Summary: Ms X complained about the suitability of accommodation provided by the Council and said she lived in an unsuitable property with her family for longer than necessary. We have found fault but consider the agreed action of an apology and symbolic payment provides a suitable remedy.

The complaint

1. The complainant, Ms X, complained about the suitability of accommodation provided by the Council from January 2022 when she contacted it about her housing situation.
2. Ms X says this left her living in an unsuitable property with her disabled father and two children one of whom has special needs for longer than necessary.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
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. I have investigated the suitability of accommodation provided by the Council for the period September 2023 to July 2024 only.
8. I have not investigated earlier events about the suitability of Ms X’s previous accommodation from January 2022 to September 2023. This is a late complaint (please see paragraph 4 above). Ms X had a solicitor acting for her at the time and I see no good reason why she could not have complained to the Ombudsman sooner.
9. The Council wrote to Ms X in September 2023 accepting the main housing duty. Ms X complained to the Ombudsman in June 2024. I have used the discretion available to me to investigate Ms X’s complaint about the suitability of accommodation for the period from September 2023 to July 2024 only.
10. I have not investigated the suitability of Ms X’s current accommodation which she accepted in July 2024. This is because Ms X had a statutory right of review and subsequent appeal to court on a point of law (please see paragraph 19 below). The Council advised Ms X of her right to request a review of the suitability of this accommodation by letter dated 16 July 2024. I consider it would be or have been reasonable for Ms X to use this right. I have advised Ms X she might wish to ask the Citizens Advice Bureau (CAB) or other advice agency to help with making such a request to the Council.

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How I considered this complaint

11. I read the papers provided by Ms X and discussed the complaint with her. I have also considered information from the Council. I have explained my draft decision to Ms X and the Council and provided an opportunity for comment.

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What I found

Background and legislation

12. There are two types of accommodation councils provide to certain homeless applicants: interim accommodation and temporary accommodation.
13. 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)
14. If, having made inquiries, the council is not satisfied an applicant is homeless, eligible, and in priority need, it will have no further accommodation duty.
15. 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)
16. 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.
17. 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)

18. 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.
19. Homelessness temporary accommodation must be legally suitable. (Housing Act 1996, section 206) 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)
20. Wherever possible, Councils should avoid using bed and breakfast accommodation. (Homelessness Code of Guidance paragraph 17.33)
21. 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 Homelessness Code of Guidance paragraph 17.35)

What happened

22. The following is a summary of key events. It does not include everything that happened.
23. Ms X was living in accommodation initially provided by the Council under section 188 of the Housing Act 1996. The accommodation comprised two rooms which formed a self-contained unit with cooking facilities and a wet room. The unit was within a House in Multiple Occupation (HMO) and shared a laundry facility. The property is not owned by the Council.
24. The Council did not consider the accommodation fell within the definition of B&B accommodation under the terms of the Homelessness (Suitability of Accommodation) Order 2003 as amended in May 2023. I have seen no evidence to suggest this assessment is incorrect as the two rooms provided to Ms X and her family had their own cooking facilities and a toilet/bathroom for the household’s exclusive use.
25. The Council wrote to Ms X on 7 September 2023 accepting the main housing duty. This noted the Council had secured temporary accommodation for Ms X at her current address. The letter refers to the right to seek a suitability review of any accommodation offered under this duty including temporary accommodation but it does not expressly say Ms X now had such a right about the accommodation she had been occupying from January 2022. Given the important change in the legal duty the accommodation was being provided under I consider the Council’s letter could have set this out more clearly.
26. Ms X’s solicitor wrote to the Council on 13 October about the possibility of legal action. This letter raised specific and detailed issues about the suitability of the accommodation but did not seek a review under section 202 of the Housing Act 1996.
27. In response to the above letter, the Council confirmed on 19 October that an offer of suitable alternative accommodation was being progressed.
28. Ms X’s solicitor sought a review of the suitability of Ms X’s current accommodation on 4 March 2024.
29. The Council made an offer to Ms X on 12 April of alternative temporary accommodation. Ms X refused this offer. The Council wrote to Ms X to discharge its duty on 16 April as she had refused an offer of suitable accommodation.
30. Ms X sought a review of the Council’s discharge decision on 20 April.
31. The Council provided a response to Ms X’s solicitor on 24 June. This accepted Ms X’s current accommodation was unsuitable which was the reason an alternative property had been offered. The Council confirmed this offer had been withdrawn.
32. The Council wrote to Ms X on 16 July to make another offer of alternative accommodation. This letter set out Ms X’s right to request a review of the suitability. Ms X accepted this offer.

My consideration

33. Councils have a duty to keep the suitability of accommodation under review. The Council may agree the accommodation is unsuitable and put the applicant on a transfer list. In that case, the applicant does not need to request a section 202 review. Based on the information provided, I am satisfied this was the case here.
34. In responding to the Ombudsman, the Council has confirmed it had ‘informally’ accepted the temporary accommodation was unsuitable for Ms X’s family from October 2023 and was actively seeking alternative accommodation from that date.
35. The Council has highlighted it was difficult to meet the requirement of a four bedroom property. The Council confirmed it has under 250 four bedroom properties and the difficulty was compounded by the need for the property to be accessible and adapted or adaptable. The Council has recently updated its website to set out the wait for a four bedroom social housing tenancy is 8 to 10 years. The Council further highlighted it had restructured the service and refreshed the sourcing of temporary accommodation with an updated strategy and implemented a dedicated team to complete these functions.
36. Our view is that if a council has decided the applicant’s current accommodation is unsuitable, it is in breach of its statutory duty under section 206 from that point until it provides suitable accommodation. We further consider delay in transferring an applicant to suitable accommodation is service failure even when that is due to external factors beyond the Council’s control.
37. Therefore, the fact the Council did not meet the statutory duty to provide suitable temporary accommodation to Ms X and her family from October 2023 to July 2024 despite its best efforts due to the lack of available properties is service failure. I am satisfied the service failure has caused injustice to Ms X in being deprived of suitable accommodation during what would inevitably have been a stressful period in her life.

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Agreed action

38. The Council will take the following action within six weeks of my final decision to provide a suitable remedy for Ms X:
1. write to Ms X to apologise for not providing suitable accommodation;
2. remove any outstanding charges for the accommodation that was found to be unsuitable; and
3. make a symbolic payment of £1,500 to Ms X to acknowledge her distress for the period living in unsuitable accommodation between October 2023 and July 2024.
39. It would not be appropriate for the Council to deduct the above symbolic payment from any remaining accommodation arrears.
40. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I have completed my investigation as I have found fault but consider the agreed action provides a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman