Summary: Miss Y complained about the Council’s handling of her homelessness and housing applications, specifically its processing of her change in circumstances. We have found fault by the Council, causing injustice, in: its delays and communication failures processing Miss Y’s change in circumstances; failing to respond properly to her request for a suitability review; failing to move her to suitable temporary accommodation; failing to make proper efforts to fulfil its duties and have an agreed transparent policy for operating its transfer list. The Council has agreed to remedy the injustice caused by: apologising to Miss Y; making payments to reflect distress, uncertainty and the impact of living in unsuitable accommodation; and service improvements.

The complaint

1. The complainant, Miss Y, complains about the Council’s handling of her homelessness and housing applications. She says it:

• delayed and misled her about the processing of the notification of her child’s birth and change of circumstances;
• failed to move her to larger accommodation as it said it would it do once her child was born;
• misled her about the action it was taking to move her. She was told the booking form for her move had been sent to the accommodation team when this wasn’t true; and
• failed to respond to her contact about a move and an offer of permanent accommodation.

2. Miss Y says the Council’s failures have affected her mental and physical health and her children’s wellbeing. She is living in unsuitable accommodation which is not large enough for her family’s needs.
3. She wants the Council to move her to suitable accommodation and offer her a permanent home.

The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
5. 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)
6. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’.
7. 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)
8. 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

9. I spoke to Miss Y, made enquiries of the Council and read the information Miss Y and the Council provided about the complaint.
10. I invited Miss Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Suitability of temporary accommodation provided to homeless applicants

11. 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. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)
12. Councils have a duty to keep the suitability of accommodation under review. An applicant may ask a council to reconsider the suitability of their current temporary accommodation if their circumstances change. For example, if their medical or disability-related needs change or there is an increase in the size of their household. An officer should then make a suitability decision.
13. If an applicant disagrees with a decision about suitability, they have the right to ask for a review of the decision. (Housing Act 1996, section 202)
14. If the council’s review decides the accommodation is unsuitable, it must provide suitable accommodation. If the review decides the accommodation is suitable, the applicant has the right to appeal to the county court on a point of law. (Housing Act 1996, section 204)
15. The duty to provide suitable accommodation is immediate, non-deferable, and unqualified. Elkundi, R (On the Application Of) v Birmingham City Council [2022] EWCA Civ 601

Unsuitable Temporary Accommodation: Our Guide for Practitioners

16. In May 2023, we issued guidance about unsuitable temporary accommodation to councils with housing responsibilities.

17. In this guidance we said:

• we did not consider 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 (see paragraph 15) that putting an applicant 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:
• we recognise 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; and
• we encourage councils to maintain a policy or procedure setting out how they allocate temporary accommodation.

18. We also said we recognised the reality that a shortage of available accommodation means councils are not always able to fulfil their immediate duty to provide suitable temporary accommodation.
19. But in these cases, we expect to see evidence of councils making efforts to fulfil their duties both at the individual and strategic level. This could include evidence of approaching housing providers, or Registered Providers about using their available stock, or temporary support to reduce the impact of unsuitable accommodation.

What happened

20. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Complaint background

21. The Council accepted it owed Miss Y the main housing duty in 2018 and provided her with temporary accommodation.
22. The Council also placed Miss Y on its housing register in priority band 3, effective from July 2018, with a priority star for homelessness.
23. Miss Y moved to her current temporary accommodation, a one-bedroom self-contained flat, in December 2022. She had a young child and was expecting a second child. She asked the Council to review its decision the accommodation was suitable for her.

February 2023: The outcome of the suitability review

24. The Council issued its review decision. It said it had considered:

• the medical information available and was satisfied the accommodation was not unsuitable on medical grounds; and
• the accommodation was a suitable size for her household and not overcrowded.

25. The Council upheld the decision Miss Y’s temporary accommodation was suitable for her. It told her about her right to appeal to court if she believed its decision was wrong in law.
26. The Council also referred to their telephone conversation on 10 February in which it advised Miss Y she could submit a change of circumstances form once her second child was born. Her change of circumstances would be considered at that point.

June 2023: Miss Y’s notification of her change in circumstances

27. Miss Y’s second child was born in May.
28. Miss Y phoned the Council on 15 June to tell it about her child’s birth. The Council says it advised her to submit the change of circumstances form. It told her it could not send a booking form for a transfer to the placements team until the child had been added to Miss Y’s homelessness and housing applications.
29. Miss Y submitted her change of circumstances form the same day (15 June).

July to October 2023: Processing Miss Y’s change of circumstances

30. The Council says it logged Miss Y’s change of circumstances form on 31 July. But it could not progress the change because Miss Y had not provided the child’s birth certificate.
31. The Council did not update or contact Miss Y about her change in circumstances. She complained to the Council in August about the delay with this.
32. In its response, the Council said:

• it had logged her form on its system, but not taken any further action because it hadn’t received the birth certificate;
• it noted Miss Y had provided further copies, but it had no record of these on its file. It asked her to send the certificate again and its applications team would then update her within 28 working days; and
• its timeframe for processing a change of circumstances was 28 days from receipt. It apologised for the delay in processing Miss Y’s change of circumstances.

33. Miss Y sent further copies of the birth certificate on 22 September and 2 October, and on 5 October, when the Council asked her again for this.
34. The Council added Miss Y’s second child to her homelessness and housing applications on 6 October.

Miss Y’s request for a transfer to larger temporary accommodation

35. The Council says Miss Y contacted its housing team many times between June and October 2023 about her request to move to larger temporary accommodation. It explained it could not send a booking form to the placements team until her second child was added to her homelessness application.
36. Miss Y contacted the Council again after her second child was added on 6 October. The booking form for a transfer was sent to the placements team on 13 October.
37. The Council added Miss Y to its transfer list on 1 November 2023 and recorded the reason for the move as disrepair and overcrowding.

Miss Y’s further complaint and request for a suitability review

38. Miss Y made a further complaint to the Council about its delays on 19 October. She said the housing team had failed to provide her with support, reply to emails, return calls, or send the booking form to the placements team.
39. Miss Y also asked the Council to review the suitability of her current temporary accommodation.
40. The Council told Miss Y it had already conducted a statutory suitability review and she was now out of time to appeal to the county court. The placements team could conduct a non-statutory review.

November 2023: The Council’s final complaint response

41. In its final response to Miss Y’s complaint the Council said:

• it accepted she had provided it with copies of the birth certificate, but these weren’t added to her file. It had not told her in July it didn’t have the certificate;
• it had failed to process her change of circumstances form within its 28-day timescale and delayed responding to her initial complaint; and
• it apologised for the delays, which were caused by the huge backlog of change in circumstances forms going back to 2022.

42. The Council confirmed it had received her request to move to larger accommodation. But it might take some time to find a suitable alternative because temporary accommodation was in short supply.
43. It offered her, as a remedy for the poor customer service, payments of £100 as redress for the delay in issuing its complaint responses, and £150 for her time and trouble chasing it about her change of circumstances.
44. Miss Y was not satisfied with the proposed redress. She told the Council it did not reflect the impact on her and her children. It should offer her a permanent home now as a remedy for the very poor service rather than moving her to larger temporary accommodation.

Enquiries about the Council’s temporary accommodation transfer list

45. The Council told Miss Y the transfer list was based on priority need. It said many families had been waiting two years or more for a transfer and it couldn’t give her a timeframe for a move.
46. But when we asked the Council about its procedures for adding and prioritising applicants on the transfer list, it told us the list:

• was for both applicants who had asked for a move and those whose current temporary accommodation was deemed unsuitable after a review;
• records the date when the need to move was identified, with priority being based on chronological order, on a first come first served basis; and
• was reviewed daily to match available properties with applicants on the list.

47. It also said the waiting time on the transfer list for two/three-bedroom accommodation is currently more than one year.

Timescales for processing change of circumstances

48. The Council has told us Its applications team has now cleared the backlog and expects to meet its 28-day timescale for processing change of circumstances going forward.
49. It also said it is working to improve the change of circumstances submission process, the ability to report on timescales and workflow efficiency.

My view – was there fault by the Council causing injustice?

a) Delay in processing Miss Y’s change in circumstances

50. Miss Y followed the Council’s procedure when she notified it on 15 June 2023 about the change in her circumstances - her second child’s birth.
51. The Council has accepted it delayed processing the change of circumstances. This should have been completed by 13 July (28 days from 15 June). But it wasn’t done until 6 October, and only after Miss Y had complained about the delay.
52. I don’t consider I have seen evidence to show the Council deliberately misled Miss Y about the progress of her change of circumstances and transfer request. But the Council has accepted it wrongly told Miss Y she hadn’t provided the birth certificate and required her to re-send this a number of times, when she had already submitted it.
53. These delays and communication failures were fault.

Impact of the delay and communication failures

54. The delays and communication failures caused Miss Y frustration and upset at having to chase the Council and re-send information she had already provided.
55. The delay in processing the change in circumstances also caused Miss Y distress and uncertainty about whether and when the Council would agree her current accommodation was unsuitable and add her to the list for a move to larger accommodation.
56. My understanding is the Council has accepted that, following the birth of her second child, Miss Y’s current one-bedroom accommodation is no longer suitable for her and her family. It added her to the transfer list on 1 November, having assessed the accommodation as unsuitable due to overcrowding and disrepair.
57. I consider it likely, had the Council properly processed Miss Y’s change of circumstances, it should have been able to make a decision about suitability of her current accommodation by about 8 August - within a few weeks of 13 July (the date on which it should have completed the processing of her change in circumstances).

b) Response to Miss Y’s request for a suitability review

58. I haven’t seen any information showing the Council notified Miss Y it had reviewed her change of circumstances and decided her current temporary accommodation was unsuitable. This failure was fault.
59. Because of this, Miss Y was uncertain about her position and put to the trouble of asking the Council to carry out a formal review of the suitability of her current accommodation.
60. Miss Y had the right to ask for a review of the new decision it had just made, based on her changed circumstances, following the birth of the second child. But the Council wrongly told her it had already carried out a statutory suitability review. It seems to have been referring to the February review completed before the change in Miss Y’s circumstances.
61. This failure to respond properly to Miss Y’s review request was fault.

Impact of the failures regarding the suitability review

62. At the time Miss Y made her request in November, for a suitability review, the Council had already decided her current accommodation was unsuitable and agreed her request to move to two-bedroom accommodation.
63. But I consider the incorrect response to Miss Y’s request caused her additional worry and uncertainty about her situation.

c) Suitability of Miss Y’s current temporary accommodation

64. The Council has accepted Miss Y’s current temporary accommodation is now unsuitable. It has not moved her to larger accommodation and cannot give any timescale as to when it will be able to secure new suitable accommodation for Miss Y.
65. I understand there may be difficulties caused by a general shortage of housing, including temporary accommodation, in the Council’s area. But I do not have any evidence from the Council about the situation. On the basis of the information available, I have found the Council’s failure to meet the statutory duty to provide Miss Y with suitable temporary accommodation is fault.

Impact of the failure to provide suitable accommodation

66. Miss Y and her two young children have been in unsuitable accommodation – a one-bedroom flat instead of two-bedroom accommodation since 8 August 2023 (the date on which I consider, but for its delays, the Council should have decided the accommodation was unsuitable) . This fault has caused and continues to cause, Miss Y and her children injustice because they are living in overcrowded accommodation.
67. Where an applicant is living in unsuitable accommodation because of the Council’s failure, our recommendation for financial redress is likely to be in the range of £150 to £350 a month. We assess the impact in each case on its individual circumstances. Here, taking into account the very young ages of the children, I consider a payment of £150 a month is appropriate.
68. I appreciate Miss Y asked the Council to offer her permanent accommodation now as a remedy for its poor service. But the Council must follow its published allocations policy and make all allocations in strict accordance with this policy.
69. I consider the agreed actions below are a suitable way to remedy the personal injustice the Council’s faults have caused Miss Y.

Action by the Council to increase its access to temporary accommodation

70. We expect to see evidence of councils making efforts to fulfil their duties both at the individual and strategic level.
71. The Council has not provided any evidence of any proactive action it is taking to try and increase its access to temporary accommodation. In my view a failure to make these efforts to fulfil its duties is fault. This means applicants on its transfer list may be waiting longer for a move to suitable temporary accommodation.

Transfer List

72. In my view the operation of the Transfer List is unclear. The Council has provided contradictory information about how the list operates.
73. It told Miss Y its list was based on priority need. But it told us the list was based on chronological order – first come first served. And that it includes applicants who have asked for a move as well as those who the Council has assessed as being in unsuitable temporary accommodation.
74. The Council has not provided evidence of any agreed policy or procedure for operating the transfer list. I consider the failure to have a transparent agreed procedure is fault.
75. Because of this, the Council cannot show it is operating the list in a consistent way and properly considering the circumstances of each applicant’s case. Some applicants on the list may be waiting longer in unsuitable accommodation than they would if the list was properly operated in accordance with an agreed policy.

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Agreed action

76. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Miss Y for its delays and communication failures in processing her change of circumstances, its failure to respond properly to her request for a suitability review, and its failure to move her to suitable accommodation. This apology should be in line with our guidance on Making an effective apology;
2. pay Miss Y £300 to reflect the frustration, upset and uncertainty caused by its failures. This is a symbolic amount based on our guidance on remedies
3. pay Miss Y £1,800 for the time (12 months) she has spent in unsuitable accommodation from 8 August 2023 to date; and
4. continue to pay Miss Y £150 a month for the time she continues to spend in unsuitable accommodation from the date of this decision until she is moved to suitable temporary accommodation, or the Council otherwise ends its duty.
77. And within three months from the date of our final decision, the Council has agreed to:
1. provide an update on the action it has taken to improve its procedures for processing change in circumstances and confirm its current timescale for completing changes;
2. produce a published policy or procedure explaining how the transfer list works, including the criteria for being placed on the list, the criteria for priority within the list and how temporary accommodation is allocated within the list;
3. review the current list to ensure it is being properly operated in accordance with the Council’s policy;
4. carry out a review of its procurement of temporary accommodation and identify ways of increasing the supply of different types of temporary accommodation suitable for families: and
5. provide training to officers about the guidance “LGSCO Unsuitable Temporary Accommodation: Guide for Practitioners (May 2023)”
78. The Council should provide us with evidence it has complied with the above actions.

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Final decision

79. I have completed my investigation and found fault by the Council causing injustice. The Council has agreed to take the above action as a suitable way to remedy this injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman