The Ombudsman's final decision:
Summary: Mr X complained that the Council did not let him use its rent in advance and deposit scheme to rent out his property when taking on his latest tenant. Mr X says the Council has applied a blanket-ban for the use of his property on the scheme without explanation. The Ombudsman did not find fault with the actions of the Council.
- Mr X complained:
- The Council did not let him use its rent in advance and deposit scheme, which I will refer to as the “bond scheme” in this statement, to rent out his property when taking on his latest tenant, whom I shall refer to as “Ms Y”.
- The Council has applied a blanket-ban for the use of his property on the bond scheme without explanation.
- The Council has incorrectly refunded a deposit bond to his previous tenant on the back of a complaint about the standard of his property.
What I have investigated
- I have investigated Mr X’s complaints about the Council not letting him use the bond scheme for his current tenant, the ban on future tenants for his property and the Council not explaining its reasons.
- I have not investigated Mr X’s complaint about the Council refunding the deposit bond to his previous tenant. I have explained this within the section of this decision titled “Parts of the complaint that I did not investigate”.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- If we are satisfied with a council’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)
How I considered this complaint
- I have considered the information provided by Mr X and the Council including:
- Complaint correspondence with Mr X;
- The Council’s policy on its bond scheme; and
- Correspondence with Ms Y.
What I found
Council Policy for Rent in Advance and Deposit Scheme
- The Council’s rent in advance and deposit scheme (bond scheme) is designed to help homeless people access accommodation in the private sector.
- The Council policy outlines that before starting a tenancy under the scheme it needs to contact the landlord to confirm details of the letting and check the conditions of the tenancy.
- A Council bond requires a written agreement between the Council and the landlord. A landlord cannot transfer a bond to another property or tenant.
- If there are any queries regarding the condition of a property, the Council will require detailed information on damages and may arrange to inspect the property.
- Any request for the use of the Council’s bond scheme must be approved by the Council’s Homelessness and Housing Advice manager and/or Service Manager for Housing Options.
Housing Standards Legislation for Private and Social Renting
- The Homes (Fitness for Human Habitation) Act 2018 requires landlords to keep properties in a state which are “fit for habitation” at the beginning and throughout a tenancy.
- The standards to consider when deciding if a property is “fit for habitation” are outlined by section 10 of the Landlord and Tenant Act 1985 and the 29 hazards outlined in the Housing Health and Safety (England) Regulations 2005 which include “damp and mould growth” and “excess cold” amongst other factors.
- Private tenants can complain to a council about the failure of a landlord to keep a property in good repair. The Housing Act 2004 gave Councils powers under the Housing Health and Safety Rating System (HHSRS) to inspect and assess the condition of tenanted properties and determine hazards.
- Mr X has historically rented a property to homeless families using the Council’s bond scheme. In May 2019, Mr X’s tenant covered under this scheme vacated the rental property and raised a complaint with the Council about Mr X and the property.
- On 10 May 2019, Mr X contacted the Council to request use of the Council’s bond scheme for any potential new tenant at his property which would be available from June 2019. The Council advised a member of staff would contact Mr X to discuss the bond scheme. The Council did not contact Mr X again at this point.
- On this same date, the Council provided Ms Y with information about its bond scheme and advised her to contact it before signing any tenancy agreement. Mr X and Ms Y had no connection at this time.
- Ms Y signed a tenancy agreement for Mr X’s property on 25 May 2019 with a move in date set for 1 June 2019.
- Ms Y contacted the Council on 27 May 2019 to advise she had agreed to a tenancy with Mr X. Ms Y acknowledged she had not contacted the Council in advance.
- Mr X contacted the Council to arrange use of the Council’s bond scheme for Ms Y’s tenancy in June 2019. The Council advised Mr X that since the tenancy was agreed prior to the Council’s involvement and the correct process had not been followed, Ms Y’s tenancy was not eligible for the Council’s bond scheme.
- Mr X complained to the Council about its decision. Mr X said that by acknowledging his enquiry email in May 2019 it had accepted him for use of the scheme since the property had previously been used for the scheme.
- The Council responded to Mr X’s complaint on 26 June 2019. The Council said:
- The tenancy progressed without any agreement from the Council to provide the bond to either Mr X or Ms Y.
- The Council does not offer the bond scheme until it has had the opportunity to review the condition of a property.
- Concerns had been raised about the condition of the property from the previous tenant and the Council remained concerned over the condition of the property. The Council advised the Private Sector Housing Enforcement Team could help Mr X comply with housing standards.
- It would not honour a bond on the tenancy for Ms Y as no agreement had been reached and it would be unable to recommend Mr X’s property for future use of the bond scheme until repairs were carried out.
- It had not permanently banned Mr X’s property from use of the bond scheme but needed to see an improvement in the condition of the property before it could consider future use.
- It had attended the property on 5 December 2019 which showed a hazard due to excessive cold but was aware that Mr X was looking to remedy this.
- Should Mr X remedy any hazards at the property it would consider his property for future use of the scheme.
- As the current tenancy was signed without the Council’s involvement it is not eligible for the bond scheme.
Refusal of the Council’s bond scheme for Ms Y’s tenancy
- The Council’s policy for its bond scheme sets out that a landlord cannot transfer a bond from a previous tenancy or another property. A prospective tenant must make an application for their tenancy which the Council will take to the landlord and form a written agreement. Any request must be approved by a manager in the Council’s housing or homelessness teams.
- Mr X says his email of 10 May 2019, and the Council’s acknowledgement of this email implies an acceptance by the Council for his property on the bond scheme.
- I have seen this email correspondence and do not consider that acknowledgement of receipt of this email is comparable to acceptance onto the Council’s bond scheme. The Council’s policy is specific in that a written agreement must be reached and approved by a manager prior to acceptance onto the bond scheme.
- While the Council did not contact Mr X back as promised in the email of 12 May 2019, Mr X did not make any further contact with the Council until after he agreed the tenancy with Ms Y. Mr X did not make more than an enquiry of the Council prior to agreement of the tenancy with Ms Y.
- The Council also confirmed to Ms Y that she would need to speak to the Council before agreeing to any tenancy to be eligible for its bond scheme.
- Ms Y has acknowledged she did not the Council prior to agreeing the tenancy with Mr X. As such, the Council was never given opportunity by Ms Y to register her proposed tenancy onto its bond scheme.
- I do not find fault with the Council for rejecting a retrospective application for the use of its bond scheme. The Council’s policy requires an application prior to agreement of a tenancy and the Council has followed its policy when rejecting Mr X’s application for use of the scheme.
Future refusal for use of the Council’s bond scheme
- The Council advised Mr X in both June 2019 and January 2020 that it would not consider Mr X’s property for future use of the Council’s bond scheme unless the condition of the property improved.
- The Council justified this decision by referring to complaints about the standards of the property raised by the previous and current tenants and the hazards noted during the HHSRS inspection.
- The Council is entitled to inspect any property prior to acceptance onto its bond scheme. It is appropriate for the Council to only accept properties that are “fit for habitation” under the legislative requirements placed on landlords. Acceptance of properties which do not meet the minimum legislative requirements would make a Council complicit to the provision of sub-standard living conditions.
- The Council has acted in line with its policy. I would not find fault with the Council’s decision to not accept a property for its homelessness bond scheme which is not “fit for habitation” in line with legislative standards.
- The Council has not applied a blanket-ban on Mr X or his property for use of the bond scheme. The Council has confirmed to Mr X it will consider future applications on their own merits should the correct process be followed. There is no fault with the Council’s decision or explanation to Mr X.
- I have completed my investigation as there was no fault in the Council’s actions or decision.
Parts of the complaint that I did not investigate
- I did not investigate Mr X’s complaint the Council refunded his previous tenant’s deposit bond. This is because Mr X has not suffered a personal injustice because of this.
- Mr X has not been financial disadvantaged since the Council refunded Mr X’s deposit bond to him.
- While Mr X’s property was not accepted on the bond scheme for Ms Y’s tenancy, this was not because of the refund of the previous bond. This was because neither Ms Y nor Mr X followed the Council’s process for acceptance onto the bond scheme.
Investigator's decision on behalf of the Ombudsman