Summary: Miss H complains that, after applying to the Council as homeless, it kept moving her and her son, sometimes to unsuitable accommodation. And she missed out on properties, as the Council had not updated her housing register application. She also complains the Council’s communications were poor. We uphold the complaint because the Council kept Miss H’s family in hotel accommodation for too long and did not advise her of what the law says about this, including a delay in advising her of her rights of appeal. Its fault over her housing register application also meant she missed out on properties she would have been successful for. The Council has agreed to our recommendations.

The complaint

1. The complainant, whom I shall refer to as Miss H, complains:
• after making a homeless application, the Council kept moving her and her son between accommodation, some of which was unsuitable;
• the Council did not add her homeless status to its housing register. And the Council did not notice its error through its complaint responses. Because of this she missed out on properties that were advertised for homeless applicants;
• the Council’s communications were poor.

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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. 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. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
5. 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

6. I have investigated Miss H’s complaints about events which took place after she approached the Council in September 2022, saying she needed re-housing. That date is only slightly over 12 months before she complained to the Ombudsman (see paragraph 3) in October 2023. So I have used my discretion to consider it.
7. I have ended my investigation of Miss H’s homelessness complaint at the end of November 2022, when Miss H moved accommodation. With that and subsequent moves, the Council had informed her she could contact it about the suitability of any offer of accommodation. We usually expect applicants to use their review and appeal rights in this respect, subject to any exceptional circumstances (see paragraph 4). My provisional view is it was reasonable for Miss H to have asked for a review then. So I have not investigated that period.
8. There is no alternative remedy available for resolving problems with the housing register. So I have not limited the time over which I have considered this part of Miss H’s complaint.

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How I considered this complaint

9. I have:
• considered all the information provided by Miss H;
• made enquiries of the Council and considered its comments and the documents it provided;
• considered the Housing Act, and the Homelessness Code of Guidance;
• considered the Ombudsman’s guidance on remedies;
• sent two draft decisions to Miss H and the Council, the second after new information Miss H provided. I have also considered the Council’s response.

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What I found

Legal and administrative background

Homelessness

10. 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.
11. If a council has ‘reason to believe’ someone may be homeless or threatened with homelessness, it must take a homelessness application. It must make enquiries to find out if the applicant is:

• eligible for assistance;
• homeless or threatened with homelessness;
• in priority need; and
• not intentionally homeless.

Accommodation for applicants a council decides it owes a duty to

12. While it makes its enquires, 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)
13. If, after an assessment, a council is satisfied an applicant is unintentionally homeless, eligible for assistance, and has a priority need the council has a duty to ensure 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)
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 and temporary accommodation. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)
15. 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.
16. A government Order says Councils should avoid using bed and breakfast (B&B) accommodation. Councils should only use this as a last resort in an emergency and then for the shortest time possible. Councils can only use B&B accommodation for households which include dependent child when no other accommodation is available and then for no more than six weeks.
17. The law defines B&B accommodation as accommodation which is not separate and self-contained, not owned by the Council or a registered provider of social housing and where the toilet, washing, or cooking facilities are shared with other households. So this definition includes hotels rooms without cooking facilities. There is no requirement for breakfast to be provided.
18. The Homeless Code of Guidance says, where councils have placed families in B&B/hotel accommodation they should tell the applicant that it will be unable to continue to place them in B&B accommodation for longer than six weeks. And after that it must secure alternative, suitable accommodation.

Housing allocations

19. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing. All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
20. An allocations scheme must give reasonable preference 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))

21. The Council operates a choice-based lettings scheme which enables housing applicants to bid for available properties which it advertises. Its scheme gives preference for some properties to certain groups, including homeless applicants.

What happened

Background

22. Miss H says she was living in overcrowded housing and ‘sofa surfing’ from 2020. In the autumn of 2021 she had a son. She applied to the Council’s housing register.

The Council’s assessment of Miss H’s homelessness

23. In July 2022 the Council’s records say Miss H advised it her mother was asking her to leave her home due to overcrowding. The Council decided it had reason to believe Miss H was homeless or threatened as homeless, that she had a priority need and that it had a duty to carry out an assessment. It began its assessment on 11 August. It then began to assist Miss H.
24. The Council placed Miss H in a hotel from 12 September, under its duty to provide interim relief. It says its delay in it providing accommodation was because Mss H advised it she had a friend she could stay with. Miss H says she went to the Council on 12 September as she “had run out of options”.
25. Over the following few months Miss H had to regularly move hotels, on the Council’s instruction.
26. On 9 November the Council wrote to Miss H advising it had accepted her as homeless with a priority need. It noted it had a duty to provide her with accommodation and it would be in contact “when we have matched you to a suitable property”. It noted she had a right of review of the decision. And if she was unhappy with any decision or offer of accommodation, she should contact it within 21 days of the decision or offer of accommodation.
27. On 28 November 2022 the Council placed Miss H and her child in an aparthotel room with a kitchenette area. Around a week later the Council placed her in a self-contained flat as temporary accommodation.
28. The Council moved Miss H and her child again in January 2023, because of issues with the previous accommodation.
29. The Council moved Miss H again in later April – to a families hostel as temporary accommodation.

The housing register

30. In August 2022 the Council’s homeless prevention service (Housing Solutions) advised its housing register (Homelink) it had accepted it had a homelessness duty to Miss H. But the Council says its officer that processed the Homelink application did not answer one question. This meant its system did not recognise Miss H’s homelessness. Although there was no change to her banding or start date, it did mean its system could not shortlist her for properties advertised to applicants that were homeless.
31. In late August 2023 Miss H placed a bid for a property that was listed as giving a preference to homeless applicants (among others). Because of the Council’s fault in its not adding her homelessness to its Homelink system, Miss H did not shortlist for that property.
32. Miss H contacted the Council’s Homelink team asking for it to review her application as, from information published by Homelink, she understood she should have been allocated the property.
33. The Council says this prompted its Homelink team to review Miss H’s application. It identified its error. It passed Miss H’s application to the Council’s tenancy and allocations panel.
34. In September the Council emailed Miss H to advise its tenancy and allocations panel approved a direct offer for a two-bedroom house at a named site. It did this as remedy for the fault Miss H had alerted it to. It noted she should have been successful in her August bid, as her band start date was September 2020 and it had allocated the property to a homeless applicant with a later start date.
35. In November Miss H moved to permanent accommodation, through the direct offer. The Council advised Miss H of her right to challenge this move and its subsequent ending of its duties towards her.
36. In response to an earlier version of this statement, Miss H provided evidence of her bids on three other properties – one in February 2023, one in early August and another on the same date as the bid that led to the direct offer. This evidence suggests these properties went to applicants with a later start date than the date the Council cited in its earlier email as Miss H’s start date (see paragraph 34).
37. I asked the Council to comment on this new evidence, including whether Miss H would have been successful in her bids for each of these properties. Its response did not provide any evidence that presented any challenge to Miss H’s view she would have been successful in these bids, but for the fault in the way the Council set up her housing register application.

Miss H’s complaint

38. In April 2023 the Council responded to a complaint by Miss H. It apologised it had not given her a written response to an earlier complaint. It provided a second response in June, and another in July. None of these upheld her complaint. Miss H complained to the Ombudsman in October 2023.

Was there fault by the Council?

39. I find the Council acted appropriately when Miss H first presented as homeless in July 2022. It completed an assessment and accepted it owed her a homeless duty. It attempted to prevent her from becoming homeless by advising her of steps she could take.
40. But this was unsuccessful and Miss H’s friend asked her to leave. The Council then placed Miss H and her child in hotel accommodation, with several moves to other hotels. I cannot fault the Council for the amount of times Miss H’s family had to move, as the law places no limits on the number of placements. But the Council placed Miss H in hotels for 11 weeks, which is five weeks longer than allowed (see paragraph 16). That was fault.
41. The Council should have notified Miss H that there was a six week limit on the use of B&B/hotel accommodation. It did not do this, which was fault.
42. The Council wrote to Miss H on 9 November 2022, advising her it had accepted it had a duty to re-house her. That letter advised Miss H she could ask for a review of the decision on her homeless application, or later decisions or offers of accommodation.
43. But the Council has not got a record that it advised her then that, as a result of its decision, the status of the accommodation she was then in had changed. And she could ask the Council to review the suitability of that accommodation. That accounts for around two and a half weeks of the time she was in hotels (on 28 November the Council moved the family to accommodation that did not meet the definition of ‘B&B accommodation’). My decision is that lack of a record of advice about her right of review for that period was fault.
44. The Council has accepted fault in the way it dealt with Miss H’s application to its housing register. I agree with Miss H that it took her continuing complaints for the Council to recognise its error.

Did the fault cause an injustice?

The time in hotels

45. Having to spend longer than the law allows in hotel accommodation will have caused Miss H and her son significant injustice in the distress and discomfort in living in one room without cooking facilities.
46. The Council did not provide Miss H with advice it should have:
• about its duty to move her from hotel accommodation after six weeks; and
• of her right of review of her accommodation after 9 November.
47. This lack of advice exacerbated Miss H’s injustice. If she had complained after six weeks, or challenged the suitability after the 9 November letter, on the balance of probabilities, the Council would have accepted her hotel accommodation was unsuitable, given what the law says about B&B/hotel accommodation. So that missed advice will have caused Miss H some additional avoidable distress.

The missed bids

48. In February 2023 Miss H bid for a property that, but for the fault, would have been successful. At the time Miss H was living in a hostel and had complained about living in insecure housing. So, on the balance of probabilities, my decision is she would have accepted an offer for this property, so moving to secure accommodation around six months earlier than she did so. That is an injustice that demands a remedy.

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Agreed action

Personal remedy

49. In an earlier statement, I recommended that, within a month of my final decision, the Council take the following actions, which follow the approach set out in the Ombudsman’s guidance on remedies:
• provide an apology to Miss H for the faults I have identified;
• make Miss H a payment of £750 for the five weeks she and her son were in hotel accommodation beyond the maximum time allowed;
• make Miss H a symbolic payment of £200 to recognise the distress and frustration she will feel about the lack of advice the Council gave her regarding what the law says about hotel stays and her review rights.
50. The Council agreed and completed these remedies.
51. The Council has also agreed to my additional recognition that, within a month of my final decision, it make Miss H a symbolic payment of £900 for the injustice of the avoidable extra time she remained in insecure accommodation.

Service improvement

52. In response to another recent Ombudsman decision, the Council agreed to:
• review its procurement policy to reduce the use of B&B/hotel accommodation and increase the supply of other types of temporary accommodation; and
• where a B&B/hotel placement is the only available option, notify applicants with children, or where a member of the household is pregnant, about the six week maximum limit and their right to request a suitability review when the main housing duty has been accepted.

These changes post-date the time of Miss H’s complaint, but should prevent some similar fault happening in the future.

53. But one extra fault this complaint identified is the Council’s duty to advise applicants of their rights to review the suitability of accommodation from the moment the Council accepts a main housing duty towards them. So, within two months of my final decision, I recommended the Council:
• reviews the letter it sends out to applicants regarding its decision on the main housing duty, to ensure it accurately advises applicants of their review rights;
• ensure its officers that use this resource and give advice to homeless applications are advised of this change.
54. The Council has provided evidence it has complied with the above actions.

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Final decision

I uphold the complaint. The Council has agreed to my recommendations, so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman