Summary: Mr X complained the Council had wrongly refused to carry out a review of the suitability of his temporary accommodation. The Council was at fault. It wrongly said it had discharged its main housing duty, but Mr X was not, in fact, offered a tenancy and therefore the duty continued. It should apologise, pay Mr X £250 for the avoidable time and trouble pursuing the matter, and carry out a suitability review.

The complaint

1. Mr X complained about the Council’s refusal to carry out a statutory review of his temporary accommodation. He also complained the Council failed to properly investigate his complaint and delayed in responding at both stage 1 and stage 2 of its complaints process.
2. Mr X said that, as a result of the Council’s failings, he and his family continued to live in accommodation that was unsuitable because it is in poor repair, does not meet the family’s disability needs and is overcrowded. Mr X has been put to avoidable time and trouble pursuing the matter.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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. 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)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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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What I have and have not investigated

9. Late complaints: We would not usually investigate events more than 12 months before the complaint to us. Mr X complained to us in September 2022 about the Council’s refusal to carry out a suitability review in February 2022. The Council’s reasons for refusing related to events in 2020. There was no undue delay in Mr X complaining to us after he became aware of the problem. Therefore, I decided to investigate the events from March 2020.
10. Appeal to court: If the Council had carried out a suitability review and decided the accommodation Mr X occupies was suitable, Mr X would have had a right of appeal to the county court on a point of law. Since the Council refused to carry out a review, there was no decision that could be appealed. There would also have been a right of review and appeal following the Council’s decision to end the main housing duty, but Mr X said the Council did not inform him of its decision or explain his rights of review and appeal. On this basis, it is not reasonable to expect Mr X to exercise those rights.

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How I considered this complaint

11. I considered:
• the information Mr X and his representative provided;
• the information the Council provided in response to my enquiries:
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our website.
12. Mr X, his representative and the Council 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

Relevant law and guidance

Homelessness

13. 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.
14. A council will owe the main housing duty if it is satisfied the applicant is homeless, eligible for assistance, in priority need and not intentionally homeless. This means the council has a duty to secure accommodation for the applicant. The accommodation a council provides until it can end this duty is called temporary accommodation. (Housing Act 1996, section 193)
15. Homelessness temporary accommodation must be legally suitable. (Housing Act 1996, section 206) Anyone who believes their temporary accommodation is unsuitable can ask the Council to review the accommodation’s suitability. (Housing Act 1996, section 202) If the Council’s review decides the accommodation is unsuitable, the Council must provide suitable accommodation. If the review decides the accommodation is suitable, the applicant has the right to appeal to the county court on a point of law. (Housing Act 1996, section 204)
16. The main housing duty may end in various ways including where the applicant refuses an offer of suitable accommodation. Relevant to this complaint, when offering the accommodation, the council must inform the applicant in writing of:
• the consequences of accepting or refusing the accommodation, including that no further offer will be made; and
• their right to request a review of the suitability of the accommodation offered.
17. Where the council has provided the above information, and the applicant refused to accept the accommodation, the main housing duty may end.

What happened

18. Mr X sought homelessness assistance from the Council in 2015. At that point he lived with his wife, Ms Y, and his son, Mr Z. The Council accepted a main housing duty and provided temporary accommodation at property 1.
19. In March 2020, the Council offered permanent accommodation at property 2, which was a housing association property. Its letter said:
• “if your nomination is successful and they offer you the tenancy … this will constitute a discharge of the Council’s legal duty towards you”;
• Mr X should sign for the offer even if he planned to ask for a review as failure to do so may mean he lost the accommodation it had provided;
• if, on review, the Council decides the offer was suitable and is satisfied it has ceased the homeless duty he was owed, it will advise him of his right to appeal to the county court on a point of law within 21 days from the date of the review decision letter;
• if the offer was refused, but the Council was satisfied it was suitable, Mr X would be required to leave the temporary accommodation provided. The Council’s Legal Department would be instructed to commence possession action to recover the property and Mr X may be liable for court costs.
20. Mr X spoke to his housing officer and expressed his concern about the suitability of property 2. He also spoke to a councillor, who contacted the Council on 1 April on his behalf. The councillor said:

“Mr [X] and his wife would like to accept this offer of accommodation in order for the council not to discharge its duties towards them. However, they also wish to [request] a formal review of the suitability of the offer of accommodation that has been made”.

The councillor set out three reasons Mr X did not consider the accommodation offered was suitable.

21. The Council carried out a review and wrote to Mr X with its decision on 27 May 2020. The Council concluded property 2 was suitable. It noted Mr Z was part of the household but not a main applicant. Although Mr Z’s wife, Mrs Z, who was pregnant, was now living with them, she was not part of the original homeless application and was subject to immigration control, which it said meant she should not be considered as part of the application. The letter concluded it “was satisfied that the [Council] has correctly discharged its housing duty as the property is suitable and reasonable for your household’s ongoing accommodation”. However, Mr X had the right to appeal to the county court on a point of law.
22. Mr X said he asked about a date to move to property 2 in July 2020 but was told he could not sign the tenancy at that time due to restrictions to prevent the spread of COVID-19. After further contacts by Mr X, a virtual meeting was arranged in September 2020, at which the housing association withdrew the offer on the grounds that property 2 was not suitable for the household as Mr and Mrs Z now had twin babies.
23. In response to my enquiries, the Council said the decision to withdraw the offer was not a decision the housing association was entitled to make. It said the housing association should have consulted the Council, which would have confirmed who was included in the household, and that a review had been carried out, which had not been appealed.
24. Council records show it wrote to Mr X in late September 2020 advising him he was in breach of his licence and would need to leave property 1 by 9 October. Mr Z was initially advised to make his own homelessness application but when he told the Council he was his parents’ main carer it agreed to ask an occupational therapist (OT) to assess Mr X and Ms Y’s medical needs. An internal record dated 6 October stated the Council acknowledged Mr Z and his wife were living at property 1 and no further action would need to be taken about the breach of licence terms at that stage.
25. The Council took no further steps to evict the family after discharging the main housing duty and they continued to live at property 1.
26. In February 2022, Mr X’s representative, Mr R, asked for a review of the suitability of property 1. Mr R said:
• property 1 had two bedrooms and a living room. Mr X, a larger person, was using a double bed in one bedroom, Ms Y was sleeping in the sitting room, and Mr and Mrs Z and their children were sharing the other bedroom;
• although property 1 was not statutorily overcrowded, Mr X and Ms Y’s complex medical needs could not be effectively managed in such a small space, and the lack of space meant they were spending most of their time sitting on their beds;
• property 1 was in a state of disrepair, affected by damp and black mould throughout, which was potentially a category 1 hazard under the Housing Health and Safety Rating System (HH&SRS). The carpet throughout was threadbare and moth eaten and the property was, in summary, not fit for human habitation.
27. The Council refused to carry out a review because it said property 1 was not temporary accommodation. Its own temporary accommodation team provided a letter confirming the main housing duty had not been discharged and property 1 was temporary accommodation, but the reviewing officer refused to accept this.
28. After several attempts to get the Council to consider the additional evidence provided, Mr R made a formal complaint on 30 June 2022. The Council acknowledged this and said it would respond by 28 July 2022. Despite further chaser emails, and an intervention by us, the Council did not respond at stage 1 until 17 October 2022.
29. In its stage 1 response, the Council said:
• it had offered property 2, which Mr X had refused;
• a review concluded property 2 was suitable, and it wrote to Mr X to explain this;
• the Council had therefore discharged the main housing duty, although it accepted one of its officers had said otherwise;
• it would take legal action to end the current accommodation as it owed no housing duty to Mr X, although he could make a fresh application, which it would consider.
30. Mr R raised futher issues in correspondence in November and December 2022. He provided evidence that Mr X was willing to accept the offer of property 2, but it had been withdrawn by the housing association. On 12 December 2022, the Council said it had sent a letter discharging its housing duty and there was no evidence the offer of property 2 had been withdrawn.
31. Mr R contacted the Council again, and on 16 January 2023, the Council confirmed the housing association had withdrawn the offer of property 2. On 9 February, the Council said it would make Mr X another offer of accommodation but only for those members of the household who were part of the original application. It said other family members would need to make a separate homelessness application.
32. Mr R asked the Council to consider the complaint at stage 2 on 28 February 2023. Following a second Ombudsman intervention, the Council responded on 24 July 2023. It said:
• it could not comment on the delay in responding at stage 1 as the officer who dealt with the complaint no longer worked for the Council;
• property 2 was considered suitable because Mrs Z was not part of the original homelessness application, and was subject to immigration control in May 2020;
• since the Council’s housing duty ended at that point, property 1 was not temporary accommodation and Mr X did not have the right to a review of its suitability;
• on 16 January 2023, the Head of Housing had agreed the family would not be evicted without a discretionary offer being made. This was because it had come to light that the offer of property 2 had been withdrawn by the housing association. However, that did not mean the decision to end the main housing duty or refuse a suitability review was incorrect;
• although it is good practice to do so, the case was not flawed by its failure to send a separate discharge of duty letter, since the letter on 10 March 2020 offering property 2 clearly explained the consequences of refusing a suitable offer;
• it was sorry it had taken longer than anticipated to bring the matter to a close. Its complaints team was experiencing a staffing shortage due to unavoidable circumstances.
33. In response to my enquiries, the Council:
• confirmed it had agreed to make a discretionary offer on the basis the housing association did not allow the family to move to property 2. It said it would make an offer as soon as possible but as the average waiting time for a family needing four bedrooms is 13 years, it will also look for suitable private rented accommodation;
• increased work pressures and staffing shortages have meant delays in responding to complaints. It said a new housing manager is due to start in November and it is currently recruiting for three senior homelessness officers. In the interim two agency staff have been recruited to help manage the workload;
• apologised for the delays caused but emphasised this had not caused any detriment to the family in terms of their housing and they have now been advantaged as it has agreed to make a discretionary offer.

My findings

34. When the Council accepted a main housing duty in 2015, it agreed the household comprised three adults: Mr X, Ms Y and Mr Z, all of whom were eligible for housing assistance.
35. By the time it offered property 2, Mrs Z had joined the household. Although she was not eligible for housing assistance due to her immigration status, she was a person “who might reasonably be expected to” live with the applicants. Therefore, the Council was wrong to exclude her when it considered whether property 2 was suitable. This did not cause an injustice because property 2 had two bedrooms and was suitable for four adults. On this basis, the Council would have been entitled to discharge its housing duty if the offer was refused.
36. Mr X was clear that he was not refusing the offer of property 2 but asked for a review of its suitability. Following the review, Mr X took steps to accept the tenancy.
37. When the Council offered property 2, it said if the housing association offered a tenancy, this would constitute a discharge of its duty. Although the review decision said it was satisfied it had correctly discharged its duty because the property offered was suitable, the housing association did not, in fact, offer Mr X a tenancy. On this basis, it was reasonable for Mr X to assume the duty continued and the Council did not send him a letter to say otherwise. On balance, I find the main duty has not been discharged and therefore continues.
38. When a council makes a nomination to a housing association it takes the risk that a tenancy may not be offered. In this case, the evidence shows the Council was aware of the situation by late September 2020 when it identified a possible breach of licence. But it took no steps to rectify the situation at that point, which was fault.
39. As a result of the fault, Mr X’s housing status has been uncertain since 2020. It also meant the Council wrongly denied him a suitability review in 2022.
40. Although the Council has agreed to make a further offer of housing, this could take some time, and it has not agreed to review of the suitability of the temporary accommodation in the meantime, which means the family may be living in unsuitable temporary accommodation.
41. The Council was also at fault for delays in responding to the complaint, and a delay in establishing the facts as part of the complaints process. This added to the frustration caused and meant Mr X and Mr R were put to avoidable time and trouble pursuing the Council.
42. The Council is recruiting additional staff to manage the workload, so no further recommendations are needed in relation to the complaints handling delays.

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Agreed action

43. Within one month of the date of the final decision, the Council will:
1. apologise for the injustice caused by its failure to resolve the situation when it became aware Mr X had not been able to move to property 2, for not carrying out a review of the suitability of the current temporary accommodation, and for failures in its complaints process; and
2. pay Mr X £250 to remedy the avoidable time and trouble pursuing the matter.
44. Within two months of the date of the final decision, the Council will carry out a review of the suitability of Mr X’s temporary accommodation and write to him with the outcome. If the Council decides the temporary accommodation is unsuitable, it should consider the injustice caused by its delay in carrying out the review and remedy this in line with our Guidance on remedies.
45. The Council will provide us with evidence it has complied with the above actions.

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Final decision

46. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman