Summary: The Council was at fault for failing to have due regard to Ms X’s rights before ending her occupation of a property as a property guardian. The Council was also at fault for failures in its homelessness service, not providing interpreting and translation services and not meeting costs it promised to pay. The Council has agreed to remedy the injustice to Ms X by making payments and acting to improve its services.

The complaint

1. Mr Y complained, on behalf of Ms X, about how the Council dealt with her housing. In particular, that the Council:
1. Illegally evicted Ms X from the property where she was a property guardian;
2. Provided unsuitable interim accommodation;
3. Made several errors in the homelessness process;
4. Failed to follow its commitment to pay costs associated with securing a new home;
5. Communicated poorly;
6. Failed to provide documents in translation and accommodate Ms X’s need for an interpreter; and
7. Failed to deal with the complaint in September 2022.
2. As a result, Ms X experienced significant and avoidable distress and financial loss and lost her home.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’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 considered evidence provided by Mr Y and the Council as well as relevant law, policy and guidance.
6. I referred to the Ombudsman’s guidance on remedies, a copy of which can be found on our website.
7. Mr Y and the organisation 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

Property guardians

8. There is no statutory definition of a property guardian. In broad terms, a property guardian is someone who has entered into an agreement to live in a building or part of a building that would otherwise be empty. These may be empty commercial buildings like offices or more residential buildings like care homes. There is often a management company involved. This company usually rents or leases the building from the owner and collects rent from the property guardians.
9. The different parties involved derive different benefits from the arrangement:
• the property guardian has somewhere to live at a lower rent. Property guardians usually have a licence, not a tenancy.
• the building owner gets some protection against squatters and vandalism and may also get an income from the rent paid by the guardians and/or the lease paid by a management company
• a management company gets an income from the rent paid by the property guardians.
10. The Rogue Landlord Enforcement guidance for councils says if the Council uses property guardians to manage a property it owns, the Council has a responsibility to protect the rights of their guardians.

Illegal eviction

11. The Protection from Eviction Act 1977 protects anyone living in any property as a dwelling. The law makes it a criminal offence to act in a way intended to make a residential occupier leave their home without due process of law. This is often called “illegal eviction”. The law says a notice to end a licence must be in writing and give at least four weeks’ notice. This includes property guardians occupying a property with a licence.
12. Councils can prosecute offences of unlawful eviction. However, a council cannot take enforcement action against itself. Those evicted without due process can also take civil action against their landlord.
13. Protocol 1, Article 1 of the Human Rights Act protects the right to peaceful enjoyment of property. This includes belongings and things like licences. A public authority cannot take away someone’s property or restrict its use without a good reason.
14. Article 8 of the Human Rights Act protects the right to respect for private life, family life, home and correspondence. This means a public authority should not stop someone entering or living in their home without good reason.

Homelessness law and guidance

15. 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.
16. 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)
17. 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)
18. If councils are satisfied applicants are homeless and eligible for assistance, they must take reasonable steps to secure accommodation. This is called the relief duty. When a council decides this duty has come to an end, it must notify the applicant in writing. The relief duty usually lasts 56 days. (Housing Act 1996, section 189B)
19. If, at the end of the relief duty, a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need the council has a duty to secure that accommodation is available for their occupation. This is called the main housing duty. (Housing Act 1996, section 193)
20. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of his or her household.  This duty applies to interim accommodation and accommodation provided under the main homelessness duty.  (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)
21. Where the council owes or has owed certain housing duties to an applicant, it must protect the applicant’s personal property if there is a risk it may be lost or damaged. A council may make a reasonable charge for storage and reserve the right to dispose of the property if it loses contact with the applicant. (Housing Act 1996, section 211, Homelessness Code of Guidance chapter 20)

What happened

22. Ms X was a property guardian in a building owned by the Council, (hereafter, the property). The Council had a contract with a company to provide the property guardian service. It was this company which issued Ms X’s licence to live in the property. The company was Ms X’s landlord, not the Council.
23. In Summer 2022, the Council was concerned about the fire safety arrangements in the property. The Council agreed with the company that it would take action to address these issues by August 2022.
24. In mid-August 2022, the Council and the fire service inspected the property. The fire service, in an email to the Council, set out several “fire safety management failures” at the property. The Council says that although the fire service did not issue a prohibition notice, it thought the risk to the property guardians was too high. The Council says it visited the property and explained to the residents that “it was felt to be in their interest to leave”. The Council says the residents “on hearing the risks agreed to leave of their own volition”.
25. Ms X was not home when the Council first arrived. She arrived later in the evening, after work. Ms X and the other guardians give a very different account of what happened. They say they were illegally evicted by the Council and did not have a choice about whether to leave.
26. The Council says an officer from the Council’s homeless service was present at the property to give advice and information to the residents.
27. Usually, a council only has to provide interim accommodation if it has reason to believe someone might be in priority need. However, the Council arranged to accommodate the guardians who had nowhere else to stay, including Ms X, in interim accommodation over the weekend. The Council’s internal records show it agreed to pay the deposit and rent in advance for all the guardians, regardless of priority need, if they found alternative private rented accommodation.
28. After the weekend, a housing officer (hereafter, Officer 1) completed a homelessness assessment. Ms X’s first language is not English. The officer left the section of the assessment form which asks if the applicant needs an interpreter blank. The assessment included details of Ms X’s mental health conditions.
29. At the end of August, Ms X emailed Officer 1. She said she had not heard from them since the assessment. She said her stay in the hotel ended and she wanted to know what the plan was.
30. A few days later, Ms X wrote to Officer 1 again. She asked if they could meet in person. She said she needed an interpreter.
31. In September, the Council issued a PHP which said it had reason to believe Ms X might be in priority need. It said all the former property guardians would be offered deposit and rent in advance to secure alternative accommodation. The PHP contained no actions for the Council to take. It included a “reason for homelessness” that did not apply to Ms X.
32. Ms X again asked the Council if she could have a translator for meetings. She asked if she could have a different officer allocated to her case because Officer 1 was not helping her and she did not know what was happening.
33. Ms X repeated her request for a meeting with an interpreter a few days later. Officer 1 agreed but also said they had not experienced any language barrier when talking with Ms X. In reply, Ms X said it was she who was struggling to understand the information given.
34. Mr Y wrote to the Council on Ms X’s behalf. He said she had received “something resembling a PHP” which contained errors but no letter accepting a duty. A friend of Ms X also asked to make a formal complaint on Ms X’s behalf about Officer 1’s handling of the case, particularly her need for an interpreter.
35. Officer 1 met with Ms X using a telephone interpreter. There are no notes or records of this meeting. A case note on the same day says the Council gave Ms X a PHP and a letter accepting the relief duty. Ms X told the Council the PHP contained inaccurate information about why Ms X was homeless.
36. In mid-September, Ms X moved into different interim accommodation. The Council emailed Ms X, in English, setting out a detailed process to follow if she found private rented accommodation and wanted the Council’s help with the deposit and rent in advance. Ms X says she did not fully understand the detail.
37. Ms X emailed the Council giving her permission for Mr Y to deal with complaints on her behalf. She said she only understood half the information she received about the homelessness process because there was lots of technical language.
38. In early October, Ms X told the Council about a property she had found. Officer 1 passed the details to the Council’s lettings team. The lettings team did not contact Ms X.
39. In mid-October, the Council wrote to Ms X about her belongings, which were still in the property. It gave her a month to collect them. It said if she did not do so, it would consider them abandoned and therefore owned by the Council.
40. In November, the Council sent Ms X an updated PHP. This corrected the information about the reason Ms X was homeless. The PHP did not include any actions for the Council to take.
41. In mid-November, Ms X’s room in the interim accommodation was broken into. Mr Y called the Council’s out of hours service on her behalf. He explained that the police had advised Ms X not to remain in the room. Ms X told the out of hours service she would stay with friends.
42. An internal email chain from the following days show the Council was not aware of the issue and so had not provided alternative interim accommodation.
43. On 24 November, Officer 1 sent Ms X an email saying she “would not be considered in priority need”. This was not a formal decision and did not set out Ms X’s right to review the decision.
44. In reply, Ms X said:
• Her room was broken into, which she reported to the police
• Officer 1 had not kept in touch with her. If they had, they would know about her new diagnosis and medication.
• She wanted to know if the offer of deposit and rent in advance was still available
• The Council had refused to help with translation or interpreting
• The Council had not dealt with the complaint Mr Y made on her behalf in September
45. Officer 1’s manager replied. The manager said they would send the complaint to its customer feedback team to respond.
46. On 27 November, Ms X told the Council she had secured a flat share and moved her belongings out of the interim accommodation. She asked to access the promised funds for deposit and rent in advance. The Council did not respond.
47. At the end of November, the Council ended Ms X’s placement at the interim accommodation “due to abandonment”.
48. In mid-December, the Council’s complaints team contacted Ms X. It said housing had forwarded several emails that day raising a complaint. It asked if Ms X wanted the Council to communicate with Mr Y and if she wanted complaint responses in translation. Ms X asked the Council to deal with Mr Y. She said the Council should send its response to Mr Y. However, she said she would appreciate a translated copy too. She once again asked about accessing deposit and rent in advance.
49. The Council told Mr Y it would respond to the complaint in English to him within 10 working days. It explained the translated version might take longer. It shared a summary of the complaints as:
• The Council refused to acknowledge Ms X had asked for an interpreter multiple times.
• Ms X wanted confirmation of her post eviction rights.
• A request for an investigation into why she was made homeless.
• Failure to provide information on how to access the deposit guarantee scheme despite requesting information three times.
• Lack of support.
• Officer 1 not understanding her needs and offering translation services.
• The PHP was inaccurate about the cause of her eviction.
50. On 22 December, the Council issued a formal decision, in English, that Ms X was not in priority need. Ms X asked the Council to provide a translated copy of the letter. Ms X asked for a review of the decision. She told the Council this was to protect her position and did not replace her request for a translated letter.
51. The Council sent Mr Y its stage one complaint response in early January 2023. It said:
• It was sorry for its delay responding to the complaint
• It would get a copy translated and share this with Ms X
• Officer 1 felt the interpreter “made the conversation difficult” as Ms X understood and it “slowed things down unnecessarily”. Officer 1 thought Ms X shared this view. It apologised "if this were not the case". It said it would have been happy to book interpreters after this if Ms X had asked.
• It would share translated copies of its decision letters about her homeless application.
52. The Council requested translated copies of the letters the same day from an external translation service. Mr Y asked the Council to consider the complaint at stage two.
53. The reviewing officer recommended the Council withdraw its decision that Ms X was not in priority need and make a new decision. The reviewing officer said the Council needed to address the information Ms X provided about her health conditions.
54. As a result, the Council asked Ms X to provide more information about her medical conditions. The officer used a free online tool to translate the email.
55. Ms X told the Council she was still waiting for copies of its decision letters in translation.
56. At the end of January, Mr Y chased the Council for a response to the stage two complaint and copies of translated letters.
57. The Council sent Ms X translated copies of its December decision letters on 21 February. Ms X repeated her request for a review.
58. The reviewing officer told Ms X the reason she had not had a response to her review request was that the Council agreed to withdraw its decision. There was therefore no decision to review, and her case was still open.
59. At the beginning of March, Mr Y chased the Council again for a stage two response. He also complained that the Council did not tell Ms X when it withdrew its decision she was not in priority need.
60. Ms X emailed Officer 1 to say she did not believe the Council had withdrawn its decision. She asked Officer 1 “politely do not call me”. The Council decided this meant Ms X had withdrawn her homelessness application.
61. The Council responded to the complaint at stage two in late March. It said:
• It had no specific policy on translating documents, it did this on a case by case basis
• Officer 1 should have asked Ms X if she wanted to use an interpreter going forward. It apologised for this.
62. Mr Y brought Ms X’s complaint to the Ombudsman. He pointed out that the Council had produced a detailed complaint outline in December 2022 that neither the stage one nor stage two complaint responses then responded to.

My findings

63. I set out my findings on the complaint in the order they appear in paragraph one.

Illegal eviction

64. The Council had concerns about fire safety from May 2022. The Council had since made various repairs to the property. The management company and the guardians had taken many of the required actions by the time of the August inspection. There were actions outstanding, and the fire service had concerns. However, the evidence does not show that the risk was any greater in August than it had been in May.
65. The Council’s evidence about the circumstances in which Ms X and the other guardians left the property is inconsistent. It says it was not an eviction and that the residents agreed to leave voluntarily. But also refers to officers attending “on the day of the eviction” to give advice and support to the residents.
66. Ms X provided video evidence showing what happened when she arrived home to the property. This includes nothing to show the Council presented leaving as a choice or that it explained anything about the circumstances. Regardless of how it explained matters to the residents at home when it first arrived, the Council did not tell Ms X she had a choice about whether to leave. Failure to do so was fault.
67. In deciding how to act, the Council should have had regard to both the risk to and the rights of the guardians. In response to my enquiries, the Council provided no evidence of its decision making on the day or the basis for its actions. It is clear it had regard to risk. There is no evidence it had regard to Ms X’s rights and protections under the law. This includes both the right not to be evicted without due process of law and rights under the human rights act to privacy and respect for her home and property. Failure to have due regard for these rights was fault.
68. I cannot say whether the eviction was illegal. This is a criminal matter. Nor can I say whether, had the Council had proper regard for her rights, Ms X would have been able to remain in her home. The fire service may have issued a prohibition notice, or the Council may have sought an emergency legal injunction, or may even have acted exactly as it did. However, the Council’s poor decision making and lack of communication caused Ms X significant injustice. She experienced the distress and shock of leaving her home without notice and without an explanation of her rights.

Interim accommodation

69. All accommodation provided to those owed a homelessness duty must be suitable. The Council has as duty to keep the suitability of accommodation under review. The Council should have reviewed the suitability of Ms X’s interim accommodation after she reported the break in. Failure to do so was fault.
70. The Council should have acted promptly to provide alternative accommodation after the police told Ms X not to remain in the interim accommodation. It did not offer any other accommodation. Failure to do so was fault. As a result, Ms X had to sofa surf with friends and acquaintances for eight days, until she signed a new tenancy. This is an injustice to Ms X.

Homelessness process

71. The PHP issued by the Council contained no actions for it to take. This is an important part of a PHP. It tells the applicant what they can expect the Council to do to help them. Ms X’s PHP was inadequate and this was fault.
72. The Council accepted the relief duty in September 2022. It should have decided whether it owed the main housing duty by November. It did not communicate this decision properly to Ms X until December. This delay was fault.
73. The Council failed to tell Ms X when it withdrew its decision she was not in priority need. This was fault.
74. The Council treated Ms X’s request that Officer 1 not call her as a withdrawal of her homelessness application. There was no basis for this assumption and this was fault. She did not ask the Council to end all contact with her. She asked Officer 1 not to call her until she received the outcome of her complaint. The Code says councils should tell applicants if it has closed their case. The Council’s failure to do so was fault.
75. As a result, the Council denied Ms X the opportunity to receive a final decision on her homelessness application. I cannot say what the outcome would have been, but Ms X lost the opportunity to exercise her statutory rights of review and then appeal to court. This is an injustice to Ms X.
76. The Council has a duty to protect the property of people owed homelessness duties if the person is unable to protect it themselves and it is at risk of loss or damage. The Council failed to consider its duty to protect Ms X’s property and instead threatened her with disposing of it. This was fault. On balance, had it properly considered its duty, the Council would have decided it had a duty to protect Ms X’s belongings. Failure to do so caused Ms X significant and avoidable distress, which is an injustice.

Deposit and rent in advance

77. The Council committed to funding the deposit and rent in advance for all former guardians.
78. Ms X told the Council she had secured a property in November 2022. She asked the Council several times to provide the promised payment. In response to my enquiries, the Council accepted it did not respond to Ms X’s request. Failure to do so was fault. It agreed to reimburse these costs if Ms X provides copies of her tenancy agreement and proof of the amount she paid in deposit and rent in advance. This is a suitable remedy for the injustice caused.

Communication

79. The Council did not tell Ms X in advance when it extended her stays in interim accommodation. This was fault. It caused Ms X avoidable distress and uncertainty, which is an injustice.
80. There is no evidence the Council explained the homelessness process to Ms X in a way she could understand, at any point. This was fault. In particular, the Council failed to respond to the specific questions she asked in her email on 25 November. This was fault. It left Ms X confused about her rights, and caused avoidable distress at an already difficult time.

Translation

81. The Council was at fault for not checking if Ms X wanted or needed translation or interpreting when it completed its assessment in September 2022. The records show Ms X first asked, in writing, for an interpreter on 2 September. Failure to properly consider this request was fault.
82. The Council’s attitude towards Ms X’s need for interpretation and translation was, overall, dismissive, and amounts to fault. Homelessness is a legal process with, as Ms X pointed out, a lot of technical language. Homelessness is distressing and Ms X was clearly very upset and finding it difficult to understand her rights and options. To tell Ms X that, from its perspective, there was no language barrier was insulting and missed the point. The purpose of the interpreter was to help Ms X, not the Council. Instead, the Council made decisions about her needs and what was useful without consulting her. This is an injustice to Ms X.
83. Despite agreeing to do so, the Council accepts it failed to send translated copies of both the stage one and stage two complaint responses. This was fault. It caused Ms X further frustration and aggravated her justified belief that the Council was not taking her language needs seriously. This is an injustice to Ms X.

Complaint handling

84. The Council failed to act on the complaint after Ms X gave permission for Mr Y to act on her behalf in September 2022. This was fault. It delayed Ms X’s access to the complaints process and caused avoidable frustration.
85. Despite agreeing to do so in November, housing did not pass on Ms X’s complaint to the complaint team until December. This delay of a month was fault.
86. The Council took too long to respond to the complaint at stage two. This was fault. Mr Y had to go to time and trouble chasing the response, which is an injustice.
87. Despite setting out a detailed summary of the complaint in December 2022, the Council failed to respond to most of the complaint at both stage one and stage two. This was fault. It caused Ms X and Mr Y avoidable frustration, which is an injustice.

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Action

88. As a result of our investigation, the Council has:
• Apologised;
• Agreed to pay Ms X £500, being £200 for the time and trouble caused by its poor complaint handling and £300 for the distress and uncertainty caused by the missed opportunity to review and appeal the homelessness decision;
• Produced a policy on translation and interpreting; and
• Provided training to its officers on it case management standards, including deciding if an application is withdrawn.
89. To remedy the outstanding injustice to Ms X and improve its services, the Council will also:
1. Apologise for the further faults identified in this decision;
2. Invite Ms X to provide a copy of her tenancy and proof she paid a deposit and rent in advance;
3. On receiving such evidence, pay Ms X the amount of the deposit and rent in advance;
4. Pay Ms X £500 for the injustice caused by failing to have due regard to her rights;
5. Pay Ms X a further £250 in recognition of the distress caused by failing to provide suitable interim accommodation and failing to consider its duty to protect her property; and
6. Update its case management standards to include guidance for officers on the Council’s duty to protect the property of homeless applicants and share this with relevant staff.
90. The Council should provide us with evidence it has complied with the above actions within six weeks of my final decision.

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Decision

91. I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman