Summary: Mr X complains about the failure of the Council to take action against his former landlord following an illegal eviction and about the remedy for not providing interim accommodation. The Council did not consider whether to prosecute in this case and it does not appear to have a procedure for doing this. A suitable remedy for the distress caused by Mr X sleeping rough for six days is recommended.

The complaint

1. Mr X complains about the Council’s decision not to prosecute his former landlord following an illegal eviction and it has not provided a suitable remedy for its failure to provide interim accommodation causing him to be street homeless for six nights.
2. Mr X says his health deteriorated when he had to sleep rough as he is a kidney transplant patient. He was taken to hospital as a result.

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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 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

6. Mr X contacted the Council on 9 August 2019 to say he had been locked out the previous day by his landlord. Mr X says the landlord refused to give him access through a communal gate and so he was unable to access the property he privately rented. He explained the police were called and Mr X had been arrested as the landlord made an allegation of criminal damage. Mr X spent the night at the police station. Mr X says that although the police tried to help him, the landlord refused to let Mr X into the property when he returned the following morning.
7. A housing options officer telephoned Mr X’s landlord who was adamant he would not let Mr X return to the property. The officer gave Mr X advice about how to seek an injunction against his landlord.
8. The housing options officer than took a homeless application from Mr X. Mr X accepted a private tenancy on 15 August. The Council did not provide any interim accommodation for Mr X from 9 August. It accepts it had a duty to do this.
9. Mr X made a formal complaint to the Council about its failure to prosecute his former landlord and its failure to provide temporary accommodation. In response to his complaint, the Council said while the Council has the power to prosecute a landlord for illegal eviction, it did not have a duty to do this. It said the housing options officer should have followed up the phone call to the landlord with a letter advising the eviction was illegal and he could face prosecution.
10. The Council accepted it had should have provided Mr X with interim accommodation from 9 August to 15 August when his new tenancy began. It said it had information about Mr X’s vulnerabilities ie he had a kidney transplant and was taking immune-suppressant drugs. It said it had prepared training for all housing options staff based on this situation.
11. Mr X was not satisfied with the Council’s response and so wrote to the Council again asking it to contact his landlord about the illegal eviction and to pay compensation of the six nights he had no accommodation. In response, the Council said it had consulted the Local Government and Social Care Ombudsman’s published remedy guide. It said the guide said financial redress is likely to be in the range of £150 to £350 per month if a person is deprived of suitable accommodation. The Council used the higher figure of £350 and determined that it should pay Mr X £70 for the six nights he was deprived of suitable accommodation.
12. Mr X responded saying he was not satisfied with the offer of £70. He said the Ombudsman’s guidance referred to suitable accommodation which assumes some accommodation was provided which was not suitable. He said the Council failed to provide him with any accommodation and so the financial remedy offered is not sufficient. Mr X requested a payment of £1,200 for the six days he had no accommodation.
13. The Council responded saying it had nothing further to add to its previous correspondence and that it would arrange for a £70 cheque to be forwarded to Mr X.
14. Dissatisfied with the Council’s response, Mr X complained to the Ombudsman.

Analysis

15. Mr X complains about the Council’s failure to prosecute his former landlord for an illegal eviction and that it has not provided a suitable remedy for its failure to provide accommodation for six days. I will deal with each point in turn.

Failure to take action regarding the illegal eviction

16. Councils have powers under the Protection from Eviction Act 1977 to investigate complaints of illegal eviction and to prosecute the landlord. As the Council correctly points out this is a power rather than a duty. The Ombudsman would expect a council to have a procedure for considering whether to use its power to prosecute a landlord and to consider each case on its merits. The Ombudsman would find fault if a council fettered its discretion and took a position that it would never use its power to prosecute.
17. In response to our enquiries about this case, the Council has provided contradictory evidence. In an email dated 18 February 2020, the Council said “in terms of policy, if a potential illegal eviction comes to the Council’s attention, it is referred to the Legal department where one particular lawyer is the usual contact. She will review the available evidence and take a view as to whether there is the potential for a successful prosecution taking into account guidance in the /Code for Crown Prosecutors. Whilst the Council has the power to do so, in practice it has been some considerable time since the opportunity to do so arose, invariable down to a lack of cogent evidence.”
18. I then made further enquiries to the Council seeking information about the action it had taken in respect of Mr X’s case. It responded on 10 August 2020 saying it does not have any formal procedure or policy on possible illegal evictions; it said no information was sent by the housing officer to the legal officer about the illegal eviction and so there was no consideration by a legal officer on whether there was sufficient evidence to take a prosecution for illegal eviction.
19. In considering which is the correct position, I note the Council has not provided the written policy or any evidence to show consideration by a legal officer. So on balance, I take the view the email dated 18 February is incorrect and it appears the Council does not actually have a policy or procedure for considering whether to prosecute following an illegal eviction. This is fault.
20. However, if the Council does actually have a policy then it has not been followed in this case and no consideration has been given to whether a prosecution could happen in Mr X’s case. This too is fault.
21. Mr X is left with a lot of uncertainty. He reported the situation promptly and provided details about the involvement of the police. The Council also spoke to the landlord directly about the situation. In response to Mr X’s formal complaint, the Council said it would have liked to have seen evidence that the housing options officer followed up the phone call with a letter to the landlord advising the eviction was illegal and he could face prosecution. Mr X’s frustration that the Council did not write to the landlord is understandable.
22. It is not my role to take a view on whether there is sufficient evidence to warrant a prosecution. This is a decision that only the Council can take. However the failure to have a procedure and to follow that procedure means no consideration was given in this case and Mr X is left frustrated.

Failure to provide a suitable remedy

23. The Council accepts it was at fault for not providing interim accommodation from 9 to 15 August. It responded to Mr X’s request for compensation by making a payment of £70 and saying this is based on the Ombudsman’s guidance on remedies. Mr X provided an argument that the payment was not sufficient to remedy how he was affected. Mr X was sleeping in his car and ultimately ended up in hospital due to a deterioration in his health.
24. Our guidance does give a range of £150 to £350 per month where a person is deprived of suitable accommodation. However, it also says “if we are satisfied a complainant had no option but to sleep rough due to fault by a council, we are likely to recommend financial distress at the top end of the range, with an additional payment to acknowledge distress”.
25. I am satisfied Mr X had no option but to sleep rough because the Council failed to offer him interim accommodation. The Council’s calculation of £70 is an appropriate amount for the period of time Mr X was rough sleeping. However, I consider the remedy should include an additional amount to recognise the distress caused to Mr X. This has to recognise the fact the rough sleeping affected his health to the point he was admitted to hospital.

Agreed action

26. To remedy the injustice caused to Mr X as a result of the fault by the Council it will, within one month of my final decision, take the following action:

• Provide a written apology to Mr X; and
• Pay him £250 to recognise the distress he experienced.

27. Within three months of my final decision the Council should also take the following further action:

• Approve a procedure for the consideration of prosecutions for illegal evictions (this could be based on the procedure set out in the email dated 18 February 2020);
• Ensure housing options and legal staff are aware of the procedure and how to use it; and
• Consider Mr X’s case under the newly adopted procedure and write to him with the outcome of this consideration and the reasons for it.

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Final decision

28. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman