Summary: Mrs X complained about the Council’s failure to rehouse her tenant from her property after she served a notice. We found the Council at fault as it did not consider whether the property was reasonable for the tenant to remain in occupation, during the period Mrs X was seeking possession of the property. The Council has agreed to our recommendations to remedy the injustice.

The complaint

1. Mrs X complains about the Council’s actions after she took steps to evict her tenant, and after the Court made a Possession Order in August 2023. She says the Council failed to consider statutory guidance when it advised her tenant to remain in her property. She says this caused significant frustration and distress, a loss of rental income and she incurred extra costs as well as time and trouble in trying to resolve the situation.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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)

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What I have and have not investigated

5. Mrs X provided background information about the financial circumstances of her tenant from 2022, which the Council was aware of. She said this was part of her complaint. However, as per Paragraph 3, this part is late. These are events older than 12 months before coming to us in May 2024. I consider Mrs X could have complained to us sooner about this. For this reason, this history is not specifically part of my consideration for this complaint.
6. I have exercised discretion to consider the Council’s actions from early 2023, as a fair start point after Mrs X issued the notice to her tenant.

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How I considered this complaint

7. I discussed the complaint with Mrs X and considered her views.
8. I made enquiries of the Council and considered its written responses and information it provided.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and administrative background

Homelessness guidance

10. The Homelessness Code of Guidance for Local Authorities (“the Code”) 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.
11. Housing authorities should note that the fact that a tenant has a right to remain in occupation does not necessarily mean they are not homeless. In assessing whether an applicant is homeless in cases where they are a tenant who has a right to remain in occupation pending execution of a warrant for possession, the housing authority will also need to consider whether it would be reasonable for them to continue to occupy the accommodation in the circumstances (Paragraph 6.18).
12. 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 they intend 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; and
4. the burden on the courts of unnecessary proceedings where there is no defence to a possession claim.
13. During the period an applicant remains in occupation while the landlord pursues possession action, the Council 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 reasonable for the applicant to occupy (Paragraph 6.34).
14. Where the Council believes 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 (Paragraph 6.35).
15. 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).

Affordability

16. Councils are required to consider the affordability of the accommodation for the applicant. In determining both whether it would be, or would have been, reasonable for a person to continue to occupy accommodation and whether the accommodation is suitable, a housing authority must take into account whether the accommodation is affordable for them (Paragraph 6.28).

What happened – summary of key relevant events

17. Mrs X is a landlord. She let a property to “Z” under an assured shorthold tenancy agreement.
18. Mrs X issued Z with a notice to seek possession of her property as Z had built up significant rent arrears.
19. Months later, Mrs X applied to the court to obtain a possession order. After the hearing in August 2023, the order said Z must leave the property by late September 2023. Mrs X emailed the Council with a copy of the eviction order.
20. In early October 2023, a Housing Officer from the Council contacted Mrs X about the situation and Mrs X confirmed Z was in rent arrears of several thousand pounds. The Council had no records of making contact with Mrs X before or after this, up until her formal complaint.
21. Mrs X said Z had told her the Council had continually refused to rehouse Z and told Z to stay until bailiffs arrived. Z obtained a “breathing space order” which extended their right to stay in the property.
22. In mid-January 2024, Mrs X formally complained to the Council. It was aware her property was unaffordable to Z. It failed to rehouse Z and act in line with quoted parts of the Homelessness Code of Guidance. As a result, Mrs X said she had incurred a number of unnecessary costs and expenses due to the actions of Z.
23. The Council took Mrs X’s complaint through both stages of its complaints process. It sent its final response in late March 2024. It was satisfied it had complied with its statutory duties.
24. Mrs X applied for a warrant of eviction. In April 2024, the bailiffs evicted Z. Mrs X then complained to us.
25. In response to my enquiries, the Council provided Z’s housing file.

Analysis

26. During the period considered after Mrs X issued the notice, the Council had limited contact with Mrs X and has not explained why. This is fault. The Code advises councils should maintain contact with both tenant and landlord after a notice has been served and during the stages of possession. The Council did not make efforts to contact Mrs X to understand the situation from her view or to discuss potential resolutions to allow Z to remain in the property.
27. It was not fault for the Council to tell Z about their rights to remain in the property after Mrs X issued a notice. However, it had a duty to consider whether it was reasonable for Z to continue to occupy the property.
28. I have considered information the Council provided from Z’s case file. I am unable to share specific details as this is third party information. However, looking at the evidence, I am not satisfied the Council has followed the Code and considered whether it was reasonable for Z to remain in Mrs X’s property during the above period. There were missed opportunities for the Council to turn its mind to the relevant points referred to in Paragraphs 11 to 16. Its failure to do so is fault.
29. In her complaint, Mrs X quoted valid and relevant parts of the Code. The Council did not appear to take this on board or sufficiently address these in its responses. This is fault. This caused Mrs X avoidable frustration.

Injustice

30. Having identified fault, I now have to consider the injustice to Mrs X.
31. I cannot say had the Council acted in line with the Code and appropriately considered whether it was reasonable for Z to remain and taken action with this, whether Z would have accepted any specific offers of temporary accommodation before the bailiffs came. Even if Z had, what may have happened next would rely upon too many variables with the actions and choices of other third parties.
32. Mrs X says she has incurred unnecessary costs and loss of rental income, but with the above in mind, I am unable to say there is a causal link with this and fault by the Council.
33. However, Mrs X has significant uncertainty and frustration about what might have happened had it not been for the faults; whether the outcome may have been different, and whether she could have had her property back sooner. This is her injustice.

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Agreed action

34. To remedy the injustice set out above, the Council has agreed to carry out the following actions within one month of the final decision:
• Apologise in writing to Mrs X (in line with our guidance on making an effective apology) for the uncertainty and frustration caused by the faults identified; and
• Pay her £400 as a symbolic payment to recognise her injustice.
35. The Council should provide us with evidence it has complied with the above actions.
36. In my draft decision, I made a recommendation for the Council to address training needs with the fault found. The Council said it has recently had training delivered by an outside provider to address this and a number of other topics. I am satisfied this is positive action to recognise its shortcomings and is appropriate. I have therefore removed this recommendation.

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Final decision

37. I found fault with the Council which caused injustice to Mrs X. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman