The Investigation

The complaint

1. Miss X complained the Council’s housing team:

• delayed in dealing with her homelessness application and wrongly treated her as a domestic abuse victim;

• provided unsuitable emergency accommodation outside its area between September and December 2021;

• provided unsuitable alternative temporary accommodation in Council B’s area from December 2021 onwards; and

• following a complaint, identified an alternative temporary property for the family in November 2022 but had not given them a date to move there.

2. Miss X complained the Council’s education and children’s services:

• delayed in transferring her son, Y’s, Education, Health and Care (EHC) plan to Council B after the family moved to temporary accommodation there; and

• failed to provide assistance with home to school transport for Y.

3. Miss X says the Council’s failings have had a significant detrimental impact on the family. In particular, she has had to take her children, including a disabled son, Y, and a pre-school child in a pushchair across London on public transport for two hours each way to get the children to school. This has affected Y’s attendance and he has often been late, which means he has missed core subject learning. It has meant early starts and long delays, which affected his sleep, putting him at higher risk of seizures. The family have also been a long way away from extended family and support networks, and from relevant hospitals for medical appointments.

Legal and administrative background

The Ombudsman’s role and powers

4. 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)

5. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

6. 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)

7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)

8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this report.

9. 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.

10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted as parts of the complaint relate to education and children’s services.

Relevant law and guidance Homelessness

11. 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.

12. If a council is satisfied an applicant is eligible for assistance and homeless then the council will owe the ‘relief duty’. This requires the council to take reasonable steps to help to secure suitable accommodation for any eligible homeless person for at least six months.

13. The council must complete an assessment if it is satisfied an applicant is homeless or threatened with homelessness. It must notify the applicant of the assessment. This assessment must include:

14. The council should work with the applicant 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 (PHP).

15. At the end of the 56 day relief period, the council should decide whether it owes the applicant the main housing duty. It will owe the main housing duty if it is satisfied the applicant is homeless eligible for assistance, in priority need and not intentionally homeless.

Interim and temporary accommodation

16. If the council has reason to believe the applicant may be homeless, eligible for assistance and in priority need, it must provide emergency accommodation whilst it makes its enquiries, if the applicant asks for it. Applicants with dependent children are in priority need.

17. Emergency accommodation provided at the relief stage is called interim accommodation. It changes to temporary accommodation when the council accepts the main housing duty. At either stage, the accommodation must be suitable for the applicant and anyone who could reasonably be expected to live with them. (Housing Act 1996, section 206, and Homelessness Code of Guidance chapter 17)

18. The council 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, paragraphs 17.4 & 17.9)

19. Chapter 17 of the Code says:

• 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 paragraph 11.7)

• councils should secure accommodation within their area if reasonably practicable;

• councils should try to secure accommodation that is as close as possible to where an applicant was previously living. Where possible, the council should seek to retain established links with schools, doctors, social workers and other key services and support;

• when securing accommodation for families with children, councils should be mindful of their duties under the Children Act 1989 to safeguard and promote the welfare of children;

• when placing an applicant outside its area, the council should notify the council in whose area the accommodation is situated (the receiving council);

• before a family with school-aged children is placed out of its area, the council should liaise with the receiving council and make every reasonable effort to ensure arrangements are or will be put in place to meet the child’s educational needs;

• account should be taken of medical facilities and other support currently provided for the applicant and their household, and should consider the impact if such support were removed or medical facilities were no longer accessible;

• when making offers of accommodation, the council should clearly explain why it considers the property to be suitable. For families with school-aged children, it should set out how the impact on their education has been assessed and what arrangements have been made for their education in the out of area placement; and

• the council should record how decisions to place an applicant out of area have been reached, taking into account the household’s collective and individual needs.

20. The applicant can ask for a statutory review of the suitability of temporary accommodation but has no right to a review of the suitability of interim accommodation.

Housing register

21. The demand for social housing far outstrips the supply of properties in many areas. To manage the demand, every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing. Most councils operate a housing register, which records the details of those waiting for housing. All housing allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))

22. 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))

23. This Council’s scheme places applications into one of its “access queues”, which reflect the type of accommodation needed or the principal “reasonable preference” group that applies. This includes a homeless access queue and a social care queue. Each year the Council considers the forecast supply of accommodation available for allocation to determine how this should be distributed across the access queues for that financial year.

24. Within the “access queues”, the Council awards four priority bands.

• Band A is the highest priority band. It includes urgent cases, including those where it has accepted a relief duty.

• Band B includes all accepted homelessness cases in temporary accommodation provided by the Council (unless matched to a private sector offer).

25. Properties are allocated to the applicant in the highest band, who has been registered for the longest period.

Special educational needs

26. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.

27. Statutory guidance: Special educational needs and disability code of practice: 0 to 25 years (the Code) sets out councils’ responsibilities in relation to EHC plans, including:

• to review the EHC plan annually (para 9.169). The council can delegate the responsibility of arranging the annual review to the child’s school, but must attend the review meeting if asked to do so (para 9.173);

• if the child moves to another area, to transfer the EHC plan to the new council (para 9.157);

• the child should remain at the school named in their EHC plan after the transfer unless attendance would be impractical, for example, because the distance from their new home to school would be too great (para 9.159);

• the new council must review the plan by one of the deadlines stated (para 9.161).

Home to school transport

28. The statutory guidance: Home to school travel and transport guidance (2014) (the guidance relevant at the time of the events in this complaint) said, at paragraph 35, that “best practice suggests that the maximum each way length of journey for a child of primary school age to be 45 minutes and for secondary school age 75 minutes, but these should be regarded as the maximum”.

29. If the EHC plan names a school without conditions and it is the only school named, then that school is the nearest suitable school for home to school transport purposes. The council must provide home to school transport to that school if it decides the child is eligible under its home to school transport policy.

30. The Council’s policy says it will consider whether the child can reasonably walk to school or use public transport with a responsible adult, under the offer of free transport by Transport for London. The Council may provide travel assistance in several ways, including by providing a transport assistance budget (TAB) to cover travel costs.

31. The Council’s website says:

“The travel arrangements must enable your child to reach school without such stress, strain, or difficulty that they would be prevented from benefitting from the education provided. They must allow your child to travel in reasonable safety and in reasonable comfort.

Ideally, your child should not be expected to make several changes on public transport. Best practice suggests that a child of primary school age should not travel for longer than 45 minutes and a child of secondary school age should not travel for more than 75 minutes”.

What we have and have not investigated

32. We would not usually investigate events that occurred more than 12 months before the complaint to us, unless there are good reasons to do so.

33. Miss X complained to us in February 2023 about events going back a number of years. She told us she was living in property 1 with her partner and their children. She said the property was overcrowded and was affected by mould and disrepair. The Council did not agree it was statutorily overcrowded and refused to accept an application to its housing register.

34. Miss X said that by September 2021, she had become very distressed as a result of her housing conditions at property 1 and her relationship had broken down. She sought help from the Council, and it advised her to make a homelessness application.

35. We will not consider events before September 2021 as these complaints are out of time and there are no good reasons why Miss X could not complain at that time. Further, it is unlikely there would be sufficient records available to reach robust conclusions and we would not be able to achieve a worthwhile outcome.

36. We have decided there are good reasons to consider the events from September 2021 because we are persuaded that she could not complain sooner

about those matters, given she was caring for a disabled child and had significant difficulty getting her children to school whilst living outside the Council’s area.

37. We have also not investigated Miss X’s complaints about the Council’s children’s services and education that:

• the Council failed to transfer early help funding to Council B in December 2021. The Council made an inter-agency referral to Council B but early help funding is not designated for specific children so did not need transferring;

• the Council did not attend the review meeting for Y’s EHC plan in June 2022. The Council is entitled to ask the child’s school to arrange the annual review meeting and is not required to attend unless specifically asked to do so. In any case, this has not caused a significant injustice;

• the attitude of an officer dealing with Y’s EHC plan was dismissive and they discriminated against the family. The Council said the officer has since left its employment, so it was not able to investigate this. It is unlikely we could add anything more to the Council’s response about the officer’s attitude;

• the Council offered mediation in late 2022, after Miss X lodged an appeal to the SEND Tribunal, which it later cancelled. We cannot consider matters that are closely related to an appeal. In the event, the appeal did not proceed because Y’s EHC plan was transferred to Council B and the cancellation of the offer of mediation was because this Council no longer held the plan;

• the Council ignored Miss X’s request for salt therapy (which involves breathing air with tiny salt particles) to assist with Y’s respiratory issues to be included in his EHC plan. The original request was made before the period we are investigating. If Miss X still wants Y to have salt therapy included in his EHC plan, she should raise this at the next review of his EHC plan, which is now maintained by Council B, not the Council under investigation.

How we considered this report

38. We produced this report after examining relevant documents, discussing the complaint with Miss X, making targeted enquiries of the Council, and making third party enquiries of Council B.

39. We gave Miss X and the Council a confidential draft of this report and invited their comments. We considered the comments received before completing this report.

What we found

What happened

40. Miss X completed an online homelessness application on 23 September 2021. She said she needed to leave her current accommodation (property 1) because her relationship had broken down some time ago and she was now on the verge of a breakdown. She answered “no” to questions about domestic violence and abuse. She stated she had children, one of whom, Y, had significant disabilities. This meant he had “some difficulty” getting around property 1 and with using internal stairs. She also said she had a medical condition, which meant she had “some difficulty” with internal stairs. The online application form asked for the name and address of the schools the children attended but did not ask for any other information, such as whether any of the children had an Education, Health and Care (EHC) plan. Miss X’s youngest child was under a year old at the time she made the application.

41. Council records show an officer tried to call Miss X on 24 September and sent an email when they were not able to speak to her. On 28 September, Miss X attended the Council offices in some distress. She said she had a telephone appointment booked with the Council for the previous day, but no-one had called her. She said living with her ex was unbearable and was affecting her mental health to the point she felt suicidal, but the Council was ignoring her.

42. The Council arranged an emergency appointment, at which it assessed her housing situation. The assessment records Miss X was eligible for assistance and was homeless. The record stated: “The Assessment is limited to considering eligibility and homelessness/risk of homelessness within 56 days”. Based on the assessment, the Council accepted a relief duty and confirmed that in writing the same day. It issued a personalised housing plan (PHP) and arranged interim accommodation. The PHP said Miss X needed to provide further documents, and that she was being referred to the Council’s Private Rented Sector (PRS) team for assistance in looking for PRS accommodation. We have not seen evidence of any action or contact by the PRS team.

43. The Council’s pre-offer checklist, completed on the day of the homeless assessment and prior to offering interim accommodation at property 2 in late September 2021, stated “Stairs are not an issue. There is no known reason why any of the household cannot climb up to 4 flights of stairs”. Property 2 was outside its area, in Council A’s area. Miss X told us it was not suitable because it was on the third floor and access was via external metal stairs. This was difficult for Miss X to manage with a disabled son with mobility issues and a baby in a pushchair.

44. An undated internal communication, which appears to have been made in late September 2021, when the relief duty was accepted, stated that the Council’s children’s services had made a social care queue application for the housing register, which added “an additional layer of priority to an application”. We have not seen any other reference to the social care queue referral in the records.

45. Council records show Miss X attended the Council offices on 5 October to provide documents it had asked for. Miss X said the housing officer failed to return calls or respond to emails after that, so she gave up trying to contact them.

46. On 29 November 2021, Miss X emailed the housing team and children’s services, attaching a short video showing the outside of property 2, including the external stairs she needed to use to access it. She said she had almost slipped twice with the buggy and that Y, who had mobility issues, was slipping regularly. She said she would not be able to get the children up and down the stairs during the winter. She explained she had to leave at 6:15am to get the children to school on time, at which point the frost was thick on the metal. She also said part of the walkway was so rusted and rotten the corner was unattached and two of the children were scared to cross it. She said she was frightened about bringing the buggy up and down the stairs, especially as the baby was getting heavier.

47. In early December 2021 Miss X had an accident using the stairs at property 2 whilst carrying her baby in a buggy. Children’s services contacted the housing team on 7 December to explain about the accident and asked it to consider a move due to:

• the access into/out of the property being via “treacherous” external metal stairs;

• there not being enough beds for the children, which meant they had to share;

• the distance from the children’s school, which meant a very early start and a long day, causing the children to be very tired and about which the school had raised concerns. The travelling was also very costly for Miss X, who was on a low income.

48. After receiving the email from its children’s services, the Council’s housing team immediately agreed to move her. Two days later, it identified alternative interim accommodation at property 3. Property 3 was in Council B’s area. Miss X told us property 3 was unsuitable because it was too far from her children’s primary school. She said she had a two hour journey each way by public transport, with a disabled child and a child in a pushchair. There is nothing in the Council’s letter to Miss X offering the property to show how it considered property 3 was suitable, and the pre-offer checklist had not been updated since it offered property 2. In response to our enquiries, the Council said Miss X had not made objections at the time of the offer.

49. Although Miss X’s son, Y, was disabled and had an Education, Health and Care (EHC) plan, which named a specific primary school for him to attend, there is no record of any contact between the Council’s housing team and its special educational needs and disability (SEND) team about the move. Nor any advice given to Miss X about contacting the SEND team herself.

50. Miss X said she spoke to the SEND team at Council B by telephone in December 2021. Council B does not have a record of this contact. There is no record of any communication between the two councils at this time.

51. Miss X told the Council’s children’s services early help team that she had moved to Council B’s area in December 2021. The early help team made a referral to Council B’s children’s services early help team, following which this Council closed its file. The referral form stated that Y had “significant additional needs” but the question: “Does the child have an Education, Health and Care (EHC) plan?” was not answered. There is no record of any contact between the Council’s early help team and its SEND team.

52. The Council said Miss X spoke to its housing team in March 2022 and confirmed she wanted to live in this Council’s area and therefore did not want to transfer her children to a different school. The Council does not have a written record of that discussion.

53. There is a record of a discussion on 30 May about the two-hour journey for Y to his school. The record stated Miss X was given advice about housing options, including looking for private rented accommodation but the record does not provide details of the advice given. A few days later, Miss X reported an incident involving one of her children being assaulted on the train. The record stated the Council updated its pre-offer housing checklist as it was out-of-date. We have not seen the checklist prepared on that occasion.

54. The school arranged an annual review of Y’s EHC plan in June 2022. It reported to the Council that no changes were needed to Y’s EHC plan but said the difficulty of travelling to school from property 3 meant Y’s attendance had reduced and he was often late, missing core subject learning. In early July, the school wrote to the Council to support Miss X’s request for housing nearer to Y’s school and set out the detrimental effect the commute was having on Y’s health and education.

55. Also, in early July, the Council decided to maintain Y’s EHC plan (following the annual review in June) without making any amendments to it. It wrote to Miss X with its decision. In response to our enquiries, the Council said the contact address for his EHC plan was property 1, where his father was still living, and it was unclear if Y was living full-time with Miss X. It also said the annual review record indicated Miss X was hoping to return to live in its area and was not seeking a change of school. It accepted it could have done more to understand the living situation and transfer the EHC plan to Council B.

56. In early September 2022, Miss X approached Council B to ask whether Y could move to a school nearer to property 3. She said Council B made some enquiries but told her this Council had refused to transfer the EHC plan, which meant changing school was not possible because the plan named his current school. Council B was not able to provide records for these calls or confirm the advice given.

57. Also in early September, the Council requested the transfer of Y’s EHC plan to Council B, after establishing that Y’s main residence was with Miss X in Council B’s area. There was a delay in transferring the plan, which was not completed until December 2022, but this was not due to fault by this Council.

58. Also in September 2022, the Council appointed a new housing officer. They asked Miss X to complete a DASH assessment. This is an assessment that considers the risks of domestic abuse. Miss X refused to complete the assessment as she said she was not a victim of domestic abuse. She said her relationship had broken down due to the poor housing conditions the family had been enduring. The Council also asked Miss X to provide additional documents.

59. In October 2022, Miss X applied to the Council for home to school transport for Y. The following day, the Council told her she needed to apply to Council B for assistance with school transport because she was living in Council B’s area.

Miss X said she did not apply to Council B at that point because this Council still maintained Y’s EHC plan. Instead, in early November, Miss X started an appeal to the SEND Tribunal. The appeal documents show:

• she disagreed with the contents of section B (setting out Y’s SEN) and section F (the support to meet those needs);

• the health section had not been updated following a further diagnosis and Y’s main health diagnosis was omitted;

• she said the Council had moved her to property 3, two hours away from Y’s school and had not provided assistance with home to school transport.

60. On 15 November 2022, the Council accepted the main housing duty and wrote to Miss X to confirm this. Its records stated Miss X had confirmed the children were still attending the same primary school and she was making the two hour journey twice each day. There is a record of a discussion with Miss X a week later in which she said she would be grateful for any offer within the Council’s area and that Y could manage some stairs but not too many.

61. Also on 15 November 2022, the Council accepted Miss X onto its housing register and awarded her priority band B. It assessed her as needing three bedrooms. In response to our enquiries, the Council said it had not considered accepting her onto its housing register earlier because offers during the relief duty period are only made in urgent cases. It said an urgent offer was not considered necessary as Miss X was in interim accommodation. It also provided records to show that in 2022-23:

• the average waiting time for a three-bedroom property was 55 months (all queues);

• the average wait in the homeless queue (all properties) was 39 months; and

• the average wait in the general needs queue, which includes urgent and discretionary cases, was 14 months.

62. Two days later, Miss X asked for a review of the suitability of the temporary accommodation, property 3. Although it initially acknowledged this and asked Miss X to send further information, it told us it refused to carry out the review because the request was out of time and there was no good reason for the delay.

63. On 22 November, the Council offered Miss X temporary accommodation at property 4 which was in this Council’s area. Miss X was not able to move to property 4 until 23 May 2023. In its complaint response, the Council said this was due to a shortage of contractors to carry out works to the property. Miss X sent several emails asking for updates. On 25 January the Council told her that general works had been completed but there had been a water leak from the flat above that required investigation. It said it would keep Miss X updated, but there were no updates after early February.

64. In response to our enquiries, the Council said:

• the water leak from the property above property 4 needed several visits before the source could be identified. This included making checks to the roof, clearing the gutters and inspections of the bathroom, which was difficult because the property was overcrowded;

• following the repair of a toilet cistern crack in April 2023, the water leaking into property 4 finally stopped. However, the ceilings and walls needed time to dry before decoration as they had suffered penetrating damp for a long period;

• its usual process would be that, after accepting a property, the applicant would not be contacted again until the works were completed, and keys were ready for collection.

Additional information

65. In its complaint response dated 4 January 2023, in relation to the concerns about the housing team, the Council:

• accepted there were delays in processing the homelessness case, but it had quickly placed Miss X in temporary accommodation, which meant she was not left in a place of risk;

• said demands on the service in the previous two years had been “extreme” at a time when it was dealing with pandemic recovery, increased illness and absences amongst staff, and challenging working conditions, including major restructuring. It said it was recruiting additional staff to ensure applications were concluded within a reasonable timescale;

• apologised for the delays, which it said were unavoidable, and added it was satisfied that despite the delays Miss X was “not adversely affected long term, as we ensured you were safely and adequately housed”.

66. In response to our enquiries, the Council:

• said that in the year ending March 2023, 53% of temporary accommodation was provided within its Borough, 12% in other South West London Boroughs and 24% elsewhere in London or outside London. It said most of the out of Borough placements were for bed and breakfast or annexe accommodation due to a lack of availability in its area and were often at short notice;

• provided information about how it prioritises accommodation within its area. This says, “if accommodation in the Borough is available, and there is no known higher priority case for it, the household being considered at the time should always be allocated that accommodation. If accommodation within the Borough is not available, then accommodation should be allocated as close to the Borough as possible”;

• said its policy says priority will be given for accommodation in or close to the Borough for families with children in education in the Borough where those children are too young or otherwise unable to commute to school and back again unaccompanied;

• explained it has a dedicated procurement team working with providers and landlords to secure properties for use as temporary accommodation. It has an ongoing social media and publicity campaign to attract new landlords. It has invested in four additional procurement officers over the last year; and

• provided its temporary accommodation allocation guidelines for 2023-24, which shows an increase in homelessness applications in 2022-23 of 13%. It also sets out the difficulties faced in placing applicants in private rented accommodation in the Borough due to the benefit cap, and significant gaps between the Local Housing Allowance (LHA), which determines the amount of housing support a household can receive, and the average or median rents for properties, particularly those with two or more bedrooms.

Analysis and findings

Housing

Homelessness application

67. Miss X completed an online application on 23 September 2021 and the Council tried to contact her the following day. There appears to have been some miscommunication around this time, but the Council arranged an emergency assessment when Miss X attended its offices on 28 September. Although we appreciate the delay caused distress to Miss X this was not due to Council fault.

68. The Council issued a PHP, which said it had referred Miss X to its PRS team to assist her to find PRS accommodation. We have not seen any evidence of action by the PRS team to identify accommodation for Miss X, nor any contact with her. This was fault. There is no record the Council kept the PHP under review, which is further fault. However, this did not cause any significant injustice as Miss X was clear she did not want to consider private rented accommodation.

69. The Council accepted a relief duty on 28 September 2021. The relief duty usually lasts for 56 days during which the Council makes enquiries to decide whether it owes the main housing duty. The 56 days in this case ended on 23 November 2021. Council records show no action was taken between early October 2021 and September 2022 when a new housing officer was allocated. The Council did not accept the main housing duty until 14 November 2022, almost a year later than it should have done. This significant delay was fault.

70. Miss X also complained about being asked to complete a DASH assessment in September 2022. It was appropriate for the Council to explore whether there was evidence of domestic abuse because her homelessness was connected to a relationship breakdown. It was not fault for it to ask her to complete the form.

Interim accommodation

71. The Council’s initial assessment on 28 September 2021 did not include an assessment of Miss X’s housing needs. A pre-offer checklist was completed the same day, which wrongly recorded there were no issues with stairs, despite the homelessness application form indicating both Miss X and her son, Y, had difficulties with stairs. Although the application included the name and address of the children’s primary school, it did not ask about SEN or whether any of the children had an EHC plan, and the housing team did not make enquiries about this. The failure to properly assess the family’s housing needs was fault.

72. This failure meant the Council did not have the information needed to decide whether the interim accommodation it was arranging was suitable for the household. In particular, the Council failed to consider Y’s education and the distance of accommodation from his school.

73. The Council arranged interim accommodation at property 2 in late September 2021. There is no record to show it considered the distance of this property from the children’s school. Miss X said the journey time was similar to the journey from property 3, which was two hours each way. There is also no record of how the Council considered Miss X could manage the external metal stairs with a disabled child and another child who was less than a year old at the time and in a buggy. On this basis, the Council failed to demonstrate it properly considered whether property 2 was suitable, which was fault.

74. If there was nothing else available on the day, property 2 may have been suitable as an emergency option for a short time whilst the Council looked for alternative accommodation, but we have not seen any evidence to show the Council took any further steps to identify an alternative after placing the family there. We note the Council offered alternative accommodation two days after children’s services reported concerns about the external stairs in early December 2021, which suggests it could have moved the family sooner if it had been more proactive. On balance, we find property 2 was not suitable.

75. Miss X moved to property 3 in December 2021. We have not seen any record to show how the Council considered this property was suitable: it simply said Miss X did not object to it. In particular, we have not seen any record to show whether or how it considered the distance of this property from the children’s primary school, nor that it considered Y’s disabilities or SEN and EHC plan and the impact of those on the journey to school.

76. On balance, if it had properly considered the matter, the Council would have decided property 3 was not suitable given the considerable distance from the children’s school. It would then have had an immediate duty to identify alternative interim accommodation.

Suitability review

77. Miss X asked for a review of the suitability of property 3 in November 2022. Although the Council initially accepted the request, it told us it had not carried out the review because it decided the request was out of time. There was no basis for this decision. Although Miss X had lived in property 3 for almost a year at that point, she only had a statutory right of review when the Council accepted a main housing duty in November 2022. She asked for a review two days after it told her she had the right to request one. The failure to carry out a statutory review was fault. A week later, the Council identified alternative temporary accommodation at property 4.

78. It is a striking feature of this case that the Council let matters drift unless prompted by either an intervention by its social services team or when Miss X requested a review.

Delays with alternative temporary accommodation

79. The Council offered Miss X alternative accommodation at property 4 in November 2022. The Council told her in January 2023 that the general works needed had been completed but an issue had arisen due to a leak from the flat above. Miss X was not able to move into property 4 until May 2023.

80. The Council has explained why it took longer than expected to identify the source of the water leak, carry out the necessary repair and then carry out remedial work to property 4. We are satisfied there was no undue delay in addressing these issues.

81. Although it was not obvious at the outset that it would take some considerable time before property 4 would be available for occupation, we would have expected it to consider alternatives when it became clear that there was a delay, particularly given Miss X was living in unsuitable temporary accommodation. We have not seen any evidence it did so, which was fault.

82. The Council said it does not usually provide updates between offering a property and it being available for occupation. However, in this case, it said it would do so in January 2023 but then failed to provide Miss X with updates after early February. The failure to keep Miss X updated after agreeing to do so was fault. This caused avoidable uncertainty and frustration for Miss X.

Housing register

83. The Council did not accept Miss X onto its housing register until November 2022 when it accepted the main housing duty. It said it did not consider this whilst it owed a relief duty because, under its allocations scheme, it would only allocate social housing to homeless applicants in urgent cases, and it did not consider her case was urgent.

84. It is not clear why the Council considered the case was not urgent, given Miss X was placed in interim accommodation two hours away from her children’s school, and a referral had been made by its children’s services indicating its concern for the family. It has not produced any record to show how it considered this in 2021 and we have not seen a decision letter sent to her explaining its reasons for not accepting her onto the housing register at that time and giving her the right to ask for a review of that decision if she disagreed with it. This was fault. Miss X is left with uncertainty over whether the outcome would have been different but for that fault, which is an injustice to her.

85. The Council should have accepted a main housing duty in November 2021 at the end of the 56-day relief period. It did not do so until November 2022, which resulted in a delay in accepting Miss X’s housing register application. The Council should back-date Miss X’s priority to November 2021 to remedy the injustice caused by this delay.

86. Given the complexity and lack of clarity of the allocations scheme and the uncertainty about whether Miss X would have been placed in band A if the Council had properly considered whether her case was urgent, we cannot say whether Miss X missed out on an offer of housing as a result of this fault.

Transfer of Y’s EHC plan

87. Where a child with an EHC plan moves to another council’s area, their plan should be transferred to the new council. An exception may be made where the move is expected to be of very short-term duration but, although Miss X was keen to move back to this Council’s area, there was no indication here that property 3 would be short term when she was offered it.

88. The housing team failed to consider the children’s schooling when it offered interim accommodation and was not aware Y had an EHC plan. This fault meant it did not notify its SEND team that Y had moved to Council B’s area, nor advise Miss X to do so.

89. Although Miss X said she told Council B’s SEND team she had moved into its area in December 2021, Council B does not have a record of this and there is no record of any contact between the Councils at that time. Whilst we have no reason to doubt what Miss X said, we cannot establish that Council B’s SEND team were aware Y was living in Council B’s area until early July 2022 when it received the record of the annual review held by this Council in late June 2022.

90. The annual review record stated that Y shared his time living with Miss X and his father, but the contact address for the EHC plan was property 1, where Y’s father still lived. The Council accepts it could have done more to establish the living position. The failure to do so was fault.

91. This caused a two-month delay (to early September 2022) in starting the process for transferring Y’s EHC plan to Council B. Council B did not accept the transfer until early December, but that was not the result of fault by this Council.

92. During that period, Miss X appealed this Council’s decision (made in July 2022) not to amend Y’s EHC plan. There was then some confusion about which council should participate in mediation and which council should be the defendant in the Tribunal action. This was ultimately resolved by a Tribunal Order.

Home to school transport

93. Also, as a result of the housing team’s failure to consider the children’s schooling when placing the family in interim accommodation, there was no advice or signposting given to Miss X about assistance with home to school transport for Y.

94. Although Miss X raised concerns about the travel to school on a number of occasions, no advice or support was offered with this. The provision of a taxi or similar for Y from home to school may have made property 3 suitable, as it would have reduced the journey time and would have been a much easier journey, but the Council did not consider any school transport options. This was further fault.

95. Y’s home to school journey was taking two hours each way. The statutory guidance and Council’s website says for a child of Y’s age the maximum journey time should be 45 minutes. The Council was aware, or should have been aware, the journey time exceeded this statutory guidance. It failed to act to reduce it, and this was fault. The travel arrangements must enable the child to reach school without such stress, strain, or difficulty that they would be prevented from benefitting from the education provided. In June 2022 Y’s school reported that his attendance had reduced, and he was often late, missing core subject learning. Y’s school said the journey was having a detrimental effect on his health and education. This is evidence of the injustice caused to Y, and Miss X in accompanying him, because of the fault.

96. Miss X applied for home to school transport in October 2022. The Council refused to consider her application because she was living in Council B’s area. Its records show it had also taken into account that Y’s EHC plan had been transferred to Council B, although in fact the transfer was not accepted by Council B until December 2022. Therefore, the Council’s decision was flawed as it was based on incorrect information. As there was fault, we can question the outcome.

97. Where a council names one school on an EHC plan, that is the nearest suitable school for the purposes of home to school transport. In this case, the Council was still responsible for Y’s EHC plan at the time Miss X applied for transport assistance and Y was attending the school named in his EHC plan. It was under a duty to ensure the provision set out in the plan was delivered and at the school named in his plan. Therefore, the Council should have considered her home to school transport application and the failure to do so was fault. That said, the EHC plan was transferred to Council B in early December so it is unlikely the Council would have been able to arrange the transport Miss X was seeking within that timescale.

Summary of the injustice caused by the faults identified

98. As a result of failings by the Council’s housing team and, in particular, its failure to carry out a proper assessment of their housing needs at the outset:

• Miss X and her family remained in unsuitable interim and temporary accommodation from late September 2021 to mid May 2023, a period of 19 months;

• whilst living in property 2, Miss X had to manage potentially dangerous external stairs with a disabled child and a buggy, and Miss X and her children had to endure a long journey to the children’s school;

• whilst living in property 3, they had a two-hour journey to the children’s primary school using public transport. Miss X had to make this journey at her own expense and time, with her children, including a disabled child and a young child in a buggy when the Council was under a duty to provide transport as they were eligible children;

• the long journey to school, meant an early start and a long day, and Y’s school reported he was often late and tired, which meant he missed out on learning. Miss X said the tiredness also increased the risk of seizures;

• Miss X did not receive advice or support with transferring Y’s EHC plan or considering a transfer to a school in Council B’s area;

• Miss X did not receive advice or support about home to school transport. Since Y has significant disabilities, was attending the school named in his EHC plan, and the plan was maintained by this Council, he should have been entitled to transport assistance from September 2021 to December 2022 when the plan was transferred to Council B. This meant Miss X incurred significant avoidable costs and she was put to unnecessary time and trouble;
• the delay in accepting a main housing duty meant Miss X did not have a right to a statutory review of the suitability of the accommodation the Council provided between November 2021 (when the duty should have been accepted) and November 2022 (when it was accepted). Had a review been carried out, it would have identified the accommodation was not suitable; and
• the delay in accepting a main housing duty also caused a delay in accepting a housing register application and, although she is unlikely to have missed an offer due to the long waiting times for housing, her current priority date is later than it should have been.

Recommendations

99. 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)

100. In addition to the requirements set out above, within three months of the date of this report the Council has agreed to:

• apologise to Miss X for the injustice caused by the failings identified;

• pay Miss X £10,000 for the injustice caused to her and her family by the failings identified. This is calculated on the basis of £500 a month for 20 months from September 2021 to May 2023;

  This is higher than the £150 to £350 suggested in our guidance on remedies for unsuitable accommodation, to reflect the significant difficulties caused by the two-hour journey to/from school, including the disruption to Y’s schooling by being late and tired, and the cumulative frustration and distress caused due to the long time period in which the family had to endure this journey;

• pay Miss X a further £3,800 to reflect the additional costs of £200 a month she said she incurred in taking the children to school whilst in unsuitable housing for 19 months;

• back-date Miss X’s priority date on the Council’s housing register to 23 November 2021, the point at which the Council should have accepted an application;

• share this report, and a summary of what went wrong and changes made to ensure the faults do not recur, with all staff in its homelessness and housing allocations teams to identify learning from this case;

• remind relevant staff of the need to properly consider the applicant’s housing needs when carrying out a homelessness assessment, including any medical needs the household has and whether any children have special educational needs and an EHC plan. This should form the basis for the Council’s assessment of the suitability of any accommodation it offers homeless applicants;

• review its processes, particularly around the carrying out of homelessness assessments and the preparation of PHPs to ensure that, where appropriate, homeless applicants are given information about who to contact for advice and assistance in relation to home to school transport assistance, changing a child’s school, and about contacting the SEND team if a child’s EHC plan may need to be transferred to another council;

• remind relevant staff of the need to notify the receiving authority where it places a household outside its area, and work with the receiving authority in advance of the placement to ensure the educational needs of any children in the household are met;

• remind relevant staff of the need to ensure that PHPs are kept under review, and that a review is carried out whenever the duty changes as a minimum;

• remind relevant staff of the need to consider whether interim and temporary accommodation is suitable, record how they considered this, and provide brief reasons in letters offering accommodation, with review rights if applicable;

• review its processes to ensure that where it takes more than a month between it offering alternative interim or temporary accommodation and it becoming available for occupation, it considers alternative properties for the applicant. It should also ensure it updates the applicant with the reason(s) for the delay and the likely timescale for the accommodation being available. It should provide updates every month after that until the accommodation is available for occupation; and

• remind its school transport appeal managers and panel that they should check the latest position regarding EHC plans and remind them of the maximum journey times set out in the statutory guidance.

101. The Council cooperated fully with our investigation and has accepted our recommendations.

Decision

102. We have completed our investigation into this complaint. We found fault by the Council causing injustice. We have recommended action to remedy that injustice and prevent recurrence of the fault.

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