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Test Case: Council advising tenants to stay put after valid s21 notice served

case law

This is a Local Government and Social Care Ombudsman case involving an unnamed landlord (LandlordX or MrX) and Brentwood Borough Council.

The case revolves around a common situation where the landlord required possession of the property after serving a valid section 21 notice under the Housing Act 1988, as amended, giving 2 months' notice, but the tenants refusing to leave.

The landlord took his tenants to the County Court which made out a Possession Order in July 2019, but the two tenants still refused to leave, supported in their stance by the Council advising them to stay put.

The landlord complained to the Council stating that he had incurred extra costs, loss of rental income and was put to unnecessary time and trouble of applying to the Court for a warrant of eviction. Landlord X wanted the Council to apologise and pay him �1,389.50, his own calculation based on his loss of rental income, his Court costs and an amount to recognise his distress and time and trouble.

Background to the case

Landlord X had let a property to two joint tenants under an assured shorthold tenancy agreement.

In February 2019 the landlord decided he would not renew the tenancy when it expired on 28 March 2019. He informed his tenants in writing of his decision.

The landlord wanted to accommodate a relative in the property from 1 August and told his tenants that he wanted to be flexible and allow them to stay on until 31 July. But the tenants contacted the Council in February asking for housing advice, following which they received a standard letter saying their case had been allocated to a named case officer in the Housing Options service.

The letter contained 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.'�

The Council closed the case in mid-March because the tenants did not reply to a message from the case officer and at the end of March they stopped paying rent. By May they were served Section 21 and Section 8 Notices giving notice to terminate their tenancy, by which time the rent arrears amounted to �1,900. They were given notice that the landlord would make a claim for possession if they did not leave the property by 11 July 2019.

The tenants contacted the Council again in May for housing advice and assistance as they said they were in danger of being made homeless. An officer from the Council's Housing Options team then sent a standard letter to the tenants informing them of 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.'�

The case officer contacted the landlord in May and he confirmed that the tenants were still in his property and that he intended to recover possession and that the rent arrears were �1,900, but the officer did not contact the landlord again after May to review the situation.

The Possession Order was made on 26 July ordering the tenants to leave the property by 9 August and to pay the rent arrears which were now �4,771, plus the landlord's costs of �451.71 and a daily charge until they left the property.

The case officer had contact with the tenants by August but was not sent the Possession Order. The case officer did not contact the landlord to get information to decide whether it would be reasonable for tenants to remain in the property. On 16 August the landlord sent the Council the eviction notice made on 13 August. It said bailiffs would evict them on 11 September.

Eventually the tenants sent sent the Council a copy of the Possession Order and on 30 August the tenants accepted an offer of temporary accommodation and moved out on 5 September. But the landlord said he did not have a forwarding address for the tenants and they still owe him more than �5,000 rent and his Court costs.

The landlord's claim was 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. He cited the advice in the Homelessness Code of Guidance for councils when he complained to the Council, but it did not take this on board in its response.

He submitted a formal complaint but the Council did not uphold it. It advised him to complain to the Housing Ombudsman Service if he was dissatisfied with its final response. Acting on that advice the landlord 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.

The Local Government and Social Care Ombudsman

The landlord later complained to The Local Government and Social Care Ombudsman in July 2020 after contacting his MP and a government department.

In response to the Social Care Ombudsman 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 the landlord to request information rather than relying on the tenants to provide it. That would have prevented some delay.

The Council offered to pay the landlord �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.

The final decision

The Ombudsman found the Council was at fault and this caused injustice to the landlord. The Council agreed to provide a suitable remedy. The Ombudsman said:

'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 [the landlord] 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.'�

There is some useful information here to help landlords who find themselves in this or a similar situation when councils advise tenants to stay put, or they delay in taking action.


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