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.
