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Royal Borough of Kingston upon Thames (18 010 385)

Category : Housing > Homelessness

Decision : Upheld

Decision date : 04 Jul 2019

The Ombudsman's final decision:

Summary: The Council failed to stop its accommodation providers from removing Miss X from temporary accommodation without following the correct process. The Council should provide Miss X with accommodation and assist her in securing permanent accommodation. The Council should also pay Miss X £2000 to acknowledge the distress caused to Miss X.

The Ombudsman’s role and powers

  1. 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)
  3. If we are satisfied with a council’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

  1. I have spoken to Miss X about her complaint and considered the information she provided to the Ombudsman.
  2. I have also considered the Council’s response to my enquiries which includes Miss X’s homelessness file and contact between the Council and Miss X’s accommodation provider.
  3. I have written to Miss X and the Council with a draft report and given them an opportunity to comment.
  4. Since we issued a draft report Miss X has taken judicial review action against the Council. This does not relate to the matters complained of here. However we have decided not to issue a public report as the Council has accepted our recommendations and issuing a public report may complicate matters put before the court.

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What I found

Homelessness & temporary accommodation

  1. 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.
  2. Prior to 3 April 2018 if a council was satisfied someone was eligible, homeless, in priority need and unintentionally homeless it owed them the main homelessness duty. Generally, the Council carried out the duty by arranging temporary accommodation until it makes a suitable offer of social housing or private rented accommodation. (Housing Act 1996, section 193)
  3. There were limited ways the Council could bring the main homelessness duty to an end. One way was if a person refused a reasonable offer of suitable temporary accommodation. (Housing Act 1996, section 193)
  4. Homeless people have a right to review a decision of the Council to end the main homelessness duty. If they are unhappy with the outcome of the review they have a right to appeal to the county court. (Housing Act 1996, section 202 & 204)
  5. If the Council ends the main homelessness duty to a person in temporary accommodation it must serve them with a notice to quit and then recover possession of the property through the courts. (Housing Act 1996, section 202 & 204)
  6. The courts have said that self-contained temporary accommodation provided to people owed the main homelessness duty is usually covered by Protection from Eviction Act 1977 (Wandsworth LBC v Tompkins [2015] EWCA Civ 846)

Protection from Eviction Act 1977

  1. The law says that it is an offence for a landlord to evict a tenant without due process of law.
  2. Where a Council is providing temporary accommodation to someone owed the main homelessness duty it must serve a notice to quit and then take action to recover possession in court once the notice expires.
  3. It is a criminal offence to remove someone from a property where Protection from Eviction Act 1977 applies without following due process. A person can only be convicted in court.

What happened

  1. In November 2017, the Council discharged its duty to Miss X as it said she had refused an offer of temporary accommodation. The Council said the offer was suitable and reasonable. Miss X was already residing in temporary accommodation but the Council said it needed to move her elsewhere as the accommodation she was in was intended for emergency use only.
  2. Miss X says she was due to give birth in February 2018 and had medical needs associated with this which meant she was unable to move home. The Council said it was not “reasonable” for Miss X to refuse the accommodation on these grounds.
  3. The Council advised Miss X she had a right of appeal and she could also make a fresh homeless application. The Council said Miss X could continue to stay in the temporary accommodation it had provided for her but said it intended to serve notice on her requiring her to leave as it no longer had a duty to house her.
  4. On 1 December 2017 Miss X asked for a review of the Council’s decision.
  5. The Council wrote to Miss X with the outcome of the review on 7 February 2018. The Council upheld its decision to end its duty to house Miss X. The Council said it would “now seek recovery” of her accommodation and would contact her in “due course”.
  6. The Council advised Miss X that she could appeal its decision in the County Court.
  7. Miss X did not appeal the Council’s decision in the County Court. However, she remained living in accommodation provided by the Council.
  8. On 6 August 2018 a new managing agent took control of the property containing the flat Miss X was residing in. The Council says it was unaware ownership of the property had changed. A possession order was granted on that day in favour of the new managing agent against the previous management agent. The possession order was one of a number of possession orders granted in favour of the new managing agents regarding a number of properties.
  9. On 26 September 2018 the new managing agents of the property put a notice on Miss X’s door saying they required “emergency access” to the property to fix a leak in the bathroom which was causing damage to the retail unit below. The letter said “in case if any access is denied, we will report council’s housing department and seek immediate vacant possession of the flats on emergency grounds which could have financial consequences”.
  10. Around the same time another letter was posted on Miss X’s door explaining ownership of the property had changed. The letter asked tenants to provide their contact details and information about their tenancy. The letter said if the new managing agents did not hear from Miss X they would assume the flat was empty, report this to the Council’s housing department and “seek immediate vacant possession of the flats on emergency grounds”.
  11. The new managing agents say they hand delivered a letter to Miss X on 5 October 2018 advising her of the possession order and fixed this to her door. The letter said Miss X should ensure all rent due from 6 August 2018 was paid into their bank. The letter provided contact details for the new letting agents and details of how to make payments. Miss X says she never received this letter.
  12. On 13 October 2018 Miss X e-mailed the Council to report a number of repair issues. Miss X said she had “spoke to the agent of the new landlord… They also wanted to change my door because since I am away they left a note on my door that Kingston Council did not pay any rent to the new owner of the building on my behalf”.
  13. Miss X asked the Council to “speak to them and pay them to the new owner otherwise they would forcefully enter my preperty [sic] and change locks? Or this is what they told me over the phone, because they did not have a record who is renting the flat on my behalf”.
  14. Miss X attached screen shots of text messages between herself and the new managing agent explaining the Council was her landlord. The text message also said Miss X was having issues with her hot water and she expected to be back on 31 October or 1 November 2018.
  15. Miss X e-mailed the Council’s Housing Benefit department on the same day and copied this to the Council’s Housing Department. In her e-mail she explained she had no hot water or heating and that the owner of the property claimed they were not in receipt of any payments from the Council for her living there.
  16. On 17 October 2018 the Council served Miss X with a notice to quit. The notice required Miss X to leave the accommodation by 18 November 2018 “or the day on which a complete period of your tenancy expires next after the end of four weeks from the service of this notice”.
  17. On 18 October 2018 the Council e-mailed the previous managing agents and asked it to resolve repair issues in the property Miss X had raised. The e-mail said “I understand she is on holiday at the moment so i [sic] would appreciate it if you made contact with her to arrange a suitable date and time to look into the repair issues”.
  18. On 19 October 2018 a senior Council Officer sent an internal e-mail asking “can we resolve disrepair issues please”.
  19. Miss X says the new managing agent gave her a code for the communal entrance on 19 October 2018 because the code had been changed.
  20. On 7 November 2018 Miss X e-mailed the Council to say she had returned to her flat and found that all her possessions had been removed and the bathroom ripped out.
  21. Miss X approached the Council on the same day to ask for assistance. The Council said it discussed the eviction with her “but I am afraid that the Council was not in a position to assist with alternative accommodation as the authority had, as detailed above, lawfully discharged its homeless duty to [Miss X], and that there had not been a material change in her circumstances”.
  22. The Council says it was “totally unaware the change of ownership had happened”. The Council says it “appears [Miss X] was not in physical residence and was, we believe, likely to have been abroad”.
  23. The Council met with the new owners of the property on 22 January 2019. The new owners of the property explained contractors had been working at the property between 27 October 2018 to 5 November 2018. They knocked on Miss X’s door but received no reply. The new owners say the letter attached to the door on 5 October 2018 remained in place during this period.
  24. Miss X says she was away from the property for a period during October but her nephew was checking the premises for her. She says the new managing agents accused him of trespassing.
  25. Miss X says returned to the property on 31 October but was away on 6 November 2018 as her baby was admitted to hospital with a chest infection. Miss X says she spent the night at a friend’s address and returned the following day to find the managing agent had taken possession of the property.
  26. Miss X and her baby have been staying between friends since being removed from the property.

Our findings

  1. The Ombudsman cannot decide if Miss X was illegally evicted from the property under Protection from Eviction Act 1977. That is a matter for the courts.
  2. The Council says it was “fully aware that [Miss X] was protected under the Prevention from Eviction Act [sic] and as a consequence served notice upon her”. However, the Council failed to ensure that Miss X was able to continue residing in the accommodation until it had recovered possession through proceedings in the courts. This is fault.
  3. Miss X made the Council aware new managing agents were threatening to change the locks and that there was no hot water or heating in the property in
    e-mails she sent in October 2018. It seems likely Miss X also informed the Council she was on holiday as the Council mentions this when it contacted the previous managing agent about the repair issues on 18 October 2018.
  4. The Council should have acted on 13 October 2018 when Miss X told it that there was a new managing agent for the property who was threatening to remove her. The Council compounded this fault when it contacted the previous managing agents about repair issues five days later even though Miss X had informed it ownership of the property had changed.
  5. When Miss X advised the Council she had been removed from the property the Council did not take any action to enable her to return to the property. The Council should have ensured Miss X could return to the property until the notice it had served expired and due process through the courts had been completed. This is fault.
  6. The Council says it met with the new managing agent of the property on 22 January 2019 and there is evidence Miss X was not residing in the property. However, the Council should have made enquiries with the new managing agent whilst Miss X was still residing in the property and at the very least when she approached it on 7 November 2018 to report that she had been evicted.
  7. Miss X has provided us with evidence in the form of photographs of notices fixed to her door, e-mails she sent to the Council and records of text messages with the new managing agents which cast doubt on the version of events the new managing agents put to the Council.
  8. If it were not for the fault Miss X would have been able to continue living in the property until at least the beginning of February 2019 taking account of the notice the Council served on 17 October 2018 and approximate timescales involved in recovering possession through the courts. This four month period would have allowed Miss X to make arrangements to find alternative accommodation and move in a planned way.
  9. As a result of the fault by the Council Miss X has been caused significant distress and has had to stay between different addresses with her baby.
  10. The Council says Miss X had sufficient time to prepare to leave the accommodation as it had advised her it would be evicting her when it wrote to her about her review decision in February 2018. However, the Council took no steps to end Miss X’s accommodation until October 2018 which is 7 months later. Although Miss X has enjoyed a longer period in temporary accommodation than she might had the Council acted sooner this does not diminish the distress caused to her when she was suddenly removed from the property without the proper process being followed.

Agreed action

  1. Following my recommendations the Council has agreed to take the following action to remedy the injustice caused to Miss X as a result of the fault we have identified:
    • Provide Miss X with accommodation on a discretionary basis for a period of four months.
    • Provide Miss X with assistance to find alternative accommodation through its rent deposit scheme.
  2. Since we issued a draft report the Council has offered Miss X accommodation and offered her assistance with her housing. Miss X has since taken court action regarding the suitability of the accommodation offered. I am satisfied the action the Council has taken is in line with my recommendations. I cannot comment on whether or not the offer of accommodation was suitable. That is a matter for the courts.
  3. The Council has also agreed to pay Miss X £2000 for the distress caused as a result of being removed from the property without due process being followed. The Council should do so within 8 weeks of this decision.
  4. The Council should also take the following actions to improve its services:
    • Review its processes to ensure it maintains regular contact with providers of emergency and temporary accommodation and keeps records of any discussions.
    • Review the way this case was dealt with to see if any lessons can be learned or processes improved as a result of the missed opportunities to help Miss X.
    • Review processes for dealing with occupants of temporary accommodation who have been served notice to ensure regular contact is maintained and housing options fully explored.
  5. The Council should take this action within three months of the date of this decision..

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Final decision

  1. I have completed my investigation as I have found fault causing injustice. The action the Council has agreed to take is a suitable way of remedying the injustice caused to Miss X.

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Investigator's decision on behalf of the Ombudsman

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