Summary: Miss X complains the Council did not review the suitability of temporary accommodation it provided her when she was homeless, when she asked it to. There was fault by the Council which caused Miss X to remain in temporary accommodation that was unsuitable for her, which caused her distress. It also caused avoidable time and trouble for Miss X in bringing her complaint. The Council agreed to apologise to Miss X and review her position on its waiting list for a move to suitable alternative accommodation. It will also pay a financial remedy and continue to do so until it places Miss X in suitable accommodation.

The complaint

1. Miss X complains the Council provided her with unsuitable temporary accommodation from 2022 to 2023, when she was homeless. She says she asked it to review the suitability of the accommodation, but it did not properly consider this or respond to her. It then upheld her complaint but did not find her suitable alternative accommodation as it had promised to.
2. Because of this Miss X says she:
• lived in unsuitable accommodation with her children and while pregnant. She could not use the stairs due to a medical condition, and it was too far from her older child’s school, so the family had to stay with family members elsewhere. This affected Miss X’s mental health; and
• spent avoidable time and trouble making her complaint.
3. Miss X wants the Council to provide her with suitable alternative accommodation, near her older child’s school.

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The Ombudsman’s role and powers

4. 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)
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. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
7. 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

8. I considered:
• information provided by Miss X and discussed the complaint with her;
• documentation from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
9. Miss X and the Council had 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 law and guidance

10. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.

The main housing duty and temporary accommodation

11. If a council is satisfied an applicant is unintentionally 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 and Homelessness Code of Guidance 15.39)
12. The accommodation a council provides until it can end the main housing duty is called temporary accommodation.

Suitability of 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 (from 3 April 2018) Homelessness Code of Guidance 17.2)
14. In deciding whether accommodation is suitable, authorities must have regard to
• the space and arrangement of the accommodation;
• the state of repair and condition of the accommodation;
• location, including ease of access to established employment, schools and specialist health care; and
• the specific needs of the applicant and any household members due to a medical condition or disability.
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. Councils must keep the suitability of temporary accommodation under review. This is particularly the case when an applicant reports a change in circumstances which might affect the suitability of their accommodation. (Homelessness Code of Guidance 17.8)
17. Anyone who believes their temporary accommodation is unsuitable has a statutory right to ask the Council to review the accommodation’s suitability within 21 days of being notified of the decision. (Housing Act 1996, section 202).
18. Applicants can also ask a council to reconsider its decision about the suitability of temporary accommodation at any time. This might be necessary, for example, if there is a change in the applicant’s circumstances. This new decision is open to review under section 202, with a new 21-day timescale. (R(B) v Redbridge LBC m[2019] EWHC 250 (Admin))
19. Councils must complete reviews of suitability of temporary accommodation within eight weeks of the date of the review request.
20. If a council’s review decides temporary 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)
21. Councils must advise applicants of their right to appeal to the county court on a point of law, and of the period in which to appeal. Applicants can also appeal if the council takes more than the prescribed time to complete the review. (Housing Act 1996, sections 202, 203 and 204)

Housing allocations

22. 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))
23. 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; and
• people who need to move to avoid hardship to themselves or others.

(Housing Act 1996, section 166A(3))

Background

24. In mid-2022, the Council accepted the main housing duty towards Miss X as a homeless person and placed her in temporary accommodation with her child.
25. In 2023, Miss X told the Council this temporary accommodation was not suitable for her several times. Reasons cited by Miss X included:
• that she was pregnant with her second child and due to give birth in November 2023, at which point there would be even less space in the property; and
• that she had mobility issues caused by a medical condition developed during her pregnancy, and so the layout of the property, including the many stairs, was not suitable.
26. In mid-2023, Miss X complained to the Council that it had failed to properly respond to her concerns or consider the suitability of the accommodation.
27. In November 2023, the Council issued its final response to Miss X’s complaint. The Council:
• accepted it had not properly considered Miss X’s concerns about suitability of the accommodation;
• said once she gave birth to her second child it would consider the accommodation to be unsuitable; and
• said it would immediately add Miss X to its transfer list for a move to alternative suitable temporary accommodation.
28. Towards the end of November 2023, Miss X gave birth to her second child. In March 2024, the Council had not yet found suitable alternative accommodation for the family, and Miss X brought her complaint to the Ombudsman.

My findings

Suitability review of temporary accommodation

29. Miss X said she first told the Council the accommodation was unsuitable in January 2023. The Council first responded to Miss X’s concerns about this in July 2023. In response to Miss X’s complaint, the Council at first said it was not at fault for failing to respond to Miss X before July 2023. However, at the final stage of its complaints procedure it then accepted it was at fault because it should have responded sooner. We asked the Council to provide records of its contact from Miss X from January 2023. It only provided records from April 2023.
30. On the balance of probabilities, I find Miss X first told the Council the accommodation was unsuitable in January 2023. The Council should have considered this as a request for a suitability review of her temporary accommodation. It failed to do so, which was fault.
31. In fact, I find the Council failed to carry out a proper suitability review at any point. It considered medical evidence provided by Miss X, but it only considered this in the context of deciding what Miss X’s priority should be on its register for allocating permanent social housing. It decided Miss X did not have medical priority on its housing register. But it did not fully consider the factors described at paragraph 14, and whether Miss X’s accommodation specifically was suitable for her individual circumstances. This was fault.
32. 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. We may decide to investigate if there was a good reason the complainant could not appeal.
33. The Council did not properly respond to Miss X’s suitability review request and did not tell her about the right to appeal to court. Therefore, I have considered whether the accommodation was suitable for Miss X, to decide, on the balance of probabilities, what the Council would have decided had it properly considered Miss X's review request.
34. In responding to the complaint, the Council effectively agreed the accommodation was not suitable for Miss X from the point she gave birth to her second child in November 2023. However, I also find Miss X was already overcrowded before this. The Council’s allocation policy says it considers a single parent with one child to need a two-bedroom property. Miss X’s property only has one bedroom. Therefore, before Miss X had her second child, her and her older child were already overcrowded, according to the Council’s policy.
35. On the balance of probabilities, I find that had the Council properly considered a suitability review request from Miss X in January 2023, it would have concluded the accommodation was unsuitable for her. If it had done so within the correct eight-week review timescale, it would have concluded this by the end of February 2023. Where a council decides temporary accommodation is unsuitable, the duty to provide a suitable alternative is immediate. Had the Council properly considered this when it should have, it would have placed Miss X on its transfer list for a temporary accommodation move in March 2023. Therefore, the Council should remedy the injustice caused to Miss X by:
• providing a financial remedy to recognise she lived in unsuitable accommodation from March 2023. It should continue to provide a monthly unsuitability payment until it has placed Miss X in suitable alternative accommodation; and
• review Miss X’s position on its transfer list and backdate this, so she is in the position she would have been had she been waiting on the list since March 2023. This should include consideration of any other factors which may affect Miss X’s position on the list, such as medical conditions, welfare needs, and overcrowding.

The Equality Act 2010

36. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport, and the carrying out of public functions.
37. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. The ‘protected characteristics’ referred to in the Act are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
38. We cannot decide if an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
39. When Miss X asked the Council to review the suitability of her accommodation, she was pregnant, which is a protected characteristic under the Equality Act. She also had mobility issues caused by a medical condition developed during her pregnancy.
40. The Council did not properly consider the suitability of Miss X’s accommodation. Therefore, I am not satisfied the Council had due regard to Miss X’s individual circumstances, as a pregnant person, in the decisions it made about her housing. This means it did not properly consider its duties to her under the Equality Act, which was fault.

The Human Rights Act 1998

41. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. The Act requires all councils, and other bodies carrying out public functions, to respect and protect individuals’ rights.
42. Our remit does not extend to making decisions on whether or not a council has breached the Human Rights Act – this can only be done by the courts. But we can decide whether a council has had due regard to an individual’s human rights in its treatment of them, as part of our consideration of a complaint. In practical terms, councils will often be able to show they have complied with the Human Rights Act if:
• they can show they have considered the impact their decisions will have on the individuals affected; and
• there is a process for decisions to be challenged by a review or appeal.
43. I am not satisfied the Council had due regard to Miss X’s human rights under Article 8, which entitles her to respect for her private and family life, and home.
44. The Council did not properly meet its homelessness duties to the family. It did not properly consider decisions about the family’s housing and its suitability, or the impact on their home life. Therefore, it did not properly consider the impact its decisions would have on the family, or have due regard to their human rights. This was fault.

Complaint handling

45. When Miss X complained in mid-2023, the Council should have recognised it needed to direct her to the correct statutory procedure for review of suitability of temporary accommodation. Instead, it continued to consider Miss X’s concerns via its corporate complaints procedure. This was fault, which caused Miss X avoidable time and trouble in the complaints process. The Council should remedy the injustice caused.
46. Miss X said the Council did not follow up on the complaint outcomes it promised, because it did not move her to alternative accommodation after it upheld her complaint. On the balance of probabilities, I did not find the evidence I have seen supports this view. The Council told Miss X it would add her to its transfer list for a temporary accommodation move after it upheld the complaint. I am satisfied it did so. I accept that at the time of my decision, eight months after the Council upheld the complaint, Miss X remains in the unsuitable accommodation. However, I consider this is because the Council is significantly oversubscribed for social housing, not because it failed to add Miss X to the transfer list following the complaint. As described at paragraph 35, it may be Miss X is at the wrong position on the list, because she should have been on the list since March 2023. I have made recommendations to address this issue.

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Agreed action

47. Our guidance on remedies says where a complainant has been deprived of suitable accommodation, we are likely to recommend a monthly payment of between £150 and £350 to recognise this unsuitability. Taking into account Miss X’s circumstances, I consider the financial remedy should be £250 per month.
48. Within one month of our final decision the Council will:
1. apologise to Miss X for the impact of the faults we have identified. Our guidance on remedies sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this in making its apology;
2. review Miss X’s position on its transfer list and backdate this, so she is in the position she would have been had she been waiting on the list since March 2023. This will include consideration of any other factors which may affect Miss X’s position on the list, such as medical conditions, welfare needs, and overcrowding. The Ombudsman will require evidence the Council has completed this review and considered all the factors it should have;
3. pay Miss X a total of £4,450, comprising of:
1. £4,250 to recognise the 17 months Miss X and her family spent living in unsuitable temporary accommodation from March 2023 to July 2024; and
2. £200 to recognise the avoidable time and trouble caused to Miss X by the Council’s failure to direct her to the correct procedure when she complained.
4. continue to pay Miss X £250 per month from August 2024 onwards, until it has placed her in alternative accommodation which it considers to be suitable for her. The Ombudsman will require evidence the Council has had due regard to the factors described at paragraph 14, and whether the specific alternative accommodation it offered Miss X was suitable for her individual circumstances.
49. The Council will provide us with evidence it has complied with the above actions.
50. Based on the faults identified in this case, I would usually propose recommendations for the Council to improve its services, to ensure it properly considers requests for review of suitability of temporary accommodation. However, the Council has recently accepted our findings and recommendations in other investigations, about the same faults, covering the same period. Therefore, I do not consider it appropriate to make further recommendations for the Council to improve its services in this case.

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Final decision

51. I have completed my investigation. There was fault by the Council which caused Miss X to remain in temporary accommodation that was unsuitable for her, which caused her distress. It also caused avoidable time and trouble for Miss X in bringing her complaint. The Council agreed to our recommendations to remedy this injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman