The Ombudsman's final decision:
Summary: Miss X complained the Council failed to provide her with timely and suitable support after her landlord illegally evicted her. There was no fault in how the council helped Miss X with her complaint of illegal eviction. There was fault with how the Council encouraged Miss X to withdraw her application when considering her homelessness, however this did not cause Miss X a significant injustice. The Council agreed to issue reminders to its housing officers to prevent similar fault in future.
- Miss X complained the Council failed to provide her with timely and suitable support after her landlord illegally evicted her in December 2020. She said the Council:
- should have provided her with accommodation itself, or allowed her to find accommodation, and made her landlord pay the extra costs;
- failed to take enforcement action against her landlord after it threatened to;
- should not have told her to make a homelessness application to a different area after she told it she experienced domestic violence in that area; and
- did not listen to her.
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)
- 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 considered the information Miss X provided and discussed the complaint with her.
- I considered the Council’s comments on the complaint and the supporting information it provided.
- Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
- ‘Illegal eviction’ is when a landlord evicts a tenant without giving the required legal notice or following the correct legal process.
- Councils have powers under the Protection from Eviction Act 1997 to investigate complaints of illegal eviction and to prosecute landlords who commit offences. Councils can decide what action is suitable in individual cases, which can include deciding not to prosecute.
- Councils have no powers to make a landlord reinstate an illegally evicted tenant or to help with a claim for damages or compensation against landlords.
- Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
- Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. Councils should work with applicants to identify practical and reasonable steps for the council and the applicant to take to help the applicant keep or secure suitable accommodation. These steps should be tailored to the household, and follow from the findings of the assessment, and must be provided to the applicant in writing as their personalised housing plan.
- If a council has ‘reason to believe’ someone may be homeless or threatened with homelessness, it must take a homelessness application and make inquiries. The threshold for taking an application is low. The person does not have to complete a specific form or approach a particular council department. (Housing Act 1996, section 184 and Homelessness Code of Guidance paragraphs 6.2 and 18.5)
- A council will apply four tests to decide what, if any, duty it owes to a homeless applicant. Councils will make inquiries to find out if the applicant is:
- eligible for assistance;
- homeless or threatened with homelessness;
- in priority need (e.g. is vulnerable, has dependent children etc.); and
- not intentionally homeless.
- In mid-December 2020, Miss X’s private landlord illegally evicted her.
- After the eviction, Miss X contacted a local advice agency for advice. Miss X’s legal adviser contacted the Council two days after the eviction asking for the Council’s help. The adviser told the Council Miss X was temporarily staying with friends following the eviction, but this was not sustainable.
- The Council’s environmental health team referred Miss X’s request to its housing team, which assigned a housing adviser the following Monday.
- The Council agreed Miss X’s landlord had illegally evicted her and contacted them, asking that they either readmit Miss X to the property or provide her with other suitable accommodation. The Council said it also explained the law to the landlord and told them of the Council’s powers to prosecute.
- Miss X continued to exchange emails with her landlord and proposed a settlement for the illegal eviction which would cover the extra costs of different accommodation. The Council asked the landlord to confirm whether they would either allow Miss X back into the property or agree to her proposal.
- The landlord told the Council they could not readmit Miss X to the property, but they would agree to Miss X’s proposal subject to various conditions. Miss X was not happy with these conditions, so she asked the Council for advice. The Council told Miss X it could not advise on the conditions and that Miss X should consult her legal adviser.
- Miss X later found her own, alternative accommodation.
- The Council also started a housing assessment because the Council had reason to believe Miss X was homeless. Since Miss X had only lived in its area for a short time, the Council said it doubted whether Miss X had a local connection.
- Before Miss X moved to the Council’s area, she used to live in her parent’s home. The Council says Miss X told it she had suffered domestic abuse in her parent’s home but would be safe if she was not living there. Miss X says she later told the Council she did not feel safe returning to her former borough.
- The Council told Miss X she should withdraw her homeless application and should apply to the council covering her parent’s home and “If you don’t want to live in [your former council’s area] you can inform them of this and any associated risks and they will advise further.”
- The Council invited Miss X to provide further detail about the risks to her, other than the violence she mentioned at her former home. However, in the same email it also said “As your local connection is to [your former council’s area] you will be referred to them following non-withdrawal with [the Council]. To avoid any delays it would be advised to approach them directly asap. if you require assistance to secure accommodation”.
- The Council said it tried to assess Miss X’s right to housing assistance, but that Miss X did not provide the information it asked her for. Therefore, it could not complete the assessment and could not produce a personalised housing plan.
- Councils can investigate and prosecute landlords for illegally evicting tenants. However, councils do not have powers to force landlords to rehouse tenants, or to pay them compensation. While some councils will help evicted tenants negotiate with former landlords, they do not have to do this or provide legal advice.
- Miss X said the Council should have rehoused her itself and forced her former landlord to pay the costs or to pay for alternative accommodation. The Council did not have the powers to do this under the law covering illegal evictions. Any entitlement to housing from the Council would have been under the Council’s homelessness duties, which I consider below.
- The evidence shows the Council asked Miss X’s former landlord to readmit her to the property and, when this was not possible, supported Miss X in her negotiations with her former landlord. When Miss X said she was not happy with the conditions proposed by her former landlord, the Council directed Miss X to her legal adviser for advice.
- Considering the Council’s legal powers, and that it supported Miss X in her negotiations, I am satisfied the Council provided Miss X with suitable help negotiating with her landlord following her illegal eviction.
- It is not our role to decide if the Council should have prosecuted Miss X’s former landlord; that is the Council’s responsibility. Our role is to assess whether the Council made its decision properly.
- In its response to my enquiries, the Council explained how it considered whether to prosecute Miss X’s former landlord. It said it considered:
- the landlord’s apparent willingness to resolve the issue;
- their agreement to Miss X’s proposal;
- that this was the first reported incident;
- the required standard of proof for prosecutions; and
- the overall public interest.
- The Council may have had a duty to house Miss X, had she been eligible for assistance, homeless and in priority need. However, the Council said it could not complete its assessment of Miss X because she did not provide all the information it asked her for, so this duty did not arise.
- Based on the evidence I have seen, the Council accepted Miss X was homeless and it appears Miss X would likely have been eligible for assistance. However, given Miss X’s age and personal circumstances, it is unlikely Miss X would have been in priority need and, therefore, it is unlikely the Council would have had a duty to provide her with accommodation. For this reason, I am satisfied the Council did not fail to provide Miss X with accommodation.
- Miss X said she told the Council she was at risk of violence in her former council’s area. The Council said Miss X first told it she would be safe if not living in her parent’s home, but later said there were wider risks to her in her former council’s area.
- The evidence shows Miss X did raise concerns about her safety in her former council’s area, but this was after the first information she gave the Council. The Council invited Miss X to provide more information, but this was in the same email in which it encouraged Miss X to withdraw her homelessness application.
- In its response to my enquiries, the Council said “The case would not have been formally referred [to the other council] had there been any risk to [Miss X] and give [sic.] that we had not even established eligibility, it was premature to consider what might have happened.”
- The Council said it had not decided whether to refer Miss X to her former borough and the officer was explaining what might happen, based on the information she had provided so far. However, the email the Council sent to Miss X stated “you will be referred to [your former borough] following non-withdrawal with [the Council].” If the Council had not yet decided to do this, it should not have told Miss X it had. In my view, the wording of this email could reasonably be read as encouraging Miss X to withdraw her homelessness application before the Council had made a decision. I am satisfied this was fault.
- However, Miss X did not withdraw her homelessness application the Council did not refer her to her former borough. Therefore, I am satisfied this fault did not cause Miss X an injustice.
- they should not make statements to applicants which imply the Council has decided what action to take, when the Council has not yet made a decision; and
- they should not inappropriately encourage applicants to withdraw homelessness applications.
- I have completed my investigation. There was no fault in how the council helped Miss X with her complaint of illegal eviction. There was fault in how the Council encouraged Miss X to withdraw her application when considering her homelessness but this did not cause a significant injustice to Miss X. The Council agreed to issue reminders to its housing officers to prevent similar fault in future.
Investigator's decision on behalf of the Ombudsman