Summary: The Council failed to offer Mrs B suitable temporary accommodation after it accepted it owed her the main housing duty. The Council has agreed to apologise, make a payment to Mrs B, offer suitable temporary accommodation, and take action to prevent similar failings in future.

The complaint

1. Mrs B complains that her family is living in significantly overcrowded accommodation and the Council is not doing enough to improve their housing situation. The family of eight has been assessed as needing five bedrooms but they are living in a two-bedroom flat. Mrs B says her family is trapped living in significantly overcrowded conditions because the Council will only allow her to bid on five-bedroom properties which rarely become available.

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What I have investigated

2. I have investigated matters since Mrs B complained to the Council in late 2020. I have not investigated earlier matters for the reasons explained in the last section of this statement.

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The Ombudsman’s role and powers

3. 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)
4. Historical allegations are where so much time has elapsed since the alleged fault that an investigation is likely to be impeded by the passage of time. We will not investigate historical allegations unless we are confident that there is a realistic prospect of reaching a sound, fair, and meaningful decision, and we are satisfied that the complainant could not reasonably be expected to have complained sooner.
5. 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)
6. We cannot question whether an organisation’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)
7. 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

8. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Housing allocations

9. 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’s allocations scheme

10. The Council operates a choice-based lettings scheme. Housing applicants can bid on available properties.
11. The Council places applicants who qualify to join the housing register in a priority band from Band 1 (highest priority) to Band 4 (lowest priority). This priority is the first factor the Council uses to allocate a property.
12. So far as is relevant to this complaint, the Council awards Band 1 where the applicant’s household is lacking three bedrooms in their current accommodation.
13. So far as is relevant to this complaint, the Council awards Band 2 where:
• the applicant household is lacking two bedrooms in their current accommodation.
• the applicant is homeless and owed the main duty because they have been assessed as being in priority need and unintentionally homeless.

Homelessness

14. People can be homeless if their own housing is not reasonable for them to live in because of overcrowding.
15. If a council is satisfied someone is eligible, homeless, in priority need and unintentionally homeless, it will owe them the main housing duty. (Housing Act 1996, section 193)
16. Under the main housing duty, housing authorities must ensure that suitable accommodation is available for the applicant and their household until the duty is brought to an end, usually through the offer of a settled home. (Homelessness Code of Guidance 17)

The housing health and safety rating system (HHSRS)

17. The HHSRS is the risk assessment approach by which a local authority assesses hazards to health and safety in dwellings, and on which enforcement action can be taken if necessary. Councils have a duty to deal with hazards which are classed as 'Category 1' (serious) under the system, and discretionary powers to deal with 'Category 2' (less serious) hazards.

Overview

18. Mrs B has been living in a council owned two-bedroom flat since 2005.
19. Mrs B applied to join the Council’s housing register in 2011. At the time, she was living in the flat with her husband and five children. The Council decided that the accommodation was too small for the family, and it accepted Mrs B on to its housing register. Mrs B has been bidding for a larger property since then.
20. The Council assessed the family’s circumstances in July 2013 and decided that the level of overcrowding was a category 1 hazard. It accepted the main housing duty to Mrs B.
21. Mrs B has since had another child. She remains living in the two-bedroom flat with her husband, three sons aged 8, 12 and 15 years old, and her three daughters, aged 10, 13 and 16 years old.
22. In June 2021, an advice centre emailed the Council’s temporary accommodation team on Mrs B’s behalf. It said that Mrs B had called the Council desperately asking to be moved to larger temporary accommodation.
23. In the Council’s response, it advised Mrs B to try bidding on flats as well as houses and to consider the private rented sector.
24. After Mrs B’s youngest daughter turned 10 years old in June 2021, the Council increased Mrs B’s housing priority from Band 2 to Band 1. It decided the family were lacking three bedrooms and needed a five-bedroom property.
25. Mrs B complained to the Council about the time it was taking for them to be rehoused. The Council explained that five-bedroom properties rarely became available. Mrs B then asked if she could bid on three-bedroom properties instead.
26. In the Council’s response, it said that it would be breaking the law for it to knowingly place Mrs B and her family into a permanent property which does not meet her needs. It said that changing her bedroom allocation would leave the Council legally liable and would go against the Council’s Housing Allocation Scheme.

Analysis

27. The Council accepted the main housing duty to Mrs B in 2013. Under that duty, councils must ensure suitable accommodation is available for the applicant and their household. I have not investigated whether the Council complied with this duty in 2013 for the reasons explained in the last section of this statement.
28. The Council did not consider the request Mrs B made in June 2021 for temporary accommodation. This was fault. If there had been no fault by the Council here, it would have considered Mrs B’s request and offered her suitable temporary accommodation. It would also have explained the consequences of accepting temporary accommodation, such as the possibility that the Council could discharge its duty by placing the family in accommodation in the private sector, or accommodation outside of their preferred areas. By failing to consider Mrs B’s request, she lost the opportunity to move to suitable temporary accommodation.
29. In a letter to Mrs B, the Council said that it would be breaking the law for it to knowingly place Mrs B and her family into a permanent property which does not meet her needs. This contradicts other information provided by the Council, which is that applicants will be able to bid on properties with less bedrooms than they need when the new allocations scheme is implemented later this year.
30. The current allocations scheme says that properties will be allocated to those applicants who need that size and type of property. However, councils should consider whether there are circumstances that justify departing from usual policy to prevent injustice to applicants whose circumstances place them at a disadvantage.
31. Mrs B is disadvantaged because larger properties rarely become available and so she is likely to remain in significantly overcrowded accommodation for far longer than smaller families who are lacking the same number of bedrooms. Her housing situation would be significantly improved if she were able to bid on smaller properties.
32. The Council has considered whether there are any exceptional circumstances in Mrs B’s case, and so it has not fettered its discretion. It has decided that Mrs B’s circumstances do not meet the exceptional circumstances criteria included in the allocations scheme. The Council also says there would be risks associated with applying discretion because it is only able to apply one size of bedroom eligibility. It says that Mrs B has recently achieved 4th and 5th bid positions on five-bedroom properties, and if it changed Mrs B’s bedroom need to four, she would be unable to bid on five-bedroom properties. While more four-bedroom properties become available, there are also more applicants waiting for a four-bedroom property. The Ombudsman cannot criticise a decision which has been made without fault. I have found no evidence of fault in the way the Council has decided not to exercise discretion to depart from its usual policy.

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Agreed action

33. Within four weeks, the Council will:
• Apologise to Mrs B and make a payment of £200 to recognise the distress she experienced and the avoidable time and trouble she has been put to as a result of the failings identified in this case.
• Make a payment of £2200. This equates to £200 for each month for the period June 2021 to May 2022 when the family has been living in unsuitable accommodation.
• Offer the family suitable temporary accommodation, and explain the consequences of accepting such accommodation
34. Within twelve weeks, the Council will develop procedures for offering temporary accommodation where it has accepted the main housing duty because the applicant is living in unsuitable accommodation. It should ensure applicants are aware that the Council has an immediate duty to provide suitable temporary accommodation.

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Final decision

35. I have completed my investigation and uphold Mrs B’s complaint. There was fault which caused injustice to Mrs B. The action the Council has agreed to take is sufficient to remedy that injustice.

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Parts of the complaint that I did not investigate

36. When the Council accepted the main housing duty to Mrs B in July 2013, it had a duty to ensure that suitable accommodation was available for Mrs B and her household. I have decided not to investigate whether the Council offered Mrs B suitable accommodation in 2013 because I am not confident that there is a realistic prospect of reaching a sound, fair, and meaningful decision due to the passage of time. It is often the case that applicants choose to remain in overcrowded social housing while bidding for larger properties, so that the Council does not place them in accommodation in the private sector.

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Investigator's decision on behalf of the Ombudsman