Summary: Mr X complained about how the Council dealt with his housing needs. We found fault as Mr X remained in unsuitable temporary accommodation. To remedy the injustice caused by this fault, the Council has agreed to apologise and make a payment.

The complaint

1. Mr X complains about how the Council dealt with his housing needs, specifically that:

• he was housed in unsuitable accommodation from February 2020;
• the Council will not move him to more suitable permanent accommodation as he has rent arrears;
• the Council has not dealt with his complaints about this adequately; and
• it will not give him a property big enough to accommodate all of his children.

2. Mr X says having to share a room with his daughter has led to a lack of privacy and dignity for both of them. He also says not having enough room to house all of his children causes him worry and anxiety.

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What I have and have not investigated

3. Paragraph five (below) applies to this complaint. Mr X complains of being housed in unsuitable accommodation from February 2020. I will investigate the period from November 2021, which is 12 months before Mr X originally made his complaint to us about the situation. My investigation will end in February 2023. I have been provided with no good reason to exercise discretion to investigate before this time.

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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. 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. 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.
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 have considered all the information Mr X provided and discussed this complaint with him. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Mr X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Relevant law, policy and guidance

10. 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.
11. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need, it has a duty to secure that accommodation is available for their occupation. This is called the main housing duty. The accommodation a council provides until it can end this duty is called temporary accommodation. (Housing Act 1996, section 193)
12. 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)
13. 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)
14. 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
15. 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. Homeless applicants have a right to ask for a review of the suitability of temporary accommodation provided under the main homelessness duty. (Housing Act 1996, s202)
16. Homeless applicants must request a review within 21 days of the decision. However, applicants can ask a council to reconsider its decision about the suitability of temporary accommodation at any time. This might be necessary, for example, if there is a change in the applicant’s circumstances. This new decision is open to review under s202, with a new 21-day timescale. R(B) v Redbridge LBC [2019] EWHC 250 (Admin)
17. Councils must keep the suitability of temporary accommodation under review. This is particularly the case when an applicant reports a change in circumstances which might affect the suitability of their accommodation. (Homelessness Code of Guidance 17.8)

What happened

18. Mr X approached the Council in January 2020 to register a homelessness application for him and his eldest child, Y.
19. In February 2020, the Council placed Mr X in emergency housing within its area, pending the outcome of his application. The accommodation was a studio flat containing two single beds, with sole access to cooking and bathing facilities.
20. By mid-April 2020, the Council wrote to Mr X and accepted a duty to house him and his daughter in temporary accommodation. In its letter, the Council advised Mr X that if he did not believe the accommodation was suitable he could request a suitability review. The Council said this review should be requested within 21 days of the date of the letter.
21. During a subsequent period of unemployment, Mr X built up significant arrears on his rent account.
22. During December 2021, internal Council emails showed it was aware Mr X viewed the property as unsuitable for him and Y.
23. In mid-January 2022, Mr X complained to the Council that the accommodation was unsafe for Y due to the actions of some adults in the building. Mr X said he believed Y was in danger. He asked the Council to help him even though he was in arrears with his rent.
24. Early in September 2022, Mr X again approached the Council about the suitability of his accommodation. He gave examples of why he did not feel it was suitable for him to share a singled-roomed studio flat with Y who had by this time begun puberty.
25. At the end of October 2022, Mr X again complained to the Council that it had not carried out a re-assessment of his needs.
26. At the beginning of November 2022, Mr X complained to the Ombudsman about the situation. The Council confirmed to us that Mr X had not been through its formal complaints procedure.
27. As a result, the Council then logged a stage one complaint for Mr X and said it would aim to respond within 20 working days.
28. Early in November 2022, the Council emailed Mr X. It said:
• it needed to relocate him and Y to a ‘more appropriate placement’;
• his other, younger children could not stay with him at the studio accommodation; and
• it would contact him when it found an alternative placement but that this would be temporary accommodation until he was able to resolve his rent arrears.
29. Mr X contacted the Ombudsman at the beginning of February 2023 as he had not heard from the Council. The Council confirmed to us that it had not yet responded to Mr X’s formal complaint.
30. A few days later, the Council issued its stage one complaint response to Mr X. In its letter, the Council:
• apologised for its slow response to his complaint;
• agreed the studio flat him and his daughter shared was currently unsuitable;
• confirmed its commitment to source an alternative placement that would better meet their needs;
• said it had offered him two alternative accommodation placements which he had declined;
• confirmed it had no duty to house his other two children as they already had a home with their mother and that they should not be staying overnight as they were not part of his homeless application; and
• advised that due to his significant rent arrears, the only current option to move him would be the responsibility of the Council’s Homeless Emergency Accommodation Team.
31. The Council has confirmed Mr X and his eldest child, Y, moved into two-bedroomed, self-contained accommodation towards the end of February 2023.

Analysis

Unsuitable Accommodation

32. Evidence provided by the Council shows that as early as December 2021, there were internal emails discussing the suitability of the property for Mr X and his daughter.
33. The Council’s response to the internal communications was that as his daughter was under 18, it was unable to allocate another bedroom for her. The Council confirmed the situation was ‘not ideal’, that it was actively looking for bigger accommodation and it would contact Mr X as soon as it found a suitable property.
34. Mr X made multiple further contacts during 2022 that outlined he felt the property was unsuitable. The Council agreed with him in various communications.
35. As part of my enquiries, I asked the Council what steps it had taken to review the suitability of his property under section 202 of the Housing Act 1996 when it became aware he believed it to be unsuitable.
36. The Council responded to say it had advised him of his review rights at the beginning of his time in the accommodation and in its complaint response at the beginning of February 2023.
37. The Council has confirmed it did not carry out any formal review of the suitability of Mr X's accommodation during his time at the property.
38. On the balance of probabilities and with a lack of evidence to the contrary, I am satisfied the Council took the view the accommodation was unsuitable as early as December 2021.
39. As part of my enquiries, I asked the Council what efforts it had made to find suitable new accommodation for Mr X and Y.
40. The Council made two offers of alternative temporary accommodation in 2022, both of which Mr X declined as he viewed the properties as also being unsuitable.
41. In response to my enquiries, the Council confirmed it had no details as to why it did not end its homelessness duty after these properties were offered. It concluded that Mr X’s reasons for declining must have been justified.
42. The Council also commented that there was an acute shortage of accommodation and that Mr X’s rent arrears had prevented him from taking advantage of its housing options, so it placed him on its priority move list instead.
43. Whilst the Council did make two offers of alternative accommodation, these were clearly also unsuitable as it chose not to end its homelessness duty to him at this time.
44. I acknowledge the difficulties the Council faced in sourcing appropriate two-bedroomed temporary accommodation for Mr X and Y. However, the Council still had a duty to provide suitable accommodation for them and failed to do so from the period of December 2021 until February 2023. This is fault. Living in unsuitable accommodation would have caused Mr X and Y avoidable distress and frustration. I have made a recommendation below to remedy this injustice.

Rent Arrears

45. Mr X complains the Council will not move him to permanent accommodation as he has rent arrears.
46. Evidence shows Mr X was paying off his arrears each month by a set amount, but the arrears have recently started to build again. The Council has said it is satisfied with the amount agreed between it and Mr X but that it will take a significant period of time to reduce his balance.
47. The Council is within its rights not to move Mr X onto its list for permanent accommodation due to his significant arrears. I find no fault in the actions of the Council in making this decision.

Complaint handling

48. Mr X complains the Council did not handle his complaints adequately.
49. When the Council logged a stage one complaint for Mr X in early November 2022, it should have replied to him by the end of the month. The Council’s letter said it would advise him if this date needed to change.
50. At the end of January 2023, the Ombudsman wrote to the Council to ask if it had completed its complaints process. At this time the Council then wrote to Mr X to apologise it had not been in touch which was due to an oversight by other services. It said it would be in contact shortly.
51. The Council sent a full written response to Mr X’s complaint within 10 days.
52. The Council has confirmed the complaint had been allocated to the wrong team which was why Mr X had not received a response. This is fault and would have caused avoidable frustration to Mr X. There is, however, no ongoing injustice as the complaint was responded to and next steps appropriately signposted. I am satisfied, in the circumstances of this complaint, the apology offered by the Council for its late response is a satisfactory remedy for any injustice caused.

Accommodation of Mr X’s other children

53. Mr X complains the Council will not allocate him a property big enough to house him, Y and his other two younger children, A and B. Mr X’s younger children live with their mother.
54. The Council advised Mr X in October 2022 how to make a request to have A and B included on his housing application. The Council asked Mr X to provide copies of the children’s birth certificates. Mr X provided a copy of their passports. The Council has confirmed it has no records of the assessment being taken any further.
55. At the beginning of February 2023, Mr X was re-interviewed by the Council. The Council confirmed to Mr X that caselaw says the Council was not required to provide A and B with a second home when they already have a home with their mother. On this basis, the Council declined to provide Mr X with a larger property.
56. The Council is correct in its stance that it has no duty to provide A and B with a second home. As such, it was within its rights not to add them to Mr X’s homelessness application. I am satisfied the Council has not acted with any fault in this matter.

Human Rights Act

57. As part of my enquiries, I asked the Council how it had shown regard for Mr X and Y’s human rights under Article 8 of the Human Rights Act 1988. The Council responded to say that it fully endorsed the Act and made every effort to provide appropriate accommodation for those who needed it, at the time of allocation.
58. The Council also said in fulfilling its statutory obligations to house homeless people and considering the supply of accommodation available to it, it might not always be able to place people in accommodation that is suitable.
59. I am satisfied, that in the circumstances of this complaint, the Council has demonstrated it has shown regard for Mr X and Y’s human rights.

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Agreed action

60. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Mr X; and
• pay Mr X £150 per month to recognise the unsuitability of his accommodation for the period of December 2021 to February 2023. This is a period of 14 months, totalling £2100.
61. The suggested remedy amount should be deducted from any arrears Mr X owes the Council rather than made as a direct payment to him.
62. The suggested payment is in line with the Ombudsman’s guidance on remedies.
63. The Council should provide us with evidence it has complied with the above actions.

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Final decision

64. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman