The Investigation

The complaint

1. Mr Y complained on behalf of Ms X about the Council’s actions after Ms X’s landlord issued a notice for her to leave her private tenancy. In particular, that the Council:

• told Ms X to remain in her property until the court granted a bailiff warrant;

• delayed accepting homelessness duties and providing interim accommodation;

• provided unsuitable interim accommodation;

• delayed responding to Mr Y’s complaints; and

• failed to respond to the complaint properly.

2. As a result, Ms X experienced significant and avoidable distress and financial loss. There was also injustice to her child, who has a serious illness, from the unsuitable accommodation.

Legal and administrative background

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

5. We make findings based on the balance of probabilities. This means that we look at the evidence and decide what was more likely to have happened.

6. 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)

Ending private tenancies

7. 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.

8. 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 by which the tenant has to leave; or

• set a date for a possession hearing; or

• dismiss the case.

9. 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

10. 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.

11. Someone is threatened with homelessness if they have a valid section 21 notice to leave a private tenancy which expires within 56 days. 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. (Housing Act 1996, section 195)

12. 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)

13. 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)

14. 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. (Housing Act 1996, section 189B)

15. If, at the end of the relief duty, 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. This is called the main housing duty. The accommodation a council provides until it can end this duty is called temporary accommodation. (Housing Act 1996, section 193)

16. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of their household. This duty applies to interim accommodation and accommodation provided under the main housing duty. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)

What we have investigated

17. Mr Y complained to us in December 2024 about events from June 2023 onwards. Part of the complaint is therefore late and the restriction in paragraph four applies. We have exercised discretion to investigate matters from June 2023. Ms X was dealing with homelessness as well as a seriously ill child alone, she did not have support from Mr Y until later, and the Council delayed dealing with the complaint. These are good reasons Ms X could not complain sooner.

How we considered this complaint

18. We considered the complaint and the information Mr Y provided.

19. We made written enquiries of the Council and considered its response along with relevant law and guidance.

20. We referred to our Guidance on Remedies, a copy of which can be found on our website.

21. We gave the complainant and the Council a confidential draft of this report and invited their comments. We took any comments into account before issuing the final report.

What we found

What happened

22. Ms X lived in a privately rented property with her two children. In mid-June 2023, Ms X’s landlord issued a section 21 notice. Ms X approached the Council for help in late June. The Council arranged an appointment with Ms X for three weeks later.

23. Ms X attended the Council’s offices in person for an assessment. At the end of July, the Council’s records say it accepted the prevention duty. Ms X says she did not receive a letter or personalised housing plan (PHP). The records show the Council sent Ms X a link to register with its online portal to access her PHP. The link expired after 24 hours.

24. The Council contacted Ms X’s landlord. The landlord told the Council they were selling the property and would go to court to seek possession if Ms X did not leave when the notice expired in August. Ms X told the Council her landlord was increasing the rent from September by £200 a month. Ms X said she could not afford this.

25. In early August, Ms X’s youngest child, B, was diagnosed with a serious and life-threatening illness. Ms X told the Council the next day. The section 21 notice expired nine days later.

26. In early September, the Council sent Ms X information to help her look for alternative privately rented accommodation. The Council’s records show it explained the possession and eviction process to Ms X and told her not to leave the property until she had a warrant from the bailiffs.

27. In early October, the hospital wrote to the Council about B’s care. The hospital said B would receive treatment for over two years. Throughout treatment, B would be immunocompromised and so at greater risk of catching infections. The clinical nurse specialist set out what B needed from accommodation.

• “It is essential that [B] lives in a safe, quiet, uncrowded and clean environment in order to reduce any preventable risks.”

• Any property “should be free of mould and damp as their presence significantly increases the risk of fungal infections.”

• Shared accommodation was not suitable because of B’s vulnerability.

28. In February 2024, the Council asked its medical advisor for an assessment of B’s needs and the implications for Ms X’s housing. The medical advisor responded in early March. The medical report said the family needed a self-contained property on the ground floor or with a lift if above ground floor. The Council noted Ms X had priority for accommodation within the borough because of B’s treatment.

29. In April, Ms X’s landlord registered a claim for possession with the court. In late June, the court granted the landlord possession. The court made a charging order of £46.03 a day from 20 July until Ms X moved out of the property as well as the landlord’s court costs of £422.50 and rent arrears of £2,986.95.

30. Ms X told the Council about the possession order. She said she could not afford the charge of £46.03 a day. In reply, the Council said:

“Please do not leave your address at any point in time until a Bailiff warrant of eviction has been issued by the landlord [as] I have explained this to you previously.

"If you leave your property before the appropriate time you will have made your self intentionally homeless.”

31. In late July, Mr Y complained to the Council on Ms X’s behalf. He said:

• the Council was wrong to tell Ms X to wait for a bailiff warrant;

• it was unreasonable for Ms X to remain in the property and the Council should accept the relief duty and provide interim accommodation; and

• Ms X could not afford the charging order or the increased rent.

32. The Council responded to the complaint in mid-September. It did not uphold the complaint. It said it had accepted a homeless application and was working with Ms X to prevent her homelessness.

33. Mr Y asked the Council to consider the complaint at stage two. He said the stage one response failed to address any of the complaint.

34. The Council accepted the relief duty at the beginning of October. A few days later, Ms X received a notice from the bailiffs that she would be evicted on 28 October.

35. Ms X’s allocated officer told Mr Y that the Council would provide interim accommodation one week before Ms X was evicted “as instructed by my team leader”. On 21 October, the Council offered Ms X interim accommodation. This was outside the borough. The Council’s records show it had nothing in the borough available that day and the property was the closest available which met the other medical requirements. Ms X moved in.

36. Mr Y told the Council the property was too far from the hospital where B had treatment. He said that until the move, nurses visited B at home once a week to do essential blood tests. The family was now too far away for the nurses to visit. Instead, Ms X had to take B to the hospital, putting B at risk as it was a long journey. Mr Y said the property had damp and mould and provided pictures. He reminded the Council that B needed to be in a clean property free of damp and mould. In reply, the Council said the property was the only one available on the day. It said it had asked the property provider to address the damp and mould.

37. The Council responded to Mr Y’s complaint at stage two in early November. It said:

• it was sorry for the delay responding at stage one and stage two;

• it did not accept that the Council had to offer interim accommodation as soon as Ms X received a possession order; and

• it did not uphold the complaint because it was “clear from the housing file that efforts were being pursued to rehouse” Ms X.

38. The same day, the Council offered Ms X alternative interim accommodation within the borough. Ms X accepted and moved in a few days later.

39. The Council accepted the main housing duty in early December.

Analysis

Advice and duties

40. The Homelessness Code of Guidance says councils will have to decide, in every case, at what point a private tenant served a notice becomes homeless (6.31). The Code says:

• councils should not have a blanket policy about when an applicant is homeless after a section 21 notice expires (6.33);

• councils should consider the following factors when deciding if it is reasonable for a private sector tenant to remain in a property after a section 21 notice has expired:

  • the position of the landlord and whether the landlord intends to proceed with possession;

  • the preferences of the tenant;

  • 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 (6.33).

• it is unlikely to be reasonable for a tenant to stay beyond the expiry of a notice if the landlord intends to recover possession and there would be no defence to an application for a possession order (6.35);

• it might be reasonable for a tenant to remain after the notice expires if a council is taking steps to persuade the landlord to let the tenant stay for a “reasonable period” to give the council and tenant time to find alternative accommodation (6.35);

• it is highly unlikely to be reasonable for a tenant to continue to occupy a property beyond the date a court has ordered them to leave (6.36);

• it is not reasonable for a tenant to remain in a property until the point a court issues a warrant to enforce a possession order (6.37).

41. The Council repeatedly told Ms X to remain in the property until she received a bailiff warrant. This was fault. The evidence shows the Council takes a blanket approach in deciding how long it is reasonable to remain beyond a notice. This is directly contrary to the Code and is fault.

42. What the Council should have done is consider, at each stage of the possession process, whether it was reasonable for Ms X to remain in the property.

43. There is no evidence the Council considered whether it was reasonable for Ms X to remain in the property after the section 21 notice expired. Failure to do so was fault. We cannot say what the Council would have decided had it properly considered the matter. Although the landlord was clear there was no possibility of preventing the eviction, at that time the property was affordable and otherwise suitable for Ms X. It might, therefore, have been reasonable for her to stay beyond the notice at least for a short period. However, the Council’s failure leaves avoidable uncertainty, which is an injustice.

44. Ms X told the Council about a rent increase from September 2023. The Council should have considered whether Ms X could afford the new rent. If she could not, the property would likely no longer be reasonable for her to occupy. The Council failed to consider this, which was fault. The evidence is that Ms X could not afford the rent increase. She continued to pay the same amount in rent as she had before until March 2024, when she started receiving disability benefits for B. From then, she paid the full rent. On balance, therefore, Ms X would have paid the full amount from September if she could. But for the fault, the Council would have decided Ms X was homeless in September 2023 and provided interim accommodation. Instead, Ms X remained in the property and accrued avoidable rent arrears and the court costs of the possession process. This is an injustice to Ms X.

45. Having failed to act in September 2023, the Council should have considered whether it was reasonable for Ms X to remain in the property before the court granted possession in July 2024. The Code says it is highly unlikely to be so. There is no evidence the Council considered this or recorded its reasons for departing from the Code. Failure to do so was fault. Ms X told the Council about the charging order and that she could not afford this. She asked the Council for advice. It failed to respond and this was fault. The Council should have accepted the relief duty and provided interim accommodation. Instead, Ms X spent 93 days in the property under the charging order. This means she now owes £4,280.79 on top of the court costs and rent arrears. This is a significant and avoidable financial loss to Ms X.

46. The Council should have accepted the relief duty in September 2023. It did not do so until October 2024. This delay of 11 months resulted in delay accepting the main housing duty. But for the fault, the Council should have accepted the main housing duty in November 2023. It did not do so until December 2024. This denied Ms X her statutory right to review the suitability of her accommodation and caused avoidable frustration.

Interim accommodation

47. The Council should have provided Ms X with interim accommodation in September 2023. It did not do so until October 2024. This delay was fault.

48. The Council knew and accepted that Ms X needed to stay in the borough because of B’s medical care. Despite this, it placed them out of the area. This was unsuitable. Providing unsuitable interim accommodation was fault.

49. We accept the Council’s evidence that the property was the only one which met B’s medical needs available that day. But there is no reason the Council had to wait until that day to look for a property. It knew for over a year that Ms X needed to leave her property. The evidence shows the Council had a blanket policy of providing interim accommodation one week before the bailiffs executed a warrant. It was this blanket policy and not regard for the circumstances of Ms X’s case that led the Council not to look for interim accommodation sooner. This was fault.

50. On balance, had the Council acted without fault it would have provided interim accommodation within the borough. Instead, Ms X and her children spent 18 days in unsuitable accommodation. Although a relatively short time, this caused a significant injustice. B was in the middle of treatment for a serious illness and particularly vulnerable. The nurses could no longer visit weekly and instead Ms X and B had to travel to the hospital. The property was mouldy and damp. This caused Ms X significant and avoidable distress and put B at avoidable risk of harm.

Complaint handling

51. The Council’s policy says it will respond to stage one complaints in 10 working days and stage two complaints within 20 working days.

52. It took the Council 41 days to respond to the stage one complaint and 31 days at stage two. These delays were fault. The Council has accepted fault and apologised for its delay. An apology is a suitable remedy for the avoidable frustration caused.

53. However, the Council’s complaint responses were poor. At neither stage of the process did it respond to the complaint Mr Y made. This was fault. It caused avoidable frustration, which is an injustice.

54. In response to a previous investigation, the Council told us it provided training to 52 housing officers on writing good complaint responses in March to May 2024. This training predates the Council’s responses to Mr Y’s complaints in this case and it is evident the Council’s complaint handling in this area has not improved. We have made further recommendations to address this.

55. The Council told us, in response to recommendations in a previous investigation, about its complaint handling improvement project. This is a comprehensive training programme, including video guides for all staff and updates to its complaint handling computer system. The Council told us it planned to roll this out from September 2024. It should update us on its progress.

Conclusions

56. The Council is at fault for:

• wrongly telling Ms X to remain in her property until the court granted a bailiff warrant;

• failure to consider whether Ms X was homeless when her section 21 notice expired;

• failure to recognise Ms X was homeless once her rent increased or when the court granted possession;

• delay accepting the relief duty and providing interim accommodation;

• providing unsuitable interim accommodation and waiting until Ms X was about to be evicted before looking for accommodation;

• delay responding to the complaint; and

• poor complaint handling.

57. These faults caused Ms X significant and avoidable financial loss from the court process and avoidable rent arrears. She experienced significant frustration, distress, and uncertainty and lived in unsuitable interim accommodation for three weeks. B experienced avoidable risk of harm and distress at an already difficult time. We recommend action for the Council to remedy this injustice to Ms X and B.

58. The Council is also at fault for its blanket approach of telling homeless applicants to remain in their property until the court grants a bailiff warrant instead of considering the circumstances of each case. It is likely this will cause injustice to others and so we recommend action for the Council to prevent further injustice.

Recommendations

59. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

60. In addition to the requirements set out above, within four weeks of the date of this report the Council should:

• apologise to Ms X, considering our guidance on Making an effective apology;

• pay Ms X £7,690.24, being the avoidable rent arrears, court costs, and charging order resulting from the failure to provide interim accommodation when Ms X first became homeless;

• pay Ms X a further £750 to recognise her avoidable distress and uncertainty; and

• pay B £1,000 to recognise the avoidable distress and risk of harm.

61. To prevent the faults causing injustice to others, within four weeks of the date of this report the Council should:

• identify all open cases where an applicant who may be in priority need has remained beyond the expiry of a section 21 notice;

• 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;

• for those applicants it decides are homeless and might be in priority need, provide interim accommodation;

• for those applicants it decides can remain despite the notice having expired, review this decision before each stage of the possession process or with any other change in circumstances.

62. The Council recently completed its action plan to address failings in its homelessness service following a previous report by the Ombudsman. We have not repeated those recommendations here. However, within three months of the date of this report the Council should take the following action to improve its services.

• Provide training and guidance to relevant staff on 6.29 to 6.38 of the Homelessness Code of Guidance, including:

  • minimum expectations for demonstrating decision making in case notes;

  • the importance of making a considered decision in each case on the facts of that case and not applying a blanket policy; and

  • the increasing likelihood an applicant is homeless as the possession process proceeds and the need to revisit decisions about whether an applicant is homeless before each stage and with any other relevant change in circumstances.

• End the blanket practice of waiting until one week before bailiffs evict an applicant to provide interim accommodation and instead approach each case on its own facts and circumstances.

• Identify and implement a process to enable officers to plan for and manage likely future accommodation supply and demand, especially where applicants are assessed as needing to remain in the borough. For example, tracking cases of applicants who will be owed interim accommodation whose notice is due to expire/homelessness is imminent and matching them to available accommodation, allowing the Council to make better strategic use of available accommodation to meet the needs of individual households.

• Share a copy of this decision with staff responsible for responding to complaints about housing along with the Council’s stage one and stage two responses to identify learning and improve complaint handling.

• Update us on the roll out of the complaint handling improvement project, including how the Council plans to review its effectiveness.

63. The Council has accepted these recommendations.

Decision

64. We have completed our investigation into this complaint. There was fault by the Council causing injustice to Ms X and B. The recommended actions are a suitable remedy for the injustice caused.

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