Summary: Mr Y complains on behalf of Ms X that the Council failed to help her when she was threatened with homelessness. The Council is at fault for failing to carry out its homeless duties in line with law and guidance. This caused Ms X unnecessary uncertainty and financial loss. The Council should apologise, pay Ms X £7,605 and take action to improve its service.

The complaint

1. Mr Y complains on behalf of Ms X. He says the Council failed to provide Ms X with proper assistance when she was being evicted by her landlord.
2. This caused Ms X unnecessary uncertainty and a financial loss in the form of avoidable court costs.

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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. I have considered the complaint and the Council’s response. I have reviewed the relevant law and guidance.
6. I made written enquiries of the Council and considered the information provided.
7. I have considered the Ombudsman’s guidance on remedies, which can be found on our website.
8. Ms 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

Homelessness Law and Guidance

9. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities (the Code) set out councils’ powers and duties to people who are homeless or threatened with homelessness.
10. Councils can suggest alternative solutions in cases of potential homelessness where these would be suitable and acceptable to the applicant. However councils must not do this to avoid their legal duties, especially the duty to make inquiries into the applicant’s homelessness. The Ombudsman has criticised councils for ‘gatekeeping’ practices, for example, failing to take a homelessness application at the earliest opportunity. (Homelessness Code of Guidance for Local Authorities, paragraphs 2.3 and 6.4)
11. 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))

12. 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) 
13. 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 household, and follow from 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)
14. After completing inquiries, the council must give the applicant a decision in writing. If it is an adverse decision, the letter must fully explain the reasons.  All letters must include information about the right to request a review and the timescale for doing so. (Housing Act 1996, section 184, from 3 April 2018 Homelessness Code of Guidance 18.32 and 18.33)
15. 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. In deciding what steps they are to take, councils must have regard to their assessments of the applicants’ cases. (Housing Act 1996, section 195)
16. Where an applicant is an assured shorthold tenant who has received a valid notice in accordance with section 21 of the Housing Act 1988 and the council is satisfied that the landlord intends to seek possession 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 a property beyond the expiry of a valid section 21 notice. (Homelessness Code of Guidance, paragraph 6.35)
17. A council must secure interim accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need. (Housing Act 1996, section 188)

What happened

18. Ms X says she approached the Council for help, in February 2019. Her landlord had issued a section 21 notice of possession (s21). This means the landlord was asking Ms X to leave the property.
19. The Council says it advised Ms X that “temporary accommodation is typically considered when a tenant receives a bailiff notice to quit”.
20. Ms X says she came back to the Council in June 2019 because she had received a claim for a possession order. This means that her landlord had applied to court for an order requiring Ms X to leave the property. The Council says it advised Ms X that “temporary accommodation would could [sic] be considered once she receives a possession order and bailiff notice to quit her property”.
21. The Council says Ms X made a homeless application in July 2019 and “at that point there was no evidence of receipt of a bailiff notice”. It says that Ms X provided a medical form and a copy of the court possession claim in September 2019.
22. In October 2019, the social worker for Ms X’s son, whom I shall call B, provided evidence of his vulnerability due to a learning disability. The social worker also advised about the risks to him of remaining in the property because he was being victimised by gang activity in the area.
23. In November 2019, the Council issued a s184 decision to Ms X accepting the main housing duty.
24. The Council says that in November 2019 it made two offers of temporary accommodation, but these were withdrawn as unsuitable due to risk. Mr Y says the Council has made no further offers of accommodation.
25. At the time of making the complaint to the Ombudsman, bailiffs were due to execute a warrant on 1 April 2020. The COVID-19 stay on possession proceedings means this warrant has not been acted on. Ms X is still in the property.

Was there fault?

Ms X’s initial request for help

26. Ms X says she approached the Council in February 2019, because her landlord had issued a s21 notice. At this point, the Council should have considered if it had ‘reason to believe’ Ms X might be homeless or threatened with homelessness. The law and the Code are clear that an applicant who has received a valid s21 notice is threatened with homelessness.
27. In response to my enquiries, the Council said “we have no record of contact with this authority in February 2019.” However, in response to Mr Y’s complaint, the Council said “in February 2019, Ms [X], approached Islington Council for temporary accommodation stating she had received notice from her landlord to quit her private tenancy.”
28. It seems likely Ms X did approach the Council in February 2019. Therefore, the Council should have conducted a full assessment of Ms X’s circumstances and made inquiries. The Council is at fault for not carrying out an assessment or making inquiries when Ms X asked for help in February 2019. The Council says it did not take an application from Ms X until July 2019. This is a delay of five months.

Delay accepting a duty

29. The Council should have made inquiries to satisfy itself that Ms X was threatened with homelessness in February 2019. The Council should then have notified her in writing of the result of the assessment, and what duty the Council owed her.
30. If the Council had assessed Ms X in February and made proper inquiries as it should have, it would have become aware of Ms X’s medical needs and the information about her son the social worker eventually provided in October 2019. The information from Children’s Services shows that Ms X’s son was at extreme risk in the area. The Social Worker said he was “at risk of significant harm in terms of risk to his life when coming and going from the property.”
31. At this point, the Council should have decided what duty it owed to Ms X. Having received a valid section 21 notice, Ms X was immediately owed the Prevention duty. However, the risks to B of remaining in the area should have caused the Council to consider whether it was reasonable for Ms X and her family to continue to occupy the property. If it was not, the family was homeless and owed the Relief duty. The Council did not accept any duty to Ms X until July 2019. This is a delay of five months. This is fault.

Accepting the wrong duty

32. When the Council eventually accepted a duty to Ms X, it accepted a Prevention duty. This may have been the correct duty in February 2019. By July 2019, however, the s21 notice had expired and Ms X’s landlord had applied to court for possession of the property. Government guidance says “it is unlikely to be reasonable for the applicant to continue to occupy [a property] beyond the expiry of a valid section 21 notice.” (Homelessness Code of Guidance paragraph 6.36)
33. In July 2019, the Council should have considered whether it was reasonable for Ms X and her family to continue to occupy the property. Given the possession proceedings and the ongoing significant risks to her son, the Council should have accepted the Relief duty. This meant Ms X was homeless. The Council wrongly accepted a Prevention duty to Ms X in July 2019. This is fault.
34. If it had accepted a 56-day Relief duty in July, this would have ended in September 2019 and the Council would have decided if it owed Ms X the main housing duty. It did not make this decision until November 2019. This is a delay of at least two months, and is fault.

Failure to explain the right to request a review

35. The law says that councils must notify applicants in writing about its decisions. It must inform the applicant of the right to request a review of the decision.
36. After completing the assessment and deciding what duty it owed her in February 2019, the Council should then have provided Ms X with a personalised housing plan (PHP) with agreed steps for her and the council to take to prevent or relieve her homelessness.
37. Ms X says she never received a PHP or any letters accepting a duty to her. The Council has provided a copy of letter it says it emailed to Ms X in July 2019 accepting the Prevention duty and setting out the steps of her PHP. The email address the Council sent this letter to is not the email address on Ms X’s housing application. The Council says it is Ms X’s daughter’s email address. Ms X says that she does not have an email address and it is not that of her daughter.
38. The Council’s notes show Ms X provided her daughter’s e-mail address so her daughter could reply to the Council with a copy of Ms X’s possession order. The Council should have checked if Ms X was happy to receive future correspondence in this way, especially as she had no direct access to the e-mail account. Failure to check this with Ms X and to continue corresponding with her via her daughter’s e-mail address is fault.
39. In any event, the Council’s letter to Ms X is faulty. The Code of Guidance says that where a council notifies an applicant of more than one decision in one letter, it must take particular care to ensure the applicant is “made aware of review rights in respect of each of the decisions about which they are being notified.” (Homelessness Code of Guidance paragraph 18.31) The only review mentioned in the July 2019 letter is of the steps in the PHP. The letter also accepts a Prevention duty but fails to include information about how to review this decision. This is fault.

Delay offering s188 interim accommodation

40. In its complaint response, the Council says “under section 6.17 of the Homelessness Code of Guidance for Local Authorities it was reasonable for Ms X to remain in her accommodation pending the execution of a bailiff warrant” once her notice had expired.
41. Section 6.17 of the Code explains that a tenant has a legal right to remain in a property until a court has issued an order granting possession. It makes no reference to reasonableness. In section 6.18 the Code emphasises that the right to remain does not mean that a person is not homeless. It directs Councils to consider whether it is reasonable for the household to continue to occupy the accommodation. It then refers to section 6.35-6.38 of the Code for specific guidance on s21 notices.
42. Section 6.35 of the Code says that it is not usually reasonable for a homeless applicant to continue to occupy accommodation once a s21 notice has expired. Ms X’s s21 notice expired in April 2019. At this point, the Council should have considered whether it was reasonable for her to continue to occupy the property.
43. The Code says that it can be reasonable for households to overstay a notice if the Council is negotiating with the landlord to prevent homelessness or to agree an extension while it seeks alternative accommodation. There is no evidence the Council was negotiating with the landlord or seeking alternative accommodation. Therefore, the Council should have offered Ms X s188 interim accommodation in April 2019.
44. At the latest, the Council should have offered her s188 accommodation when it assessed Ms X in July 2019, by which time she had notice of possession proceedings. The Council did not offer Ms X s188 interim accommodation until November 2019. This is a delay of at least five months and is fault.

Requiring execution of a bailiff’s warrant

45. The Council says it told Ms X it would not offer temporary accommodation until she received a possession order and a bailiff’s warrant. This is in direct opposition to the Code which says councils “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.” (Homelessness Code of Guidance, paragraph 6.37)
46. The Council must have regard to the Code of Guidance when exercising its functions relating to people who are homeless or threatened with homelessness. The failure to do so without good, well documented reasons is fault.
47. I asked the Council for evidence of its decision not to follow the Code in Ms X’s case. In its response, the Council said it does not have a “record for when decisions like this are made; it is a judgment call by a decision maker.” This is fault. Any decision not to have regard to the Code of Guidance should be documented with reasons.
48. In response to Mr Y’s complaint, the Council said:

“temporary accommodation is typically considered when a tenant receives a bailiff notice to quit”.

49. If requiring applicants to wait for bailiff’s warrants is the Council’s standard practice, as this suggests, then it is likely this fault has affected applicants other than Ms X.

Did the fault cause injustice?

50. I find the Council was at fault at every stage of Ms X’s case. I will now consider what injustice these faults caused Ms X.
51. Ms X was already suffering the understandable uncertainty and anxiety caused by being threatened with homelessness. The Council’s actions, and inactions, served to worsen this uncertainty and anxiety. This additional distress was avoidable and is an injustice.
52. Ms X’s landlord applied to the courts to seek possession of the property. In granting the order, the court also ordered Ms X to pay her landlord’s costs in pursuing court action, an amount totalling £355. If the Council had offered Ms X s188 interim accommodation when it should have, Ms X would have avoided this cost.
53. The Homelessness Reduction Act 2017 introduced a formal Prevention duty. It says that when applicants are threatened with homelessness and eligible for assistance, councils must help them to secure that accommodation does not stop being available for their occupation. The Council delayed in accepting any duty to Ms X for around five months from February to July 2019. Had the Council acted in a timely manner, Ms X’s homelessness might have prevented.
54. In any event, the Council should have accepted a Relief duty in July 2019. This would have ended in September 2019 and the Council would have decided whether it owed Ms X the full accommodation duty under s193 of the Housing Act. It did not accept this duty until November 2019.
55. I cannot say Ms X would be in permanent accommodation by now were it not for the fault of the Council. However, Ms X has been left in an uncertain position which has caused her distress.
56. There is also injustice to Ms X’s son, B. The Council should have made proper inquiries when Ms X approached in February 2019, and certainly when it did eventually take an application in July. Those inquiries should have included an assessment of any risk to Ms X or anyone in her household. The information provided by the social worker shows that B’s life is at risk while the family remains in the area. His learning difficulties mean he is particularly vulnerable to exploitation. The Council’s delays in progressing Ms X’s homeless application mean B continues to be at immediate risk.

Agreed action

57. The Council should take the following action to remedy the injustice it has caused Ms X as a result of the fault I have identified:
• Write to Ms X with a full apology
• Pay Ms X £500 for each month she has remained in her tenancy instead of being in interim accommodation since July 2019 for a total of £7,000. It should continue to make these payments until it provides Ms X with suitable temporary accommodation or otherwise discharges its duty
• Pay Ms X £355 to cover the avoidable court costs
• Pay Ms X a further £250 in recognition of the unnecessary uncertainty and anxiety caused
58. The Council should take this action within four weeks of my final decision.
59. I also recommend the Council take the following actions to improve its service:
• Issue a reminder to relevant staff of the Council’s duties under the Homeless Reduction Act 2017 and provide any necessary training to new staff.
• Review and amend the Council’s policy on when to make an offer of s188 interim accommodation in line with law and guidance.
• Review all current cases where the Council’s practice of requiring applicants to wait for a possession order and bailiff warrant might result in similar fault causing injustice and take suitable steps to remedy any cases it finds.
60. The Council should take these actions within three months of my final decision and report back to me on the action it has taken.

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Final decision

61. I have found fault causing injustice. The recommendations I have made are a suitable remedy.

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Investigator's decision on behalf of the Ombudsman