Summary: The Council is at fault in its handling of homelessness applications where the applicant has a valid section 21 notice to leave a private tenancy. The Council has agreed to act to prevent injustice to current applicants. The actions already identified by the Council are appropriate steps to improve its services.

The complaint

1. During an investigation, we identified potential fault which may have caused injustice to others. Using our powers under section 26D of the Local Government Act 1974, we opened this investigation into the Council's handling of homelessness applications where the applicant is served a valid section 21 notice to leave a private tenancy.

Back to top

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. 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.
4. 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)
5. 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)

Back to top

How I considered this complaint

6. I considered evidence provided by the Council in response to enquiries and examined files and documents on the Council’s systems.
7. I considered relevant law and guidance, including the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities as well as our Guidance on Remedies and Principles of Good Administrative Practice.
8. The Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

9. Where a tenant has an assured shorthold tenancy, the landlord can issue a section 21 notice (s21) 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.
10. 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.
11. 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.

Homeless law and guidance

12. 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.
13. 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(5)) The Councils owes the prevention duty to applicants it is satisfied are threatened with homelessness.
14. 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) The Council owes the relief duty to applicants it is satisfied are homeless.
15. 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)
16. The 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 s21 notice expires (6.33).
• councils must consider the following factors when they decide if it is reasonable for a private sector tenant, who has been served with a valid s21 notice, to remain in a property after the notice has expired:
1. the position of the landlord and whether the landlord intends to proceed with possession;
2. the preferences of the tenant;
3. the financial impact of court action and any build-up of rent arrears on both landlord and tenant;
4. the burden on the courts of unnecessary proceedings where there is no defence to a possession claim; and
5. 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 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).

Background

17. The Council agreed to our recommendation in a previous investigation to provide training to its staff on the sections of Chapter 6 of the Code of Guidance about tenants served a s21 notice.
18. The Council delivered this training in May 2024. It provided us with a copy of the presentation. This included instructing officers to “record when applicants have elected to assert their legal right and remain in their accommodation until a warrant is issued but otherwise to offer interim accommodation” in relevant cases.
19. We received further complaints, covering the period after May 2024, which indicated the Council’s practice had not improved.

The investigation

20. We asked the Council to identify all the homelessness cases it received between May 2024 and April 2025 where the applicant had received a s21 notice. This was 315 cases.
21. We visited the Council’s offices and examined the records in 164 relevant cases. We looked at cases from across the period to get a representative picture of the Council’s processes and practices over time.
22. In examining the records, we were looking for evidence of whether and how the Council had:
• recorded an applicant’s decision to remain in the property, having been advised of their right to do so
• considered and recorded if it was reasonable for applicants to remain at each stage of the possession process, with regard to Chapter 6 of the Code
• ensured applicants it had reason to believe might be in priority need were not evicted by bailiffs because the Council did not provide interim accommodation

What we found

23. In the 164 relevant cases we looked at, there was, on balance, fault in the Council’s application of Chapter 6 of the Code in 83 of them. 50% of the time, the Council is getting it wrong.
24. The evidence does not show that this is affected by time. We found the same proportion of fault in cases in 2025 as in the period immediately following the training the Council delivered in May 2024. There is no trend of improvement.
25. We found several cases where the Council instructed applicants to remain in their properties until the court and eviction process was complete. This was accompanied by a warning that if the applicant left earlier, they might be found intentionally homeless and so owed no further duty by the Council. This advice, given in the form of what appeared to be a standard form of words and without any evidence the factors in the Code were considered, was fault.
26. The records showed 31 households evicted by bailiffs. Of those, there was reason to believe the applicant had priority need in 27 cases. In none of those 27 cases did we find evidence the applicant had chosen to remain.
27. This is almost a quarter of all the cases where we had enough information to say, on balance, there was reason to believe the applicant might be priority need and 16% of all the cases we looked at. There were also four cases where we noted the applicant was currently in the property pending an imminent eviction. Leaving households to be evicted because of a failure to provide interim accommodation was fault.
28. In at least 61 of the 164 cases (37%), we noted that the s21 had already expired before the applicant approached for help. However, in three of those cases the applicant told the Council they had come into the Council’s Resident’s Hub with the s21 and been advised to return once they received court documents.
29. These three cases were spread out in time and there was no reason to think the applicant had not told the truth. We are concerned that the records in these cases indicate a wider practice of gatekeeping by the Council. The earlier people approach for help, the more time the Council has to prevent their homelessness.
30. A recurring trend across all the cases we considered, and the underlying cause of much of the fault we found, was inconsistent and incomplete record keeping. There were very few examples of decision making in relation to the tests in Chapter 6. We found the Council had recorded its decision making in just 15 cases at the point a notice expired and 14 cases at possession stage.
31. There were often few or no records at all beyond an initial assessment. 69 of the 315 cases identified by the Council have been open for more than 56 days, with no decision on a duty at all. 20 of those cases have been open for more than 300 days. In a few cases, we found the Council had provided interim accommodation but had still not accepted any duty months later.
32. This inaccurate record keeping, delay, and failure to make decisions giving rights of review and appeal was fault.

Injustice

33. The Council’s systemic poor practice has caused injustice to the applicants in individual cases. The Council’s failure to issue formal decisions means applicants did not receive decisions giving them statutory rights of review and appeal. The Council’s failure to properly consider the tests in Chapter 6 of the Code means it is likely applicants remained in accommodation longer than necessary, facing avoidable court costs. Households with children faced the distress and expense of eviction by bailiffs because the Council did not offer interim accommodation.
34. It is likely these same faults will continue, and so continue to cause injustice to others, unless the Council takes steps to improve.

The Council’s actions and plans

35. The Council recognises the scale of the problem and acknowledges it needs to improve. As part of our investigation, the Council shared detailed information about the steps it is taking to improve. This includes:
• A manual for staff setting out expectations and requirements, with direct reference to the Code of Guidance
• Regular and structured case reviews and supervision by managers as well as oversight of decisions to ensure quality and identify gaps or errors
• An assessment form to guide officers through the relevant questions to reach a decision on whether it is reasonable for an applicant to continue to occupy beyond the expiry of a notice and/or beyond the date on a possession order and to demonstrate decision making
• A template for managers to audit cases to ensure minimum standards are met and identify any learning needs
• A Training Officer to develop training plans for all roles
36. These interventions are welcome and if applied consistently, should help the Council to ensure the faults identified in this investigation do not recur.
37. We are conscious, however, that the Council receives a large volume of homeless applications. It is important that the Council enables its officers, so far as it can, to make sound decisions as efficiently as possible. In conducting our investigation, we observed the number of separate systems and processes officers used on a single case and the number of different teams or officers responsible for different aspects of a case. We found this resulted in duplication of effort and inconsistency as well as gaps and mistakes. As part of its larger transformation plans for the service, the Council may wish to consider mapping case workflows with a view to streamlining its process. Alongside the clear expectations and guidance set out above, this may make it easier for officers to record the information required and so increase the likelihood they do so.

Back to top

Action

38. It is not proportionate or realistic to expect the Council to contact every applicant where we found the Council failed to make a proper decision or failed to provide interim accommodation. Rather than remedy past injustice, therefore, we have sought to address current injustice and ensure that the Council does not continue to cause this injustice in future.
39. To prevent the faults we have identified causing injustice to others, within twelve weeks of this decision the Council should:
• identify all open cases where an applicant 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 or record a clear decision that despite the property being unreasonable to continue to occupy, the accommodation remains suitable in the short term;
• 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.
40. In carrying out the above, the Council should prioritise those cases where the applicant has received a notice of eviction.
41. For those cases where the Council decides it owes an immediate interim accommodation duty, consider whether the applicant has experienced an injustice because of the failure to make this decision sooner and offer an apology along with any other remedy necessary to recognise the injustice in the individual case. This might, for example, mean paying the amount of any court costs or, if the condition of the property is such that it is unsuitable, a financial remedy in line with our guidance.
42. We are satisfied that the Council has identified the actions necessary to improve its service. The Council should provide a report to the relevant overview and scrutiny committee six months after implementation of the changes, evaluating their effectiveness in addressing the faults identified in this report and identifying any further improvements required.
43. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

44. We found fault causing injustice. The recommendations are a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman