Summary: The Council was at fault for failing to address damp and mould in Miss X’s temporary accommodation and delay providing alternative accommodation once a review found it was unsuitable. This left Miss X and her baby at risk of harm from damp and mould, which is an injustice. The Council has agreed to apologise, make payments, and act to improve its services.

The complaint

1. Miss X complained that the Council:
1. provided temporary accommodation which was unsuitable because of damp and mould and proximity to perpetrators of domestic abuse;
2. failed to address the extent of the damp and mould in the property;
3. delayed providing suitable accommodation once a review found the accommodation was unsuitable; and
4. took too long to deal with her complaint.
2. As a result, Miss X says she spent too long in a property which negatively affected her health and that of her new baby.

Back to top

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. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A) and 25(7), as amended).
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)

Back to top

How I considered this complaint

7. I considered the complaint and the information Miss X provided.
8. I made written enquiries of the Council and considered its response along with relevant law and guidance.
9. I referred to the Ombudsman's Guidance on Remedies, a copy of which can be found on our website.
10. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Homelessness and temporary accommodation

11. If a council is satisfied an applicant is 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)
12. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of his or her household. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)
13. Certain decisions councils make about homelessness carry a statutory right of review. The review decision then carries a right of appeal to court on a point of law. Homeless applicants have a right to review the suitability of temporary accommodation provided under the main homelessness duty. (Housing Act 1996, s202)
14. Homeless applicants must request a review within 21 days of the decision. However, applicants can 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 s202, with a new 21 day timescale. R(B) v Redbridge LBC [2019] EWHC 250 (Admin)

What happened

15. The Council owes Miss X the main housing duty. In December 2023, Miss X was pregnant. The Council offered Miss X a one-bedroom flat as temporary accommodation which Miss X accepted. The licence Miss X signed said the property was unfurnished and that she was therefore responsible for furnishing it. A private landlord owns the property and the Council found it through a managing agent.
16. Miss X applied for a grant to furnish the property. On moving in, she discovered the property was furnished. Miss X therefore had more furniture than the property could comfortably fit. Miss X says she reported problems with damp and mould to the agent from the beginning. The agent has no record of this. But the staff Miss X was contacting no longer work for the agent. In response to our enquiries, the agent said it therefore did not have copies of all Miss X’s correspondence with it.
17. Miss X had her baby. She told the Council the baby was in intensive care because of problems breathing. She said she could not bring her baby home because of the damp and mould in the property.
18. In early February 2024, Miss X provided evidence of damp and mould in the property, including videos. The Council asked the agent if it could remove some of the furniture to allow more space. The Council also asked the agent to provide the documents showing the property met its standards, which the agent should have provided before Miss X moved in.
19. Miss X complained to the Council. She said:
• She noticed mould in the property on moving in, which affected her asthma
• She had been in hospital with her baby, but her partner had returned to the property regularly to open windows and keep the property heated. However, the damp and mould still got worse
• Her baby was on oxygen and would be discharged with oxygen canisters but there was no space in the property for a cot or to store the oxygen
20. The next day, the Council told Miss X the agent would do works to address the mould that week. It said after that, it was her responsibility to ensure she maintained the property to prevent the problem coming back. The Council told Miss X the agent would not remove any furniture as it was part of the furnished licence agreement she signed.
21. Miss X visited the Council’s offices in person. She told the Council that as well as the problems with the condition of the property, its location made it unsafe for her. She fled domestic abuse from family members who lived and worked in the neighbouring borough. She told the Council the hospital would not discharge her baby because of the condition of the property. The Council contacted the agent. The agent said Miss X did not respond when it contacted her to arrange works.
22. The Council told Miss X to contact the agent directly to arrange works. It also told her she could ask for a review of the suitability of the accommodation. Miss X said she had asked for a review in December when she moved in and had not heard anything. She said it was not just the mould and damp but the lack of space which made the property unsuitable. Especially if her baby came home still on oxygen.
23. The agent told the Council the problems with space were because of Miss X’s lifestyle and the amount of furniture and belongings in the property.
24. In mid-February, the hospital wrote to the Council. It confirmed Miss X’s baby was still in hospital on oxygen. It said it assessed the property to be an “unsuitable and unsafe environment for this baby to be discharged to” because of:
• Significant damp and mould in all the rooms in the property
• Inadequate space for oxygen cylinders and condensers
• Inadeqaute access space into the property for a pushchair or pram
• Fire hazards caused by the lack of space and lack of safe storage for oxygen.
25. In March, the hospital discharged Miss X’s baby. Miss X says this was not because the property was suitable but because the hospital needed the bed. Miss X again asked the agent to send someone to address the damp. The agent said it was concerned the mould had returned so quickly and asked Miss X how she was ventilating the property. Miss X said it was not mould; it was the underlying damp which had never been addressed.
26. The Council responded to Miss X’s complaint at stage one of its process in mid-March. It said:
• The property was big enough and she should use the living room as a bedroom
• The property was furnished. It had asked the agents about removing the furniture but the landlord did not agree to this
• The agent had acted to address the issues of damp and mould
• Her suitability review request was ongoing
27. In April, Miss X shared a photo showing mould growing on baby clothes. She said they were keeping the windows open for hours, despite it being winter, and it was still damp. She told the Council she was worried about how the damp would affect her baby’s health. She also told the Council that she saw family members when she went out, which was making her afraid and so she was spending the whole day on the opposite side of the city to feel safe
28. The agent asked Miss X to detail where the mould had returned. Miss X once again said the mould on the walls had not (yet) returned but the property was constantly damp and so her possessions were getting mouldy.
29. In May, the Council completed the suitability review. It found the property was not suitable. The agent told the Council it had visited and treated areas of mould with anti-mould paint. It said “we will not be attending to any further mould-related issues at the property” because “the responsibility for maintaining a clean and healthy living environment lies with the occupant”.
30. Miss X asked the Council to escalate her complaint in June. She said:
• she should not have been placed in the property, given the risk of domestic abuse in a neighbouring borough; and
• her child’s health was at risk. At only a few months old, the baby needed asthma pumps.
31. The Council responded to her stage two complaint in November. It said:
• its delay responding to her complaint was because it had not processed her email in June properly. It was contact from the Ombudsman in October which alerted the Council to the complaint.
• the suitability review had confirmed the property was unsuitable and it accepted it had taken too long to move her because of the shortage of available accommodation.
• Miss X was moving into alternative accommodation in a different area in a few days.
• as a remedy for the injustice, “including the presence of mould and damp, delays in rehousing, and the provision of unsuitable temporary accommodation” it would pay her £1500.

Findings

Temporary accommodation

32. It was not fault for the Council to offer Miss X the property. Its records show it considered the risk areas it had documented and its assessment of Miss X’s needs and decided the property was suitable. However, the Council only noticed in February that it did not have the evidence it required from the agent to satisfy it the property was in a good condition. This was fault. This did not cause Miss X any injustice, because the evidence provided would not have changed the Council’s decision about suitability. In response to my enquiries, the Council says it has updated its practice and now requires time-stamped photographs and an inspection form including the dimensions of each room when booking temporary accommodation. This development is welcome.
33. The Council was at fault for wrongly telling Miss X the property was unfurnished. The Council knew the property was furnished when it offered it. Giving Miss X inaccurate information meant she brought her own furniture to the property. This avoidably contributed to the lack of space in the property and caused Miss X avoidable frustration. This is an injustice.
34. The Council has a duty to keep the suitability of accommodation under review. The Code says accommodation will not be suitable if there isn’t enough space for a cot for each child under two (17.12). The Council should have reconsidered suitability when Miss X’s baby was born, when she told it the property was too small for a cot, when the hospital said it did not think the property had enough space for it to discharge the baby and when Miss X told it about ongoing risk of domestic abuse because of the location of the property. Failure to do so was fault. On balance, had the Council considered the matter, it would have decided the property was unsuitable in February for the same reasons it did so in May.
35. Miss X says she asked for a suitability review in December 2023. There is no evidence of this. Miss X did pursue a review in February. Statutory reviews should take eight weeks. The Council took 11 weeks in this case. The delay completing the statutory review was fault. This caused Miss X avoidable frustration and delayed the Council looking for alternative accommodation.
36. The Council has already accepted fault for its delay providing alternative accommodation after the review. It has explained that this delay was because of the wider housing crisis and the difficulty this causes councils in finding suitable and affordable temporary accommodation. This is service failure. Miss X experienced the injustice of living in unsuitable accommodation for six months after the Council’s review decision. The Council’s offer of £1500 is a suitable remedy for this period of injustice, being £250 a month which is in line with our guidance on remedies. I have recommended a further remedy for the period from February to May 2024.

Damp and mould

37. There is government guidance on addressing damp and mould. Of relevance to this complaint, the guidance says:
• some people are more at risk of health issues from living with damp and mould. This includes pregnant people, unborn babies, people who have just given birth and children.
• landlords should establish the source of the damp and carry out remedial works.
• no matter the type of damp (condensation, penetrating, rising, etc), landlords are responsible for addressing it.
• removing surface mould will not prevent the damp and mould from reappearing.
• assessment of damp and mould should be done by appropriately qualified contractors.
• tenants managing small amounts of mould or condensation “should not be a substitute for assessing and addressing the underlying issue”.
• “it is totally unreasonable to blame damp and mould in the home on ‘lifestyle choices’”.
• tenants cannot be expected to reduce moisture levels if their home does not enable them to do so.
• high humidity levels may be a consequence of overcrowding – for example tenants living in small temporary accommodation.
38. The agent and the Council were at fault for failing to properly address the damp and mould in the property. The evidence shows the agent, acting on behalf of the Council in providing temporary accommodation, failed to follow the government guidance. It focused on painting over the surface mould and failed to investigate the underlying cause of the damp. This was fault. There is no evidence the agent or the Council ensured properly qualified contractors attended the property.
39. Both the agent and the Council blamed Miss X and her “lifestyle” for the problem and said it was her responsibility. This is not in line with the government guidance and was fault.
40. The Council and the agent also criticised Miss X for not being available to admit contractors or cancelling appointments at short notice. Miss X had just given birth, and her baby was still in hospital for much of the period, so she understandably spent most of her time at the hospital. She also told the Council she was spending as much time as she could away from the area because of her fear of encountering the perpetrators of domestic abuse. The Council’s failure to consider these circumstances and work with Miss X to find mutually convenient appointment times was fault. It was not in line with our Principles of Good Administrative Practice, which includes “[d]ealing with people helpfully, promptly and sensitively, taking account of their individual circumstances.” It left Miss X feeling blamed for prioritising her baby and her safety. This is an injustice to Miss X.
41. The Council, and the agent acting on its behalf, failed to take appropriate steps to address the underlying cause of the damp in the property. This caused mould to grow on clothes and furnishings and even food packaging, all of which Miss X documented in pictures and videos. Miss X shared a picture showing mould growing on the mattress of her baby’s Moses basket (the only place the baby could sleep as there was no room for a cot). Miss X and her baby were particularly at risk of harm to their health from damp and mould. Miss X’s baby even more so given the respiratory problems from birth. Miss X and her baby spent at least four months at avoidable risk of harm before the Council accepted the property was unsuitable. This is an injustice.

Complaint handling

42. The Council’s complaint policy says it will deal with complaints at both stage one and stage two of its process within 20 working days.
43. It took the Council 33 working days to respond at stage one. The delay of 13 days was fault.
44. It took the Council 123 working days to respond at stage two. The delay of 103 days was fault. The Council has already explained that this was because it failed to process the complaint properly. It has apologised for this. In response to my enquiries, the Council suggested a remedy £250 for distress. I consider this a suitable remedy for the frustration and time and trouble caused by the Council’s poor complaint handling.

Back to top

Action

45. To remedy the injustice to Miss X from the faults I have identified, the Council has agreed to:
1. apologise to Miss X in line with our guidance on Making an effective apology;
2. pay Miss X the £1750 already offered;
3. pay Miss X £1,000 to recognise the avoidable risk of harm to her and her baby from living with damp and mould before the Council accepted the property was unsuitable; and
4. pay Miss X £250 to recognise her avoidable frustration and distress.
46. The Council should take this action within four weeks of my final decision.
47. We have already made extensive service improvement recommendations to this Council to improve its homelessness service and complaint handling. I have not repeated those recommendations here. However, the Council should also:
1. share a copy of this decision with staff in the relevant departments to identify the learning from this complaint;
2. provide training or guidance to relevant staff on dealing with damp and mould in temporary accommodation, based on the government guidance; and
3. tell landlords and managing agents of temporary accommodation that the Council expects them to follow the government guidance on damp and mould as part of the information shared with accommodation providers.
48. The Council should tell the Ombudsman about the action it has taken within three months of my final decision.

Back to top

Decision

49. I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman