Summary: Mr X complained the Council provided him and his family with temporary accommodation which was unsuitable. We found fault by the Council. This caused Mr X and his family a significant injustice because they were in unsuitable accommodation for 12 months. The Council agreed to apologise to Mr X and his family, make a payment in recognition of the injustice caused and clear the rent arrears it says they owe for the temporary accommodation.

The complaint

1. Mr X complained the Council provided him and his family with unsuitable temporary accommodation. Mr X says this caused his family’s mental health to decline, and they have been caused distress, stress and financial hardship.

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The Ombudsman’s role and powers

2. 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)
3. 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. 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

5. I have:
• considered the complaint and information provided by Mr X;
• discussed the complaint with Mr X
• made enquiries of the Council and considered information it provided;
• considered the relevant law, guidance and our Guidance on Remedies; and
• invited Mr X and the Council to comment on the draft decision.

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What I found

6. 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)
7. If a council is satisfied an applicant is 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)
8. Temporary accommodation is accommodation provided to homeless applicants as part of a council’s main housing duty.
9. Interim and temporary accommodation can be the same physical property. What changes is the legal duty under which a council provides it. This is important because there is a statutory right to review the suitability of temporary accommodation. This then carries a right of appeal to county court on a point of law. There is no statutory right to review the suitability of interim accommodation.
10. Councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of their household. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)
11. 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).
12. In May 2023 we issued a guide for practitioners Good Practice Guide - unsuitable temporary accommodation. This sets out the relevant law and guidance about temporary accommodation and our approach to complaints where councils have not provided suitable temporary accommodation to applicants who are owed the main housing duty.

Discretionary Housing Payments

13. A council can award discretionary housing payments (DHP) when someone needs help with housing costs and is claiming Housing Benefit or Universal Credit which includes housing costs towards rent. (Discretionary Housing Payments guidance manual May 2022, section 2.3)
14. Government guidance allows councils to choose (discretion) when to offer a DHP; there is no statutory right to payment. However guidance says DHP decisions must follow the ordinary principles of good decision making. This means councils must act fairly, reasonably, and consistently, and must decide each case by considering individual circumstances. Councils can decide:

• what questions to ask applicants;
• what award to make (if any); and
• how long to make payments for.
  (Discretionary Housing Payments guidance manual May 2022, sections 4.24 and 2.14)

15. The council must tell the applicant about its decision and explain its reasons if the decision is not to make a payment. The guidance says councils should decide as soon as it can and avoid unnecessary delay. The decision should tell the applicant how to ask for a review. (Discretionary Housing Payments guidance manual May 2022, section 4.30 to 4.32)
16. The Council’s Discretionary Housing Payment Policy explains how it will decide requests for DHPs. It says it will view each application on its merits. When doing so it will consider the objectives of the policy which include sustaining tenancies. The policy say applicants can request a review of decisions.

What happened

17. What follows is a summary of the key events in the complaint. It does not include everything that happened.
18. In October 2023 Mr X and his household (comprising of his wife, his father and two children of secondary school-age) made a homelessness application to the Council.
19. The Council offered Mr X and his family interim accommodation at Property Y, outside the borough.
20. In November the Council accepted the main housing duty to Mr X and his family. It also accepted Mr X and his family on its Housing Register.
21. Mr X and his family continued to live in Property Y, which was now temporary accommodation because the Council had accepted the main housing duty to them. The Council did not tell Mr X about his right to request a s202 suitability review of the accommodation. It also failed to reassess the suitability of the property as long term accommodation for Mr X and his family.
22. Mr X received housing benefit to help him pay the rent for Property Y. However there was a shortfall of around £230 per month between his housing benefit award and the rent. Because of the shortfall Mr X was accruing rent arrears. He applied for a Discretionary Housing Payment (DHP) to help him pay the shortfall.
23. The Council awarded Mr X DHP from the 22 January 2024.The payment amounted to just under 50% of the shortfall between Mr X’s housing benefit award and rent.
24. In February 2024 Mr X’s Tenancy Sustainment Officer contacted Mr X about his rent arrears. Mr X owed £1790.69 in rent arrears. He told the officer he would pay £1450 on a credit card. He also told the officer he would like the Council to move him back into the borough. He said his children had a three and half hour commute to their schools and this was negatively impacting their studies. The Council did not act on Mr X’s concerns.
25. Mr X’s DHP end on 1 April 2024.
26. In June Mr X made a complaint to the Council. He complained the Council had failed to act on his reports that his temporary accommodation was unsuitable for the needs of his family. He stated:
• the mental health of his wife and father is deteriorating .
• his children have a three and half hour daily commute to school. This is affecting their academic performance, which is especially worrying for his eldest child who is studying for their GCSEs. He explained their attendance at school was poor and their school was considering involving the Education Welfare Officer.
• the cost of Property Y is unsustainable, and he is getting further into debt each month.
• his employer has raised concerns he is not fit to work because he is tired.
27. The Council replied to Mr X’s complaint in July. It said:
• it sympathised with Mr X’s situation but there is an acute shortage of suitable accommodation locally.
• all its placements undergo a robust assessment to ensure they are suitable. The assessments considered matters like work and school placements.
• it said there was a distinction between what is considered ideal by a family and what is legally suitable.
• Mr X’s temporary accommodation is suitable for his family.
• it recognised Mr X and his family require an urgent move as identified by a review of his case. It said his case is with its Allocations Team to make him an alternative offer of accommodation.
• a meeting is scheduled with the Allocations Manager to discuss Mr X’s case and to see what properties may become available for his family. It also said he should work with his Housing Options Officer to look for privately rented accommodation.
28. In September Mr X made a new application for DHP. The Council refused his application. It said the shortfall between Mr X’s housing benefit (which had decreased as his income grew) and the rent has increased. The Council decided Mr X’s tenancy was unsustainable. Therefore a DHP was not appropriate. Mr X did not ask for a review of its decision.
29. Unhappy with the Council’s actions Mr X complained to the Ombudsman. His grounds of complaint remained the same. As part of his complaint Mr X provided:
• letters from his children’s school raising concerns about their poor attendance; and
• a letter about a GCSE field trip that his eldest child could not attend because they lived too far way to get there for the departure time.
30. We made enquiries of the Council. In its response it said:
• it moved Mr X and his family to Property Y as interim accommodation. It was suitable for a short-period of time.
• it accepts it should have reassessed the suitability of Property Y when it became temporary accommodation. It also accepted it did not tell Mr X about his right to request a s202 suitability review.
• the Council revisited the suitability of Property Y in October 2024 and noted errors in its handling of his case. The Council made Mr X a final private rented offer of accommodation in its borough. Mr X and his family refused the offer, and the Council discharged the main housing duty to them. Mr X has requested a s202 review of its decision to do so.
• it did not consider Mr X’s complaint of June 2024 should have been treated as a suitability review for Property Y because the Council had agreed to move the family.
31. In recognition of the errors identified the Council has offered a payment of £2400. This is £200 per month, for each month the family lived at Property Y from 16 October 2023 to 30 October 2024. It said it would use £1884.30 of the proposed payment to offset Mr Y’s rent arrears for Property Y and pay the remaining £517.70 to Mr X.
32. Mr X states he does not have rent arrears for Property Y and the rent was fully up to date on 30 October 2024.

Finding

33. The Council accepts Mr X and his family’s temporary accommodation was unsuitable. It did not reassess the suitability of Property Y for use as temporary accommodation by Mr X and his family. This is fault.
34. The failure to provide Mr X and his family with suitable temporary accommodation meant they lived in unsuitable temporary accommodation for a year. Mr X has provided evidence showing the impact this had on the education of his children, his employment and the mental health of his family. It is therefore evident that Mr X and his family were caused significant distress.
35. Mr X also raised concerns about the affordability of Property Y. There is no evidence the Council considered the affordability of Property Y once it became temporary accommodation. Mr X accrued significant rent arrears for the property and was awarded DHP to help him pay the rent. This caused Mr X and his family financial disadvantage and caused them additional distress.
36. The Council has offered a payment £2400 in recognition of the impact of living in unsuitable temporary accommodation. This equates to £200 per month and is in keeping with our remedies guidance.
37. The Council says it will deduct the rent arrears it says Mr X owes for Property Y from the £2400 it is proposing to pay him. Our guidance on remedies says that when a household has been living in unsuitable accommodation we may consider asking the Council to clear any outstanding debts for the accommodation. I consider it is appropriate for the Council clear the rent arrears it says Mr X owes.
38. The Council also accepts that it did not tell Mr X about his right to request a s202 suitability review once Property Y became temporary accommodation. This is fault.
39. The Council also failed to act on Mr X’s reports that Property Y was unsuitable. I note he raised such concerns in February 2024 when he spoke with his Tenancy Sustainment Officer. It also failed to act on his complaint as request for a suitability review. While I recognise the Council had already accepted Mr X and his family needed to move it should have treated his concerns as a review of the suitability of Property Y rather than a complaint. If it had done so the findings of its October 2024 review would likely have been identified sooner.
40. The Council says it accepted Mr X needed to move in its reply to his complaint. I consider this amounts to accepting the property was unsuitable for Mr X and his family. Mr X and his family remained living in Property Y for five months following his complaint. I appreciate the Council’s attempts to find Mr X alternative accommodation were frustrated because of the acute housing shortage in its area. Nevertheless the Council’s duty to provide suitable temporary accommodation is immediate, non-deferable and unqualified. The Council did not meet this duty. This is service failure and is therefore fault.
41. Mr X also complains about the Council’s decision not to approve his July 2024 application for DHPs. I have seen no evidence of fault in how it decided his request. The Council’s criteria for approving applications refers to doing so to help sustain tenancies. It did not consider Mr X’s tenancy was sustainable and so it could not approve his application.

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Agreed action

42. Within one month of my final decision the Council should:
• Send a written apology to Mr X and his family for the distress caused to them by failing to provide suitable temporary accommodation. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mr X £2400 in recognition of the injustice caused to him and his family; and
• Clear the rent arrears it says Mr X owes for Property Y.
43. Within three months of my final decision the Council should:
• remind its housing staff that it must reassess the suitability of interim accommodation when it becomes an applicant’s temporary accommodation.
• remind its housing staff to inform applicants about their right to request a s202 suitability review when their interim accommodation becomes temporary accommodation.
• remind its housing and complaints staff that requests to move from temporary accommodation because it is unsuitable should be treated as a s202 suitability review request and not as a complaint.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I have completed my investigation. The Council was at fault, causing injustice which it has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman