Summary: Miss X complained the Council failed to move her and her family into suitable temporary accommodation after its review agreed her accommodation was unsuitable. We found fault because Miss X remained in unsuitable accommodation for a significant amount of time. To remedy the injustice caused, the Council has agreed to apologise and make a payment to Miss X.

The complaint

1. Miss X complains the Council failed to move her family, including her young disabled daughter, Y, to suitable temporary accommodation since it agreed the accommodation was unsuitable, in December 2021.
2. Miss X says that the property was unsuitable for Y and her disability and this affects Miss X’s physical and mental health and the family’s everyday life.

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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 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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 investigated

7. Paragraph 4 (above) applies to this complaint. I have exercised discretion to investigate Miss X’s complaint back to August 2021 which is when she moved into the accommodation and raised concerns about its suitability.

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How I considered this complaint

8. I have considered all the information Miss X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Miss 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

Homelessness

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 someone is eligible, homeless, in priority need and unintentionally homeless it will owe them the main housing duty. Generally, the council carries out the duty by arranging temporary accommodation until it makes a suitable offer of social housing or private rented accommodation. (Housing Act 1996, section 193)
12. 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 suitability review of temporary accommodation provided under the main homelessness duty. They must request a review within 21 days of the decision. (Housing Act 1996, s202)
13. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of their household. This duty applies to interim accommodation and accommodation provided under the main housing duty. (Housing Act 1996, section 206 and (from 3 April 2018) Homelessness Code of Guidance 17.2)
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)

What happened

15. Miss X currently lives with her family out of the Council’s area. Miss X has a disabled daughter, Y, who requires specialist equipment and an adapted property for everyday living. Y is dependent on others to meet all of her daily and personal care needs and uses a wheelchair.
16. At the beginning of June 2021, an occupational therapist (OT) from the Council wrote a report on the property Miss X was living in at the time. This advised that essential requirements for the family were a property with:
1. a suitably sized bedroom which Y would not have to share;
2. wheelchair friendly doors;
3. two bathrooms if possible, of which one should be a wet room; and
4. suitability to be adapted.
17. In June 2021, Miss X contacted the Council after she had been asked to vacate the privately rented accommodation assessed above and where she was living at the time. At the same time, she also told the Council this property was unsuitable due to her daughter’s medical needs.
18. In July 2021,the Council placed Miss X and her family into interim accommodation and accepted a duty to house her under its homelessness duty.
19. In the early part of August 2021, the Council’s allocations team made Miss X an offer of private rented accommodation at a three-bedroomed house outside of its area. The Council’s offer letter said that the property was suitable and would therefore mean it could end its homelessness duty to Miss X. The letter also advised her of the right to request a review of the property’s suitability within 21 days. Miss X signed a tenancy agreement for the new property.
20. Two days after signing the tenancy agreement, Miss X emailed the Council to highlight the problems she felt the new property caused for Y due to her additional needs. Miss X said:
1. the property had steps to enter it and no wheelchair access;
2. that the rooms downstairs were open plan and so could not be used as bedrooms;
3. bathing facilities were not suitable for Y’s specific needs; and
4. there was no toilet upstairs.
21. The Council took this email as a request for a suitability review and emailed Miss X to confirm this a couple of days later. It advised it would complete the review by mid-October 2021.
22. At the beginning of December 2021, the Council sent Miss X a letter to advise of its decision on her suitability review. It said:
1. it had reviewed its decision on the suitability of the current property and accepted it was not suitable;
2. that it still therefore owed Miss X the main housing duty and had overturned the decision its duty had ended;
3. it would arrange suitable temporary accommodation for the family until suitable settled accommodation could be found; and
4. that all accommodation must be suitable for Miss X and anyone else living with her.
23. Miss X chased the Council for updates several times over the next few months.
24. Early in March 2022, the Council confirmed it had been unable to find a suitable property for Miss X and said it suggested using a disabled facilities grant to adapt the property. It hoped this would make it suitable for Y’s needs.
25. At the beginning of April 2022, it was confirmed the property was not suitable for adaptations.
26. At the end of April, an OT from the Council wrote a detailed report outlining the issues which made the current property unsuitable, including the front access not being wheelchair accessible, the step being too high for a ramp and the bathroom not being suitable for Y’s needs. The report also mentioned medical issues Miss X had which were made worse by having to lift Y for transfers. The OT made several recommendations of what a suitable property would ideally offer.
27. The Council says that from April 2022 onwards it sent regular mail shots to providers for accommodation that would specifically meet the family’s needs.
28. At the end of July 2022, the Council offered a two-bedroomed, ground floor property. Miss X refused this as it meant Y would have to share a room which is not possible.
29. Late in December 2022, Miss X complained to the Council about the lack of progress in finding her suitable accommodation and that her current accommodation remained unsuitable. She also said she had been offered unsuitable alternative properties.
30. At the beginning of January 2023, the Council sent Miss X its stage one complaint response. It explained that it felt she was “close to being placed.” It also explained the significant difficulties it faced in housing people in London and outlined other alternatives for her to find accommodation. The Council said it continued to look for suitable accommodation for the family and would be in touch when it had an offer to make.
31. The Council did not uphold the complaint that it was taking too long to rehouse the family but did partly uphold the complaint the accommodation was unsuitable and that she had been offered unsuitable alternative properties.
32. Two weeks later, Miss X escalated her complaint to stage two and sent the Council evidence to explain the level of difficulties her daughter experienced.
33. In Mid-February 2023, the Council sent its stage two response letter. It explained in detail how wait times for suitable accommodation were increasing due to a housing crisis and that it targeted adapted properties and those that may be suitable for adaptation towards households who required it.
34. The Council confirmed Miss X was on its list to be moved but that it could not put a timeframe on how long this would take. It suggested (amongst other things) Miss X try and find accommodation in the private sector. As this was the end of its complaints process, it signposted her to the Ombudsman.
35. In mid-May 2023, the Council offered another two-bedroomed, ground floor property. The offer was then withdrawn as the landlord did not believe the property was suitable for five people to live in.
36. Late in May 2023, the Council offered Miss X a further two-bedroomed, ground floor property. After an assessment by the OT, it was decided the property was unsuitable.
37. Miss X moved from the property in question to alternative three-bedroomed temporary accommodation in July 2023.

Analysis

Unsuitable accommodation and suitability review

38. The Council’s own OT report in June 2021 was written about the property the family lived in at the time. However, it clearly listed what were essential requirements that I consider would therefore apply to other future properties the family may live in. The report was written just over two months before the Council offered Miss X accommodation that it later deemed to be unsuitable. The property offered in August 2021 had none of the essential requirements listed (see paragraph 16) which is why Miss X exercised her right to a review of the property’s suitability. The later OT report of April 2022 confirmed in detail how the property was not suitable.
39. The suitability review process should have been complete after eight weeks and by mid-October 2021. The review decision was not sent until December 2021 after a full 16 weeks of waiting. The Council has explained the delay, saying it was chasing an OT assessment from the Council where the property is located to see if it was feasible to adapt the house. It is unclear whether it explained this delay to Miss X at the time. Regardless, this delay is fault. It meant that Miss X had to wait longer for the Council’s decision. This will have added to her distress and frustration at the situation and the effect it was having on her, Y and the family as a whole. I have made a recommendation below to remedy the injustice caused.

Attempts to find suitable accommodation

40. In my enquiries to the Council, I asked what efforts it had made to find Miss X suitable accommodation after its December 2021 decision. In response, the Council referenced its generic temporary accommodation acquisitions policy.
41. It also said that where particularly specific accommodation was needed, such as with Miss X, it may make additional enquiries with accommodation providers. The Council said it has been sending out regular mail shots to providers, this had begun from April 2022 and was ongoing.
42. In the chronology and evidence sent to me, and on the balance of probabilities, there appears to have been little in the way of proactive steps taken to progress the situation from December 2021 (despite chases from Miss X) until the search began more actively in April 2022.
43. It appears the catalyst for action early in April 2022 was the confirmation that adaptations were not possible to the house. This contradicts the Council saying the delay in its suitability review was because it was waiting for the OT assessment to determine whether adaptations were feasible, a full four months earlier in December 2021. I am satisfied the Council did not act decisively enough from December 2021 to April 2022 to move the situation forward. This is fault and would have added to the frustration Miss X felt. I have made a recommendation below to remedy the injustice caused.

April 2022 onwards

44. From April 2022 onwards, the Council did make some effort to try and find suitable alternative accommodation outside of its generic policy.
45. In its letters to Miss X and its enquiry responses to me, the Council provided detail on the difficulties it has to secure suitable accommodation given market forces and a general lack of housing stock.
46. Over the coming 13 months it offered Miss X three different ground floor flats but these were all two-bedroomed which meant Y would have to share a room with an older sibling. The OT report from April 2022 does not specify that Y must have her own room as the previous report did, but does list multiple bulky items that would need to be stored in Y’s bedroom. An email in May 2023 from the OT who wrote the second report outlined how the existing three-bedroomed property did not have room for all of the equipment required for Y’s needs so downsizing to a two-bedroomed property would not be feasible. With this in mind, all of the properties offered were deemed unsuitable for one reason or another.
47. I note the Council’s comments on the external factors out of its control when trying to source suitable accommodation for Miss X and her family. However, I consider it a breach of its statutory duty in not doing so until it provided suitable accommodation to them in July 2023.
48. Not meeting the duty is sufficient to make a finding of service failure. This will have added to the distress and frustration that Miss X and her family would have felt and the difficulties caused in caring for Y as the property was not suitable for her needs. It would also have caused ongoing injustice to Miss X due to her having to carry Y around the property which would have caused further discomfort due to her medical needs as per the April OT report. I have made a recommendation below to remedy the injustice caused.

Human Rights Act

49. As part of my enquiries, I asked the Council how it had shown regard for Miss X and Y’s human rights under Article 8 of the Human Rights Act 1988.
50. I am satisfied, that in the circumstances of this complaint, the Council has demonstrated it has shown regard for the family’s human rights. It has done this by giving Miss X the highest priority for alternative homeless accommodation and giving her an urgent priority for social housing.

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Agreed action

51. 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:
1. apologise to Miss X for the delay in completing its suitability review in October 2021, for its lack of decisive action in progressing the matter from December 2021 to April 2022 and for her, Y and the family remaining in unsuitable accommodation until July 2023; and
2. pay Miss X £300 per month to recognise the unsuitability of the accommodation and its effect on Y and the family for the period from October 2021 to July 2023. This is a period of 21 months, totalling £6300.
52. The suggested payment is in line with the Ombudsman’s guidance on remedies.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

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

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman