Summary: Miss X complains the Council placed her and her children in unsuitable interim and temporary accommodation and delayed in moving them. Miss X also complains the Council did not place her in the correct priority band under its housing allocations scheme. The Council was at fault as Miss X and her children lived in bed and breakfast accommodation for longer than six weeks so they lived in one room with shared facilities for longer than they should have done. The Council also delayed in contacting another council for a reciprocal agreement to house Miss X and delayed in accepting the main housing duty. The Council has agreed to remedy this injustice to Miss X by apologising and making a total symbolic payment of £3650 to her.

The complaint

1. Miss X complains that the Council:

• Placed her and her children in unsuitable interim and temporary accommodation.
• Delayed in moving them to suitable temporary accommodation following the Council’s decision that the accommodation was unsuitable.
• Wrongly awarded band B2 priority to her when she joined the housing register. Miss X considers the Council should have awarded band B1 priority to her.

2. Miss X considers that as a result she and her children had to live in one room with shared facilities for over a year and where they were at risk from other residents. This caused significant distress to Miss X and her children.

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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. 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)
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 have:

• Considered the complaint and the information provided by Miss X;
• Discussed the issues with Miss X;
• Made enquiries of the Council and considered the information provided;
• Invited Miss X and the Council to comment on the draft decision. I considered the comments received before making a final decision.

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What I found

Law and guidance

8. 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.
9. 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)
10. There are two types of accommodation councils provide to certain homeless applicants: interim accommodation and temporary accommodation.
11. 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)
12. 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)
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. The duty to provide suitable accommodation is immediate, non-deferable, and unqualified. (Elkundi, R (On the Application Of) v Birmingham City Council [2022] EWCA Civ 601
15. 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 Homelessness Code of Guidance paragraph 17.35)
16. Under section 213 of the Housing Act 1996, a council can ask for assistance from another council to provide temporary or settled accommodation for homelessness applicants. The council receiving the request for assistance must “cooperate in providing such assistance as far as is reasonable in the circumstances”. The Code, at paragraph 16.15 says this would be appropriate where an applicant is at risk of violence or serious harassment in the area where they applied for assistance.
17. 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))
18. 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;
• people who need to move to avoid hardship to themselves or others;
  (Housing Act 1996, section 166A(3))

19. In order to qualify for the Council’s housing register an applicant must have five years continuous residency in the borough. However, applicants who have reasonable preference are exempt from this requirement.
20. The Council’s housing allocations scheme prioritizes applicants based on four priority bands. Band B is subdivided into bands B1 and B2 and applicants in band B1 will be prioritised over those in Band B2. Band B1 includes applicants who have reasonable preference on medical and welfare grounds, including fleeing domestic abuse and who owed are a homelessness duty. These applicants must meet the Council’s five year residency criterion. Band B2 includes applicants who have reasonable preference and are owed a homelessness duty but do not satisfy the residency criterion.

What happened

21. The following is a summary of the facts relevant to my consideration of the complaint. It does not include everything that happened.
22. Miss X made a homelessness application as she and her two children were fleeing domestic abuse. The Council placed Miss X in interim accommodation outside its area. This was a room in a House of Multiple Occupation (HMO) with shared bathroom and kitchen facilities. The HMO was run by a private landlord.
23. Following a homelessness assessment, the Council accepted the relief duty and produced a personalised housing plan for Miss X. This set out the locations where Miss X was at risk.
24. Approximately two and half months later, the Council wrote to Miss X explaining that it had accepted the main housing duty. It advised she had a right to seek a review of her accommodation which was now temporary accommodation.
25. The Council also advised Miss X that it had placed her on its housing register in priority band B2. It advised her of her right to seek a review. Miss X did not seek a review at this time.
26. Approximately two months later, the Council offered alternative temporary accommodation to Miss X and her children. Miss X refused the offer as she considered it was too close to her risk areas where the alleged perpetrator may be. The Council agreed to continue to look for alternative temporary accommodation for Miss X.
27. Miss X asked the Council to find accommodation in her preferred council area as she did not consider she was safe anywhere in the Council’s area. The Council did not take any action at this time.
28. Miss X then made a complaint to the Council about a number of matters including that it had not responded to her request for accommodation in her preferred area and that her temporary accommodation was unsuitable. Miss X also complained that the Council should have placed her in band B1 in accordance with its housing allocations scheme as she could not live in areas where she had local connection.
29. The Council considered the complaint at stage one of its two stage complaints procedure. It said:

• it did not have any properties in neighbouring boroughs so could not place her in her preferred area.
• it would carry out a review of the suitability of Miss X’s temporary accommodation.
• It had placed Miss X in Band B2 as she had not lived in the borough for five continuous years.

30. The Council reviewed the suitability of Miss X’s temporary accommodation. It concluded that the accommodation was unsuitable.
31. The Council identified a two bedroom private rented property via its private letting scheme for Miss X. The Council has said the offer did not proceed as the landlord withdrew the property.
32. Miss X requested her complaint be escalated to stage two. The Council agreed to pursue a reciprocal agreement with the council for Miss X’s preferred area for housing for her. Miss X asked for her complaint to be suspended while the Council pursued the reciprocal agreement.
33. The Council contacted the council, who I shall call council A, for Miss X’s preferred area to ask if it would enter into a reciprocal agreement. Council A did not respond to the Council’s initial approach or its chasing emails.
34. Miss X subsequently told the Council that the police had advised her that she would now be safe in its area.
35. The Council moved Miss X and her children to self contained temporary accommodation in its area some months later. This was following an incident with another resident at the temporary accommodation.
36. In response to my enquiries and draft decision, the Council has said:

• It placed Miss X and her children in the HMO as interim accommodation as this was the most suitable accommodation available at the time and it was not in her risk areas.
• It did not consider the accommodation to be suitable temporary accommodation for Miss X when it accepted the main housing duty. But it was not possible to move Miss X due to the ongoing demand for emergency housing and the difficulty in securing long term temporary accommodation.
• The offer of alternative temporary accommodation was not in one of Miss X’s confirmed areas of risk and was suitable based on the information it had at that time. The Council exercised its discretion to allow Miss X to remain in the interim accommodation and make a further offer.
• At the end of September 2024 there were 135 families in shared accommodation over six weeks.
• It has introduced a range of interventions to increase the supply of suitable accommodation for families. It is increasing council owned temporary accommodation, using internal stock for temporary accommodation, reviewing landlord incentives in the private sector to increase homelessness prevention, and it is making more direct offers to households in temporary accommodation.
• A board, which includes a senior officer and a cabinet member, meet regularly to review strategies to increase the housing supply across social housing, temporary accommodation and private rented housing. The primary focus is to move families from B&B accommodation and reduce the demand for temporary accommodation. The Council has set timed targets for each intervention and these are reviewed by the board.

37. Miss X lived in the HMO for 13 months. Miss X has said she and her children were sharing a single and double bed in one room. They had to share kitchen and bathroom facilities with other residents. Sharing one room also had a significant impact on her eldest child as they were studying for and sitting their GCSEs. Miss X also considered she and her children were at risk from other residents.

Analysis

Interim and temporary accommodation

38. I consider the interim accommodation provided to Miss X and her children meets the definition of B&B accommodation. This is because the accommodation had shared cooking and bathroom facilities and was owned by a private landlord. The Council should therefore have only placed Miss X and her children in the accommodation as a last resort and for no longer than six weeks.
39. I accept, on balance, that the Council placed Miss X at the HMO as a last resort. Miss X was at risk in a number of areas which will have reduced the options available to the Council. But the Council is at fault as it did not move Miss X and her children to self-contained accommodation after six weeks. We are mindful of the very significant challenges faced by the council in procuring interim and temporary accommodation. But the law is clear that councils can only accommodate households with children in B & B accommodation for no longer than six weeks. The failure to move Miss X and her children to self contained accommodation after six weeks is therefore service failure which is fault.
40. The Council delayed in contacting council A to ask if it would enter into a reciprocal agreement to provide accommodation for Miss X. The Council did not appear to recognise it could ask for assistance from the council in Miss X’s preferred area in accordance with Section 213 of the Housing Act 1996 when she made her request and in response to her stage one complaint. The Council did not request a reciprocal agreement for several months following Miss X’s request. But I cannot say, on balance, the outcome would have been any different for Miss X. I cannot know if council A would have responded to the Council’s request if it had made it earlier. I say this as council A did not respond to the Council’s request despite officers chasing for a response. But the delay in contacting council A caused distress to Miss X.
41. The Council considers the alternative temporary accommodation offered to Miss X was suitable as it was not in one of Miss X’s known risk areas. However, there is no evidence to show the Council considered Miss X’s concerns about the proximity of the offered accommodation to her risk areas. I therefore cannot be satisfied that the Council properly considered if the offer was suitable in view of her concerns. But I cannot know, even on balance, if the Council would have considered the offer to be unsuitable if it had considered Miss X’s concerns when she raised them. So, I cannot know if Miss X could have moved to suitable temporary accommodation sooner.
42. The Council agreed to make a further officer of suitable temporary accommodation to Miss X. But it did not make a workable offer for another eight months. The Council has provided some evidence to show it was taking action to identify alternative temporary accommodation for Miss X but it had been unable to do so. So, I consider the delay in fulfilling its undertaking to make another offer of suitable temporary accommodation is service failure.

Main housing duty

43. The Council delayed in considering and accepting the main housing duty for Miss X. It is likely the relief duty would have ended for Miss X after 56 days so the Council should have considered if it owed the main housing duty to Miss X on or around 57 days after it accepted the relief duty. The Council did not accept the main housing duty for a further six weeks. This is fault.

Priority band

44. There is no evidence of fault in how the Council reached its decision to place Miss X in band B2. This decision was in accordance with its housing allocations scheme as Miss X had not lived in the borough for five continuous years.

Injustice and remedy

45. I consider Miss X and her children lived in unsuitable interim and temporary accommodation for just under 19 weeks longer than necessary. This is the period from when Miss X and her children had lived in the HMO for over six weeks to the date the Council offered the property which Miss X considered to be unsuitable. Our guidance on remedies recommends a weekly payment in the range of £100 to £200 to acknowledge the injustice caused by living in B&B accommodation for longer than six weeks. Miss X and her children were living in one room with shared facilities for a prolonged period of time. In addition, one of Miss X’s children was taking their GCSEs which will have been made more difficult for them by their living conditions. I therefore consider a payment of £150 per week for 19 weeks is an appropriate and proportionate remedy.
46. The delay in finding suitable temporary accommodation following the Council’s decision to make a further offer will have caused distress and uncertainty to Miss X. Miss X will have also been caused uncertainty by the Council’s failure to consider her concerns about the suitability of the offer of alternative temporary accommodation. The Council should make a symbolic payment of £500 to Miss X to acknowledge the distress and uncertainty caused.
47. The delays in referring Miss X for a reciprocal agreement and the delay in accepting the main housing duty will have caused distress and uncertainty to Miss X. The Council should therefore make a symbolic payment of £300 to acknowledge the distress and uncertainty caused.
48. The Council still has a large number of families living in B& B accommodation for over six weeks. But the Council has shown it is taking significant action to address the shortage of interim and temporary accommodation. So, it is not necessary or proportionate to recommend any further service improvements in this area.

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Agreed action

49. That the Council will:
1. Send a written apology to Miss X for the distress caused to her and her family by living in unsuitable bed and breakfast accommodation for just under 19 weeks longer than they should have done, by the eight month delay in fulfilling its undertaking to make a further offer of suitable temporary accommodation and delays in referring her for a reciprocal agreement and in accepting the main housing duty.
2. Make a symbolic payment of £2850 to Miss X to acknowledge the distress caused to them by living in unsuitable bed and breakfast accommodation for just under 19 weeks longer than they should have done.
3. Make a symbolic payment of £800 to acknowledge the distress and uncertainty caused by the failure to consider Miss X’s concerns about the suitability of the alternative temporary accommodation, delay in making a further offer of suitable temporary accommodation, the delay in referring Miss X for a reciprocal agreement and in accepting the main housing duty.
4. By training or other means, remind officers of the provisions in Section 213 of the Housing Act 1996 for requesting a reciprocal agreement from another council where the applicant may be at risk of violence or serious harassment in its area and that requests should be made without delay.
50. The Council should take the action at a) to c) within one month and the action at d) within two months of my final decision. The Council should provide us with evidence it has complied with the above actions.

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Final decision

I have completed my investigation and partially uphold Miss X’s complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman