Summary: Ms B complained that the Council had failed to find her and her daughter suitable temporary accommodation since 29 November 2022 when they had been living in bed and breakfast (B&B) accommodation for six weeks. It had only made her one offer of accommodation at very short notice, 250 miles away and failed to review the suitability of that offer. We found fault with the Council’s actions. The Council has agreed to find alternative accommodation for Ms B, pay her £5000 for the time she has spent in B&B accommodation and improve its procedures for the future.

The complaint

1. Ms B complained that the London Borough of Enfield (the Council) has failed to find Ms B suitable temporary accommodation: she has been living in B&B accommodation with her daughter since November 2022 in breach of the law. It has also failed to carry out a statutory review of the suitability of the accommodation in accordance with section 202 of the Housing Act 1996 or provide Ms B with a right of appeal to the County Court if she remains dissatisfied. It has also placed her on a transfer list with no criteria or timescales which does not resolve her situation. She has been caused significant distress and frustration throughout this period.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Homelessness

6. Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. 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

7. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. When a council decides this duty has come to an end, it must notify the applicant in writing (Housing Act 1996, section 189B)

The main housing duty

8. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need the council has a duty to secure that accommodation is available for their occupation.

Duty to arrange interim accommodation (section 188)

9. A council must secure interim accommodation for an applicant and their household if it has reason to believe the applicant may be homeless, eligible for assistance and have a priority need, including people with dependent children. (Housing Act 1996, section 188)

Suitability of accommodation

10. 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)
11. Homelessness temporary accommodation must be legally suitable. (Housing Act 1996, section 206) Anyone who believes their temporary accommodation is unsuitable can ask the Council to review the accommodation’s suitability. (Housing Act 1996, section 202) If the Council’s review decides the 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)
12. 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)
13. Councils must consider the location of accommodation when they consider if it is suitable for the applicant and members of their household. If a council places an applicant outside its district, it must consider, among other matters:
• the distance of the accommodation from the “home” district;
• the significance of any disruption to the education of members of the applicant’s household; and
• the proximity and accessibility to local services, amenities and transport. (Homelessness (Suitability of Accommodation) Order 2012)
14. Councils should avoid using B&B 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)
15. 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)

LGSCO Unsuitable Temporary Accommodation: Guide for Practitioners (May 2023)

16. We do not consider that simply adding an applicant to a ‘Transfer List’ and waiting for a suitable property to become available is sufficient for a council to demonstrate how it is meeting its duty to provide suitable temporary accommodation. This is in line with the court’s decision that putting applicants who are owed the section 193(2) duty, and who are in unsuitable accommodation, on a waiting list for temporary accommodation is not a lawful means of fulfilling the unqualified and immediate duty to secure suitable accommodation for their occupation.” (Elkundi & Ors, R (On the Application Of) v Birmingham City Council [2021] EWHC 1024 (Admin) 308)
17. We recognise that a list or database is useful. However, we may be critical of councils who prioritise applicants for rehousing by time spent on such a list without regard to the specifics of their case. Furthermore, any such list should take care to distinguish between those in accommodation that is unsuitable now and applicants whom the council considers will need to move in the short or medium term.
18. We encourage councils to maintain a policy or procedure setting out how they allocate temporary accommodation.

What happened

19. Ms B first approached the Council as homeless in June 2022. The Council said she refused some interim accommodation and so it discharged its duty to provide accommodation pending completion of its enquiries. It also wrongly ended its relief duty.
20. In October 2022 Ms B approached the Council again as homeless. On 17 October 2022 the Council placed her and her daughter in a room in a hotel with shared facilities while it made enquiries into her case. This is B&B accommodation.
21. On 10 May 2023 the Council accepted the main housing duty towards her. On 15 May 2023 Ms B requested a review of the suitability of her accommodation. On 27 June 2023 the Council decided her accommodation was unsuitable and placed her on a ‘transfer list’. It said her review had been resolved and gave her no further right of appeal.
22. Ms B remained unhappy as she had been in B&B accommodation for over eight months, and she requested a further review. The Council treated her request as a complaint and responded on 19 July 2023.
23. The Council acknowledged the statutory six week limit on B&B accommodation and agreed it was not suitable accommodation for a family. It explained there was a severe shortage of temporary accommodation and privately rented properties. It had recently changed its placement policy to allow it to offer properties further afield out of the London area. It had set up a project team to work specifically with households living in B&B accommodation. It said her new caseworker would complete an updated affordability and suitability assessment. It partially upheld her complaint that she had been living in unsuitable accommodation since October 2022.
24. Ms B then complained to us.
25. The Council completed a personal housing plan (PHP) in August 2023. It also tried to complete a suitability and affordability review but said Ms B did not wish to co-operate with this, referring the Council to the information she had provided in 2022.
26. At 2.30 pm on 12 September 2023 the Council offered her a privately rented property in North-East England. It said she would only get two offers of accommodation. She could not visit or view it and the Council required a response by 10 am on 13 September. The offer said the following in terms of suitability:

“We accept that it would be disruptive for any family to have to move away from an area where you have established social links over a number of years, and away from their family, and that it may be more disruptive for a family with young children, like yours. However, I do not accept that the support of your family, friends or local community is essential to your household's welfare… We are also of the view that you will not be isolated from community support and will be able to receive support should you require it.”

27. Ms B sent an email at 11.23 pm asking for more time to consider the offer and take advice.
28. On 18 September 2023 Ms B refused the property and requested a review of its suitability. She said she was a single parent with a support network in London and it was unreasonable to expect her to move so far away where she knew no-one.
29. In response to my enquiries the Council said:
• Ms B had been unwilling to co-operate with the caseworker undertaking enquiries, so it took seven months to reach a decision on the main housing duty.
• The PHP was incomplete, and a financial assessment had not been completed as Ms B did not engage fully with requests for information.
• There are 459 people on the ‘transfer list’. Applicants are referred to the list due to unsuitable temporary accommodation and the Council operates priority criteria within applicants on the list depending on their individual circumstances. Timescales are dependent on stock availability.
• There has been an 80% drop in the supply of both temporary accommodation and privately rented affordable accommodation in the borough.
• The Council said it did not review the suitability of the offer as it was the first of two offers.

Analysis

B&B accommodation

30. Ms B and her daughter have lived in B&B accommodation for over a year. The statutory time limit is six weeks. The Council agrees the accommodation is unsuitable but has been unable to provide anything else suitable due to the severe drop in supply along with the continued demand for affordable accommodation in the area.
31. I consider the Council has been at fault in failing to find suitable alternative accommodation since 29 November 2022. I understand the pressures on housing in the area are immense and the delay is largely due to external factors beyond the Council’s control such as a shortage of temporary accommodation. But the fact that a council has not met the statutory duty to provide suitable temporary accommodation is sufficient to make a finding of service failure.
32. This fault has caused, and continues to cause, Ms B and her daughter significant injustice: They have no access to cooking facilities, no space to study or relax and the environment is totally unsuitable for a child.

Transfer list

33. I also consider the operation of the Transfer List is unclear, and the Council has not provided a policy or procedure explaining how the list operates, beyond a list of priority criteria which are very similar to the main housing register. This is fault.

Review response

34. The Council’s review response to Ms B in June 2023 was unclear as to whether her review had been successful, and it did not give her a further right of appeal to court if she remained dissatisfied. This was fault.

Out of area offer

35. I understand the pressure on housing in the area has led the Council to review its policy on out of area placements and it is able to offer placements out of area if it has properly considered the individual circumstances of each case.
36. However, the Council has given no reasons as to why Ms B‘s established social and support networks were not essential to her family’s welfare and why Ms B would not be isolated even though the Council was asking her to move 250 miles away to a place where she knew nobody. It made no mention of the impact on her daughter’s education or Ms B’s employment. This was fault.
37. Ms B had a right of appeal against the offer which she exercised, but the Council refused to consider it saying she was entitled to two offers of accommodation. I consider the Council should have considered the review and decided if it was suitable, taking into account her objections. This would then determine whether Ms B was entitled to two further offers rather than just one. The failure to do so means that Ms B may be penalised for refusing an unsuitable offer.
38. I also consider the manner in which the Council made the offer to Ms B was unreasonable: it gave her less than 24 hours to consider and digest the prospect of moving 250 miles away. This was fault which exacerbated an already stressful situation.

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Agreed action

39. In recognition of the injustice caused to Ms B and her daughter, I recommended the Council:
40. within one month of the date of my final decision:
• makes an offer to Ms B of suitable alternative temporary accommodation;
• pays her £5,000 for the time she has spent in B&B accommodation since the six week statutory time limit expired in November 2022;
• carries out a review of the suitability of the first offer made to Ms B in September 2023 for the property in North-East England to determine if Ms B is entitled to one or two further offers of accommodation; and
41. within three months:
• produces a published policy or procedure explaining how the transfer list works, including the criteria for being placed on the list, the criteria for priority within the list and how temporary accommodation is allocated within the list.
• carries out a review of its procurement of temporary accommodation and identifies ways of increasing the supply of different types of temporary accommodation suitable for families.
• reviews the way in which it makes offers of out-of-borough accommodation to ensure sufficient time is allowed to consider the offer and that sufficient reasons are given as to why the Council considers the offer is suitable.
42. The Council has already made an offer of accommodation to Ms B which she has accepted and has agreed to pay her £5,000.
43. It accepts its review letter in June 2023 did not contain the statutory right of appeal, but it has taken steps to improve this and has not noted any further instances of the fault.
44. In respect of the recommendation to carry out a suitability review now, it said it should have made clear in the offer letter (September 2023) that the Council’s policy was to make two offers. It agreed that it had not passed on Ms B’s reasons for refusing the offer to the Review Team as she was entitled to another offer. But it has now amended its placement policy and reduced the number of direct offers to one, so it has not disadvantaged Ms B. I agree this recommendation is not necessary as Ms B has now accepted an offer of accommodation.
45. The Council has agreed to the three procedural review recommendations and says they are all underway.
46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. I consider this is a proportionate way of putting right the injustice caused to Ms B and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman