Brentwood Borough Council (20 002 688)

Category : Housing > Private housing

Decision : Upheld

Decision date : 23 Feb 2021

The Ombudsman's final decision:

Summary: Mr X is a landlord who complained that the Council failed to consider statutory guidance when it advised his tenants to remain in his property after the Court made a Possession Order. He says this led to further loss of rental income, additional Court costs and time and trouble. We found the Council was at fault and this caused injustice to Mr X. The Council has agreed to provide a suitable remedy.

The complaint

  1. Mr X complained that the Council advised his tenants to remain in his property after the County Court made a Possession Order in July 2019. He says the Council did not follow statutory guidance. As a consequence, Mr X says he incurred extra costs, loss of rental income and was put to the time and trouble of applying to the Court for a warrant for eviction.
  2. Mr X would like the Council to apologise and pay him £1,389.50. This is based on the loss of rental income, Court costs and an amount to recognise his distress and time and trouble.

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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. 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 spoken to Mr X and read his correspondence with the Council about his complaint. I made enquiries to the Council and considered its comments and relevant records. I have considered relevant advice in the Homelessness Code of Guidance.
  2. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Statutory guidance

  1. The Homelessness Code of Guidance for Local Authorities provides comprehensive statutory guidance to councils on how to interpret and carry out their duties to people who are threatened with homelessness or homeless. The Code is not legally binding but councils must have regard to it. It is good administrative practice for councils to follow the advice in the Code unless they have good reasons to depart from it.
  2. Paragraph 6.33 of the Code says 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 Section 21 Notice, to remain in a property after the Notice has expired:
      1. the position of the landlord and whether he intends to proceed with possession;
      2. the financial impact of court action and any build-up of rent arrears on both landlord and tenant;
      3. the burden on the courts of unnecessary proceedings where there is no defence to a possession claim;
      4. the general cost to the housing authority.
  3. Paragraph 6.34 of the Code continues:

“Throughout any period that an applicant remains in occupation whilst the landlord pursues possession action, the housing authority should keep the reasonable steps in the applicant’s personalised housing plan under regular review, and maintain contact with the tenant and landlord to ascertain if there is any change in circumstances which affects whether or not it continues to be reasonable for the applicant to occupy.”

  1. Paragraph 6.36 of the Code says:
  2. “The Secretary of State considers that it is highly unlikely to be reasonable for the applicant to continue to occupy beyond the date on which the court has ordered them to leave the property and give possession to the landlord”.

What happened

  1. Mr X is a landlord. He let a property to Mr Y and Ms Z as joint tenants under an assured shorthold tenancy agreement.
  2. In early February 2019 Mr X decided not renew Mr Y and Ms Z’s tenancy when it expired on 28 March 2019. He informed them in writing. He wanted to accommodate a relative in the property from 1 August. He said he was willing to be flexible and let Mr Y and Ms Z stay until 31 July.
  3. Mr Y and Ms Z contacted the Council in February to ask for housing advice. In mid-February the Council sent them a standard letter saying their case had been allocated to a named officer in the Housing Options service. The letter included the following statement for private renters:

“We would not normally consider you to be homeless until a Possession Order from the Court has expired. If you leave accommodation available to you because a legal Notice has been served, you will likely to be found to have made yourself intentionally homeless and no duty to provide accommodation will remain.”

  1. The Council closed their case in mid-March because Mr Y did not reply to a message from the case officer.
  2. Mr Y and Ms Z stopped paying rent at the end of March. On 8 May Mr X’s agent served them with Section 21 and Section 8 Notices giving notice to terminate their tenancy. By then the rent arrears were £1,900. The agent also gave them notice that Mr X would make a claim for possession if they did not leave the property by 11 July 2019.
  3. Following service of these Notices, Mr Y and Ms Z were threatened with homelessness. Mr Y contacted the Council again in May for housing advice and assistance. An officer in the Housing Options team was then allocated to their case. In mid-May the Housing Options service sent a standard letter to Mr Y which included the following advice for private renters about their legal rights and the Council’s homelessness duties:

“If you are renting privately you have a legal right to remain in the property until a written legal Notice expires AND a Possession Order is granted by the Court AND until the time and date of eviction detailed on the eviction notice.”

  1. The case officer contacted Mr X in mid-May for information. Mr X confirmed that the tenants were still in his property, he intended to recover possession and the rent arrears were £1,900.
  2. The case officer did not contact Mr X again after May to review the situation.
  3. In mid-June 2019 Mr X’s agent made a claim for possession. Mr Y received notice at the time but did not contact the case officer to tell him about this development. He did not make further contact until the day of the Court hearing in late July. The case officer then asked Mr Y to send him the Court papers.
  4. The Court made a Possession Order on 26 July. It ordered Mr Y and Ms Z to leave the property by 9 August. It also ordered them to pay Mr X the rent arrears which had increased to £4,771 and Mr X’s costs of £451.71. They were ordered to pay a daily charge until they left the property.
  5. The case officer was in contact with Mr Y in August. But Mr Y did not send him the Possession Order. The case officer did not contact Mr X to get information to decide whether it would be reasonable for Mr Y and Ms Z to remain in the property.
  6. On 16 August Mr Y sent the Council the eviction notice made on 13 August. It said bailiffs would evict them on 11 September. Two weeks later, Mr Y sent the Council a copy of the Possession Order.
  7. Mr Y attended an interview with the case officer on 30 August and the Council took a homelessness application. Mr Y and Ms Z accepted an offer of temporary accommodation and moved there on 5 September. Mr X recovered possession of his property on the same day.
  8. The Council did not prepare a Personalised Housing Plan for Mr Y and Ms Z until 12 September 2019 after they had left Mr X’s property and were in temporary accommodation. According to the Plan, the case officer contacted Mr X on 12 September 2019 to discuss the Section 21 Notice. But the Court had made an order for possession and Mr Y and Ms Z had already left the property so it was too late to do that.
  9. Mr X says he does not have a forwarding address for Mr Y and Ms Z. They still owe more than £5,000 rent and his Court costs. He says that by advising his tenants to remain in his property until the eviction date the Council caused him to lose more rent and incur further Court costs. This prolonged matters and caused him avoidable distress and time and trouble. Mr X says he cited the advice in the Code when he complained to the Council but it did not take this on board in its response.
  10. Mr X complained to the Council in late October 2019. His complaint went through both stages of the complaints procedure. The Council sent its final response in early December. The Council did not uphold his complaint. It advised him to complain to the Housing Ombudsman Service if he was dissatisfied with the final response. Mr X acted on that advice and contacted the Housing Ombudsman service. They advised him in December 2019 that they had no powers to investigate a complaint made by a private landlord against a local council. Mr X later complained to us in July 2020 after contacting his MP and a government department.
  11. In response to our enquiries, the Council acknowledged some fault in the way it had handled the case. It accepted that it could have been more pro-active in contacting Mr X to request information rather than relying on Mr Y to provide it. That would have prevented some delay.
  12. The Council offered to pay Mr X £1127.52 for the loss of rental income. This is for a period of 36 days from 31 July 2019 to 4 September 2019. It is calculated at a daily rate of £31.32 based on the monthly rent of £950.

My analysis

  1. Mr X told the case officer in mid-May 2019 that he intended to recover possession of the property. He also confirmed his tenants had substantial rent arrears. Although Mr X told Mr Y and Ms Z they could stay in the property until 31 July, he was not willing to renew their tenancy agreement.
  2. As a landlord, Mr X knew he had to go through the legal process to recover possession of his property. He instructed an agent to deal with this on his behalf. Mr Y and Ms Z had a contractual liability to pay the rent due so they are responsible for the rent arrears.
  3. Mr X considers the Council actively encouraged his tenants to stay in the property after the Possession Order was made. He referred to the letter sent to his tenants in May 2019 which explained their legal right to remain in occupation until the Court made an order for eviction. That was an accurate summary of the law. So it was not fault for the Council to give them this information about their legal rights. The Council had a duty to give housing advice on request.
  4. When Mr Y and Ms Z applied for homelessness assistance, the Council had a duty to consider the statutory guidance in the Code. In late July Mr Y told the case officer there was a possession hearing in the County Court later that day. The officer relied on Mr Y to tell him the outcome. But when Mr Y did not provide that information promptly, he should have contacted Mr X instead. It was fault not to do so because the Code says councils should maintain contact with the tenant and the landlord in these circumstances.
  5. The Council should review whether it is reasonable for the tenant to remain in occupation at different stages in the possession process. The Code says one of the factors councils must consider is the financial impact on the landlord. The Council did not have regard to that advice. It failed to consider the impact on Mr X although it knew there were significant rent arrears. The Code says it is “highly unlikely to be reasonable” to expect tenants to remain in a property after the Possession Order has expired. The relevant date in this case was 9 August. The Council did not consider the financial impact on Mr X if the tenants stayed in the property beyond that date and did not pay rent. It did not arrange temporary accommodation for them until 5 September. Because of this delay, Mr X was out of pocket because the rent arrears continued to increase and he had the extra expense of applying for a warrant for eviction.
  6. It seems more likely than not that if the Council had considered the advice in paragraph 6.36 of the Code, and made contact with Mr X, they would have decided it was not reasonable for Mr Y and Ms Z to remain in the property. The injustice to Mr X is the additional lost rent and the cost of applying for a warrant for eviction. There would have been no need to make that application if the Council had acted sooner to accommodate Mr Y and Ms Z.

Agreed action

  1. I welcome the Council’s willingness to offer a financial remedy. The Council has agreed to complete the following actions within one month:
    • Apologise in writing to Mr X;
    • Pay him £1127.52 for the loss of rental income;
    • Reimburse the Court costs for the warrant for eviction;
    • Pay £100 for time and trouble because it misdirected Mr X to the wrong Ombudsman service;
    • Share the final decision with officers in the Housing Options Service and produce a briefing note to ensure they are aware of the relevant advice in the Homelessness Code of Guidance.

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Final decision

  1. I have completed the investigation and found the Council was at fault and this caused injustice to Mr X. The Council has agreed to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman

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