The Ombudsman's final decision
Summary: We will not investigate this complaint about Miss X’s temporary accommodation. The Council reviewed the accommodation’s suitability within one day of the legal timescale. Miss X could then reasonably have used her right to take court action if she disagreed with the review decision.
The complaint
Miss X complained to us about the suitability of her homelessness temporary accommodation (TA). She said her TA was unsuitable, which was causing inconvenience, delaying surgery she needs and damaging her family’s health.
The Ombudsman’s role and powers
The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended) The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot 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) We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating, or any injustice is not significant enough to justify our involvement, or there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by the complainant and copy correspondence from the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
TA must be legally suitable. (Housing Act 1996, section 206) Anyone who believes their TA is unsuitable can ask the Council to review the TA’s suitability. (Housing Act 1996, section 202) The Council must complete the review within eight weeks. If the review still says the accommodation is suitable, the applicant can appeal to the county court on a point of law. (Housing Act 1996, section 204) Miss X was already in TA. The Council offered alternative TA due to Miss X’s circumstances. Miss X moved her family there to avoid having no housing but considered it unsuitable. She gave the Council reasons she considered the property inappropriate. Two weeks later Miss X reiterated that request.
Six weeks after first telling the Council why she considered the property inappropriate, Miss X complained to us that she had not had a response. There was no fault at that point, as eight weeks had not yet passed.
Matters have since moved on. The Council sent its review decision eight weeks and one day after Miss X first told the Council she considered the property inappropriate. I do not consider the extra day over the legal timescale is significant enough for us to pursue. We cannot reasonably achieve more as the Council has now done the review. For the reasons in paragraph 4, I shall not investigate this point.
The Council’s review decision said the TA was suitable. The letter told Miss X about her right to go to court on a point of law within 21 days.
If Miss X disagrees with the review decision and still considers the TA unsuitable, that disagreement would be about the concept of suitability, as legally defined. So the points in paragraphs 2 and 3 above would apply.
If Miss X used her right to go to court, we cannot consider the TA’s suitability, as paragraph 3 explained.
If Miss X did not take court action, the restriction in paragraph 2 would apply. The law expressly provides this route for disputes about the suitability of TA, so we normally expect people to use this route. The court could overturn the Council’s position and make a binding order if it sees fit. Miss X could have sought help with court action, for example, from an advice agency, law centre or solicitor. There is a possible cost implication with court action. However, help with legal costs might be available. Also, the potential cost of court action is not in itself automatically a reason for the Ombudsman to investigate instead. Miss X has health problems and advised us she was awaiting surgery. I also note Miss X asked us to change how we communicated with her, in a way that suggests she might not find dealing with written material straightforward. However, Miss X could have asked the court to make any necessary reasonable adjustments. Overall, I consider it would have been reasonable for Miss X to use her right to take court action. Therefore the restriction in paragraph 2 would prevent me investigating the complaint about suitability even if Miss X has not taken court action.
The alleged effect on Miss X’s and her family’s health is really a claim of personal injury. The courts can consider that, so the restriction in paragraph 3 applies to this point. The possible cost of court action does not in itself automatically mean the Ombudsman should investigate instead. Liability and compensation for personal injury are not straightforward legally. It is more appropriate for the courts than the Ombudsman to decide this. So it would be reasonable for Miss X to go to court if she wants a decision on this point.
Final decision
We will not investigate Miss X’s complaint. The Council has completed the review Miss X was seeking when she initially complained to us. It is reasonable to expect Miss X to have used her right to take court action if she disagreed with the review.
Investigator's decision on behalf of the Ombudsman