The Ombudsman's final decision:
Summary: Mr B complained the Council failed to help when he faced eviction from his private tenancy which he believed to be unlawful. The Ombudsman finds the Council’s decision-making in respect of the status of a private tenant facing alleged unlawful eviction was affected by fault. The Council has agreed to apologise and to make a payment to Mr B for the uncertainty caused by this.
- The complainant, whom I shall call Mr B, complains the Council failed to help when he faced illegal eviction from his private tenancy; failed to stop the eviction; and bullied and threatened him. He also complains that the Council discriminated against him on grounds of race.
The Ombudsman’s role and powers
- 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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 considered all the information provided by Mr B about his complaint. I made written enquiries of the Council and took account of the response it provided. I considered the relevant legislation. I provided Mr B and the Council with a draft of this decision and considered all comments received in response.
What I found
- The principal legislation relevant to this complaint is the Protection from Eviction Act 1977 (‘the Act’), which gives the Council powers to investigate complaints of illegal eviction, and to prosecute a landlord responsible for unlawful eviction.
- With reference to this complaint, the pertinent section of the Act is 3(A), as this sets out the types of tenancy which are excluded from the action described above. The section is as follows:
3A Excluded tenancies and licences
(1) Any reference in this Act to an excluded tenancy or an excluded licence is a reference to a tenancy or licence which is excluded by virtue of any of the following provisions of this section.
(2) A tenancy or licence is excluded if -
(a) under its terms the occupier shares any accommodation with the landlord or licensor; and
(b) immediately before the tenancy or licence was granted and also at the time it comes to an end, the landlord or licensor occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part.
(3) A tenancy or licence is also excluded if -
(a) under its terms the occupier shares any accommodation with a member of the family of the landlord or licensor;
(b) immediately before the tenancy or licence was granted and also at the time it comes to an end, the member of the family of the landlord or licensor occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part; and
(c) immediately before the tenancy or licence was granted and also at the time it comes to an end, the landlord or licensor occupied as his only or principal home premises in the same building as the shared accommodation and that building is not a purpose-built block of flats.
Background to the complaint
- Mr B lived in a shared house from November 2015. At the start of his occupation of the property Mr B had been given a blank assured shorthold tenancy agreement (AST) but had no other contract or agreement. In March 2017, he contacted the Council because following disagreements within the house he had been asked to leave. On 12 February, he had received an email from the landlord’s son, who also lived in the property, advising him the email was an eviction notice and that he was required to leave by 2 April or face eviction. Mr B told the Council he wanted to stay in the property and that advice from Shelter was that the eviction would not be lawful. The Council agreed that based on the assumption that Mr B was an assured shorthold tenant it would contact the landlord to point out the legal process for eviction: it did this on 31 March. I shall return to this issue later in this statement.
- Mr B also complained to the Council about disrepair in the property. He felt this would delay any eviction as the landlord would need to address the repair issues and then wait six months before proceeding. The matter was passed to an enforcement officer for arrangements to be made to visit the property for inspection of the reported disrepair. Then, on 8 May Mr B told the Council he had received an email from the landlord saying he would take proceedings in court to secure eviction. The Council arranged to visit Mr B on 16 May 2017.
- On the arranged date, two officers attended Mr B’s home. Mr B complained afterwards that they were late for the appointment, that he had not been expecting two officers, that one officer produced his identification, and that they were aggressive and intimidating. He said they refused to do the inspection which had been agreed. One officer told him to contact a solicitor and provided a name. Mr B felt the officers who visited were biased in favour of the landlord.
- The Council’s record of the visit says that Mr B would not allow access for inspection and wanted to discuss it outside in the rain, which they did. The records say Mr B provided no notes about his occupancy and was obstructive and dismissive when asked questions. The officers recorded that he was advised to seek legal advice.
- In the subsequent complaint response about the actions of the officers at the visit, the Council said the officers had denied the allegations made against them. They said the second officer had been asked to attend due to his knowledge and experience in tenancy relations work, and that when suggesting Mr B seek legal advice they provided contact details for specialist housing solicitors. The Council said there was no evidence to support the assertion that the officers had discriminated against Mr B or had acted in a bullying manner. The Council has no records of the interviews with officers which informed this response.
- The accounts of what happened provided by Mr B and by the Council are very different. Further investigation by the Ombudsman would be unlikely to assist and so in the circumstances of the case, being unable to sufficiently establish the facts, I make no finding on this part of the complaint. However, the lack of records of the Council’s interviews with officers to inform the complaint response was fault.
Action in respect of the eviction
- The Council spoke to the landlord on 15 May. He said he had bought the house for his son, who had arranged for various people to stay there with the money they paid going into an account to pay for repairs etc. He said Mr B had no signed agreement to stay, and other occupiers of the property had asked the landlord’s son to ask him to leave. They had then given Mr B a written notice to leave, expiring on 31 March, followed by a further notice expiring on 22 May. The Council noted its records: “appears he may have resident landlord – the son found him and gave him permission to stay, contract was not negotiated with owner or renegotiated”.
- On 22 May, the Council spoke to Shelter which had consulted its legal department and had taken the view Mr B might be on an AST as the landlord’s son was effectively just acting as an agent for his father. The Council’s notes then show the landlord called asking about the advice from Shelter as he had received conflicting advice from solicitors who considered Mr B was an excluded occupier. The Council said it would investigate to determine whether eviction was lawful.
- On 23 May, Mr B told the Council the landlord had changed the locks to the property. The Council asked Mr B to ask Shelter to put its opinion about his tenure in writing to it, and it said it would be taking internal legal advice and would then be in touch. The Council provided Mr B with contact details for the homelessness service. The following day the Council referred the case internally for legal advice in respect of Mr B’s tenure. It told Mr B it was investigating whether an offence had been committed under the Protection from Eviction Act 1977 but had been unable thus far to ascertain if the eviction was illegal. It said it could not reinstate him to the property and again it provided contact details for the homelessness team. Mr B did not pursue a homelessness application.
- On 25 May, Shelter sent an email to the Council to say it had advised Mr B he had an AST. It said this gave him statutory protection and that it believed therefore Mr B should seek legal representation to apply for an injunction to be readmitted to the property: it said it had provided him with a list of solicitors to contact for further assistance.
- On 30 May, the Council tried to arrange to get a formal detailed witness statement from Mr B to assist with its investigation of possible unlawful eviction. A mutually acceptable meeting date could not be arranged until 13 June 2017, and once the statement was obtained the Council promptly passed it to its legal team.
- On 28 June, Mr B sent an email to the Council. He had been given to 29 June to remove his goods from the property and he was worried the landlord would destroy them. The Council contacted the landlord who gave an assurance this would not happen and he invited Mr B to arrange collection of his goods.
- On 29 June, there was an internal meeting at which the Council says it assessed the evidence Mr B had provided and decided the relevant legislation was not satisfied and that proceedings were therefore not justified. There is no written record of the discussion and decision-making, and that is fault.
The Council decides Mr B is an excluded occupier
- On 7 July, more than three months after Mr B raised the matter with the Council, it sent Mr B its decision on the matter of unlawful eviction. It apologised for the time taken in arriving at a conclusion, saying the issues raised were complex and required expert legal advice. It said it had decided that under the terms of the Protection from Eviction Act 1977 (‘the Act’), as amended by the Housing Act 1988, Mr B was an excluded occupier. It said that Section 3A(3)(a) of the Act effectively meant that as long as the landlord's son lived with Mr B in the property as an occupier, Mr B was an excluded occupier. It said it did not matter for the purposes of that section where the landlord lived. It said that therefore, as no offence had been committed, it could not commence any criminal law proceedings.
- Mr B disagreed with the Council’s decision. He argued that s3A(3)(c) of the Act did not apply in his case and that all sections (a), (b) and (c) must apply if he is to be deemed an excluded occupier. The Council replied stating its view that this was not the case as the wording of the relevant sections did not include an ‘and’ between subsections (a) and (b).
- I disagree with the Council’s interpretation. Subsection (a) of s3A(3) of the Act is followed by a semicolon before subsection 3(b) begins. The semicolon is not followed by an 'or' which would be usual in cases where it is not mandatory to satisfy both conditions 3(a) and 3(b). Subsection 3A(3)(b) is then followed by an 'and' which confirms, in my view, that all three conditions must be met for the tenancy to be excluded. This kind of construction is entirely common in the drafting of legislation.
- The leading practitioner text (The Encyclopaedia of Housing Law and Practice) provides the following summary: "The occupier has the use in common with a member of the landlord’s family of any accommodation, and (a) immediately before the grant of the tenancy or licence, and (b) when it comes to an end, the member of the landlord’s family occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part, and (c) the landlord occupies as his only or principal home other premises in the same building, not including a building which is a purpose-built block of flats"
- For the reasons set out above I consider the Council misdirected itself, and as a result failed to properly consider its discretion to exercise its powers prosecute Mr B’s landlord under s6 of the Act. That failing was fault. In addition there was some delay by the Council in reaching its decision, although Mr B’s own actions also contributed to the overall delay.
Injustice to Mr B
- As already described, the law gives the Council a power to take legal action against a landlord for unlawful eviction, rather than imposing a duty. So it will always be a matter for the discretion of the Council whether it takes such action or not. This means that it is not possible to say with certainty what the outcome would have been if fault identified above had not occurred. The Council might have taken action against the landlord, or it might not. Mr B is therefore left with uncertainty about whether the outcome for him might have been different.
- In recognition of the injustice caused to Mr B, as described above, I recommended that within four weeks of the date of the decision on this complaint the Council:
- Provides Mr B with a formal written apology; and
- Pays him £350.
- The Council has agreed to my recommendations.
- I have completed my investigation as set out above.
Investigator's decision on behalf of the Ombudsman