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How Councils` poor advice and lack of support leads to private tenants being evicted… and what you can do about it

Date Added 04/11/2015

In an accompanying blog, Getting tenants to leave: there`s a right way… and an expensive way I describe how some councils are giving tenants in privately owned accommodation poor information – leading to them being evicted and incurring costs unnecessarily.

Dave Absalom of the RLA (Residential Landlords Association) has some firm views on this subject, viewing the situation as councils not fulfilling their responsibilities towards tenants, and he is campaigning to get a change in the system. Here is a précised version of his take on the subject.

We regularly encounter councils who refuse to rehouse a tenant until the landlord has a possession order or, in some cases, they have already been evicted by the bailiff.

This is where I have a real bee in my bonnet as, by doing this, councils are putting landlords to unnecessary expense by forcing them to get a possession order and then the bailiffs. They are also clogging up the courts unnecessarily if the original s21 notice was correctly served, and they put tenants and their families through cruel levels of stress if they leave it to the bailiff stage.

There is a complete disruption to the tenants lives and must cause untold stress. And to achieve what precisely? I would suggest that this is in breach of their responsibilities and that tenants and landlords have a right to redress where this happens and maladministration can be demonstrated.

The Local Government Ombudsman has produced a booklet about the Council rehousing obligations for people being threatened with being made homeless – see Homelessness: how councils can ensure justice for homeless people.

In the words of the guide, `Complaints to the Local Government Ombudsman suggest that people who face homelessness do not always receive the help that they are entitled to from councils. Other organisations have coined the phrase `gatekeeping` to describe where councils refuse to accept a homelessness application or to provide interim accommodation where there is no legitimate reason.

`Councils have a statutory duty to secure housing for people who are unintentionally homeless and in priority need.`

A very important point made by the Local Government Ombudsman is that Councils have a duty to provide help when someone is threatened with homelessness within 28 days.

That help may only constitute advice.

However if someone is deemed to be `vulnerable` (for example, they have children, or they are pregnant, under 18, ill, disabled or fleeing domestic violence) the Council has a duty to see them the same day they ask for help, and to provide interim accommodation while they investigate if they have a further duty.

Critically, the onus is on the council, not the tenant, to prove the person is not vulnerable and entitled to help. The tenant simply has to present themselves and make the demand.

This is reinforced in R(Aweys and others ) Birmingham City Council 2007 EWHC 52. The case is important as it confirms that Council cannot insist on interviewing someone and advising them of their options before beginning to process a homeless application.

Further, the Homeless Code of Conduct says Councils should have 24-hour emergency cover and that a homelessness application can be made at ANY Council Office. It does not have to be in any particular format.

The Council HAS to make a decision the same day and give written reasons for the decision. If the applicant is in priority need and the Council does not have all the information it needs Interim Accommodation HAS to be provided whilst enquiries continue. It is not for the applicant to prove their case.

So just to make this point even more plainly, refusing to re-house a tenant until the landlord has a possession order, or they have already been evicted by the bailiff, is not the route they should be taking – either in law or ethically. The tenant simply has to be threatened with homelessness before they have to see them and take action.

Compensation

If they do give this incorrect advice and the tenant subsequently gets evicted – along with incurring the costs involved – what next?

The Local Government Ombudsman will accept a direct complaint from the tenant that maladministration has occurred which has caused them loss.

The tenant should allege that the Council is guilty of maladministration as it did not consider a homelessness application during the 28 days before they became homeless and that this has caused them loss (often personal effects, lost wages at taking time off work, taxis to council offices) and stress and humiliation in front of their neighbours at being evicted and the psychological effect it has on their children.

The address to write to is Local Government Ombudsman, PO Box 4771, Coventry CV4 OEH.

If you Google `Local Government Ombudsman` you can make a complaint on line. The site has useful leaflets explaining the complaints process. The Ombudsman has powers to order the Council to pay compensation.

Landlords will have to go through the Council Complaint process before taking the complaint to the Ombudsman.

I would strongly urge landlords to complain if they have been put to the expense of the Bailiff as that is clearly maladministration as it is within the 28 days that the tenant can become homeless. The claim is for the bailiff costs.

Will this change things?

Councils do not like adverse reports from the Ombudsman – it affects their standing. Also if enough landlords get costs from them it may create a re-think.

It might also help if High Court Enforcement Officers (HCEOs) also had their say on this, especially if they could persuade Judges that as the Council is unnecessarily clogging up courts with Bailiff applications: the Judge may wish to write to the Chief Executive of the Council concerned.


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