Summary: Mr X complained about the way the Council dealt with his tenant’s homelessness application following the service of a section 21 notice. We have not found fault by the Council in the way it considered the Homelessness Code of Guidance. We have found fault by the Council, causing injustice, in its communication failures and poor complaint handling. The Council has agreed to remedy this injustice by apologising to Mr X, making a payment to reflect the upset caused, and service improvements.

The complaint

1. The complainant, Mr X, complains about the way the Council dealt with his tenant’s homelessness application following the service of a section 21 notice. Mr X says the Council:

• failed to properly consider all the factors set out in the Homelessness Code of Guidance and whether it was reasonable for his tenant to continue to stay in the property after the expiry of the section 21 notice;
• failed to accept the tenant as homeless and provide them with temporary accommodation; and
• wrongly required him to issue court proceedings to obtain a possession order against his tenant when they were willing to leave the property subject to being provided with alternative accommodation.

2. Mr X also says:

• the Council knew about his circumstances and urgent need to regain possession of his property. This was to provide a home for his children who live in the area and support for his mother who also lived nearby; and
• because of the Council’s failures and delay, he has incurred the time and expense of taking court action, and the continued cost of travelling to and from his current home to meet his family commitments.

3. Mr X wants the Council to properly consider the Homelessness Code of Guidance and its duty to provide his tenant with temporary accommodation. This will allow him to recover possession of his property now without the need to continue the court action.
4. He also wants the Council to reimburse him for the costs he has incurred and pay redress for his expenses, time and trouble caused by its failure to properly consider its duties to the tenant, and his position as landlord.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
6. 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)
7. 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

8. I spoke to Mr X, made enquiries of the Council, and read the information Mr X and the Council provided about the complaint.
9. I invited Mr X and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Private sector tenants and the section 21 notice procedure

10. Landlords may evict tenants by using a section 21 notice giving them at least two months’ notice to leave the property.
11. If the tenant does not move out by the specified date, the landlord must apply to the court for a possession order requiring them to leave.

The prevention duty

12. If a council is satisfied an applicant is threatened with homelessness and eligible for assistance, it must help the applicant to secure that accommodation does not stop being available for their occupation. In deciding what steps they are to take, the council must have regard to its assessment of the applicant’s case. (Housing Act 1996, section 195)

Councils’ duty to arrange interim accommodation

13. A council must secure interim accommodation for an applicant and their household if it has reason to believe the applicant may be homeless, eligible for assistance and have a priority need. (Housing Act 1996, section 188)

The Homelessness Code of Guidance for Local Authorities

14. The Code sets out guidance on how councils should determine whether a person is homeless or threatened with homelessness under the Housing Act. This guidance says:
1. Authorities should not adopt a blanket policy or practice on the point at which it will no longer be reasonable for an applicant to occupy following the expiry of a section 21 notice. As well as the factors set out elsewhere in this chapter, factors which may be relevant include the preference of the applicant (who may, for example, want to remain in the property until they can move into alternative settled accommodation if there is the prospect of a timely move, or alternatively to leave the property to avoid incurring court costs); the position of the landlord; the financial impact of court action and any buildup of rent arrears on both landlord and tenant; the burden on the courts of unnecessary proceedings where there is no defence to a possession claim; and the general cost to the housing authority. Housing authorities will be mindful of the need to maintain good relations with landlords providing accommodation in the district. (6.33)
2. The Secretary of State considers that where:

• an applicant is an assured shorthold tenant who has received a valid notice in accordance with section 21 ..;
• the housing authority 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
• there would be no defence to an application for a possession order;

then it is unlikely to be reasonable for the applicant 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 allow alternative accommodation to be found. (6.35)

3. Authorities should ensure that homeless families and vulnerable individuals who are owed a section 188 interim accommodation duty or section 193(2) main housing duty are not evicted through the enforcement of an order of possession as a result of a failure by the authority to make suitable accommodation for them (6.38)

What happened

15. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Complaint background

16. Mr X is the landlord of a property in the Council’s area. In September 2023, he served his tenant with a section 21 notice requiring them to leave the property by November 2023.
17. The tenant approached the Council for assistance with their housing situation. They provided information requested by the Council for their application.

October 2023: Mr X’s contact with the Council

18. Mr X says his tenant told him the Council advised them to stay in their accommodation until they were evicted following court action.
19. He phoned the Council about its advice to his tenant. An officer told him:
• it advises tenants they have the legal right to remain in their home until evicted. If they left before this, the Council would consider they had made themselves intentionally homeless;
• the tenant was being supported to find alternative accommodation; and
• they would not take note of his personal circumstances and need to regain possession of his property.
20. Mr X followed up his call to the Council with an email, asking whether it:

• always advised tenants to remain in a property until the bailiffs enforced a court order for possession; and
• considered it reasonable for a tenant to continue to occupy a property beyond the expiry of a valid section 21 notice.

21. In its reply the Council said it did not advise tenants to stay in a property until evicted. It advised applicants:

• about their housing options so they could make an informed decision on preventing their homelessness;
• where there was no defence to a possession claim, it was in their best interests to find alternative accommodation in the private rented sector instead of waiting many years for social housing; and
• to move as soon as they found reasonable alternative accommodation. If they could not find this before the expiry of the section S21 notice they had the right to remain in their homes after the notice has expired.

Service of a second section 21 notice

22. I understand Mr X had concerns about information in the first notice which may have affected its validity. He told us he served his tenant with a second section 21 notice by post on 18 October 2023, and that this document set out the correct date for the expiry of the notice. Mr X also told us he sent a S21 notice to the tenant by email for information only.
23. The tenant sent the Council the emailed copy of the second S21 notice. This document was dated 17 October 2023. It said court action would not begin earlier than 21 December 2023 and that the tenant was required to leave by 21 November 2023. The expiry date of 21 November was incorrect as it was less than two months from the date of the notice.

November 2023: Mr X’s further contact with the Council

24. Mr X contacted the Council again on 1 November. He said it;

• had not provided appropriate assistance to the tenant;
• was not making any effort to decide whether it was reasonable for tenant to stay in the property following the expiry of the section 21 notice; and
• had failed to contact him directly about the situation.

25. Mr X included a chronology of events in his letter. This said he had served a section 21 notice on 21 December 2023, although Mr X has confirmed this was simply a typing error.

The Council’s assessment of the tenant’s homelessness application

26. The Council had been in contact with the tenant about further information it said was needed to progress the application.
27. In November 2023, following an appointment with the tenant to assess their circumstances, the Council decided it owed them the prevention duty.
28. It also noted the second section 21 notice was an invalid notice.

Mr X’s complaint to the Council

29. The Council did not reply to his contact of 1 November. On 10 November, Mr X complained to the Council about its failure to respond.
30. In its complaint response of 23 November, the Council said:

• it had explained its position regarding advice to the tenant in its reply in October;
• it had been in contact with the tenant about their housing options. But it might not be easy for the tenant to find new accommodation; and
• the action it was taking did not absolve Mr X of his responsibilities as a landlord, should he need to take action to obtain vacant possession.

31. Mr X was not satisfied with this response. He asked the Council to escalate his complaint to stage two of its complaints procedure.

Council’s request for landlord information

32. The Council sent Mr X a landlord’s questionnaire on 28 November. It said his tenant had applied for assistance under the Housing Act 1996 and the Council had a duty to investigate and assess whether it had a duty to provide housing assistance. It asked him to complete and return the questionnaire.
33. Mr X returned the completed questionnaire on 29 November. He confirmed he had given the tenant notice to quit and referred to his letter of 1 November. He said he could not renegotiate the rental agreement to allow the tenant to stay because he needed the property himself to enable him to provide care for his mother.

February 2024: Mr X’s complaint to us

34. Mr X heard nothing further from the Council after returning the questionnaire. As his tenant did not move out of the property, Mr X started court action for possession.
35. The Council did not send Mr X its stage two (final) response to his complaint, as he had requested, and Mr X brought his complaint to us.
36. We told the Council to issue its final response to Mr X, which it did. It said in this response:

• its homelessness team provided an advice service to tenants. This advice must be in the tenants’ best interest to give them the most opportunity to avoid becoming homeless, while complying with the Council’s legal obligations;
• it owed Mr X’s tenant the prevention duty. It could not disclose confidential information about their situation;
• the information its officers provided was correct and complied with the Council’s legal obligations; and
• the eviction process would have to run its course.

My view - was there fault by the Council causing injustice?

The Council’s consideration of the Homelessness Code of Guidance

37. The Code sets out guidance for councils to consider when determining its Housing Act duties to tenants making homelessness applications, after service of a S21 notice by their landlord.
38. Paragraph 6.33 of the Code sets out the factors which may be relevant to a council’s decision on whether it is reasonable for a tenant to remain in occupation beyond the end of the S21 notice period. This includes factors relating to the landlord’s position.
39. In my view, the Council’s duty to Mr X regarding the Code was to consider factors relating to his position as the landlord, when making its decision about its Housing Act duties to the tenant.
40. Here, the Council had:

• noted the S21 notice was invalid. The expiry date on the emailed notice document dated 17 October sent to it by the tenant was incorrect. There was no valid S21 notice period;
• considered and responded to Mr X’s email in October, and his letter of 1 November setting out his circumstances; and
• sent him a landlord’s questionnaire to complete in which he confirmed why he could not renegotiate the rental agreement to allow the tenant to stay.

41. My view is the Council properly considered the factors relating to Mr X’s position, in accordance with the Code, when determining whether it was reasonable for his tenant to remain in occupation beyond the end of the S21 notice period.
42. On that basis, I consider any complaint about Council’s subsequent actions regarding its Housing Act duties to the tenant was a matter for the tenant.
43. I have not found fault with the Council on this part of Mr X’s complaint.

Communication failures and poor complaint handling

44. I consider there was some miscommunication by the Council in its initial telephone conversations with Mr X. And it failed to send its final response to his complaint as requested, in accordance with stage two of its complaints procedure.
45. I consider these communication failures and poor complaint handling were fault which caused Mr X upset and uncertainty.

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Agreed action

46. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mr X for its communication failures and poor complaint handling. This apology should be in line with our guidance on Making an effective apology; and
2. pay Mr X £150 to reflect the upset and uncertainty caused by its failures. This is a symbolic amount based on our guidance on remedies
47. And within three months from the date of our final decision, the Council has agreed to:
1. review its procedures for communicating with landlords when considering applications for housing assistance from tenants served with notice to leave their accommodation; and
2. remind officers of its process and timescales for completing its complaints procedure.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I have completed my investigation of this complaint and found fault by the Council causing injustice. The Council has agreed to remedy this injustice by taking the above action.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman