Summary: Ms X complained about the Council’s handling of her homelessness application. She says the Council wrongly advised her to stay in the property even after the expiry of a valid eviction notice. She also says the Council failed to offer her temporary accommodation promptly which led to her getting into rent arrears after her landlord raised the rent and made the property unaffordable. We found the Council was at fault for not offering interim accommodation when Ms S became homeless. The Council agreed to apologise, pay her legal costs and pay her a remedy for the stress she experienced.

The complaint

1. Ms X complains about the Council’s handling of her homelessness application. She says the Council wrongly advised her to stay in the property even after the expiry of a valid eviction notice. She also says the Council failed to offer her temporary accommodation promptly which led to her getting into rent arrears after her landlord raised the rent and made the property unaffordable.

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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. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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 Ms X and the Council as well as relevant law, policy and guidance.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legislation and statutory guidance

7. 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.

Homeless definition, including if not reasonable to remain in current accommodation

8. 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)

Assessments and Personal Housing Plans

9. 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)

Duty to provide information and advice

10. Councils must provide to anyone in their district information and advice free of charge on:
• preventing homelessness;

• securing accommodation when homeless;
• the rights of people who are homeless or threatened with homelessness;
• the duties of the authority;
• any help that is available from the authority or anyone else, for people in the council’s district who are homeless or may become homeless (whether or not they are threatened with homelessness); and
• how to access that help.

The prevention duty

11. If a council is satisfied an applicant is threatened with homelessness and eligible for assistance, it must take steps to help the applicant keep their home or find somewhere new to live. In deciding what steps to take, a council must have regard to its assessment of the applicant’s case. (Housing Act 1996, section 195)
12. Section 175(5) of the Housing Act 1996 says a person is threatened with homelessness if a valid notice under section 21 of the Housing Act 1988 has been served in relation to the only accommodation available for them to occupy and this will expire within 56 days.
13. The Code, at paragraphs 6.35 to 6.38, says:
• it is unlikely to be reasonable for the applicant to continue to occupy their accommodation beyond the expiry of a section 21 notice, unless the housing authority is taking steps to persuade the landlord to allow the tenant to continue to occupy the accommodation whilst an alternative is found;
• it is highly unlikely to be reasonable for the applicant to continue to occupy beyond the date on which the court has ordered them to leave the property and give possession to the landlord;
• councils should not consider it reasonable for an applicant to remain in occupation up to the point at which the court issues a warrant or writ to enforce an order for possession;
• councils should ensure that homeless families and vulnerable individuals who are owed an interim accommodation or main housing duty (see paragraphs 15, 17, and 18 below, for an explanation of these duties) are not evicted through the enforcement of an order for possession as a result of failure by the council to make suitable accommodation available to them.

The relief duty

14. 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

15. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need the council has a duty to make accommodation available (unless it refers the application to another housing authority under section 198). 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)

Interim accommodation

16. If the council has reason to believe the applicant may be homeless, eligible for assistance and in priority need, it must provide interim accommodation until it has finished assessing the homelessness application if the applicant asks for it. “Reason to believe” is a low threshold. An example of priority need is those applicants who are vulnerable because they are elderly or as a result of a significant health issue.
17. When a council accepts a main housing duty, interim accommodation becomes temporary accommodation. In both cases, the accommodation should be suitable for the household. However, there is a statutory right to a review of the suitability of temporary accommodation, but no such right for interim accommodation.

Overview: eviction from private rented sector (PRS) accommodation

18. Where a tenant has an assured shorthold tenancy, the landlord can issue a section 21 notice asking the tenant to leave. They do not have to give reasons, but the notice needs to be in a specific form and must satisfy various conditions.
19. In some cases, the landlord can evict without a court hearing – this is called “accelerated possession”. They do need to apply to the court and the tenant can challenge the application. The court will look at the papers and either:
• issue a “possession order” – this sets a date at which the tenant has to leave; or
• set a date for a possession hearing; or
• dismiss the case.
20. If the tenant does not leave the property by the date given in the possession order, the landlord can apply for a “warrant for possession”. If the court issues a warrant, it will send the tenant an eviction notice with the date they must leave the property by. A bailiff can evict the tenant if they do not leave by that date.

What happened

21. In January 2024 Ms X’s landlady raised her rent by £450 per month (from £1150 to £1600). Ms X said that this was above the Local Housing Allowance (LHA) at the time.
22. In late February 2024 Ms X, who lived with a dependent child, got a section 21 notice. The notice said she should leave the property by late April 2024.
23. Ms X said she contacted the Council immediately as she considered she was threatened with homelessness. The Council acknowledged the notice was valid but insisted she should file a defence in court. Ms X worried this would result in additional court fees and bailiff fees the landlord could then pass onto her.
24. At the time, Ms X also told the Council that the landlady had raised her rent beyond the LHA and this made the property no longer affordable for her. She applied for a discretionary housing payment, which the Council refused.
25. The Council told her she should wait for the bailiffs to turn up to evict her and it did not offer her temporary accommodation.
26. In April 2024 Ms X’s LHA increased from £1100 to £1300. Ms X said that despite this the £1600 rent unaffordable for her.
27. In the same month the Council sent Ms X a search with four properties with rents between £1600 and £1700 per month.
28. In late April 2024 , the day before her notice expired, Ms X complained to the Council. She said it failed to provide her with interim accommodation, and because of this she was getting in more debt as she could not afford the rent increase.
29. The Council decided to carry out an affordability assessment for Ms X in May 2024. In the same month Ms X went to Citizen’s Advice Bureau (CAB) to do an affordability assessment. The CAB assessment concluded the property was unaffordable for Ms X, but she said her homelessness officer continued to send her links to properties that were too expensive for her.
30. Ms X said the assessment the Council carried out was intrusive and officers even questioned her purchase of female hygiene products, childcare arrangements and insisted on matching expenses to bank statements. PA said the initial assessment concluded she could afford £1300, but later in the complaint response the Council said she could afford £1600 which confused her.
31. The Council refused to use the CAB financial assessment, even though Ms X pointed out it was impartial. This assessment suggested Ms X could afford £1400 and ultimately the Council agreed with this.
32. In late May 2024 the Council replied to Ms X’s complaint. It said that:
• it accepted prevention duty on 15 March 2024;
• it was open to the Council to decide if it was reasonable for Ms X to occupy the property after section 21 expired;
• the homelessness officer tried to decide if it was reasonable for Ms X to remain in the property, and Ms X failed to provide evidence requested;
• it was unsure if Ms X made a defence in section 21 proceedings;
• it sent her suitable and affordable private accommodation offers;
33. On the same day Ms X asked the Council to consider her complaint further. She said this was because:
• the Council must provide temporary accommodation during its investigation if its unreasonable for the applicant to remain in the property after section 21 expiry- which it did not;
• the Council should have considered affordability as one of the criteria’s when looking if it was reasonable for Ms X to remain in the property;
• The Secretary of State said that it was unlikely it would be reasonable to remain in the property if the section 21 was valid and there was no prospect of saving the tenancy. There was no chance in this case because Ms X’s landlady wanted to sell up which she told the Council from the beginning.
34. In early June Ms X told her housing officer that the property links she was sending were for properties that she could not afford. The officer responded and said the links she sent were for properties with rent under £1600 and in line with the CAB financial assessment.
35. The Council issued its final complaint response in mid-June 2024. It said:
• Ms X was not looking for seven private properties a week as per PHP and seemed to have preferred bidding for social housing rather than privately rented properties, and she needed to do both.
• The Council could not accept she was homeless because she had submitted a defence to the possession proceedings served on her;
• That following the in-depth assessment the Council considered Ms X could afford the new rent; and
• Ms X could make savings in her budget to be able to afford rent while the proceedings continue.
36. In late October 2024 the Council told Ms X that it accepted relief duty because her landlady made a possession order and she had received a warrant which meant she would be evicted in early November 2024.
37. In November 2024 the Council made its final offer for accommodation to Ms X, which she accepted and moved into a different accommodation. The Council ended its relief duty. Ms X disputed the Council ending its relief duty as she said the accommodation it offered her was unsuitable from the beginning. The Council reinstated a relief duty from mid-January 2025.
38. Ms X was unhappy with the Council’s decision, and she asked the Ombudsman to investigate.
39. In response to our enquiries, the Council told us that it had not offered interim accommodation to Ms X because the Council’s Procurement Team found and offered a suitable accommodation to Ms X.

Analysis

Homelessness

40. Ms X approached the Council for help in February 2024 and provided a section 21 notice. The Council should have checked whether the notice was valid, and if so, whether it was reasonable for her to continue to occupy the property. This would include contacting the landlord to explore whether Ms X’s homelessness could be prevented by an extension to the tenancy. It should also have considered if Ms X was homeless on the grounds her current tenancy was not affordable. We have not seen evidence it did so, which was fault.
41. If it had made proper enquiries, it is likely it would have decided the section 21 was valid and the tenancy could not be extended because the landlady wanted to sell the property. On that basis, it was unlikely to be reasonable for Ms X to continue to occupy after the section 21 notice expired in late April 2024. This means she was legally homeless, and the Council should have accepted a relief duty at that point.
42. Since Ms X lived with her dependent child; this means they were in priority need. Therefore, Council should have offered them interim accommodation. There is no evidence it did so, which was fault.
43. As a result, between April and November Ms X remained in the property which was unaffordable, and she fell behind with rent payments.
44. However, this took place in November 2024. On balance, we consider it was unreasonable for Ms X to remain in her property till November and had the Council offered her interim accommodation she would not have fallen behind with her rent as much as she did. Because of this we consider the Council should cover the difference between £1400 rent it deemed Ms X could afford and the increased rent for the period between April 2024 and November 2024 when Ms X moved.
45. Its failure to act also delayed any assistance to Ms X, and meant she incurred £391 legal costs as she was ordered to pay the landlady’s costs for the application. She would not have had to pay if the Council had not delayed in helping her because the landlady would not have needed to continue with the legal action if Ms X had left the property.
46. Finally, Ms X was caused months of uncertainty and worry due to the Council's delay in taking action to assist her and, in particular, its failure to arrange interim accommodation when it should have done. The Council accepted relief duty at the very last minute to prevent Ms X from going through the experience of being evicted by bailiffs, and Ms X did not know if the Council would help her until the very last minute.

Property offers

47. Ms X said that her housing officer continued to send her unaffordable properties even after she said that she would not be able to afford them.
48. The Council’s emails show that Ms X’s housing officers shared a number of properties with her. Not all properties were within the affordability assessment. This is fault. It caused Ms X avoidable frustration.

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Action

49. Within one month of the date of the final decision statement, the Council will:
• apologise to Ms X for its failure to promptly decide if it considered it was reasonable for her to live in the property after the section 21 notice expired and the distress and frustration this has caused her. The Council should refer to our guidance on making an effective apology;
• pay Ms X £700 to remedy the uncertainty, worry and time and trouble caused between February 2024 and November 2024.
• pay Ms X £391 to remedy the avoidable court costs she incurred. The Council should make the payment after Ms X provides evidence of when she paid the costs;
• pay Ms X £500 to remedy the rent arrears that she incurred above the £1400 she was assessed as being able to afford and her increased rent as a result of the Council’s failure to offer her interim accommodation;
• remind relevant officers about the importance of being clear how much rent it assessed the person can afford and why; and
• remind relevant officers about the contents of paragraphs 6.25 to 6.38 of the Homelessness Code of Guidance for Local Authorities. The Council should offer interim accommodation when a valid section 21 notice has been served.
50. The Council should provide us with evidence it has complied with the above actions.

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Decision

51. I find fault causing injustice and my investigation is now complete.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman