Summary: Ms X complains on behalf of her father, Mr Y, that the Council failed to find suitable temporary accommodation despite knowing in advance the family was due to be evicted from their private rented property. We find the Council failed to act on its homelessness duties. These faults caused Mr Y distress and uncertainty. The Council has agreed to apologise to Mr Y and make a financial payment. This remedies the injustice caused.

The complaint

1. Ms X complains on behalf of her father, Mr Y, that the Council failed to find suitable temporary accommodation despite knowing in advance the family was due to be evicted from their private rented property. Ms X also complains the Council delayed her father’s housing register application.
2. Ms X says these faults have caused avoidable anxiety and uncertainty about whether there might have been a better outcome sooner. This has affected her father’s health and wellbeing and that of the family.

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The Ombudsman’s role and powers

3. 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)
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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How I considered this complaint

5. I considered the information provided by Ms X and spoke to her about the complaint. I made enquiries of the Council and considered its response.
6. Ms X and the Council had the opportunity to consider my draft decision. I considered all comments before reaching a final decision.

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What I found

Legal and administrative background

7. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness. Part 7 of the Housing Act 1996 was amended by the Homelessness Reduction Act 2017 with effect from 3 April 2018.
8. Someone is threatened with homelessness if, when asking for assistance from the Council on or after 3 April 2018:
• he or she is likely to become homeless within 56 days; or
• he or she has been served with a valid Section 21 notice which will expire within 56 days. (Housing Act 1996, section 175(4) & (5))
9. Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. The Code of Guidance says, rather than advise the applicant to return when homelessness is more imminent, the housing authority may wish to accept a prevention duty and begin to take reasonable steps to prevent homelessness. Councils must notify the applicant of the assessment. 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 applicant’s household, following the findings of the assessment and must be provided to the applicant in writing as their personalised housing plan. (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.18)
10. If councils are satisfied applicants are threatened with homelessness and eligible for assistance, they must help them to secure that accommodation does not stop being available for their occupation. This is called the prevention duty. In deciding what steps they are to take, councils must have regard to their assessments of the applicants’ cases. (Housing Act 1996, section 195)
11. Councils can bring the prevention duty to an end in the following circumstances:
• The applicant has suitable accommodation available that has a reasonable prospect of being available for at least six months;
• 56 days have passed since the authority became subject to this duty, except where the applicant has been served with a s21 notice, in which case the duty continues for as long as they continue to occupy the property subject to the notice;
• The applicant has become homeless;
• The applicant has refused a suitable offer of accommodation that would have been available for at least six months;
• The applicant has become intentionally homeless from any accommodation that was made available by the authority exercising functions under this section;
• The applicant is no longer eligible; and
• The applicant has withdrawn the application. (Housing Act 1996, section 195(8))
12. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. This is called the Relief duty. When a council decides this duty has come to an end, it must notify the applicant in writing (Housing Act 1996, section 189B)
13. If a council has ‘reason to believe’ someone may be homeless or threatened with homelessness, it must take a homelessness application and make inquiries. The threshold for taking an application is low. The person does not have to complete a specific form or approach a particular council department. (Housing Act 1996, section 184 and Homelessness Code of Guidance paragraphs 6.2 and 18.5)
14. The Secretary of State considers that where an applicant is:
1. an assured shorthold tenant who has received a valid notice in accordance with section 21 of the Housing Act 1988;
2. 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
3. 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 provide an opportunity for alternative accommodation to be found.

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.
16. Housing authorities should not consider it reasonable for an applicant to remain in occupation up until the point at which a court issues a warrant or writ to enforce an order for possession.
17. Housing 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 for possession as a result of a failure by the authority to make suitable accommodation available to them. (Homelessness Code of Guidance paragraphs 6.35 – 6.38)

Council’s housing allocations policy

18. The policy states the Council aims to notify applicants of the result of the assessment of their priority under the housing banding system within 33 days. However, in cases where a medical assessment or other special assessment is required, it may take longer to notify applicants.
19. The Council assigns applicants for social housing to one of four priorities:
• Band 1: Urgent – urgent need to move due to reasonable preference plus additional priority and a residential connection.
• Band 2: Need to move – reasonable preference plus community contribution and a residential connection.
• Band 3: Need to move – reasonable preference but no community contribution and a residential connection.
• Band 4: Reduced priority – reasonable preference but with reduced priority.

What happened

20. Below is a chronology of key events. This is not intended to be a detailed account of everything that happened.
21. Mr Y, his wife and children have been diagnosed with several health conditions.
22. Mr Y approached the Council in January 2022, stating he had been served with a section 21 notice by his landlord. This told him he was required to leave the property by 11 March. On the same day the Council acknowledged receipt of the notice.
23. On 25 January, Mr Y provided the Council with the family’s medical information. The Council then completed a full housing needs assessment with Mr Y and Ms X. The family was entitled to a three bedroom property.
24. On 4 February, an MP contacted the Council on behalf of Mr Y, stating the family was facing an imminent threat of homelessness. The Council responded to the MP and explained that until Mr Y received a bailiff warrant, he was legally entitled to remain in the property “well past the 11 March expiry date”. The Council said that if Mr Y was nominated for a Barnet Homes property, he would join the waiting list and the average wait time for a four-bedroom property was 1360 days and 1034 days for a three-bedroom property. The Council said it would be beneficial for Mr Y to explore with the Council, landlord incentive payments and private rented properties.
25. On 5 July, Mrs Y’s GP wrote “They have not been able to find a house in this area which is their preference due to their reliance on local services and the local school know their son well and medically appropriate as [Mrs Y] and her husband both have complex set of medical problems and are both known to several specialist in this area”. A copy of this letter was sent to the Council.
26. On 13 July, Mr Y informed the Council he had received a second eviction notice from agents acting on behalf of the landlord. The next day, Mr Y’s son’s school wrote to the Council and expressed support for Mr Y and his family to be rehoused within their current area.
27. On 14 September, Mr Y sent an email to the Council requesting an update. He said he had not received a response to his previous email. Mr Y provided new medical information about himself and his wife. He said the stress of his housing situation had significantly impacted his physical and mental wellbeing.
28. On 3 November the County Court issued an Order for possession which required Mr Y to leave the property by 14 November. Mr Y informed the Council on 7 November. The Council acknowledged Mr Y’s email and said “once the possession order has expired you can expect to hear from the court over the next few weeks or months when they issue an eviction notice/bailiffs warrant…The eviction notice will have a date on it and this is the final date when you will have to leave”. The Council advised Mr Y to look for private rented accommodation due to the lack of available properties in the area. It said it could support Mr Y financially to try and secure a private rented property and negotiate with agents and landlords on his behalf. The Council said that emergency temporary accommodation would most likely be out of borough.
29. On 1 December, the Council attempted to contact Mr Y’s landlord but was unsuccessful. Subsequently the Council contacted the agents acting on behalf of the landlord and asked if they would speak to the landlord about the possibility of sustaining the tenancy in exchange for a one-off incentive payment. The agency advised the landlord had had a change in circumstances which meant he needed to sell the property and the process had already started.
30. On 13 December, the Council wrote to Mr Y accepting it owed him a prevention duty. It also issued a personalised housing plan (PHP). In order to band Mr Y’s application, the Council requested further information from Mr Y. The Council advised Mr Y to look for a suitable property in the private rented sector due to the difficulty of obtaining a three- or four-bedroom property even when banded.
31. On 15 December, the Council contacted Mr Y about a suitable property. Mr Y refused to view the property due to its location. Mr Y said it would take over an hour to get his son to school by bus. The Council told the Ombudsman it had been notified of a four-bedroom property and three-bedroom property but both properties were outside Mr Y’s current location. Therefore, the Council decided not to send details of these properties to Mr Y.
32. On 21 December, Mr Y contacted the Council about a possible private rented sector property available in January 2023. The Council negotiated with the landlord and agreed a rent of £2300 a month. The family received a local housing allowance of £1894 which meant they would need to pay £406 per month towards the rent. The Council agreed to pay £5500 as a one-off incentive payment to the landlord.
33. Mr Y told the Council he could not afford any top up payment or pay anything towards the housing costs.
34. On 22 December, the Homelessness Prevention Fund (HPF) agreed to contribute some money to the potential tenancy to help the family secure the property. HPF agreed to pay £4800 for the 24-month period. This reduced the amount the family would have to pay by a further £200 per month to £206 per month. The Council said the family received just short of £3000 in various benefits per month, excluding housing benefit. Mr Y explained they could not pay anything towards their housing costs. Ms X contacted the landlord directly and refused the property.
35. The Council invited Mr Y to a meeting to discuss his case on 4 January 2023. The Council arranged for an interpreter to support Mr Y’s communication. Ms X also attended the meeting. The Council acknowledged there had been a delay in banding Mr Y’s case and said the banding would be backdated to January 2022. The Council told Mr Y that it was unlikely they would have secured a property during this time due to the long waiting list for three-bedroom properties.
36. The Council booked an appointment with Mr Y for 31 January, to assess his banding. Mr Y cancelled the appointment, and it was rescheduled for 7 February.
37. On 2 February, Mr Y informed the Council he had secured a tenancy agreement on a property. Mr Y’s case was closed as the Council was satisfied that Mr Y was adequately housed and no longer had a housing need.

Analysis

38. Mr Y initially approached the Council in January 2021, as his landlord was trying to remove him from the property. At this stage the Council owed Mr X a prevention duty and should have provided him with a PHP as he had received a section 21 notice. The Council did not send Mr Y a letter saying it owed him a prevention duty or provide him with a PHP until December 2022. This was fault. If Mr Y had received a PHP earlier, he would have been able to see what steps he and the Council should be taking to prevent his homelessness and have had a greater understanding of what was expected of each party during the prevention duty timeframe.
39. In response to my enquiries the Council acknowledged there were delays in banding Mr Y’s application and it did not meet the timescales set out in its housing allocations policy. The Council also acknowledged that Mr Y should have been issued with an PHP soon after his full housing assessment. In recognition of the distress and inconvenience this caused Mr Y and his family the Council has offered a payment of £500. I am satisfied this remedies the injustice caused, as based on wait times for three bedroom properties it is clear that Mr Y would not have been offered social housing during this period.
40. The Council should have contacted Mr Y’s landlord as part of its prevention duty. The evidence shows it did not do so until December 2022, which is 11 months after Mr Y had received a section 21 notice. The Council’s failure to take preventative action was fault and caused distress in the form of uncertainty about whether, if the Council had acted sooner, it could have stopped Mr Y and his family being evicted from the property.
41. Councils should not consider it reasonable for homeless applicants to remain in a private tenancy until the date the court issues a warrant for possession. The Homelessness Code of Guidance, as outlined in paragraphs 14 to 17 above, suggests it would not have been reasonable for Mr Y to continue to occupy his property. The Council should have considered offering Mr Y and his family interim accommodation before the warrant for possession was issued. Its failure to do so was fault.
42. However, the Ombudsman cannot assess how these faults affected Mr Y’s housing situation as there is no evidence to suggest Mr Y’s landlord would have agreed to let the family stay in the property. What I can say, is the Council’s fault caused Mr Y and his family distress, in terms of worry and uncertainty which the Council should remedy. I am satisfied the Council’s offer of £500 remedies this injustice.
43. Ms X said the Council advised the family to seek privately rented accommodation and hopefully after two years they would be near the top of the waiting list for social housing. I have found no evidence that supports Ms X’s comments. Furthermore, the Council has explained it does not operate a waiting list and Mr Y’s case was closed when he had found a suitable property. I find no fault by the Council.

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Agreed action

44. The Ombudsman’s guidance on remedies recommends a remedy payment for distress of up to £500. In cases where the distress is severe or prolonged, we may recommend more. In this case the Council has offered a payment of £500 for the distress caused to Mr Y. I am satisfied this resolves the injustice caused in this case.
45. Within one month of my final decision the Council will:
1. apologise to Mr Y for the faults identified in this statement;
2. pay Mr Y £500 for the distress he experienced by the faults identified in this statement; and
3. circulate the final decision to relevant staff and highlight the faults found. It should remind staff the code of guidance says councils should not consider it reasonable for homeless applicants to remain in a private tenancy up until the date the court issues a warrant for possession. The Council should consider providing relevant training to prevent the recurrence of the faults.
46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. I have completed my investigation finding fault by the Council causing an injustice to Mr Y and his family.

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Investigator's decision on behalf of the Ombudsman