Summary: Ms B complained that the Council has failed to provide her with suitable temporary accommodation and failed to carry out a review of the suitability of her current hostel accommodation. We found fault with the actions of the Council. The Council has agreed to provide Ms B with suitable temporary accommodation, pay her £2,600 and review its procurement process to increase the supply of different types of temporary accommodation.

The complaint

1. Ms B complained that the London Borough of Lambeth (the Council) failed to provide her with suitable temporary accommodation. She has been in hostel accommodation with shared facilities since July 2018. It also failed to carry out a review of the suitability of the accommodation when requested by Ms B in her stage one and stage two complaints or consider her medical needs. This situation has caused Ms B and her son significant and ongoing distress and inconvenience.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Homelessness

6. 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)
7. 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.  This duty applies to interim and temporary accommodation. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)
8. In reaching a decision on suitability the Council has to consider the space and arrangement of the accommodation and the specific needs of the applicant and any household members due to a medical condition or disability.
9. The duty to provide suitable accommodation is immediate, non-deferrable, and unqualified. (Elkundi, R (On the Application Of) v Birmingham City Council [2022] EWCA Civ 601)

Review procedure

10. Applicants can request a review of the suitability of their accommodation. This is an ongoing right. Councils must complete reviews with eight weeks of the date of the request and provide a decision in writing with details of the right to appeal to the county court on a point of law.

LGSCO Unsuitable Temporary Accommodation: Guide for Practitioners (May 2023)

11. We do not consider that simply adding an applicant to a ‘Transfer List’ and waiting for a suitable property to become available is sufficient for a council to demonstrate how it is meeting its duty to provide suitable temporary accommodation. This is in line with the court’s decision that putting applicants who are owed the section 193(2) duty, and who are in unsuitable accommodation, on a waiting list for temporary accommodation is not a lawful means of fulfilling the unqualified and immediate duty to secure suitable accommodation for their occupation.” (Elkundi & Ors, R (On the Application Of) v Birmingham City Council [2021] EWHC 1024 (Admin) 308)
12. We recognise that a list or database is useful. However, we may be critical of councils who prioritise applicants for rehousing by time spent on such a list without regard to the specifics of their case. Furthermore, any such list should take care to distinguish between those in accommodation that is unsuitable now and applicants whom the council considers will need to move in the short or medium term.
13. We encourage councils to maintain a policy or procedure setting out how they allocate temporary accommodation.

What happened

14. Ms B has been living in a council-owned hostel with her son since April 2018. Her son is now 11 years old. She shares a first-floor bedroom with her son, and they share a ground-floor bathroom and second floor kitchen facilities with other residents in the building. There is no lift in the building. The Council accepted the main housing duty towards her in July 2018.
15. Ms B has medical conditions which affect her mobility, and she finds it difficult to use stairs. She also found it difficult to use the bathroom and cooking facilities because she had to take her son with her.
16. In September 2019 she requested to move to alternative temporary accommodation. The Council carried out a medical assessment in November 2019 and concluded she had no medical needs. The medical assessor concluded the accommodation was ‘tolerable if not ideal’.
17. In February 2020 Ms B requested a review of the medical assessment decision. The Council reassessed her application and awarded her Band C priority due to having a less urgent medical need to move. It recommended ground floor or lifted accommodation.
18. On 5 May 2020 the Council offered Ms B alternative temporary accommodation: a two-bedroom self-contained property on the third floor in a different area of London. Ms B refused as it was not suitable for her medical needs. On 21 May 2022 the Council offered her a transfer to a ground floor hostel unit. Ms B refused as she needed self-contained accommodation.
19. In November 2022 Ms B complained to the Council that she was still in the hostel accommodation, and it was unsuitable. She requested a review of the suitability.
20. The Council responded at stage one of its complaints procedure saying that her accommodation was suitable but not ideal. It said it had become increasingly difficult to find temporary accommodation units within or close to Lambeth and a significant proportion of temporary facilities were hostels with shared facilities. It said she had been awarded Band B on the housing register. It offered her the option of securing accommodation in the private sector as a quicker way of finding more suitable accommodation.
21. Ms B queried the response and the Council explained

“The comments regarding your current accommodation not being ideal means that I accept it is not perfect.  It would better if we could offer you a ground floor self-contained property within Lambeth.”

22. It also said the suitability of her accommodation had to be considered in the context of the prevailing housing circumstances. It said the Council had decided in July 2018 that the accommodation was suitable, and Ms B had not requested a review at the time.
23. Ms B escalated her complaint to stage two and again requested a review of the suitability of her accommodation.
24. The Council responded on 26 January 2023. It said the Council would put her on the ‘Priority Transfer List’ and make further offers of accommodation to her. It said the list was long and it could not give a timeframe. It apologised for any inconvenience and stress caused to her.
25. Ms B complained to us.

Analysis

Suitability review

26. Despite two clear requests from Ms B to the Council, in November and December 2022, to review the suitability of the accommodation, it failed to do so. This was fault. Its first response was to rely on a suitability decision made in July 2018. That was not a valid reason to refuse to carry out a review, as the duty to provide suitable accommodation is ongoing and Ms B had received medical priority in the intervening five years and her son had grown older.
27. Its second response in January 2023 was to place her on its Priority Transfer List and agree to make offers of accommodation to her at some unspecified point in the future. It drew a distinction between those people who need to be transferred and those who would benefit from being transferred (Ms B). However, by placing Ms B on this list the Council would appear to be acknowledging that her accommodation is unsuitable, otherwise why not simply leave her in Band B on the housing register? Given the pressures, which the Council has highlighted, on temporary accommodation in the area, it seems unlikely that it would place applicants on the transfer list unless they needed to move.
28. The Council should have carried out a review of suitability within 56 days and provided Ms B with a written decision with reasons, and a right of appeal.

Suitability decision

29. As the Council has not provided Ms B with a formal decision saying her accommodation is unsuitable with a right of appeal, I have exercised discretion to consider the case.
30. Looking at the established facts, the Council has decided Ms B is living in overcrowded accommodation (placing her in band B) and that she has some medical needs requiring ground floor or lifted accommodation. It has also placed her on the Priority Transfer List indicating that she needs to move to more suitable accommodation. So, I have concluded that her current accommodation is not suitable. In reaching this view, I have also considered the arrangement of the accommodation and the fact that Ms B and her son have to share kitchen, bathroom and toilet facilities with other households on different floors of the hostel.
31. The Council argued in response to an earlier draft decision that it was entitled to take into account the prevailing housing circumstances when reaching a decision on suitability by virtue of paragraphs 6.25 to 6.27 of the Code of Guidance on homelessness which states that when determining whether it is reasonable for a person to continue to occupy accommodation (my emphasis), housing authorities may have regard to the general housing circumstances prevailing in the housing authority’s district: it does not have access to a sufficient supply of accommodation to meet the level of housing needs within the borough with over 3500 households in temporary accommodation and 30,000 on the housing register.
32. The Council also said that the courts had found that even when accommodation is statutorily overcrowded a Council may be entitled to find that it is reasonable to continue to occupy (my emphasis), taking into consideration the general housing circumstances prevailing in the district.
33. However, the test of whether accommodation is reasonable to occupy flows from sections 175 and 177 of the Housing Act 1996 which defines whether a person is homeless or threatened with homelessness. This is an entirely separate test to the duty to provide suitable accommodation which flows from sections 206 and 210 of the Housing Act 1996. As the guidance says, under these sections a council should consider the space and arrangements of the accommodation and any medical needs the household has, in deciding whether accommodation is suitable.
34. So, I consider the Council has used the wrong test to defend its view that Ms B’s accommodation is suitable. This is fault.

Priority Transfer List

35. As noted above the Council has placed Ms B on its Priority Transfer List, which supports my view that her accommodation is unsuitable. If a council has decided the applicant’s current accommodation is unsuitable, I consider it is in breach of its statutory duty from that point until it provides suitable accommodation, even where that delay is due to external factors beyond the Council’s control such as a shortage of temporary accommodation. The fact that a council has not met the statutory duty to provide suitable temporary accommodation is sufficient to make a finding of service failure.
36. The operation of the Priority Transfer List is unclear, and the Council has not provided a policy or procedure explaining how the list operates, beyond prioritising cases where safety or protected characteristics such as disability are a major factor. This is fault.

Injustice

37. Ms B has been in unsuitable accommodation for a long period and the Council has exacerbated the situation since November 2022 by not carrying out a formal review of the suitability of the accommodation and allowing her to appeal further to the county court. She has also been caused distress and uncertainty by the Council’s refusal to carry out a review or provide her with suitable accommodation.
38. I note we issued a public interest report in March 2023 regarding another complaint about homelessness. As part of the remedy the Council agreed to commission an independent external review of its homelessness service and produce an action plan of how the Council will ensure it is able to meet its statutory duties to homeless applicants.

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Agreed action

39. In recognition of the injustice caused to Ms B, I recommended the Council:
40. within one month of the date of my final decision:
• makes an offer to Ms B of suitable alternative temporary accommodation;
• pays her £2,600 for the time she has spent in unsuitable accommodation since she requested a suitability review in November 2022; and
41. within three months:
• produces a policy or procedure explaining how the priority transfer list works, including the criteria for being placed on the list, the criteria for priority within the list and how temporary accommodation is allocated within the list.
42. I also recommended the Council within three months of the date of my final decision carries out a review of its procurement of temporary accommodation and identifies ways of increasing the supply of different types of temporary accommodation suitable for families. This could form part of the independent external review referred to in paragraph 28.
43. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

44. I consider this is a proportionate way of putting right the injustice caused to Ms B and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman