Summary: there was fault in the way the Council considered Miss X’s request for a review of the decision not to award her additional preference on the Housing Register. There was further fault when the Council failed to consider the suitability of her temporary accommodation after Miss X and her solicitor reported the impact of damp and mould on her and her daughter’s medical conditions. These faults caused Miss X distress, uncertainty and denied her the opportunity to exercise her review rights. The Council has agreed to provide a suitable remedy.

The complaint

1. Miss X complained that the Council placed her in temporary accommodation which is unsuitable and in poor condition. It is difficult to access the shower to bathe her youngest child and there is a recurring problem with damp and mould in the bathroom and all three bedrooms. She has presented medical evidence that the conditions are likely to have had an adverse impact on her family’s health and wellbeing.

2. Miss X also complained that the Council has not properly considered her request for additional preference on the Housing Register under its housing allocations scheme.

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What I have and have not investigated

3. Miss X complained to us in November 2022. I did not investigate the Council’s decision to place her in this temporary accommodation in January 2018. She moved to this property more than 12 months before she complained to us. So it is too late for us to investigate the decision to place her in this property. The Council also informed her at the time about her right to request a review of its suitability.
4. I have investigated Miss X’s complaint about the failure to consider the suitability of the accommodation to take account of recurring issues with damp and mould and the way the Council made its decision that she was not entitled to additional preference.

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The Ombudsman’s role and powers

5. We cannot investigate late complaints unless we decide there are good reasons to do so. A complaint is late 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. 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
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 spoken to Miss X and her representative. I considered the Council’s comments and relevant records including its replies to Miss X’s complaints and records provided by the managing agents of the temporary accommodation.
9. Miss X, her representative 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 - suitability of accommodation

10. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need the council has a legal duty to secure that accommodation is available for their occupation. This is commonly referred to as the ‘main housing duty’.
11. There is a legal duty for authorities to ensure that accommodation provided under the main housing duty is “suitable” for the applicant and household members (section 206 Housing Act 1996).
12. When deciding if accommodation is suitable, authorities must have regard to various statutory provisions, including the the Housing Act 2004 which identifies damp and mould as a hazard. They must also have regard to the following factors:

• the space and arrangement of the accommodation;
• the state of repair and condition of the accommodation – as an absolute minimum it must be free of Category 1 hazards;

13. Councils have a duty to keep the suitability of accommodation under review. An applicant may ask a council to reconsider the suitability of their current temporary accommodation at any time if their circumstances change (for example, if there is a change in their needs due to a medical condition or disability or an increase in the size of the household). An officer should then make a suitability decision. The officer may agree the accommodation is unsuitable and put the applicant on a transfer list. In that case, the applicant does not need to request a section 202 review.
14. However if the officer decides the accommodation is suitable, that decision must be put in writing and the applicant must be notified of the right to request a statutory review. The applicant can then use the section 202 review procedure to challenge the decision on suitability.
15. The review must be carried out by someone who was not involved in the original decision and who is senior to the original decision maker. The reviewing officer needs to consider any information relevant to the period before the decision was made (even if only obtained afterwards) as well as any new relevant information the Council has obtained since the decision.

Housing allocations: reasonable preference, additional preference and reviews

16. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating social housing.  All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
17. Local housing authorities must give reasonable preference in their allocations scheme 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))
   
18. The local housing authority may also give additional preference in their allocations scheme to certain categories of applicant who are entitled to reasonable preference.
19. Barking and Dagenham Council’s scheme says it may give an applicant additional preference if they fall within a reasonable preference category and they have an urgent housing need which makes it virtually impossible for them to remain in their present home. It gives the following examples but this is not an exhaustive list:
• Victims of domestic violence;
• Victims of hate crime;
• Victims of racial or sexual harassment;
• Witnesses of crimes or victims of crime who would be at risk of intimidation;
• Violence, or threats of violence, that are likely to be carried out if they remain in their present home;
• Those who have an urgent medical or social reason.
20. The Council’s housing allocations scheme has four priority bands:

Lowest band – Reasonable preference - applicants entitled to one reasonable preference.

Second band – Cumulative preference – applicants who qualify for two or more reasonable preference categories.

Third band – Additional Preference – those with a reasonable preference and an urgent need to move (e.g due to fear of violence or an urgent medical condition)

Top band – Decants or under-occupiers – this applies to tenants whose homes are due to be demolished or who occupy properties with more bedrooms than they need.

21. Housing applicants have the right under section 166A of the Housing Act 1996 to ask the council to review a wide range of decisions about their Housing Register applications, including decisions about their priority. The review must be carried out by a senior officer who was not involved in making the original decision.
     

The background

22. Miss X and her family have been homeless since 2013. The Council owes them the main housing duty. They moved to their current temporary accommodation – a three bedroom house - in January 2018. Miss X lives with her husband and their four young children, the youngest of whom was born in November 2021.
23. The house is leased from a private landlord and the landlord’s managing agents, whom I shall call Company A, manage repairs to the property.
24. The house has a shower but no bath. Miss X says the shower enclosure is very small due to the layout of the bathroom. She cannot bathe her youngest child because she cannot safely get into the shower with him.
25. One of Miss X’s children has severe asthma. Miss X has long term depression and was diagnosed with post-natal depression following the birth of her youngest child.

Impact of mould on health

26. The NHS website describes the impact of mould on health. It says:

“Moulds produce allergens (substances that can cause an allergic reaction), irritants and, sometimes, toxic substances.

Inhaling or touching mould spores may cause an allergic reaction, such as sneezing, a runny nose, red eyes and skin rash. Moulds can also cause asthma attacks.

Some people are more sensitive than others, including:

• Babies and children
• […]
• […]
• Those with respiratory problems, such as allergies and asthma

These people should stay away from damp and mould.”

What happened

27. Miss X says she first reported mould to the managing agents a few months after moving to the house in January 2018. She says contractors used a fungicidal treatment and repainted the affected areas then but the mould kept coming back. She says the managing agents promised to do further works each time she reported the mould had returned but nothing was done to resolve the underlying cause.
28. I have not examined what was done to investigate and remedy damp and mould between 2018 and late 2021. We received Miss X’s complaint in November 2022. It is therefore too late for us to investigate what happened in this earlier period.

Events in 2022

29. On 7 February 2022 an employee from Company A inspected the property. He noted the need to treat mould on the walls and ceilings in all three bedrooms. The report did not say there was mould in the bathroom but noted a leak from the toilet and shower area.
30. On 22 February Miss X’s solicitor wrote to ask the Council to award the family higher priority on the Housing Register. At the time Miss X’s application had a reasonable preference because she was homeless. She had also been awarded a second reasonable preference under the Council’s scheme as a working household.
31. The solicitor said the property was in a severe state of disrepair. He listed the following defects:
• Severe damp which affected the living room and bedroom;
• The bathroom was covered in black mould despite Miss X’s efforts to ventilate the room;
• Difficulty using the shower because the shower enclosure was too small and water was leaking from the shower onto the bathroom floor which presented a slip hazard;
• The damp was having an adverse impact on the health of Miss X’s youngest child who was three months old and undergoing hospital scans for a medical condition;
• The damaged and loose kitchen units were a risk to health and safety;

He attached several photographs showing the black mould and other defects. He said it was not suitable for Miss X and her family to live in the house. He asked the Council to award “Band 1” priority to enable the family to move to social housing on the grounds of disrepair and the impact on their health.

32. According to the Council, Company A inspected the property and arranged for contractors to carry out works in April 2022. The Council says new shower doors were installed then to improve access, the bedroom windows were replaced and mould treatment was carried out in two of the three bedrooms. Anti-fungal spray was applied, and the affected areas were treated with a paint designed to prevent mould returning.
33. On 17 May a junior officer in the Council’s Legal Service replied to Miss X’s solicitor. He said he had not received the letter until 11 April. He headed the letter “Reply to letter before claim under Pre-Action Housing Protocol”. He said the property was not owned or controlled by the Council and Miss X was not a Council tenant. He therefore considered the matter closed. He did not seem to have appreciated that the Council had placed Miss X in the property under its duty to arrange temporary accommodation for homeless applicants although the solicitor’s letter had made this clear.
34. On 19 May 2022 an officer from the Council’s Accommodation team visited the property and spoke to Miss X and her husband. Miss X’s husband complained that the officer had not visited when they first complained about damp and mould some months earlier. He said the property had been in much worse condition during the winter months and before the works done in April. The officer said it had been difficult to visit then because of the COVID-19 pandemic and staff shortages.
35. During the inspection the officer identified the following issues:
• The paint on the wall in the first bedroom was patched up and he suspected this had been done to cover up condensation;
• There was condensation on the window ledge in the second bedroom- the windows were shut and Miss X opened them during the inspection.
• The paint on the wall in the third bedroom had been patched up and the quality of work was poor – there were some minor stains on the walls;
• There were stains on the walls in the first floor corridor;
• He accepted that the shower cubicle was small and difficult to access and this needed to be resolved;
• He made general observations about the cleanliness and clutter in the property and the overgrown front and rear gardens.
36. The officer took several photographs. One shows black mould on an internal window ledge, presumably in the second bedroom. There is no mould visible in any of the other photographs.
37. On 24 May 2022 an employee from Company A inspected the house. The report noted no signs of mould growth following the fungicidal treatment done in April. It said the walls in the third bedroom should be repainted.
38. On 12 July 2022 Miss X sent an email to the Housing Service. She said the property was not suitable for the following reasons:
• it was not licensed;
• the shower enclosure was too small for her to get into it with her youngest child who was under one year old;
• her eldest child has asthma;
• she has depression.

She said she could not cope with another move to alternative temporary accommodation. Her family had already lived in three properties since they became homeless in 2013. She asked the Council to award additional preference under the housing allocations scheme to improve her chances when bidding for social housing.

39. An officer in the Social Housing Register team replied to Miss X’s email. He asked her to provide medical evidence and explained the criteria for awarding additional preference. He also forwarded her email to the Accommodation team and asked them to respond to the issues Miss X raised about the temporary accommodation.
40. In late July 2022 an officer in the Accommodation team contacted Company A to ask for an update on the outstanding issues from the May inspection. Company A said it was liaising with the landlord about some issues. But it did not comment on work to make good the areas of patched up paintwork or to install a larger shower cubicle. It seems this was not followed up with Company A.
41. On 12 September Miss X sent the Council two letters from her GP. The GP said Miss X’s daughter had severe hay fever and breathing difficulties for which she used an inhaler. He also said damp and mould in the house may well have caused this condition. He also commented that the cramped shower cubicle made the property unsuitable for the family. The GP confirmed had been prescribed medication for longstanding depression.
42. Miss X made a complaint to the Council on 18 September. She said the temporary accommodation team and the Council’s managing agent had failed to remedy most of the issues with the accommodation which were having a direct impact on the family’s health. She referred to the two letters from her GP which described the impact of the housing conditions on her and her daughter’s medical conditions. She also said her baby sometimes got injured when she tried to bathe him because the shower enclosure was too narrow. She also said:

“it’s been many months and the department is just failing to address any of those concerns raised and even if they remedy some problems, the shower door issues cannot be resolved unless it is completely renovated by stripping all the fixtures and installing new. The dampness of the property keeps coming back because it now requires new plaster boards due to the mould not going away”.

43. On 20 October an officer in the Social Housing Register team wrote to tell Miss X of the outcome of the medical assessment. He had considered the GP’s letters. He accepted that damp and mould growth may have affected Miss X’s daughter’s medical condition. He also recognised that Miss X’s concerns about disrepair in the property over several months was likely to have had an impact on her depression. For these reasons, he awarded a reasonable preference on medical /welfare grounds. He backdated the award to 12 September 2022 when Miss X sent in the GP’s letters.
44. The officer said he had decided not to award Additional Preference. He explained this priority is awarded when it is virtually impossible for an applicant to continue to occupy a  property. He did not consider this threshold had been met in Miss X’s case. The letter explained Miss X’s right to request a review within 21 days.
45. Following this award, Miss X had three reasonable preferences. However, this did not increase her priority on the Housing Register. She remained in the second band (Cumulative Preference) for applicants with two or more reasonable preferences.
46. Miss X sent an email to the Complaints team on the day she received the letter notifying the outcome of the medical assessment. She said she would like to appeal against the decision to award reasonable preference instead of additional preference. She cited information on the NHS website and in her GP’s letter and stressed that post-natal depression is a serious condition and she also had a pre-existing depressive condition. She added:

“With regards to the condition of the property, it is not a suitable accommodation as the bathroom issues (not being able to access the shower with ease), the kitchen not having any extract/window for the fume to exit from…”

47. She also said she was not satisfied with the outcome of her Stage One complaint and would like it to be considered at Stage Two.
48. The Council did not consider whether Miss X’s email should be treated as a request to reconsider the suitability of the temporary accommodation. It registered it as a Stage Two complaint under the complaints procedure. It also asked the Reviews Manager to consider a review of the decision not to award additional preference.
49. On 11 November 2022 the Reviews Manager wrote to Miss X to say he had reviewed the medical information but upheld the decision not to award additional preference. His decision letter did not address whether the physical condition of the property made it virtually impossible for Miss X and her family to remain there.
50. Miss X sent further information to the Council’s Complaints team in late December 2022. She referred to the impact of the mould on her and her daughter’s health. She said the works previously carried out had simply concealed the mould. She also sent a new letter from the GP which said Miss X’s daughter had been assessed for severe asthma (this was a different diagnosis from September 2022 which said she had severe hay fever). She also sent several photographs showing black mould had reappeared in all three bedrooms and the bathroom.
51. On 24 January 2023 the Social Housing Register team wrote to Miss X to confirm she was entitled to three reasonable preferences, including one for medical reasons. Although Miss X had asked to appeal against the 20 October 2022 decision, this was not a review decision letter. Instead it seems the team carried out a new assessment based on the medical evidence submitted in December 2022. It told Miss X she had a right to request a review.
52. On 19 January 2023 an officer in the Complaints team replied to Miss X’s Stage Two complaint. It accepted it should have given more attention to Miss X’s concerns about the ongoing problems in the property when it received her Stage One complaint in September 2022. The officer who reviewed her housing priority in November 2022 could have picked up any unresolved issues to make an informed decision about suitability.
53. She said that if this had been followed up in September or October 2022, further treatment or a more detailed inspection of the property would have been carried out. However, she also took into account that Miss X had not informed Company A when the mould first reappeared and this contributed to the time taken to resolve matters.   
54. The Council offered to pay Miss X £150 for uncertainty due to its failure to identify and act on the concerns she raised in her September 2022 complaint about disrepair in the accommodation and the time she spent pursuing her complaint.

Events after Miss X complained to us

55. Company A arranged for one of its staff to inspect the property on 4 January 2023. There was black mould in all three bedrooms. The mould on the walls and ceiling in the second bedroom was described as “bad”.
56. Company A arranged for a specialist surveyor to inspect the property in early February 2023. The surveyor’s report confirmed there was condensation and mould in all three bedrooms and the bathroom. The surveyor recommended installing an electrically controlled ventilation system to improve air circulation and reduce condensation in the affected rooms. He also recommended installing an automated extractor system in the bathroom to control humidity.
57. Company A sent the report to the Council and explained that the landlord was reluctant to pay for these works because he knew Miss X and her family did not wish to stay in the property.
58. An officer in the Social Housing Register team wrote to Miss X on 14 February 2023 confirming the award of reasonable preference on medical grounds made in September 2022. He told Miss X she could request a review of this decision within 21 days.
59. Miss X did not request a review of this decision because by then she had complained to us.
60. Company A recently served a Notice to Quit on Miss X and her husband which requires them to vacate the property by 10 April. Miss X’s representative told me the Council has not yet contacted her to discuss the Notice or alternative housing options.
61. If, as it seems, the landlord intends to recover possession of the property, the Council will need to find alternative accommodation for Miss X and her family.

Analysis

62. The Council had to consider two separate issues in this case. First, whether Miss X met the criteria for additional preference on the Housing Register. Secondly, whether the temporary accommodation was suitable for Miss X and her family’s needs given the recurring damp and mould, and other issues, and the likely impact on their medical conditions.
63. The Ombudsman cannot find fault with the way a council assessed an applicant’s priority on the Housing Register if it was done in accordance with its published housing allocations scheme. The Council’s scheme says it may award additional preference to an applicant who is entitled to reasonable preference and who has an urgent housing need which makes it virtually impossible for them to occupy their accommodation. This is a very high threshold. It requires the officer who assesses the case to weigh the evidence and make a judgement about whether the applicant’s circumstances are urgent. Although the housing allocations policy gives some examples, it does not give a definitive list and cannot cover every situation.
64. Miss X disagreed with the decision made on 20 October 2022 not to award additional preference. The officer had considered the medical evidence but did not consider her circumstances were so urgent that Miss X and her family could not continue to occupy the accommodation. He accepted the damp and mould were likely to have some impact on Miss X and her daughter’s medical conditions and awarded a reasonable preference for this reason. The officer was entitled to make that decision and I see no fault in the decision-making process up to this point.
65. Miss X contacted the Complaints team on the same day to say she wished to appeal against this decision and escalate her complaint to Stage Two of the Council’s complaints procedure. The Council correctly treated this as a request for a section 166A review of the 20 October 2022 decision not to award additional preference. A senior officer in the Housing Reviews team then considered the review and sent Miss X his review decision on 11 November. In the decision letter, the reviewing officer commented on the medical issues Miss X raised but did not address the physical condition of the property and whether or not that made it virtually impossible for Miss X and her family to continue living there. That was a significant omission. The reviewing officer should have sought further information from the Accommodation team about any outstanding defects or disrepair in the property, and any plans for remedial works, before he made the review decision. The failure to do that was fault.
66. The Council was also at fault because it did not make a decision about whether the temporary accommodation was suitable for Miss X and her family after she reported her concerns about recurring issues with damp and mould and the issues with access to the shower enclosure. In February 2022 Miss X’s solicitor said there was severe disrepair in the property and it was not suitable for Miss X and her family. The solicitor did not explicitly request a section 202 review of the suitability of the accommodation and focused on the request for additional preference. However it was clear from his letter that Miss X was dissatisfied with the accommodation and considered it unsuitable. That should have prompted the Council to make a suitability decision. It should then have put that decision in writing and, if it decided it was suitable, it should have notified Miss X about her right to request a section 202 review.
67. Instead the Council took almost three months to reply to the solicitor’s letter. That was far too long. It then sent a brief response which said the Council was not responsible for the property and therefore it had closed the matter. Although the Council did not own or manage the property, it had a duty under section 206 of the Housing Act 1996 to ensure that any accommodation secured for a homeless applicant continued to be suitable for their needs. The law is clear that this is an ongoing duty. It therefore should have considered and responded to the concerns raised in the solicitor’s letter about the accommodation and decided if was suitable for the family’s needs. The letter did not mention this duty and it did not address the issues raised. It is not clear that the officer had understood the duties the Council owed to Miss X as a homeless applicant in temporary accommodation. This was fault.
68. Miss X wrote to the Council in July 2022 and referred to several defects in the property. She asked for additional preference and also stated clearly that she did not consider the accommodation was suitable for her needs. Again, this should have prompted the Council to decide whether the temporary accommodation was suitable for Miss X and her family and it should have put that decision in writing. That did not happen and no further action was taken.
69. Two months later Miss X later provided medical evidence about the impact of the damp and mould on her daughter’s health and her own health. She provided further medical evidence in December 2022. Although the Council considered the GP’s letters for the purpose of reviewing Miss X’s priority on the Housing Register, it did not consider whether the temporary accommodation was suitable for Miss X and her family in the light of the medical evidence that the housing conditions were having an adverse impact on their health. That was fault.
70. It is not for the Ombudsman to decide whether Miss X meets the criteria for additional preference. That is a decision for the Council to make and the Ombudsman cannot override it. However I am likely to find fault because when the Council reviewed that decision in November 2022 the officer did not specifically address whether or not the condition of the property made it virtually impossible for Miss X and her family to continue living there. I cannot say what conclusion the reviewing officer would have reached had he properly considered this matter. But it was relevant and the officer should have set out his conclusions in the review decision letter. The failure to do so was fault.
71. The Council should also have considered the representations Miss X and her solicitor made about the unsuitability of the temporary accommodation and made a suitability decision. In making the suitability decision, it should have had regard to the medical evidence about the impact of the recurring damp and mould on Miss X’s depression and her daughter’s asthma and the difficulties with access to the shower. It should also have considered whether there were feasible options for remedial works to eradicate the damp and mould and make the accommodation suitable.
72. The failure to make a suitability decision and follow the correct decision-making process was fault. Miss X was denied the opportunity to request a section 202 suitability of accommodation review because the Council did not handle this correctly.
73. It seems Miss X and her family will have to leave the property because the landlord has served a Notice to Quit and intends to recover possession. In these circumstances, no useful purpose would be served by carrying out a section 202 suitability of accommodation review now. Whatever the outcome of the review, it the Council will need to find alternative accommodation for Miss X and her family if the landlord has terminated the licence.
74. Finally the Council accepts it failed to act in a timely way when Miss X reported issues with the property in her September 2022 complaint. The photographs Miss X sent to the Council in December 2022 show extensive areas of black mould had reappeared by then. This was confirmed when Company A inspected the property in early January 2023.
75. From the evidence I have seen, it is not clear when the mould reappeared and whether Miss X informed Company A as soon as she noticed it. But Miss X put the Council on notice in September 2022 of recurring problems and it did not take any action then to investigate or liaise with Company A. So I consider Miss X and her family are likely to have been exposed to damp and mould for longer due to the Council’s failure to act promptly in September 2022. This delay caused injustice to Miss X and her family.

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Agreed action

76. Within one month of my final decision, the Council will:
• Apologise in writing to Miss X for the impact of the faults identified in this statement;
• Pay her £300 to recognise the distress caused by its failure to make a decision on the suitability of the temporary accommodation, her lost opportunity to request a section 202 review if the Council had decided the accommodation was suitable, and the failure to address the physical condition of the property when reviewing the decision not to award additional preference in November 2022;
• Pay a further £300 to recognise that the failure to act promptly on the information Miss X provided in September 2022 contributed to the delay in Company A reinspecting the property for damp and mould;
• Explain to Miss X what steps the Council will take to find alternative accommodation now Company A has served a Notice to Quit;
• Give a written briefing to officers to remind them of the Council’s legal duty to keep the suitability of temporary accommodation under review when an applicant reports a change in their circumstances or submits new medical evidence. The suitability decision should be put in writing to the applicant and should notify them of their section 202 review rights.
77. The Council should provide us with evidence it has complied with the above actions.

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Final decision

78. I have completed the investigation and found the Council’s faults caused injustice to Miss X and her family.

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Investigator's decision on behalf of the Ombudsman