Summary: Mr X complained the Council failed to take action about the unsuitable conditions of the temporary accommodation he lived in with his children since 2018. Mr X also complained about the length of time he was on the housing register. The Council delayed in reviewing the suitability of Mr X’s temporary accommodation and failed to act once it had decided the accommodation was unsuitable. There was also fault in how the Council reviewed Mr X’s priority on the housing register. The Council agreed to pay a total of Mr X £12,050 to recognise the injustice caused to his family.

The complaint

1. Mr X complained the Council failed to take action about the unsuitable conditions of the temporary accommodation he lived in with his children since 2018. Mr X also complained about the length of time he was on the housing register. Mr X stated this caused the family distress and impacted on his children’s health conditions due to the damp and mouldy conditions.

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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. We cannot question whether a council’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)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. If we are satisfied with a council’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 read the documents provided by Mr X and I discussed the complaint with him on the telephone.
7. I read the documents provided by the Council in response to my enquiries.
8. Mr 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

Homelessness

9. Someone is threatened with homelessness if, when asking for assistance from the Council before 3 April 2018, he or she is likely to become homeless within 28 days. (Housing Act 1996, section 175(4))
10. If a council is satisfied someone is eligible, homeless, in priority need and unintentionally homeless it will owe them the main homelessness duty. Generally, councils carry out the duty by arranging temporary accommodation until it makes a suitable offer of social housing or private rented accommodation. (Housing Act 1996, section 193)
11. The law says 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. The duty on a council to provide suitable accommodation cannot be deferred or delayed. (Elkundi & Ors v Birmingham City Council (May 2021))
13. Applicants may request a review of the suitability of temporary accommodation provided once the Council has accepted the main homelessness duty within 21 days of being notified of the offer of temporary accommodation. (Housing Act 1996, section 202)
14. Councils have a duty to keep the suitability of accommodation under review. 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)

Housing allocations

15. 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))
16. 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; and
• people who need to move to avoid hardship to themselves or others;
  (Housing Act 1996, section 166A(3))

Council’s policy

17. The Council’s policy sets out the structure of the priority banding it uses for housing allocations. It states it can award an additional preference alongside the reasonable preference set out in paragraph 16. Band 1 is the highest priority and Band 4 the lowest.
18. There are four bands in the Council’s banding system:
• Band 1 - reasonable preference and additional preference (very urgent need to move);
• Band 2 - need to move and a reasonable preference;
• Band 3 - overcrowded by one bedroom; and
• Band 4 - want to move but no reasonable preference.
19. The Council’s policy states it will make a Band 1 award of reasonable preference with additional preference where someone is in unsatisfactory accommodation.
20. The Council will review applications with Band 1 and Band 2 awards after 12 months to ensure the banding is still correct.

What happened

Temporary accommodation

21. In July 2017 Mr X made a homeless application to the Council as he was going to be evicted from the property he lived in with his wife and seven children. Mr X needed five bedrooms according to the ages and genders of his children.
22. In August 2017 the Council accepted it had a full duty to secure accommodation for Mr X and his family. It wrote to him and told him of its decision and set out how it would meet that duty. It also told Mr X about his right of review of that decision. It said it would make one offer of suitable accommodation. It said Mr X must apply to join the housing register to be considered for social housing. At this point Mr X was still able to live in his current home.
23. Mr X contacted the Council again in December 2017 and stated he had received his eviction notification and needed temporary accommodation.
24. In January 2018 the Council offered Mr X accommodation in a bed and breakfast (B&B) for 28 days as there were no four or five bed houses available. The Council said it emailed Mr X an offer letter. Mr X accepted the B&B accommodation.
25. In February 2018 the Council said it emailed a letter to the B&B Mr X was staying at and offered him a four bedroom house as temporary accommodation. On the same day the Council inspected the house and decided it needed repairs. The Council cancelled the letting and the family did not move in.
26. Eight days later the Council phoned Mr X and his family and arranged for them to move into the house as it had completed the repairs.
27. In March 2018, one week after Mr X moved into the property he contacted the Council and told it the roof of the house was leaking and it was affecting three bedrooms.
28. The Council records show a week after Mr X reported the leak it created the offer letter for the property Mr X was already living in. There is no record of the letter being sent to Mr X and Mr X states he does not remember receiving it.
29. The records show Mr X contacted the Council 10 times between March and December 2018. He said the roof was leaking, the shower was leaking, and there was water damage and mould on the walls and ceilings. In July 2018 Mr X said his family could not continue living in the property and he was concerned for his children’s safety and wellbeing.
30. The Council’s records show that it raised four repair jobs for Mr X’s house between May and August 2018. The records say the work was completed.
31. In March 2019 Mr X contacted the Council again about the water damage and the leak in the property.
32. In April 2019 Mr X complained to the Council about its response to his complaints. The Council records shows it arranged to inspect the property. There is no record of the Council inspecting the house. It raised a repair job for the leaking shower in April 2019. The record says the work was completed.
33. Between June and December 2019 Mr X contacted the Council five more times about the same matters. The Council raised three repair jobs between July and August 2019 and one in December 2019. The record says they were completed.
34. In January 2020 the Council recorded a job to ‘repair roof leak’ and for the damp and mould growth. The record says it was completed.
35. In January 2020 Mr X contacted the Council about the leak and said the house was infested with mice. He said pest control had already visited and said poison would not be effective because there were holes in the fabric of the house.
36. In February 2020 Mr X asked the Council to inspect the property. He said the conditions were causing the family physical and psychological hardship. The Council recorded it as a suitability review request.
37. In March 2020 the country was subject to the first COVID-19 lockdown. During this time the Council and its contractors could not do any home visits.
38. In April and July 2020, the Council raised 2 repair jobs in relation to the leak. The record says they were completed.
39. The COVID-19 lockdown was lifted in June 2020.
40. In August 2020 a Council Officer visited Mr X’s house. They inspected the rooms, took pictures of the condition of the property including the damp, mould and holes in the floorboards and frame of an external door.
41. In September 2020 Mr X made a formal complaint to the Council. He said the temporary accommodation was not suitable and multiple repairs had not improved it. He said the family did not feel like humans living in the property and asked if they could be moved to alternative temporary accommodation.
42. At the end of September 2020, the Council responded to Mr X. It said it still needed to do the damp repair work. It said it needed to treat it for mould and then plaster the ceiling. It did not say when it would finish the work.
43. On the same day Mr X responded. He said the leak and pest issue were still there. Mr X asked the Council to inspect the property as it was unsuitable.
44. In November 2020 a Council Officer inspected Mr X’s house. It raised 10 repair jobs for the leaks, the damage to the walls and ceilings, mould treatments and holes in the building. Mr X contacted the Council twice more in November about the leak and said he was worried the ceiling would fall in as the leak was getting worse.
45. In December 2020 the Council responded to Mr X at stage 2. It said all the repairs would be completed in November and December. It told Mr X he could complain to us if he was dissatisfied.
46. Mr X was dissatisfied with the Council’s response and complained again to the Council about the length of time his family had lived with leaks and mould.
47. In January 2021 Mr X reported the bedroom ceilings were leaking, the walls were wet and the mould had returned. Between February 2021 and April 2021 Mr X contacted the Council seven times and it raised five repair jobs. It marked all of them as completed.
48. At the end of April 2021, the Council reviewed the suitability of Mr X’s temporary accommodation. The Council considered Mr X’s contacts and the repeated ineffective repairs. It said the review was delayed in the hope that repairs would make the accommodation suitable. It said Mr X and his family had been living in accommodation with damp and mould. It concluded the accommodation was unsuitable.
49. The Council wrote to Mr X and told him of its decision. It said it would provide him with suitable temporary accommodation as soon as possible. It said it could not give a timescale as there was high demand, particularly for larger households.
50. In May 2021 Mr X complained to the Council. He said he had been raising the issue for three years and had been ignored. He said he did not want to be moved into another temporary accommodation and be in the same situation again.
51. The Council responded to Mr X in June 2021 and offered tips on bidding on properties on the Council’s property website.
52. The records show when Mr X contacted the Council it often redirected him between different teams or departments. Mr X was redirected to his landlord, Temporary Accommodation Property Services, Housing Options and the Repairs team.
53. Mr X told me he regularly contacted the Council about the repairs. It often told him a repair had been completed when he says no workmen had been to his house.
54. In response to my enquiries the Council stated since it had decided that Mr X’s accommodation was unsuitable it had provided him with tips on tactical bidding and advised him to explore other housing options.

Housing register

55. In October 2017 the Council approved Mr X’s application to join the housing register. It awarded him Band 2 as a homeless priority and the registration date as July 2017. It stated Mr X was eligible to bid on 5-bedroom properties.
56. In March 2018 Mr X completed a change of circumstances form. The Council reviewed it and awarded an additional Band 3 priority for overcrowding.
57. Mr X completed a change of circumstances form in June 2019. The Council reviewed it in February 2020 but did not amend the award.
58. Mr X submitted change of circumstance forms in October 2020, November 2020 and July 2021. In the July 2021 form Mr X did not include his eldest child, who was an adult by that time. Mr X requested the Council reconsider his banding based on hardship and insanitary and unfit conditions.
59. The Council considered the application in August 2021 and changed the banding. It removed Band 3 for overcrowding and said Mr X could bid on 4 bedroom properties. It said the award for insanitary and unfit conditions only applied to tenants who were privately renting.
60. In February 2022 the Council reconsidered Mr X’s application which included Mr X’s oldest child. It reinstated the additional banding for overcrowding and maintained the Band 2 homeless priority. It told Mr X he could bid on 5 bedroom properties.
61. In response to my enquiries the Council stated it had let three, 5 bedroom properties between September 2021 and March 2022. It stated there were 640 households on the housing register waiting for a 5 bedroom property. It said the demand for larger housing far outstripped the available housing.

Complaint to the Council

62. In January 2021 Mr X complained to the Council about the length of time his housing application was taking.
63. In May 2021 the Council responded to Mr X’s complaint. It apologised for the delay and said it was considering applications in date order.
64. In August 2021 Mr X escalated his complaint to stage 2. The Council responded and said there were very few 5 bedroom homes and it could not confirm how long it may take. It provided information on other options for Mr X such as private rented properties. It directed Mr X to us if he remained dissatisfied.
65. In September 2021 Mr X complained again to the Council. He said it had failed in its duty of care because it had decided his property was unsuitable, yet he was still living there. The Council responded and said it would only move the family to another temporary property and the unsuitability was being addressed by the repairs team. It directed Mr X to complain to us.
66. In September 2021 Mr X complained to us.

My findings

Temporary accommodation fault

67. The Council provided Mr X and his family with temporary accommodation because it accepted it had a duty to accommodate them.
68. The Council should have provided Mr X with his right of review about the suitability of his accommodation when he moved into the house. I have not seen any evidence the Council gave him that information and that was fault.
69. Mr X has consistently complained to the Council about the condition of his house since March 2018. The Council made many attempts to fix the problems, however it is clear the repairs did not work.
70. Mr X began complaining to the Council about the condition of the property in March 2018. In July 2018 Mr X said his family could not continue to live in the property. The Council should have recognised this as a suitability review request. It did not and it missed several other opportunities to identify the unsuitability of the accommodation earlier and that was fault.
71. When the Council recognised Mr X’s review request in March 2020 it should have completed the review within eight weeks. It did not and I have seen no evidence it agreed in writing with Mr X to extend the review period. It took 14 months to complete the review. Although it was unable to visit for 3 months due to COVID-19 restrictions it took 12 months longer than the legislation allows and that was fault.
72. Case law states the Council’s duty to provide suitable accommodation cannot be deferred or delayed. When the Council decided Mr X’s house was unsuitable it should have taken immediate action to provide suitable accommodation. I have not seen any evidence the Council took action to find alternative accommodation. The Council was in breach of its statutory duty under section 206 of the Housing Act and that was fault. Mr X and his family were still living in the property at the time of this decision which was 13 months after the Council decided the property was unsuitable.
73. All of the above is fault. The combined faults resulted in Mr X, his wife and seven children living in a house that was damp, mouldy and infested with mice for 47 months. This caused all members of the family distress. Mr X reported the damp and mould noted in the Council’s review decision in July 2018. Therefore, it is likely, on balance, the accommodation was unsuitable in July 2018.
74. Mr X made regular and repeated contact with the Council over 42 months between March 2018 and September 2021 and made four official complaints. The Council redirected his contacts between several different departments on many occasions without making an adequate resolution. That was fault and caused Mr X frustration and confusion.
75. In response to my draft decision the Council agreed to offer Mr X alternative suitable accommodation by 31 July 2022, and if it had not it would pay Mr X £250 every month he and his family remain in unsuitable accommodation.

Housing register

76. Due to the high demand for properties, it is not unusual for applicants to remain on the waiting list for a number of years until they are able to successfully bid on a property. A long waiting list for housing is not in itself a fault or service failure.
77. Mr X has been on the housing register since July 2017. Mr X’s application should have been reviewed yearly in line with the Council’s policy. The Council reviewed Mr X’s banding sporadically when Mr X completed a change of circumstances form. There are no records of what the Council considered when making its decisions on Mr X’s banding.
78. When it reviewed Mr X’s application in August 2021 and February 2022 it should have considered whether Mr X’s temporary accommodation was unsatisfactory. There are no records to show how the Council considered Mr X’s temporary accommodation when it awarded his banding.
79. The sporadic reviews and lack of clear records is fault and leaves uncertainty about whether the Council properly considered Mr X’s application and priority banding.
80. When Mr X completed a change of circumstances form in July 2021 he did not include his eldest child. As a result, the Council removed the additional preference banding and told Mr X he could only bid on 4 bedroom properties and not 5 bedroom properties. The Council was acting on the information Mr X had provided and there was no fault in it amending the banding and bedroom number in response.

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Agreed action

81. Within one month the Council agreed to:
• Apologise to Mr X and his family for the distress caused to them by its failure to recognise and act on his request for a suitability review, and for the Council’s failure to act when it decided their temporary accommodation was unsuitable;
• Pay Mr X £11,750 to recognise the distress caused to the family when they lived in unsuitable accommodation between July 2018 and June 2022 (£250 a month for 47 months);
• Create an action plan to move the family to suitable temporary accommodation until permanent accommodation can be found. The Council agreed to provide us with monthly updates of the progress of that plan;
• Pay Mr X £300 to recognise the time and trouble he had to go to report the issues with his property and request inspections and reviews over 42 months; and
• Reconsider Mr X’s Banding with reference to whether his temporary accommodation is unsatisfactory as outlined in paragraph 19. If the Council awards Band 1 it will backdate it to April 2021 when it completed the review.
82. The Council agreed to offer Mr X suitable alternative accommodation by 31 July 2022. If it has not done so by that date, it will pay Mr X a further £250 every month for each month until it offers him and his family suitable alternative accommodation. It is open to Mr X to complain again about any new events following the conclusion of this case.
83. Within two months the Council agreed to:
• remind relevant staff of the importance of recognising suitability review requests and completing them in line with the guidance set by the legislation; and
• remind relevant staff of the Council’s obligation to take action to provide suitable temporary accommodation.
84. The Council will provide us with evidence it has completed the recommendations.

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Final decision

85. I have completed my investigation. I found fault leading to injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman