Summary: Mrs X complained about how the Council has supported her while she is homeless. There was fault in how the Council recorded and explained to Mrs X some of its decisions, how it decided what steps it should take to protect Mrs X’s belongings and how it failed to keep some video footage of an incident involving Mrs X. This caused Mrs X avoidable distress and uncertainty for which the Council agreed to pay her the financial remedy it has offered. It also agreed to review its policy on protecting the belongings of homeless people and the support it provides to Mrs X with this.

The complaint

1. Miss X complains about disrepair and other problems with the temporary accommodation the Council arranged for her after she became homeless in 2021. She says the Council:
• took too long to resolve problems with water leaks and closed the closest kitchen in the shared accommodation it provided her;
• refused to review whether the accommodation was suitable for her and her children in 2022;
• did not tell her she had the right to appeal its decision in 2023;
• has not provided enough help to protect her belongings while she is homeless;
• failed to properly investigate and respond to her claim of racial abuse; and
• communicated with her poorly, including ignoring her emails.
2. As a result, Miss X says she suffered physical and emotional harm, inconvenience and distress. She wants the Council to provide her with suitable, permanent accommodation and properly recognise the effects on her health.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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, section 26B, 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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What I have and have not investigated

8. I have investigated Mrs X’s complaints about events from July 2022.
9. I have not investigated events before this. Mrs X complained to the Ombudsman in July 2023, so her complaints about events before July 2022 are late. I am satisfied that tit would have been reasonable for Mrs X to have complained to the Ombudsman sooner about these earlier issues and there are no good reasons to investigate those issues now.

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How I considered this complaint

10. I considered:
• the information Miss X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
11. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Homelessness – suitability of accommodation

12. 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.
13. If a council is satisfied an applicant is 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 unless it refers the application to another housing authority under section 198.
14. 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 (from 3 April 2018) Homelessness Code of Guidance 17.2)
15. Councils must keep the suitability of any accommodation is provides under review. A council must respond to any changes of circumstances which might affect the suitability of any accommodation until its duty to provide that accommodation ends (Homelessness Code of Guidance 17.8)

Homelessness – protection of belongings

16. Where the council owes or has owed certain housing duties to an applicant, it must protect the applicant’s personal property if there is a risk it may be lost or damaged. A council may make a reasonable charge for storage and reserve the right to dispose of the property if it loses contact with the applicant. (Housing Act 1996, section 211, Homelessness Code of Guidance chapter 20)
17. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, freedom of expression, freedom of religion, freedom from forced labour, and education. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
18. The First Article of the First Protocol of the Human Rights Act says that no one shall be deprived of their possessions except in the public interest. This can also require a council to take positive measures to protect someone’s possessions.
19. The Ombudsman’s remit does not extend to deciding on whether or not a body in jurisdiction has breached the Human Rights Act – only the courts can do this. But the Ombudsman can decide about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
20. The Council’s policy for protecting the belongings of those it owes a housing duty to is to pay them a one-off grant of £200 towards the costs of moving and storing their belongings. The policy makes no allowances for ongoing storage costs or for assessing applicants’ ability to make their own arrangements.

Background

21. Mrs X and her children moved into temporary accommodation, provided by the Council, in 2021 after Mrs X became homeless. Mrs X also joined the Council’s housing wating list. The Council told Mrs X that demand for social housing in its area exceeds availability, so it would be unlikely Mrs X would find permanent social housing for several years. Meanwhile, it would continue to provide her with temporary accommodation.
22. The Council houses Mrs X in a shared housing facility it runs. Mrs X and her family have their own room and bathroom, and there are several shared kitchens which residents have access to.
23. During 2022 and 2023, Mrs X raised several concerns with the Council about her housing situation. These included the amount of time she had been in temporary accommodation, water leaks and other disrepair in the temporary accommodation and the conduct of other residents.
24. Mrs X first complained to the Ombudsman in July 2023 after she was not satisfied with the Council’s responses to her complaints.

My findings

25. The Ombudsman recognises the demand for social housing far outstrips the supply of properties in many areas. The Ombudsman may not find fault with a council for failing to re-house someone, if it has prioritised applicants and allocated properties according to its published lettings scheme policy. The Council gave Mrs X the correct priority under its allocation scheme, based on her being homeless and it having a duty to house her. There is no evidence the delay in re-housing Mrs X is due to any fault by the Council.
26. It is also not the Ombudsman’s role to decide whether Mrs X’s accommodation was suitable for her, whether she was racially abused by other residents, or what steps the Council should take to protect her belongings. Those decisions were for the Council to make. Our role is to assess whether the Council made its decisions properly. We cannot question a decision the Council has made if it followed the right steps and considered relevant evidence.

Repairs to the nearest kitchen

27. The first evidence of Mrs X emailing the Council about leaks in the roof of the kitchen nearest to her room was from early November 2022. However, there is also evidence which suggests Mrs X reported leaks and other concerns with the upkeep of the accommodation to site staff around August 2022.
28. Mrs X’s November email followed several days of heavy rain, which the Council accepts caused significant leaks into the kitchen. Before this, there had been a few days of heavy rain in August, which agrees with the Council’s notes of Mrs X having reported issues then, with the following months only having lighter rainfall.
29. After Mrs X reported the leaks in November 2023, the Council closed the kitchen affected while it investigated the source of the leaks and made repairs. It reopened the kitchen in February 2023. The Council told residents that while it was repairing the kitchen, nearby residents could use the other kitchen on the same floor, or other kitchens on other floors. It also said it provided microwaves for residents to use in their rooms.
30. Mrs X said the Council took too long to repair the leaks in the kitchen and allowed her and other residents to use the kitchen while there were other water leaks before November 2022.
31. On the balance of probabilities, I do not consider there was any fault in how the Council responded to leaks in the kitchen. It is likely the leaks in August were caused by heavy rainfall and that it took time for the Council to investigate the cause of the leaks. There is no evidence that residents were placed at risk due to the leaks before November 2022.
32. After a period of heavy rain in November, the Council decided the kitchen was not safe to use and closed it for safety reasons. There is no evidence the Council delayed making repairs and I cannot say that it took too long to repair the kitchen between November 2022 and February 2023. This period included Christmas and the New Year and the Council needed to arrange scaffolding to complete repairs to the building.
33. I appreciate Mrs X was inconvenienced during the closure of the closest kitchen. She said she found it difficult to use the other kitchens because of the number of fire doors she needed to go through carrying food between the other kitchens and her room. However, the evidence shows there was available dining space in the other kitchens during the time the nearest kitchen was closed and it was Mrs X’s choice to eat in her room. I have not found fault on the part of the Council, so I cannot say that the Council was responsible for the inconvenience and other effects on Mrs X.

Reviews of suitability

34. Mrs X asked the Council to review the suitability of the temporary accommodation it provided to her twice between July 2022 and October 2023.
35. The first time was shortly after the Council closed the kitchen nearest her room in November 2022. She told the Council she thought the accommodation was not suitable because:
• the Council had closed the nearest kitchen;
• the leaks had been ongoing for six months;
• she had seen pests in communal areas of the accommodation;
• there was not enough space for her children to complete their homework; and
• the overall effect being in temporary accommodation was having on her mental health.
36. The Council told Mrs X it had been more than 21 days since she had moved into the accommodation, so any request for a review was late. However, it said it would consider her request at its accommodation meeting around a week later.
37. In early December 2022, the Council emailed Mrs X to say it had decided not to review the suitability of her accommodation, as it did not think she was overcrowded. It did not tell Mrs X how she could challenge the Council’s decision if she thought it had got this wrong.
38. The Council has a duty to keep the suitability of temporary accommodation under review and to respond to any changes of circumstances. This does not mean it needs to carry out a full review whenever someone asks it to, but it should properly consider whether there are reasons to believe the accommodation is no longer suitable when deciding whether to conduct a review.
39. It is not clear, from the records the Council has provided or its email to Mrs X, how the Council considered Mrs X’s request for a formal review of the suitability of her accommodation. On the balance of probabilities, I consider the Council gave some consideration to Mrs X’s request and decided not to carry out a review because there was not a relevant change of circumstances. However, I am not satisfied the Council:
• considered Mrs X’s review in a structured way;
• kept suitable records of how it made its decision;
• explained its decision to Mrs X properly; or
• told Mrs X how she could challenge its decision, such as making a complaint to the Council, and the Ombudsman if necessary, if she believed it had not made the decision properly.
40. Those failures were fault. However, on the balance of probabilities, I am satisfied the Council would still have decided not to carry out a review. The closure of the kitchen nearest Mrs X’s room (the main reason for her request) was expected to only be temporary and there were other kitchens and dining spaces available.
41. Mrs X asked the Council to review the suitability of her temporary accommodation a second time in October 2023. This was after a series of disagreements between Mrs X and some other residents in which Mrs X said she was racially abused. She told the Council she wanted a review because:
• she and her children’s welfare and safety were at risk because of racial and verbal abuse from other residents;
• her physical and mental health had deteriorated;
• she could not afford to pay her rent and storage costs at the same time; and
• she had been in temporary accommodation for three years.
42. The Council replied to Mrs X a few weeks later. It told her that it did not appear that staying in the accommodation would place her at harm or there was any medical evidence to show the accommodation was unsuitable due to her health problems.
43. Mrs X sought advice from a solicitor who wrote to the Council setting out more detail about Mrs X’s request for a review. The Council responded setting out, in more detail, its reasons for not reviewing the suitability of Mrs X’s accommodation. It gave an account of the dispute between Mrs X and the other resident Mrs X said had abused her, include that it had investigated the incident and had found that evidence, including CCTV recordings, did not support Mrs X’s account. It also explained Mrs X had not provided any medical evidence to support her claim the accommodation was affecting her health. Mrs X’s solicitor said they would make further arguments on Mrs X’s behalf after it had received her medical records. However, there is no evidence of any further contact after this.
44. On the balance of probabilities, I am satisfied the Council did consider Mrs X’s request for a review in October 2023 and decided not to carry out a review. However, as with the earlier review, I am not satisfied the Council kept clear records about how it made this decision, properly explained its reasons to Mrs X, or explained how she could challenge its decision. Those failures were fault. However, I do not consider that fault caused Mrs X a significant injustice. The Council explained the reasons for its decision in more detail to Mrs X’s solicitor and explained what further evidence it would need to reconsider its decision. There is no evidence Mrs X or her solicitor provided further evidence.
45. In its response to my enquiries, the Council said it had already caried out a review into how it considers requests for reviews of ongoing suitability. The Council should ensure its new policy fully addresses the issues identified above.

Protection of Miss X’s belongings

46. I am not satisfied the Council’s policy of providing most homeless applicants a one-off grant of £200 meets its duties under section 211 and 212 of the Housing Act 1996. The policy does not take account of the Council’s duty to:
• take reasonable steps to prevent the loss of property, or prevent or mitigate damage to it;
• deal with any personal property in any way in which is reasonably necessary, including storing or arranging for its storage; and
• only ceasing to take such steps once there is no longer any reason to believe that there is a danger of loss of or damage it.
47. Where a council should take ‘reasonable steps’, it should consider the circumstances of each case before making a decision. Having a policy which sets out a single option or places other blanket restrictions on the options available, limits the decision-maker’s ability to follow the law. This is called ‘fettering discretion’ and is fault.
48. The Council’s policy also fails to take into account its duties, as a public body, under the Human Rights Act 1998 (Schedule 1, Part 2, Article 1).
49. The law says councils can impose conditions on any steps it takes to deal with personal property of homeless applicants. This can include making a ‘reasonable charge’. However, when deciding what charge to make, if any, a council should take into account both the steps it proposes to take, and the applicant’s personal circumstances, including their ability to pay any charges.
50. The Council paid Mrs X the £200 grant at the beginning of her homelessness. It told her several times that this was all it could do to help protect per possessions. However, it did pay several other sums, though different funds and grants, totalling around £2,595 since March 2020. This was against estimated costs of nearly £12,000 Mrs X says she has paid since she moved into temporary accommodation.
51. I cannot decide what steps the Council should have taken to protect Mrs X’s belongings during the period I can investigate. However, I am not satisfied that the Council properly considered what steps it needed to take during that time, or how much of her storage costs Mrs X could reasonably afford to pay.
52. The Council should review both its policy for providing assistance with protecting personal belongings of homeless applicants and what support it should have provided to Mrs X since July 2022.
53. While reviewing its policy, the Council should assess what Mrs X can reasonably afford to pay towards her storage costs and should pay any difference until its revised policy is agreed. Once a new policy is agreed, the Council should provide ongoing certainty for Mrs X about what support it will provide, subject to any changes in Mrs X’s circumstances.

Investigating allegations of racial abuse

54. Mrs X reported two instances of racial abuse while living in the temporary accommodation. Both incidents involved disagreements with other residents.
55. The first incident happened early 2023. Mrs X reported this to the Council and to the police. According to a later discussion with Mrs X, the Council told her that it needed to wait until the police investigation was completed before it could investigate itself.
56. However, once the police involvement had ended several months later, the Council said it could not properly investigate what happened, as it did not keep a copy of the CCTV footage. Mrs X also said that, because the Council did not keep the footage, it was not available to the police. In its response to one of Mrs X’s complaints, the Council accepted it had not kept the CCTV footage. I am satisfied that failure was fault. If the Council had decided it could not investigate until after any police involvement was over, it should have kept the CCTV recordings so that it could investigate later.
57. I cannot say what would have happened if the Council had kept the recordings. There is a remaining uncertainty about this which is an injustice to Mrs X.
58. The second incident happened later in 2023. This time, the Council investigated the incident more quickly. It said it reviewed CCTV footage but that this did not support Mrs X’s account. It also said it offered to arrange medication between Mrs X and the other resident, but that Mrs X declined mediation, though Mrs X disputes this.
59. On the balance of probabilities, I am satisfied the Council responded proportionately to Mrs X’s second claim of racial abuse. This clearly stemmed from disagreements between Mrs X and another resident about the use of shared facilities in the property. The Council provided suitable advice to both Mrs X and the other resident about how to diffuse any disagreements and I am satisfied it did offer to arrange mediation.

Communication

60. The evidence shows there was extensive contact between Mrs X and the Council over the period I have investigated. I appreciate Mrs X found her time in temporary accommodation very stressful and upsetting. Her living situation while homeless was clearly less than ideal. However, in my view, the volume of contact from Mrs X directed to the Council was significant. In response, the Council appointed a single officer to be Mrs X’s point of contact. It explained to Mrs X that it would respond to non-urgent contact once a week and would not respond further to issues which the Council had already dealt with. I am satisfied the Council’s approach to managing communication with Mrs X was appropriate and it explained clearly what restrictions it was placing on its responses and why.
61. Mrs X made several complaints to the Council over the period I have investigated. Some of the Council’s responses during this time took longer than the Council’s complaints policy. However, given the volume of correspondence from Mrs X during the period I have investigated, I do not consider those delays to be fault.

Effects on Mrs X

62. The Council has accepted the repairs to the kitchen caused Mrs X some inconvenience. It also accepted that it did not keep the CCTV footage from the first incident. In its final response to Mrs X’s complaint, the Council offered Mrs X £750 to recognise the distress she experienced. I am satisfied that this symbolic payment is suitable to recognise the distress and uncertainty I have found the Council caused to Mrs X, as set out above.

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Agreed action

63. Within one month of my final decision the Council should:
• pay Mrs X the £750 it offered her in its final complaint response; and
• review the level of support it currently provides towards the storage and protection of Mrs X’s belongings while it reviews is policy about this.
64. Within three months of my final decision, the Council should:
• ensure its new policy for considering reviews of ongoing suitability of temporary accommodation sets out:
1. the factors the Council will take into account when deciding whether to carry out a suitability review;
2. how the Council will record its consideration of applications for a review of ongoing suitability;
3. that the Council should provide a clear explanation of its decisions to those applying; and
4. any decision should explain how an applicant can challenge the Council’s decision, including through its complaints policy, if they believe the Council has not considered their application properly.
• review its policy on the protection of belongings for people for whom it has a duty, or a power, to take reasonable steps to protect belongings under the Housing Act 1996;
• arrange suitable training for its housing staff on its new policy and the corresponding duties under the Housing Act 1996;
• review:
1. the support Mrs X should have received under its revised policy since July 2022; and
2. the ongoing support it should provide to protect Mrs X’s belongings. It should provide her with certainty about any ongoing support until she is rehoused, subject to any changes in her circumstances; and
• share this decision, the Council’s response to it, and its amended policy with the appropriate cabinet member and scrutiny or oversight committee.
65. The Council should provide us with evidence it has complied with the above actions.

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Final decision

66. I have completed my investigation. There was fault in how the Council recorded and explained to Mrs X some of its decisions, how it decided what steps it should take to protect Mrs X’s belongings and how it failed to keep some video footage of an incident Mrs X was involved in. This caused Mrs X avoidable distress and uncertainty for which the Council has agreed to pay her the financial remedy it has offered. It also agreed to review its policy on protecting the belongings of homeless people and the support it provides to Mrs X with this.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman