Summary: Miss X complains the Council did not properly review the suitability of temporary accommodation it provided her when she was homeless, when she asked it to. It also did not properly consider her priority on its housing register. There was fault by the Council which caused Miss X to remain in bed and breakfast accommodation that was unsuitable for her, which caused her distress. The Council agreed to apologise, pay a financial remedy, reconsider Miss X’s housing priority, and produce an action plan to address faults identified in this case.

The complaint

1. Miss X complains the Council placed her in unsuitable accommodation when she was homeless in 2023 and 2024. She says it was not suitable because:
• she has a disability affecting her mobility and the accommodation did not meet her needs;
• it was bed and breakfast type accommodation with shared facilities and so was not suitable for a family with young children;
• the Council moved her out of its area, away from her support system and too far away from her children’s school; and
• she is at risk of domestic abuse from an ex-partner who knows the address of the property.
2. Miss X also complains the Council delayed in adding her to its housing register so she could bid for alternative suitable properties and did not give her the correct priority banding on the register.
3. Because of this, Miss X says:
• she could not successfully bid for a suitable alternative property;
• the pain from her disability worsened and she fell several times. She also could not shower. She experienced depression;
• the long daily travel to school caused the children stress and behavioural problems;
• she was at risk of losing her job. The daily travel to school meant she could not start or finish work on time, and the property was not suitable for her to work from home; and
• she lived in fear of domestic abuse.
4. Miss X wants the Council to give her the correct priority banding on its housing register. She also wants it to consider making her a direct offer of suitable accommodation within its area, due to her exceptional circumstances.

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The Ombudsman’s role and powers

5. 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)
6. 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
7. 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.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)
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 considered:
• information provided by Miss X and discussed the complaint with her;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
10. Miss X and the Council had 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 law and guidance

11. 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.

The relief duty and interim accommodation

12. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. This is called the relief duty. When a council decides this duty has come to an end, it must notify the applicant in writing (Housing Act 1996, section 189B)
13. A council must secure interim accommodation for an applicant 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)
14. Examples of applicants in priority need include people with dependent children, pregnant women, people who are vulnerable due to serious health problems or disability, and victims of domestic abuse.
15. The relief duty ends when the applicant accepts or refuses an offer of accommodation which is suitable and likely to be available for at least 6 months, or, failing this, if 56 days have passed.

The main housing duty and temporary accommodation

16. If a council is satisfied an applicant is unintentionally homeless, eligible for assistance, and has a priority need, it has a duty to secure that accommodation is available for their occupation. This is called the main housing duty. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)
17. The accommodation a council provides until it can end the main housing duty is called temporary accommodation. 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. Interim and temporary accommodation can be the same physical property. What changes is the legal duty under which a council provides it.

Suitability of accommodation

18. 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 (from 3 April 2018) Homelessness Code of Guidance 17.2)
19. In deciding whether accommodation is suitable, authorities must have regard to
• the space and arrangement of the accommodation;
• the state of repair and condition of the accommodation;
• location, including ease of access to established employment, schools and specialist health care; and
• the specific needs of the applicant and any household members due to a medical condition or disability.
20. 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)
21. Councils must keep the suitability of temporary accommodation under review. This is particularly the case when an applicant reports a change in circumstances which might affect the suitability of their accommodation. (Homelessness Code of Guidance 17.8)
22. Anyone who believes their temporary accommodation is unsuitable has a statutory right to ask the Council to review the accommodation’s suitability within 21 days of being notified of the decision. (Housing Act 1996, section 202). There is no statutory right to review the suitability of interim accommodation.
23. Applicants can also ask a council to reconsider its decision about the suitability of temporary accommodation at any time. This might be necessary, for example, if there is a change in the applicant’s circumstances. This new decision is open to review under section 202, with a new 21-day timescale. (R(B) v Redbridge LBC m[2019] EWHC 250 (Admin))
24. Councils must complete reviews of suitability of temporary accommodation within eight weeks of the date of the review request.
25. If a council’s review decides temporary accommodation is unsuitable, the council 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)
26. Councils must advise applicants of their right to appeal to the county court on a point of law, and of the period in which to appeal. Applicants can also appeal if the council takes more than the prescribed time to complete the review. (Housing Act 1996, sections 202, 203 and 204)

Bed and breakfast accommodation

27. Councils should avoid using bed and breakfast accommodation. It should only be used as a last resort in an emergency and then for the shortest time possible. (Homelessness Code of Guidance paragraph 17.24 and from 3 April 2018 17.30)
28. Bed and breakfast (B&B) accommodation can only be used for households which include a pregnant woman or dependent child when no other accommodation is available and then for no more than six weeks. B&B is accommodation which is not 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. (Homelessness (Suitability of Accommodation) (England) Order 2003 and from 3 April 2018 Homelessness Code of Guidance paragraph 17.32)

Housing allocations

29. 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))
30. 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; and
• people who need to move to avoid hardship to themselves or others.

(Housing Act 1996, section 166A(3))

My findings

Suitability of accommodation

31. The Council accepted the relief duty to Miss X in December 2022. She moved into interim B&B accommodation with her two children in late-February 2023. Miss X told the Council as soon as she moved in that she did not consider it to be suitable. She said it was out of the Council’s area and too far away from her children’s school. She also said it was not suitable because of the stairs, as she has a disability affecting her mobility.
32. In May 2023, the Council had not responded to Miss X’s concerns about the suitability of the accommodation, so she made a complaint. Two weeks later, the Council accepted the main housing duty to Miss X. This meant the accommodation changed from interim to temporary.
33. All accommodation provided by the Council to homeless applicants must be suitable for the needs of the specific household. When the Council offered Miss X the accommodation, it had not properly considered whether it was suitable for her. It did not consider the factors described at paragraph 19. It did not record any consideration of an assessment report it had from its occupational therapy service which explained Miss X’s mobility needs. This was fault.
34. Also, the law says B&B accommodation should only be used as a last resort to house families with children or a pregnant woman, and for no more than six weeks. The Council placed Miss X in B&B accommodation in late-February 2023. Miss X remained in this accommodation for over 18 months, until we issued our draft decision, after which the Council offered her a none-B&B alternative. This is fault.
35. We will not usually investigate complaints about temporary accommodation where the complainant has a statutory right of review and subsequent appeal to court on a point of law. We may decide to investigate if there was a good reason the complainant could not appeal. The Council did not properly respond to Miss X’s review request, so did not tell her about the right to appeal to court. This was fault. Because of this, I decided I could investigate the suitability of the accommodation.
36. When responding to Miss X’s complaint in June 2023, the Council accepted the accommodation was not suitable for her because it was B&B accommodation and not suitable for her medical needs. Miss X brought her complaint to the Ombudsman in February 2024. Despite accepting the accommodation was not suitable for Miss X in June 2023, the Council then failed to find an alternative until September 2024, after we issued our draft decision. This is fault; the duty to find a suitable alternative is immediate.
37. The Council confirmed in response to my enquiries that it accepted the accommodation was not suitable for Miss X from the start when it first offered it. However, it said it had no suitable alternative which would meet Miss X’s needs. Efforts made since to secure a suitable alternative were hampered by a lack of supply of accommodation in its area, particularly for people who need adaptations for accessibility. In these circumstances, we consider the fault to be service failure.
38. The Council’s failure to properly consider suitability or to find alternative suitable accommodation, meant the family lived in unsuitable accommodation for over 18 months.
39. The Council offered Miss X a payment of £400. I do not consider this to be suitable in line with our guidance on remedies. This says where a family with children stays in unsuitable B&B accommodation for more than the six-week legal limit, we are likely to recommend a weekly payment of between £100 and £200. Taking into account Miss X’s circumstances, I consider the financial remedy should be a weekly payment of £200.

Housing allocations

40. Miss X was homeless from February 2023. However, the Council did not add her to its housing register so she could bid on social housing until 15 months later in May 2024, after she had complained and approached the Ombudsman. In responding to Miss X’s complaint, the Council accepted it took too long to add her to its housing register. This was fault.
41. Miss X also said the Council did not give her the correct priority on its register.
42. The Ombudsman is not an appeal body. It is not our role to decide what priority a housing applicant should be awarded. We investigate the processes a council followed, to assess whether it made its decisions properly. We may not find fault with a council’s assessment of a housing application, or a housing applicant’s priority, if it has carried this out in line with its published housing allocations scheme. The Ombudsman recognises the demand for social housing far outstrips the supply of properties in many areas. We may not find fault with a council for failing to rehouse someone, if it has prioritised applicants and allocated properties according to its published policy.
43. The Council did not properly consider what Miss X’s priority should be at any point from February 2023 to when it issued its final complaint response in April 2024. It did not consider medical evidence Miss X provided and how this may affect her housing priority. It did not consider her employment status. These are factors which its housing allocation policy says affect someone’s priority.
44. Furthermore, when the Council responded to Miss X’s complaint at Stage 2 in April 2024, it said it would consider whether her priority could be increased based on her medical needs. There was no evidence the Council properly considered this, in line with the complaint outcome it promised. This was further fault.
45. The Council’s failure to properly consider Miss X’s housing priority was fault. If the Council had acted without fault, I cannot say, even on the balance of probabilities, what priority band it would have awarded Miss X. This is a decision for the Council to make based on Miss X’s application, against all the criteria set out in its policy.
46. Miss X could not bid on properties for 15 months from February 2023 to May 2024. The Council also did not properly consider what Miss X’s priority should be. In response to my enquiries the Council provided information about properties available during the relevant period, and what Miss X’s position should have been on its housing register. Based on this information, I am satisfied, on the balance of probabilities, that Miss X did not miss any offers for properties that were suitable for her individual circumstances and needs. However, the Council’s failure to properly handle Miss X’s housing application caused her avoidable distress. The Council should remedy the injustice caused.

The Equality Act 2010

47. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport, and the carrying out of public functions.
48. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. The ‘protected characteristics’ referred to in the Act are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
49. We cannot decide if an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
50. Miss X is disabled, which is a protected characteristic under the Equality Act.
51. The Council did not properly consider the suitability of Miss X’s accommodation, or what priority it should award her on its housing register. Therefore, I am not satisfied the Council had due regard to Miss X’s individual circumstances, as a disabled person, in the decisions it made about her housing. This means it did not properly consider its duties to her under the Equality Act, which was fault.

The Human Rights Act 1998

52. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. The Act requires all councils, and other bodies carrying out public functions, to respect and protect individuals’ rights.
53. Our remit does not extend to making decisions on whether or not a council has breached the Human Rights Act – this can only be done by the courts. But we can decide whether a council has had due regard to an individual’s human rights in its treatment of them, as part of our consideration of a complaint. In practical terms, councils will often be able to show they have complied with the Human Rights Act if:
• they can show they have considered the impact their decisions will have on the individuals affected; and
• there is a process for decisions to be challenged by a review or appeal.
54. I am not satisfied the Council had due regard to Miss X’s human rights under Article 8, which entitles her to respect for her private and family life, and home.
55. The Council did not properly meet its homelessness duties to the family. It did not properly consider decisions about the family’s housing and its suitability, or the impact on their home life. Therefore, it did not properly consider the impact its decisions would have on the family, or have due regard to their human rights. This was fault.

Complaint handling

56. When Miss X complained in mid-2023, the Council should have recognised it needed to direct her to the correct statutory procedure for review of suitability of temporary accommodation. Instead, it continued to consider Miss X’s concerns via its corporate complaints procedure.
57. The Council also took too long to respond to Miss X, which meant she had to come to the Ombudsman, and we had to chase the Council to provide a final response.
58. Once the Council completed its consideration of the complaint, it directed Miss X to The Housing Ombudsman as the independent body to next consider the complaint. This was wrong; it should have directed Miss X to us.
59. The Council’s failure to handle Miss X’s complaint properly was fault, which caused her avoidable time and trouble in the complaints process. The Council should remedy the injustice caused.

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Agreed action

60. Within one month of our final decision, the Council will:
1. apologise to Miss X for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology;
2. pay Miss X a total of £16,000, comprising of:
1. £15,800 to recognise the 79 weeks Miss X and her family spent living in unsuitable B&B accommodation from February 2023 to September 2024; and
2. £200 to recognise the avoidable distress, time, and trouble caused by its poor handling of her housing application, suitability review request, and complaint.
3. reconsider Miss X’s housing application, with all the available evidence it holds on file, against all the criteria set out in its published allocations policy. It will fully record, and communicate to Miss X, the reasons for its decision and what evidence it considered. If the Council decides to increase Miss X’s priority, it will do so immediately, with a relevant priority date of when it first received the evidence on which this decision is based.
61. Within three months of our final decision the Council will review the faults identified in this case and produce an action plan for changes it will make to its housing service procedures, to ensure it:
1. properly considers the suitability of interim and temporary accommodation offered to homeless applicants;
2. where a complaint is about the suitability of temporary accommodation for a homeless applicant, considers this via the correct statutory review procedure rather than responding via the complaints procedure;
3. where a complaint is upheld, ensures promised actions are completed;
4. responds to complaints within the timescales set out in its complaints procedure; and
5. directs to the correct Ombudsman service when it issues its final complaint response.
62. The Council will provide us with evidence it has complied with the above actions.
63. Based on the faults identified in this case, I would usually propose recommendations for the Council to improve its services, to ensure it:
• does not house families in B&B accommodation for longer than the six weeks allowed by law; and
• moves people to alternative accommodation immediately once it establishes their temporary accommodation is not suitable.
64. However, the Council has recently accepted our findings and recommendations in other investigations, about the same faults, covering the same period. Therefore, I do not consider it appropriate to make further recommendations in this case to address these specific faults.
65. Also, I would usually make recommendations to address the delays in adding Miss X to the housing register, and properly considering her priority. Again, we are aware from previous cases the Council is experiencing delays in processing housing register applications, transfers, and reviews, due to increased demand and staffing shortages. Its services are undergoing a major restructure and the Ministry of Housing, Communities, and Local Government has made statutory interventions. Therefore, I have not made further recommendations to address these specific faults. The Council is fully aware of the issue. The Government has directed it to improve the capability and capacity of its housing service, and there is nothing further we can reasonably ask the Council to do.

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Final decision

66. I have completed my investigation. There was fault by the Council which caused Miss X to remain in B&B accommodation that was unsuitable for her, which caused her distress. The Council agreed to our recommendations to remedy this injustice and produce an action plan to address the faults identified in this case.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman