Summary: Miss C complained the Council housed her family in unsuitable accommodation following a homelessness application which meant she incurred extra costs and lived in unsuitable accommodation for longer than necessary which particularly affected her children. We have found fault by the Council but consider the agreed action of an apology, £1,900 payment, removal of outstanding accommodation charges, consideration of a claim for avoidable travel costs and review of procedure provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Miss C, complains the Council housed her family in unsuitable accommodation following a homelessness application. In particular, Miss C says the Council has failed to comply with the relevant housing law.
2. Miss C says because of the Council’s fault she incurred extra costs and lived in unsuitable accommodation for longer than necessary which has particularly affected her children.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. When considering complaints 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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How I considered this complaint

7. I read the papers provided by Miss C and discussed the complaint with her. I have also considered information from the Council. I have explained my draft decision to Miss C and the Council and considered the comments received before reaching my final decision.

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What I found

Relevant legislation and background

8. There are two types of accommodation councils provide to certain homeless applicants: interim accommodation and temporary accommodation.
9. A council must secure accommodation for applicants 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)
10. If, having made inquiries, the council is not satisfied an applicant is homeless, eligible, and in priority need, it will have no further accommodation duty. If a council is satisfied an applicant is unintentionally homeless, eligible for assistance, and has a priority need the council has a duty to secure that accommodation is available for their occupation. This is called the main housing duty. The accommodation a council provides until it can end this duty is called temporary accommodation. (Housing Act 1996, section 193)
11. 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.
12. Interim and temporary accommodation can be the same physical property. What changes is the legal duty under which a council provides it. This is important because there is a statutory right to review the suitability of temporary accommodation. This then carries a right of appeal to county court on a point of law. We refer to these rights as s202 reviews (Housing Act 1996, s202).There is no statutory right to review the suitability of interim accommodation.
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 and temporary accommodation. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)
14. Councils must assess whether accommodation is suitable for each household individually. Whether accommodation is suitable will depend on the relevant needs, requirements and circumstances of the homeless person and their household. (Homelessness Code of Guidance 17.4 & 17.9)
15. 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
16. 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). However, from 31 May 2023, the Order was amended to include accommodation with no cooking facilities but this was not retrospective.

What happened

17. Miss C contacted the Council about her housing situation towards the end of 2022. Miss C has two children.
18. The Council completed a personal housing plan (PHP) and accepted a relief duty on 11 November. The Council authorised interim accommodation pending the outcome of Miss C’s homeless application. The Council offered Miss C hotel accommodation which Miss C moved into on 15 December. Initially this placement was due to end on 29 December but was extended in January 2023 on an indefinite basis pending a decision on Miss C’s homeless application.
19. Miss C complained to the Council in early February about her accommodation. Miss C highlighted there were no kitchen facilities and so although breakfast was included, she was spending £300 to £400 each month on food which was not sustainable. Miss C also highlighted she was sharing one bedroom with her children including her 12 year old son. Miss C also raised issues about the information provided at the outset in terms of cost and length of stay.
20. The Council responded to Miss C’s complaint towards the end of February. The Council explained it had no other available interim accommodation suitable for Miss C’s family. The Council accepted it had not informed Miss C of the extension of the placement until 13 January and that it had not provided the usual booking pack at the outset due to an administrative error. The Council apologised and confirmed it would cancel the current rent arrears as long as Miss C paid the weekly service charge going forward. The Council also provided £200 in food vouchers to Miss C towards the end of March.
21. The Council offered Miss C alternative accommodation towards the end of March. The property was a self-contained two bedroom maisonette. Miss C declined the property due to its location and told the Council she wanted to be accommodated in the South of Westminster. The Council explained the accommodation was still within its area and the school catchment areas for her children and provided photographs of the property. Miss C confirmed she did not wish to accept the offer due to the travelling distances and lack of nearby support network.
22. The Council provided a further response to Miss C at the second stage of its complaint procedure in early April. The Council accepted that Miss C needed to be moved to self-contained accommodation as soon as possible and upheld her complaint that the current accommodation was unsuitable. The Council noted it had offered self-contained accommodation towards the end of March but Miss C had declined the accommodation due to its location. The Council maintained the property was suitable for Miss C and her family but did not address the additional issues she had raised. The Council offered Miss C £1,120 for the 14 weeks she had been staying at the hotel which it had calculated as £500 for being in B&B accommodation for more than six weeks and a further £500 for each subsequent six week period.
23. The Council accepted the main housing duty on 16 June. The Council has provided a copy of the notification letter ending the relief duty dated 16 June and a copy of the notification letter accepting the main duty of the same date. Miss C had a right to request a review of these decisions and the suitability of the accommodation from this date.
24. Miss C sought a review of the suitability of the accommodation at the hotel in mid-June. The Council provided alternative accommodation in an apartment on 25 June and did not complete the suitability review.

My analysis

25. As set out above, the Homelessness (Suitability of Accommodation) Order 2003 defines B&B as accommodation which is not self-contained and where the household has to share a toilet, cooking or bathroom facilities with other households. From 31 May 2023, the Order was amended to include accommodation with no cooking facilities but this was not retrospective. The Council has confirmed there were no cooking facilities at the accommodation originally provided to Miss C but other facilities were not shared. This would mean the accommodation was not B&B as legally defined at the time.
26. However, the Council accepted in its complaint correspondence with Miss C that the accommodation was not suitable.
27. Miss C stayed at the hotel accommodation between 15 December 2022 and 24 June 2023. This was initially interim accommodation provided under the Council’s Housing Act 1996, section 188 duties. However, the Council accepted the main housing duty on 16 June 2023 and the accommodation was temporary accommodation from this date. The Council correctly provided Miss C with her right to request a review of the suitability of the temporary accommodation at this point which she exercised.
28. 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. For this reason, I have not investigated the period after 16 June 2023.
29. We recognise the reality that a shortage of available accommodation means councils are not always able to fulfil their “immediate, non-deferrable, and unqualified” duty to provide suitable temporary accommodation. In these cases, we expect to see evidence of councils making efforts to fulfil their duties, at both the individual and strategic level. We also expect to see councils considering whether there are steps that can be taken to reduce the impact of the unsuitable accommodation on the household.
30. I have noted the Council provided Miss C with vouchers to help with the additional food costs and made one offer to Miss C of alternative interim accommodation. Despite this action I am satisfied the Council was at fault in providing unsuitable accommodation to Miss C for the period 15 December 2022 to 27 March 2023 when the Council offered Miss C self-contained accommodation elsewhere in its area.
31. I have gone on to consider the period from 27 March to 16 June 2023. We would expect to see a record of a decision about the suitability of the accommodation in relation to the alternative accommodation offered in March 2023. Miss C provided her reasons why the self-contained accommodation offered towards the end of March was not suitable. I have seen no contemporaneous record of the Council’s reasons for considering the accommodation was suitable for Miss C and her family despite the additional concerns she had raised. This is fault. Although a finely balanced decision, I consider the Council cannot evidence the suitability of the accommodation offered at this time. Therefore, I consider Miss C suffered injustice in remaining in unsuitable accommodation with her family for the entire period 15 December 2022 to 16 June 2023.
32. The Ombudsman’s guidance on remedies in relation to unsuitable use of B&B accommodation does not apply as the accommodation Miss C was provided with did not meet the legal definition at the relevant time.
33. Instead, we would recommend a monthly amount of financial redress for a complainant who has been deprived of suitable accommodation during what would inevitably have been a stressful period in their life. In reaching my view of an appropriate amount I have taken into account the accommodation provided had its own toilet and bathing facilities but no facilities to store, prepare or cook food. I have also taken account of the Council’s provision of £200 of food vouchers to Miss C.
34. I consider an appropriate amount in all the circumstances would be £1,200 for the period 15 December 2022 to 16 June 2023 plus an additional payment of £700 towards the reasonable additional cost of buying take-away food given the lack of cooking facilities. We would also expect the removal of any outstanding charges for the unsuitable accommodation for the same period.
35. In responding to an earlier draft of this statement, Miss C raised an additional issue. Miss C explained that because she did not have an address she was able to use for an ‘oyster zip card’ for her son she incurred avoidable travel costs during the same period. In the circumstances, it would be reasonable for Miss C to make such a claim directly to the Council in the first instance with any necessary supporting evidence. It would be open to Miss C to make a new complaint if she was unhappy with the outcome of such a claim in due course.

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Agreed action

36. The Council will take the following action to provide a suitable remedy to Miss C:
1. provide a written apology to Miss C for the length of time she spent in unsuitable accommodation with her family within one month of my final decision;
2. pay Miss C a total amount of £1,900 to both recognise the impact of living in unsuitable accommodation for the period 15 December 2022 to 16 June 2023 and the reasonable additional food costs incurred within one month of my final decision;
3. remove any outstanding charges for the unsuitable accommodation for the same period within one month of my final decision;
4. consider any claim and evidence received from Miss C for avoidable travel costs during the period 15 December 2022 to 16 June 2023 and provide her with an outcome in writing with the reasons for the decision reached within 6 weeks of receipt of the claim; and
5. review its procedures to ensure officers always carry out a suitability assessment to identify a household’s needs before making a placement in interim or temporary accommodation and keep an adequate record of this decision within three months of my final decision.
37. 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.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation as I have found fault but consider the agreed action above provides a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman