Royal Borough of Kensington & Chelsea (23 005 633)
The Ombudsman's final decision:
Summary: Ms X complains that the Council has failed to provide suitable temporary accommodation to her and her family. The Council is at fault as it has failed to provide alternative suitable temporary accommodation for Ms X and her family. As a result, Ms X and her children have lived in unsuitable temporary accommodation for 26 months and this injustice is ongoing. The Council has agreed to remedy the injustice by apologising to Ms X and making a payment of £3900 to her. The Council will also make a payment of £150 per month to Ms X for every month she remains in unsuitable temporary accommodation.
The complaint
- Ms X complains that the Council:
- Failed to provide suitable alternative temporary accommodation for Ms X and her children.
- Failed to offer permanent accommodation to Ms X despite her being on the housing register since 2004.
- Ms X says that as a result she and her children are living in unsettled and unsuitable housing where they are at risk of domestic abuse.
The Ombudsman’s role and powers
- 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)
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
- 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)
What I have and have not investigated
- I have exercised discretion to investigate events from late 2021 when the Council decided Ms X’s temporary accommodation was unsuitable. This is because I need to consider events from this date to carry out a meaningful investigation. I have not investigated earlier events as it was open to Ms X to make a complaint to the Ombudsman sooner.
How I considered this complaint
- I have:
- Considered the complaint and the information provided by Ms X;
- Discussed the issues with Ms X;
- Made enquiries of the Council and considered the information provided;
- Invited Ms X and the Council to comment on the draft decision. I considered the comments received before making a final decision.
What I found
Law and guidance
Homelessness and temporary accommodation.
- If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need it has a duty to secure that accommodation is available for their occupation. This is called the main housing duty. (Housing Act 1996, section 193)
- Temporary accommodation is accommodation provided to homeless applicants as part of a council’s main housing duty.
- Councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of their household. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)
- 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)
- In May 2023 we issued a guide for practitioners Good Practice Guide - unsuitable temporary accommodation. This sets out the relevant law and guidance about temporary accommodation and our approach to complaints where councils have not provided suitable temporary accommodation to applicants who are owed the main housing duty.
Housing allocations
- 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))
- 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))
The Council’s housing allocations scheme
- The Council uses a points scheme to decide which applicants should have priority for housing. It can award 1900 points to an applicant if it considers they are at serious risk of harm. Its scheme provides an application for such points can only be made by the police, children or adult services.
- The Council will award 100 points to applicants to whom it has accepted the main housing duty. Its allocations scheme provides the Council may make a direct offer of either social or private rented accommodation but it may be many years before it can do so.
- The Council’s allocation scheme states that it expects applicants to actively seek accommodation using its choice based lettings system. If no suitable properties have been available within a reasonable period of time then it may make a direct offer.
What happened
- The following is a summary of the key events relevant to the consideration of the complaint. It does not include everything that happened.
- Some years ago, the Council accepted the main housing duty to Ms X and placed her and her children in temporary accommodation.
- In late 2021, the Council carried out a suitability assessment of Ms X’s temporary accommodation following an incident of domestic abuse. The Council concluded the temporary accommodation was no longer suitable for Ms X and her family due to the risk of domestic abuse. The landlord of the property subsequently served a notice to quit. I shall call this property A.
- The Council offered bed and breakfast emergency accommodation to Ms X following the domestic abuse incident but she decided to stay in property A.
- Ms X advised the Council that she wanted to stay in the area where property A was located in order to be close to her support network. Ms X’s Independent Domestic Violence Adviser (IDVA) notified the Council of Ms X’s preferred areas and several areas where Ms X and one of her children may be at risk.
- In summer 2022, the Council again offered bed and breakfast emergency accommodation to Ms X if she considered she and her family were in imminent danger. Ms X declined to move into emergency accommodation due to her children’s needs.
- The Council offered several properties to Ms X during 2022. In each case the Council subsequently decided the offer was unsuitable or the landlord withdrew the property
- The Council offered further temporary accommodation to Ms X in her preferred area in early 2023. The Council subsequently considered the property to be unsuitable for Ms X’s needs.
- In response to my enquiries, the Council has said it has been unable to identify alternative, suitable temporary accommodation for Ms X. The Council has said it and other councils are facing significant challenges in finding temporary accommodation to meet the demand. The Council efforts to procure more temporary accommodation includes purchasing properties for this purpose.
Housing allocations
- Ms X has been on the Council’s housing register for a significant period of time. The Council has awarded 100 homeless points to her. She is eligible for a three bedroom property.
- The Council’s records show Ms X bid on six properties between January 2022 and August 2023 but she was unsuccessful. The records show the properties were let to applicants with a higher number of points than Ms X.
- I asked the Council what consideration it had given to awarding serious risk of harm points to Ms X to increase her chances of making a successful bid. The Council said it would not have initially considered serious risk of harm points for Ms X after the incident of domestic abuse in late 2021. This is because she was in temporary accommodation and could be moved quickly. However, as the Council had not been able to move Ms X it considered the case for serious risk of harm points in summer 2022. The Council has provided an internal email which says Ms X’s application could be reviewed to see if serious risk of harm points could be awarded given the severity of Ms X’s situation. The email notes that this process will not have the immediacy that is required.
Analysis
Temporary accommodation.
- The evidence shows the Council actively tried to find suitable temporary accommodation for Ms X between January 2022 and January 2023. I acknowledge the Council did not find suitable temporary accommodation for Ms X due to the acute shortage of available accommodation in London. Ms X and her family can only safely live in a limited number of areas which also presents a challenge in finding suitable accommodation. But the Council’s duty to provide suitable temporary accommodation is immediate, non-deferrable and unqualified and the Council did not meet that duty. The failure to move Ms X to suitable temporary accommodation is service failure and is therefore fault.
- There is no evidence to show the Council has taken any further action to find suitable temporary accommodation for Ms X since January 2023. The Council still has a statutory duty to provide suitable temporary accommodation for Ms X so it should be continuing its efforts to source such accommodation. The failure to do so is fault.
- There is also no evidence to show the Council has properly considered all its options to secure suitable accommodation for Ms X, including increasing her priority points. Officers suggested Ms X’s housing application could be reviewed but there is no evidence to show the Council actually took this action and considered if it should award serious risk of harm points or other priority points. There is no evidence to show the Council considered if it should make a direct offer to Ms X in view of the time she has spent on the housing register and the unsuitability of her temporary accommodation. The failure to consider all the options to secure alternative suitable accommodation for Ms X is fault.
- There is also no evidence to show the Council considered providing additional security measures at property A to mitigate the impact of living in unsuitable temporary accommodation due to domestic abuse. This is fault.
- Ms X bid on six properties between January 2022 and August 2023 and her bids were unsuccessful. There is no evidence of fault by the Council. The evidence shows Ms X’s bids were unsuccessful as other bidders had a higher number of priority points.
Injustice to Ms X
- The failure to provide suitable temporary accommodation to Ms X and her family has meant they have lived in unsuitable accommodation with the risk of domestic abuse for 26 months and that injustice is ongoing. Our guidance on remedies recommends a payment of £150 to £350 for each month spent in unsuitable temporary accommodation. Ms X and her family have been caused significant distress as they have lived with the risk of domestic abuse. But I note Ms X has not reported any further concerns about domestic abuse for some time. We would usually recommend a higher payment if there were also other factors making the property unsuitable such as overcrowding. Ms X’s property is a three bedroomed property so she is not overcrowded. I therefore consider a payment of £150 per month is reasonable and proportionate. The Council should also continue to make a payment of £150 per month to Ms X until it offers suitable alternative accommodation to her.
Agreed action
- That the Council will:
- Send a written apology to Ms X for the distress caused to her and her family by failing to provide suitable temporary accommodation. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
- Make a symbolic payment of £3900 to Ms X to acknowledge that she and her family have lived in unsuitable temporary accommodation for 26 months.
- Make additional payments of £150 per month to Ms X for every month she remains in unsuitable temporary accommodation after February 2024.
- Consider if Ms X requires the installation of any additional security measures at property A while she is waiting to be offered suitable accommodation.
- Review Ms X’s housing application to consider if Ms X’s circumstances warrant the Council awarding serious risk of harm points or other priority points or to making a direct offer to her.
- The Council should take the above action within one month of my final decision. The Council should provide us with evidence it has complied with the above actions.
Final decision
- Fault causing injustice.
Investigator's decision on behalf of the Ombudsman