London Borough of Lewisham (22 016 576)
The investigation
The complaint
1. Miss X complained the Council failed in its duties to her after she became homeless in 2021. She said from 2021 to 2023 the Council failed to:
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meet its homelessness duties to her;
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properly consider evidence she provided about her circumstances;
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place her and her young children in accommodation that was fit to live in and suitable for the family’s needs; and
- apply its housing allocation policy correctly.
2. Because of this, Miss X says:
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her family faced continuous instability in interim and temporary accommodation;
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she was caused distress and the issues worsened her existing physical and mental health problems; and
- one of her children was hospitalised and has lasting health conditions caused by poor living conditions in one temporary accommodation.
3. Miss X wants the Council to:
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offer her family permanent accommodation which is suitable for them;
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increase the financial remedy it has offered her, to ensure this accounts for the impact of the issues on her, not just her children; and
- issue a further apology which properly explains what went wrong and what steps the Council has taken to prevent this happening in the future.
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 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. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
8. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.
9. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
Homelessness law 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.
Homelessness applications
11. If someone contacts a council seeking accommodation or help to obtain accommodation and gives ‘reason to believe’ they ‘may be’ homeless or threatened with homelessness within 56 days, the council has a duty to make inquiries into what, if any, further duty it owes them. The threshold for triggering the duty to make inquiries is low. The person does not have to complete a specific form or approach a particular department of the council. (Housing Act 1996, section 184 and Homelessness Code of Guidance paragraphs 6.2 and 18.5)
12. Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. Councils must notify the applicant of the assessment. Councils should work with applicants 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. (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.18)
The relief duty and interim accommodation
13. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. This is called the relief duty. When a council decides this duty has come to an end, it must notify the applicant in writing (Housing Act 1996, section 189B)
14. A council must secure interim accommodation for an applicant and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need. This is called interim accommodation. (Housing Act 1996, section 188)
15. Examples of applicants in priority need include people with dependent children, pregnant women, people who are vulnerable due to serious health problems or disability, and victims of domestic abuse.
16. The relief duty ends when the applicant accepts or refuses an offer of accommodation which is suitable and likely to be available for at least 6 months, or, failing this, if 56 days have passed.
The main housing duty and temporary accommodation
17. If a council is satisfied an applicant is unintentionally 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. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)
18. The accommodation a council provides until it can end the main housing duty is called temporary accommodation. If a council ends its interim accommodation duty, but then goes on to accept the main housing duty, it still has a duty to provide temporary accommodation. Interim and temporary accommodation can be the same physical property. What changes is the legal duty under which a council provides it.
Suitability of accommodation
19. 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 and temporary accommodation. (Housing Act 1996, section 206 and (from 3 April 2018) Homelessness Code of Guidance 17.2)
20. In deciding whether accommodation is suitable, authorities must have regard to
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the space and arrangement of the accommodation;
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the state of repair and condition of the accommodation;
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location, including ease of access to established employment, schools and specialist health care; and
- the specific needs of the applicant and any household members due to a medical condition or disability.
21. 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)
22. 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)
23. Anyone who believes their temporary accommodation is unsuitable has a statutory right to ask the Council to review the accommodation’s suitability within 21 days of being notified of the decision. (Housing Act 1996, section 202). There is no statutory right to review the suitability of interim accommodation.
24. Applicants can also 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 section 202, with a new 21-day timescale. (R(B) v Redbridge LBC m[2019] EWHC 250 (Admin))
25. Councils must complete reviews of suitability of temporary accommodation within eight weeks of the date of the review request.
26. If a council’s review decides temporary 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)
27. Councils must advise applicants of their right to appeal to the county court on a point of law, and of the period in which to appeal. Applicants can also appeal if the council takes more than the prescribed time to complete the review. (Housing Act 1996, sections 202, 203 and 204)
Bed and breakfast accommodation
28. Councils should avoid using bed and breakfast accommodation. It should only be used as a last resort in an emergency and then for the shortest time possible. (Homelessness Code of Guidance paragraph 17.24 and from 3 April 2018 17.30)
29. Bed and breakfast (B&B) accommodation can only be used for households which include a pregnant woman or dependent child when no other accommodation is available and then for no more than six weeks. B&B is accommodation which is not self-contained, not owned by the council or a registered provider of social housing and where the toilet, washing, or cooking facilities are shared with other households. (Homelessness (Suitability of Accommodation) (England) Order 2003 and from 3 April 2018 Homelessness Code of Guidance paragraph 17.32)
Domestic abuse and homelessness
30. The law says it is not reasonable for someone to continue to occupy accommodation if it is probable this will lead them to experience violence or domestic abuse. (Housing Act 1996, section 177)
31. Councils should be alert to the wider role they play in ensuring safety for victims of domestic abuse. They should take account of any social considerations, including risk of violence or abuse within a particular locality, which might affect the suitability of accommodation offered to an applicant to prevent or relieve homelessness, or under the main housing duty. (Homelessness Code of Guidance paragraphs 21.15 and 21.43)
Protection of belongings
32. Where the council owes or has owed certain housing duties to an applicant, it must protect the applicant’s personal property if there is a risk it may be lost or damaged. A council may make a reasonable charge for storage and reserve the right to dispose of the property if it loses contact with the applicant. (Housing Act 1996, section 211, Homelessness Code of Guidance chapter 20)
Housing allocations
33. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing. All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
34. An allocations scheme must give reasonable preference to applicants in the following categories:
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homeless people;
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people in insanitary, overcrowded or unsatisfactory housing;
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people who need to move on medical or welfare grounds; and
- people who need to move to avoid hardship to themselves or others. (Housing Act 1996, section 166A(3))
The Equality Act 2010
35. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport, and the carrying out of public functions.
36. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. The ‘protected characteristics’ referred to in the Act are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
37. We cannot decide if an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
The Human Rights Act
38. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. The Act requires all councils, and other bodies carrying out public functions, to respect and protect individuals’ rights.
39. Our remit does not extend to making decisions on whether or not a council has breached the Human Rights Act – this can only be done by the courts. But we can decide whether a council has had due regard to an individual’s human rights in its treatment of them, as part of our consideration of a complaint. In practical terms, councils will often be able to show they have complied with the Human Rights Act if:
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they can show they have considered the impact their decisions will have on the individuals affected; and
- there is a process for decisions to be challenged by a review or appeal.
How we considered this complaint
40. We produced this report after examining relevant documents and discussing the complaint with Miss X.
41. We gave the complainant and the Council a confidential draft of this report and invited their comments. We took any comments received into account before the report was finalised.
What we found
What happened
42. Miss X has mobility issues and mental health problems. In mid-2021, she was living with a relative. She had a young child and was pregnant with her second child. She had recently applied to join the Council’s housing register.
43. In early-August 2021, Miss X told the Council she had been asked to leave her relative’s house that day. The Council opened a homelessness application for her. Shortly afterwards, it assessed medical evidence Miss X provided and decided it should only place her in accommodation which was either on the ground floor, or had lift access if above the ground floor.
44. From August to December 2021, the Council placed Miss X and her family in several different interim accommodations, under the relief duty. Miss X gave birth to her second child during this time.
45. In mid-November 2021, the Council accepted the main housing duty and offered Miss X temporary accommodation, ‘Accommodation Y’. Miss X moved into Accommodation Y in December 2021, but told the Council she did not consider it to be suitable for her and asked for a review. Accommodation Y was managed by Lewisham Homes, which was an arm’s length management organisation of the Council, acting on its behalf. Since the events described in this report, the Council has brought its arrangements for housing management back in-house and all Lewisham Homes staff have transferred into the Council. In this report we refer to the actions of Lewisham Homes as the actions of the Council.
46. In September 2022, Miss X reported a leak inside the property to the Council. In December 2022, she made a complaint because it had not resolved the leak, and this had now led to damp and mould in the property. The Council issued a Stage 1 response to the complaint 16 days later. It said it would visit to inspect the leak.
47. A month later Miss X escalated her complaint to Stage 2. She said she wanted the Council to increase her priority on its housing register because of her medical needs. She said she had provided medical evidence it had not considered.
48. In February 2023, a Council officer visited to inspect Miss X’s property and decided the family needed to move out that day. They said it was not safe for the family to stay there because of the impact on their breathing, caused by the damp. The Council placed Miss X in alternative temporary accommodation while the issues were resolved.
49. Two weeks after the family moved out of Accommodation Y, the Council carried out a suitability review for Accommodation Y. It decided it was not suitable for Miss X, because the lifts were often broken, and she needed lift access as her property was above the ground floor. It did not tell Miss X about this decision.
50. In March 2023, the Council responded to Miss X’s complaint at Stage 2. It said it was still assessing her medical evidence but there was a backlog, and this could take up to 26 weeks. Miss X then complained to us. We told her the Council would need to complete its complaints process and respond at Stage 3 before we could consider it. Therefore, Miss X escalated her complaint to Stage 3.
51. In late-May 2023, the Council told Miss X she must move back into Accommodation Y because repairs had been completed. Shortly after she moved back in, her youngest child was hospitalised due to mould spores. A week later, the Council moved the family out again and placed them in a hotel as alternative temporary accommodation. At the time it said this was temporary while it treated a pest problem at the property. However, it appears at some point afterwards, while investigating Miss X’s complaint, it realised it had decided in February 2023 that Accommodation Y was not suitable for her, and recognised she should not return there. It began searching for alternative temporary accommodation because hotel accommodation was not suitable long term.
52. In July 2023, the Council issued a Stage 3 response to Miss X’s complaint. At this stage she was still living in a hotel as temporary accommodation. The Council accepted some fault in its actions and said it would:
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write to Miss X with an apology;
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consider exercising its discretion to increase her priority on its housing register;
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pay her £1,000 for the actual harm caused to her youngest child when they moved back into Accommodation Y in late-May 2023 and were exposed to mould spores;
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continue contact with Miss X’s solicitor about a legal claim she had started, because the Council had failed to protect her belongings from damage caused by mould spores in Accommodation Y. It said it considered this would be best resolved via the legal claim rather than as a complaint remedy;
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pay her £100 a week for time she spent living in unsuitable accommodation after she moved back into Accommodation Y and had to move out again. It said this payment would continue until it found suitable accommodation for her;
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pay her £100 a week to recognise added costs she faced in feeding her family while living in a hotel without access to her own kitchen, from late-June 2023. It said this payment would continue until it found suitable accommodation for her;
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pay her £1,000 for the avoidable distress caused to her by its actions; and
- review her case as a learning exercise to improve its services.
53. Miss X then brought her complaint to us again, and we began our investigation.
54. In late-August 2023 the Council placed Miss X in new temporary accommodation. Miss X did not ask the Council to review the suitability of this accommodation, and she remains living there at the time of our report.
Time period investigated
55. The law says we cannot investigate events which happened more than 12 months before somebody complained to us, unless we decide there are good reasons to. Miss X came to us in March 2023, so we would usually only look at what happened after March 2022. However, we decided we should investigate what happened from the point of Miss X’s homelessness application in mid-2021. This is because:
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there were significant delays in the Council’s processes and complaint handling which delayed Miss X in coming to us;
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for much of the period complained about, Miss X’s difficult personal circumstances and unstable housing situation caused significant disruption to her life. We consider this impacted her ability to navigate multiple processes and bring a complaint to us earlier; and
- we consider we need to look back this far to make sense of what has happened and investigate more recent events.
56. The Council has records for the relevant period, so the passage of time has not affected our ability to investigate and reach sound conclusions.
Analysis
August 2021 homelessness application
57. When Miss X told the Council she was homeless in early-August 2021, it failed to complete a proper assessment and produce a personalised housing plan, in line with statutory guidance. This was fault. It also did not properly notify her it had accepted the relief duty, which was fault.
August to December 2021 interim accommodation
58. The law says B&B accommodation should only be used as a last resort to house families with children or a pregnant woman, and for no more than six weeks. The Council placed Miss X in B&B accommodation for eight weeks. This was two weeks longer than the six weeks allowed by law, and so was fault.
59. All accommodation provided by the Council to homeless applicants must be suitable for the needs of the specific household. The Council decided it should seek interim accommodation which was on the ground floor or had lifts available, in line with its medical assessment of Miss X’s application. However, it did not fully consider the factors described at paragraph 20, and whether each accommodation was suitable for Miss X in her specific circumstances.
60. Because the Council did not properly consider suitability, there were repeated issues, such as:
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one B&B accommodation had a shared bathroom on the second floor, without lift access; and
- two of the interim accommodations the Council placed the family in were outside the Council’s area. There was no record the Council considered whether this location was suitable. On balance, we find that accommodation outside the borough was not suitable for Miss X during pregnancy, and then with a newborn baby.
61. We find the Council placed Miss X in unsuitable accommodation from 10 August to 12 December 2021 because it failed to consider the specific needs of the household. This was fault.
62. There were also repeated instances where Miss X did not know where she would be staying that night because the Council had not told her. On one occasion she had to sleep in her car because she did not receive information about where she should go until late at night. In the circumstances, this was fault.
63. From 10 August to 12 December 2021, the Council moved Miss X and her young family between interim accommodations at least 10 times. More than once the stay lasted only one night. The move to her final interim accommodation happened three weeks before her second child was born. In the circumstances, this was fault.
64. After accepting the relief duty, the Council took 94 days to accept the main housing duty. The legislation says this should take no more than 56 days, so this delay was fault.
December 2021 request for suitability review of temporary accommodation
65. As soon as the Council offered Miss X Accommodation Y as temporary accommodation, she asked for a suitability review. The Council failed to properly consider this. When Miss X provided medical evidence, it responded to say it had considered this and decided she needed a lift if housed above ground floor. However, it did not fully consider the factors described at paragraph 20, and whether Accommodation Y specifically was suitable for Miss X’s individual circumstances. This was fault.
66. We will not usually investigate complaints about temporary accommodation where the complainant has a statutory right of review and subsequent appeal to court on a point of law. We may decide to investigate if there was a good reason the complainant could not appeal.
67. The Council did not properly respond to Miss X’s review request, so did not tell her about the right to appeal to court. Therefore, we have considered whether Accommodation Y was suitable for Miss X, to decide on the balance of probabilities, what the Council would have decided had it properly considered Miss X's review request.
68. From November to December 2021, which should have been the review period, the Council had the following information to inform a suitability decision.
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Miss X raised concerns with the Council about the layout of Accommodation Y, because of her physical health problems. She said although the building had lifts, the lifts were not close to her property, were broken when she visited the property, and it was well known from residents lifts were regularly broken.
Council records show the member of staff that showed Miss X the property confirmed she had trouble walking from the lift to the property.
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After Miss X first visited Accommodation Y and experienced difficulties with the layout, she had a panic attack and contacted her GP. The GP made a safeguarding referral to the Council’s adult social care team following this, because they were concerned about the impact of her housing situation on her mental health.
- Miss X told the Council she had experienced domestic abuse in a previous relationship, and the perpetrator lived close to Accommodation Y. A domestic abuse service which was supporting Miss X contacted the Council in support of her application, but the Council did not respond to gather further information.
69. The Council did not properly consider the concerns Miss X raised about Accommodation Y being close to the perpetrator of domestic abuse towards her. It did not explore this properly to see whether it presented a risk, or whether this meant Accommodation Y was not reasonable for Miss X to occupy. This was fault.
70. When the Council eventually considered the suitability of Accommodation Y for Miss X in February 2023, it verified with the building manager the lifts were regularly broken. On this basis it decided it was not suitable for her. It is likely, had the Council considered this properly when Miss X first asked it to, it would have made the same decision. Therefore, Accommodation Y was never suitable for Miss X and the Council should have concluded this by 13 January 2022, within the eight-week review timescale.
2022 reports of disrepair in temporary accommodation
71. After Miss X moved into Accommodation Y in December 2021, she says she repeatedly reported disrepair issues to the Council. She says it did not properly respond to or resolve her reports, which included the lifts regularly being broken. On the balance of the evidence available, the Council did not properly resolve all the issues Miss X reported. This was fault.
72. In September 2022, Miss X reported a leak inside her property. In its response to her complaint, the Council accepted fault in that it did not address this report soon enough, and that this led to the property being uninhabitable due to damp and mould. This meant when it eventually visited to investigate the leak in February 2023, the officer inspecting immediately noticed the impact on their breathing when entering the property. The officer decided Miss X and her family had to move out the same day.
73. In December 2023, while we were investigating this complaint, the Council referred itself to The Regulator of Social Housing as it had identified a failure to meet statutory health and safety requirements in some of its homes. The Regulator investigated and found:
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a significant proportion of the Council’s homes did not meet the Decent Homes Standard (DHS);
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the Council did not assess the severity of its damp and mould cases using the Housing Health and Safety Rating System (HHSRS); and
- the Council did not have an effective system in place to allow it to meet its responsibilities for the quality of its homes, provide a cost-effective repairs service, and meet its statutory health and safety responsibilities.
74. The Regulator issued a regulatory notice in March 2024. This said it had decided not to take statutory action against the Council at this stage. It was satisfied the Council had demonstrated it understood its responsibilities and was completing the work needed to ensure it would meet the requirements of the DHS. We will not be making further recommendations about the Council’s failure to resolve reports of disrepair, as we consider this issue has been suitably addressed via The Regulator.
November 2022 further request for suitability review of temporary accommodation
75. In November 2022, while Miss X was waiting for the leak she had reported to be addressed, she told the Council she had fallen on the stairs at Accommodation Y because the lifts were not working again. She provided medical evidence about this from her GP, which said Accommodation Y was affecting her physical and mental health. A month later, Miss X’s GP wrote to the Council again with further medical evidence. The Council should have considered on both occasions whether it should carry out a suitability review of Accommodation Y. It failed to carry out a review until Miss X completed a specific form in January 2023, which was fault.
February to May 2023 alternative accommodation while moved out of Accommodation Y
76. While Miss X was temporarily moved out of Accommodation Y, the Council moved her around several properties. We have identified various faults with the Council’s actions during this period, as follows.
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During this period, the Council placed Miss X in B&B accommodation for 16 weeks. This was longer than the 6 weeks allowed by law, and so was fault.
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The Council did not properly consider whether any of the accommodation was suitable for Miss X. This meant she had to repeatedly raise concerns with the Council before it agreed it should withdraw accommodation offers as unsuitable. In responding to Miss X’s complaint, the Council did not offer any financial remedy for unsuitable accommodation during this period. We consider it should have.
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The Council did not properly explain all accommodation it offered Miss X in this period was temporary accommodation under the main housing duty, and she had the right to request a statutory review of its suitability. The Council accepted it did not properly explain this, which was fault.
- There were repeated instances where Miss X did not know where she would be staying that night because the Council had not told her. More than once she had to stay with relatives for a night or weekend, because she did not receive information about where she should go until late at night.
May 2023 return to Accommodation Y
77. When the Council eventually decided Accommodation Y was not suitable for Miss X in February 2023, it had an immediate duty to provide Miss X with suitable accommodation. However, it did not act on the outcome of this suitability review.
It did not tell Miss X about the outcome, or end her tenancy for Accommodation Y. This was fault.
78. In May 2023 when the Council decided it had fixed the leak, it wrongly told Miss X she had to move back into Accommodation Y. The Council accepted this was fault.
79. The Council also accepted fault in that it should have arranged storage of Miss X’s belongings while she was moved out of Accommodation Y. It said because it failed to do this, her belongings became contaminated with mould, which led to the hospitalisation of her youngest child when it insisted she return there.
June to August 2023 alternative accommodation while moved out of Accommodation Y for the second time
80. After the Council moved Miss X from Accommodation Y for the second time, it placed her in four different properties before it found a new temporary accommodation. We have identified various faults with the Council’s actions during this period.
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During this period, the Council placed Miss X in B&B accommodation for ten weeks. This was longer than the six weeks allowed by law, and so was fault.
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The Council did not properly consider whether any of the accommodation was suitable for her. The Council accepted this was fault, and that the accommodation was not suitable.
- The Council did not properly explain all accommodation it offered Miss X in this period was temporary accommodation under the main housing duty, and she had the right to request a statutory review of its suitability.
Priority on the Council’s housing allocation register
81. The Council said Miss X’s priority on its housing register remained the same from August 2021. We are not satisfied the Council properly considered Miss X’s priority during the period we investigated, because:
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it did not properly consider the medical evidence she provided, whether she needed to move on medical or welfare grounds, and whether this should affect her priority; and
- in a November 2021 email to Miss X, the Council said, “your doctors notes or any other notes will not change your banding to any other than 3 because Lewisham homeless applicants are placed in band 3”. This shows it was unwilling to consider Miss X’s individual circumstances and the impact of this on her priority. The Council adopted a blanket approach to Miss X as a homeless applicant and fettered its discretion.
82. The Council’s failure to properly consider Miss X’s housing priority was fault. It is not for us to say what priority the Council should allocate to Miss X. However, the Council has not evidenced it gave this due consideration. The evidence shows its staff did not properly understand its allocation policy, because:
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its policy says it should place those it considers to have “high medical priority” in band 2, regardless of whether they are also homeless. The Council said Miss X must be in band 3 because she is homeless. However she also has medical conditions, so it must properly consider whether she meets the criteria for high medical priority and should be awarded a higher band; and
- the Council should always allow for consideration of individual circumstances on a case-by-case basis and should not fetter its discretion. Its allocation policy allows for discretion in principle, but in practice it did not apply this.
Complaint handling
83. The Council accepted it was at fault because it failed to escalate Miss X’s complaint to Stage 3 adjudication when it said it would, and then took too long to respond at Stage 3. This meant Stage 3 was delayed by 14 weeks.
84. We have found further fault by the Council in how it actioned the complaint outcomes following the Stage 3 response.
85. The Council told Miss X it would consider exercising discretion to increase her priority on its housing register. When Miss X chased this, it told her it had decided not to exercise discretion. The Council told us it considered discretion and provided evidence from August 2023, when it decided to place Miss X in new temporary accommodation following her complaint. However, the evidence provided only shows the Council decided to place her in new temporary accommodation because of the serious disrepair issues in Accommodation Y. This was not a decision about housing allocation priority; the Council had a statutory duty to find Miss X new temporary accommodation, because it had decided six months earlier Accommodation Y was not suitable for her. After this decision to move Miss X to meet its statutory duty, she remained at band 3 on the Council’s housing register. It did not consider whether she should be in a higher band based on her medical conditions and evidence, or whether it should use its discretionary powers to change her priority band for any other reason, as it said it would in the complaint outcome. The Council’s failure to do what it said it would in response to the complaint, was fault. The fact the Council wrongly told Miss X it had considered it, was further fault.
86. In its final complaint response, the Council also told Miss X it would review her case as a learning exercise to improve its services. We are not satisfied the Council did this either. This was fault.
87. The Council has now shown it is taking steps to improve its complaint handling processes. Therefore, we have not made any specific recommendations to address this, other than to remedy the personal injustice caused to Miss X.
The Equality Act
88. Miss X has mobility issues and mental health problems; she is disabled under the Equality Act 2010. At the start of the period we have investigated, she was also pregnant, which is another protected characteristic under the Equality Act.
89. We are not satisfied the Council had due regard to Miss X’s individual circumstances, her disability, or her pregnancy, in the decisions it made about her housing. Therefore, it did not properly consider its duties to her under the Equality Act, which was fault.
The Human Rights Act
90. We are not satisfied the Council had due regard to Miss X’s human rights under:
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The First Protocol, Article 1, which entitles her to peaceful enjoyment of her possessions; or
- Article 8, which entitles her to respect for her private and family life, and home.
91. The Council did not properly meet its homelessness duties to the family. It did not properly consider decisions about the family’s housing and its suitability, or the frequent disruptions to their home life. Therefore, it did not properly consider the impact its decisions would have on the family, or have due regard to their human rights. This was fault.
Others affected
92. When responding to Miss X’s complaint at Stage 2 in March 2023, the Council told her it had a backlog in considering medical evidence for housing allocation priority. At that time, it said this could take up to 26 weeks.
93. The Council’s housing allocation policy says medical assessments will normally take up to 6 weeks. The Council accepted it was taking longer than it should to assess applications for medical priority. A delay of 20 weeks is fault.
94. We asked the Council what progress it had made in clearing this backlog. In late- November 2023, the Council said:
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the backlog remained at 26 weeks;
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it had 409 medical assessments outstanding and continued to receive around 150 applications a month; and
- it expected to clear the backlog by March 2024. It said it had recruited an extra medical advisor, was tracking progress in weekly meetings, and keeping applicants updated about waiting times.
95. The Council then provided evidence in April 2024 that it had cleared this backlog. Therefore, we do not consider we need to make any recommendations about this.
Conclusions
96. We found the Council was at fault because it failed to:
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meet its homelessness duties to Miss X in line with the law and statutory guidance, and properly explain these duties to her;
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consider and keep under review the suitability of accommodation it placed her in under its homelessness duties;
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properly consider concerns she raised about proximity of accommodation to a perpetrator of domestic abuse;
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address issues of disrepair she reported in her temporary accommodation in good time;
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protect her belongings from damage while she was temporarily moved out of her temporary accommodation;
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consider her priority on its housing register in line with its housing allocation policy;
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respond to her complaint within the timescales set out in its complaints procedure, or follow up on actions it agreed to when it upheld parts of her complaint;
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have due regard to its duties to Miss X under the Equality Act, as someone who is disabled and was pregnant during the period we investigated; and
- have due regard to Miss X’s human rights under The First Protocol, Article 1, which entitles her to peaceful enjoyment of her possessions, or Article 8, which entitles her to respect for her private and family life, and home.
97. When we find fault, we then consider whether that fault caused injustice. There was significant injustice to Miss X and her family from the Council’s faults in this case.
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The Council’s failure to notify Miss X it had accepted the relief duty caused her limited injustice because in practice, it did accept the duty. However, Miss X did not have clarity at the relief duty stage about the steps the Council would take, or would expect her to take, because it did not update her personalised housing plan.
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Delays by the Council in accepting duties and repeated failures to notify Miss X of her rights, prevented her from seeking a statutory review of suitability of her accommodation several times.
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The Council’s failure to properly consider suitability or act on the outcome of suitability reviews, meant the family lived in unsuitable accommodation for two years.
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The family faced continued instability, with frequent short term moves between multiple B&Bs, often at inadequate notice. This caused significant disruption and prolonged distress. When Miss X was pregnant the Council twice housed her outside its area which affected her ability to access the maternity care she needed. Miss X told the Council she did not know where to apply for school places for her older child because she was not clear about where she would be living. It also affected her ability to store and prepare food for her family. She told the Council some hotels she was placed in did not have baby cots or facilities for her to prepare milk for her baby. In one B&B the family was exposed to a dangerous situation where the police became involved and told Miss X she should not return there with her children. After this incident Miss X had to stay in a relative’s living room for the weekend because the Council did not make alternative arrangements for her.
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While living in Accommodation Y, Miss X was in fear of domestic abuse. She also faced avoidable difficulties in accessing the property due to her mobility issues, and injury when having to use the stairs because lifts were broken and were not fixed when she reported issues.
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The Council’s failure to address the leak Miss X reported in Accommodation Y for five months, led to damp and mould. This caused harm to Miss X’s youngest child resulting in hospitalisation, risk of harm to Miss X and her other child, and damage to the family’s belongings.
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There remains uncertainty for Miss X about how her circumstances may have been different had the Council properly considered her housing priority. She may have missed opportunities to bid for permanent housing with an increased priority. This uncertainty causes distress, which is an injustice to Miss X.
- The Council’s failure to handle Miss X’s complaint properly caused her avoidable time and trouble.
Recommendations
98. Our guidance on remedies says where a complainant has been deprived of suitable accommodation, we are likely to recommend a monthly payment of between £150 and £350 to recognise this unsuitability. It also says where a family with children stays in unsuitable B&B accommodation for more than the six-week legal limit, we are likely to recommend a weekly payment of between £100 and £200. Taking into account Miss X’s circumstances, we consider the financial remedy should be at the higher end.
99. We have considered the financial remedy offered to Miss X by the Council, as described at paragraph 52. Miss X did not accept this offer because her solicitor advised her this may affect the ongoing legal claim for damage to personal belongings caused by damp and mould in Accommodation Y. Council records showed it had also decided it should not make any financial payment until the damage claim was resolved and had told Miss X this.
100. We propose the Council should pay our recommended remedy instead of the offer it previously made via its complaints procedure (separate to the legal claim for damage to belongings). We agree with the Council the issue of damage to belongings is best resolved by her ongoing legal claim, so we have not recommended a financial remedy for this injustice. Miss X told us she was considering also making a personal injury claim for harm caused to her youngest child. It is open to Miss X to pursue a further claim if she wants to.
101. 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)
102. In addition to the requirements set out in the paragraph above, the Council has agreed to take the following actions to remedy the injustice identified in this report.
103. Within one month of the date of this report, the Council will:
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apologise to Miss X for the faults we have identified, and the impact of those faults. Our guidance on remedies sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this in making its apology;
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properly consider whether it should increase Miss X’s priority on its housing register, including whether this should be done via manager discretion. If the Council decides it should increase Miss X’s priority, it should backdate it to the date when it first had the evidence on which this decision is based. It should provide us with detailed evidence of this consideration;
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pay Miss X a total of £14,150, comprising of:
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£1,800 to recognise the 9 weeks Miss X and her family spent living in unsuitable interim accommodation while owed the relief duty from August to December 2021. This is calculated at £200 a week;
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£3,250 to recognise the 14 months Miss X and her family spent living in unsuitable temporary accommodation (Accommodation Y), where Miss X repeatedly reported disrepair issues that were not resolved, from December 2021 to February 2023. This is calculated at £250 a month, minus the 4 weeks of the 8-week suitability review period that fell within the time Miss X lived there;
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£5,600 to recognise the 28 weeks Miss X and her family spent living in unsuitable B&B accommodation from February to August 2023. This is calculated at £200 a week;
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£500 to recognise the avoidable distress and disruption caused to Miss X by the frequency of short term moves with inadequate notice;
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£1,000 to recognise the avoidable harm the Council accepted was caused to Miss X’s youngest child because of damp and mould in Accommodation Y;
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£500 to recognise the avoidable risk of harm caused to Miss X’s older child because of damp and mould in Accommodation Y;
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£1,000 to recognise the avoidable risk of harm to Miss X, from the damp and mould in Accommodation Y, the difficulties it presented because of her mobility issues, and the impact on her mental health due to fear of domestic abuse;
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£200 to recognise the uncertainty that remains for Miss X about how things may have been different for her had the Council properly considered her housing priority; and
- £300 to recognise the avoidable time and trouble caused to Miss X by the Council’s failure to respond to her complaint in good time, or follow up on its promised actions.
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104. Within three months of the date of this report, the Council will:
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produce an action plan to address the faults we have identified. Progress against this plan should be reported to or overseen by the relevant portfolio lead member and scrutiny committee. The plan should include actions to consider and address the Council’s failure in this case to:
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complete a proper assessment for a homeless applicant and produce a personalised housing plan;
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properly notify a homeless applicant of its housing duties to them and any review rights;
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consider whether all interim or temporary accommodation it offered to a homeless applicant was suitable for their individual circumstances, in line with the Homelessness Code of Guidance;
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properly consider requests for a statutory review of the suitability of temporary accommodation;
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notify a homeless applicant of the outcome of statutory suitability reviews and seek suitable alternative accommodation;
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properly consider suitability of accommodation when a homeless applicant raised concerns about proximity to a perpetrator of domestic abuse, and whether this presented a risk;
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move a household which included a pregnant woman and dependent children out of B&B accommodation after six weeks;
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properly consider the frequency of moves and amount of notice given, when it regularly moved a household which included a pregnant woman who was disabled, and dependent children;
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properly consider its duty to protect the property of a homeless applicant to whom it owed a housing duty, from loss or damage;
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properly consider the individual circumstances of an applicant to its housing register when deciding their priority, instead of fettering its discretion by applying the same approach to all homeless applicants; and
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have due regard to its duties to a homeless applicant under the Equality Act 2010 and the Human Rights Act 1998.
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produce a summary of the faults identified in this case, and the actions it will take to prevent recurrence, and share this with all staff in the relevant departments.
Decision
105. We have completed our investigation into this complaint. There was fault by the Council which caused injustice to Miss X and her family. The Council agreed to take the action identified in paragraphs 101 to 104 to remedy this injustice and improve its services.