The Ombudsman's final decision
Summary: The Council’s failure to provide Ms X with suitable temporary accommodation for over 15 months after accepting she needed to move in February 2020 was fault. The Council was also at fault for delay referring Ms X to its Allocations Panel. The Council has agreed to apologise, pay Ms X £2,250 and act to improve its service.
The complaint
Ms X complained the Council failed to provide suitable accommodation for over 15 months, despite accepting in February 2020 that her temporary accommodation was unsuitable.
She also complained the Council delayed referring her application to the housing register to the Allocations Panel to consider awarding her extra priority.
As a result, Ms X and her children remained in unsuitable and overcrowded accommodation which caused them distress.
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) The courts have said that where someone has used their right of appeal, reference or review or remedy by proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916) 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)
What I have investigated Ms X also complained about matters before February 2020. However, Ms X previously used her statutory right under homelessness law to appeal to court about the suitability of her temporary accommodation.
The court upheld her appeal and ordered the Council to make a new decision. For the reason set out in paragraph 5, I therefore cannot consider these matters further.
How I considered this complaint
I considered the complaint and the information Ms X provided.
I made written enquiries of the Council and considered its response along with relevant law and guidance.
I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Temporary accommodation Temporary accommodation is accommodation provided to homeless applicants as part of a council’s main homelessness duty.
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. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2) Councils must assess whether accommodation is suitable for each household individually. Whether accommodation is suitable will depend on the relevant needs, requirements and circumstances of the homeless person and their household. (Homelessness Code of Guidance 17.4 & 17.9) 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) Homeless applicants must seek 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) Housing allocations Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing. All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14)) The Council uses a choice-based lettings scheme. This means housing applicants can express an interest in available properties. This is called bidding.
The Council places applicants who qualify to join the housing register in a Housing Needs Band from Band A (highest priority) to Band D (lowest priority).
So far as is relevant to this complaint, the Council awards Band C to households owed the main housing duty.
The Council’s Allocations Panel looks at exceptional cases and can award extra priority to reflect an applicant’s circumstances.
What happened Ms X was homeless and the Council owed her the main housing duty. She has several children and is also a Special Guardian for two further children. She needed a five-bedroom property. In 2019, Ms X used her statutory right of review and then appeal to court about the suitability of the temporary accommodation the Council provided to meet its housing duty.
The court ordered the Council to carry out a new review of whether the temporary accommodation was suitable for Ms X. The Council issued this decision in February 2020. It decided Ms X’s temporary accommodation was unsuitable. This meant it had a duty to provide her with alternative temporary accommodation.
In May, Ms X had twins, which meant she now needed a six-bedroom home.
In July 2020, the Council referred Ms X’s case to its Allocations Panel to consider awarding her extra priority on the housing register. It said this was because it could not find her suitable temporary accommodation. The Housing Needs Service decided it would be unlikely to find temporary accommodation of the size Ms X needed any time soon.
The Allocations Panel decided to increase Ms X’s priority from Band C to Band A because “a review decision concluded in February 2020 that [Ms X’s] property is unsuitable.”
In June 2021, Ms X successfully bid for a property on the housing register. The Council therefore ended its main duty to her.
My findings
Temporary accommodation The Council accepted in February 2020 that Ms X’s temporary accommodation was unsuitable. It failed to provide suitable alternative accommodation for 15 months, when Ms X successfully bid for a permanent home.
I asked the Council to tell me about its efforts to secure alternative accommodation for Ms X in this time. It did not provide any evidence of its attempts to secure a suitable property for Ms X. Ms X needed a large property and I accept it was unlikely the Council could have found anything suitable. However, the law is clear that temporary accommodation must be suitable. The Council’s review found that Ms X’s was not. The Council therefore had a legal duty to secure alternative accommodation for the family. It failed to do so. This was fault.
As a result, Ms X and her children remained in unsuitable accommodation for 15 months. This is an injustice to Ms X.
In response to my enquiries, the Council provided details of the efforts it is making to increase temporary accommodation in its area. This includes: Developing two purpose built Temporary Accommodation Schemes, including adapted properties for applicants with disabilities Progressing a third development to further increase supply Appointing a dedicated officer to keep oversight of households in unsuitable accommodation and match them to available properties The Ombudsman welcomes these improvements to the Council’s service.
Allocations Panel The Council decided Ms X’s accommodation was unsuitable in February 2020. The Council did not refer Ms X’s case to the Allocations Panel until July. The Council said this was because it had tried and failed to find anything suitable and thought it unlikely it would do so.
The Council decided Ms X’s accommodation was unsuitable in February because she was pregnant with twins and so would need a six-bedroom property. The referral to the Panel was for the same reasons. The Council would have known it was unlikely to find a large enough property to use as temporary accommodation. I therefore consider the Council should have referred Ms X to the Panel in February and its delay of five months in doing so was fault.
However, Ms X did not qualify for a six-bedroom property until May. Had she received an offer before then, it would have for a five-bedroom property which would have quickly become too small for her needs. Ms X did not miss out on a six-bedroom property between May and July, when the Council increased her band. However, the delay caused her avoidable uncertainty and distress, which is an injustice.
Agreed action
To remedy the injustice to Ms X from the fault I have identified, the Council has agreed to: Apologise to Ms X Pay Ms X £150 for each month she spent in unsuitable accommodation from February 2020 until the Council ended its duty in June 2021. This is 15 months and £2,250.
The Council should take this action within four weeks of my final decision.
The Council should also take the following action to improve its services: Remind relevant staff to consider referring households in unsuitable temporary accommodation to the Allocations Panel to consider awarding increased priority. The Council should consider this for the 21 households now in unsuitable temporary accommodation.
The Council should tell the Ombudsman about the action it has taken within eight weeks of my final decision.
Final decision
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