Summary: Mr X complained the Council wrongly told his tenant to remain in his property despite him serving eviction notices and delayed responding to his complaint. The Council failed to consider whether it was reasonable for Mr Y to remain in the property and delayed responding to a complaint. Mr X incurred unnecessary legal and bailiff costs and experienced frustration. An apology, payment to Mr X and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, Mr X, complained the Council:
• wrongly told his tenant, Mr Y, to remain in Mr X’s property when he had begun eviction proceedings; and
• delayed responding to his stage two complaint.
2. Mr X says the Council’s actions meant he incurred unnecessary legal costs, court costs and bailiff costs.

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The Ombudsman’s role and powers

3. 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)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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)

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and Mr X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

8. Homelessness code of guidance (code of guidance)
9. Paragraph 6.17 says, with certain exceptions, a tenant who has received a valid notice to quit, or notice that the landlord requires possession of the accommodation, would have the right to remain in occupation until a warrant for possession was executed (following the granting of an order for possession by the court). The exceptions are tenants with resident landlords and certain other tenants who do not benefit from the Protection from Eviction Act 1977.
10. Paragraph 6.18 says housing authorities should note the fact a tenant has a right to remain in occupation does not necessarily mean they are not homeless. In assessing whether an applicant is homeless in cases where they are a tenant who has a right to remain in occupation pending execution of a warrant for possession, the housing authority will also need to consider whether it would be reasonable for them to continue to occupy the accommodation in the circumstances.
11. Paragraph 6.32 says in determining whether it would be reasonable for an applicant to continue to occupy accommodation following expiry of a valid section 21 notice the authority will need to consider all the factors relevant to the case and decide the weight each should attract. If the landlord confirms a willingness to consider delaying or halting action to recover possession if certain steps are taken, it will usually be reasonable for the tenant to remain in occupation to allow time for action to be taken which may prevent homelessness.
12. Paragraph 6.33 says 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. Factors which may be relevant include:
• the preference of the applicant;
• the position of the landlord;
• the financial impact of court action and any build up 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;
• the general cost to the housing authority.
13. Housing authorities will be mindful of the need to maintain good relations with landlords providing accommodation in the district.
14. Paragraph 6.35 says the Secretary of State considers where an applicant is:
• (a) an assured shorthold tenant who has received a valid notice in accordance with section 21 of the Housing Act 1988;
• (b) the housing authority is satisfied 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,
• (c) there would be no defence to an application for a possession order;
15. then 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 provide an opportunity for alternative accommodation to be found.
16. Paragraph 6.36 says the Secretary of State considers 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.
17. Paragraph 6.37 says housing authorities should not consider it reasonable for an applicant to remain in occupation up until the point at which a court issues a warrant or writ to enforce an order for possession.

What happened

18. Mr X is a landlord and was renting his property out to Mr Y on a shorthold tenancy. Mr X says Mr Y stopped paying his rent in August 2023 and he terminated his tenancy with effect from 31 October 2023.
19. Mr Y approached the Council as homeless in January 2024. On 6 February Mr X told the Council he had applied for a possession order using a section 8 notice.
20. On 25 March the court considered Mr X’s case and issued an order for possession the following day. That order for possession required Mr Y to give Mr X possession of the property by 8 April, required Mr Y to pay the rent arrears and awarded costs.
21. On 8 April Mr Y contacted the Council as he said Mr X had contacted him about handing the keys back. The Council told Mr Y that Mr X could not evict him until it had an eviction warrant from the court.
22. On 10 April the court issued a warrant for the possession of Mr X’s property which gave the county court bailiff authority to evict Mr Y. The notice told Mr Y the eviction would take place on 30 April.
23. On 30 April the Council provided Mr Y with interim accommodation and he had moved out by the time the bailiff visited.

Analysis

24. Mr X says the Council wrongly advised his tenant to remain in the property until the bailiff visited to evict him despite the fact the Council knew it could not prevent the eviction. Mr X says as a result he had to pay further legal costs, court costs and for a bailiff to evict his tenant. Mr X says he would not have had to pay those costs if the Council had provided his tenant with temporary accommodation earlier.
25. The code of guidance is clear councils should review whether it is reasonable for a tenant to remain in occupation when they approach as homeless. The Council says it initially decided it was reasonable for Mr Y to remain living in Mr X’s property. However, none of the documentary evidence the Council has provided shows any consideration of whether it was reasonable for Mr Y to remain in the property when he approached as homeless. If the Council had considered that point I would have expected the notes to record the officer’s reasoning. Failure to do that is fault.
26. There is also no evidence the Council considered the financial impact on Mr X of his tenant continuing to remain in the property, the additional costs Mr X would incur to evict Mr Y or the impact on court time. That again is not in accordance with the code of guidance and is fault.
27. The code of guidance is clear the Secretary of State considers it highly unlikely to be reasonable to expect tenants to remain in a property after a possession order has expired. The Council accepts it should have provided Mr Y with accommodation when the court granted possession on 25 March 2024. Failure to do that is fault and meant Mr X had to pay further legal and court costs for a warrant for eviction and then bailiff costs.
28. I consider it likely, on the balance of probability, if the Council had considered paragraph 6.36 of the code of guidance and what Mr X had told it, it would have decided it was not reasonable for Mr Y to remain in the property. I am satisfied because of that Mr X had to pay the costs of applying for a warrant for eviction and for a bailiff. I do not consider Mr X would have incurred those costs if the Council had acted sooner to provide accommodation to Mr Y.
29. I therefore recommended the Council refund the legal and court costs Mr X incurred to apply for a warrant of eviction and for the cost of employing a bailiff to evict Mr Y. I also recommended the Council remind officers dealing with homeless applications of the need to follow the code of guidance in terms of considering whether it is reasonable for a homeless applicant to remain living in their property. The Council should also remind officers they should not advise tenants to remain in the property until a warrant for eviction has been issued. The Council has agreed to my recommendations.
30. Mr X says the Council delayed responding to his complaint at stage two. Mr X says he put in his request for the complaint to go to stage two on 30 May and the Council did not respond. Based on the documentary evidence Mr X has provided his email of 30 May went into an officer’s spam folder which is why the Council had not responded to it by the time Mr X chased. The Council has apologised for that. I consider that a reasonable remedy for this part of the complaint.

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Action

31. Within one month of my decision the Council should:
• apologise to Mr X for the frustration he experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mr X the legal and court costs he incurred to apply for a warrant of eviction and for the cost of employing a bailiff to evict his tenant;
• send a reminder to officers dealing with homeless cases to ensure they are aware of the need to follow the code of guidance when considering whether it is reasonable for a person to continue to occupy a property when an eviction notice has been served and to ensure tenants are not told to remain in the property until a warrant for eviction has been received.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman