Summary: There was fault the Council did not consider whether a property was reasonable for a tenant to remain in occupation, during the period Mr X was seeking possession of the property. That fault caused Mr X an injustice. The Council has agreed to carry out my recommendations to remedy that injustice.

The complaint

1. Mr X complained the Council advised his tenant to remain in his property after the County Court made a Possession Order in 2023. He said the Council did not follow homelessness statutory guidance in how it approached his tenant’s case.
2. Because of this, Mr X said he incurred extra costs, loss of rental income and was put to the time and trouble of applying to the Court for a warrant for eviction.
3. Mr X would like the Council to apologise and pay him the expense he unnecessarily incurred and outstanding rent arrears. He also wants the Council to assist his tenant in line with the statutory guidance.

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The Ombudsman’s role and powers

4. 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)
5. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We provide a free service but must use public money carefully. We do not continue an investigation if we decide any fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
7. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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What I have investigated

8. Mr X complained about the Council’s actions after he issued a section 21 notice to his tenant in April 2023. I won’t investigate the Council’s actions prior to August 2023. Mr X was not entitled to seek a possession order earlier than this and so any fault there may have been in the Council’s actions has not caused him an injustice.

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How I considered this complaint

9. I spoke to Mr X and considered the information he provided.
10. I considered the Council’s comments and the documents it provided.
11. I considered the Homelessness Code of Guidance (the Code) which councils must have regard to.
12. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What should have happened

Threatened with homelessness

13. Someone is threatened with homelessness if, when asking for assistance from the council:
• they are likely to become homeless within 56 days; or
• they have been served with a valid Section 21 notice which will expire within 56 days. (Housing Act 1996, section 175(4) & (5)

Duty to provide Advisory Services

14. Councils must provide to anyone in their district information and advice free of charge on:

• preventing homelessness;
• securing accommodation when homeless;
• the rights of people who are homeless or threatened with homelessness;
• the duties of the authority;
• any help that is available from the authority or anyone else, for people in the council’s district who are homeless or may become homeless (whether or not they are threatened with homelessness); and
• how to access that help.

Applications

15. If someone contacts a council seeking accommodation or help to obtain accommodation and gives ‘reason to believe’ they ‘may be’ homeless or threatened with homelessness within 56 days, the council has a duty to make inquiries into what, if any, further duty it owes them. The threshold for triggering the duty to make inquiries is low. The person does not have to complete a specific form or approach a particular department of the council. (Housing Act 1996, section 184 and Homelessness Code of Guidance paragraphs 6.2 and 18.5)

The definition of Homeless

16. Someone is homeless if they have no accommodation or if they have accommodation, but it is not reasonable for them and anyone who lives with them, to continue to live there. (Housing Act 1996, Section 175)

The relief duty

17. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. When a council decides this duty has come to an end, it must notify the applicant in writing (Housing Act 1996, section 189B)

Homelessness guidance

18. The Homelessness Code of Guidance for Local Authorities provides comprehensive guidance to councils on how to interpret and carry out their duties to people who are threatened with homelessness or homeless. The Code is not legally binding but councils must have regard to it. It is good administrative practice for councils to follow the advice in the Code unless they have good reasons to depart from it.
19. The Code (paragraph 6.33) says councils must consider the following factors when they decide if it is reasonable for a private sector tenant, who has been served with a valid Section 21 notice, to remain in a property after the notice has expired:
1. The position of the landlord and whether he intends to proceed with possession;
2. the preferences of the tenant;
3. the financial impact of court action and any build-up of rent arrears on both landlord and tenant;
4. the burden on the courts of unnecessary proceedings where there is no defence to a possession claim, and;
5. the general cost to the housing authority.
20. Paragraph 6.35 says, where the Council believe it is unlikely it will be able to resolve the situation and persuade the landlord to allow the tenant to remain in the property, then it is unlikely to be reasonable for the tenant to continue to occupy beyond the expiry of a valid section 21 notice; unless the housing authority is taking steps to persuade the landlord to allow the tenant to continue to occupy the accommodation for a reasonable period to provide an opportunity for alternative accommodation to be found.
21. Paragraph 6.34 of the Code says that during the period an applicant remains in occupation while the landlord pursues possession action, the Council should keep the reasonable steps in the applicant’s personalised housing plan under regular review. It also says it should stay in contact with the tenant and landlord to find out if there is any change in circumstances which affects whether it continues to be reasonable for the applicant to occupy.
22. The Code says a person who has been occupying accommodation and who has received a notice to quit, would have the right to remain there until a warrant for possession has been executed. However, it also says in those circumstances, councils will also need to consider whether it would be reasonable for them to remain there until the warrant has been executed (paragraph 6.17-6.18).
23. Finally, the Code says the Secretary of State considers that 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 (paragraph 6.36).

Overview: eviction from private rented sector (PRS) accommodation

24. 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.
25. 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.
26. 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

27. Mr X is a landlord. He let a property to G as a tenant under an assured shorthold tenancy agreement.
28. In early March 2023, Mr X issued G with a section 21 notice to recover possession of his property. The notice was due to expire in mid-April. After this, Mr X applied to the court to obtain a possession order.
29. In early July, the Council started a housing needs assessment (HNA) on G, and this included a personalised housing plan. The Council contacted Mr X’s managing agent and they confirmed there was a section 21 notice in place.
30. In early August, a court told Mr X he was not entitled to a possession order and listed a hearing about the matter to the end of August.
31. In mid-August, after it had completed the HNA, the Council told G it owed her a relief duty. It said this because it accepted G was homeless.
32. On the day of the court hearing at the end of August, G got in touch with the Council asking about temporary accommodation. The Council told her it would not decide whether she could have temporary accommodation (TA), until it had the outcome of the court hearing.
33. The Council told G to retain the property keys while the court were considering the matter. However, the court hearing was subsequently adjourned until Mr X had obtained additional information.
34. In early September, G told the Council there was a further court hearing scheduled for mid-November. Around this time, Mr X contacted the Council concerned it was giving G advice to stay at the property despite the section 21 notice. He also told the Council that G was building up rent arrears.
35. In late September, the Council contacted Mr X and G to get an update on the pending court hearing. During the call with Mr X, it made a note he said the tenant was already in rent arrears.
36. In mid-October, the Council wrote to G and told her it accepted it now owed her the main housing duty. It said it was satisfied she was eligible for assistance and had a priority need because she had three children. It also noted she was homeless because there was a possession order in place.
37. After the court hearing in November, G told the Council the court had ordered her to leave Mr X’s property at the end of November. The Council told G to remain there until that day and to contact it then.
38. In late January G contacted the Council again and said the bailiffs had served a notice to say she would be evicted from Mr X’s property in late February. The Council gave G advice that she could remain at the property until then.

My findings

39. It was not fault for the Council to tell G about her rights to remain in the property after Mr X issued a notice. However, it had a duty to consider whether it was reasonable for G to remain in occupation.
40. When the Council accepted it owed G a relief duty in August, it decided she was homeless. This means the Council accepted that G did not have accommodation which it was reasonable to continue to occupy.
41. The Code highlights specific guidance and expectations at different points in the possession process. The Council did not consider whether it was reasonable for G to remain in Mr X’s property at any point. This was not in line with the Code and was fault.
42. There were several missed opportunities for the Council to turn its mind to these considerations as highlighted in the Code, including:
1. At relief duty and then again when it accepted the main housing duty, particularly because it was then aware of Mr X’s views and G’s rent arrears.
2. After G had been given notice of the possession hearing in mid-November.
43. The Code also explicitly says it is highly unlikely it would be reasonable for a person to remain at a property after the date when a court has asked them to leave. The evidence shows the Council advised G to remain at the property during this period and until the day she was evicted by bailiffs.
44. The fault I have outlined caused Mr X an injustice. Had it acted in line with the Code, the Council would likely have decided in August, when it accepted relief duty, that it was not reasonable for G to remain there and would have offered interim accommodation. On balance however, I cannot say at any point whether G would have accepted an offer of accommodation any earlier than she did, had the Council made an offer.
45. Mr X now has the uncertainty as to whether possession proceedings might have been avoided and whether he could have had his property sooner.

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Agreed action

46. Within one month of the date of my decision, the Council have agreed it will:
• Pay Mr X £400 for his injustice as outlined at paragraph 45.
• Remind relevant officers about the contents of paragraphs 6.35 to 6.38 of the Homelessness Code of Guidance for Local Authorities.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

I have completed my investigation with a finding of fault as highlighted at paragraph 41. That fault caused an injustice, and the Council have agreed to the actions I recommended to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman