The Ombudsman's final decision
Summary: Mr X complained that the Council promised he and his pregnant partner would be placed in a self-contained flat but instead placed them in unsuitable accommodation, where they remain. We find the Council at fault. Mr X and his partner have been caused an injustice in that they have been left in unsuitable accommodation for over six months, which has been distressing. I have made recommendations to address this.
The complaint
Mr X complained that the Council: Went back on a legal agreement to place him and his pregnant wife in self-contained accommodation.
Placed them instead in accommodation the Council knew was unsuitable.
He says this caused him and his pregnant partner, Miss P, an injustice because Miss P missed maternity appointments and suffered reduced baby movements resulting in hospital attendance. He also says that the accommodation did not have any COVID precautions and he contracted COVID.
What I have investigated I have investigated the above issues. I have set out below at paragraph 77 the issue I have not investigated.
The Ombudsman’s role and powers
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) We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended) 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.
We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended) 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)
How I considered this complaint
I spoke with Mr X.
I made enquiries of the Council and researched the relevant law and guidance.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant Law Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
Councils have a duty to those threatened with homelessness. This is called the prevention duty and is set out in section 195 of the Housing Act. The duty can come to an end for a number of reasons, one of which being if an applicant becomes intentionally homeless from any accommodation that was made available by the council exercising its functions under this section.
Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness.
The assessment must include an assessment of: The circumstances that caused the applicant to become homeless or threatened with homelessness The housing needs of the applicant, including what accommodation would be suitable for the applicant, and What support would be necessary for the applicant to have and retain suitable accommodation.
The authority must notify the applicant, in writing, of the assessment. (Section 189A, Housing Act 1996) The relief duty requires housing authorities to help people who are homeless to secure accommodation. It is set out in section 189B of the Housing Act 1996.
Under this duty a local housing authority is subject to a duty to take reasonable steps to help an applicant secure accommodation that will be available for at least six months. Like the prevention duty, this duty arises whether the applicant is in priority need or not and does not mean the authority actually has to secure accommodation for an applicant (although it may choose to do so and if it has reason to believe a person also has a priority need at this stage, the Council must provide interim accommodation, under its interim accommodation duty, as set out in section 188 of the Housing act 1996).
A person may be considered to be in priority need for a number of reasons, one of which is if they are considered to be vulnerable, for example, for medical reasons.
A housing authority may give notice to bring the relief duty to an end for a number of reasons, including: The applicant has suitable accommodation available that has a reasonable prospect of being available for at least six months; The applicant has refused an offer of suitable accommodation that would have been available for at least six months; 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. This duty applies to interim accommodation and accommodation provided under the main homelessness duty. (Housing Act 1996, section 206 and (from 3 April 2018) Homelessness Code of Guidance 17.2) The question of what is suitable can give rise to disputes between councils and applicants. Applicants may be disappointed that the accommodation offered does not meet all of their wishes. However, the housing authority is entitled to rely on the facts that: Accommodation is in short supply There are huge strains on their resources, and Perfection cannot be expected.
Any decision that the duty has to come to an end must be notified in writing giving the reasons why it has ended and notifying the applicant of their right to request a review of that decision.
However, applicants do not have the right to request a review of the suitability of interim accommodation. If the accommodation is unsuitable, this can only be challenged by judicial review in the High Court.
If homelessness is not successfully prevented or relieved, a housing authority may owe the main housing duty. This is set out under section 193(2) of the Housing Act 1996.
This duty will be owed if an applicant is: Eligible, Has a priority need for accommodation, and Is not homeless intentionally.
Generally, the Council carries out the duty by arranging temporary accommodation until it makes a suitable offer of social housing or private rented accommodation.
The Code says “consideration of whether accommodation is suitable will require an assessment of all aspects of the accommodation in the light of the relevant needs, requirements and circumstances of the homeless person and his or her family”. (Homelessness Code of Guidance for Councils 2006, section 17.4) The Code says that housing authorities will need to consider carefully the suitability of accommodation for households with particular medical and/or physical needs.
As the duty to provide suitable accommodation is a continuing obligation, councils must keep the issue of suitability of accommodation under review. If there is a change of circumstances the council must reconsider whether the accommodation remains suitable. ((Homelessness Code of Guidance for Councils 2006, section 17.8) What happened Mr X and Miss P became threatened with homelessness in late November 2021. Miss P was heavily pregnant at the time. Mr X contacted the Council, who accepted his application for homelessness.
The couple were booked into a family room in a hotel. A housing needs assessment was drawn up and a personal housing plan, (PHP) was also completed. Action was agreed which included assistance with securing a deposit and or rent in advance if required to secure a suitably affordable private rental property for the couple.
Two days later a move was arranged to interim accommodation as the Council had accepted it had an interim duty to provide accommodation. Mr X and Miss P signed a legal agreement with the Council about the accommodation. It was described as a one-bedroom, self-contained property.
The agreement set out a number of terms, such as that the couple may be required to move to other temporary accommodation at any time and that they may also be required to share the accommodation with other applicants.
On the same day Mr X signed the agreement, he attended the accommodation and phoned the Council to complain. He pointed out that the accommodation he had in fact been given was not self-contained. He said it was worse than the hotel accommodation he and Miss P had just left.
In response to our enquiries the Council says that the housing officer used the wrong template for the agreement. It apologises for this error.
On 29 November 2021 Mr X asked for a review of the suitability of the accommodation. He said, among other things that: Because of the new COVID outbreak it was particularly important that his pregnant wife be in a place where covid measures were implemented.
Miss P needed her own shower room and space to cook meals.
The room was very small with no room for a Moses basket when the baby was born or any other associated baby furniture or belongings.
Mr X had missed out on a job opportunity because of stress and Miss P had missed her 28-week scan for the same reason.
He provided a copy of the legal agreement signed between the Council, himself and Miss P.
The Council review officer looked at the application on the same day and Mr X was informed, by phone, that as the accommodation was provided under the Council’s interim duty, he did not have the right to review the accommodation.
On 30 November 2021 Mr X called the Council again, this time reporting a cockroach infestation at the property.
The Council made enquiries with Mr X’s landlord, who confirmed there was a cockroach infestation and that pest control had been contacted to treat the infected room.
The records I have seen show that cockroaches were first reported in the room on 19 November 2021. The issue was reported to a pest control company, which visited on 23 November 2021. On 24 November 2021 staff saw cockroaches near the room Mr X was due to move into and a kitchen area. Pest control were contacted again but they could not return until 30 November 2021 as they were fully booked.
They visited again on 30 November 2021 and treated Mr X’s room and the kitchen area. A new mattress was added to the room and there were no new reports of cockroaches after that.
The Council says it was not aware of a cockroach infestation before the couple were placed there. It says Mr X was moved to another room while the cockroach issue was being dealt with. It has provided a form which was filled out by the property managers certifying that the property was fit to inhabit on 19 November 2021.
Mr X and Miss P continued to stay in the temporary accommodation although Mr X reported to the Council that he was looking for accommodation elsewhere. On 16 December 2021 he made an application for housing on the Council’s housing register.
Mr X made a complaint on 1 December 2021. He complained in particular that he had been given an agreement stating that the property would be a self-contained flat but was instead a room with shared facilities.
The records show the Council considered the complaint should be partially upheld.
The response to Mr X on 23 December 2021 included the following: Mr X could report pest issues to the accommodation staff or the temporary accommodation team by complaining – he was given a form to fill out.
It was noted that Mr X had made a housing application on 16 December 2021. However, the Council apologised that although it hoped to assess all applications within six weeks, it was exceeding that timescale at present. It apologised for the impact caused by delays.
It said that while it was taking steps to reduce the delays in assessing housing register applications, it would be prudent for Mr X to continue searching for accommodation in the private sector and or with social landlords/housing associations.
Mr X was given the option to seek a review of the complaint response if he chose to do so.
On 12 January 2022 Mr X informed the Council that he had now contracted COVID and was worried about being a risk to Miss P and their unborn child.
On 25 January 2022 the Council accepted the Main Housing Duty for Mr X. He was offered temporary accommodation at the same place but in a different room. He was given a right to review the suitability of that accommodation. He had also been told that he could seek to review the suitability of his property in a phone call on 29 December 2021. He was, however, given the impression, that even if he did seek a review of the accommodation, it would not help as there was no accommodation available at the time and he had already been put in line to be placed in a new property when one became available.
Mr X continued to make repeated telephone calls to the Council stressing that the property he and his young family were in was unsuitable. However, he did not make an application for review of the suitability of the property.
Housing register application Mr X made his housing register application on 16 December 2021. As noted above the Council told him it hoped to assess all housing applications within six weeks but this did not always prove possible.
By 27 January 2022 Mr X’s housing application had still not been assessed.
On 21 February 2022 Mr X informed the Council that he now needed a two-bedroom property because of the birth of his daughter, C.
When Mr X called the Council on 24 March 2022, he was told that this detail had yet to be added to his application.
When Mr X called the Council again on 4 May 2022, he was told his application had still not been updated. Mr X had sent in a letter from a health visitor. The health visitor said she was concerned about the family living in the one room apartment. She said that the “…living conditions are not suitable for a young infant. The room has little ventilation and was extremely hot despite having the one window open and a fan running.”
She added that the infant was at risk of overheating, which could lead to significant harm to the infant, including leading to Sudden Infant Death.
She asked the Council to reconsider the family’s housing needs and provide suitable accommodation.
On 1 June 2022, the Council emailed Mr X to say he could now bid for two-bedroomed flats.
The Council says that due to an applications backlog, there was a delay in dealing with Mr X’s application. It apologises for that delay. It says it has passed the letter from Mr X’s health visitor to its review team to see if it can be considered as a request for review of the suitability of the accommodation. It says it has also asked its application team to assess the letter to determine if Mr X can be considered for an award based on a medical category.
Analysis Interim accommodation The Council started off addressing Mr X’s homelessness application appropriately. I do not find it at fault for placing Mr X and Miss P in accommodation where it transpired there was a cockroach infestation. I accept that there are no records which show the Council was aware of the infestation. It was in possession of a statement from the accommodation that indicated, wrongly, that the property was fit for habitation. When the Council received a call from Mr X about the issue, it made immediate enquiries. It says that Mr X never actually stayed in the room initially allocated for him, where the cockroach infestation was located, and was placed in a different room.
But Mr X and Miss P are still in that room. Initially I considered that the accommodation was B&B accommodation. The Council had referred to it as such in its complaint response. However, I am now satisfied that while the accommodation is not self-contained and facilities are shared, it is not B&B accommodation. It is managed by the Council and so is not defined in that way.
I accept that it is unlikely that there was other accommodation available when Mr X and Miss P first contacted the Council. All the telephone calls Mr X had with customer advisors indicated that that was the case.
The couple did not, initially, have the right to review the suitability of the accommodation. When they were eventually given that right to review, when the Council accepted the Main Housing Duty towards them, it is understandable that Mr X did not make a formal application for review. He had been given the impression, when speaking with a customer advisor, that this would be pointless as there were no other properties available.
The Council says it is now making enquiries to see if the health visitor’s letter can be used as an application for a right to review of the suitability of the accommodation. I understand Mr X and Ms P are still in that accommodation, which is just over 33 weeks. Mr X says it has caused him extreme distress and that he has had to take time off from work because of the stress. He also says he has since had to give up a job because of the distress caused by living in unsuitable conditions.
I do not consider that Mr X’s failure to attend a job appointment or Ms P’s concerns about her baby’s movements can be directly attributed to the Council’s actions. I also do not consider that the Council is directly at fault for Mr X’s contracting COVID or that I have evidence Mr X left his job mainly because of the suitability of his accommodation. These events could have happened in any case. However, I do consider the couple were caused distress and an acknowledgment for the level of distress they may have been going through, living together with a new baby, in such conditions, has been reflected in the sums I have awarded.
The legal agreement Mr X says he was told by the Council that the ‘legal agreement’ he signed for a self-contained flat had a cooling off period. The Council has not responded to me on that point. However, there is no record of this being said in the telephone records or emails I have reviewed.
In any event, it is not material. The Council erred in providing Mr X with the wrong template document. It appears to have tried to correct this by sending Mr X a copy of the correct document in May 2022. It does not appear, at any point, (until responding to our enquiries) to have properly accepted or apologised for raising Mr X’s expectations about the property he and Miss P were about to be accommodated in. They must have been shocked to find that it was not self-contained and that it, in fact, was infested with cockroaches.
The Council may not have been able to correct the situation by finding the couple a self-contained apartment. I accept that accommodation is in short supply. However, it must have been very frustrating for Mr X and Miss P not to have this error recognised or acknowledged. Instead, Mr X spent a lot of time calling the Council to try and ascertain why they had been placed in unsuitable accommodation and to ascertain where they were on the list of the housing register. This is fault and I have recommended the Council make an extra payment to recognise this extra element to their distress.
The housing register The Council has already apologised for the delay in amending Mr X’s details on the housing register when his circumstances changed with the birth of his daughter.
It should not take over three months to make such an amendment. I have made a recommendation to address the possible injustice caused by this unreasonable delay.
Recommended / agreed action Within a month of our final decision, the Council should: Apologise in writing to both Mr X and Miss P for the fault identified in this decision.
Pay Mr X and Miss P the sum of £3200 to acknowledge the time spent in unsuitable accommodation.
Pay Mr X and Miss P the sum of £200 to acknowledge the distress caused by issuing the wrong offer letter to the couple and for its failure in acknowledging this mistake at an earlier stage.
If the Council has not already done so, backdate Mr X’s housing application to the date he informed it of his change in circumstances. The Council should pay Mr X and Miss P a further sum per month of £200 per month from 1 March 2022 to the date new accommodation has been offered to Mr X and Miss P. This is to acknowledge the impact of the delay in amending Mr X’s housing application.
Although Miss P is not a complainant she has been affected by the fault and injustice found in this decision. All the above sums should be split in two and paid separately to Mr X and Miss P.
Provide evidence to the Ombudsman that all the above recommendations have been complied with.
Final decision
I have found the Council at fault and have made recommendations to address the injustice caused. I have now completed my investigation.
Parts of the complaint that I did not investigate I have not investigated Mr X’s complaint that the Council shared Miss P’s data inappropriately. I consider this is a complaint that can be raised with the Information Commissioner's Office.
Investigator's decision on behalf of the Ombudsman