Summary: The Council properly considered Ms X and her household’s medical issues and their overcrowding when it decided their temporary accommodation was still suitable for their needs. However it failed to demonstrate that it had considered the domestic abuse, anti-social behaviour and racial abuse that Ms X disclosed when deciding whether the accommodation continued to be suitable. This caused Ms X significant distress and uncertainty about whether she may have been offered alternative accommodation if not for the fault. To remedy this, the Council has agreed to apologise, pay Ms X £600 and make a new suitability decision.

The complaint

1. Ms X has been living in temporary accommodation for several years. She complained the Council’s housing department:
1. failed to properly consider the suitability of the accommodation due to Ms X and her family’s medical conditions and the size of the property;
2. failed to respond appropriately to Ms X’s reports of domestic abuse, anti-social behaviour and racial abuse that she had experienced at the accommodation; and
3. failed to deal with infestation and repairs issues.
2. Ms X said remaining in the accommodation is putting her and her children at risk of harm and is impacting their 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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think 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 considered the information provided by Ms X and the Council.
8. I considered the relevant law and guidance as set out below.
9. I considered our Guidance on Remedies.
10. I considered all comments made by Ms X and the Council on a draft decision before making a final decision.

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What I found

Law and guidance

Suitability of 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. Councils have a duty to keep the suitability of accommodation under review. An applicant may ask a council to reconsider the suitability of their current temporary accommodation if their circumstances change. For example, if their medical needs change, there is an increase in the size of the household, or they face risk of harm at the property.
13. If a council finds the accommodation is not suitable, the council would have an immediate duty to provide the person with suitable alternative accommodation. (R (on the application of Elkundi & Ors) v Birmingham City Council [2022] EWCA Civ 601).
14. If instead, the officer decides the accommodation is suitable, that decision must be put in writing and the applicant must be notified of the right to request a section 202 review. The applicant can then use the section 202 review procedure to challenge the decision on suitability.
15. Councils have a duty to inspect properties within its local area if it is made aware that there may be Category 1 or 2 hazards at the property. Damp and mould can be a Category 1 hazard. (Housing Act 2004, s.4(1))
16. Once the authority accepts the main housing duty it has a duty to secure that suitable accommodation is available for occupation by the applicant and their household. However under this duty, it does not have to provide a permanent secure or assured tenancy. Many accepted homeless households remain in temporary accommodation with limited security of tenure for a long time while they bid for permanent housing through the authority’s housing allocations scheme. In many cases, households will stay for a long period in the accommodation that was provided under the interim housing duty.

Croydon Council, Allocations policy 2019

17. The Council’s housing allocations policy says it is required to give reasonable preference to people with high levels of assessed housing need.
18. The Council’s housing register consists of three bands. Band 1 is for applicants with the highest priority to move and Band 3 is for applicants with a moderate priority to move.
19. The Council’s criteria to be placed in priority Band 3 includes but is not limited to, people who are moderately overcrowded, people with medical conditions or disabilities which affect their ability to manage in their homes and people accepted as homeless but who are suitably housed in temporary accommodation.
20. The Council’s criteria to be placed in priority Band 2 is solely for, ‘people with a reasonable preference for housing that are also working, training, registered as foster carers or adoptive parents, or have successfully prevented their own homelessness as a result of working with the Council’s Gateway Service’.
21. The Council’s criteria to be placed in priority Band 1 includes but is not limited to, people that are homeless and must move urgently to escape severe harassment or violence and people approved by the director of housing needs or a nominated deputy for a Council management transfer.
22. Regarding overcrowding, the Council’s housing allocations policy says, ‘if you need two bedrooms more than you currently have, your application will be given reasonable preference and your application will be placed in Band 3’.
23. Regarding medical priority, the Council’s housing allocations policy says, ‘if we agree that you need to move because your current accommodation moderately affects your medical condition or affects your disability, but the need is not urgent enough to go into Band 1, your application will be assessed as having a reasonable preference, and your application will be placed in Band 3.’

MARAC

24. A MARAC is a Multi-Agency Risk Assessment Conference where information is shared on high-risk domestic abuse cases. These are attended usually by local police, health, child protection, housing and domestic abuse support services. These meetings are held to safeguard adults experiencing domestic abuse.

Background

25. The Council accepted a main housing duty to Ms X in October 2015 after she approached the Council as homeless.
26. Ms X has lived in temporary accommodation provided by the Council since 2016. She lives there with her three children who are all under the age of ten.
27. The accommodation is a one-bedroom property. The family use the living area as another bedroom.
28. Ms X is in Band 3 on the Council’s housing register which is the priority band awarded to homeless applicants who it considers suitably housed in temporary accommodation and those who are ‘moderately’ overcrowded. Ms X is eligible to bid for three-bedroom properties.
29. Ms X said her ex-partner abused her physically and emotionally in the accommodation. They are now separated and live apart. However, her ex-partner is aware of her address and Ms X says she and her children are at risk of continued abuse in the property.

What happened

30. In March 2022 Ms X sent the Council medical information regarding a physical health condition she was experiencing, which she said was exacerbated by living in the property. She asked what her options were to move out of the accommodation. The Council did not respond or provide any advice.
31. Ms X complained to the Council at stage 1 of the complaints process on 6 June 2022. She asked the Council to move her to more suitable accommodation, because:
• she had medical conditions including anxiety and some physical health issues that were being negatively affected by the current accommodation;
• she was experiencing domestic abuse from her ex-partner;
• she had been a target of hate crime and anti-social behaviour in the local area including racist language being shouted at her and offensive graffiti painted on her fence; and
• the property had various disrepair and health and safety issues including intermittent lice and rodent infestations, broken bathroom tiles which were falling on the children, a broken window and toilet and sink blockages.
32. On 4 July 2022 the Council responded at stage 1 of the complaints process. It said:
• Ms X should provide further information to it about the anti-social behaviour, as so far she had only sent a police ‘CAD’ reference number’, with no explanation alongside it;
• it would contact her to make arrangements to remove the offensive graffiti;
• regarding the rodents, she should contact its pest control team;
• regarding the repairs issues, it would arrange for a Repairs Inspector to visit her home; and
• if the temporary accommodation she occupied was no longer suitable for medical reasons, she should contact the Council’s suitability officer and provide further medical information. She could do this by emailing the Allocations Team.
33. The Council’s stage 1 complaint response did not refer to the domestic abuse Ms X had raised.
34. The Council did not arrange a Repairs Inspector to attend the property regarding the broken bathroom tiles and other repairs issues raised. Some repairs issues were instead resolved following reports made by Ms X some months later. The Council did not arrange for the offensive graffiti to be removed. Ms X cleaned this from the fence herself.
35. The Council has no record of Ms X contacting the pest control team directly, or reporting any damp to its repairs team, as it had asked her to in its stage 1 complaint response.
36. The Council said Ms X did not provide the requested further information to the Council regarding the anti-social behaviour and racial abuse until February 2023, when she explained the abuse was from unknown perpetrators.
37. On 20 July 2022 Ms X emailed the Council. She disclosed again that she was unsafe in her home due to domestic abuse. Ms X emailed again the next day asking what her options were for moving out of her accommodation.
38. The Council responded on 26 July 2022 to say that she needed to contact the Council’s suitability officer, so they could ‘assess whether the property is no longer suitable for you and your family’. The Council told us Ms X contacted its suitability officer to say that a domestic abuse organisation locally was ‘handling’ the domestic abuse issue.
39. On 30 August 2022 Ms X complained to the Council again. She asked to go to stage 2 of the complaints process and provided more information about the impact the size of the accommodation was having on her and her family, including:
• her ex-partner abused her in the room she continued to live in;
• she felt claustrophobic and her children were not sleeping properly due to the lack of space;
• Ms X’s physical health condition was being affected by sleeping in a single bed; and
• the accommodation had poor ventilation and damp.
40. The Council did not respond to Ms X’s stage 2 complaint, so Ms X complained again to the Council on 2 November 2022. In this correspondence, she said she feared she would have thoughts of ending her life again if she remained in this accommodation. She said she had experienced trauma and was tired of sending emails and going through complaints procedures.
41. The Council responded at stage 2 on 28 November 2022. It said that Ms X’s banding was correct and several hundred families on the Council’s housing register with higher priority than Ms X were also waiting for three-bedroom properties.
42. The Council said it had agreed to carry out a suitability assessment of the accommodation, which was underway and would take 56 days for it to come to a decision. It did not specify when its suitability assessment had started. It did not respond to any of the individual issues she raised in her complaints.
43. A few days later, on 1 December 2022, a MARAC meeting was held due to the abuse Ms X and her children were experiencing from Ms X’s ex-partner, including physical abuse against the children. The MARAC minutes show that, among other forms of support, a referral for the family would be made to the Council’s housing team due to the risks they faced.
44. However the domestic abuse organisation supporting Ms X, said she ‘did not wish to be referred into Housing at that time’, so this was not progressed. Instead the Council’s children’s services department began child protection enquiries regarding the risk to the children. The Council did not have sight of this MARAC document until March 2023 when it obtained it to respond to this Ombudsman investigation.
45. On 6 March 2023, the Council made a suitability decision on whether Ms X’s temporary accommodation continued to be suitable for her and her household’s needs. The suitability decision said Ms X’s accommodation had challenges but this did not mean it was unsuitable.
46. Regarding the size of the property, it set out the room and space standards in detail and explained why, according to its allocations policy and the law, as her children were under ten, it did not consider she was overcrowded. It recommended continuing to use the living room as an additional bedroom.
47. Regarding her and her children’s medical conditions, it said the severity of these did not make the property unsuitable. It recommended, for her comfort, due to her physical health condition, to consider using a blow-up mattress or fold-away bed so she could sleep in a larger bed, without taking up additional space.
48. Regarding the disrepair it said it would arrange for its Damp and Mould Team to inspect the property and that works had been carried out to repair the windows. However it did not arrange this.
49. It said she was responsible for repairing the bathroom tiles as these counted as minor repairs which she was responsible for through the conditions of her tenancy. It said it considered that she had been contacted and progress had been made to rectify the repairs issues in the accommodation.
50. Regarding the ASB and racial abuse, the Council said Ms X did not provide any additional information about this and did not comment any further on this regarding the suitability of the accommodation.
51. Regarding the domestic abuse, the Council said it knew this was being handled by a domestic abuse support charity. It did not address this further regarding the suitability of the accommodation.
52. The Council’s suitability decision informed Ms X of her right to request a review of its decision if she did so within 21 days.
53. Ms X did not make the request within this timeframe as unusually, due to the length of time the Council took to make its suitability decision, by then the Ombudsman was concurrently investigating her complaint. It was unclear to Ms X which process she should be using. I have therefore considered the Council’s suitability assessment as part of my investigation.

My findings

Delayed suitability review

54. Ms X raised issues regarding the suitability of her accommodation several times with the Council from March 2022 onwards. However the Council did not make its suitability decision until March 2023.
55. The Council’s decision was delayed in part because Ms X did not provide some information the Council requested regarding the ASB and repairs for several months. However the Council was already aware from Ms X’s correspondence of several serious issues raised regarding the accommodation, including her being at risk of domestic abuse.
56. These urgent issues should have triggered a suitability assessment much earlier and the Council should have made prompt enquiries regarding Ms X’s situation. Not doing so led to avoidable delay in assessing the suitability of the accommodation. The Council was at fault.

Complaint 1a) failure to consider medical conditions and size of accommodation

57. The Council set out in detail the law and its own allocations policy regarding the room and space standards in accommodation and explained why Ms X was in the right band according to these and why it considered the accommodation was suitable.
58. The Council had regard to the relevant law and its own allocations policy and explained its decision. We do not challenge the merits of decisions made by the Council where the correct processes have been followed. The Council was not at fault.
59. Ms X provided evidence of her and her children’s medical conditions. The Council considered the evidence that was provided and said they did not meet the criteria for her to be placed in a higher band. Instead the Council recommended alternative measures for increasing the size of Ms X’s bed due to her physical health condition and said it would arrange an inspection of the damp which she said was affecting her children’s health.
60. The Council failed to arrange the inspection of the damp which I deal with separately in paragraphs 73 and 74 of this decision statement.
61. However based on the evidence the Council had when it made its suitability decision regarding the household’s medical needs, the correct processes were followed and the Council’s decision was explained to Ms X. Therefore we have not challenged the merits of the Council’s decision. The Council was not at fault.

Complaint 1b) failed to respond appropriately to reports of domestic abuse, anti-social behaviour and racial abuse

62. The Council failed to respond appropriately to Ms X’s disclosures of domestic abuse on several occasions which I will address in turn below.
63. In its stage 1 and 2 complaint responses, the Council addressed some of the issues Ms X raised but it never acknowledged her disclosure that she was at risk of domestic abuse at the accommodation. This was a significant part of Ms X’s complaint to overlook and was fault.
64. Ms X asked the Council for advice by email about how she could move to alternative accommodation due to ongoing domestic abuse she was facing. The Council signposted her to its suitability officer and made no further enquiries.
65. Ms X then informed the suitability officer that she was being supported by a domestic abuse service locally and the Council took this to mean it needed to take no further action to support Ms X in relation to her housing. The local domestic abuse service was not responsible for keeping the suitability of Ms X’s accommodation under review, the Council was. The Council was at fault.
66. Meeting notes from December 2022, provided by the domestic abuse service supporting Ms X during this time, record that Ms X was experiencing domestic abuse from her ex-partner and he had physically assaulted their child recently. The alleged perpetrator was aware of their address.
67. If the Council had made further enquiries of Ms X when she disclosed the domestic abuse, on the balance of probabilities, it would have discovered this information. It should not be incumbent on people experiencing domestic abuse to provide the detail of the abuse by email. Obtaining any further information the Council needed regarding the domestic abuse should have been done sensitively and without delay. The Council failed to do this. The Council was at fault.
68. After obtaining the information it needed regarding the risk of domestic abuse to Ms X and her household, the Council should have turned its mind to the question, without delay, of whether the accommodation continued to be suitable for Ms X. If it decided it was not suitable due to the risk of domestic abuse, it should have arranged to provide her with alternative accommodation. If it decided it was suitable, it should have issued a suitability decision clearly explaining its reasons and setting out the right to review.
69. The Council based its suitability decision on limited information without making further enquiries. It failed to explain why it believed she and her children were safe in the accommodation despite the domestic abuse she had raised. The Council did not properly consider the domestic abuse or explain its decision. The Council was at fault.
70. Regarding the anti-social behaviour and racial abuse Ms X reported to the Council, the Council asked Ms X to provide further details in July 2022. Ms X did not provide the further details requested for several months. When she did provide the information requested, she explained the anti-social behaviour and racial abuse was from unknown perpetrators.
71. Ms X should have provided this further information sooner. However once the Council received this information, it then failed to explain in its suitability review why the anti-social behaviour she experienced did not cause her accommodation to be unsuitable. The Council should have explained its decision making clearly and it failed to do so. The Council was at fault.
72. I cannot say, were it not for the faults identified above, whether the Council would have made a different decision regarding the suitability of the accommodation. Instead, due to the Council’s unclear and incomplete suitability decision and the lack of evidence that it gathered, Ms X has been caused significant uncertainty about whether the outcome would have been different if the suitability assessment had properly considered all relevant factors. This is an injustice to Ms X.

Complaint 1c) failed to deal with infestation, damp and repairs issues

73. Ms X raised multiple repairs issues, intermittent issues with infestations from lice and rodents and mould and damp. The Council initially asked Ms X in its July 2022 complaint response to report the mould and damp and the pest issues to the relevant departments directly and Ms X did not make these direct reports, which may have contributed to the issues not being resolved in a timely way.
74. However the Council has a continuing duty to ensure the suitability of temporary accommodation and keep this under review. Ms X raised issues which may have amounted to Category 1 or 2 hazards. Therefore at the earliest opportunity after Ms X reported these issues, the Council should have arranged an inspection. It did not do this, including after it said it would in its March 2023 suitability decision. The Council was at fault. This fault caused Ms X avoidable frustration and distress.
75. The Council failed to take several other actions it said it would with regards to repairs. It said in its stage 1 response that it would arrange for the offensive graffiti painted on Ms X’s fence to be removed and it would arrange a Repairs Inspector to visit the accommodation. It did not arrange either of these. The Council was at fault.
76. These faults caused a missed opportunity for Ms X to have several of the issues she had raised dealt with sooner and caused her avoidable frustration and distress.

Poor communication and complaint handling

77. Ms X sent emails and made formal complaints in this case which were often not responded to or were responded to late. The Council failed to respond in a timely way to Ms X’s communication, many of which raised serious issues. The Council was at fault.

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Agreed action

78. Within one month of the date of the final decision, the Council has agreed to:
1. apologise to Ms X for the faults identified in this decision;
2. pay Ms X £600 to reflect the significant uncertainty she has been caused regarding whether her reports of domestic abuse, racial abuse and ASB have been considered properly, for the frustration caused by the Council’s delay in responding to her complaints and for failing to arrange the repairs and damp inspections it said it would;
3. carry out another assessment of the accommodation’s suitability, taking proper consideration of Ms X’s reports of racial abuse, ASB and domestic abuse. When asking Ms X to discuss any risks faced by domestic abuse, this should be handled sensitively;
4. ensure that the new suitability assessment either explains clearly why the accommodation is suitable in relation to the factors above and sets out Ms X’s right of review, or if the Council decides the accommodation is no longer suitable, provide us with evidence that it has taken steps to arrange alternative accommodation without delay; and
5. arrange an inspection at the property of all repairs issues, damp, mould and infestation issues. It should then confirm with Ms X in writing afterwards the details of any treatments and repairs to be carried out, including expected timeframes for these. If this inspection highlights any hazards at the property that may make the property unsuitable, the Council should consider the suitability of the accommodation in light of these.
79. Within three months of the date of the final decision: the Council has agreed to remind its housing team:
1. when residents disclose they are at risk of domestic abuse at their accommodation, the Council should contact the resident promptly to obtain any further information it needs to establish whether that household requires housing support. If the household is at risk of harm, it should then quickly turn its mind to the question of whether the accommodation remains suitable for them to occupy and take any action without delay. These conversations should be handled sensitively due to the often re-traumatising effects of discussing abuse;
2. that officers should clearly explain in their suitability decisions why the accommodation is suitable with regards to the issues the resident has raised. It is not sufficient to list the issues the resident has raised, say the accommodation is suitable, but not explain its decision making; and
3. remind officers of the Council’s duty to inspect where there is a risk of Category 1 or 2 hazards in residential accommodation within its area.
80. The Council should provide us with evidence it has complied with the above actions.

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Final decision

81. I have completed my investigation. I have found fault leading to injustice and recommended an apology, a re-assessment, a financial remedy and service improvements.

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Investigator's decision on behalf of the Ombudsman