The Ombudsman's final decision
Summary: Ms X complains her temporary accommodation is unsuitable for her due to antisocial behaviour from her neighbour. She also complains the Council has not given her the appropriate banding in accordance with its allocations policy. We find no fault with how the Council has dealt with Ms X’s housing case.
The complaint
Ms X complains her temporary accommodation is unsuitable for her due to antisocial behaviour from her neighbour. She also complains the Council has not given her the appropriate banding in accordance with its allocations policy.
The Ombudsman’s role and powers
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended) 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)
How I considered this complaint
I spoke with Ms X and considered the information she provided.
I made enquiries with the Council and considered the information it provided.
I sent a draft decision to Ms X and the Council and considered their comments.
What I found
The Council’s Allocations Policy This sets out the Council’s housing banding system to decide who it will prioritise for housing in the borough. The housing bands are summarised below: Band 2: those who need to move and fall within one of the Reasonable Preference categories but also qualify for the positive Community Contribution criteria such as being in employment, training or voluntary work.
Band 3: those who need to move and fall within one of the Reasonable Preference categories but do not qualify for the positive Community Contribution criteria.
Band 4: those who need to move and fall within one of the reasonable preference categories but have had their preference reduced due to, for example, no local connection.
The policy notes that residential connection will normally mean that an applicant currently lives in the borough and has continuously done so for a minimum of 5 years.
Homelessness If a council is satisfied someone is eligible, homeless, in priority need and unintentionally homeless it will owe them the main homelessness duty. Generally, a council carries out the duty by arranging temporary accommodation until it makes a suitable offer of social housing or private rented accommodation. (Housing Act 1996, section 193) The law says councils must ensure all accommodation it arranges for homeless applicants is suitable for the needs of the applicant and members of their household. This duty applies to interim accommodation and accommodation provided under the main housing duty. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2) What happened In December 2019, the Council accepted it owed Ms the main homelessness duty and accepted her onto its housing register. The Council awarded Ms X Band 4 as she did not have a residential connection. The same month, Ms X moved into temporary accommodation.
In February 2020, Ms X contacted the Council to raise concerns about the behaviour of her neighbour. She highlighted she felt unsafe and wanted the Council to move her.
In August 2020, Ms X again told the Council she did not feel safe in her property and the property was making her mental health worse. The Council asked Ms X to provide medical documents to support her claim.
In September 2020, the Council sent the medical documents to its medical advisor to consider. The Council’s medical advisor noted the issues Ms X raised were for the police and the temporary accommodation was suitable on medical grounds.
In November 2020, Ms X asked the Council to review its banding decision. The Council responded and said its decision was correct and in line with its allocations policy as Ms X had not lived in the borough for a continuous five-year period. Council said it had not been able to gather any evidence to show she had lived in the borough for the five years needed to get a higher banding.
In January 2021, Ms X contacted the Council to raise concerns again about harassment from her neighbour. She told the Council she could not live in the accommodation as she felt scared and threatened. Near the end of January 2022, the Council again confirmed it had awarded Ms X the correct band. The Council told Ms X if she provided more information about the domestic violence she had experienced, it could consider this.
In April 2021, the Council received further information from Ms X about the domestic violence she had experienced. Based on this information, the Council was satisfied Ms X had been made homeless due to domestic abuse and decided to waive the requirement for a residential connection. The Council told Ms X it would reassess her banding and will write to her with the outcome of her banding.
In May 2021, the Council asked its medical advisor to consider Ms X’s case to decide whether it should also waive the community contribution requirement. This was because Ms X received personal independence payments and employment support allowance.
In June 2021, the Council received the medical advice back from its medical advisor. The medical advisor said the professional information regarding treatment for Ms X’s stated mental health conditions were out of date and that it was unclear what services and pharmacological treatments Ms X was receiving. The advisor also noted there was no evidence Ms X was not independent in daily function and so waiver of community contribution on medical grounds was not agreed.
The Council agreed Ms X’s banding as Band 3 in July 2021. The Council backdated the band date to April 2021. Ms X asked the Council to review its decision on her banding as she felt she should receive Band 2.
The Council responded to Ms X’s review request at the end of July 2021. The Council said it received the information which led to it exercising discretion to waive the residential criteria in April 2021. The Council explained it had considered whether to waive the community contribution criteria but since medical advice was for this not to be waived, the Council considered it was reasonable to apply the criteria.
In August 2021, Ms X’s solicitors asked the Council review Ms X’s temporary accommodation. Ms X’s solicitors said the accommodation was unsuitable as she was being harassed, abused, and received threats of violence by her neighbour. Ms X’s solicitors also asked the Council to complete a formal review of its banding decision. Ms X’s solicitors challenged the Council’s decision not to backdate the banding to when she was placed on the housing register and argued the Council had not exercised discretion to waive the community contribution criteria.
Also in August 2021, the Council offered Ms X alternative accommodation out of the borough. Ms X’s solicitor asked the Council to withdraw the suitability review request and that Ms X had highlighted she would prefer to remain in her current property while permanent accommodation was found. Ms X told us she felt forced to remain in the temporary accommodation which she considered to be unsuitable as she did not want to move out of the borough.
In September 2021, the Council withdrew its offer of accommodation.
In October 2021, Ms X’s solicitors sent the Council some further information. The Council sent this information to its medical advisor to assess. The Council also asked the medical advisor to consider whether it should waive the community contribution requirement.
The medical advice received was that Ms X lived in accommodation with access to normal facilities and was suitable on medical grounds. Also, as Ms X appeared to retain reasonable independent function, there was no compelling medical reason to waive community contribution.
The Council responded to Ms X’s banding review in November 2021. The Council confirmed: The band award date was correct as April 2021 was when the Council received the new information which led to it exercising discretion to waive the residential connection criteria. The Council explained if Ms X had not provided this information, she would have remained in Band 4.
Its medical team had reviewed her case twice and concluded that the evidence Ms X submitted regarding her disability and medical circumstances did not show she was unable to engage with employment, training, or voluntary work. Therefore, there was no compelling medical reason to waive the community contribution criteria and award Ms X a higher band.
In November 2021, the Council offered Ms X long term accommodation outside of the borough to discharge its Section 193 duty to her. Ms X’s father contacted the Council to advise Ms X was having a mental health crisis and accepted the property on her behalf. Mr X’s father also asked the Council to complete a suitability review of the accommodation offered.
In December 2021, Ms X asked the Council to postpone her move as she had medical appointments to attend. After the Council received evidence of the outstanding medical appointments, the Council withdrew its offer.
In May 2021, the Council made Ms X a final offer of private rented sector housing within the borough.
Analysis Banding award The Council’s allocations policy notes the criteria for banding awards. It is clear from the evidence the Council at first awarded Ms X Band 4 as she did not meet the residential connection criteria. This was because the Council was not satisfied Ms X could evidence she had continuously lived within the borough for a minimum of five years.
Therefore, there is no fault as the Council’s decision was in line with its allocations policy.
When the Council received new information from Ms X about her experience with domestic violence, the Council appropriately reviewed its banding decision. The Council decided to exercise its discretion and waived the residential connection criteria and awarded Ms X Band 3.
Therefore, there is no fault with the Council’s decision as the evidence showed the Council properly considered all relevant information before it decided to exercise discretion. The Council’s decision to award Ms X Band 3 is also in line with its allocations policy as Ms X did not meet the criteria for a Band 2 award.
The Council sent Ms X’s medical information to its medical advisors for an assessment twice, in June and October 2021, when it was considering whether to waive the community contribution criteria. Both times the medical advisors noted there was no compelling medical reasons to agree to a waiver of the community contribution.
Therefore, we are satisfied the evidence shows the Council did properly consider whether to exercise discretion. While we understand Ms X is disappointed by the Council’s decision not to waive the requirement, this was a decision the Council was entitled to make after considering the relevant information.
Finally, there is no fault with the Council’s decision to backdate the Band 3 award to April 2021. This is because this was the date the Council received the new evidence which led to the change in banding.
Suitability of temporary accommodation The evidence shows Ms X told the Council of her concerns about harassment from her neighbour since moving into her temporary accommodation.
Ms X’s solicitors first asked the Council to review the suitability of Ms X’s temporary accommodation in August 2021. There is no statutory right of review of interim accommodation, but the law makes clear any accommodation, including interim/temporary, provided must be suitable.
Evidence shows the Council sent Ms X’s medical information to its medical advisor several times to consider whether the accommodation was unsuitable on medical grounds. The advice returned was the property was suitable for Ms X’s medical needs.
Councils must also consider any risk of violence for the applicant when deciding whether accommodation is appropriate. The accommodation they offer should not place the applicant, or any member of the household, at risk of further violence.
It does not appear from the evidence available the Council considered this or made any decision about whether Ms X’s temporary accommodation was suitable for her. Instead, following the request, the Council offered Ms X alternative accommodation out of the borough.
Therefore, although the Council likely never formed a view of whether the temporary accommodation was suitable for Ms X, we consider it acted appropriately by offering Ms X alternative accommodation. This is because it provided Ms X the opportunity to move out of the accommodation she considered unsuitable.
We recognise Ms X was unhappy the alternative accommodation the Council offered was out of the borough. We also accept Ms X felt she had not choice but to remain in the property which she considered unsuitable.
The Act says authorities must, “so far as is reasonably practicable”, secure accommodation in their own area (section 208). So, we cannot automatically find fault when an authority places an applicant in interim accommodation outside its area. However. since Ms X never moved to the alternative accommodation offered, we do not consider it is proportionate for the Ombudsman to consider whether there was any fault by the Council in making the offer.
Further, while the Council did not decide whether the temporary accommodation was suitable for Ms X, I don’t consider the Council was at fault for this. This is because Ms X withdrew her request for a suitability review in August 2021, after receiving an offer of alternative temporary accommodation outside of the borough. Therefore, since Ms X withdrew her request, it would be reasonable for the Council to decide Ms X no longer considered the accommodation to be unsuitable.
Final decision
I find no fault with how the Council has dealt with Ms X’s housing case. Therefore, I have completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman