Summary: Miss X complained that the Council failed to move her from her unsuitable temporary accommodation since December 2023. The Council was at fault for its failure to provide Miss X with suitable temporary accommodation and its poor communication with her. The Council was also at fault in how it dealt with Miss X’s review request and its complaint handling. These faults caused distress and uncertainty to Miss X, and she continues to live in unsuitable accommodation. The Council will take action to remedy the injustice caused.

The complaint

1. Miss X complained the Council failed to move her from her temporary accommodation since December 2023 after it found the property was unsuitable to meet her needs based on medical grounds.
2. Miss X said the matter caused her significant distress, frustration and it affected and worsened 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 investigated matters from December 2023 to August 2024. This covers the period from when the Council found Miss X’s temporary accommodation was unsuitable to meet her needs to when Miss X made a complaint to the Ombudsman.

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How I considered this complaint

7. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
8. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Homelessness

9. Someone is homeless if they have no accommodation or if they have accommodation, but it is not reasonable for them to continue to live there. (Housing Act 1996, Section 175)
10. The Main Housing 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 (unless it refers the application to another housing authority under section 198). The accommodation a council provides until it can end the main housing duty is called temporary accommodation. (Housing Act 1996, section 193).
11. 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)
12. 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)
13. Priority need - examples of applicants in priority need are:

• people with dependent children;
• pregnant women;
• people who are vulnerable due to serious health problems, disability or old age;
• care leavers; and
• victims of domestic abuse.

14. Councils must put all its key decisions in writing. If it is an adverse decision, the letter must fully explain the reasons. All letters must include information about the right to ask for a review and the timescale for doing so. (Housing Act 1996, section 184, Homelessness Code of Guidance 18.30)

Housing register

15. 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))
16. 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))

The Council’s Housing Allocation Scheme

17. The Council has four priority bands. Band 1 (acute housing need), Band 2 (major priority), Band 3 (moderate priority) and Band 4 (general priority).
18. Where the Council accepts a main housing duty in a homeless case, it awards the applicant rehousing points (100 points) through its housing register.
19. Where an applicant needs to move due to health problems and needs to be rehoused to a more suitable home, the applicant can either be awarded:

• a high priority called health and independence priority (rehousing Band 2 with 900 points) or
• a very high priority called emergency health and independence priority (rehousing Band 1 with 2,000 points).

20. Where an applicant has disabilities or long-term health problems and is required to move into an accessible home, the Council may award the applicant any of its Accessible Housing Register Categories (-A, B, C, D, E, E+ and F).
21. The Council may recommend that an applicant have an additional bedroom where it has been recommended by its Housing Health and Disability Team because of exceptional circumstances. For instance, where an applicant has been assessed as needing a 24-hour live-in carer.
22. If an applicant wants to seek a review or challenge a decision they are unhappy with, they will need to tell the Council within 21 days of them receiving that decision. The applicant will then need to submit as much information as possible to support their case. The Council aims to complete the review of the original decision within 56 days.

The Council’s complaint procedure

23. The Council has a two-stage complaint procedure.

• Stage 1: the Council aims to respond within 10 working days but may take up to 20 working days in complex cases.
• Stage 2: response will be issued within 20 working days but may take up to 30 working days and the Council will notify the complainant if the latter is likely to happen.

Key events

24. Miss X and her child live in a temporary accommodation (TA) the Council provided for them after it accepted it owed Miss X the main housing duty.
25. In November 2023, Miss X raised concerns to the Council about the suitability of the TA. The Council asked Miss X to provide it with medical evidence to support her concerns which she submitted.
26. At the end of December, the Council completed a suitability re-assessment of Miss X’s TA and found the TA was unsuitable for her medical needs.
27. In January 2024, the Council also completed a health and disability assessment for Ms X’s housing register application. The Council notified Miss X of the assessment outcome. The Council said there was no evidence to show Miss X’s inability to use lifts. The recommendations for suitable TA and future permanent accommodation included:

• A 2-bedroom property in line with its allocation policy.
• Up to 6 steps/stairs or up to 4th floor if lifted.
• Total points of 100.

28. The letter stated if the Council was unable to secure suitable TA for Miss X within the next 3 months, she would be eligible for ‘supporting health and independence priority’ of 900 points for a move to settled accommodation. It explained that even if Miss X received this additional priority, the Council could still transfer her to more suitable TA. If it did this, it would remove the extra 900 points. The Council advised Miss X of her right of review if she disagreed with its medical assessment decision.
29. In April and May, Miss X chased the Council for an update on providing her with alternative suitable TA. Miss X asked for a direct offer, she said she was willing to move out of the borough if it offered her permanent accommodation with an outdoor space and she listed her preferences. Miss X said she had a phobia of lifts and asked the Council to consider her housing case as it was affecting her health and her child’s wellbeing.
30. On 7 May, the Council awarded Miss X the ‘supporting health and independence priority’ of 900 points for a move to settled accommodation. Therefore, Miss X’s total points became 1,000 points. The Council applied the 1,000 priority points to Miss X’s housing account but said her priority date remained unchanged. The recommendations for suitable TA and future permanent accommodation were the same as in January. The Council advised Miss X of her review rights against the decision.
31. The next day, Miss X raised concerns about the Council’s recommendation that she could live up to the 4th floor in a lifted property. Miss X requested a review of the Council’s 7 May recommendations and its decision.
32. Between May and July, Miss X continued to chase the Council for updates on her move to suitable TA. The Council explained the delay was because of its limited housing stock and told Miss X it would contact her if suitable accommodation became available to rehouse her.
33. On 2 July, the Council wrote to Miss X about her review request. It said the medical assessment decision which recommended a 4th floor lifted property was made in January and so Miss X should have requested a review in February (within 21 days of that decision) and not in May. The Council said Miss X’s review request was 92 days late and so it was not minded to exercise its discretion to carry out an out-of-time review. It reiterated there was no medical evidence to show Miss X could not use lifts, so the Council upheld the medical assessment recommendations and decision.

Complaint

34. On 17 May 2024, Miss X made a formal complaint to the Council. She complained about the Council’s lack of support and failure to provide her with alternative suitable TA since December 2023 and its poor communication with her on the matter. Miss X said her housing situation was affecting her health and she asked when the Council would move her to a suitable accommodation, preferably one with outdoor space.
35. On 17 July, the Council issued its stage 1 response and it:
1. said there was a severe shortage of available and affordable TA.
2. acknowledged Miss X’s preference for a property with an outdoor space and her willingness to consider some areas outside its borough.
3. apologised to Miss X that it had not been able to move her to suitable TA and for its lack of communication with her on the matter.
4. acknowledged Miss X remained in unsuitable accommodation, it awarded her an additional 900 bidding points of ‘supporting health and independence priority’ from 7 May.
5. reassured Miss X it would make every effort to find an alternative suitable TA for her but was unable to give her a timeframe. The Council said it would notify her once a property became available.
36. On 31 July, Miss X asked the Council to escalate her complaint. She maintained she could not use lifts and requested an extra room for her care giver due to her disability.
37. On 12 September, in its stage 2 response, the Council reiterated its initial response to her complaint. It maintained the medical assessment recommended a 2-bedroom property for Miss X in line with its allocation policy and there was no evidence to show she could not use lifts. The Council said there was no medical professional reports to show Miss X required a full-time carer. The Council advised Miss X to provide it with further evidence to support her case and it would conduct a new health and disability assessment for her. The Council offered Miss X a payment of £500 to acknowledge the distress and inconvenience she experienced due to living in unsuitable accommodation.
38. In response to our enquiries, the Council provided information about the properties it offered to other applicants with a minimum of 1,000 points under the E+ accessible housing register category. The records showed the Council awarded three properties to applicants with registration dates higher than Miss X’s date or the types of properties it offered were not suitable to meet Miss X’s needs.
39. The Council said there are about 220 households currently in unsuitable TA in its borough and it confirmed the actions it is taking to address the matter. This includes:

• daily review of households in unsuitable TA and weekly meetings to discuss the cases to ensure updates and actions are implemented
• a working group of multiple teams takes a holistic approach in sourcing and finding suitable TA
• referrals of challenging cases are made to the complex case panel to consider alternative solutions
• regular reports about the provision, planning, management and delivery of its housing services are made to the Housing and Communities Select Committee
• ongoing consultation on its draft Housing Strategy 2025 – 2030
• a planned review of its Homelessness and Rough Sleeping strategy in the next financial year.

Analysis

40. There is no dispute about the suitability of Miss X’s TA as the Council found the property was unsuitable to meet her needs.
41. Once a council accepts TA is unsuitable to meet the needs of the applicant and/or their household, it has a legal duty to provide the applicant with suitable accommodation immediately. This is an absolute, immediate and non-deferrable duty (Elkundi, R (On the Application Of) v Birmingham City Council [2022] EWCA Civ 601). In this case, the Council failed to discharge its legal duty to provide Miss X with alternative suitable accommodation after it accepted her TA was unsuitable in December 2023. This is a significant period, and it is fault.
42. I note the Council said its inability to secure alternative suitable TA for Miss X was due to shortage of accommodation in its borough. While the Ombudsman recognises that the demand for social housing far outstrips the supply of properties in many areas, it is still service failure by the Council, and it is fault.
43. The Council’s delays and failure to provide Miss X with alternative suitable TA caused distress, frustration and an ongoing injustice to Miss X as she continues to live in unsuitable accommodation.
44. The Council did not keep Miss X updated on her housing case between January and April 2024 until she contacted the Council for an update in April. This was fault and caused her worry and uncertainty as to how her housing case was progressing.
45. There was no evidence to show if and how of the Council considered looking for suitable accommodation for Miss X outside its borough after she informed it in April, she was willing to move out of the borough if it offered her permanent accommodation. This was fault. It caused her uncertainty as to whether the Council properly considered her housing case and uncertainty as to whether she could have been rehoused sooner.
46. The Council delayed by two months to award Miss X with 900 points for Supporting Health and Independence Priority for a move to settled accommodation due to its inability to secure suitable alternative TA for Miss X after if found her current TA was unsuitable in December 2023. This was fault but no injustice was caused to Miss X. This is because Miss X did not miss out on a property offer.
47. The Council’s decision in May said Miss X could ask for a review of the medical assessment recommendations. Miss X requested the review within 21days of the decision letter. So, the Council was at fault for making an ‘out of time review request’ decision in this case by referring to its initial decision dated January 2024. Since Miss X had not provided any new information about her medical needs, it is likely the outcome of any review would have been the same. However, it caused confusion and uncertainty to Miss X which is an injustice.
48. The Council offered and made Miss X a financial payment of £500 to acknowledge its inability to have secure alternative suitable TA for her. I find the £500 payment is insufficient to acknowledge the injustice caused to Miss X. This will be addressed in the ‘action’ section below in line with our guidance on remedies.
49. There were delays with the Council issuing its stages 1 and 2 responses to Miss X’s complaint. It took the Council 42 working days and 30 working days respectively to issue its responses. Also, the Council did not notify Miss X it was likely to take longer than the timescales set out in its complaint procedure. These were faults and caused distress to Miss X.
50. We have recently made service improvement recommendations in other decisions about the Council conducting staff training about the importance of securing alternative suitable TA for its residents. In particular, where the Council has already accepted the TA is unsuitable. We also made recommendations for staff training on the importance of adhering to the Council’s complaint procedure timescales. We are continuing to monitor the actions the Council takes to ensure compliance with those and similar recommendations. For this reason, I have not made similar service improvement recommendations in this case.
51. It is concerning that the Council has estimated there are at least 220 households living in unsuitable TA in its borough for various reasons. But the Council provided evidence to demonstrate it is aware of the issue and the steps it is taking at a strategic level to address the issue. Therefore, we have not recommended service improvements in this case. I am satisfied with the Council’s ongoing actions to address the shortage of TA with appropriate democratic oversight.

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Action

52. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Miss X and make her a symbolic payment of £300 to acknowledge the injustice caused to her by how the Council handled her review request, her complaint and its poor communication with her. The apology should be in accordance with our guidance, Making an effective apology
• pay Miss X £150 for each month she has lived in unsuitable temporary accommodation from January 2024 to the present. This is 14 months. The Council can deduct the £500 it has already paid from this amount, leaving a total of £1,600
• continue to pay Miss X £150 a month until the Council provides alternative suitable accommodation, otherwise ends its duty, or six months have passed. If, after six months, Miss X remains in unsuitable accommodation, we may consider opening a new investigation.

53. The Council should provide us with evidence it has complied with the above actions.

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Decision

54. I find fault by the Council causing injustice to Miss X. The Council will take action to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman