• delays in finding her suitable alternative temporary accommodation;
• that she feared the Council would place her in bed and breakfast accommodation, which she said would be unsuitable for her son because of his autism; and
• that she should have higher priority under the Council’s housing allocations policy.
31. The Council replied to Ms X in June 2022. It told her that:
• it could not guarantee it would not place her in bed and breakfast accommodation, but if it did so this would only be a temporary measure for no more than six weeks; and
• it did not intend to review her priority under its allocation scheme based on her current temporary accommodation, because she would need to leave. It said it would reassess Ms X when she had moved to new temporary accommodation.
32. In September 2022 Ms X received a notice that she would be evicted from her current home in a few weeks’ time. She shared this with the Council which said it would try to find her alternative accommodation before she had left. However, the Council did not contact Ms X again before she was evicted.
33. On the day she was evicted, Ms X says the Council told her to wait in a café for it to contact her. She says the Council only contacted her late in the day and offered her a room in a hotel. Ms X told the Council this was not suitable for her son, so Ms X went to stay with her mother instead. Ms X says she is having to share a small room in her mother’s house with her three children, which is causing them significant stress.

My findings

Homelessness

34. The Council accepts it still has a duty to arrange suitable housing for Ms X, including temporary accommodation until Ms X finds a permanent home.
35. The Council knew, in early 2022, that Ms X would need to move from the temporary accommodation it arranged in 2019. However, the Council could not provide any evidence of its efforts to find alternative temporary accommodation specifically for Ms X until she was evicted in September 2022, when it offered her a hotel room. This was despite Ms X keeping the Council updated about the legal process to evict her over the previous eight months. Although the Council has a general policy for how it will try to secure enough accommodation, it was not able to show what it tried to do for Ms X and her family.
36. The Council has explained the pressures it faces in finding enough suitable accommodation for homeless applicants. While the Ombudsman understands the difficulties councils face, the law and the Courts are clear that there is a legal duty for councils to provide suitable accommodation. Even if a council fails to meet this duty because of circumstances outside its control, we can still make a finding of fault and recommend remedies for injustice caused to complainants.
37. Councils can use bed and breakfast accommodation to meet its duties to provide temporary accommodation. However, the guidance says this must only be as a last resort and, for families with children must only be used for a maximum of six weeks.
38. Had Ms X accepted the Council’s offer of bed and breakfast accommodation, it would have needed to find a suitable alternative within six weeks. I am satisfied the Council had ample notice, significantly more than six weeks, that Ms X would need alternative accommodation. It has not provided any evidence it attempted to find a suitable alternative during the several months it had to do so. This failure to do so was fault which caused Ms X’s current lack of suitable temporary accommodation.
39. The Council also had a duty to ensure that any temporary accommodation it offered was suitable, taking into account the necessary factors, including the duty to safeguard and promote the welfare of any children living in the accommodation. The Council assessed what types of accommodation might be suitable for Ms X and her family during the move-on assessment and said it had no reason to believe bed and breakfast would be unsuitable. However, the evidence it provided showed the Council failed to properly consider Ms X’s son’s special educational needs as part of that assessment. In the sections “Special Educational Needs considerations” and “Other welfare needs”, the Council recorded the answers “None”. This was despite Ms X’s son having an EHC plan from the Council since November 2020 and the school providing a detailed letter of support in early February 2022. Based on this, I am satisfied the evidence shows the Council failed to properly consider whether bed and breakfast accommodation would be suitable for Ms X’s family, especially taking into account her son’s special educational needs. This was also fault.
40. I am also satisfied that the lack of action by the Council between when Ms X told it her landlord was starting court action and her eviction in September 2022 caused Ms X significant avoidable distress and worry.

Housing priority

41. It is not our role to decide what priority for housing Ms X should have; that is the Council’s responsibility. Our role is to consider whether the Council made its decisions in the right way, including whether it considered the right evidence and properly explained its decisions.
42. The Council last assessed Ms X’s priority under its allocations scheme in 2018. At that time it decided she should have Band 3 priority because it accepted it had a duty to house her under homelessness law.
43. Ms X asked the Council to reassess her priority as part of her complaint in May 2022 in light of her son’s diagnosis of autism spectrum disorder. However, the Council decided that it would not be appropriate to reassess Ms X’s priority until she moved to new temporary accommodation.
44. The Council’s allocations policy says that applicants can have increased priority if they have a medical condition which is severely affected by their housing situation. The law does not say that having a medical or health condition, by itself, mean someone should have a higher priority for housing.
45. I am satisfied with the Council’s explanation about why it decided not to reassess Ms X’s housing priority in May 2022. The Council would need to know what Ms X’s housing situation was before it could properly decide if she had the right priority. This does not, however, affect my findings that the Council failed to provide Ms X with suitable, alternative temporary accommodation.
46. In its final response to Ms X’s complaint in July 2022, the Council agreed to reassess Ms X’s priority. However, as of October 2022, there was no evidence the Council had completed this reassessment.

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Agreed action

47. Within one month of my final decision the Council will:
• apologise to Ms X for the delays in finding her suitable alternative accommodation;
• offer Ms X suitable, alternative accommodation based on a proper assessment of the suitability of that accommodation, considering all the necessary legal factors. It should provide a written notice of its suitability decision to Ms X to ensure that she has the appropriate opportunity to challenge the Council’s decision;
• pay Ms X £250 a month from the date Ms X was evicted until it offers her suitable alternative accommodation, to recognise the impact of this on her and her children;
• pay Ms X a further £300 to recognise the avoidable distress and worry she experienced between March and September 2022; and
• complete the review of Ms X’s housing priority which it has already started.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I have completed my investigation. There was fault in how the Council arranged suitable, alternative temporary accommodation after it knew Ms X would need to move. This caused Ms X to be without suitable housing for several months and also caused her avoidable distress and worry. The Council agreed to arrange suitable accommodation, apologise to Ms X, and pay her a financial remedy.

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Investigator's decision on behalf of the Ombudsman