Summary: The Council was at fault for failing to consider whether it was reasonable for Ms X to remain in her privately rented property after the notice to quit expired. The Council should have provided interim accommodation sooner. Instead, Ms X and her children lived for 11 months with extensive damp and mould and faced avoidable court costs. To remedy the injustice to Ms X, the Council has agreed to apologise, make payments and backdate her social housing application. We found the Council has a blanket policy which likely caused injustice to others who have not complained. The Council will act to remedy this injustice and improve its services.

The complaint

1. Ms X complained about the Council’s handling of her homelessness application when her private landlord issued a notice. She says the Council:
1. failed to follow the law and guidance about when to provide interim accommodation by advising her to remain in the property until evicted; and
2. failed take enforcement action against the landlord of the privately rented property despite knowing about the hazards.
2. As a result, she says she and her children spent longer than they should have in a damp and mouldy property, and she experienced the avoidable costs and distress of court possession.

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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. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
5. 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.
6. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.
7. 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)
8. 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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What I have not investigated

9. I have not investigated the complaint at b) in paragraph one. Ms X took court action against the Council. The restriction in paragraph four therefore applies.

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How I considered this complaint

10. I considered the complaint and the information Ms X provided.
11. I made written enquiries of the Council and considered its response along with relevant law and guidance.
12. I referred to the Ombudsman's Guidance on Remedies, a copy of which can be found on our website.
13. Ms X 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

14. 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.
15. 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.
16. 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.

Homelessness law and guidance

17. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities (the Code) set out councils’ powers and duties to people who are homeless or threatened with homelessness.
18. Someone is threatened with homelessness if, when asking for assistance from the Council, he or she has been served with a valid Section 21 notice which will expire within 56 days. (Housing Act 1996, section 175(4) & (5))
19. If councils are satisfied applicants are threatened with homelessness and eligible for assistance, they must help them to secure that accommodation does not stop being available for their occupation. This is called the prevention duty. In deciding what steps they are to take, councils must have regard to their assessments of the applicants’ cases. (Housing Act 1996, section 195)
20. Where an applicant is an assured shorthold tenant who has received a valid notice in accordance with section 21 of the Housing Act 1988 and the council is satisfied that the landlord intends to seek possession and there would be no defence to an application for a possession order, then it is unlikely to be reasonable for the applicant to continue to occupy a property beyond the expiry of a valid section 21 notice. (Homelessness Code of Guidance, paragraph 6.35)
21. 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)
22. 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)
23. If, at the end of the relief duty, a council is satisfied an applicant is unintentionally 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)

What happened

24. Ms X and her children lived in a privately rented property. In April 2023, Ms X’s landlord served a section 21 notice. This said Ms X needed to leave the property by mid-September.
25. Ms X approached the Council for help in July. Officer 1 carried out a telephone assessment with Ms X in early August. Ms X told the Council about disrepair in the property, including damp and mould and a leak. Ms X says during this telephone call, Officer 1 told her to remain in the property until the court ordered her to leave.
26. The Council accepted the prevention duty and issued a personalised housing plan. It awarded Band C on its housing register. The Council asked the landlord’s agents if Ms X could stay in the property longer to allow time for her find to somewhere else to live. The agents told Ms X and the Council the landlord did not agree to this.
27. The notice expired in September. The landlord applied to court for possession in October. Ms X says she did not have further contact with the Council until November, when she provided it a copy of the possession claim. At this time, Officer 2 replaced Officer 1 as the assigned officer for Ms X’s case. Ms X says Officer 2 also told her not to leave the property until she was evicted.
28. In December, the Council’s environmental health team identified a Category One hazard in the property due to damp and mould.
29. Because of the legal action Ms X took about the disrepair, the court delayed the possession proceedings from January 2024 until June 2024.
30. In May 2024, Ms X asked the Council to refund her for the costs she incurred defending the possession claim. In response, the Council told Ms X:

“We usually advise our applicants to remain in the property when a section 21 is served until the landlord receives a possession order…However, if an applicant left the accommodation before the possession order is received, they could be found intentionally homeless.”

31. It also said:

“The Council does not need to provide you an interim accommodation when you still have legal rights to occupy your present accommodation. We will arrange an interim accommodation for you when you present the Council with the possession order issued by the court.”

32. Ms X complained to the Council. She said the Council had wrongly advised her to remain in her property until she was evicted. She said Officer 1 should have alerted the environmental health team in August 2023.
33. In June, the court granted possession to Ms X’s landlord. The order said Ms X had to leave by mid-July.
34. In response to Ms X’s complaint, the Council said:
• Its advice to wait for the landlord to issue possession proceedings is correct and standard procedure. If a person leaves a property without legal proceedings being issued, they could be found intentionally homeless.
• There is no evidence the Council told Ms X to defend the possession claim.
• The requirement to remain in the property until legal action starts is a normal procedure to ensure a landlord cannot be persuaded to allow an individual more time or to try to resolve an issue to allow someone to remain. There is no requirement to defend a claim or remain beyond a possession order save in exceptional circumstance.
• There were delays and gaps in communication between August 2023 and May 2024. “Had this not occurred then the misunderstanding regarding remaining in the property may not have occurred.” It apologised for this.
• It offered to pay Ms X just over £500, reflecting the cost of a possession claim if she had not defended it.
35. Ms X asked the Council to consider her complaint at stage two. She said Officer 1 gave her the impression that if she did not defend the possession claim, the Council may find her intentionally homeless.
36. In September, the Council accepted the relief duty and provided interim accommodation to Ms X and the children.
37. The Council responded at stage two of its complaint process in October. This said:
• It was Ms X’s decision to defend the possession claim. The Council did not tell her to do so.
• It had explained interim accommodation to her and this “would have been provided at any point, but [she] chose to remain in the property”.
• It restated offer to pay the costs of an undefended possession claim.
38. In November, the Council accepted the main housing duty to Ms X. It awarded Band B on its housing register.

My findings

39. Someone is homeless if they have accommodation but it is not reasonable for them to continue to live in it. Ms X reported extensive disrepair, including damp and mould, when she first approached the Council for help. There is no evidence the Council considered whether the property was reasonable for Ms X and her children to continue to live in. Failure to do so was fault.
40. I cannot say what the Council would have decided had it properly considered the matter. But this leaves Ms X with avoidable uncertainty about whether she might have been able to leave the property sooner. This is an injustice to Ms X.
41. The Council should have alerted its environmental health team, or signposted Ms X to it, when she first approached. Failure to do so was fault.
42. The Code of Guidance says it is unlikely to be reasonable to continue to occupy a property after a section 21 notice expires (6.35). The Code sets out various matters for councils to consider in deciding if a property remains reasonable to continue to occupy. This includes the impact on the courts and the impact on tenants of avoidable court costs. Councils must consider, in every individual case, whether it is reasonable to expect the applicant to remain once the notice expires (6.40). The Code warns councils not to apply a blanket policy about when an applicant is homeless (6.33).
43. The evidence in this case shows the Council has a blanket policy which requires applicants to wait until the landlord gets a possession order before it will consider providing interim accommodation or accepting the relief duty. This is not in line with the Code and is fault.
44. The evidence also shows the Council tells applicants it could find them intentionally homeless if they leave a property before the court grants possession. This advice does not reflect the Code of Guidance or the law about intentional homelessness. Using this as a “threat” to make people stay in their accommodation is fault.
45. It is likely these faults have caused injustice to others who have not complained.
46. In Ms X’s case, the Council should have considered whether it was reasonable for her to continue to occupy the property, and so whether it owed the relief duty and the duty to provide interim accommodation:
• When the notice expired in September 2023
• When the landlord applied for possession in October 2023
• When the Council identified a Category One hazard in December 2023
• When the Court granted a possession order in June 2024.
47. There is no evidence it considered the Code and applied it to Ms X’s circumstances at any of these points. This was fault. This contradicts the Council’s statement in response to Ms X’s complaint that the Council would have offered interim accommodation at any time. This statement does not reflect the evidence.
48. On balance, Ms X was homeless in October 2023 when her landlord applied for possession. She had no defence to the possession claim, the property had extensive disrepair, and the landlord told the Council Ms X could not stay. The Council should have provided interim accommodation and failed to do so. This was fault. It should have accepted the relief duty. It failed to do so and this was fault. As a result, Ms X and her children remained living with significant damp and mould for another 11 months. This is a significant injustice to Ms X.
49. The Council should have accepted the relief duty in October 2023. This means it should have accepted the main housing duty by December 2023. It did not do so until November 2024. This delay was fault. Ms X has missed 11 months of bidding in Band B as a result. It is unlikely Ms X has missed an offer of accommodation because of this. However, the Council should backdate her priority band date to October 2023.
50. Ms X says the Council told her to defend the possession claim to avoid being intentionally homeless and that she incurred significant court costs as a result. The evidence does not show the Council advised her to do this. However, as the Council accepted, its poor communication with Ms X after August 2023 means it missed out on opportunities to explain to Ms X that she did not need to defend the possession claim to stay in the property. The Council’s offer to pay the court costs of an undefended claim is a suitable remedy for the injustice this caused.

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Action

51. We have the power to make recommendations to remedy the injustice experienced by complainants and members of the public affected by fault we identify. (Local Government Act 1974 s 31(2B)). I have set out below the actions the council should take to remedy the injustice to Ms X and those people also caused an injustice by the Council’s fault.
52. To remedy the injustice to Ms X from the fault I have identified, the Council has agreed to:
1. apologise to Ms X in line with our guidance on Making an effective apology;
2. backdate Ms X’s Band B priority to October 2023;
3. if it has not already done so, pay Ms X the £517 offered to reflect the avoidable court costs; and
4. pay Ms X £1,650, being £150 a month for the 11 months she and her children lived in unsuitable accommodation with extensive damp and mould.
53. The Council should take this action within four weeks of my final decision.
54. To remedy injustice to others who have not complained, the Council should:
1. identify all open cases where an applicant who may be in priority need has remained beyond the expiry of a section 21 notice;
2. in each case, make and record a decision, with reference to the Code of Guidance, about whether it remains reasonable for them to continue to occupy their accommodation and therefore whether they are homeless;
3. for those applicants it decides are homeless and might be in priority need, provide interim accommodation.
4. for those applicants it decides can remain despite the notice having expired, review this decision at each stage of the possession process or with any other change in circumstances.
55. The Council should take this action within eight weeks of my final decision.
56. The Council should also take the following action to improve its services:
1. Provide training or guidance to relevant staff on applying Chapter 6 of the Code of Guidance to individual cases and recording a decision in each case, at each stage of the possession process, about whether it remains reasonable for an applicant to continue to occupy their accommodation.
2. Provide training or guidance to relevant staff to ensure the Council does not threaten applicants with being found intentionally homeless to secure their continued occupation of accommodation it would not be reasonable for them to remain in.
3. Provide training or guidance to homelessness staff on the Council’s duties under the Housing Act 2004 to act on potential hazards and ensure staff know when and how to refer a case to Environmental Health.
57. The Council should tell the Ombudsman about the action it has taken within three months of my final decision.

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Decision

58. 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