Summary: The complaint is about a council failing to place two people in emergency housing until the day they were evicted. There was no fault by the Council because it acted in line with the Homelessness Code of Guidance.

The complaint

1. London Borough of Haringey (the Council) was at fault when it failed to place two people in emergency housing until the day they were evicted.

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The Ombudsman’s role and powers

2. 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)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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

4. I considered the Council’s response to my enquiries and documents discussed later in this statement. The officer involved with the case and the Head of Housing Needs provided me with statements, which I also took into account.
5. 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

Relevant law and guidance

6. 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)
7. Councils must take reasonable steps to secure accommodation for any eligible homeless person. This is called the relief duty. (Housing Act 1996, section 189B)
8. The Homelessness Code of Guidance, which councils must have regard to when carrying out their duties under homeless law, says:
• the housing authority should maintain contact with the tenant and landlord to ascertain if there is any change in circumstances which affects whether or not it continues to be reasonable for the applicant to occupy. (Paragraph 6.34)
• it is unlikely to be reasonable for an applicant to remain in the property beyond the expiry of a valid section 21 notice unless the authority is taking steps to persuade the landlord to allow the tenant to continue to occupy for a reasonable period to provide an opportunity to find alternative housing. (Paragraph 6.35)
• it is highly unlikely to be reasonable for the applicant to continue to occupy after the date a court has ordered the applicant to leave. (Paragraph 6.36)
• housing authorities should not consider it reasonable for an applicant to remain in occupation until the court issues an eviction warrant. (Paragraph 6.37)
9. In April 2018, the Council introduced guidelines for officers to assess when to provide temporary accommodation to applicants with a valid section 21 notice. These guidelines are a summary of Paragraphs 6.32 and 6.33 of the Homelessness Code of Guidance. They explain it is not acceptable to have a blanket policy or practice of providing temporary accommodation at the point of eviction and when assessing a case, the officer needs to consider the following:
• The preference of the applicant.
• The landlord’s position.
• The financial impact on the landlord and on the applicant.
• The burden on the court where there is no defence to proceedings.
• The general cost to the Council.

The procedure includes guidance on how and when to apply the above principles, explaining the housing needs team’s role is to consider whether it is reasonable for the tenant to remain in their home at different points in the possession process. Officers complete a form to demonstrate they have considered relevant factors and applied them to each case.

Background

10. We published a report in June 2020 (our reference: 19014008) upholding a complaint about the way the Council dealt with a homeless family. We found the Council was at fault because it failed to act in line with the Homelessness Code of Guidance when dealing with the complainant’s application for housing by waiting until the eviction day before arranging housing. We made recommendations to remedy the injustice to the complainant in that case, which the Council accepted and implemented. We also recommended the Council completed a review of a sample of cases to ensure there was not a systemic problem which may have affected other cases. The Council completed the review and shared a copy with us.
11. From the review, I identified two cases which indicated there may be similar fault as identified in 19014008 and I asked the Council for the records of those cases. The key facts in the next section are taken from those records.

Mr X’s case

12. Mr X was a single man with health problems who had a private tenancy. He asked the Council for assistance in September 2019 after his landlord served notice because of rent arrears. The arrears had built up because Mr X did not get full housing benefit and had to pay a small weekly top-up to cover the shortfall. The Housing Needs Officer (HNO) noted Mr X told her he wanted to stay in the property if possible. She drew up a Personalised Housing Plan (PHP) (this is a plan setting out agreed steps for the applicant and Council) which recorded Mr X’s wish to stay in the property. The Council agreed a payment to cover the arrears if the landlord agreed to stop the eviction. The landlord initially agreed, but some weeks later changed their mind and said they wanted to go ahead with the eviction. Mr X told the HNO he wanted to stay in the property as long as he could because it was close to his specialist health support. Meantime, the HNO liaised with colleagues to try and find Mr X other permanent private accommodation. Although there was private accommodation available, there were also other people who wanted it and so nothing came up for Mr X. Mr X was going into hospital around the time of the eviction. The HNO arranged for the Council to store Mr X’s belongings before he went into hospital and the eviction took place while Mr X was in hospital. The Council provided accommodation after Mr X was discharged.
13. The Council told me:

“In the case, the customer wanted to remain in the accommodation and there was a legitimate expectation that further action could have been delayed/halted as the caseworker was engaging with the agent who had indicated that payment of the arrears and court costs was likely to result in no further action being taken. At the point it became clear that this was no longer an option, the caseworker engaged with the customer to see what his preference was and he confirmed it was to remain in occupation pending a possible move to alternative PRS [private rented housing] as he was keen to live in a particular area to access his medical care.

Whilst the position of the landlord was considered, this was given less weight than the preference of the customer who was in ill-health. The rent continued to be paid via benefits and the customer made attempts to reduce the low-level arrears caused by the shortfall. We had offered to pay court costs.

In terms of the general cost to the housing authority, this is always a consideration given the financial pressure of the cost of temporary accommodation, but the best interests of the customer have more weight and in this case the customer confirmed he wanted to remain in occupation for as long as he could.”

Was there fault in Mr X’s case?

14. The Homelessness Code of Guidance says it is not reasonable to make an applicant remain in occupation until a court issues an eviction warrant. However, the Code goes on to explain there are different factors for a council to consider when deciding the point at which to provide emergency accommodation. I have decided there was no fault by the Council in the way it dealt with Mr X’s case. Although the Council did not provide emergency accommodation until after Mr X was evicted, I am satisfied the HNO considered and balanced the factors set out in paragraph 9 and gave effect to Mr X’s wishes to remain in the property for as long as possible given his ill-health. This was a planned move into accommodation which took place once Mr X was discharged from hospital, at his request.

Ms Y’s case

15. Ms Y approached the Council for advice in January 2019 with an eviction notice. She told the Council she had not received any previous notice. (The eviction procedure legally requires a landlord to give a tenant written notice before starting court proceedings.) The HNO supported Ms Y to get the eviction notice set aside and the court set a date for a hearing. Ms Y instructed a solicitor. The HNO completed a PHP which noted Ms Y ideally wanted to stay in the property as it had a low rent. The case notes indicate the Council’s Environmental Health Team had been involved previously due to disrepair issues and the HNO told Ms Y’s solicitor it could be a retaliatory eviction (where a landlord evicts a tenant who has complained about disrepair).
16. Although the court set aside the eviction order, a possession order remained in place. This allowed the landlord to apply for another warrant to evict Ms Y. The court issued the warrant for the end of March 2020. The HNO spoke to Ms Y’s solicitor to find out what went wrong in the court hearing. She was told the solicitor who took the case had gone on maternity leave. And as a result, the defence of a retaliatory eviction had not been pursued and no attempt was made to set aside the possession order.
17. The case notes indicate the HNO tried to contact Ms Y several times before she was evicted to review her PHP, but Ms Y did not respond to those contacts.
18. The HNO arranged storage, removals and temporary accommodation for Ms Y on the day she was evicted.
19. The Council told me:

“The caseworker was working with the customer who had indicated she wanted to remain in the property and given her rent had been determined by the rent officer, it is clear why she would have been reluctant to leave the property. She was paying £875, Local Housing Allowance rates in Haringey are £1200 and market rent significantly more. The customer was not consistently engaging or contactable. The caseworker had managed to get a stay to buy some time to get a solicitor involved as the case was complex due to the involvement of Environmental Health and a possible retaliatory eviction. Unfortunately, due to a combination of the customer delaying in providing the solicitor with her documents and the solicitor going on maternity leave, the legal work we envisaged might prevent the loss of the property didn’t occur.”

Was there fault in Ms Y’s case?

20. There was no fault in the way the Council dealt with Ms Y’s case, although the Council did not provide emergency housing before the eviction warrant was executed. The records indicate Ms Y did not receive legal representation for reasons which were not the Council’s responsibility, as the solicitor was independent of the Council. I am satisfied the HNO identified a potential defence to the eviction, which would have enabled Ms Y to stay in the property. I am also satisfied that the Council took into account all relevant factors and gave appropriate weight to Ms Y’s wishes to remain in a property that she could afford because it was at a rent considerably lower than typical rents in the area. In taking these actions, I am satisfied the Council acted in line with the guidance set out in paragraph 9.

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Final decision

21. The Council acted in line with the Homelessness Code of Guidance when offering emergency housing to two homeless people.
22. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman