The Ombudsman's final decision
Summary: Mrs X complained the Council provided unsuitable emergency accommodation, failed to inform her about the storage of her possessions and that offers of temporary accommodation were unsuitable due to being located outside the local area causing distress to the whole family. The Council failed to send Mrs X decision letters including when it accepted the main housing duty meaning Mrs X was not aware of her right to appeal the suitability of her temporary accommodation. This was fault as well as the Council not having a policy to provide help with the storage of belongings. A suitable remedy is agreed.
The complaint
Mrs X complains the Council provided unsuitable emergency accommodation, failed to inform her about the storage of her possessions and that the offers of temporary accommodation have been unsuitable due to being located out of the local area.
Mrs X says this has caused distress to the whole family.
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 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) 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
As part of the investigation, I have: considered the complaint and the documents provided by the complainant; made enquiries of the Council and considered the comments and documents the Council provided; discussed the issues with the complainant; sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.
What I found
Relevant law and guidance: homelessness The Housing Act 1996 (part 7) and the Homelessness Code of Guidance (the Code) set out councils’ powers and duties to people who are homeless or threatened with homelessness.
Homeless definition Someone is homeless if they have no accommodation or if they have accommodation, but it is not reasonable for them and anyone who lives with them] to continue to live there. (Housing Act 1996, Section 175).
Relief duty Where a council is satisfied a person is homeless and eligible for support, it has a duty to take reasonable steps to help the person secure accommodation that will be available for at least 6 months. This is the relief duty, and it applies for 56 days. The council should set out the steps that it, and the person, will take in a Personal Housing Plan (PHP).
Main housing duty If, at the end of the relief duty period, a council is satisfied an applicant is homeless, eligible for assistance, has a priority need and is not intentionally homeless, the council has a duty to secure that accommodation is available for their occupation. This is called the main housing duty. (Housing Act 1996, section 193) Temporary and interim accommodation There are two types of accommodation councils provide to certain homeless applicants: interim accommodation and temporary accommodation.
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) 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.
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) 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.
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) 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.
Suitable accommodation 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 accommodation and temporary accommodation provided under the main housing duty. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2) Councils must assess whether accommodation is suitable for each household individually. Whether accommodation is suitable will depend on the relevant needs, requirements and circumstances of the homeless person and their household. (Homelessness Code of Guidance 17.4 & 17.9) 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) Decisions and review rights After completing enquiries, the council must give the applicant a decision in writing explaining what duty is owed. If it is an adverse decision, the letter must fully explain the reasons. All letters must include information about the right to request a review and the timescale for doing so. (Housing Act 1996, section 184, Homelessness Code of Guidance 18.32 and 18.33) Key homeless decisions carry a right of review within 21 days of being notified of the decision. This includes a council’s decision that an applicant is not eligible for housing assistance. (Housing Act 1996, section 202) Protection of belongings Where the council owes or has owed certain housing duties to an applicant, it must protect the applicant’s personal property if there is a risk it may be lost or damaged. A council may make a reasonable charge for storage and reserve the right to dispose of the property if it loses contact with the applicant. (Housing Act 1996, section 211, Homelessness Code of Guidance chapter 20) Key facts Mrs X has a large family but I will not be more specific about the family composition to protect their anonymity. One of Mrs X’s children has medical needs for which he receives specialist healthcare locally.
In August 2022 Mrs X contacted the Council reporting a leak at her privately rented property which meant the family could not stay there. The Council provided hotel accommodation for the family. The Council then issued a personal housing plan (PHP) which required Mrs X to provide further information and supporting documentation. After four nights in hotel accommodation, the Council moved Mrs X to interim accommodation. This consisted of two separate self-contained studio apartments within the same block each with one living area also used as the bedroom, a bathroom and a kitchen.
In September, Mrs X returned to her rented property to collect some belongings. She was unable to access the property as the landlord had changed the locks. The Council advised Mrs X to contact a charity to claim legal aid and pursue a damages claim against the landlord. It also advised Mrs X to seek accommodation in the private rented sector as she was unlikely to be allocated social housing.
Mrs X advised the Council of a potential private sector property. The Council contacted the letting agent but Mrs X failed the credit checks and so was unable to rent it. In November 2022, Mrs X advised the Council she was finding it difficult to find a private sector property. The Council asked if she would consider a three bedroom property. It also wrote to Mrs X with two offers of alternative temporary accommodation. A four bedroom house in Northampton and a three bedroom house in Peterborough. Mrs X declined the offers saying she needed to remain within the Broxbourne area.
Mrs X made a formal complaint to the Council in May 2023. She complained the Council had failed to issue a PHP, failed to notify her in writing about the end of the relief duty or the acceptance of the main housing duty, provided unsuitable temporary accommodation and failed to assist with storage of belongings. The Council responded on 7 June accepting it had failed to notify Mrs X that it had accepted the relief and main housing duty and it apologised.
Mrs X was dissatisfied with the response saying it did not address her complaint. She said the delay in properly progressing her homeless application meant she was unable to exercise her right of review on the suitability of the temporary accommodation. Also, that it failed to respond to her concerns about the storage of her possessions and failed to properly assess the family’s housing needs including her son’s health issues.
The Council responded to Mrs X’s stage two complaint on 26 June. It said it had accepted the main housing duty in November 2022 but did not issue a letter stating this until 6 June. It apologised and said it would extend the right to seek a review of the suitability of the temporary accommodation until 31 July 2023. It also said it would send the medical evidence in respect of her son to its independent medical advisors for assessment. It said that it was able to assist with the storage of Mrs X’s belongings and financial help, in the form of a loan, could be provided.
On 21 June the Council made an offer of temporary accommodation in Nottingham. Mrs X declined the offer and the Council agreed it was not suitable and withdrew the offer. On 6 July, the Council offered Mrs X temporary accommodation outside its area which Mrs X accepted and she moved to the property on 1 September. On 18 September Mrs X submitted a review regarding the suitability of the temporary accommodation. The Council advised on 28 September that it would respond to this request within 28 days. However, it did not respond until 14 November. It provided a detailed explanation of its reasons for determining that the accommodation was suitable.
Analysis When Mrs X first contacted the Council in August, she was unable to occupy her property and so was homeless. At this point the relief duty applied. The Council should have assessed Mrs X’s circumstances and worked with her to develop a PHP. While there is some evidence the PHP process started, I have not seen a completed PHP. This is fault.
When the relief period ended after 56 days, the Council should have decided whether it owed Mrs X the main housing duty. The Council says it did make this decision and accepted it owed Mrs X the main housing duty in November 2022. However, it failed to notify Mrs X the relief duty had ended and it was accepting the main housing duty. The acceptance of the main housing duty meant the Council then had to secure suitable accommodation for Mrs X to occupy. The failure to notify Mrs X in writing meant she was also not notified of her right to request a review of the suitability of her accommodation. This is fault.
The accommodation was originally provided as interim accommodation. An occupant does not have any review rights regarding the suitability of interim accommodation however, the accommodation provided must be suitable for the occupant’s needs. I have not been provided with any evidence to show the Council ever considered whether the interim accommodation was suitable or that it kept this under review. Even when Mrs X complained, the Council did not take action to review the suitability and consider if other accommodation was available. This is fault.
I am satisfied Mrs X would have sought a suitability review of the temporary accommodation provided to her if she had been notified of her right to do so. As Mrs X had accepted a property at around the time the right of review was notified to her, she never submitted a suitability review request in respect of the accommodation the family lived in from September 2022. I do not therefore know what the outcome of such a review would have been.
The accommodation occupied by the family from September 2022 to September 2023 was two studio apartments with one room used as the living and bedroom area and their own kitchen and bathroom located in the same building. The family was therefore separated between the two units. In response to enquiries on this matter, the Council has not advanced any argument that the units amount to suitable accommodation. Its only response is that it does not own any housing stock and this is all that it was able to procure at that time. The Council’s legal duty is to provide suitable accommodation, not just to try to do so or to wait until something suitable becomes available from its usual supply. Even if the Council tried unsuccessfully to find somewhere else, that does not make the accommodation the family lived in suitable. I consider it more likely than not that if it had reviewed the suitability, the Council would have decided the property was not suitable as temporary accommodation. Mrs X and her family therefore lived in unsuitable accommodation for approximately 12 months longer than they should have. This is fault.
In response to enquiries, the Council said that Mrs X never requested assistance from the Council in respect of the storage of her belongings. I am not satisfied this is correct. Mrs X contacted the Council in September 2022 to advise that her landlord had changed the locks and she could not access her belongings. The Council’s response to our enquiries indicates it took legal advice and then advised Mrs X to contact a charity to pursue a damages claim.
The Council has a duty under the Housing Act 1996 to take reasonable steps to prevent the loss or damage to a person’s property. In September 2022 the Council was accommodating Mrs X under its interim duty and it owed her the relief duty and so the duty to protect her property applied. The Council’s failure to take any action is fault. Mrs X had to take action herself to recover and store her belongings.
When I made enquiries to the Council I asked it to provide a copy of its policy for storing belongings. It explained it was in the process of reviewing its policy and so I asked for a copy of the policy in operation at the time of the events in this case. It then clarified that there was not a policy in place at the time. While I am pleased to note it now has a written policy which both officers and homeless applicants can refer to, I consider the failure to have a written policy was fault.
The duty to protect property arises if the Council has reason to believe there is danger of loss or damage because the owner is unable to protect their property and no other suitable arrangements have been made. I have not seen any evidence to show the Council properly considered its duty but Mrs X was able to secure her own belongings and so the duty may not have arisen in this case.
Since September 2023, Mrs X has lived in temporary accommodation. She asked for a suitability review which has now been decided, albeit outside the timeframe the Council initially promised. The decision on the suitability review is detailed and covers the issues we would expect to see including travelling distance from the temporary accommodation to schools, jobs and medical treatment. Mrs X had a statutory right of appeal to the county court if she disagreed with this decision.
Agreed remedy To remedy the injustice in this case, the Council should, within one month of my final decision: Write to Mrs X to apologise for its failings and the distress caused; Make Mrs X a symbolic payment of £3,000 to recognise that her right to request a suitability review was delayed and that, on balance, she remained in unsuitable accommodation for 12 months longer than she should have; Make Mrs X a symbolic payment of £100 to recognise the distress experienced due to the absence of a storage policy and any offer of assistance by the Council; and Review its homelessness procedures to ensure it complies with legislation and takes key actions in the specified timescales. It should also provide training to all staff to ensure they are aware of their statutory duties.
Final decision
I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman