Summary: Mr Y complained about the Council’s handling of Ms X’s homelessness application. Mr Y says this caused Ms X avoidable and unnecessary distress and financial strain. We find the Council at fault which caused Ms X injustice. The Council has agreed to apologise and make a payment to Ms X to remedy the injustice caused.

The complaint

1. Mr Y complains about the Council’s handling of Ms X’s homelessness application. Specifically, he complains the Council:
1. did not follow the homelessness code when processing her application; and
2. refused to pay her landlord’s legal fees for which she is now liable.
2. Mr Y says this has caused avoidable and unnecessary distress and financial strain to Ms X.

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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 the information and documents provided by Mr Y and the Council. Mr Y and the Council had an opportunity to comment on my draft decision. I considered all comments before making a final decision.
6. I also considered the relevant statutory guidance, and Council’s policy, as set out below.

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What I found

What should have happened 

Homelessness

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.
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)
9. If someone contacts a council seeking accommodation or help to obtain accommodation and gives ‘reason to believe’ they ‘may be’ homeless or threatened with homelessness within 56 days, the council has a duty to make inquiries into what, if any, further duty it owes them. The threshold for triggering the duty to make inquiries is low. (Housing Act 1996, section 184 and Homelessness Code of Guidance paragraphs 6.2 and 18.5)
10. Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. 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. In their interactions with applicants, housing authorities are encouraged to provide sufficient information and advice to encourage informed and realistic choices to be identified and agreed for inclusion in the plan. (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6,11.18 and 11.20)
11. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. This is the relief duty. When a council decides this duty has come to an end, it must notify the applicant in writing (Housing Act 1996, section 189B). The relief duty ends 56 days after the council accepted it owed the duty, providing the council accepts the person is in priority need and not intentionally homeless.
12. 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 (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)

Homelessness accommodation

13. There are two types of accommodation councils provide to certain homeless applicants: interim accommodation and temporary accommodation.
14. A council must secure accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need. This is interim accommodation. (Housing Act 1996, section 188)
15. Examples of applicants in priority need are:

• People with dependent children;
• Pregnant women;
• People who are vulnerable due to serious health problems, disability or old age;
• Care leavers; and
• Victims of domestic abuse.

16. If, having made inquiries, the council is not satisfied an applicant is homeless, eligible, and in priority need, it will have no further accommodation duty.
17. If 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 the main housing duty. The accommodation a council provides until it can end this duty is called temporary accommodation. (Housing Act 1996, section 193)
18. Homeless applicants may request a review within 21 days of being notified of several council decisions, including the suitability of that accommodation offered to the applicant after the council accepted the main housing duty.

Overview: eviction from private rented sector (PRS) accommodation

19. 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.
20. The landlord must get a possession order if the tenant does not leave when the Section 21 notice ends. The possession order sets a date at which the tenant has to leave. If the landlord uses the general possession process, there will be a court hearing. If the landlord uses the accelerated possession process, the court can decide to issue a possession order or dismiss the case without a hearing.
21. 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.
22. 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)
23. 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. (Homelessness Code of Guidance, paragraph 6.32)
24. 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. Factors which may be relevant include the preference of the applicant (who may, for example, want to remain in the property until they can move into alternative settled accommodation if there is the prospect of a timely move, or alternatively to leave the property to avoid incurring court costs); the position of the landlord; the financial impact of court action and any build-up of rent arrears on both landlord and tenant; 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. (Homelessness Code of Guidance, paragraph 6.33)

What happened

25. In October 2023, Ms X received a valid section 21 eviction notice from her landlord. It told her to move her and her three children out of her property by early December 2023. She approached the Council’s homelessness department.
26. The Council accepted its prevention duty. It completed a housing assessment and decided her family needed a three-bedroom property. It completed a personalised housing plan. The plan told Ms X to look for another private rented property within her benefit allowance. It said it may be able to offer Ms X financial assistance in the form of a loan to start another tenancy in the private rented sector, if the Council decided it was affordable. It said it would assess her application for social housing. It said it would also consider her for any suitable private rented accommodation which becomes available to it.
27. The Council contacted the estate agents and confirmed the reason the landlord was evicting Ms X. It added her to the housing register and gave her high priority.
28. In December, Ms X’s eviction notice expired. She called the Council for an update. The Council told Ms X she was on the housing register and was a high priority.
29. In February, the Council told Ms X’s health worker that Ms X was to remain in her home until she received a bailiff warrant from the courts.
30. In March, the Council completed the paperwork for Ms X’s emergency accommodation and noted it would send the paperwork once it received the bailiff warrant. It told Ms X’s health worker once it received the bailiff warrant, it would arrange emergency accommodation.
31. In early April, Ms X received the possession order and provided a copy to the Council.
32. In late April, Ms X received the bailiff’s warrant and provided a copy to the Council. It said she would be evicted at the end of May. She also received an invoice to pay her landlord’s court fees.
33. The day before her eviction, the Council moved Ms X and her children to bed and breakfast accommodation.
34. Within a week, Ms X contacted the Council several times. She told the Council she had concerns about the suitability of the bed and breakfast accommodation. She said she was having difficulty feeding her children. The Council told her it had no alternative accommodation to offer her in that area.
35. Ms X asked the Council to pay the court fees she incurred from the eviction court proceedings. She said she incurred the fees because she had followed the Council’s advice to remain in her home until she received the bailiff’s warrant. The Council declined her request.
36. In late June, the Council moved Ms X and her children to self-contained accommodation.
37. In July, the Council accepted it owed Ms X the main housing duty. It provided her with a right of review.
38. In December, the Council offered Ms X a secure tenancy.

Analysis

39. We expect councils to follow the statutory actions set out in law and the Code. We are likely to find fault where the Council has not properly completed these actions.
40. The law says councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. The Council met its duty to complete an assessment and accepted it owed Ms X the prevention duty.
41. The Code says housing authorities should contact the landlord at an early stage. The Council contacted Ms X’s landlord at the time it accepted its prevention duty and so acted in line with the Code.
42. The Council provided Ms X with a personalised housing plan. It told her to seek a privately rented three-bedroom property which could be covered by her benefits. The Code encourages housing authorities to provide sufficient information and advice to applicants to encourage informed and realistic choices. The standard of the personalised housing plan provided to Ms X fell below the standard encouraged in the Code. This was fault. This fault meant Ms X did not have sufficient information to understand her options and meant she lost the opportunity to make an informed decision.
43. The Code says the Council should explain to households being evicted by private landlords they have the right to remain in their properties until they receive the bailiffs warrant, but they may incur costs. The Council did not do so, which is fault. This fault meant Ms X did not have sufficient information to understand her options and meant she lost the opportunity to make an informed decision.
44. The Council accepts it should have accepted its relief duty to Ms X in December, when her eviction notice expired. The Council not considering its relief duty was fault. This fault meant the Council also did not consider whether it was reasonable for Ms X to remain in the property or whether it needed to provide Ms X with interim accommodation. It also did not review her personalised housing plan at this stage. This caused Ms X further unnecessary uncertainty.
45. The Council tells the Ombudsman that, in hindsight, it would not have offered Ms X alternative interim accommodation after her eviction notice expired in December because it would have considered her accommodation to be suitable in the short term. The Council explained its rationale showing consideration to Ms X’s circumstances at the time. The Code says the Council should consider affordability in its assessment. However, the Council did not complete an affordability assessment at the time, and its records show no consideration of the financial cost of remaining in her accommodation until the bailiff warrant. The Council states it would have considered affordability in its suitability assessment, and with full information about court costs still considers the private rented accommodation would have been suitable interim accommodation. I consider that on balance, it is likely the Council would have considered her private rented accommodation as suitable interim accommodation. In any case, there is no statutory right of review regarding the suitability of interim accommodation. I consider the Council’s failure to assess the suitability of her private rented accommodation at the time it should have accepted its relief duty did not impact Ms X’s housing arrangements at that time but did cause her ongoing uncertainty.
46. The Council accepted its main housing duty to Ms X in July 2024. The Code says where a council has all the information it needs to make a decision in relation to the applicant's priority need, it should be possible to issue a notification on or around day 57, so the day following the end of the relief duty. If the Council had accepted its relief duty in December, day 57 would have been around late January. The information the Council relied on in its decision about Ms X’s priority need was also available in late January. For these reasons, I consider the Council could have accepted its main housing duty in late January. Therefore, there was a seven-month delay in the Council accepting its main housing duty. This is fault.
47. During this time, the Council should have considered whether it was still reasonable for Ms X to remain in the property at each stage of the possession order or whether it should provide alternative temporary accommodation. There is no evidence it did so, which is fault. The Council provided bed and breakfast accommodation the day before the bailiffs were due to evict her which indicates the Council considered her accommodation was no longer suitable at that stage. However, the Council’s lack of documentation of its consideration of suitability throughout the possession order is fault.
48. Temporary accommodation is the accommodation a council provides until it can end the main duty. Temporary accommodation has a right of review. The Council’s delay accepting its main duty meant Ms X could not use her right of review before July 2024. If the Council had accepted its main duty without delay, both Ms X’s private rented accommodation and the bed and breakfast accommodation would have been considered temporary accommodation with a right to review. There is no evidence Ms X raised concerns about the suitability of her private rented accommodation and I cannot say whether she would have used her right to review regarding her private rented accommodation. In any case, even if Ms X did appeal the suitability of her private rented accommodation, I consider on balance, it is most likely the Council would have considered her accommodation to be suitable. Therefore, I consider the fault in the Council’s delay accepting its main duty did not cause Ms X to remain in her accommodation until eviction.
49. However, case records show Ms X did contact the Council on several occasions prior to July 2024 complaining about the suitability of the bed and breakfast accommodation. I consider, if not for the fault, Ms X would have used her right of review regarding the bed and breakfast accommodation. Therefore, the Council’s delay in accepting its main duty caused Ms X and her children avoidable and unnecessary distress. I consider this injustice to be significant.
50. Mr X complains the Council should pay Ms X for the court fees she incurred. He says the Council’s actions and advice caused Ms X to stay in her private rented accommodation. As addressed in the paragraphs above, I find fault with the Council’s poor advice and lack of action regarding accepting its homelessness duties and completing timely suitability assessments. On the balance of probabilities, I consider if but for the fault, Ms X would have remained in her private rented accommodation and incurred the court costs and so the outcome would have likely been the same. For this reason, I find no fault with the Council’s decision-making about repaying the court costs she incurred.
51. The Council says its decision to move from accepting its prevention duty straight to its main housing duty without accepting its relief duty was a one-off human error. It says it has addressed this issue with the staff member involved. I am satisfied with the action taken and do not consider a service improvement to be proportionate for this matter.
52. The Council has since introduced an assessment guide for officers to determine whether an applicant's current accommodation would be suitable for use as temporary accommodation even if it is not reasonable to occupy within the meaning of homelessness. I am satisfied this will support its officers and improve consistency in its assessments for applicants with circumstances similar to Ms X. I do not consider further service improvements to be appropriate.

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Action

53. Within four weeks of my final decision, the Council has agreed to:
1. provide a written apology to Ms X for the avoidable and unnecessary significant distress and uncertainty caused to her by the Council’s lack of decision-making and poor advice and its seven-month delay in providing her with the right to review the suitability of her temporary accommodation.
2. make a payment of £1000 to Ms X to remedy the avoidable and unnecessary distress and uncertainty caused by the fault as detailed above.
54. 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.
55. The Council should provide us with evidence it has complied with the above actions.

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Decision

56. I find fault causing injustice. The Council will apologise and make a payment to Ms X to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman