Summary: Ms X complains about the Council’s handling of her homelessness application. She says the Council’s only action was to ask her to look for private accommodation. Ms X says the Council should owe her the relief duty. The Ombudsman finds fault with the Council’s handling of Ms X’s homelessness application. We have made recommendations.

The complaint

1. Ms X complains about the Council’s handling of her homelessness application. She says:
• the Council has not provided her with practical support and its only action was to ask her to look for private accommodation;
• the Council should owe her the relief duty;
• the housing officer threatened to send her out of borough if she contacted her; and

Ms X says the Council’s actions have caused her distress as she cannot afford the full rent on her property and she has fallen into arrears. She says her landlord has now gone to court to seek payment of the rent arrears

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
5. 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

6. I spoke with Ms X and considered the information she provided.
7. I considered the information provided by the Council.
8. I sent a draft decision to Ms X and the Council and considered their comments.

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What I found

Legal and administrative background

9. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities (the Code of Guidance) set out councils’ powers and duties to people who are homeless or threatened with homelessness. The Code of Guidance is statutory guidance on how councils should carry out their functions and they must have regard to it.
10. 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))
11. A person is homeless if they do not have accommodation that they are entitled to occupy, which is accessible and physically available to them (and their household) and which it would be reasonable for them to continue to live in. (Housing Act 1996, section 175)
12. If councils are satisfied applicants are threatened with homelessness and eligible for assistance, they must help them ensure accommodation does not stop being available for them. This is called the prevention duty. In deciding what steps to take, councils must have regard to their assessments of the applicants’ cases. (Housing Act 1996, section 195)
13. The Homelessness Code of Guidance notes where the prevention duty is owed, the first option to be explored with the applicant should be enabling them to remain in their current home, where suitable. Where this is not possible, the focus should be on helping to secure alternative accommodation that the applicant can move into in a planned way. This will often involve taking steps to extend an applicant’s stay in their existing accommodation until they can move. (paragraph 12.4)
14. If a council is satisfied someone is homeless and eligible for assistance, it must take reasonable steps to secure accommodation for them. This is known as the council’s relief duty. (Housing Act 1996, section 189B)
15. Councils should work with the person to identify practical and reasonable steps for the council and the person to take to help them keep or find suitable accommodation. These steps must be tailored to the household and provided to the person in a personalised housing plan (PHP). The PHP must be kept under review and updated as circumstances change. (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.18)
16. A council must not treat someone as having accommodation unless it is accommodation which it would be reasonable for them to continue to occupy. (Housing Act 1996, section 175(3))
17. The Homelessness Code of Guidance says housing authorities should note that the fact 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 6.17 and 6.18)
18. The Code provides further guidance on this. It notes, 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. (paragraph 6.35)

19. 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. (paragraph 6.37)
20. Section 188(1) of the Housing Act 1996 requires housing authorities to secure that accommodation is available for an applicant if they have reason to believe the applicant may:
1. be homeless;
2. be eligible for assistance; and
3. have a priority need.

If the above is met, the housing authority must provide interim accommodation whilst fulfilling the relief duty. (Homelessness Code of Guidance, paragraph 13.4)

21. The threshold for trigging the section 188(1) duty is low as the housing authority only has to have a reason to believe (rather than being satisfied) the applicant may be homeless, eligible for assistance, and have a priority need.

What happened

22. Ms X has a child and was a joint tenant in a property. The full rent for the property was £1450 a month. Ms X share of the rent was £725. Ms X’s joint tenant decided to move out of the property. Ms X refused permission to end the joint tenancy.
23. In December 2019, Ms X’s landlord served a Section 21 notice. A Section 21 notice is a legal notice that a landlord can give to start the process to end an assured shorthold tenancy. The Section 21 notice asked Ms X to leave the property at the end of February 2020.
24. At the beginning of January 2020, Ms X made a homelessness application with the Council. The Council interviewed and completed an assessment of Ms X’s housing circumstances a week after her application.
25. Near the end of January, Ms X’s housing officer contacted Ms X’s letting agent. The housing officer asked the letting agent if the Council could make a financial arrangement to keep Ms X in the property.
26. In February 2020, the letting agent told the Council the landlord was not willing to keep Ms X on as a tenant. The letting agent provided the landlord’s reasons for their decision.
27. At the end of February 2020, Ms X’s Section 21 notice expired.
28. In March 2020, the Council sent Ms X a letter confirming she was eligible for help and threatened with homelessness. The Council said it owed her the prevention duty. The letter set out what the Council would do to help Ms X to prevent her homelessness. The Council also sent Ms X her personalised housing plan (PHP).
29. Ms X’s PHP set out the steps the Council would take to help her. These included (amongst others):
• helping Ms X look for alternative accommodation in the private sector.
• Contacting Ms X’s landlord to confirm the reason for the Section 21 notice.
• Contacting Ms X’s landlord to try and negotiate on her behalf for her to remain at the property
30. The PHP also included steps for Ms X to take. One step was for Ms X to look for private rented accommodation and familiarise herself with the local housing allowance.
31. In March 2020, Ms X told the housing officer she was unhappy with her PHP. She also told the housing officer she felt the relief duty should start. The housing officer told Ms X she was still in the prevention stage as she had a legal right to remain in the property until the time of a bailiff’s warrant. Ms X asked the Council to complete a review of her PHP and raised a complaint.
32. At the end of April 2020, the Council sent Ms X an amended PHP following her review request. The Council decided to amend Ms X’s PHP so that items that did not apply, or no longer applied, to Ms X’s case was removed. The steps for the Council and Ms X to take did not change.
33. The Council continued to look for private rented accommodation for Ms X in April 2020. The Council told Ms X there was a suitable one-bedroom apartment available to view at the end of April 2020. Ms X declined this as she felt the property was not suitable for her.
34. The Council responded to Ms X’s complaint at stage one in May 2020. The Council accepted fault for the delay in sending her the PHP and accepting the prevention duty. The Council confirmed Ms X was still owed the prevention duty as evictions were suspended due to the Covid-19 pandemic. The Council said the prevention duty could be extended until she was homeless, such as on expiry of a bailiff’s warrant.
35. In July 2020, The Council responded to Ms X’s complaint at stage two. The Council again confirmed Ms X was owed the prevention duty due to the suspension of evictions.
36. In August 2020, Ms X’s letting agent told the Council Ms X was currently in arrears as she had not paid rent since March 2020. The letting agent confirmed the landlord was charging Ms X for the full rent. Ms X told the Council she had not paid her share of the rent as she was unsure if the landlord would charge her for the full rent. Ms X said she had saved her half of the rent and the money was available to pay the landlord. Ms X said she could not afford the cost of the full rent as her benefits only covered her half.
37. Ms X said the housing officer had told her not to contact them and threatened to move her out of the borough if she did. She also said her landlord had taken her to Court to seek payment of the rent arrears and served her with an eviction notice.

Analysis

38. The Homelessness Code of Guidance notes that where a prevention duty is owed, the first option to be explored is keeping the applicant in their current home. The evidence shows the Council did make enquiries with Ms X’s letting agent as to whether this was a possibility. The letting agent confirmed this was not possible as the landlord was not willing keep Ms X on as a tenant.
39. The Code goes on to state that where it is not possible to keep the applicant in their current property, the focus should be on helping to secure alternative accommodation.
40. The evidence shows Ms X’s PHP stated the Council would help Ms X find alternative accommodation in the private sector. There is evidence the housing officer made enquiries on private sector accommodation and offered Ms X the opportunity to view some properties, which she declined.
41. Therefore, there is no fault with the Council’s actions during the prevention stage. This is because the Council’s actions are in line with the law and Homelessness Code of Guidance.
42. Ms X has questioned whether her case should move to the relief stage as her Section 21 has expired. The Council has confirmed several times it still owed her the prevention duty. The Council said this was because evictions had been suspended to Covid-19. Further, the Council said Ms X was not yet homeless as she had a legal right to remain in her property until the expiry of a bailiff’s warrant.
43. However, the law says the Council must not treat someone as having accommodation unless it is accommodation which it would be reasonable for them to continue to occupy.
44. Further, the Code notes that just because a tenant has a legal right to remain in occupation does not necessarily mean they are not homeless. The Council should consider whether it is reasonable for them to continue to occupy the accommodation in the circumstances.
45. The Council received information in February 2020 that Ms X’s landlord was unwilling to allow her to remain in the property. This means it is likely, on balance, the landlord would seek a possession order once available.
46. The Code notes it is unlikely to be reasonable for an applicant to continue to occupy beyond the expiry of a valid Section 21 notice 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.
47. The evidence suggests Ms X’s circumstances meets the above.
48. Further, the Council was aware Ms X could not afford the full rent as she only received benefits which covered half the rent. There is no evidence the Council considered the affordability of the property.
49. Therefore, there is no evidence the Council considered Ms X’s circumstances before it decided it was reasonable for her to continue to occupy the property. This is fault.
50. Further, the information the Council provided to Ms X is concerning. The Council told Ms X the prevention duty could be extended until she was homeless, such as on expiry of a bailiff’s warrant. The housing officer also told Ms X the prevention duty was owed as she had the legal right to remain in the property until the time of a bailiff’s warrant.
51. This suggests the Council is not properly considering whether it is reasonable for an applicant to continue to occupy their accommodation. Instead, the Council appears to have taken a blanket position that a person is only homeless when a bailiff’s warrant is obtained. This is not in line with the Code as 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. This is fault.
52. On balance, I find that if the Council had properly applied the Code to Ms X’s circumstances, it would have decided it was not reasonable for Ms X to continue to occupy her property in March 2020. Therefore, the Council would have been satisfied it owed Ms X the relief duty as she was homeless and eligible for assistance.
53. Consequently, the Council would also have had a duty to provide Ms X with interim accommodation in March 2020. This is because the Council must provide interim accommodation if they have reason to believe the applicant may be homeless, eligible for assistance and have a priority need. The evidence suggests, on balance, Ms X met the threshold for this. I find fault with the Council for not providing Ms X with interim accommodation.
54. I consider the faults identified caused Ms X an injustice because she has had to remain living in accommodation that was unreasonable for her to occupy. This meant she accrued rent arrears as she could not afford to pay the full rent. It is unlikely she would have accrued these arrears had the Council dealt with her application without fault as it should have offered her interim accommodation in March 2020.
55. I also consider the faults identified caused Ms X distress as her worries and anxiety over her housing situation have been prolonged by the Council’s delay in accepting the relief duty.
56. I note Ms X’s landlord is pursuing her for the rent arrears in Court. This means Ms X is at risk of incurring court costs. I also note Ms X’s landlord has served her with an eviction notice and could potentially pursue this in Court.
57. As these matters are ongoing, I cannot assess whether the Council’s fault has caused Ms X further injustice at this stage. Once the matters have concluded, it is open to Ms X to return to the Ombudsman so that we can consider whether any further recommendations are appropriate to remedy any injustice caused.
58. Finally, Ms X said the Council’s housing officer threatened to send her out of borough if she contacted them. There is conflicting evidence as I have no reason not to believe Ms X. However, there is no other supporting evidence to suggest the housing officer said this. Therefore, I cannot make a decision, even on balance, as to what the Council officer may have said to Ms X.

Agreed action

59. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following:
• Apologise to Ms X for the injustice caused by the faults identified.
• Pay Ms X £500 to recognise the distress caused by the faults identified.
• Write to Ms X and notify her of its acceptance of the relief duty and provide interim accommodation as soon as possible.
• Pay Ms X’s landlord half of the outstanding arrears. I do not consider it appropriate for the Council to pay for the full arrears as Ms X received benefits to cover her share of the rent.
60. The Council should complete the above within four weeks of the final decision.
• Review all homelessness applications within the past 12 months to identify whether the faults highlighted in this case have also occurred in other applications. In particular, whether the Council has properly considered whether it is reasonable for an applicant to continue to occupy their accommodation.
61. Where fault has been identified, the Council should consider whether the fault caused the applicant any injustice. If it has, the Council should provide the applicant with an appropriate remedy. The Council should consider the Ombudsman’s guidance on remedies when deciding what is an appropriate remedy.
62. The Council should provide the Ombudsman with the result of its review within four months of the final decision.

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Final decision

63. I find fault with the Council’s handling of Ms X’s homelessness application. The Council has accepted my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman