Summary: The Council failed to carry out an agreed action to investigate and respond to Miss X’s concerns about damp in her property, following a previous investigation by the Ombudsman. There was also fault by the Council in failing to move Miss X when it decided her temporary accommodation was not suitable. The Council has agreed to make a financial payment and service improvements.

The complaint

1. The Council failed to carry out an agreed action to investigate and respond to Miss X’s concerns about damp in her temporary property, following a previous investigation by the Ombudsman.
2. Miss X said this has significantly impacted the health of her son and her physical and mental health.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We 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)
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

6. I have not investigated any new issues about disrepair in the temporary accommodation since Miss X first complained to us in December 2022.

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How I considered this complaint

7. I considered the information provided by Miss X. I made enquiries of the Council and considered its response.
8. Miss X and the Council had the opportunity to comment on my draft decision. I considered all comments before reaching a final decision.

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What I found

Homelessness - suitability of accommodation

9. If a council is satisfied an applicant is homeless, eligible for assistance and has a priority need, the council has a legal duty to secure accommodation for their occupation. This is commonly referred to as the ‘main housing duty’.
10. There is a legal duty for authorities to ensure that accommodation provided under the main housing duty is “suitable” for the applicant and household members (section 206 Housing Act 1996).
11. When deciding if accommodation is suitable, authorities must have regard to various statutory provisions, including the Housing Act 2004 which identifies damp as a hazard.
12. Councils have a duty to keep the suitability of accommodation under review. An applicant may ask a council to reconsider the suitability of their current temporary accommodation at any time if their circumstances change (for example, if there is a change in their needs due to a medical condition or disability or an increase in the size of the household). An officer should then make a suitability decision. The officer may agree the accommodation is unsuitable and put the applicant on a transfer list. In that case, the applicant does not need to request a review.
13. The review must be carried out by someone who was not involved in the original decision and who is senior to the original decision maker. The reviewing officer needs to consider any information relevant to the period before the decision was made (even if only obtained afterwards) as well as any new relevant information the Council has obtained since the decision.

The Council’s policy for resolving disrepair

14. For private management agent properties, the Council will signpost the client to the agent for any repair and maintenance issues.
15. The Council will contact the accommodation provider and raises issue of disrepair, including mould and damp. It is the providers responsibility to investigate and address the issues that are raised.

What happened

Our first investigation - 22 013 036

16. We investigated a complaint from Miss X that the Council:

• left her without hot water and heating for two months during the winter of 2022.
• had not resolved issues with damp in the bathroom, which was having an adverse impact on her child’s health; and
• failed to respond to her complaint.

17. We found fault with the Council and issued our final decision in August 2023. The Council agreed to complete the following actions within one month of our final decision:

• apologise to Miss X;
• pay Miss X £150 for the distress and uncertainly caused by the Council’s failure to respond to her issues about damp; and
• investigate and respond to Miss X’s issues about damp.

18. We asked the Council for evidence it had completed the above actions in September 2023. The Council showed us it had apologised to Miss X and made payment. However, the Council failed to provide evidence it had investigated issues about damp in the accommodation.
19. We continued to chase the Council for an update and requested an explanation for the ongoing delay. At the end of November, the Council told us that it had not received a response from the property management agent (Company A). We told the Council that it had failed to comply with our recommendation.
20. We opened a new investigation and asked the Council what action it had taken to address Miss X’s complaint about damp which had caused mould in her accommodation.

Key events from August 2023

21. On 30 August, Company A told the Council the damp and mould reported by Miss X was due to an ongoing roof leak affecting the accommodation. The leak was an ongoing issue and was coming from a communal walkway owned by another local authority. Company A explained the leaking roof needed to be fixed before the damp and mould could be successfully treated. The Council responded on the same day, stating it was shocked the issue had been ongoing since 2021 with no resolution. The Council said the damp and mould was affecting Miss X’s health and needed to be addressed as soon as possible.
22. In September, Miss X told the Council the damp and mould were also affecting her son’s bedroom. Miss X provided photographs showing the extent of the disrepair in the property.
23. On 30 October, the Council chased Company A for an update on the repairs to Miss X’s accommodation. Two weeks later Company A advised the issue remained unresolved.
24. In November, the Council completed a suitability assessment, and the accommodation was deemed unsuitable due to Miss X’s health condition, difficulty accessing stairs, and damp in the property.
25. In January 2024, Company A inspected the property. It reported that the damp and mould on the toilet wall was getting worse due to an outside leak.

Analysis

26. The Council is ultimately responsible for any acts, or omissions, by Company A because it managed the temporary accommodation on behalf of the Council. The Ombudsman regards providers of temporary accommodation as the Council’s agents.
27. In August 2023, the Council agreed to the actions set out above in paragraph 16 to remedy the injustice caused by the faults we identified in our previous investigation. It said it would complete the actions within one month of the final decision. Although the Council apologised to Miss X and made the agreed payment, it did not investigate and respond to Miss X’s issues about mould and damp. The Council is at fault for non-compliance with the remedy.
28. When a Council agrees to our recommendations it should take every effort to comply with the agreed timescales. The evidence provided by the Council shows that it did communicate with Company A about the damp and mould, however, this appeared to happen when the Ombudsman chased the Council for an update. Although there were periods of time where the Council took no action at all and allowed matters to drift. I also find the Council did not properly hold Company A to account for its performance in addressing the damp and mould issues. Nor is there evidence it set clear expectations and timescales for completion of the remedial works. This was fault and caused Miss X uncertainty.
29. Although the Council did not own or manage the property it had a duty under section 206 of the Housing Act 1996 to ensure that any accommodation secured for a homeless applicant continued to be suitable for their needs. The law is clear that this is an ongoing duty. In September, Miss X told the Council that damp, and mould had appeared in her son’s bedroom and provided photographs showing the extent of disrepair in the accommodation. It is not clear when the mould and damp got worse, but the Council was aware that this was a reoccurring problem and affecting Miss X’s health. The Council should have completed a suitability review of the property and decided if it was suitable for the family’s needs. This did not happen and was fault.
30. As the Council accepted the temporary property was not suitable from November 2023, it is reasonable to say on the balance of probabilities that it was not suitable from September 2023.
31. In response to our enquiries the Council said in situations where a property had damp and mould it allows a property management agent a chance to rectify the problem and failing that it would rehouse the client. I do not understand the Council’s rationale here. The Council was aware this was a longstanding issue which Company A had already been unsuccessful in resolving. Company A had not provided any timescales that indicated the remedial works would be completed without further delay. The Council was also aware the damp and mould were affecting Miss X’s health.
32. Where a council accepts temporary accommodation is unsuitable it has a legal duty to provide suitable accommodation immediately and cannot be deferred. The Council did not actively seek alternative temporary accommodation for Miss X. Failure to do so is fault and Miss X has remained in unsuitable accommodation for longer than necessary. It has also caused her distress and uncertainty.
33. Our Guidance on remedies recommends a payment of £150 - £350 for each month spent in unsuitable temporary accommodation. Miss X and her son have lived in a property that showed increased levels of damp and mould since September 2023. The Council also decided the property was unsuitable for other additional reasons which we have not investigated. We therefore consider a payment of £250 a month is appropriate and proportionate.

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Agreed action

34. Within one month of my final decision the Council will:
1. pay Miss X £250 for each month she spent in unsuitable temporary accommodation from September 2023 to date; and
2. pay Miss X a further £250 a month until the Council makes an offer of suitable alternative accommodation.
35. Within two months of my final decision the Council will engage in discussions with Company A about a framework agreement to set out clear expectations around service standards, repairs policy and timescales.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I have completed my investigation finding fault by the Council causing an injustice to Miss X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman