Summary: Ms X complains the Council was at fault in the way it dealt with her need to move from her temporary accommodation after the Council decided it was unsuitable for her and her family’s medical needs causing distress. We found fault because the Council has not provided Ms X with suitable temporary accommodation, and we have made appropriate recommendations. So, we have completed our investigation.

The complaint

1. I have called the complainant Ms X. She complains there were failings in the way the Council dealt with her need to move from her temporary accommodation. Ms X says the Council accepted it was unsuitable in April 2022 but failed to take any action to resolve the matter. Ms X says this has caused distress to her and her family as they are living in temporary accommodation unsuitable for their medical needs.
2. Ms X also complains that suitable properties are becoming vacant, and she is bidding on them. But the Council does not allocate them to her despite her remaining in unsuitable temporary accommodation adding to their distress.

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The Ombudsman’s role and powers

3. 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)
4. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. 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

6. I considered the information provided by Ms X and discussed the complaint with her. I made enquiries of the Council and considered its response along with the relevant law and guidance.
7. I had regard to the Ombudsman’s Guidance on Remedies.
8. Ms X 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

Relevant legislation and guidance

Temporary accommodation

9. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities (the Code) sets out councils’ powers and duties to people who are homeless or threatened with homelessness. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need, it has a duty to secure that accommodation is available for their occupation. This is called the main housing duty. (Housing Act 1996, section 193)
10. Temporary accommodation is accommodation provided to homeless applicants as part of a council’s main homelessness duty.
11. 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)
12. Council’s must assess whether accommodation is suitable for each household individually. Whether accommodation is suitable will depend on the relevant needs and circumstances of the homeless person and their household. (Homelessness Code of Guidance, 17.4 and 17.9)
13. 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
14. 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.
15. Certain decisions council’s make about homelessness carry a statutory right of review. The review decision the 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)
16. Councils must complete the review within eight weeks of receiving the review request. This period can be extended but only if the applicant agrees in writing. (Housing Act 1996, sections 202 and 204)
17. The council must advise applicant of their right to appeal to the county court on a point of law, and of the period in which to appeal. Applicants can also appeal if the Council takes more than the prescribed time to complete the review. (Housing Act 1996, sections 202, 203 and 204

Housing Allocations

18. 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))
19. An allocations scheme must give reasonable preference to applicants in the following categories:
• homeless people;
• people in insanitary, overcrowded or unsatisfactory housing;
• people who need to move on medical or welfare grounds;
• people who need to move to avoid hardship to themselves or others;

(Housing Act 1996, section 166A(3))

The Council’s Allocations Policy

20. The Council’s Allocations policy aims to ensure all social/affordable housing is allocated fairly and objectively to those in the greatest housing need. It operates a common housing register for all applicants applying for housing in its area.
21. Applicants need to complete a Choice Homes application form and provide information. Once the Council receives the application it will tell applicants of their date of registration, priority band assessment, priority date and application reference number.
22. Under the Council’s Housing Allocations policy, it assesses and places applicants in one of four priority bands taking into account their housing needs. These are bands 1,2,3 and 4. Band 1 is for those whose situation are most pressing or serious, band 2 contains urgent groups (including urgent medical), band 3 contains most households with a reasonable preference and band 4 may have no reasonable preference.
23. Applicants can apply for priority on medical grounds where an applicant or member of their household suffers with medical conditions and/or their current accommodation does not meet essential needs that arise from their medical condition or disability. The Council will refer the medical assessment form to its medical adviser for advice.

What happened

24. This section sets out the key events in this case and is not intended to be a detailed chronology.

Temporary Accommodation Offer April 2022

25. Ms X has been on the Council’s housing register since 2006. The Council accepted a main housing duty to Ms X in October 2010. It offered Ms X her current property, a 4 bedroomed house as her previous temporary accommodation was requested back by the landlord. Ms X accepted the offer and moved there in April 2022 with her husband, and four children. Two of Ms X’s children have medical conditions.
26. The Council assessed Ms X’s housing application in April 2022 as band 2. This meant either Ms X or a member of her household was suffering from a serious medical condition or disability affected by her current home. The Council said Ms X had a 4 bedroomed need and could bid for 4 bedroomed properties.
27. Ms X complained to the Council about repairs needed at the property. These do not form part of this complaint as we have considered Ms X’s concerns about repairs as a separate complaint.
28. In July 2022 the Council told Ms X it had assessed her housing application and placed her in band 3. This meant either Ms X or a household member suffered with a moderate medical condition which was being adversely affected by the current housing situation to a more minor degree. The Council said Ms X could bid for 4 bedroomed properties.

Housing Banding review and Suitability review request August 2022

29. In August 2022 Ms X requested a review of the Council’s decision to change her banding and a review about the suitability of the property offered in April 2022. The Council considered Ms X was out of time to ask for a suitability review because it was more than 21 days from the offer of accommodation. And she failed to say why the property was unsuitable. The Council said it would consider whether to exercise discretion and carry out a review.
30. In September 2022 the Council decided to accept Ms X’s request for a suitability review of her accommodation and advised her to send in any information. It would then carry out the review by 31 October 2022.
31. An officer reviewed the decision on Ms X’s housing application banding. The officer noted Ms X complained the property only had one bathroom shared between six people. This affected one child’s medical condition and their need to access a toilet. Ms X said the bathroom only had a bath with no shower or shower attachment making it unsafe for another of her children to bathe as they had seizures. The officer considered information sent by Ms X’s GP about the children’s health conditions. But did not consider the issues were sufficient to award Ms X band 2 priority for urgent health need.
32. The officer noted the Council awarded Ms X band 2 in April 2022 and reduced it to band 3 in July 2022. The officer explained the Council wrongly awarded Ms X band 2 because it applied its old housing allocations policy to her application. The Council apologised for the error and upheld the decision to award Ms X band 3 priority for medical need.
33. An officer carried out a suitability review of the accommodation and referred Ms X’s application to the Council’s medical adviser. The reviewing officer noted Ms X did not send information to support her review request. But medical information sent in August 2022 provided recent GP letters about her health and the children’s medical conditions.
34. The Council’s medical adviser did not consider Ms X’s health needs were impacted by her accommodation. But noted recent issues in the children’s health were being investigated further. The medical adviser considered this, and stairs at the current accommodation made it unsuitable due to the risk to the children’s health. The medical adviser recommended Ms X needed accommodation on the ground floor if no lift, any floor with a lift, bathing facilities with a shower attachment, minimal stairs (up to 4) and a house or maisonette was unsuitable in this case.
35. The officer considered the medical adviser’s comments and decided to overturn the decision about suitability. The officer said the accommodation was now unsuitable and the Council should provide Ms X with alternative accommodation according to the medical adviser’s recommendations.
36. The Council told Ms X of its decision in October 2022, and it would look to move her to alternative accommodation. It said the Housing Supply and Acquisitions Team would deal with Ms X’s case and contact her when suitable alternative accommodation had been identified for her. But due to the high demand for accommodation it could not provide a timescale for the move.

Housing banding review request December 2022

37. Ms X asked for a review of her housing banding in December 2022 on her medical priority and sent in further information about her children’s medical conditions. Ms X also complained to the Council about the lack of contact from the temporary accommodation team and her dissatisfaction with her current accommodation.
38. The Council apologised its temporary accommodation team had not responded to her contacts, but the team had been inundated with enquiries. It acknowledged the wait for a move was frustrating but due to the shortage of properties the average wait time was over 19 years for a 4 bedroomed property in the Council’s area. The Council advised Ms X to continue to bid and gave advice on alternatives she could look for in the private rented sector. The Council accepted a service failure in its ability to source alternative accommodation for Ms X and apologised.
39. The Council referred Ms X’s application to its medical adviser in December 2022 who did not consider Ms X’s health conditions had a significant impact onto her functional abilities. The medical adviser noted the children’s medical conditions and considered the accommodation was unsuitable on medical grounds due to the stairs.
40. The Council told Ms X the outcome of her banding review in February 2023 which considered information from Ms X and the medical adviser. It did not consider Ms X met the threshold to be awarded band 2 priority on medical grounds. This was because Ms X’s children were being adequately treated and monitored for their medical conditions by medical professionals.
41. The officer acknowledged the medical adviser considered the property unsuitable on medical grounds for the children due to stairs. But the officer considered the property met the children’s ‘essential needs that arise from their medical condition’. The officer noted Ms X had been bidding regularly and in December 2022 placed a bid for a 4 bedroomed house with internal stairs. The officer considered Ms X felt internal stairs were suitable for her children despite the risk they posed.
42. The officer considered the Council had correctly assessed her application by awarding her band 3 and her circumstances did not warrant a higher priority.

Housing banding request 2023

43. Ms X sent further medical information in March 2023. The Council made a referral to its medical adviser on Ms X’s medical priority. The adviser noted one child now diagnosed with a health condition and given increased medication. But said it was ‘unclear why the current property may be considered unsuitable as stairs within the home would not be considered a matter of medical priority’.
44. In April 2023 the Council told Mrs X it had reassessed her priority for medical in April 2023, but would not be awarding her a higher banding on medical grounds.
45. The Council placed Ms X on its transfer list according to its policy which ranks applicants in order of priority. Ms X has been placed in the ‘SC reviewed unsuitable’ category which is ranked third out of eight categories of priority.
46. Ms X asked the Council for a review of her medical banding. The Council considered the review request and decided to raise Ms X’s banding to Band 2- urgent medical priority. It advised Ms X of the outcome and noted she had placed further bids for properties with internal stairs. The Council said it would bypass Ms X when allocating the properties with stairs as they were unsuitable for her household due to the risk of falls.
47. In May and June 2023 Ms X placed bids for two houses and a flat. The Council told Ms X it had bypassed her for the houses as they had internal stairs and unsuitable for adaptations. It told Ms X it had bypassed her for the flat as it was on a second floor with no lift.

The Council’s comments on the complaint

48. The Council says it has been taking action to procure accommodation for all housing applicants within its borough including partnerships with housing brokerage organisations to increase access to social and private rented housing. It considers this is the most effective way to secure as much accommodation as possible.
49. The Council has a temporary accommodations policy which prioritises applicants based on urgency as well as time and property need. It retains discretion to treat individual cases differently if needed.
50. The Council says it does not routinely make attempts to secure accommodation for individual households. This is because it considers it inefficient, resource intensive and would ultimately reduce the overall number of properties that are secured leading to more households being offered accommodation out of its area. This means it cannot provide records on individual files to identity the efforts to secure accommodation for a particular household above being placed on the transfer list. This approach is set out in the Council’s revised Acquisitions Policy recently considered and approved by Councillors.
51. The Council also says the increase in people becoming homelessness and the lack of housing supply are affecting London Boroughs including Redbridge and the ability to meet housing need. In addition, the demand for homelessness accommodation continues to increase as does the level of need families approaching the Council for assistance have.

My Assessment

Housing banding

52. The Council allocated Ms X band 2 in April 2022 due to an error in applying an old allocations policy. The Council realised its error and changed Ms X’s banding to band 3 in July 2022. The Council was at fault in April 2022 as it should be applying its current allocations policy. However, I consider it caused limited injustice to Ms X who had raised expectations about her banding for three months until the Council corrected the error. The Council apologised to Ms X for the error which was suitable action for it to take.
53. Documents provided from April 2022 show the Council advised Ms X of her right of review of decisions on her housing banding which she exercised. The Council did not consider it should raise Ms X’s banding priority until April 2023. The Ombudsman may not find fault with a council’s assessment of a housing application or a housing applicant’s priority if it has carried this out in line with its published allocations scheme. I do not consider there has been fault in this case.
54. This is because the evidence provided shows from July 2022 the Council assessed Ms X’s application according to its Allocations policy. Officers considered the information provided by Ms X, recommendations from its medical adviser and its allocations policy. But did not consider Ms X’s case was sufficient to increase her banding until April 2023. I am aware Ms X does not agree but the decision not to award band 2 until April 2023 is a decision the Council is entitled to make. As there is no evidence of fault there are no grounds for us to question the merits of the Council’s decision on Ms X’s banding.

Suitability of temporary accommodation

55. Ms X says the property has been unsuitable since April 2022. However, the evidence shows Ms X did not raise any concerns about its suitability until August 2022. I would have expected Ms X to have raised concerns in April 2022 when offered the property, so I do not consider there is any indication the property was unsuitable then.
56. The Council accepted Ms X’s suitability review request in September 2022. The documents show the Council considered advice from its medical adviser and decided that due to new medical information the accommodation was unsuitable. Any different accommodation should not have internal stairs and needed to have a lift to it if not on the ground floor. So, the evidence shows the Council only considered Ms X’s temporary accommodation was unsuitable from October 2022.
57. It is not sufficient for a council to simply say it will find an applicant alternative temporary accommodation and wait for a property to become available. We expect councils to be able to evidence their efforts to secure suitable temporary accommodation at both a strategic and individual level. The Council has explained the action it is taking to increase the supply of properties at a strategic level. But it has not provided evidence to show the action taken to find suitable temporary accommodation for Ms X beyond putting her on its transfer list.
58. We would usually say this is fault and have criticised other Councils for this approach. But in this case, however, the Council has demonstrated it has considered this issue and adopted a structured approach supported by a policy. The agreed policy accepts it is not an efficient use of its resources to seek to procure temporary accommodation at the individual level and it focuses on strategic procurement, informed by the needs of the people who need to move. The policy recognises the relative urgency of different applicants and can accommodate for individual circumstances. The Council has therefore made a considered decision on how best to use its limited resources to address a problem and retain discretion to act outside this on a case-by-case basis.
59. The Council has explained the difficulties in finding temporary accommodation in its area. We are mindful of the difficulties in procuring housing in London and nationally. But the law says temporary accommodation must be suitable, the duty to provide suitable accommodation is immediate and cannot be deferred. This means the delay of nine months so far in moving Ms X to suitable temporary accommodation would be service failure and this is fault.
60. The delay in moving Ms X and her family means they have lived in unsuitable temporary accommodation for nine months so far. Our Guidance on Remedies recommends a payment of £150 - £350 for each month spent in unsuitable temporary accommodation. Ms X raised the issue of repairs needed at the property, but these have been dealt with in a separate complaint and were resolved before the Council considered the property unsuitable.
61. Therefore, the issue has been the suitability of the accommodation due to the children’s medical needs and the risks posed due to internal stairs. The Council decided in October 2022 the temporary accommodation was unsuitable due to internal stairs. And it has now increased Ms X’s housing priority to urgent medical as it considers Ms X, or a member of her household was suffering from a serious medical condition or disability that is affected by her current home.
62. Because of this I therefore consider a payment of £150 a month for living in unsuitable temporary accommodation is appropriate and a proportionate remedy in this case.

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Agreed action

63. To remedy the fault, I have identified in this case the Council will, within one month of my final decision:

• Send a written apology and make a payment of £1,650 to Ms X to acknowledge living in unsuitable accommodation for eleven months from October 2022 to September 2023 (the date of my final decision) due to the Council’s delay in moving them to suitable temporary accommodation.
• The Council should make an ongoing payment of £150 a month to Ms X (from October 2023) to acknowledge she is living in unsuitable temporary accommodation until the Council either makes an offer of suitable temporary accommodation to Ms X or ends its duty, whichever is sooner.

64. The Council should provide us with evidence it has complied with the above actions.

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Final decision

65. I am completing my investigation. There was fault by the Council which caused an injustice to Ms X as she and her family remain in unsuitable temporary accommodation. The Council should take the action identified at paragraph 63 to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman