Summary: Mr X complained the Council wrongly insisted he take court action to obtain possession of his property before it would accept his tenant as homeless and provide them with emergency accommodation. We have not found fault by the Council.

The complaint

1. The complainant, Mr X, is the landlord of a property in the Council’s area. He complains about the way the Council dealt with his tenant’s homelessness application following the service of a section 21 notice requiring them to move out of the property.
2. Mr X says the tenant was willing to leave the property voluntarily when the section 21 notice expired but the Council:

• failed to accept his tenant as homeless and provide them with interim accommodation, on the expiry of the section 21 notice, contrary to statutory guidance; and
• wrongly insisted it would not accept the tenant was homeless until he had obtained a possession order through the courts.

3. Mr X says because of the Council’s failures, he was put to the cost, time and trouble of taking unnecessary court action, with the inevitable delays, in order to regain possession of his property.
4. He wants the Council to reimburse him for the unnecessary court costs. He also wants it to review its policy of not accepting tenants served with a section 21 notice as homeless or offering them interim accommodation until their landlord has obtained a possession order through the courts.

Back to top

The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
6. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. If we are satisfied with an organisation’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)

Back to top

How I considered this complaint

8. I spoke to Mr X, made enquiries of the Council, and read the information Mr X and the Council provided about the complaint.
9. I invited Mr X and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

Back to top

What I found

What should have happened

Private sector tenants and the section 21 notice procedure

10. Landlords may evict tenants by using a section 21 notice under the Housing Act 1988 giving them at least two months’ notice to leave the property.
11. If the tenant does not move out by the specified date, the landlord must apply to the court for a possession order requiring them to leave.

Councils’ duty to arrange interim accommodation

12. A council must secure interim accommodation for an applicant and their household if it has reason to believe the applicant may be homeless, eligible for assistance and have a priority need. (Housing Act 1996, section 188)

The Homelessness Code of Guidance for Local Authorities

13. The Code sets out guidance on how councils should determine whether a person is homeless or threatened with homelessness under the Housing Act. This guidance says:
1. Authorities should not adopt a blanket policy or practice on the point at which it will no longer be reasonable for an applicant to occupy following the expiry of a section 21 notice. As well as the factors set out elsewhere in this chapter, factors which may be relevant include the preference of the applicant (who may, for example, want to remain in the property until they can move into alternative settled accommodation if there is the prospect of a timely move, or alternatively to leave the property to avoid incurring court costs); the position of the landlord; the financial impact of court action and any buildup of rent arrears on both landlord and tenant; the burden on the courts of unnecessary proceedings where there is no defence to a possession claim; and the general cost to the housing authority. Housing authorities will be mindful of the need to maintain good relations with landlords providing accommodation in the district. (6.33)
2. The Secretary of State considers that it is unlikely to be reasonable for the applicant to continue to occupy beyond the expiry of a valid section 21 notice unless the housing authority is taking steps to persuade the landlord to allow the tenant to continue to occupy the accommodation for a reasonable period to allow alternative accommodation to be found (6.35) where:

• an applicant is an assured shorthold tenant who has received a valid notice in accordance with section 21 ..;
• the housing authority is satisfied that the landlord intends to seek possession and further efforts from the housing authority to resolve the situation and persuade the landlord to allow the tenant to remain in the property are unlikely to be successful; and
• there would be no defence to an application for a possession order;
3. Authorities should ensure that homeless families and vulnerable individuals who are owed a section 188 interim accommodation duty or section 193(2) main housing duty are not evicted through the enforcement of an order of possession as a result of a failure by the authority to make suitable accommodation for them (6.38)

What happened

14. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

The Council’s homelessness service

15. The Council’s homelessness service is delivered on its behalf by Encompass, a local authority trading company. The Council remains responsible for Encompass’s actions when carrying out the Council’s homelessness duties. To avoid any confusion, I have referred to Encompass as the Council throughout this decision.

Complaint background

16. Mr X served his tenant with a section 21 notice requiring them to leave the property by November 2022.
17. The tenant approached the Council for assistance with their housing situation.
18. In November 2022 Mr X contacted the Council and asked whether the tenant would be moving out on the expiry of the notice. The Council told him:

• it was working with tenant to bring about a move from property, but the tenant’s efforts had not resulted in success;
• it could only provide advice and support. It was down to the tenant to find their next property. The tenant was not yet homeless; and
• it would continue to work with the tenant until they came back to it as homeless.

Court action to obtain possession of the property

19. The tenant did not leave the property on the expiry of the section 21 notice.
20. Mr X took court action to obtain possession of the property. A possession order was made by the court requiring the tenant to leave by 21 March 2023.
21. The tenant moved out of the property on 28 March 2023.

Mr X’s complaint to the Council

22. Mr X complained the court action had been unnecessary. He said although the tenant had been willing to leave, the Council insisted they had to stay until the court made a possession order. The Council’s actions had caused him to incur unnecessary costs.
23. The Council said in response:

• a tenant had the legal right to continue to occupy the property after the service of the section 21 notice, if they had not found other accommodation, until the landlord obtained and enforced a possession order through court action;
• taking court action to regain possession if a tenant doesn’t leave, is a legal requirement which a landlord is aware of when they enter into a tenancy; and
• it would not reimburse Mr X’s court costs.

24. Mr X was not satisfied with this response and brought his complaint to us.

The Council’s response to our enquiries

25. In response to our enquiries about the complaint the Council told us about its policy and procedures when approached by tenants served with a section 21 notice. It said:

• if the section 21 notice is invalid, it will not consider the applicant as homeless;
• where an applicant approaches with a valid s.21 notice, it will consider them as homeless and start the prevention duty; and
• it does not insist a landlord takes possession action before it considers the applicant to be homeless under the Housing Act.

26. It provided its prevention duty procedure. This says:
1. where a valid section 21 notice has been served, no court proceedings have been started and the matter cannot be resolved; and
2. if the client has a priority need, they should be given the option to move into emergency accommodation where the notice has expired, the landlord won’t allow any extra time and the client does not want to wait for court proceedings to take their course.
27. It secures emergency accommodation for homeless applicants in priority need in a number of ways. It has provided details of emergency accommodation available during the period from November 2022 to March 2023.
28. It has also told us the tenant was initially willing to leave the property, but this process was delayed because of their personal circumstances.

My view – was there fault by the Council causing injustice?

29. The Council has provided us with evidence of its work with the tenant to resolve their homelessness in the period from November 2022 to March 2023. I am not able to set out the details of this work because it involves the tenant’s personal information.
30. But I am satisfied, based on the information seen, the Council:

• properly considered whether the tenant was homeless or threatened with homelessness under the Housing Act, in accordance with the Code of Guidance;
• properly considered its duty to arrange interim accommodation for the tenant; and
• properly considered, and followed, its prevention duty procedure for cases where a valid section 21 notice is served.

31. I appreciate Mr X’s frustration at having to take court action requiring the tenant to leave. But the Council was limited in what it could tell Mr X about its work with the tenant because their personal information was confidential.
32. Based on the evidence seen, I don’t propose finding fault with the Council. In my view it properly considered and followed the Code of Guidance and its own policy and procedures in response to the tenant’s application for housing assistance following the service of the section 21 notice.

Back to top

Final decision

33. I have completed my investigation. I have not found fault by the Council.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman