Summary: Ms X complained about the way the Council dealt with her housing. The Council is at fault for failing to issue its response as a new formal suitability decision with review rights. This caused frustration, distress and uncertainty to Ms X. The Council has agreed to apologise and make a payment to Ms X to recognise the personal injustice caused.

The complaint

1. Ms X complains about the way the Council dealt with her housing. She says the Council:

• failed to acknowledge that the temporary accommodation was unaffordable for her and failed to take suitable action;
• refused to move her to affordable permanent or temporary accommodation;
• wrongly ended its responsibility to house her in September 2023;
• failed to pass on the rent she has paid to the managing agent since October 2023;
• wrongly asked the managing agent to evict her; and
• failed to respond to her correspondence and complaints.

2. Ms X says this has caused great distress and made her and her family feel insecure and that they may be evicted at any time. She also says she is being harassed by the landlord to pay outstanding rent.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, 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 not investigated any matters relating to this complaint before February 2023, this is because we cannot investigate late complaints unless we decide there are good reasons. I do not consider there are any good reasons to exercise discretion to investigate any matters before February 2023.
7. I have investigated matters relating to this complaint after February 2023.

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How I considered this complaint

8. I have considered the information Ms X provided. I also considered information the Council provided in response to my enquiries.
9. Ms X and the Council had the opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legislation and guidance

The main housing duty

10. 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. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)

Suitability of temporary accommodation

11. The accommodation a council provides until it can end this duty is called temporary accommodation. (Housing Act 1996, section 193)
12. Homelessness temporary accommodation must be legally suitable. (Housing Act 1996, section 206). Affordability is a criterion for suitability (Homelessness Code, Chapter 17). Anyone who believes their temporary accommodation is unsuitable can ask the Council to review the accommodation’s suitability. (Housing Act 1996, section 202) If the Council’s review decides the 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)
13. Councils must keep the suitability of temporary accommodation under review. (Homelessness Code of Guidance 17.8). Applicants can also ask a council to reconsider its decision about the suitability of temporary accommodation at any time. 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))

Rent payments

14. The Council’s terms for Ms X’s temporary accommodation state that Ms X will pay rent directly to the Council. The managing agent invoices the Council monthly, which the Council then pays at a higher rate than that paid by Ms X.

Background

15. The Council accepted the main housing duty to Ms X in 2021. It provided temporary accommodation to meet this duty.
16. Between October 2021 and February 2023, Ms X contacted the Council on several occasions to say the rent was unaffordable. This also included a complaint Ms X made in June 2022 which the Council did not respond to. Her MP also contacted the Council about this issue on her behalf.
17. The Council responded by referring Ms X to its money advice team. The money advice team asked Ms X to provide her financial information, including bank statements. Ms X declined to share these and so the service closed her case.
18. Ms X told the Council she would pay 75% of her rent per month because the rent was unaffordable. Ms X added the Council told her to move into the property believing the rent would be subsidised by housing benefit. Ms X said she applied for housing benefit however was ineligible.

My investigation – summary of key events

19. In April 2023, the Council’s rent accounts team referred Ms X to the money advice team again to provide support.
20. In early May, the money advice service contacted Ms X. Ms X said she was aware of her rent arrears and again said the temporary accommodation was unaffordable.
21. The money advice service explained options it could explore, which included applying to reduce rent, affordability assessments or payment plans. Ms X said she did not want to provide her bank statements, therefore the service said they could not complete a financial assessment and closed the case.
22. In mid-August, the Council contacted Ms X to say that her tenancy was in arrears, and she had breached the terms of her agreement. The letter said Ms X should either make full payment within seven days or contact the Council to discuss further.
23. In early September, the Council served Ms X with a notice to quit letter due to rent arrears and gave her 28 days to leave her temporary accommodation. The letter said Ms X had rent arrears of over £11,000.
24. The letter also said the Council was considering whether this impacted on her housing application for permanent accommodation, and it would tell her of the outcome of this in writing.
25. Ms X responded to the Council in early October. She said she was not in a financial position to leave the accommodation. Ms X also said the Council’s argument that she refused to submit her bank statements was poor as the Council must make sure temporary accommodation is affordable.
26. Ms X said the Council ignored her when she told it the accommodation was unaffordable many times over several months. Ms X also said she felt compelled to move into the property in 2021, even though it was unaffordable, or remain homeless.
27. The Council responded a few days later saying that Ms X’s failure to provide bank statements meant the money advice team could not complete an affordability assessment which led to her case being closed. The email said that Ms X had failed to take any action or make any repayment proposal since being served a notice to quit letter.
28. In mid-October, Ms X contacted the Council to ask it to review this decision again.
29. The Council responded to Ms X to say it had not issued her with a formal decision that comes with a formal right of review and so there was no review for it to consider.
30. Shortly after this, Ms X’s temporary accommodation placement ended, and the Council noted that her rent arrears exceeded £13,000.
31. Ms X contacted the Council again at the end of October. She said the managing agent of the temporary accommodation had told her the Council had told them to apply to evict her.
32. In mid-November, the managing agent contacted the Council to say they had not received payments for the property from the Council for over a month and Ms X was refusing to leave.
33. The Council responded to say that it had cancelled the placement and if Ms X was refusing to leave, the managing agent should seek legal advice on how to lawfully regain possession of the property.
34. In mid-January 2024, internal Council records show that Ms X contacted the money advice service again and said that she was paying the full rent and had a payment plan to cover the arrears. Ms X was however concerned the Council was not sending these payments to the managing agent of the property.
35. Following this, the recovery department confirmed the payments Ms X was making were going towards paying off the rent arrears and the Council was no longer sending these payments to the managing agent. The money advice service then decided there was no role for them.
36. In mid-February, a housing charity contacted the Council on behalf of Ms X. They asked for the status of Ms X’s housing application. The Council responded the same day saying it could not issue Ms X with a decision letter about this until she has left the temporary accommodation.
37. At the same time, Ms X made a complaint to the Ombudsman. The Ombudsman contacted the Council to ask if it had responded to a formal complaint from Ms X.
38. The Council said that it could only see one formal complaint from Ms X, which was from mid-2022. The Council explained it had much correspondence with Ms X and it could review the situation and see if it was viable to provide a response without impacting on the forthcoming litigation.
39. The Council provided Ms X with a formal complaint response in mid-March. It reiterated the information it had previously shared with Ms X and did not uphold her complaint. It said there was a strong likelihood that it would end its main housing duty to Ms X when she left her temporary accommodation but that this decision would be provided to her in writing.
40. In May, the Council responded to the Ombudsman saying that as Ms X refused to provide the service with bank statements, the service closed her case. The Council said it could not look at affordability again because of this. The Council said it could not make a new decision about affordability, and so there was no right of review offered to Ms X.
41. Ms X remains in the same accommodation.

Analysis

Affordability of the temporary accommodation and the Council’s actions

42. The Council said it completed affordability assessments for Ms X’s temporary accommodation in 2021, and Ms X did not ask for a review of this within the 21-day timeframe. However, Ms X says the Council failed to complete an affordability assessment before she moved into the property. As this is outside the investigation period, I have not considered this affordability assessment.
43. However, Ms X told the Council on several occasions after this, that the temporary accommodation was unsuitable because it was unaffordable. Councils must keep the suitability of temporary accommodation under review. The Council should have considered one of Ms X’s contacts as a request for a suitability review of her temporary accommodation and provided her with a new suitability decision with review rights.
44. The Council did refer Ms X to its money advice service, who could offer affordability assessments. However as Ms X refused to provide the service with bank statements, it closed her case. The Council said it could not look at affordability again because of this, and so could not make a new decision that attracted a new right of review.
45. However, in the Councils final response to Ms X it says it has “deemed the property as affordable…and in the absence of sufficient evidence to the contrary, the Council remain satisfied that this is the case.
46. I accept Ms X’s refusal to share bank statements with the Council meant it could not make a new decision about affordability. However, this does not mean that the Council could not complete a suitability review. The Council could have provided a formal decision with review rights on the basis that it remained satisfied with its position on affordability because nothing had changed due to lack of information provided by Ms X. As the Council did not issue its response on suitability as a new formal decision, Ms X was not given the right to request a review. This is fault which caused Ms X an injustice of uncertainty.
47. Given Ms X has not provided the Council with information necessary to complete an affordability assessment, and the Council’s responsibility to house Ms X (covered separately in this decision), it would not be appropriate to recommend completing a suitability review at this late stage.

The Council’s responsibility to house Ms X

48. Ms X complains the Council refused to move her to more affordable permanent or temporary accommodation and that it wrongly ended its responsibility to house her.
49. At this point, the Council still owes Ms X a main housing duty. The Council has confirmed that Ms X is still on the housing register for permanent accommodation, although this will be reviewed when she leaves her temporary accommodation.
50. The Council did end Ms X’s temporary accommodation contract in October 2023. However, the Council still has a main housing duty to Ms X to provide suitable accommodation.
51. The Council has not provided Ms X with her statutory right to review the suitability of the accommodation. This is fault which caused uncertainty and distress to Ms X.
52. If the Council decides to end Ms X’s main housing duty, then this decision would come with a review right which Ms X can use if she wishes to.

Payments of rent to the managing agent

53. The Council has confirmed the rent Ms X has paid since October 2023 has been credited to the arrears account to reduce the debt owing.
54. The Council confirmed that it stopped paying the provider once the placement was cancelled. The provider has not invoiced the Council since October 2023 and therefore there is no requirement for the Council to pass on the payments to the managing agent. I find no fault here.

The managing agent’s eviction

55. When the Council cancelled the contract, the managing agent contacted the Council to say they had not received payments for the property and that Ms X was refusing to leave. The Council responded to say the managing agent should seek legal advice on how to regain possession of the property.
56. Even if the Council did tell the managing agent to evict Ms X, this is a decision and action the managing agent must take and is a decision it is entitled to make. There is no fault of the Council here.

The Council’s correspondence and complaints

57. When Ms X contacted the Council about the accommodation being unaffordable, 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 this informally, and outside the complaints procedure. This was fault, which caused Ms X avoidable frustration. The Council should remedy the injustice caused.

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Agreed action

58. Within one month of my final decision the Council will:

• apologise to Ms X for the frustration, distress and uncertainty caused by its failure to set out its response as a formal suitability decision with review rights and its fault in complaint handling.
• make a symbolic payment of £250 to Ms X to recognise the distress, caused by the identified faults. This should not be offset against any outstanding debt; and
• circulate this decision to remind staff dealing with homelessness applications of the circumstances in which the main housing duty should apply and where review rights should be offered.

59. 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 the agreed apology.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. I have completed my investigation with a finding of fault causing injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman