Summary: Mr X complained about matters relating to her homelessness application. We found the Council to be at fault. It failed to allow her to view temporary accommodation and did not properly consider whether it was of an acceptable standard. It also failed to respond to her complaint. To remedy the injustice to Mrs X, the Council has agreed to apologise, make a payment and review its practices.

The complaint

1. Mrs X complains about repeatedly being placed in unsuitable temporary accommodation. Specifically, she complains about the Council’s:

• refusal to allow her the opportunity to view temporary accommodation before moving in;
• inadequate checks to ensure the property was suitable; and
• poor complaint handling.

2. Mrs X says she has suffered significant distress and inconvenience as a result of being housed in unsuitable accommodation. She says this was avoidable, had she been able to view the properties in advance. The Council’s failure to provide a meaningful response to her complaint about this has also caused additional distress.

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The Ombudsman’s role and powers

3. 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, sections 26B and 34D, as amended)
4. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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

7. Paragraph three applied to this complaint. I have investigated events since February 2023. Mrs X has complained about being provided with unsuitable accommodation several times before then. I will not investigate these earlier events because they happened too long ago. I will not exercise my discretion because I have seen no reason why Mrs X did not complaint to us sooner.
8. I have not investigated the Council’s review of the suitability Property A, because this is closely related to ongoing court action taken by Mrs X about disrepair and was not included within Mrs X’s complaint to either the Council or the Ombudsman. Mrs X has used the statutory review process alongside court action. This means the Ombudsman cannot remedy any injustice that has arisen as a result of Mrs X being placed in unsuitable accommodation.

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How I considered this complaint

9. I read the documents provided by Mrs X’s solicitor.
10. I read the documents provided by the Council in response to my enquiries.
11. I considered the relevant law and guidance.
12. Mrs 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

Relevant law and guidance

Homelessness

13. 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)

Suitability of temporary accommodation

14. Temporary accommodation is accommodation provided to homeless applicants as part of a council’s main homelessness duty.
15. 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)
16. Homeless applicants may request a review within 21 days of being notified of the decision on their homelessness application. There is also a right to request a review of the suitability of temporary accommodation provided once the Council has accepted the main homelessness duty. (Housing Act 1996, section 202)

Council’s policy for deciding the suitability of temporary accommodation/ private rented sector offers

17. The Council’s policy says accommodation must be in a reasonable condition and free from Category 1 hazards, taking into account local housing conditions. The Council says it is required to take reasonable steps to satisfy itself of this, either through property inspection, or evidence provided by the owner/agent (e.g. photographs), along with production of all statutory certificates.

What happened

18. I have set out a summary of key events. It is not intended to be a detailed chronology.
19. Mrs X made a homelessness application to the Council in 2016. The Council accepted she was owed the main homelessness duty. She lives with her four children, aged between 22 and 4. She has been placed in several temporary accommodations, none of which have been either permanent or suitable.
20. In February 2023, Mrs X was offered alternative temporary accommodation at Property A. She was told she had to accept the offer straight away. She asked to view the property, but this request was denied because it was emergency accommodation. She was told she must move in within two days. Due to her previous experience of being moved into unsuitable accommodation, she refused to sign the tenancy. Concerned this would affect her homelessness status, Mrs X sought legal advice. Her solicitor (the Solicitor) wrote to the Council:

• raising concerns about the refusal to allow property viewings for “emergency accommodations”.
• Pointing out that the Council owed Mrs X a duty under s193, not s188.
• Explained two days to move was practically difficult, because she has four children and no car.

21. The Council maintained its position about viewings. In an email it explained, “no pre-viewing will be arranged. We are a service providing emergency accommodation”. It gave Mrs X a week to move and some assistance with moving her belongings.
22. March 2023, Mrs X moved into Property A. Mrs X felt she had no choice but to do so.
23. Upon arrival, Mrs X discovered Property A was worse than her previous accommodation. She saw walls had been painted to conceal the underlying damp and mould. Mrs X says she was told by neighbours that Property A’s previous occupants had moved out due to damp problems.
24. This caused Mrs X considerable distress. Her mental health declined to such an extent she became eligible for disability related benefits.
25. In April 2023, Mrs X’s solicitor formally complained to the Council on her behalf. She complained about:

• The Council’s failure to carry out proper checks when allocating Property A
• The Council’s refusal to allow a viewing.

26. Mrs X also asked the Council to carry out a suitability review.
27. After a chasing email, the Council responded, asking for further time to make enquiries. It said it would respond by 8 June 2023. It did not do so, despite several reminders.
28. Mrs X brought her complaint to the Ombudsman in mid-August 2023.
29. The Council responded on 31 August 2023, following an enquiry by the Ombudsman.
30. This explained that as Mrs X had submitted a suitability review, a complaint could not be considered at the same time. It said issues raised as part of the complaint will be considered during the review.
31. The Solicitor put the Council on notice that it intended to issue judicial review proceedings about the decision not to consider the complaint. It reminded the Council the complaint was about lack of viewings and its processes when allocating properties, it was not about the suitability of Property A. The Council did not respond.
32. In response to the Ombudsman’s enquiries the Council said:

• It was unable to locate the complaint, but would respond if it was lodged.
• It had assessed suitability of Property A and believed it to be suitable based on compliance documents (that took account of health needs, location and affordability).
• And external contractor was dealing with the suitability review. This could not take place until a property inspection took place on 24 January 2024.

Analysis

Failure to facilitate a property viewing

33. Mrs X has also complained about the Council’s policy of not allowing potential residents to view temporary accommodation properties before accepting them. The Council has explained this is because such properties are intended for emergencies, to prevent people from becoming homeless.
34. It is important to draw a distinction here between interim accommodation – which is offered to some applicants while their case is being considered, and is intended to avoid an immediate prospect of homelessness – and temporary accommodation, which is offered to people for whom a homelessness duty has already been accepted, and are awaiting permanent accommodation. While people will typically stay in interim accommodation for only a short period, temporary accommodation can be their home for several years. The Council’s website confirms this when advising homelessness applicants as to what they can expect.
35. At paragraph 15.46, the Homelessness Code of Guidance says:
36. “The Secretary of State recommends that applicants are given the chance to view accommodation that is offered on anything other than an interim basis, before being required to decide whether they accept or refuse an offer, and before being required to sign any written agreement relating to the accommodation (e.g. a tenancy agreement).”
37. The Code of Guidance therefore sets out a clear expectation that people should be allowed to view potential temporary accommodation before being required to accept it. Although it is permissible for councils to depart from statutory guidance, they should only do so where they can demonstrate a good reason for it, and there is nothing to suggest the Council had such a reason here. This, therefore, is fault.
38. I cannot say with any degree of certainty whether Mrs X was disadvantaged because of this fault. This is because, even if she had viewed the property, she may have had to accept it because of her losing her homelessness status if she did not. For this reason, her injustice is limited to her distress and frustration that she experienced because the Council refused to allow her a viewing that she should have been entitled to.
39. I am also concerned the Council is operating a blanket policy not to allow people to view potential temporary accommodation in advance of accepting it, which should not be the case, and it should take steps to address this. I make a recommendation to this effect below.

The Council’s assessment of the suitability of temporary accommodation

40. The Council has a duty to secure suitable accommodation for homeless households to whom it owes a housing duty. To be suitable, the accommodation must be in a decent state of repair and free from hazards. This is confirmed in the Council’s own policy (paragraph 17 above).
41. The Homelessness Code of Practice also says councils should not deem properties as suitable unless they are in “a reasonable physical condition”. The Code also advises councils to ensure an inspection takes place, and attention is given to signs of damp or mould.
42. In response to my enquiry about how it assessed suitability, the Council has provided a very basic checklist that refers to the number of bedrooms, on what floor, whether there is a lift and a journey time. There is no reference to any assessment having been made about the condition of the property which was the main area of concern for Mrs X because of her previous experiences.
43. I have seen no evidence the Council carried an inspection or other enquiry that would have demonstrated whether or not Property A was of an acceptable standard.
44. This was fault.
45. The personal injustice to Mrs X is limited to the distress and frustration she experienced as a result of the Council not following the correct procedure. I am unable to remedy the injustice of her being placed in unsuitable accommodation because this was the subject of the statutory review procedure that falls outside of the Ombudsman’s jurisdiction.

Complaint handling

46. The Councils’ complaint policy states a stage one response should be provided within 20 working days. In this case, it took over six months for Mrs X to be told the matter would not be considered via the complaints process because the suitability review took precedence.
47. During this six months, the Solicitor sent several chasing letters and received what I consider to be confusing and factually incorrect holding responses.
48. I do not agree with the Council’s position that this was not a matter for the complaint process. It was. And the rationale was clearly explained by the Solicitor in several letters. In my view, the complaint about viewings and suitability screening are entirely distinguishable from the separate matter of the suitability of Property A that had its own statutory review process.
49. To compound Mrs X’s frustration, the Council then failed to respond to the Solicitor’s letters about legal action. Again, ignoring a further opportunity to correct previous errors.
50. The Council had a further opportunity to review its position when asked about this by the Ombudsman. Disappointingly the Council said it had no record of the complaint.
51. This chronology provides clear evidence of fault. It is of particular concern that the Council missed so many opportunities to realise it has taken the wrong approach. I am satisfied this caused Mrs X significant frustration and this injustice requires a remedy.

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Agreed action

52. Within four weeks from the date of my final decision, the Council has agreed to take the following action.
1. Apologise in writing to Mrs X.
2. Pay Mrs X £500 as a symbolic payment to acknowledge her distress and frustration caused by its failure to follow the correct procedures and its poor complaint handling.
3. Review and amend any internal policy documents, which say people should not be allowed to view any temporary accommodation (as opposed to interim accommodation) properties in advance of accepting them.
4. Review and amend any internal policy documents it has about the checks that should take place to ensure properties are in a reasonable condition before being offered to tenants.
5. Carry out a review, to establish what went wrong in this case in respect of the complaint handling. It should provide the Ombudsman with a report setting out what action it will take to ensure complaints are dealt with properly.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I have completed my investigation. I have found the Council to be at fault and the Council has agreed with my recommendations to remedy to injustice to Mrs X and improve its service.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman