Summary: Miss B complained that the Council placed her in unsuitable temporary accommodation, failed to carry out a review of the suitability of that accommodation and placed her in the wrong priority band to allow her to bid for more suitable accommodation. We have found fault with the Council’s actions. The Council has agreed to find suitable alternative accommodation for Miss B, pay her £4,200 now and a further £350 for every month she remains in unsuitable accommodation. It will also provide an update on progress with the Improvement Plan and any other actions taken to improve the supply of temporary accommodation.

The complaint

1. Miss B complained that the London Borough of Lambeth (the Council):
• placed her in unsuitable temporary accommodation;
• failed to carry out a review of the suitability of that accommodation, requested by her solicitor on 1 March 2023; and
• placed her in the wrong band for bidding for more suitable accommodation.
2. This has caused Miss B significant distress and inconvenience for over a year. She is living in a shared room with her four children in a basement which she struggles to use with a double buggy while recovering from the birth of her fourth child.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’  and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
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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How I considered this complaint

5. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Miss B 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

Interim and Temporary Accommodation

6. There are two types of accommodation councils provide to certain homeless applicants: interim accommodation and temporary accommodation.
7. 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)
8. 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)
9. 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.
10. 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 and temporary accommodation. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)
11. 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.
12. 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 and temporary accommodation. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)
13. In reaching a decision on suitability the Council has to consider the space and arrangement of the accommodation and the specific needs of the applicant and any household members due to a medical condition or disability.
14. The duty to provide suitable accommodation is immediate, non-deferrable, and unqualified. (Elkundi, R (On the Application Of) v Birmingham City Council [2022] EWCA Civ 601)

Review procedure

15. Applicants can request a review of the suitability of their accommodation. This is an ongoing right. Councils must complete reviews with eight weeks of the date of the request and provide a decision in writing with details of the right to appeal to the county court on a point of law.

LGSCO Unsuitable Temporary Accommodation: Guide for Practitioners (May 2023)

16. We do not consider that simply adding an applicant to a ‘Transfer List’ and waiting for a suitable property to become available is sufficient for a council to demonstrate how it is meeting its duty to provide suitable temporary accommodation. This is in line with the court’s decision that putting applicants who are owed the section 193(2) duty, and who are in unsuitable accommodation, on a waiting list for temporary accommodation is not a lawful means of fulfilling the unqualified and immediate duty to secure suitable accommodation for their occupation.” (Elkundi & Ors, R (On the Application Of) v Birmingham City Council [2021] EWHC 1024 (Admin) 308)
17. We recognise that a list or database is useful. However, we may be critical of councils who prioritise applicants for rehousing by time spent on such a list without regard to the specifics of their case. Furthermore, any such list should take care to distinguish between those in accommodation that is unsuitable now and applicants whom the council considers will need to move in the short or medium term.
18. We encourage councils to maintain a policy or procedure setting out how they allocate temporary accommodation.

Council’s housing allocations policy 2013

19. This policy was in force during the period of this investigation. It has four bands of priority: A to D, with A being the highest and D the lowest. Band B includes applicants who are severely overcrowded (lacking two bedrooms). Band C is split into two levels with C1 for statutory homeless households to whom the Council owes a full housing duty.

Previous complaints

20. As a result of a previous complaint to us, the Council produced a Temporary Accommodation Transfers Procedure and reviewed its procurement of temporary accommodation to identify ways of increasing the supply of different types of accommodation.
21. We issued a public interest report in March 2023 about a very long delay in providing suitable temporary accommodation. As part of the resolution to this complaint the Council commissioned an independent external review of the homelessness service and produced an improvement plan based on the review which was to be overseen by the relevant scrutiny committee or cabinet member.
22. We have recently made another decision about the same issue and the Council sent a short report detailing what it intended to do to prevent the problems recurring

What happened

23. Miss B originally approached the Council as homeless in 2018 and was placed in a hostel. The Council carried out a medical assessment in January 2019 and awarded her Band C medical priority but did not make any specific recommendations in terms of the types of suitable accommodation. In 2019 she found accommodation in the private rented sector but had to leave in 2023 following a rent increase which was unaffordable. She approached the Council again as homeless.
24. In February 2023 the Council accepted the relief duty towards her and then offered her interim accommodation: one room in shared accommodation for her and her three children under the age of seven and a fourth child due imminently. The room is in a basement with a steep set of stairs to access it and she has to share the bathroom, kitchen and toilet with other residents.
25. Miss B accepted the accommodation, but on 1 March 2023 her solicitor requested a review of its suitability: it was too small and she struggled to get her children and their buggy up and down the stairs, especially while heavily pregnant. She had her fourth child by caesarean section later that month.
26. Miss B chased Council on 24 April 2023 and contacted us. We advised her to complain to the Council first. Miss B also complained with the help of her MP. She said had been advised by doctors not to do anything strenuous, but she was having to lift the buggy and her children up and down the stairs.
27. The Council responded to her MP on 15 May 2023 saying that the full housing duty was owed to Miss B and she would be placed in Band C1 on the housing register.
28. In July 2023 Miss B chased the Council again for a response to her review request. On 30 July 2023 the Council confirmed it would carry out a non-statutory review of her interim accommodation.
29. On 8 August 2023 Miss B complained to the Council that she should be in Band B and needed alternative temporary accommodation. The Council replied later in August 2023 saying that its systems now reflected that the main housing duty had been awarded and she was in Band C1. But Miss B did not receive any notification of this or an explanation as to why she was only in Band C1.
30. On 31 August 2023 the Council told Miss B that it accepted her accommodation was unsuitable, and she was now on the Temporary Accommodation Transfer list.
31. On 20 September 2023 the Council notified Miss B in writing that it had accepted the full housing duty towards her, and her account was active for bidding.
32. Miss B complained again to us and we advised her to complete the Council’s complaints procedure.
33. On 3 October 2023 she escalated her complaint to stage two of the complaints procedure. The Council acknowledged the complaint and said it would reply by 31 October 2023. On 28 November 2023 it said it would reply by 29 December 2023.
34. The Council finally sent its stage two response on 29 December 2023. It apologised for the delay in finding her suitable temporary accommodation but said Band C1 on the housing register was the correct band for her. It said she could apply for a medical assessment and/or complain to us.
35. In response to my enquiries the Council said Miss B’s application has been in Band B from 18 September 2023 until 17 January 2024 when it was inexplicably moved to Band C1 until 1 February 2024.

Analysis

Suitability review

36. Miss B asked for a review of the suitability of her accommodation on 1 March 2023. She was living in one room with shared facilities with three children and another on the way, with steep stairs to access the property. She was severely overcrowded and struggling to manage given that she was due to give birth. When her fourth child arrived, her struggles continued as she tried to recover from the birth.
37. The Council did not review the accommodation until the end of August 2023 when it decided the accommodation was unsuitable and placed her on the temporary accommodation transfer list.
38. This process took too long. I would expect the Council to have completed the review within eight weeks, by the end of April 2023. It took another four months to do so. This was fault exacerbated by the lack of communication with Miss B and the complete lack of acknowledgement of her difficult situation.

Alternative accommodation

39. The Council has failed to find Miss B alternative suitable temporary accommodation. The Council’s duty to find alternative accommodation once it has decided the current accommodation is unsuitable is immediate. I understand there is immense pressure on temporary accommodation in London in particular, but this is still fault, albeit service failure. Miss B has now been living in very unsuitable overcrowded conditions for over a year.

Delay in homeless application

40. The Council also failed to communicate properly with Miss B regarding her homelessness application. It sent no written notifications to her that the relief duty had ended or that it was now making inquiries into her case. It took six months from April to September 2023 to inform her that it owed her the full housing duty, despite saying in May 2023 that this was the case and repeating it in the complaint response in August 2023. This was fault which caused uncertainty to Miss B as she was unclear of the status of her housing application. It also prevented her from being able to bid on the housing register for alternative accommodation

Incorrect banding

41. The Council gave Miss B incorrect information about her banding which caused her distress. It said on several occasions that her application was in Band C1 when in fact she qualified for Band B due to the severe overcrowding. The Council has now provided evidence that her application has been in Band B since 18 September 2023 apart from two weeks in January 2024. I do not consider this affected her chance of bidding successfully for permanent accommodation.

Complaint-handling

42. The Council’s stage response did not address the points in Miss B’s complaint or offer any remedy for the acknowledged delays. This was fault. The Council then took nearly three months to respond to her stage two complaint and did not provide any reason for the delay. The response contained incorrect information about Miss B’s banding and contained nothing more than an apology for the failure to find her suitable alternative accommodation. This additional fault caused Miss B significant frustration.

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Agreed action

43. In recognition of the injustice caused to Miss B, I recommended within one month of the date of my final decision, that the Council:
• finds Miss B suitable alternative accommodation;
• apologises to her and pays her £4,200 for living in unsuitable accommodation (12 months @£350 per month); and
• pays her £350 for every month she continues to live in unsuitable accommodation.
44. I note from the previous complaints and public interest report we have issued over the past year or so, that this is a recurring problem which the Council is trying to resolve. But at present, evidence of improvement is not apparent. So, I also recommend within two months of the date of the final decision that the Council:
• provides a report of progress with the Improvement Plan and evidence of ongoing oversight by the relevant scrutiny committee or cabinet member; and
• details of any other action it has taken to improve the available supply of temporary accommodation
45. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

46. I consider this is a proportionate way of putting right the injustice caused to Miss B and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman