The Ombudsman's final decision
Summary: We will not investigate this complaint about Miss X’s temporary accommodation. Miss X could reasonably have used her court appeal right when the Council did not agree her temporary accommodation was unsuitable last year. With Miss X’s current situation, it is reasonable to expect her to ask the Council for a suitability review.
The complaint
Miss X complains her homelessness temporary accommodation is: too far from her support network and the area where she ran her business; too small; in disrepair; and suffering from a mice infestation. Miss X says this has caused isolation, unpleasant living conditions, worry and financial difficulty. She wants the Council to move her to alternative temporary accommodation or social housing.
The Ombudsman’s role and powers
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) The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916) We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide it would be reasonable for the person to ask for a council review or appeal. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
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 suitability. (Housing Act 1996, section 202) If the Council’s review decides the accommodation is unsuitable, it must provide suitable accommodation. If the review decides the accommodation is suitable, the applicant can appeal to the county court on a point of law. (Housing Act 1996, section 204) If the court decides the accommodation is unsuitable, the Council must then provide suitable accommodation.
In effect, Miss X argues the accommodation is not suitable. So the points in paragraph 7 apply here.
Review in May 2023 Miss X says she sought a review, which the Council turned down in May 2023. If the Council’s review did not agree the property was unsuitable, Miss X had, for 21 days after that decision, the right to appeal to the county court on a point of law. Whether a Council has properly considered the suitability of accommodation as legally defined – including the accommodation’s location, size for the number of people expected to live there and condition - is a point of law. So Miss X had the right to go to court. Therefore the restrictions in paragraphs 2 and 3 apply to this part of the complaint.
If Miss X used her right to go to court in 2023 In this case, the law would prevent us from investigating this part of the complaint, as paragraph 3 explained.
If Miss X did not use her right to go to court in 2023 In this case, the restriction in paragraph 2 would apply. The law expressly provides this right where a Council’s review decision was unfavourable, so we normally expect people to use this route. The court could overturn the Council’s position and make a binding order if it sees fit, which the Ombudsman could not. Miss X could reasonably have sought help using the appeal right if she wished, for example, from an advice agency, law centre or solicitor. Such help is reasonably accessible in London. Court action has a possible cost implication. However, help with legal costs might have been available and Miss X could have asked the court for her costs if her appeal succeeded. Also, the potential cost of court action is not in itself automatically a reason for the Ombudsman to investigate instead. Overall, it would have been reasonable in the circumstances to expect Miss X to go to court if she was dissatisfied with the Council’s response.
Therefore, whether Miss X used her court appeal right or not, I am not persuaded we should investigate the complaint about matters in the review the Council dealt with in May 2023.
Miss X’s dissatisfaction with the current situation The current situation partly involves the same circumstances in the previous review request to the Council. However, I understand there may have been some changes since. For example, Miss X’s child is now older and more mobile and there are disrepair and infestation problems that are either new or where Miss X says the Council has not acted on earlier undertakings to resolve the problems. On these points, Miss X has the right to ask the Council for a suitability review.
The law expressly provides this as the first step for such disputes. So we normally expect people to use this route. Miss X has been able to put her concerns to the Council in the past and to contact us. So she could ask the Council to review her accommodation’s suitability now. If the Council were to agree the accommodation is unsuitable, it would then have to provide suitable temporary accommodation. It is therefore reasonable to expect Miss X to use her review right to deal with this point.
Final decision
We will not investigate Miss X’s complaint. It would have been reasonable for Miss X to use her court appeal right when the Council did not agree her temporary accommodation was unsuitable last year. With Miss X’s current situation, it is reasonable to expect her to seek a suitability review by the Council.
Investigator's decision on behalf of the Ombudsman