Bracknell Forest Council (17 007 425)

Category : Housing > Private housing

Decision : Upheld

Decision date : 20 Feb 2018

The Ombudsman's final decision:

Summary: The Council was entitled to give advice around homelessness and evictions to Ms B and Mr Y. The Council has already apologised for some communication faults which is an appropriate remedy and therefore the Ombudsman will not make any further recommendations.

The complaint

  1. The complainant, Ms B, complains that the Council gave incorrect advice about evicting people from a property she owns because it failed to properly investigate whether he was a tenant. She states that this resulted in her losing six months rent and incurring legal costs.

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The Ombudsman’s role and powers

  1. 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)
  2. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended). Ms B used a representative, Mr C, to complaint to the Ombudsman on her behalf.
  3. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
  4. 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)

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How I considered this complaint

  1. I have:
    • Considered papers submitted by Ms B’s representative, Mr C.
    • Considered the Council’s comments about the complaint and the supporting documents it provided.
    • Provided both parties with the opportunity to comment on a draft decision and considered their comments.

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What I found

  1. The homelessness code of guidance states that councils should take steps to prevent homelessness wherever possible. This includes offering a broad range of advice and assistance for those in housing need.
  2. The code states that there are three stages where intervention can prevent homelessness:
    • Early identification – identifying categories of people at risk of homelessness and ensuring that accommodation and support is available.
    • Pre-crisis intervention – advice services and pro-active intervention such as negotiation with landlords to enable people to retain their current tenancies.
    • Preventing reoccurring homelessness – ensuring tenancy sustainment.

Evictions

  1. Government guidance states that your landlord may be guilty of an illegal eviction if you:
    • Aren’t given the notice to leave the property that the landlord must give you.
    • Find the locks have been changed.
    • Are evicted without a Court Order if you refuse to leave.
  2. Councils can start legal proceedings if they think there’s enough evidence of harassment or illegal eviction.

Events leading to the complaint

Mr Y moved into Ms B’s property

  1. Ms B owns a property which she rents out. In March 2016, she met with a builder, (Mr X) and agreed for him to complete some building work on the property before she rented it out again. She said that Mr X then explained that he would be on holiday for two weeks and his friend Mr Y would keep an eye on the property and his tools for him.
  2. Ms B states that Mr X then tried to push Ms B to let Mr Y rent the annex in the property and kept asking how much she would charge. She said she then visited the property in April 2016 and believed that Mr Y was already living in the property without her permission.
  3. I have also seen text messages between Mr X and Ms B in April 2016. The text messages discussed Mr Y moving into the property, booking a removal van, rental rates and ensuring that there were working cooking facilities for Mr Y’s move. Ms B states that Mr X sent the text messages to make it look like an agreement and she would immediately ring after they were sent to challenge them.
  4. Mr Y states that he moved into the property on 1 May 2016 with Ms B’s agreement. Ms B disagrees with this. On 1 May Ms B states that she did send Mr X a text about using the electricity and gas metres while Mr Y was living at the property.

Ms B asked Mr Y to leave

  1. On 22 May 2016 Ms B emailed Mr X and asked Mr Y to leave the property. Mr X then contacted the Council on Mr Y’s behalf because he was concerned that Ms B had not followed the proper eviction process.
  2. The next day a welfare and housing officer, officer Z, Council contacted Ms B and said that she could not ask her tenant to leave without going through the proper process. Ms B then attended the Council office and asked to meet with officer Z but she said that she could not meet with her because she already had booked appointments.
  3. Ms B sought her own legal advice and on 3 June served a notice to quit on Mr Y which asked him to leave the property by 8 July 2016. Mr X then sent this to the Council and asked for advice, he also provided evidence of text messages and emails between him and Ms B. He argued that a tenancy had been created. The Council reviewed the notice to quit and sought legal advice. The legal advice confirmed that based on the evidence available there had been an intent to create a tenancy and therefore the notice to quit was invalid.
  4. Officer Z then contacted Ms B and explained that that the notice to quit was invalid because she could not serve it within six months of the tenancy starting. It said if she wanted to evict Mr Y she would need to serve a section 21 notice and give him two months’ notice. Ms B asked for the evidence on which the Council had made the decision that a tenancy had been created and explained that she had never given permission for Mr Y to live there. Ms B also complained that when she went to the office to meet officer Z on 23 May she had refused to meet her.
  5. Officer Z replied and said that she did not refuse to meet Ms B, she said that she was busy with other appointments but asked if she would like to arrange another appointment now. She also said that she would need to ask Mr X and Y’s permission to share this evidence with Ms B.

Ms B served a section 21 eviction notice

  1. On 22 August Ms B received a council tax bill for the property and went to the office to query it. She was concerned that the Council had accepted Mr Y as a tenant but was still making her liable for council tax. She also said that she was concerned that they were using her property as a business to store decorating tools. The Council said it would investigate her concerns and would send someone to the property. Ms B also served a section 21 notice which asked Mr Y to leave the property by 31 October 2016.
  2. Ms B states that she never heard back from the Council but the notes show that an officer visited her property on 30 August and found no evidence of a business. She did however chase the Council about the outcome of its investigation and her concerns throughout October. But there is no evidence of the Council giving her an update.
  3. On 31 October 2016, the police attended Ms B’s property to oversee the eviction. Mr X contacted the Council concerned that they were forcing Mr Y to leave and that Ms B had changed the locks. He said that it was illegal eviction because Mr Y did not need to leave the property without a court order. Ms B states that she did not need a court order because Mr Y had agreed to leave.
  4. The Council contacted Ms B via phone and email and said that Mr Y had the legal right to remain in the property until the bailiffs attended. It said the Council may take legal action if she did not let Mr Y back in the property. Ms B said that she was concerned that officer Z had phoned her from Mr X’s phone, not her work phone. Mr Y did, however, leave the property on 31 October 2016.
  5. Following the eviction Mr Y took Ms B to court about his possessions and the court instructed Ms B to allow him access to the property to get his possessions back. Mr Y also sent Ms B an email asking for her bank details so he could pay any rent he owed that she had previously refused.

Ms B complained to the Council

  1. In March 2017 Ms B complained to the Council. She said that Mr Y moved into her property without her consent after Mr X introduced him as her builder’s helper. Ms B complained that:
    • Officer Z advised her that she needed to issue a section 21 notice, but Mr Y was not her tenant. She also refused to see her on the 23 May or take her side of the story into account.
    • The Council had failed to respond to her emails, phone calls and visits about her council tax liability and concerns that Mr Y was using her property for his business.
    • Officer Z phoned her from Mr X’s phone on the day of the eviction and then threatened to prosecute her for illegal eviction.
  2. The Council responded at stage one and said that it has a statutory duty to give advice and support about homelessness. It said that it formed the view there was a tenancy based on the evidence of emails and text messages. It also sought legal advice. The Council also said that it was satisfied with the conduct of officer Z. Ms B was dissatisfied with this response and asked for it to escalate her complaint to stage two.
  3. The Council reviewed the case notes for the stage two response but said that it had been unable to interview officer Z as she no longer worked for the Council. It said that the Council should have responded to Ms B’s queries about council tax in October 2016 and apologised for this failure.
  4. The Council also accepted that it should have asked Ms B to provide evidence to support her view that Mr Y was not a tenant. But based on the evidence available it did not change its view about the tenancy. The Council said that it cannot share the evidence that Mr X and Mr Y provided because of data protection but it was satisfied, after seeking independent legal advice, that there was a tenancy. Therefore, the Council gave appropriate housing and eviction advice. The Council apologised that officer Z did not see Ms B on 23 May 2016 and admitted that officer Z should have advised Ms B when she was free. However, it recognised that she did offer Ms B another appointment; which Ms B then refused.
  5. The Council also said that officer Z should have used her work phone to phone Ms B on 31 October 2016. But found no evidence that the eviction took place for personal gains and asked Ms B to provide evidence if she had any.
  6. Ms B remained dissatisfied with this response and asked for her complaint to be escalated to stage three. The Council reviewed the complaint but did not make any changes. It said that the stage two reviewer had already acknowledged some learning points but remained of the view there was a tenancy in place and therefore the Council gave appropriate advice. Ms B then approached the Ombudsman with her complaint.

Analysis

  1. The Council has a duty to provide advice and assistance to anyone that they believe is threatened with homelessness. This can include contacting the landlord to try and keep people in their current tenancies. Therefore, the Council was not at fault when it contacted Ms B in May 2016 after Mr Y approached it for support with housing.
  2. The Council has already accepted that when it first contacted Ms B, it should have given her the opportunity to provide evidence that a tenancy did not exist. Had it done this, it could have provided this evidence, alongside evidence from Mr Y and Mr X, to its legal advisors. Failure to do so is fault.
  3. I have reviewed evidence Ms B has sent to the Ombudsman; which is likely to have been the evidence she would have provided to the Council. Much of evidence is similar to the evidence Mr X and Mr Y provided to the Council. Therefore, on balance, it is likely that the Council would have made the same decision about the tenancy and giving eviction advice to Mr Y had this fault not occurred. If Ms B wishes to challenge whether there was a tenancy in place the courts would be the most appropriate body to make this finding.
  4. Ms B has provided the Ombudsman with a copy of a court judgement from June 2017 about possessions which stated that “there was no tenancy because no rent was ever paid”. But it is not known what evidence the court had access to when it made this finding. Equally the Council made its decision in May 2016 based on its own legal advice and evidence available at the time and the Ombudsman will not criticise the Council for this.
  5. The Council has acknowledged during its complaints response that there were some issues with its communication with Ms B. It said that it should have asked her for evidence, responded to Ms B’s emails and phone calls and officer Z should have seen her when she attended the office. The Council has apologised for these faults which is an appropriate remedy.
  6. But I have seen no evidence that the Council was at fault when it advised Ms B that she could be at risk of prosecution if she did not follow the proper process for eviction. This was advice that the Council was entitled to give. Unfortunately, the phone records have been deleted as they are over 90 days old so I cannot listen to the exact phone calls or form a view whether this phone call was threatening. If there are any outstanding issues about unpaid rent or costs, this is a private matter between Ms B and Mr Y and she should seek her own legal advice about what action to take.

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Final decision

  1. The Council was entitled to give advice around homelessness and evictions to Ms B and Mr Y. The Council has already apologised for some communication faults which is an appropriate remedy. Therefore, the Ombudsman will not make any further recommendations and we have completed our investigation.

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Investigator's decision on behalf of the Ombudsman

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