Readers will have seen the Kilburn Times report LINK on the case where Brent Council has been ordered to pay £27,000 to a wheelchair user who had to crawl up the stairs in unsuitable temporary accommodation over a period of 8 years. The case was brought by Harrow Law Centre and shows how important such agencies are to achieve social justice for the vulnerable.
I thought it would be useful to publish the full report from the Local Government and Social Care Ombudsman. Harrow Law Centre hope the findings will set a precedent for others in similar situations. In particular I draw your attention to Brent Council's initial response to Mr X's Stage One complaint in May 2020 (Para 22).
Yesterday Cllr Ketan Sheth, Chair of the Community and Wellbeing Scrutiny Committee, tweeted that his Committee would be examining the findings.
The Ombudsman's final decision:
Summary: The Council has failed to provide Mr X and his family with suitable temporary accommodation since 2012. This is fault. The Council has agreed to apologise and pay the family £27,000 for the injustice caused.
The complaint
1. Mr X complains that he and his family have been in unsuitable temporary accommodation since 2012. He says the Council has failed to move the family to suitable accommodation after a review in October 2019 found the accommodation unsuitable.
2. This causes particular injustice to Mr X’s son, whom I shall refer to as Mr Y. Mr Y has a disability which affects his mobility and the property does not meet his needs
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 an injustice, 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. If we are satisfied with a council’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
6. I spoke to Mr X’s representatives about the complaint and considered the information they provided.
7. I considered the information provided by the Council along with relevant law and guidance.
8. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
9. Mr X, via his representatives, and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Temporary accommodation
10. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities (the Code) set out councils’ powers and duties to people who are homeless or threatened with homelessness.
11. 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. This is called the main duty. (Housing Act 1996, section 193)
12.The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of his or her household. This duty applies to interim accommodation and accommodation provided under the main homelessness duty. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)
Background
13.Mr X and his family are homeless. In 2012, the Council accepted they were not homeless intentionally and had a priority need. This means the Council had a duty to secure accommodation for them.
14.The Council placed Mr X and his family in self-contained temporary accommodation. It is a three-storey house which the Council leases from a private landlord to use as temporary accommodation for homeless families.
15. Mr Y has a disability which affects his mobility. He was a child in 2012 when the family moved into the accommodation. At that time he could not walk.
16.In 2015 and 2016 Mr Y had surgeries to improve his mobility. He can now mobilise with crutches over short distances indoors. He needs a wheelchair outdoors. He is now an adult but continues to need daily care and support, which his parents provide.
What happened
17. In 2010, an Occupational Therapist recommended the family live in a wheelchair accessible premises with level access facilities.
18. In 2012, the Council’s District Medical Officer (DMO) recommended “relocation to mobility two accommodation and ground floor or lifted accommodation”. ‘Mobility two’ refers to how the Council classifies the different levels of adaptation to properties. Mobility two is the description for properties with adaptations for people who cannot manage steps or stairs and may use a wheelchair for all or part of the day.
19.In October 2019, the Council reviewed the suitability of the accommodation. It found that the accommodation was not suitable for the family. In response to Mr X’s complaint, the Council apologised for the delay completing the review and offered a payment of £2000 as a remedy.
20. To date, the family remain in this accommodation. In December 2020, the Council’s Allocations Panel put Mr X’s application to the housing register in Band A. This is the highest priority band. Before this, the application was in Band C until September 2020, when the Allocations Panel increased it to Band B.
21.In its referral to the Allocations Panel, the Council said:
“A review has found that the current property is not suitable and does not meet the applicant’s son’s needs. The review was completed in October 2019. However prior to this, the DMO and the OT made recommendations in 2012 that show the accommodation as being unsuitable.”
And then goes on to say:
“The property is not suitable for the needs of the household; they have been residing in unsuitable accommodation since 2012.”
22. This internal document contradicts what the Council said in its response to Mr X’s complaint. In its stage one response in May 2020, the Council said:
“Despite the DMOs initial recommendation in November 2012, I am not satisfied that Mr [X’s] accommodation was unsuitable from 2012.”
Findings
23. The law says temporary accommodation must be suitable. The Council’s review found that it is not. The Council therefore has a legal duty to secure alternative accommodation for the family. It has not done so. This is fault.
24. The Council’s referral to the allocations panel in September 2020 shows it considers the accommodation never to have been suitable. Although this contradicts its complaint response to Mr X, I find it more likely this internal document records the Council’s current position. It was written more recently and so I take it to supersede the previous statement.
25. Therefore, the Council’s records show it accepts the property was never suitable for the family. This means Mr X and his family have lived in unsuitable temporary accommodation for over 8 years.
Injustice
26. Mr Y says the lack of independence in his daily living is humiliating and frustrating. He finds climbing or crawling up the stairs painful. He does not have the space needed to do the exercises recommended by his physiotherapist.
27. Mr X and the rest of family find living in the accommodation distressing because they are worried about Mr Y. Mr X is also suffering from back pain because he often has to carry Mr Y up the stairs to access a bathroom and toilet.
28. Our Guidance on Remedies says we should consider the complainants own actions when assessing injustice. Therefore, I have considered whether Mr X could or should have complained sooner. However, the Council did not tell Mr X he could review the suitability of the property. Given this and his family circumstances, it was only when he got a representative that he was able to escalate his complaint.
29. Prior to his surgeries, Mr Y was entirely unable to walk. The downstairs toilet is not wide enough to accommodate his wheelchair. If his father was not at home to carry him, Mr Y says he had to drag himself upstairs to the bathroom. He describes how humiliating this was, and that he did not always make it in time. This is a significant injustice to Mr Y.
30. In 2016, Mr Y had surgery to improve his ability to mobilise. This should have been the point at which his independence increased. Instead, it continued to be impeded by his accommodation. The OT report shows he cannot safely access the downstairs toilet in the property. Climbing the stairs is a slow and painful process. Mr Y says he has fallen on the stairs several times. This is also an injustice to Mr Y.
31.Since October 2019, the Council has tried to find alternative accommodation that will meet Mr Y’s needs. The family need a four-bedroom property that is, or can be, adapted to be wheelchair accessible or provide step-free access. These properties are scarce. Nevertheless, the family remains in unsuitable accommodation. This is an injustice to Mr X, Mr Y, and the rest of the family.
Agreed action
32. The Council has agreed to apologise in writing to Mr X and to Mr Y.
33. The Council offered Mr X £2000 as a remedy for its delay completing the suitability review. I do not consider £2000 to be an adequate remedy for the injustice to Mr X, his family, and in particular Mr Y, of spending over 8 years in unsuitable accommodation.
34. The Ombudsman’s Guidance on Remedies recommends a payment of £150 to £350 per month spent in unsuitable accommodation.
35. I have calculated a recommended financial remedy in the following way to reflect the level of injustice:
o £300 a month from November 2012 to June 2016 for a total of £13,200
o £250 a month from July 2016 to October 2019 for a total of £10,000
o £200 a month from November 2019 to the present for a total of £3,800
36. This should be paid to Mr Y, as he has suffered the most injustice as a result of the Council’s fault.
37. In addition to the £27,000 for the injustice to date, the Council should continue to pay Mr Y £200 a month until it secures suitable temporary accommodation or ends its s193 duty.
38. The Council should liaise with Mr X, Mr Y, and their representatives to agree a method of payment which does not impact on entitlement to any welfare benefits or otherwise disadvantage them.
39. The Council should take this action within six weeks of my final decision.
Final decision
40. I have completed my investigation. The Council is at fault. The action I have recommended is a suitable remedy for the injustice caused.
