Summary: Ms X complained the Council placed her and her children in unsuitable accommodation which had an adverse impact on her own and her children’s health. The Council’s failure to review the suitability of the interim accommodation provided to Ms X when it was presented with new medical evidence and evidence of disrepair and Category 1 hazards is fault. This fault has caused Ms X an injustice.

The complaint

1. The complainant, whom I shall refer to as Ms X complained the Council placed her and her children in unsuitable accommodation which had an adverse impact on her own and her children’s health. Ms X also complains the Council failed to carry out Equality Act and Children Act assessments.

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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 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)
3. 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

4. As part of the investigation, I have:
• considered the complaint and the documents provided by Ms X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• 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

Homelessness

5. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
6. If a council has ‘reason to believe’ someone may be homeless or threatened with homelessness, it must take a homelessness application and make enquiries to establish if the council has a duty to assist them.
7. A council must also secure interim accommodation for an applicant and their household if it has reason to believe the applicant may be homeless, eligible for assistance and have a priority need.
8. 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)
9. Certain decisions councils make about homelessness carry a statutory right of review. The review decision then carries a right of appeal to court on a point of law.
10. Applicants may ask a council to provide accommodation pending the outcome of a review. Councils have a power, but not a duty, to accommodate certain applicants and members of their household. (Housing Act 1996, sections 188(3), 199A(6), 200(5))

What happened here

11. Ms X initially presented as homeless in 2015. The Council accepted a long term housing duty and provided temporary accommodation at Property 1. Ms X bid on a property in June 2019 and the Council offered Ms X this property to discharge its housing duty. However, Ms X rejected the property. As the Council considered it had discharged its duty it sought to evict Ms X from Property 1. The eviction was placed on hold during the pandemic and Ms X was able to remain at Property 1.
12. In February 2022 Ms X made a second homeless application, which the Council accepted as there was a change of facts as Ms X was pregnant. Ms X remained at Property 1 while the Council considered her application. The Council decided Ms X was intentionally homeless in June 2022. Ms X requested a review of this decision and asked the Council to provide interim accommodation for her and her three young children pending the review. The Council agreed but would not allow Ms X to remain at Property 1.
13. In July 2022 the Council evicted Ms X from Property 1. The Council initially accommodated Ms X and her family in hotels before offering her interim accommodation at Property 2 in August 2022. Ms X moved to Property 2 but requested a review of the suitability of the property. Ms X’s representative, Mr Y asserted Property 2 was too small and medically unsuitable for Ms X. He asked for a copy of the suitability assessment the Council had carried out before offering Ms X Property 2.
14. The Council advised a medical assessment in February 2022 had determined a property up to a second floor maximum without a lift would be suitable. It also confirmed the size of the property was suitable as it had three habitable rooms. The Council invited Ms X to complete a further medical form if her health had deteriorated.
15. In September 2022 Mr Y provided copy correspondence from Ms X’s consultant, physiotherapist and psychiatrist and asked the Council to move Ms X to a ground floor flat in an area close to her friends and family. He also asked the Council to provide an up to date Public Sector Equality Duty (PSED) assessment for Ms X. Mr Y chased the Council for a response in October 2022 and then wrote to the Council under the pre-action protocol for Judicial Review.
16. Mr Y asserted the Council had failed to carry out a review of the suitability of Property 2, had failed to carry out an Equality Act assessment or an assessment under the Children Act, and had failed to provide suitable accommodation. He again asked the Council to provide Ms X with self-contained ground floor accommodation close to her support network.
17. The local authority where Property 2 is located inspected the property in October 2022 and identified a number of Category 1 and 2 hazards at the property that needed to be repaired immediately. These included black mould growth in the lounge, kitchen, and front small bedroom, damp in the back bedroom and a high level of penetrative dampness and mould growth in the bathroom. The Housing Standards Enforcement (HSE) Officer advised Property 2’s managing agents to rehouse Ms X and her family before commencing the remedial works.
18. The Council confirmed it would only rehouse Ms X if the repair works were not completed. The HSE Officer asked the Council to bear in mind the extent of the remedial works in particular to the bathroom and advised in their professional opinion it was not safe for the children to be in the property while the works were carried out.
19. The managing agents carried out a full inspection and then arranged for contractors to start the works. They agreed Ms X could instruct the contractors which works to carry out first. Ms X then advised the start date was not convenient and that the builder should not attend.
20. Ms X subsequently indicated she felt the roof should be repaired first and suggested this could be done without the need to access the property. The managing agents advised Ms X the builders required access to the property to check where on the ceiling the leak was coming from and asked Ms X to confirm her availability. This was delayed as Ms X’s children were unwell
21. On 16 November 2022 Ms X reported that she had no electricity at the property which meant she had no hot water or heating. The Council offered alternative accommodation in a hotel overnight and the managing agent replaced the fuse box and resolved this issues the following day. They also sought to arrange with Ms X when the remaining works could continue.
22. At around the same time, Mr Y advised the Council that Ms X had had to take her youngest son to hospital where she was advised his symptoms were connected to the mould and damp at Property 2 and that she should not remain at the property.
23. The Council says Ms X provided access to Property 2 in December 2022 and the managing agents advised they would be unable to carry out the works for several weeks due to the cost and the need to obtain the freeholder’s permission.
24. In January 2023 the managing agents asked the Council to rehouse Ms X as it was unlikely the works would immediately address the defects. The Council placed Ms X on the transfer list.
25. The Council then completed its review and in February 2023 upheld its decision that Ms X was intentionally homeless. It advised Ms X her temporary accommodation at Property 2 would be cancelled within 28 days. Ms X exercised her right of appeal to the county court against the intentionally homeless decision and asked the Council to provide temporary accommodation pending the appeal.
26. The HSE officer inspected Property 2 again on 23 March 2023. The following day they served a prohibition notice, prohibiting Property 2 being used for residential use. They advised Ms X she could store and access her belongings but must not sleep at the property. Mr Y asked the Council to provide alternative accommodation as a matter of urgency. The Council offered Ms X interim accommodation in another borough which Ms X rejected as it was too far from her support network and her children’s school.
27. The Council terminated Ms X’s tenancy at Property 2 with effect from 30 March 2023. It then accommodated Ms X in a hotel before offering her interim accommodation at Property 3 pending the appeal.

The complaints

28. In July 2022 Mr Y made a formal complaint to the Council regarding the temporary accommodation provided to Ms X. He asserted the Council had failed to comply with the Equality Act 2010 and the Children Act 2004 and was wrong to require Ms leave Property 1. Mr Y made a further complaint in August 2022 regarding the temporary accommodation in hotels which he considered unsuitable. He asked the Council to apologise for the way it had handled her case and compensate Ms X for the significant disadvantage and suffering she had experienced. Mr X also asked the Council to arrange suitable, self-contained ground floor accommodation for Ms X and her children.
29. The Council responded in October 2022 and did not uphold the complaint. It apologised for the delay in responding, which it said was due to the ongoing review of the Council’s decision Ms X was intentionally homeless.
30. The Council was satisfied it had been reasonable throughout the eviction process and noted this had been delayed on at least two occasions due to Ms X having COVID and at the midwife’s request. The Council also noted its agreement to provide temporary accommodation pending the review was a decision of the Reviews Officer, and not a statutory duty. It considered it had acted reasonably in providing temporary accommodation.
31. In addition the Council acknowledged it had a duty to take into account the Equality Act 2010 and confirmed this is always adhered to. It noted Mr Y had submitted a claim for Judicial Review to the High Court to prevent the eviction. He had sought a declaration that the Council had breached its obligations under the Equality Act and Children Act in deciding to continue with the enforcement of the possession order. The Court’s judgement was to allow the possession to go ahead. The Council asserted that if it had been in breach of its duties the Court would have ruled against it.
32. As Mr Y was not satisfied by the Council’s response, he asked for the complaint to be considered at stage 2 of the complaints procedure. He noted the Council had not provided any evidence Equality Act or Children Act assessments had been carried out and asserted the High Court had not decided on the substance of the claim, only the interim relief.
33. Mr Y then chased the Council for a response in October 2022. As he did not receive a response in November 2022 he asked the Ombudsman to investigate his concerns. He complained Ms X’s current temporary accommodation at Property 2 was grossly unsuitable. It was affected by mould and damp, the electricity was not working, it was too far from Ms X’s children’s school and it was on the first floor. Ms X had requested suitability reviews which were disregarded. Mr Y said the Council had failed to carry out a PSED assessment or a Children Act assessment and had not assessed her housing needs.
34. Mr Y said Ms X’s health had deteriorated since leaving Property 1 and that her children’s health had also begun to deteriorate.
35. As Mr Y had not completed the Council’s complaint procedure we referred the matter back to the Council who confirmed they would immediately assign the complaint for investigation at stage 2. The Council subsequently confirmed in April 2023 that it had not responded at stage 2 as the issues raised were the subject of ongoing court proceedings which cannot run concurrently with the complaints procedure.

Analysis

36. Ms X believes the Council was wrong to proceed with her eviction from Property 1 in July 2022 given her personal circumstances at the time. She asserts that as the Council had agreed to provide interim accommodation pending her review it should have allowed her to remain at Property 1.
37. As Ms X sought to Judicially Review the decision to evict her and asked the court to grant an injunction I am unable to consider this issue further. I am unable to consider matters that were the subject of court proceedings.
38. Ms X is also concerned about the suitability of the alternative accommodation provided. The Council was not under a duty to provide interim accommodation pending the review of its decision but exercised its discretion to do so. Although this meant Ms X did not have a formal right to request a review of the suitability of either the hotel accommodation or Property 2, the Council still had a duty to ensure the accommodation was suitable.
39. In deciding whether accommodation is suitable the Council must have regard to the following factors:
• the space and arrangement of the accommodation
• the state of repair and condition of the accommodation – as a minimum, we would expect it to be free of Category 1 hazards.
• the location – including ease of access to established employment, schools and specialist health care
• the specific needs of the applicant and any household members due to a medical condition or disability
40. Councils should avoid using bed and breakfast (B&B) accommodation where possible. It can only be used for households which include a pregnant woman or dependent child when no other accommodation is available and then for no more than six weeks. In this instance the Council placed Ms X and her children in B&B accommodation for just under six weeks before offering her accommodation at Property 2.
41. Ms X and Mr Y repeatedly complained that Property 2 was not suitable. This was initially on the grounds Ms X had a medical need for a ground floor property and to be close to her support network. Mr Y provided further details of Ms X’s medical conditions in September 2022 but I have not received any evidence to show how the Council considered these reports. Or whether / how it reviewed the suitability of Property 2 based on this new evidence.
42. Having moved into the property Ms X then complained of disrepair and problems with damp and mould affecting her own and her children’s health. The disrepair was confirmed by the ESH Officer’s inspection and identification of Category 1 and 2 hazards at the property. These defects and the works required to remedy them were significant but there is no record the Council reviewed the suitability of the property for Ms X and her young family at this stage.
43. The ESH Officer recommended the family be rehoused during the repairs but the Council disagreed. There is no record of why the Council considered it appropriate for Ms X and her family to remain in the property while the works were carried out. The Council did not agree to rehouse Ms X until January 2023, at the property agent’s request. The Council added Ms X to the transfer list but did not offer her alternative accommodation.
44. The Council offered Ms X interim accommodation at a hotel out of area in March 2023 which Ms X refused on suitability grounds. It is worrying that the Council then allowed Ms X and her children to remain at Property 2 even though the HSE Officer had served a prohibition notice, prohibiting its use as residential.
45. Councils have a continuing obligation to keep the suitability of accommodation under review and to respond to relevant changes in circumstances which may affect the suitability. The Council’s failure to review the suitability of Property 2 when presented with new medical evidence and evidence of disrepair and Category 1 hazards is fault.
46. This fault has caused Ms X and her family an injustice. I cannot speculate on whether or not the Council would have determined Property 2 was unsuitable based on the additional medical evidence. However, I consider it more likely than not that had the Council properly reviewed the suitability of Property 2 when it was made aware of the extent of the disrepair and Category 1 hazards, it would have determined the property was not suitable accommodation for Ms X and her young family. Suitable accommodation must be free from issues of disrepair such as damp and mould. There is clear evidence of significant disrepair at Property 2 which ultimately led to the service of a prohibition notice.
47. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
48. Where a complainant has been deprived of suitable accommodation during what would inevitably have been a stressful period in life we may recommend the Council makes a symbolic payment to acknowledge their distress, hardship and inconvenience. We usually recommend a payment of between £150 and £350 per month.
49. In determining an appropriate level we will take account of factors such as:
• The size of the accommodation – are there enough rooms for the household?;
• The condition and state of repair of the accommodation
• Are toileting and bathing facilities private or shared;
• The age of the household members; and
• Any disabilities or vulnerabilities of the household members
50. I am also mindful that Ms X delayed in allowing access for inspections and repairs, and that when Ms X was offered alternative accommodation, she did not accept it. In the circumstances I consider a payment of £250 per month for the five month period October 2022 to March 2023 is appropriate.

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Agreed action

51. The Council has agreed to
• apologise to Ms X for the distress, difficulties and uncertainty she experienced due to the failings in the Council’s service;
• pay Ms X £1,250 in recognition of the distress and difficulties she experienced while in unsuitable accommodation between October 2022 and March 2023.
• pay Ms X an additional £200 to recognise the distress and uncertainty she has experienced, and the time and trouble she has been put to as a result of the Council’s failings.
• provide training/ reminders to relevant staff of the need to to keep the suitability of accommodation under review and to respond to relevant changes in circumstances which may affect the suitability. Staff should be reminded of the need to document reviews and record decisions.
52. The Council should take this action within one month of the final decision and provide us with evidence it has complied with the above actions.

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Final decision

53. The Council’s failure to review the suitability of accommodation provided to Ms X when presented with new medical evidence and evidence of disrepair and Category 1 hazards is fault. This fault has caused Ms X an injustice.

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Investigator's decision on behalf of the Ombudsman