Summary: Mr X complains the Council incorrectly decided not to prosecute his former landlord for unlawful eviction. We do not find the Council at fault. However, we find the Council at fault in how it handled Mr X’s reasonable adjustments to accommodate his disability-related needs. We find this caused Mr X distress and uncertainty. To remedy this, the Council has agreed to apologise to Mr X, make him a payment and circulate guidance to staff.

The complaint

1. The complainant, who I shall refer to here as Mr X, complains the Council:
1. incorrectly decided not to prosecute Mr X’s former landlord for unlawful eviction. He says his landlords illegally gave him less than two months’ notice to leave the property. He says the eviction took place in April 2018. Mr X first contacted the Council about this in April 2020; and
2. failed to put in place reasonable adjustments, as required by the Equality Act 2010, to accommodate his disability-related needs. Mr X has severe depression and is undergoing investigations into a serious cognitive condition that significantly affects his memory and ability to process and understand information. He says this has affected his ability to express his complaint to the Council.
2. Mr X says the Council’s refusal to prosecute left his former landlords able to act with impunity, and they continued acting unpleasantly towards him. Mr X is concerned his former landlords might do the same to other tenants. He says the actions of his landlord significantly affected his and his wife’s wellbeing and mental health.
3. Mr X says the Council’s failure to put in place reasonable adjustments has caused him distress and frustration. He says he does not feel heard by the Council.

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The Ombudsman’s role and powers

4. 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)
5. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. 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

7. I considered the information and documents provided by Mr X and the Council. I spoke with Mr X about his complaint.
8. I considered the Ombudsman’s focus report “Equal Access: Getting it right for people with disabilities” (published May 2022).
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Illegal evictions

10. Private tenants may complain to the Council if they consider their landlord is harassing them or is trying to evict them.
11. ‘Illegal eviction’ is when a landlord evicts a tenant without giving the required legal notice or following the correct legal process. Illegal eviction is a criminal offence.
12. Councils have powers under the Protection from Eviction Act 1977 to investigate complaints of harassment and illegal eviction by tenants against their landlord and prosecute landlords if there is sufficient evidence to support the tenant’s complaints. Councils can decide what action is suitable in individual cases, which can include deciding not to prosecute.
13. Councils have no powers to make a landlord reinstate an illegally evicted tenant or to help with a claim for damages or compensation against landlords.
14. If a private tenant is not satisfied with the council’s actions in response to the complaint, they may complain to the Ombudsman.

Reasonable adjustments

15. The Equality Act 2010 makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. The ‘protected characteristics’ referred to in the Act includes disability.
16. The reasonable adjustment duty is set out in the Equality Act. It applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
17. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
18. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.

What happened

19. In April 2020, Mr X emailed the Council to ask whether it would consider taking action against his former landlord. He said that his former landlord had carried out an illegal eviction against him and harassed him two years ago. Mr X explained that he had tried to pursue a civil claim for damages through the courts for the eviction. However, he said this had been unsuccessful. Mr X said the eviction had worsened his mental health conditions.
20. A Council officer and Mr X exchanged a series of emails about the court action Mr X had pursued. The officer told Mr X that:

• the Council could not take any action.
• She had checked the Council’s records, but had found no reports of harassment from Mr X against his former landlord. She explained the Council would need evidence to support this claim.
• The Officer confirmed she had logged the information provided by Mr X about his former landlord on its system. This would assist the Council to identify a pattern of behaviour if the Council received other reports against the former landlord.

21. After further contact from Mr X, a different Council officer reconsidered the advice given about timescales for councils potentially prosecuting a landlord in alleged cases of illegal eviction or harassment. The Council’s legal team confirmed that, in Mr X’s case, there was no statutory time limit for bringing the case. However, the legal team said the Council needed to consider whether there was public interest to investigate and prosecute an alleged offence from two years ago.
22. A Council officer spoke with Mr X and took details of the eviction and actions of the landlord. The officer detailed the impact that Mr X said this had on him and his wife.
23. In May, Mr X emailed the Council officer several court documents and further information about events leading up to him leaving the property.
24. In late May, Mr X chased the Council officer for an update.
25. A Council officer replied to Mr X. The officer explained that she had taken advice from the Council’s legal team. However, she said the Council had decided there was no public interest in prosecuting. She explained this was because of the amount of time that had passed, gaps in the evidence provided and the civil claim having been struck out. The legal team also decided, based on the evidence and call records provided, that there was insufficient evidence to show an illegal eviction had taken place as it was not clear whether Mr X had left the property voluntarily.
26. In mid-September, Mr X asked the Council to reconsider its decision and sent further evidence.
27. In October, a solicitor in the Council’s legal team replied to Mr X. The solicitor said, after considering his further evidence, the Council’s decision remained unchanged. The solicitor said because of the historic nature of the complaint, it was not in the public interest to issue criminal proceedings. He said nor was the Council satisfied that there was a reasonable prospect of success in the case given credibility concerns about the evidence Mr X had provided. He said the decision was in line with the Code for Crown Prosecutors. He said this decision was final.
28. In October 2021, Mr X complained to the Council. He said the “illegal eviction … cost me my mental health, rendered me mentally disabled and as a result cost me a career, it put [my family’s] life in danger.” He said his illness had affected his ability to express the issues, which he said should be a good enough reason for the delay. He said he was concerned that if the Council did not prosecute, then his former landlords would do the same thing to other tenants.
29. A week later, Mr X asked to speak with someone about his complaint. He said his disability affected his ability to communicate and he wanted to be sure he had properly explained the issues. He sent further evidence about his complaint.
30. Council records show officers reviewed the additional evidence, but the officers decided this showed Mr X left the property voluntarily meaning there was no reasonable prospect of success in prosecuting for illegal eviction. The records show officers decided the evidence provided was not sufficient to establish a reasonable prospect of success for bringing a harassment case against the former landlord.
31. A Council officer replied to Mr X to say the Council was unable to take any further action.
32. Mr X called the officer who explained the evidence seemed to show Mr X left the property voluntarily. Mr X said he disagreed with this and that his former landlord’s harassment meant he was forced to leave.
33. In November, the Council sent Mr X its stage one complaint response. It did not uphold Mr X’s complaint.
34. Mr X asked the Council to consider his complaint under the final stage of its complaint procedure.
35. Mr X and the Council exchanged emails to clarify his complaint.
36. In mid-December, the Council sent Mr X its final complaint response and the report from its independent investigating officer.

Analysis – was there fault by the Council causing injustice?

Illegal eviction

37. When Mr X contacted the Council in April 2020, the Council officer incorrectly told Mr X that the Council could not take any action because a court had already decided on the matter. In any case, the Council officer said Mr X’s situation was not covered by the Protection from Eviction Act 1977 as he was no longer the tenant at the relevant address and this had been the case for some time. This is fault.
38. However, I do not find this fault caused Mr X a significant personal injustice. Mr X flagged to the officer that the Council’s power to prosecute was distinct from the civil claim he had pursued. It is possible for an occupier to pursue a civil claim for damages in a County Court at the same time as the landlord is prosecuted for the possible criminal offence of illegal eviction. The Council acted quickly when it became aware that the incorrect advice had been given. Within two days of the contact, the Council asked Mr X for further information and carried out a telephone call. From this point onwards, I am satisfied the Council took appropriate action to fully consider Mr X’s enquiry to decide whether to prosecute Mr X’s former landlord.
39. Mr X complains the Council incorrectly decided not to prosecute his former landlord for unlawful eviction. He says his landlords illegally gave him less than two months’ notice to leave the property. However, I do not find fault in the Council’s decision making. This is based on the following:

• When considering Mr X’s enquiry, the Council considered the extensive evidence provided by Mr X and took his concerns seriously. However, it decided there was insufficient evidence to support pursuing the claims of illegal eviction or harassment. The Council explained this was because of concerns it had about the reliability and credibility of the evidence provided. It decided this meant there was not a reasonable prospect of success in pursuing the case.
• I am satisfied the Council fully considered the reasons for the delay of two years in Mr X contacting it, including the impact of Mr X’s conditions on his ability to raise the issues with the Council.
• However, the Council decided, based on the evidence, it was not in the public interest to pursue criminal proceedings. The Council considered the notices served on Mr X by his former landlord and the evidence provided by Mr X about his former landlord’s actions. It accepted that one notice was invalid because the landlord had given less than two months’ notice to vacate the property. However, it decided there was insufficient evidence to show Mr X and his wife were forced to leave and an illegal eviction had taken place. Rather, it decided the evidence showed Mr X left the property voluntarily before the end of the tenancy.

40. I am satisfied the Council properly considered whether to prosecute Mr X’s former landlord and reached a reasoned decision not to do this. I appreciate Mr X disagrees with the Council’s decision and wants his former landlord to face consequences for the eviction. However, without evidence of fault in how the Council reached its decision, I cannot question the content of this (part a of the complaint).

Reasonable adjustments

41. Mr X complains the Council failed to put in place reasonable adjustments, as required by the Equality Act 2010, to accommodate his disability-related needs. Mr X has severe depression. Mr X is undergoing investigations into a serious cognitive condition that he says significantly affects his memory and ability to process and understand information. He says this has affected his ability to express his complaint to the Council (part b of the complaint)
42. As explained above, under the Equality Act 2010, councils are under a duty to make reasonable adjustments for disabled people. This is to make sure people with disabilities can access their service as easily as people without disabilities. While the adjustments some people need might be obvious, for those with ‘hidden disabilities’ it may not be immediately apparent that they need extra help. In our focus report, “Equal Access: Getting it right for people with disabilities”, we have explained that this means it is vital councils anticipate people’s needs, as the law requires, and proactively ask sensitive questions about any help people may need.
43. When Mr X contacted the Council in April 2020, he made the Council aware of his mental health conditions.
44. However, based on the correspondence between the Council and Mr X, I find the Council failed to ask Mr X if he needed it to make any reasonable adjustments in the way it communicated with him. Rather, the Council decided that Mr X responded to emails and so no reasonable adjustments were needed without checking this with him. We would expect the Council to ensure people are routinely asked or prompted about reasonable adjustments. Any decision on reasonable adjustments should be clearly communicated to the individual concerned. The Council’s failure to do so in Mr X’s case is fault.
45. In October 2021, Mr X told the Council that he did not understand the Council’s decision not to prosecute and that his disability was affecting his ability to put his point across. He asked to speak with someone as a reasonable adjustment. However, I find the Council missed a further opportunity here to confirm clearly to Mr X whether this was a reasonable adjustment it could put in place when communicating with him and consult him on what reasonable adjustments were needed. This is fault.
46. The fault identified here caused Mr X distress and uncertainty about what adjustments, if any, the Council considered reasonable and it would put in place to meet his disability-related needs (part b of the complaint).
47. Mr X has explained to me that his mental health conditions and a serious cognitive condition mean he has significant difficulties with memory as well as with understanding and processing information from other people. In my view, if the Council had asked sensitive questions at an early stage in its investigation about Mr X’s disability-related needs and clearly set out any agreed reasonable adjustments, this would have avoided the injustice Mr X experienced and some of the extended communications between the Council and Mr X on this point.
48. My findings of fault here, however, do not affect my decision about the Council’s decision not to prosecute Mr X’s former landlord. I am satisfied, based on the evidence I have seen and reasons given in the previous section, that the fault in the Council’s handling of Mr X’s reasonable adjustments would not have changed the outcome.

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Agreed action

49. Within four weeks of my final decision, the Council has agreed to:
1. apologise to Mr X in writing for the fault causing injustice regarding part b of Mr X’s complaint; and,
2. make Mr X a payment of £100 for the distress and uncertainty caused. This remedy is in line with the Ombudsman’s published guidance on remedies.
50. Within two months of my final decision, the Council has also agreed to circulate a reminder to relevant staff about ensuring people are routinely asked or prompted about any reasonable adjustments. The service should not wait for the person to tell them what adjustments they require. This reminder should include information on how the Council expects decisions on reasonable adjustments to be communicated to the individual.
51. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

52. I have completed my investigation.
53. I have not decided to uphold part a of Mr X’s complaint. This is because I have not seen any evidence of fault by the Council causing Mr X significant personal injustice.
54. I have decided to uphold part b of Mr X’s complaint because there is evidence of fault causing injustice. The above recommendations are suitable ways for the Council to remedy this, which it has agreed to.

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Investigator's decision on behalf of the Ombudsman