Summary: Mr Z complains on behalf of Mr X and Miss Y that the Council failed to act on their homelessness application after they received a Section 21 notice. Mr Z says the Council also failed to communicate with Mr X and Miss Y and the key worker was rude. Mr Z says this caused Mr X and Miss Y a great deal of distress. We have found fault in the actions of the Council for failing to act on Mr X and Miss Y’s homelessness application. The Council has agreed to issue an apology, pay Mr X and Miss Y a financial payment, review their priority date and complete service improvements.

The complaint

1. Mr Z complains on behalf of Mr X and Miss Y hat the Council failed to act on their homelessness application after they received a Section 21 notice. Mr Z says the Council also failed to communicate with Mr X and Miss Y and the key worker was rude.
2. Mr Z says this caused Mr X and Miss Y a great deal of distress.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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. When considering complaints, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)

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How I considered this complaint

6. I have considered the information provided by Mr Z and discussed the complaint with him on the telephone.
7. I have also considered the information provided by the Council.
8. Both Mr Z and the Council were invited to comment on my draft decision. Any comments provided have been considered before a final decision was issued.

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What I found

9. 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.

Duty to make enquiries

10. Where the council has reason to believe an applicant may be homeless or threatened with homelessness, it should make enquiries to enable it to decide if they are eligible for assistance and, if so, what duty it owes them. (Housing Act 1996, section 184)

Prevention duty

11. If a council is satisfied applicants are threatened with homelessness and eligible for assistance, they owe the applicant the ‘prevention duty’. This means the council must help the person to ensure that accommodation does not stop being available for their occupation.
12. Section 175(5) of the Housing Act 1996 says a person is threatened with homelessness if a valid notice under section 21 of the Housing Act 1988 has been served in relation to the only accommodation available for them to occupy and this will expire within 56 days.
13. The Code, at paragraphs 6.35 to 6.38, says:

• it is unlikely to be reasonable for the applicant to continue to occupy their accommodation beyond the expiry of a section 21 notice, unless the housing authority is taking steps to persuade the landlord to allow the tenant to continue to occupy the accommodation whilst an alternative is found;
• it is highly unlikely to be reasonable for the applicant to continue to occupy beyond the date on which the court has ordered them to leave the property and give possession to the landlord;
• councils should not consider it reasonable for an applicant to remain in occupation up to the point at which the court issues a warrant or writ to enforce an order for possession;
• councils should ensure that homeless families and vulnerable individuals who are owed an interim accommodation or main housing duty are not evicted through the enforcement of an order for possession as a result of failure by the council to make suitable accommodation available to them.

Relief duty

14. If a council is satisfied an applicant is eligible for assistance and homeless then the council will owe the ‘relief duty’. This requires the council to take reasonable steps to help to secure suitable accommodation for any eligible homeless person for at least six months. The relief duty usually lasts for 56 days.
15. After this period, the council should decide whether it owes the applicant the main housing duty. It will owe the main housing duty if it is satisfied the applicant is eligible for assistance, in priority need and not intentionally homeless.

Personalised housing plan (PHP)

16. Councils should work with applicants to identify practical and reasonable steps for the council and the applicant to take to help the applicant keep or secure suitable accommodation. These steps should be tailored to the household, and follow from the findings of the assessment, and must be provided to the applicant in writing as their personalised housing plan (PHP). (Housing Act 1996, section 189A and Homelessness Code of Guidance chapter 11)

Interim accommodation

17. If the council has reason to believe the applicant may be homeless, eligible for assistance and in priority need, it must provide interim accommodation until it has finished assessing the homelessness application if the applicant asks for it. “Reason to believe” is a low threshold. An example of priority need is those applicants who are vulnerable because they are elderly or as a result of a significant health issue.
18. When a council accepts a main housing duty, interim accommodation becomes temporary accommodation. In both cases, the accommodation should be suitable for the household. However, there is a statutory right to a review of the suitability of temporary accommodation, but no such right for interim accommodation.

Allocations

19. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing. All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
20. The Councils allocation policy says applicants who are homeless or threatened with homelessness are eligible for points for up to 56 days prior to losing their accommodation and for four months afterwards (no more than six months in total). Applicants will be eligible for these points if they have no accommodation that they could reasonably occupy and would be awarded 50 points.
21. The Councils allocation policy says applicants who were, or would have been, owed a main homelessness duty under the homelessness legislation, and have been assisted by the Council to retain their home and have sustained their existing tenancy for six months would be awarded 200 points.

Review right

22. Homeless applicants may request a review within 21 days of being notified of certain decisions including a decision that they are not in priority need.

Overview: eviction from private rented sector (PRS) accommodation

23. Where a tenant has an assured shorthold tenancy, the landlord can issue a section 21 notice asking the tenant to leave. They do not have to give reasons, but the notice needs to be in a specific form and must satisfy various conditions.
24. In some cases, the landlord can evict without a court hearing – this is called “accelerated possession”. They do need to apply to the court and the tenant can challenge the application. The court will look at the papers and either:

• issue a “possession order” – this sets a date at which the tenant has to leave; or
• set a date for a possession hearing; or
• dismiss the case.

25. If the tenant does not leave the property by the date given in the possession order, the landlord can apply for a “warrant for possession”. If the court issues a warrant, it will send the tenant an eviction notice with the date they must leave the property by. A bailiff can evict the tenant if they do not leave by that date.

What happened

26. Mr X and Miss Y lived in a private rented sector (PRS) property. Mr X and Miss Y’s landlord issued a Section 21 notice in December 2023.
27. The Council wrote to Mr X and Miss Y in December 2023 to accept the prevention duty. The Council said it had assessed Mr X and Miss Y as threatened with homelessness and eligible for assistance.
28. Mr X and Miss Y told the Council in January 2024 that their landlord had issued a Section 21 notice and they needed to leave their property by the 23 February 2024.
29. The Council wrote to Mr X and Miss Y in mid-January 2024 to say it would only assist them in finding alternative private rental accommodation and not a council property.
30. Mr Z emailed the Council in late January to say Mr X and Miss Y would be evicted on 23 February 2024.
31. Mr Z complained to the Council in early February 2024.
32. The Council contacted Mr X and Miss Y about a PRS property in February 2024, but Mr X and Miss Y said it was not suitable for them.
33. The Council sent a response to Mr X and Miss Y’s complaint in mid-February which accepted the case worker should have contacted Mr X and Miss Y more regularly and apologised for any unfair comments made by the case worker. The Council told Mr X and Miss Y they did not have to leave their property at the end of the Section 21 notice period. The Council also said Mr X and Miss Y had been assessed as having priority need and if they were evicted, they would be provided with interim accommodation.
34. The Council told Mr X and Miss Y about a PRS property in late March 2024.
35. Mr Z contacted the Council in late April 2024 to say Mr X and Miss Y had not had any contact from the Council and then raised a further complaint in early May 2024.
36. Mr Z sent a copy of the Possession Order Mr X and Miss Y had received to the Council in mid-June 2024.
37. The Council sent a response to Mr Z’s complaint in mid-June 2024 and said again it would be preferable if the case worker had contacted Mr X and Miss Z more frequently. The Council said it would advise Mr X and Miss Y of any upcoming accommodation.
38. The Council wrote to Mr X and Miss Y the same day to say the prevention duty had ended and it now accepted the relief duty.
39. The Council sent Mr X and Miss Y details of another PRS property the following day. Mr Z responded to say Mr X and Miss Y would only accept a council property and not privately rented.
40. Mr X and Miss Y received a further Possession Order which said they had to leave their property by 24 July 2024. Mr Z provided this to the Council on 17 July 2024. This letter says Mr X and Miss Y are responsible for paying costs of £460.50.
41. The Council completed a suitability assessment with Mr X and Miss Y in late October 2024 and accepted the main housing duty on 31 October 2024.
42. The Council’s allocation policy says applicants who were, or would have been owed a main homelessness duty, had been assisted by the Council to retain their home and had maintained their tenancy for six months would be awarded 200 points.

Analysis

43. Mr X and Miss Y approached the Council for help in December 2023 and provided a copy of the Section 21 notice in January 2023. The Council should have checked whether the notice was valid, and, if so contacted the landlord to explore whether Mr X and Miss Y’s homelessness could be prevented by an extension to the tenancy. I cannot see the Council did this and as such this is fault.
44. In its complaint response in February 2024 the Council gave advice that Mr X and Miss Y did not need to leave the property at the expiration of the Section 21 notice. However, the Code says it is unlikely to be reasonable for an applicant to continue to occupy their accommodation beyond the expiry of a Section 21 notice. This is fault.
45. The Council did not accept the relief duty until 12 June 2024 following it receiving confirmation that the landlord had started court action. The relief duty usually lasts for 56 days and requires a Council to take reasonable steps to help secure suitable accommodation for any eligible homeless person for at least six months. I cannot see the Council took any between the end of June 2024 and October 2024. This is fault.
46. The Council did not make a decision on whether it owed Mr X and Miss Y the main housing duty until October 2024. The Council accepted the relief duty on 12 June 2024 meaning the 56 days it usually lasts would expire on 7 August 2024. The failure to make a timely decision on whether it accepted the main housing duty is fault.
47. Had the Council made a decision on the main housing duty sooner, Mr X and Miss Y would have been entitled to the increased point noted in the allocations policy sooner.
48. On balance, we find the section 21 notice was valid as the landlord proceeded to eviction based on it. Further, on balance, the Council would not have been able to prevent Mr X’s and Miss Y’s homelessness since the landlord wanted the property back and started court action in June 2024. On balance, if it had properly considered the matter, it would have decided it owed a relief duty by the end of February 2024. Its failure to act, delayed any assistance to Mr X and Miss Y and also meant they incurred £460.50 of legal fees. Mr X and Miss Y would not have been responsible for the costs had they left the property as the landlord would not have had to start legal action.
49. The Council has apologised for the lack of contact from the case worker up until the stage two complaint response was issued and has also apologised for any unfair comments the case worker may have made. However, I cannot see that communications improved following the stage two response being issued. This is fault.
50. Mr X and Miss Y would have been caused a considerable amount of distress and uncertainty about when they would be forced to leave their property and what would happen after this. This was exacerbated by the lack of contact from the case worker about the matter.

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Agreed action

51. Within one month of a final decision, the Council should:

• Write to Mr X and Miss Y to apologise for the faults identified.
• Pay Mr X and Miss Y £500 to recognise the uncertainty and distress caused.
• Pay Mr X and Miss Y a further £460.50 to remedy the avoidable court costs they incurred.
• Review Mr X and Miss Y’s priority on the housing register and backdate any difference in points they are owed, if necessary.
• In writing, remind relevant officers about the contents of paragraphs 6.35 to 6.38 of the Code.
• In writing, remind officers of the importance of making timely decisions in accordance with the Housing Act and having regular contact with applicants.

52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. I have found fault in the actions of the Council for failing to act on Mr X and Miss Y’s homelessness application.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman