Summary: There was no fault when the Council provided accommodation for Ms X’s family outside of its area, nor when it failed to make a direct offer of housing. However, there was fault by the Council when it failed to ensure that mould in Ms X’s temporary accommodation was treated in good time. This meant that Ms X lived in a house in need of mould treatment for too long. The Council has agreed to take action to remedy this.

The complaint

1. Ms X complains that the Council:
• failed to make her a direct offer of suitable housing despite agreeing to do this in 2022;
• has kept her and her family in unsuitable accommodation for many years; and
• has not communicated properly with her or her representative, and did not deal with their complaint properly.
2. Ms X says that as a result of the Council’s shortcomings, the family are in temporary accommodation which is not convenient for children’s schools, is overcrowded and has mould, mice infestations, and is in disrepair.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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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What I have and have not investigated

Late complaints and the start date of my investigation

5. In addition, 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)
6. Ms X says that she has been complaining about issues at her flat since she moved there in 2019. She did not complain to the Ombudsman until March 2024. We would have expected her to complain sooner. I have however taken into account that Ms X was pursuing the housing provider and the Council and was hopeful that matters might have been resolved. This means that she did not complaint to us as soon as she might have.
7. I have investigated her complaints from the start of 2022.

The right to challenge suitability in court

8. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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)
9. Once Ms X’s accommodation became temporary accommodation, she had a legal right to ask the Council to review whether the property was suitable. The Council completed a thorough review and told Ms X that it had decided the property was suitable and why. Ms X then had the right to challenge this further in the county court. At that time, Ms X’s solicitors were involved and liaising with the Council about suitability. Ms X did not pursue court action to challenge the suitability.
10. We would usually expect a person to use their legal right to go to court to challenge a council’s decision about suitability of temporary accommodation. As such, I have not investigated whether the Council made sure the property was suitable for Ms X’s family from December 2019.

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How I considered this complaint

11. I considered the information provided by Ms X’s representative and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered all the comments received before issuing this final decision.

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What I found

The law and guidance

12. There are two types of accommodation councils provide to certain homeless applicants: interim accommodation and temporary accommodation.
13. A council must secure accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need. This is called interim accommodation. (Housing Act 1996, section 188)
14. If a council is satisfied an applicant is unintentionally 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)
15. If a council ends its interim accommodation duty, but then goes on to accept the main housing duty, it still has a duty to provide temporary accommodation.
16. Interim and temporary accommodation can be the same physical property. What changes is the legal duty under which a council provides it. This is important because there is a statutory right to review the suitability of temporary accommodation. This then carries a right of appeal to county court on a point of law. There is no statutory right to review the suitability of interim accommodation.
17. 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 accommodation and accommodation provided under the main housing duty. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)
18. Councils must consider the location of accommodation when they consider if it is suitable for the applicant and members of their household. If a council places an applicant outside its district, it must consider, among other matters:
• the distance of the accommodation from the “home” district;
• the significance of any disruption to the education of members of the applicant’s household; and
• the proximity and accessibility to local services, amenities and transport. (Homelessness (Suitability of Accommodation) Order 2012)

The Council’s complaints process and its housing register

19. The Council’s corporate complaints procedure says:
• It will acknowledge the complaint within three working days.
• At stage one, the appropriate line manager to the officer subject of the complaint should attempt to resolve the complaint within 20 working days.
• Staff should not deal with complaints relating to their own practice and must pass such matters to their own manager.
• If the complainant is dissatisfied with the outcome, they can complain to the Ombudsman. Complainants may contact the Council again before going to the Ombudsman but it is not compulsory to do so.
20. The Council is a partner in a local choice-based lettings scheme which enables housing applicants to bid for available properties which are advertised.

What happened and findings

Background

21. Ms X lives with her family of three children and one adult son. One of Ms X’s children is autistic (having been formally diagnosed in 2024). Her family became homeless in 2019, when her eldest son was still at school. The Council moved Ms X to interim accommodation in February 2019, while it assessed her homelessness application. This was in a different borough to the children’s school. Ms X told the Council that the property was not suitable because it was too far from the children’s schools.
22. In December 2019, the Council accepted it owed Ms X a homelessness duty. It said that her interim accommodation was now temporary accommodation. It had not been able to offer her any long-term accommodation. Ms X had bid on available properties on the Council’s choice-based lettings system, but she had not been successful.

The direct offer of housing

23. In May 2022, the Council told Ms X it would make a direct offer of housing. This means the Council could offer Ms X housing when something suitable becomes available. This is alongside the usual choice-based lettings process, but will increase the applicant’s chance of getting rehoused and allows the Council to target housing help to those most in need.
24. In July 2022, the Council offered Ms X a property in another part of the borough but Ms X refused the offer. The Council made this offer informally so that if or when Ms X rejected it, it would not end its housing duty. Had it made the offer formally, it could have ended its housing duty when Ms X rejected the offer and it may not have allowed her to stay in the temporary accommodation.
25. The Council warned Ms X that it could not tell how long it would take for suitable accommodation to become available for a direct offer. The Council has explained that since May 2022 very few suitable properties have become available in the areas Ms X would like to live in. Since the Council told Ms X that it would consider a direct offer, it has only had five properties become available in the wider area and none in the area Ms X wants to live in. The Council has sent me details of the properties and why it offered each to another applicant. I can confirm that the successful applicant either had been waiting longer than Ms X or had particular circumstances that meant they had a higher need for a direct offer.
26. The Council asked Ms X if she would widen her preferred areas to increase her chances of getting a property, but she decided not to do this. Her support network is in a particular area and crucially, her young child is receiving special educational support from his school.
27. There was no fault in the Council’s failure to make a direct offer. It made an offer of housing in good time. This was not in Ms X’s preferred areas and it is understandable that she refused this offer. However, it was still valid for the Council to make this, and had it made this a formal offer, the Council may have legitimately ended its homelessness duty when Ms X refused the property.
28. The Council considered properties as they became available but was unable to offer one to Ms X as there were others with greater need. I appreciate that Ms X is becoming desperate for settled accommodation but there is no fault by the Council.

Suitability of the current accommodation

29. The Council initially placed the family in this property as interim (or emergency) accommodation in February 2019. The property is outside the Council’s area and on the second floor with no lift. Ms X told the Council this was not suitable because it was too far from her son’s school (and he was approaching his GCSEs). She also said that having no lift would be particularly difficult as she had three very young pre-school children and also had mobility issues.
30. The Council considered Ms X’s concerns. It said that although the interim accommodation was not in Bromley, it was only 1.5 miles from the boundary with Ms X’s preferred area. The Council decided that the location was also close enough to the school and could be reached in around 30 minutes by car in the rush hour, or just under an hour by public transport. It was able to show that it had considered specific routes and the rush hour traffic to calculate these journey times.
31. The Council said that it understood the difficulty of having no lift, but Ms X had not sent it any medical information about her mobility that might mean the property is not suitable for her. The Council said it would reconsider this if it Ms X sent it compelling evidence of mobility problems. The Council decided that the interim accommodation was suitable for the family.
32. There was no fault in how the Council decided the interim accommodation was suitable at the point it provided this. It considered the issues that Ms X had raised and addressed each in its responses to her.
33. In December 2019, the Council accepted the main homelessness duty and offered that Ms X stay in the same flat as temporary accommodation. At this stage it reassessed whether the property was suitable. It again decided that the property was suitable, and gave the same reasons as before.
34. Once the property became temporary accommodation provided under the Council’s main housing duty, Ms X had a statutory right to review and then to challenge that further by court action. The Council shared information about its suitability reassessment with Ms X’s solicitors at the time. Ms X did not challenge the Council’s decision further in court and could have done so.

Ms X’s complaints about mould and damp, mouse infestations, and a leak from neighbouring flats

35. However, the Council has a duty to keep the suitability of accommodation under review. In deciding whether a property is suitable, the Council must have regard for its general repair and condition. The Council is also responsible for ensuring the landlord deal with repair issues in temporary accommodation.
36. We would expect the housing provider to deal with repairs in the first instance, but we would expect the Council to intervene where a person contacts it because issues are not resolved or the condition of the property has fallen below standard.
37. The Council has explained that it only sources temporary accommodation from social housing providers so that it can be more confident that standards are met and can more effectively oversee the quality of accommodation.
38. The Council expects the housing provider (the Provider) to deal with repairs, but holds regular liaison meetings with it. The Council reports that in 2022/23 the Provider was not completing around half of routine repairs on time. It worked with the Provider to improve its service and now reports that 97% of emergency repairs, and 96% of routine repairs are completed on time.
39. Ms X says the property has mould and damp on the walls of the living room and bedrooms and there have been various leaks. The ventilation was very poor and some windows could not be opened properly. Ms X’s representative says that the contractors told them that to treat the mould properly, they would need to move out.
40. The Council has sent me both its own records and the Provider’s records. These show that in January 2022, Ms X reported a leak from the property above; mould on the walls of the bedroom, kitchen, and living room; and a mouse infestation. The Council immediately followed this up with the Provider. It said its contractors had tried to get access. The Council clarified what had happened with Ms X and made sure the cancelled appointments were rebooked.
41. By April 2022, the pest control contractor had been to the property twice to treat a mouse infestation. Ms X told the Council a bedroom window could not be properly opened. By June 2022, the window had not been fixed; the pest control contractor had not been back to empty traps and there were still mice; and there was still a leak from above that appeared to be getting into the cavity between the walls of Ms X’s flat. The Provider had not treated the damp and mould.
42. The Provider’s records show that it visited the property in October 2022 and found that there had been a leak from the flat above. There was mould and condensation spots in the bathroom, living room and two bedrooms. There was also a mice infestation.
43. In November 2022, Ms X told the Council that contractors had visited but the issues had not been resolved.
44. In December 2022 having received more reports from Ms X, the Council visited the property for an overall check of the condition and state of repair. The report is detailed and includes photographs and notes. The Council found that:
• one of the bedroom windows had mould around it and did not open and close properly.
• Ms X was only using two of the three bedrooms. One bedroom was used for storage, one used by her adult son, and Ms X and her three younger children shared the main bedroom.
• there had been several leaks from the flat above and the incoming water had caused the plaster to come off the wall. The Provider’s maintenance worker was at the visit and was in the process of sealing the wall and would come back to replaster it.
• The flat has a lot of mould. The living room and bedroom walls have large patches of black mould. Ms X told the Council that the Provider had inspected and photographed the mould but there had been no treatment yet.
• Ms X told the Council that her toilet sometimes leaked and so the maintenance worker proceeded to fix it.
45. The report says that a representative of the Provider had agreed to attend the visit but did not. The Council recommended that the Provider send a professional to investigate and treat the mould.
46. In April 2023, the Provider recorded that there were still persistent leaks from the flat above but its report says that the kitchen and bathroom are in good condition. It says that the main bedroom is in poor condition with mould and is a hazard that needs to be resolved.
47. Around July 2023, the Provider visited to treat the mould and damp. It applied mould wash to the main bedroom walls. However, its notes say that ever room was full of possessions so it could not treat the other rooms.
48. In September 2023, the Council inspected the property again. The Provider had washed the mould from the walls and Ms X had also wiped these down. It found traces of mould on some of the walls. It found that Ms X had clothes drying inside and the flat was cluttered because Ms X had been forced to take her belongings out of storage. Ms X was still only using two of the three bedrooms. The Council said that this would not help with the mould situation.
49. The Council noted that there were sufficient vents and extraction fans for ventilation. It did not make any further recommendations to the Provider to deal with the mould.
50. In November 2023, the Provider recorded that the condition of the property was good throughout, although the third bedroom was still being used for storage.
51. I appreciate that the Council can rely on the Provider to handle repairs and to treat the mould. However the Council remains responsible for repairs to temporary accommodation and should intervene where problems are not resolved. In addition, the Council must keep suitability of the property under review. Whereas disrepair may not make a property unsuitable, it should make sure work is progressed in good time. In this regard, there was fault by the Council.
52. The Council became aware of the mould and damp in very late December 2021. I can see that it immediately contacted the Provider and continued to do so to try to get the work done. But despite inspecting the property itself in December 2022, the mould was not treated until around June or July 2023. This is a long time to go with untreated mould in a property with three young children.
53. I appreciate that when the contactor treated the property, and when the Council inspected the property, it found that Ms X was only using two of the bedrooms, and so one of these was overcrowded. It also found that Ms X had too many belongings stored in the flat and was drying clothes inside without ventilation. I realise that these factors make it hard to treat the property and may encourage mould. I have also taken into account that the Council visited the property to make sure there was sufficient ventilation with vents in the windows and extractor fans.
54. However, after six months (around June 2022) it would have been apparent that the work was not progressing, and then the Council should have done more to intervene. It also has not shown that it reviewed whether the property was still suitable for Ms X and her family despite the mould not being treated. The Council’s shortcomings meant that Ms X stayed in a property with untreated mould for too long.
55. Ms X also reported a leak in December 2021. This took some time to resolve. However, I recognise that it is difficult when the source is unknown and the Provider did not have access to the surrounding properties. Although, the leak took a long time to resolve, I am not persuaded the Council could have done more to progress this.
56. Lastly, Ms X reported mice infestations in December 2021, and later that the pest control work done was not effective. Ms X’s representative tells me there is a current mice infestation. However, there is no mention of infestations in the correspondence after around July 2022. It is likely that these infestations are intermittent. I can see that these are distressing, especially with young children. However, the Provider has sent a pest control specialist and the infestations have been largely dealt with as they arise. As such there is no basis for the Council to intervene.

The Council’s complaint handling and its communications

57. Ms X’s representative complained to the Council on 13 December 2023. She set out the problems with the temporary accommodation, that the Council had not honoured its promise to make a direct offer of housing, and had not often replied to their emails about this. The Council did not respond so she chased it for an answer to her complaint on 22 December. The Council confirmed that it had received the complaint and passed it to its complaints service. The Council acknowledged the complaint on 3 January 2024.
58. The officer who had made the promise of a direct offer dealt with the complaint as he was also the service manager. The Council said:
• It had dealt with the repair issues by escalating these to the managing agents who have worked with Ms X to resolve the issues.
• If Ms X finds that the repair issues are not resolved, she should complain to the Provider.
• It is doing all it can to facilitate a direct offer of settled accommodation for Ms X and her family, but there is immense pressure on housing and on the Council and fewer properties are becoming available.
59. Ms X was not satisfied with the Council’s response, including that the same officer that she had complained about had responded to the complaint. Her representative asked the Council to escalate the complaint. The Council said it had nothing to add and she could complain to the Ombudsman.
60. I have considered whether the same officer should have responded to Ms X’s complaint. The Council says the complaint was not about the actions or behaviour of that one officer, but rather about the Council’s decisions and the service she had received. The Council has explained that it considered the complaint and its policy and decided that as this was a complaint about the Council and not the officer, it was appropriate for the same office to deal with the complaint.
61. The Council has taken into account its policy, and explained its approach. There is no fault by the Council in its complaint handling.
62. I have considered the Council’s communication with Ms X and her representative more generally. I can see that there were occasional delays and less communication after the Council had visited in September 2023. However, by this stage there was no updates for Ms X regarding the direct offer and so any shortcomings in communication did not have a significant impact on Ms X or her representative.

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Agreed action

63. The Council will within one month of this decision:
• Apologise to Ms X for the fault identified, We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
• Make a symbolic payment of £1800 to Ms X in recognition that the Council should have ensured the mould was treated sooner.
• Share this decision with relevant staff and remind them that the Council remains responsible for repairs in temporary accommodation.
64. The Council should provide us with evidence it has complied with the above actions.

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Final decision

65. I have completed my investigation. There was fault by the Council causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman