Summary: Miss X complained about the way the Council has handled her homelessness application. She complains the Council has delayed in investigating her case and failed to provide temporary accommodation. We found the delays and failings in the way the Council dealt with Miss X’s homeless application are fault. This fault has caused Miss X an injustice.

The complaint

1. The complainant, Miss X complained about the way the Council has handled her homelessness application. Miss X presented as homeless in October 2023 and complains the Council failed to provide temporary accommodation and did not issue a decision accepting a duty until March 2024. Then having withdrawn this decision it did not issue a new decision or provide appropriate advice or support.

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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 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)
3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A) and 25(7), as amended). In this instance Colchester Borough Homes provide the Council’s homelessness service.
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. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Miss X; and
• Miss 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

6. 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.
7. Someone is homeless if they have no accommodation or if they have accommodation, but it is not reasonable for them to continue to live there. (Housing Act 1996, Section 175)
8. 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)

The prevention duty

9. If councils are satisfied applicants are threatened with homelessness and eligible for assistance, they must help the applicants 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)

The relief duty

10. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. When a council decides this duty has come to an end, it must notify the applicant in writing (Housing Act 1996, section 189B)

The main housing duty

11. If 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. But councils will not owe the main housing duty to applicants who have turned down a suitable final accommodation offer or a Housing Act Part 6 offer made during the relief stage, or if a council has given them notice under section 193B(2) due to their deliberate and unreasonable refusal to co-operate. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)

Duty to arrange interim accommodation (section 188)

12. A council must secure interim accommodation for an applicant and their household if it has reason to believe the applicant may be homeless, eligible for assistance and have a priority need. (Housing Act 1996, section 188)

What happened here

13. Miss X presented as homeless in October 2023. She had received an eviction notice from her landlord which expired on 30 January 2024. The Council acknowledged Miss X’s documents and eviction notice and advised Miss X to book a Housing Options appointment.
14. The Council told Miss X her landlord had served a section 21 notice which was a three stage process. It said Miss X was at the first stage and if she was unable to leave her the property by the date on the notice the landlord would need to apply for a Possession Order. This would give Miss X a further notice period. Following the Possession Order, the landlord would need to apply for a Bailiff Warrant.
15. The Council told Miss X she would have the legal right to occupy the property until the end of the Bailiff Warrant. And that whilst working with the Council, it would rely on the legal right she had to occupy the property.
16. Miss X told the Council she had tried to book an appointment with Housing Options but the earliest appointment available was at the end of February 2024. This was after her eviction notice had expired. She asked the Council what she should do in this situation.
17. The Council suggested Miss X book the appointment and it would aim to call her prior to this. It also said that if Miss X found suitable affordable accommodation in the meantime the Council may be able to help with the first month’s rent and deposit.
18. On 12 December 2023 Miss X contacted the Council again asking for support. She said she was unable to rent privately as no one would accept her because she was not working and could not pay six months’ rent in advance. Miss X asked the Council what she could do so that she had accommodation by the end of the notice period.
19. A few days later Miss X telephoned the Council as she was concerned the end of the notice period was approaching and she had still not had an appointment. The Council’s records show an officer again advised Miss X about the 3 stage eviction process and told her to keep looking for alternative accommodation. Miss X reiterated she had tried to find alternative accommodation but no landlords would accept her as her income was not high enough.
20. On 15 December 2023 the Council wrote to Miss X’s landlord to ask whether there was an option for Miss X to remain in the property, and if so whether the Council could assist. There is no record the landlord responded.
21. Miss X contacted the Council again in January 2024 as she was concerned there was only three weeks until the end of the notice period. Miss X was concerned about incurring legal expenses and being responsible for her landlord’s legal fees given her limited financial means. She asserted the Council had a duty to prevent homelessness in circumstances like hers, particularly as she had a young child and asked for advice and assistance.
22. The Council responded on 5 January 2024 and told Miss X it had no record an eviction notice had been served. It noted her tenancy expired on 30 January 2024 and asked Miss X to confirm whether her landlord had indicated they would be serving a notice.
23. It confirmed the Council offered assistance to try and prevent homelessness however before it could do this it needed confirmation of homelessness. The Council suggested that if Miss X had not already done so, it book and appointment with a housing solutions officer.
24. Miss X confirmed she had booked an appointment but this was not until March 2024, almost two months after her notice period ended. She asked the Council to arrange an earlier appointment.
25. Miss X also told the Council she received £609 in housing benefits but her rent and bills were £2000. Miss X said she was not working and had no savings. She asked the Council what she should do.
26. A different officer responded and again told Miss X about the three stage process for a section 21 eviction notice. They also confirmed there were no earlier appointments.
27. Having taken legal advice, Miss X wrote to the Council on 11 January 2024. She asserted the Council had misinterpreted the law in relation to homelessness following the expiry of a section 21 notice and had ignored statutory guidance. Miss X said she had received legal advice that on the expiry of the section 21 notice she should be considered homeless and eligible for the relief duty and interim accommodation. This was because it was no longer reasonable for her to continue to occupy the property which was unaffordable since her husband had left.
28. The Council advised it would always advise applicants of their legal right to remain in the property as for many applicants this is the preferred emergency housing option. It said that applicants currently approaching the Council for emergency accommodation are being placed in bed and breakfast accommodation on a room only basis.
29. It suggested that if Miss X did leave at the end of the section 21 notice she would need to contact the Council on the day. The Council also confirmed it had added Miss X to the cancellation list for appointments.
30. Miss X asked the Council to confirm what would happen on 30 January 2024 when she became homeless. And whether she should pack her belongings and call the Council or attend somewhere. The Council responded that Miss X had a legal right to remain beyond 30 January 2024.
31. The Council’s records show that in late January 2024 an officer sought advice on how to proceed. The officer noted there is evidence on file that the rent is unaffordable and Miss X considered it unreasonable to remain in the property after 30 January 2024 as she would accrue arrears. The landlord was also pushing for her to move and had lined up new tenants.
32. The officer asked for confirmation of whether the Council would consider topping up the rent by around £700/£800 a month until eviction or if this should be considered as an emergency approach. A team leader confirmed in early February 2024 the Council could offer Miss X emergency accommodation if she wanted it and that the top up in rent would be too high to prevent homelessness. There is no evidence the Council offered Miss X temporary accommodation at this stage. Miss X says she was not offered any temporary accommodation.
33. The Council offered Miss X a telephone appointment with a housing options officer on 13 February 2024. The records of this assessment note Miss X told the officer the property was unaffordable since her husband had left. She had received an advanced payment of Universal Credit to pay another month’s rent but she must repay this advance. Miss X’s landlord had served a section 21 notice and the letting agents had recently told her they would inform the landlord to start court proceedings.
34. Following this meeting the Council wrote to Miss X accepting a prevention duty and sent her a PHP. Miss X asked the Council for emergency accommodation as she could not afford to remain at the property and was accruing debts.
35. The Council contacted the letting agents for Miss X’s property on 16 February 2024 to confirm the details of Miss X’s tenancy. The agents confirmed the tenancy agreement was in Miss X’s husband’s name only and that the rent was up to date until the end of the month. They also confirmed Miss X would need a guarantor earning £43,000 per year, but even then they were unsure whether the landlord would allow her to remain in the property.
36. The letting agents confirmed they had advised the landlord to proceed with a possession order but had not heard anything to date.
37. On 19 February 2024 Miss X told the Council her request for further support in paying the rent had been declined. Miss X chased the Council on 22 and 25 February 2024 reiterating she could not afford to stay at the property. She also asserted she was homeless and the Council owed her a relief duty.
38. The Council advised Miss X it had calculated she could afford to pay £1150 towards her rent and it would make up the shortfall of £240. It said this would continue until:
• she found alternative accommodation;
• legal proceedings progressed to the point she no longer had a right to remain at the property; or
• September 2024 when Miss X intended to enrol her son at nursery and return to work.
39. The Council told Miss X this would be a loan which Miss X would need to repay at a rate of £20 per month. The Council asked Miss X to sign an agreement to repay the top up loan.
40. On 6 March 2024 Miss X requested a review of the Council’s decision to accept a prevention duty rather than a relief duty and the PHP prepared on this basis. Miss X also queried how the Council had calculated she could afford to pay rent of £1150.
41. The Council’s case notes show the request was referred to a manager. The manager noted they had previously agreed the top up payments would continue until the Council was able to prevent homelessness or the landlord took possession proceedings. They also confirmed the top ups were not a loan, as this would defeat the objective. There is no record of a review in the case notes.
42. Miss X chased the Council for a response to her review request on 14 March 2024. The Council responded the same day to advise the decision was being withdrawn and the Council would be in touch again shortly. Miss X questioned whether this meant the Council would now owe her a relief duty. The Council confirmed a manger would be in touch with an official decision in due course.
43. Miss X received a further section 21 eviction notice dated 22 March 2024.
44. On 27 March 2024 Miss X made a formal complaint to the Council about the way it had dealt with her homeless application. She asserted there were considerable delays in assessing her application during which time the section 21 notice expired. And that the Council had failed to take account of her personal and financial circumstances in deciding not to accept a relief duty or provide temporary accommodation.
45. Miss X considered the responses to her correspondence and requests for assistance were poor. She received responses from different people who all gave the same information regarding the Council’s position on section 21 notices, but did not address her concerns.
46. Miss X complained the Council’s insistence that she could remain at the property and was not homeless until a bailiff warrant was issued and she was evicted was contrary to the legislation and guidance. She also complained the Council did not respond to her request to review of the prevention duty decision issued in February 2024. Instead the Council withdrew the decision and despite assurances it would, did not issue a new decision. Nor had the Council provided details of its affordability calculations.
47. The Council responded in April 2024 and advised it was unable to comment on legal matters relating to Miss X’s homeless application. It noted she had requested a review prevention duty decision and that this decision had been withdrawn. The Council said a new decision was pending imminently.
48. The Council did not consider there were any unreasonable delays in processing Miss X’s application. Nor did it have any concerns about the professionalism of its staff. Miss X did not consider the Council’s response addressed her concerns and asked for her complaint to be considered further.
49. Miss X also contacted the Council to chase a decision on her homeless application. She told the Council the latest section 21 notice would end on 27 May 2024. An officer advised that managers were meeting on 15 May 2024 and they would have an update by the end of the week. The officer then asked Miss X to provide copies of her bank statement since 16 February 2024.
50. The Council responded to Miss X’s stage two complaint on 10 June 2024. It said it applies the law, Code of Guidance and caselaw when determining homeless applications. And that its first duty under legislation is to prevent homelessness. As the Council had made an agreement to pay a top up to Miss X’s rent it had prevented homelessness and issued a decision on 7 March 2024.
51. It said that when Miss X requested a review of this decision it found the decision was defective and withdrew it on 16 March 2024. The Council said Miss X’s PHP had not been withdrawn and noted it was still paying a top up towards her rent. It was also checking the legality of the recent section 21 notice.
52. In addition the Council said the prevention duty still exists and it would be negotiating with her landlord to prevent homelessness. The Council said it had been in regular contact with Miss X and she was aware of the current position regarding her application. It was satisfied there were no delays in Miss X’s application and said there was nothing to suggest its staff had behaved unprofessionally. The Council did not uphold Miss X’s complaints.
53. The Council’s records show it contacted the letting agents for Miss X’s property in June 2024 to discuss the possibility of Miss X remaining in the property. The records say the agents said Miss X receiving Universal Credit and not having a guarantor was an issue for the landlord’s insurance. They were therefore proceeding with the section 21 notice and had already applied to court for a possession order.
54. The Council recommended Miss X explore the option of her former husband acting as guarantor. Miss X questioned whether the landlord would accept this as they had previously refused this option. She also reiterated that the property was too big and too expensive for her and her young son. Miss X noted the Council was providing top ups for the rent which she would have to pay back. She questioned how a guarantor would resolve the affordability issue as she would still go further into debt.
55. Miss X contacted both the letting agents and the landlord to discuss the matter. She then told the Council that both had confirmed remaining in the property was not an option. Court papers had been prepared and were waiting to be issued.
56. On 13 June 2023 the Council told Miss X the prevention payments were not a loan and confirmed she would not have to repay them. It also confirmed it had completed an affordability check and management were reviewing the details.
57. The Council’s records show the Council considered the property was affordable, but there is no record it communicated this to Miss X or provided details of its calculations.
58. In late June 2024 the Council noted the Gas Safety Certificate provided for Miss X’s property expired in January 2024. It asked Miss X to review her records as if she had not received a valid Gas Safety Certificate when the section 21 notice was served, it would not be valid. Miss X told the Council a new certificate was issued in February 2024 and questioned why the Council was exploring the validity of the notice now, when possession proceedings were in progress.
59. On 7 November Miss X told the Council a possession order had been issued with a possession date of 19 November 2024. She asked the Council to acknowledge her homeless status and accept a duty to provide emergency accommodation. Miss X also asked for an update on her housing options.
60. On 26 November 2024 the Council accepted a relief duty. It told Miss X to contact the Council if she received an eviction letter and that in the meantime she should continue looking for suitable accommodation.
61. Mrs X received notice in early December 2024 that she would be evicted on 15 January 2025. The Council told Miss X to remain in the property until she was evicted. It provided Miss X with temporary accommodation in a bed and breakfast following her eviction on 15 January 2025.
62. Mrs X has asked the Ombudsman to investigate her complaints. She says the Council’s failings and delays have affected her health and wellbeing and led to financial debts. They have also meant she has had no stability and has been unable to settle down and find a nursery for her child or a job for herself as she did not know where she would be living.
63. In response to my enquiries the Council says there were some delays in the beginning, but this was not a factor in the outcome of the application as the homelessness was not pending in the near future and options were examined into prevention of homelessness either by helping keep Miss X in the property or finding alternative accommodation.
64. The Council notes Miss X made a homelessness application in October 2023 but was not homeless until January 2025.
65. The Council says that when Miss X presented as homeless in October 2023 it was prioritising urgent homelessness applications due to staff resources. It says all circumstances were taken into account when offering full appointments to discuss homelessness and provide a PHP. The Council says the staffing issues are now resolved and all applicants are offered appointments within 14 days.

Analysis

66. There are no statutory time limits for making decisions in homelessness cases. However, we would expect authorities to conduct assessments, take necessary actions and make decisions, in a reasonable timeframe.
67. The Council’s response to my enquiries acknowledges there were delays in the beginning. However, the documentation provided suggests there were delays throughout its consideration of this matter.
68. Miss X presented as homeless in October 2023 but the Council did not carry out an initial interview to assess Miss X’s application until February 2024. We would not expect an applicant to have to wait four months for an initial homelessness interview, particularly where, as in Miss X’s case, she has been served with a section 21 notice which would expire before the interview date.
69. The Council has explained that the delay at the time was due to staff resources and that it has since resolved this issue and reduced the waiting time to no more than two weeks. This is to be welcomed, but delays of the nature experienced by Miss X are clearly unacceptable and amount to fault.
70. Following the meeting in February 2024 the Council promptly issued a decision accepting a prevention duty. However on receipt of Miss X’s review request it withdrew the decision without an explanation. The Council did not issue a further decision or accept a homeless duty until November 2024. This further significant delay in assessing Miss X’s case and reaching a decision is fault.
71. The Council’s stage two complaint response says the prevention duty still exists. This implies the Council had made a new decision but has not informed Miss X. Miss X was therefore prevented from accessing the review right she is entitled to under law. This would also be fault.
72. I also consider there to be fault in the way the Council has assessed Miss X’s homeless application.
73. The Council accepted a prevention duty as it considered Miss X was threatened with homelessness rather than homeless. The law says that someone is homeless if they have no accommodation or if they have accommodation, but it is not reasonable for them to continue to live there.
74. Miss X received two section 21 notices requiring her to vacate the property, one which expired in January 2024 and a second which expired in May 2024.
75. Statutory guidance is clear that housing authorities should not adopt a blanket policy or practice on the point at which it will no longer be reasonable for an applicant to occupy following the expiry of a section 21 notice.
76. In determining whether it would be reasonable for an applicant to continue to occupy accommodation following expiry of a valid section 21 notice the authority will need to consider all the factors relevant to the case and decide the weight that each should attract. The Guidance says these factors include the preference of the applicant; the position of the landlord; the financial impact of court action and the build-up pf arrears; the burden on the courts of unnecessary proceedings where there is no defence to a possession claim; and the general cost to the housing authority.
77. The Council was aware that Miss X took an advance on her benefits, which she would need to repay, in order to pay her rent in February 2024. It also then arranged top up payments from March 2024 to cover the shortfall in rent. This would suggest the property was not affordable and as such not reasonable for Miss X to continue to occupy.
78. It is also of concern that the Council initially advised Miss X that the top up payments were a loan which she would have to repay at £20 per month. This would clearly not assist Miss X with the affordability of the property.
79. The Council was also aware that the landlord intended to commence possession proceedings. And that they could not allow Miss X to remain in the property as she was in receipt of benefits.
80. The Guidance is again clear that it is unlikely to be reasonable for the applicant to continue to occupy beyond the expiry of a valid section 21 notice in these circumstances
81. However, several officers wrote to Miss X setting out the Council’s position, all using what appears to be a standard paragraph. This suggests that contrary to the statutory guidance, the Council has adopted a blanket policy that applicants should continue to occupy a property until they are evicted by bailiffs.
82. This policy is in itself contrary to law and Guidance which states that 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.
83. The failure to properly consider Miss X’s circumstances or have due regard to the law and guidance is fault.
84. These faults have caused Miss X a significant injustice. She has experienced unnecessary distress and uncertainty at what was already a difficult time for her. The Council has also prevented her from accessing her right of review. In addition, Miss X has incurred the avoidable court and bailiff costs for an eviction against which there was no defence.

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Agreed action

85. When a council commissions or arranges for another organisation to provide services we treat actions taken by or on behalf of that organisation as actions taken on behalf of the council and in the exercise of the council’s functions. Where we find fault with the actions of the service provider, we can make recommendations to the council alone. Here we have found fault with Colchester Borough Homes’ actions and make the following recommendations to the Council.
86. The Council has agreed to:
• apologise to Miss X for the distress, uncertainty and financial difficulties she has experienced as a result of the fault identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• pay Miss X £750 to recognise the avoidable distress and uncertainty she has experienced over an extended period as a result of the fault identified; and
• reimburse Miss X the court and bailiff costs she has incurred in the eviction process.
87. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.
88. The Council has also agreed to:
• review its policies and practices to ensure it does not, officially or otherwise, take a blanket position on the point at which it will no longer be reasonable for an applicant to occupy following the expiry of a section 21 notice.
• provide training to its housing officers responsible for considering homeless applications. This is to ensure all officers have a clear understanding of its duties under the Housing Act 1996 and the Homelessness Code of Guidance in circumstances in relation to applicants being evicted from private rented accommodation.
89. The Council should take this action within three month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Final decision

90. The delays and failings in the way the Council dealt with Miss X's homeless application are fault. This fault has caused Miss X an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman