Summary: On behalf of Ms X, Ms Y complained the Council provided Ms X and her children with unsuitable interim and temporary accommodation for a prolonged period. Ms Y also complained the Council failed to keep the household’s circumstances under review, failed to appropriately respond to concerns about the accommodation, and failed to offer Ms X appropriate advice and support. We have found the Council acted with fault. Because of these faults, Ms X and her children lived in unsuitable accommodation for longer than they should, affecting their wellbeing and causing avoidable distress, uncertainty and incurred costs. The Council has agreed to provide a written apology to Ms X and her children, increase the financial remedy previously offered, and issue guidance to relevant officers.

The complaint

1. On behalf of Ms X, Ms Y complained the Council provided unsuitable interim and temporary accommodation for Ms X and her three children. Ms Y said Ms X’s household stayed in unsuitable bed-and-breakfast accommodation beyond the relevant statutory timescales. Ms Y also complained the Council failed to keep Ms X’s household’s needs under review after accepting the main housing duty and failed to address Ms X’s concerns about the accommodation.
2. Ms Y said as a result, Ms X and her children lived in unsuitable accommodation for longer than they should have. This caused avoidable distress and frustration, while impacting the family’s overall wellbeing.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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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What I have and have not investigated

7. Paragraph 4 sets out the Ombudsman’s approach to older complaints. I have exercised discretion to consider matters between July 2023 and January 2024, occurring more than 12 months before Ms X brought her complaint to the Ombudsman. This is because these events are directly relevant to Ms X’s claimed injustice. Further, as set out in this statement, the Council delayed responding to Ms X’s stage two complaint, which frustrated her right to bring the matter to the Ombudsman sooner.

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How I considered this complaint

8. I considered evidence provided by Ms X, Ms Y and the Council as well as relevant law, policy and guidance.
9. Ms X, Ms Y 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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Relevant legislation, guidance and policy

Homelessness

10. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities (referred to in this statement as “the Code”) set out councils’ powers and duties to people who are homeless or threatened with homelessness.
11. Someone is homeless if they have no accommodation or if they have accommodation, but it is not reasonable for them - and anyone who lives with them - to continue to live there. (Housing Act 1996, Section 175)

The interim accommodation duty

12. A council must secure interim accommodation for an applicant and their household if it has reason to believe the applicant may be homeless, eligible for assistance and have a priority need. (Housing Act 1996, section 188)
13. 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.

The relief duty

14. 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)

The main housing duty

15. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need the council has a duty to make accommodation available (unless it refers the application to another housing authority under section 198). But councils will not owe the main housing duty to applicants who have turned down a suitable final accommodation offer or a Housing Act Part 6 offer made during the relief stage, or if a council has given them notice under section 193B(2) due to their deliberate and unreasonable refusal to co-operate. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)

Suitability of accommodation

16. 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 accommodation and accommodation provided under the main housing duty. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)
17. Wherever possible, Councils should avoid using bed and breakfast (B&B) accommodation. (Homelessness Code of Guidance paragraph 17.33)
18. 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)
19. 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)
20. 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)

Council’s complaints procedure

21. The Council has a two-stage complaints procedure. At stage one, the Council says it will acknowledge complaints within five working days of receipt. It will then respond to the complaint within 10 working days of acknowledgement. The Council should therefore respond to complaints within a maximum of 15 working days from receipt.
22. At stage two of the Council’s complaints procedure, the Council will acknowledge the complaint within five working days of receipt. It will then respond within 20 working days of the acknowledgement. The Council should therefore respond to stage two complaints within a maximum of 25 working days from receipt.

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What I found

Key events

23. Below is a summary of the key events leading to this investigation. It does not detail every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
24. In June 2023, Ms X approached the Council for homelessness assistance, as she and her three children could no longer stay in their present accommodation.
25. In July 2023, the Council allocated Ms X and her children interim B&B accommodation and accepted the relief housing duty. Shortly after moving into the property, Ms X reported to the Council concerns about her neighbours’ conduct, as she did not feel safe. Ms Y said Ms X asked to be moved to different accommodation, but did not receive a response. Ms X told me she continued to raise concerns while living in the accommodation.
26. In September 2023, the Council accepted the main housing duty towards Ms X and her children.
27. In February 2024, the Council assessed the suitability of Ms X’s accommodation, following a request from Ms Y. In May 2024, the Council wrote to Ms Y, confirming its decision that Ms X’s accommodation was unsuitable for her and her children. The Council said the household would be placed on a waiting list for suitable alternative accommodation.
28. On 13 June 2024, Ms Y made a complaint on Ms X’s behalf:
• Ms Y said the Council had failed to find suitable accommodation for Ms X and her children after they had spent six weeks living in B&B accommodation. Ms Y said this was in contravention of the Code. She also noted other vulnerable adults lived in the same accommodation, making it particularly unsuitable for Ms X’s children.
• Ms Y said the Council failed to reassess Ms X’s household’s needs after accepting the main housing duty, and failed to offer suitable temporary accommodation at that point.
• Ms Y said the Council failed to deal with Ms X’s reports of verbal abuse and harassment from other residents. Ms Y said the Council had told Ms X it would investigate and address these concerns, but this had not happened. Ms Y said the B&B accommodation was unsafe, a further reason it was unsuitable.
• Ms Y said the Council had failed to address general concerns about the condition of the accommodation.
• Ms Y said the Council had failed to respond to Ms X or provide alternative temporary accommodation following a loss of power in Ms X’s B&B accommodation. This meant Ms X had to book another hotel room for one night, incurring avoidable expense.
29. On 28 June 2024, the Council responded to Ms X’s complaint:
• The Council said it had a chronic shortage of suitable housing.
• The Council said Ms X could seek a suitability review of her accommodation.
• The Council signposted to other services that could help secure permanent accommodation.
• The Council partially upheld the complaint, saying it accepted the limitations of living in emergency accommodation. However, it said given the lack of available accommodation, it could not fully uphold the complaint.
30. On 12 July 2024, Ms Y sent the Council a letter before claim, raising the prospect of legal proceedings. This concerned the Council offering unsuitable accommodation in breach of the relevant statutory guidance. On 16 July 2024, the Council offered Ms X alternative temporary accommodation.
31. On 26 July 2024, Ms Y made a stage two complaint on Ms X’s behalf:
• Ms Y said the Council had quickly offered Ms X suitable accommodation after receiving her letter before claim. She said this undermined the Council’s argument of there being a chronic shortage of accommodation. In any event, Ms Y said the lack of accommodation did not negate the Council’s statutory responsibilities.
• Ms Y said Ms X had identified other suitable private accommodation options in the past, but the Council had not responded to requests for help, resulting in Ms X potentially missing suitable housing opportunities and having to stay in the B&B accommodation longer.
• Ms Y asked the Council to apologise, provide a suitable financial remedy, reimburse costs incurred, and carry out staff training.
32. On 5 November 2024, the Council responded to Ms Y’s escalated complaint:
• The Council partially upheld Ms Y’s complaint. It said it would have moved Ms X’s household sooner, but it could not do so due to a lack of suitable accommodation. The Council accepted it had taken longer than it hoped to secure suitable accommodation for Ms X.
• The Council said it would not reimburse expenses for food, as Ms X’s B&B accommodation had served breakfast and there were cooking facilities available.
• The Council offered Ms X £5000 in recognition of the distress caused.
• The Council said it was reviewing ways it could improve its services and that staff training was ongoing.

Analysis

Did the Council act with fault?

33. The Council provided Ms X and her children with B&B accommodation on 14 July 2023. As per paragraphs 18-19, the Code says this type of accommodation should only be used as a last resort and for no longer than six weeks. The Council should therefore have provided Ms X’s household with different accommodation by around 25 August 2023. The Council did not provide this accommodation until 16 July 2024. This means Ms X and her children lived in unsuitable B&B accommodation for around 46 weeks longer than the maximum limit set out in the Code, and for around a year in total.
34. The Council said the delay in offering suitable accommodation was caused by a lack of housing, with there being no suitable accommodation available. The Ombudsman recognises that demand for accommodation outstrips supply in many areas. However, as paragraph 20 sets out, the law says councils have an immediate, unqualified and non-deferrable duty to secure suitable accommodation where it owes the main housing duty. I note the Council did not recognise this in its initial complaint response, citing the lack of suitable accommodation in mitigation.
35. If councils do not secure suitable accommodation despite best efforts, the Ombudsman would consider this fault by service failure. There is some uncertainty over whether the Council did exercise its best efforts to secure suitable accommodation. Ms Y noted the Council quickly provided suitable accommodation following the prospect of legal action. This suggests the Council could have been more proactive and could have mitigated at least some of the delay, despite challenges in securing accommodation.
36. I have found the Council at fault for failing to provide Ms X and her children with suitable interim and temporary accommodation, as required by the Code.
37. Ms Y said the Council failed to review Ms X’s housing circumstances when it accepted the main housing duty towards the household. She also said the Council failed to respond to Ms X’s concerns about her neighbours’ conduct and a specific incident when the accommodation lost power. Further, Ms Y said the Council failed to provide the assistance and support Ms X needed to secure other housing options. The Council did not dispute this in its complaint responses. On the balance of probabilities, I find Ms X’s account is credible. It is likely the Council failed to appropriately respond to her specific concerns, by failing to review the suitability of her accommodation and by failing to offer consistent support and advice. I have found the Council at fault for this.
38. The Council responded to Ms Y’s stage one complaint in 11 working days. This is within the timescales set out in paragraph 21. I have not found the Council at fault for how it handled the stage one complaint.
39. The Council delayed responding to the stage two complaint, taking 73 working days to provide its response, contravening the timescales set out in paragraph 22. I have found the Council at fault for this delay.

Did the Council’s faults cause an injustice?

40. Ms X set out to me the impact this accommodation had on her family’s wellbeing. She and her children shared a single room, sharing washing and cooking facilities with other residents. Ms X experienced antisocial behaviour from some other residents, including verbal abuse and intimidatory conduct. Ms X said she reported this to the Council, which referred her to the Police service and took no further action. She said her children witnessed some of these incidents, causing them anxiety and leading to them becoming reluctant to leave the room at certain times. Because of this, Ms X frequently experienced anxiety and distress around preparing meals in the shared cooking spaces. One of Ms X’s children received necessary therapy interventions during this period, but struggled to fully engage with this due to the impact of the environment.
41. I am satisfied Ms X and her children experienced significant injustice in the form of avoidable frustration, distress and uncertainty, due to living in unsuitable accommodation for a prolonged period.
42. At the conclusion of its complaints procedure, the Council offered Ms X a financial remedy of £5000. I recognise the Council sought to provide a remedy for Ms X’s injustice. While this is welcome, the remedy offered was at the low end of recommended remedies set out in the Ombudsman’s published Guidance on Remedies. The Council’s complaint response does not explain how it decided its proposed remedy was suitable.
43. I do not believe the Council’s proposed remedy sufficiently recognises the injustice Ms X and her three young children experienced. I have recommended the Council improve its financial remedy to adequately reflect this injustice.
44. Ms X also incurred costs for an overnight stay when her accommodation lost power. I have seen evidence of these costs, amounting to £64. The Council did not address this in its complaint responses. This additional incurred cost is an injustice to Ms X. I have recommended the Council act to address this.
45. The Council’s delay in responding to the stage two complaint caused avoidable time and trouble, and frustrated Ms X’s right to bring her complaint to the Ombudsman. These are injustices to Ms X.
46. The Council not keeping the suitability of accommodation it allocates under review, and not recognising its absolute duty to secure suitable accommodation, could also cause injustice to others in future, if not addressed. I have recommended the Council provide guidance to its officers on this point.

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Action

47. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Ms X and her children for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Pay Ms X a further £2800 in recognition of the injustice arising from residing in unsuitable B&B accommodation for 46 weeks. This is in addition to the £5000 the Council already offered Ms X, bringing the total to £7800.
3. Reimburse Ms X £64 for costs incurred due to an overnight stay in other accommodation.
4. Share the findings of this investigation with relevant officers, emphasising:
1. the Council’s duty to secure suitable accommodation is immediate, non-deferable, and unqualified, as per the case law specified in paragraph 20;
2. 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, as per paragraph 17.35 of the Code; and
3. the Council has a continuing obligation to keep the suitability of accommodation under review, and to respond to any relevant change in circumstances which may affect suitability, as per paragraph 17.8 of the Code.
48. The Council should provide us with evidence it has complied with the above actions.

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Decision

49. I have completed my investigation with a finding of fault causing injustice. I have made recommendations 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