Manchester City Council (23 017 649)
The Investigation
The complaint
1. Ms B complained that Manchester City Council (the Council), in respect of her housing application, failed to:
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find her suitable alternative temporary accommodation despite concluding in July 2023 that her current accommodation was unsuitable; and
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award her Band 1 priority on the housing register.
2. This has caused Ms B significant distress and inconvenience living in unsuitable accommodation.
Legal and administrative background
The Ombudsman’s role and powers
3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. In this report we 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. 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)
Suitability of accommodation
5. 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 Homelessness Code of Guidance 17.2)
6. 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)
7. 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)
The Council’s allocations policy
8. This policy describes how the Council allocates social housing to those in housing need. It places applications in one of four priority bands. Band 1 is awarded for six months to those who have exceptional or urgent housing needs. In terms of medical needs this means where a person’s life is at risk due to their current accommodation or where a person with complex physical needs is unable to access essential facilities or complete daily living activities in their current accommodation and it cannot be feasibly adapted.
9. Band 2 is for applicants who have an urgent need to move, including homeless applicants and those with a medical need to move.
Public Sector Equality Duty
10. The Public Sector Equality Duty (PSED) requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:
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eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010;
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advance equality of opportunity between people who share a protected characteristic and those who do not; and
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foster good relations between people who share a protected characteristic and those who do not.
11. The broad purpose of the PSED is to ensure that public authorities consider equality and good relations in their day-to-day business and decision making. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.
How we considered this complaint
12. We have considered the complaint and the documents provided by the complainant, spoken to the complainant, made enquiries of the Council and considered the comments and documents the Council provided.
13. We gave the complainant and the Council a confidential draft of this report and invited their comments. The comments received were taken into account before the report was finalised.
What we found
What happened
14. Ms B and her two children were made homeless in January 2022. One of her children has complex needs due to a number of medical conditions and requires constant supervision. Her second child also has medical conditions. After staying in hotels for a short period the Council provided Ms B with two bedroom temporary accommodation.
15. In September 2022 the Council carried out a medical assessment in respect of the household. It concluded Ms B should have Band 2 priority (backdated to July 2022) and needed an extra bedroom.
16. On 16 November 2022 Ms B asked for a review of the suitability of the property as it posed dangers for her son and the sleeping arrangements were not suitable. She was unable to sleep in the second living room downstairs as she could not be away from her son who slept in the upstairs bedroom. He has very disturbed sleep and she needed to supervise him frequently. She had to sleep in the same bedroom as him which meant she got very little sleep. The stairs also posed a risk to her son who has no sense of danger. She requested a three bedroom property with all the bedrooms on the same level, a downstairs toilet (due to her son’s mobility issues) and a small garden to allow her son to let off excess energy.
17. In January 2023 she complained that the property was increasingly dangerous for her son, and also had mould and damp which was affecting all of them.
18. The Council completed the review on 25 January 2023 and concluded the property was unsuitable. It said it would look for alternative temporary accommodation for Ms B and she could also bid for properties on the choice-based allocations system. It said it would refer her case for another medical assessment for a downstairs toilet and garden.
19. After we issued a draft of this report the Council provided evidence from its case management system that it carried out a medical assessment on 30 January 2023. The one-line note indicated that her banding should remain the same and she required a third bedroom. There was no mention of the garden or the downstairs toilet. The Council says it did not notify Ms B of this outcome or give her a right of review.
20. In mid-February 2023 the Council offered Ms B an alternative property but she pointed out it was a similar layout to her current home and the Council withdrew the offer. Ms B also identified a suitable property her friend was moving out of and asked if she could be considered for this. The Council agreed in principle, but the move was delayed.
21. In early July 2023 her friend confirmed she was moving out. But the Council said after contacting the landlord that it was no longer going to be let as temporary accommodation.
22. On 25 July 2023 the Council offered Ms B a three bedroom flat on the first floor. Ms B said it was unsuitable due to the area, it had no garden and the stairs up to the flat were difficult with two children and buggies. The Council agreed the property was unsuitable and withdrew the offer. It offered to help her look for accommodation in the private sector.
23. Ms B made a formal complaint about the delay in finding her suitable accommodation. She said the Council kept offering her unsuitable properties and was not taking account of the specific and complex needs of the household. She also said the Council’s records were inaccurate in respect of her preferred areas and the chronology of events.
24. The Council responded on 9 August 2023. It partially upheld her complaint and agreed that the properties offered were unsuitable, but her current accommodation was also unsuitable. It said very few properties meeting all her requirements (three bedrooms on one level with a garden) became available and it sometimes considered an applicant may want to compromise to obtain better if not entirely suitable accommodation. It apologised for the distress caused and promised improvements to the housing assessment process and record-keeping.
25. Ms B remained dissatisfied and escalated her complaint to stage two. She said the Council had poorly managed her case for 18 months and she was living in unsuitable and unsafe accommodation. She said the response had not offered a solution to her complaint.
26. The Council replied on 17 August 2023. It upheld the stage one response and said the Council had found fault in a number of aspects of the handling of the case and apologised for those mistakes. There was no evidence to suggest poor handling for the entire 18-month period and the Council recognised that Ms B’s accommodation was unsuitable. She was on the internal transfer list for a property on the housing register with Band 2 priority and looking for privately rented accommodation. If she was successful, she could remain on the register with the Band 2 priority to wait for social housing.
27. Ms B complained to us in February 2024 because she was still waiting for alternative accommodation. She said the Council had offered another unsuitable property and she was having no luck in the private sector even though the Council had offered to provide financial support with the higher rents.
28. In August 2024 the Council offered and Ms B accepted, alternative accommodation with three bedrooms on the same level and an outdoor yard space. It does not have a downstairs toilet or enclosed garden, but the staircase was enclosed so was less of a risk to her son and Ms B considered it was an improvement on her current accommodation.
29. On 25 September 2024 the Council carried out another medical assessment, concluding that Band 2 was appropriate, but a downstairs toilet and enclosed garden were essential.
Conclusions
Accommodation
30. The Council had an immediate duty to find Ms B suitable temporary accommodation from 25 January 2023 when it concluded her current accommodation was not suitable for her household’s needs. But 18 months later it had still not found her suitable alternative accommodation. We accept the Council has tried to find alternative accommodation but due to the shortage of accommodation and the pressures on the available accommodation it had not been able to find anything. This is service failure.
Public Sector Equality Duty
31. We also note the Council has said that the additional needs of Ms B’s family mean it is harder to find accommodation. We accept accommodation is scarce, but we do not consider Ms B’s requirements are so unusual as to warrant such a long wait for alternative temporary accommodation.
32. Ms B’s son is disabled (a protected characteristic) so the requirements of the PSED apply. The Council has a duty to ensure equality considerations are reflected in the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.
33. We have not seen evidence that the Council has considered the equality impacts of either its temporary accommodation policy or the application of that policy to this case. It has already recognised within its allocations banding that households with medical needs have additional priority. So, it is not acceptable to use those extra needs arising from a protected characteristic (disability) to justify a longer wait.
34. We understand some compromise may be necessary to achieve better if not completely suitable accommodation. But this does not negate the Council’s legal duty to find suitable accommodation and to adhere to its PSED in doing so. It is not acceptable for households where members have a disability to have to wait significantly longer for accommodation than households without a disability. We would expect the Council to consider what other action it could take to increase the supply of more varied types of accommodation.
Injustice
35. Ms B lived in an unsafe and unsuitable environment for 18 months longer than she should have. Her son was constantly at risk of injury from the stairs, and she could not get a good night’s sleep as she had to share a room with her son. This is a significant injustice to Ms B and her children. Since she has now accepted more suitable accommodation the injustice to her is significantly reduced.
Banding/medical assessment
36. It is not our role to decide which priority band Ms B’s application should be in. She believed her needs were exceptional and urgent due to the dangers her accommodation posed to her son and she should have been in Band 1. We have not seen evidence that the Council considered this point in relation to her application but neither have we seen clear evidence that Ms B requested a review on this point. As she has now moved to more suitable accommodation this issue is no longer relevant.
37. We also note the Council said in January 2023 that it would carry out a further medical assessment to consider Ms B’s request for a garden and a downstairs toilet. The Council has provided evidence it carried out a reassessment on 30 January 2023. But there is no evidence it considered the need for a downstairs toilet or enclosed garden, or that it asked Ms B to contribute to the assessment. Neither did the Council notify Ms B of the outcome or give her a right of review. This is fault as it is not clear how or why the Council made its decision or whether Ms B’s housing needs have been properly determined.
38. The Council decided in September 2024 that a downstairs toilet and enclosed garden were essential. Given that Ms B’s situation had not changed since January 2023, this suggests that a more thorough reassessment in January 2023 may well have come to a different conclusion.
Recommendations
39. To recognise the injustice identified above, we recommend the Council within three months of the date of this report:
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apologises to Ms B in line with our guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice;
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pays her £3,600 (18 months at £200 a month in line with our guidance on remedies); and
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reviews its procurement procedure and produces an action plan with steps to increase the supply of different types of temporary accommodation suitable for those with disabilities and other complex needs.
40. 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)
41. The Council should provide us with evidence it has complied with the above actions.
Decision
42. We consider this is a proportionate way of putting right the injustice caused to Ms B and we have completed our investigation on this basis.