Summary: the Council was at fault when it failed to consider if it was reasonable for Mrs X and her family to remain in private rented accommodation after a Section 21 Notice expired. However, having considered all the facts in this case, I cannot say this fault caused Mrs X injustice. There was no fault in the way the Council decided the interim and temporary accommodation it offered Mrs X was suitable for her family’s needs. It was entitled to end the main housing duty when she refused the offer of temporary accommodation.

The complaint

1. Mrs X complained that the Council failed to provide adequate assistance for her family when they were made homeless in May 2022. She also complains that it made unsuitable offers of interim and temporary accommodation.
2. Mrs X and her family are homeless and they stayed in hotel accommodation arranged by Children’s Services after the Council ended the main housing duty. She wants the Council to reopen her homelessness application and offer her family suitable social housing.

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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. 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)

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How I considered this complaint

4. The Ombudsman generally expects homeless applicants to use the statutory right of review to challenge homelessness decisions. However we may exercise discretion to investigate if we do not consider it was reasonable for someone to request a review.
5. In this case, the Council properly informed Mrs X about the right to a request a review in its decision letters. Mrs X contacted a housing advice charity who reviewed the papers and said it would not support her to request a review of the suitability of the temporary accommodation. After getting this advice, Mrs X did not pursue a review request. I exercised discretion to investigate because it would not be reasonable to expect Mrs X to have requested a review when the charity advised she did not have a strong case and it would not assist her.
6. I have spoken to Mrs X and considered all the evidence she sent me.
7. I considered the Council’s response to my enquiries and the relevant housing records.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making the final decision

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What I found

The relevant law and guidance

9. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
10. Someone is threatened with homelessness if they are likely to become homeless within 56 days or has been served with a valid Section 21 Notice which expires within 56 days.
11. If a council is satisfied an applicant is threatened with homelessness and eligible for assistance, it must help them to secure that accommodation does not stop being available for their occupation. This is known as the prevention duty. In deciding what steps to take, councils must have regard to their assessments of the applicant’s case. (Housing Act 1996, section 195)
12. When a person is homeless, and eligible for assistance, a council must take reasonable steps to help secure suitable accommodation for them. This is known as the relief duty. When a council decides this duty has come to an end, it must notify the applicant in writing (Housing Act 1996, section 189B)
13. A council must secure interim accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and in priority need. (Housing Act 1996, section 188)
14. The Homelessness Code of Guidance says that where the applicant is:

(a) an assured shorthold tenant who has received a valid Section 21 Notice; and

(b) the council is satisfied that the landlord intends to seek possession and further efforts from the housing authority to resolve the situation and persuade the landlord to allow the tenant to remain in the property are unlikely to be successful; and,

(c) there would be no defence to an application for a possession order;

it is unlikely to be reasonable for the applicant to continue occupying the property after the Section 21 Notice expires unless the council is taking steps to persuade the landlord to allow the tenant to remain for a reasonable period while they look for alternative accommodation.

15. The Code says it is “highly unlikely to be reasonable” for the applicant to continue to occupy after the date on which the Court has ordered them to leave the property and give possession to the landlord. And it should not be considered reasonable for an applicant to remain until a court issues a warrant to enforce an order for possession.
16. 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 (with certain exceptions which do not apply here). This is known as the main housing duty.
17. The law defines the circumstances in which the main housing duty will end. One is when the applicant refuses an offer of suitable temporary accommodation and has been informed in advance of the possible consequences of refusal and their review rights.
18. Councils must ensure all accommodation it arranges for homeless applicants is suitable for the needs of the applicant and members of their household. This applies to interim accommodation and temporary accommodation under the main housing duty. (Housing Act 1996, section 206 and (from 3 April 2018) Homelessness Code of Guidance 17.2)
19. Suitability is a broad concept. It includes the location and affordability of the accommodation.
20. Homeless applicants may request a review within 21 days of being notified of the decision on their homelessness application. This includes a decision to end the main housing duty. There is also a right to request a review of the suitability of temporary accommodation provided once the Council has accepted the main housing duty. (Housing Act 1996, section 202)

What happened

21. Mrs X, her husband and their three children lived for several years in a two bedroom private rented property in Manchester. Mrs X and her husband were assured shorthold tenants.
22. Mrs X has medical conditions which affect her mental and physical health. Her eldest child has medical conditions which affect his physical health.
23. A health visitor referred Mrs X to the Housing Solutions team for assistance when the landlord served a new Section 21 Notice in early October 2021. Mrs X was threatened with homelessness from this time. An officer told the health visitor Mrs X did not have to leave the property when the Notice expired. She explained the landlord had to go to Court to get a Possession Order.
24. An officer in the homelessness prevention team completed a housing assessment in December. The Council decided it owed Mrs X the homelessness prevention duty in early December 2021. It wrote to inform Mrs X of this decision and sent her a Personalised Housing Plan (PHP).
25. The PHP confirmed Mrs X did not have to leave the property on 14 December when the Section 21 Notice expired. It asked Mrs X to inform the officer when the landlord obtained a Possession Order. It noted the areas of Manchester where Mrs X wished to live but advised her to extend her search for properties in less expensive areas in Manchester and Greater Manchester.
26. In response to my enquiries, the Council accepted that when the Section 21 Notice was issued in October 2021 the officer should have had a conversation with Mrs X about whether it was suitable for her family to remain in the property while possession proceedings were underway. That did not happen. Nor have I seen any evidence in the case notes that the officer contacted the landlord then to ask about his intentions or whether it may be possible for Mrs X and her family to stay while they looked for alternative accommodation.
27. In early December the case officer sent Mrs X an email which said:

“… you have a legal right to continue to remain in this property. You can stay in this property and await a possession order which allows more time to look at prevention options. We can assist with the costs around the possession order”

28. Mrs X and her family remained in the private rented property. In March 2022 the County Court made a Possession Order. Mrs X’s support worker informed the Council. The case officer sent Mrs X an email on 4 March asking for a copy of the Possession Order. She also gave her a list of solicitors and legal advice centres who could advise her about the possession proceedings. She advised Mrs X to look for private rented properties.
29. On 12 April the Council received the bailiffs’ warrant which said the bailiffs were due to attend the property on 12 May.
30. In mid-April 2022 the Council ended the prevention duty and accepted the homelessness relief duty. The relief duty was triggered because the bailiffs’ warrant had been issued and there was no defence to the eviction taking place on 12 May.  
31. In mid-April 2022 an officer sent Mrs X an email advising her to keep searching for private rented accommodation. It said the Council’s Private Rented Sector (PRS) scheme may be able to pay the first month’s rent and the deposit if she found a suitable property. It asked Mrs X to complete a form for the PRS scheme.
32. On 9 May Mrs X contacted the Council to say the bailiffs had attended. The Council tried to contact Mrs X and managed to speak to her on 11 May. It then offered accommodation on the same day, having confirmed that the bailiffs would attend on 12 May to evict them.
33. On the same day an officer had completed a form to record the family’s accommodation needs. It recorded the ages and gender of the children, the schools they attended and the family’s health conditions. None of the children had any recorded special educational needs. Mrs X’s eldest child was studying for GCSEs. It noted Mrs X’s preference for accommodation in one particular area of the city and that the family had a car. One section of the form, which enables officers to record details of any areas which are unsuitable due to a risk of violence, was left blank.
34. The Council arranged for them to stay in emergency accommodation in two rooms in a hotel in a neighbouring Council’s area that night. It subsequently extended the booking.
35. On 30 May 2022 the Council offered Mrs X interim accommodation. This was a self-contained property in the same area as her former private rented accommodation but on a different road. The Council’s letter to Mrs X said it was satisfied this was a suitable offer. It said it would not make any further offers of interim accommodation if she refused it.
36. Mrs X refused the offer the next day. She said the property was in a rough area and there had been incidents of anti-social behaviour in the street where she previously lived. She said the property was not suitable for a family of five. An officer noted the property was 1½ miles from her eldest child’s school.
37. On 1 June the Council wrote to Mrs X to say the duty to arrange interim accommodation had ended because she had refused this offer. Mrs X says they paid to stay in the hotel that night. Children’s Services then arranged accommodation for Mrs X and her family in a hotel.
38. On 7 June the Council wrote to tell Mrs X the relief duty had ended and it had now accepted the main housing duty because they were homeless, eligible for assistance and in priority need. It therefore had a duty to offer them suitable temporary accommodation.
39. On the same day the Council booked Mrs X and her family two rooms in a different hotel in a neighbouring Council area. They stayed in this hotel for two weeks and then moved to another hotel on 22 June.
40. On 1 July 2022 the Council wrote to Mrs X with an offer of self-contained furnished temporary accommodation in a different area of Manchester. It said this was suitable accommodation. It explained the Council would end the main housing duty, and not make any further offers of accommodation, if Mrs X refused the property. It advised her to seek independent legal advice if she was thinking of refusing it. It explained her right to request a review within 21 days if she did not consider the property was suitable and included information about the review procedure.
41. Mrs X did not view the property and she refused the offer. She gave the case officer the following reasons for her decision:
• the property was too far from her children’s schools;
• it was also too far from her GP;
• the rent was not affordable.
42. The case officer considered these points. She wrote to Mrs X on 6 July to say she still considered the property was suitable because:
• the children attend three schools which are between 7 and 8 miles from the property. Mrs X could either move the children to schools closer to the property or they could be taken by car to their current schools. The schools are all within a 30 minute drive of the property. None of the children had any recorded special educational needs which required them to stay in their current schools.
• Mrs X could either transfer to a different GP practice, which would have access to her medical records, or drive to her current GP practice to attend appointments. It would take about 25 minutes to drive from the temporary accommodation to the GP practice.
• The monthly rent was higher than the amount charged for Mrs X’s former private rented accommodation. But having considered the family’s income and expenditure, she did not consider it was unaffordable.
43. The letter confirmed the Council had ended its duty to provide temporary accommodation due to Mrs X’s decision to refuse the offer of accommodation and explained her review rights.
44. On 5 July the case officer in Housing Solutions referred Mrs X to the Children & Families Service for support. She explained the family had nowhere to stay.
45. Mrs X contacted an independent housing advice charity in July to ask them to support her with a review. Mrs X told me the advice worker had said she could not request a review of the decision.
46. I contacted the charity to clarify the advice it had given Mrs X. The advice worker’s initial view was that it would be difficult to argue the location of the temporary accommodation was unsuitable on grounds of the distance from the children’s schools. The family had a car and the schools were within reasonable driving distance. He said he would give further advice when he had read all the relevant letters.
47. The adviser told me he had agreed to support Mrs X with a review of the decision provided there was some merit in the case. After reviewing the letters, and speaking to Children’s Services, he decided there was not enough merit to support her review request, or refer her to a legal service. But he did not say she could not request a review, simply that he would not help her with it.
48. Mrs X did not request a review of the decision.
49. Mrs X and her family are still homeless. They were accommodated by Children’s Services in bed and breakfast hotels from 5 July while officers tried to find them private rented accommodation.
50. Mrs X complained to the Council and received its final response on 4 August. It did not find fault. She then complained to us on 10 August 2022. I have not investigated any events since then.
51. Mrs X says both properties the Council offered were unsuitable for her family’s needs. The first property was in an area with anti-social behaviour. They had lived in this area for nine years and did not like it. The second property was too far from her children’s schools and an after-school centre they attended. She also told me it did not have a back yard or garden where the children could play outside.

Analysis

52. The Council did not explicitly consider the advice in the Code of Guidance about whether it is reasonable for someone to remain in occupation of private rented accommodation after a Section 21 Notice has expired. It should have considered this first in December 2021. It missed a further opportunity to review this when it was informed in March 2022 that a Possession Order had been made. And I have seen no evidence that the case officer contacted the landlord’s letting agents during this period to check their intentions or discuss whether it was reasonable for the family to remain there while they looked for other accommodation. The failure to have regard to relevant statutory guidance is fault.
53. However I cannot say this fault caused injustice to Mrs X. We do not know what decision the Council would have made if it had followed the guidance and made enquiries to the landlord’s agents at the right time. If it had decided it was not reasonable for her to remain in the property, it would have had to offer interim accommodation sooner. However, as Mrs X refused the interim accommodation offered in May 2022, there is significant doubt about whether she would have accepted an earlier offer of interim accommodation.
54. I did not find fault with the way the Council decided the interim accommodation offered in May 2022 was suitable. I know Mrs X did not want to move back to this area because she had concerns about anti-social behaviour based on her previous experiences there. But the property the Council offered was not in the same street as her former private rented accommodation. And the Council had no evidence that Mrs X was at risk of violence in this area. The property was also within a reasonable distance of her eldest child’s school. The fact that Mrs X disliked the area, and wished to live elsewhere, did not make the accommodation unsuitable for her family.
55. We would not usually investigate a complaint about the unsuitability of temporary accommodation offered after the main housing duty has been accepted. We generally expect someone to use their review rights. In this case we exercised discretion to investigate for the reasons given in paragraph 5 of this statement.
56. We cannot overturn the Council’s decision that the temporary accommodation was suitable. But we can consider if there was fault in the way it reached this decision. I found no evidence of fault. The Council had told Mrs X about its one offer policy for temporary accommodation. It also told her the accommodation may be anywhere in the Greater Manchester area. It warned her about the consequences of refusing the offer and informed her of her review rights. It took into account her family’s assessed housing needs, including the distance from the children’s schools and the GP, and the affordability of the property. It considered Mrs X’s reasons for refusing the property and responded to these points in the letter ending the main housing duty. Mrs X believes the location of the property made it unsuitable for her family. But the Council reached a different conclusion and it was entitled to do that. We cannot criticise the merits of the Council’s decision if there was no fault in the way it was made.
57. Mrs X is homeless and wish to move to settled social housing. But we cannot achieve that outcome for Mrs X. And we cannot recommend that the Council reopens her homelessness application when we have found no fault with its decision to end the main housing duty after she refused the offer of temporary accommodation.

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Final decision

58. I have completed the investigation and found the Council was at fault because it did not properly consider the advice in the Homelessness Code of Guidance about whether someone should remain in private rented accommodation after a valid Section 21 Notice has expired. And it did not give this further consideration after the Possession Order was made. But I cannot say this fault caused injustice to Mrs X.
59. There was no fault in the way the Council decided the offers of interim and temporary accommodation it made were suitable for Mrs X’s needs or with the way it made the decision to end the main housing duty when Mrs X refused the temporary accommodation.

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Investigator's decision on behalf of the Ombudsman