Summary: Ms X complained about the Council’s advice when she was given an eviction notice by her landlord. We found the Council at fault. The Council has offered to cover Ms X's court costs and make a payment in recognition of her time and trouble in making a complaint. The Council has agreed to make a further payment in recognition of the distress caused by its fault. The Council has also agreed to carry out service improvements to avoid a repeat of the fault identified.

The complaint

1. Ms X complains the Council advised her to stay in her property until she was evicted by bailiffs, contrary to the Homelessness Code. She says the Council should have offered her interim accommodation when her landlord’s eviction notice expired. Ms X says the Council has caused avoidable distress and cost.

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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. 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

4. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
5. Ms X and the Council have had an opportunity to comment on my draft decision. I considered any comments received before making this final decision.

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What I found

Law and Guidance

6. The Housing Act 1996 says if a council is satisfied applicants are threatened with homelessness and eligible for assistance, they owe the applicant the ‘prevention duty’. This means the council must help the person to ensure that accommodation does not stop being available for their occupation.
7. 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
8. The Housing Act 1996 S.188 places a duty on the Council to arrange interim accommodation as soon as the authority has reason to believe that an applicant may be eligible, homeless and in priority need. This is an absolute duty and the Council cannot postpone it due to a lack of available resources.
9. 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.
10. The Council’s legal duty (Housing Act 1996, s206) is to provide suitable accommodation immediately, not just to try to do so or to wait until something suitable becomes available from it’s usual supply. Recent case law supports this view.
11. The High Court has been critical of attempts by an authority to put systems in place to avoid, or delay, the provision of interim accommodation – R (Kelly & Mehari) v Birmingham City Council [2009] and R (Khazai) v Birmingham City Council [2010].
12. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities (the Code) set out the Council’s powers and duties to people who are homeless or threatened with homelessness.
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 unlike to be reasonable for the applicant to continue to occupy beyond the date on which the court has ordered them to leave the property 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 17, 19, and 20 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.
14. The Homelessness Code is statutory guidance, so councils must have regard to it. A council must have a good reason for departing from it and should record its reasons for doing so.

What happened

15. Ms X lived in a privately rented property, with her family. Her landlord served an eviction notice in March 2024.
16. Ms X told the Council the same day, and explained she would be homeless from June 2024, and needed help as she had children with additional needs.
17. The Council advised her she had a legal right to remain in her property until the landlord obtained a possession order from the courts, and bailiffs physically evicted her and her family.
18. Ms X remained in the property past June and the landlord started court proceedings to force the family to leave.
19. Ms X was evicted by bailiffs at the end of September 2024, and at that point the Council provided interim accommodation for the family.

Analysis and findings

20. Ms X told the Council she had been issued a section 21 eviction notice on the day it was served. She made it clear she was worried for her family and needed the Council’s help. As she had received a valid notice, Ms X was threatened with homelessness. The Council should have accepted the prevention duty at this point and issued a personalised housing plan with steps for both Ms X and the Council to take. The Council did not accept the prevention duty until July, four months after it should have done so. This delay was fault. It did not provide a personalised housing plan which is also fault.
21. The Council was correct when it told Ms X she had a legal right to remain in the property until evicted by bailiffs, although it is not fault for the Council to advise Ms X of her legal rights. However, the Council should also have explained to Ms X that if the landlord could not be persuaded to allow the family to stay, and they became homeless, the Council had a duty to provide interim accommodation. Failure to provide this advice was fault.
22. The Ombudsman has been critical of councils which advise private tenants to “wait for bailiffs” before considering they are homeless. In our focus report More Home Truths, we said councils should not tell an applicant they will only help them once the landlord applies to court for possession or apply a blanket policy on at what point in the eviction process it will offer interim accommodation.
23. The Council had to consider at what point Ms X became homeless and so owed the relief duty. The Code says that once a notice expires, the person is likely to be homeless. There is no evidence the Council had regard to the Code or justified departure from it when deciding Ms X was not homeless when the notice expired in June 2024. Rather, the evidence suggests the Council failed to consider the point at all. This was fault.
24. Even if it had decided it was reasonable for Ms X to continue to occupy her home after the notice expired, the Council should have revisited the question when the landlord applied to court, and again when the court granted possession. Failure to do so was fault.
25. From the evidence I have seen, the Council was not working with Ms X’s landlord. There is no evidence of other actions or factors which would justify departure from the Code. On balance, therefore, had it properly considered its legal duties and the Code, the Council would have accepted the relief duty in June 2024. It should have provided Ms X with interim accommodation shortly thereafter.
26. Had the Council acted as it should have, Ms X would therefore have avoided the distress and cost of court proceedings. Having the landlord take legal action against her inevitably caused Ms X and her family significant distress which was avoidable and is a direct injustice arising from the Council’s fault.
27. In response to our enquiries, the Council offered to pay Ms X’s court costs and £100 for the time and trouble caused, to bring the matter to a conclusion.
28. I agreed the Council should reimburse Ms X’s court costs as they were avoidable. I also recommended a payment in recognition of the additional distress and uncertainty caused to Ms X. I recommended service improvements to avoid a repeat of this issue in addition to the Council’s offer.

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Agreed Action

29. Within one month of the decision, the Council will:
• Apologise to Ms X
• Pay £460.50 to Ms X to cover the court costs incurred
• Pay £500 in recognition of the avoidable distress and uncertainty caused to Ms X
30. The total payment to be made is therefore £960.50.
31. 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.
32. Within three months of the decision, the Council will:
• Through managerial oversight or other appropriate means, ensure the Council promptly accepts the prevention duty and issues a personalised housing plan when satisfied an applicant is threatened with homelessness.
• Provide training or guidance to relevant staff on deciding when a private tenant served a notice is homeless and how to record this to demonstrate regard for Chapter 6 of the Code of Guidance in every case.
• Remind relevant staff that no one owed the interim accommodation duty should be evicted by bailiffs because the Council has not provided accommodation.
33. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. I found fault causing injustice. The Council agreed to carry out some action to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman