Does your local authority tell tenants to wait for the bailiff?
It’s a common story. A landlord serves a Section 21 notice to end the tenancy. The tenant goes to the local authority housing team for help, only to be told they won’t help until the bailiffs arrive. If they do leave the property beforehand, they will be deemed ‘intentionally homeless’, losing any support they are entitled to from the council.
This practice is something that has been criticised for years, leading to the Homelessness Reduction Act 2017 and an updated Homelessness Code of Practice; both of which aimed to get earlier support for tenants facing homelessness and to prevent the practice.
However, the NRLA still hears reports that some local authorities refuse to assist tenants who have received a valid Section 21 notice until a possession order has been granted, costing tenants and landlords and increasing uncertainty for both.
What should a local authority do in these circumstances?
Local authorities should be treating a tenant as threatened with homelessness if they have been served a valid Section 21 notice that is expiring within eight weeks.
During this period, the local authority should assess the applicant, and work with them to prepare a personalised housing plan.
This will normally include:
- making sure the tenant pays as much rent as they can
- telling them whether to apply for private or social housing, and
- potentially offering to pay off debts or check whether there are any defences to the possession claim.
They should also speak to the landlord to see if they can prevent the end of the tenancy. If they can’t prevent the end of the tenancy, then they should be working to help secure alternative accommodation for the tenant in the run up to the possession claim ending.
This doesn’t mean the council must always house the tenant themselves, of course. But it does mean that the local authority should be taking reasonable steps to find suitable accommodation if there’s no chance of sustaining the tenancy.
Once the notice period expires, the local authority should assess whether the tenant is homeless, or whether they can remain on in the property while suitable accommodation is found.
A person is deemed to be homeless if they have no accommodation it would be reasonable for them to stay in. The homelessness code of practice takes the view that it is unlikely to be reasonable for a tenant to stay beyond the expiry of a valid Section 21 notice where there is no defence.
The code also states that local 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.
Given this, local authorities should not have a blanket policy of telling tenants to stay put and wait for the bailiffs to arrive.
While this may be appropriate in some cases, for example where the notice is invalid, most of the time if a tenant is entitled to be rehoused they should be as soon as possible.
What to do if this happens to you
If your notice is valid and there is no reasonable prospect of allowing the tenant to stay on, then you should inform the housing officer of this when they make contact with you.
If you have a particular reason as to why you are ending the tenancy this should also be explained to the local authority, as they may be able to help fix it.
You should also explain any financial costs that are likely to be incurred by you and the tenant as they will need to be considered.
For example, if the tenant is continuing to accrue rent arrears, or you are entitled to claim court costs from your tenant then this needs to be taken into account by the local authority.
If you and your tenant continue to have a good relationship, and they qualify for emergency housing, then you can provide them with information that would help them make the case they should be housed when the notice expires.
In particular, if the property is no longer affordable then this should be made clear to the local authority. The tenant may also wish to raise 6.28-6.38 of the homelessness code of practice with their housing officer if they feel it is not being considered properly.
Finally, if you feel the local authority has not properly considered the case or failed to comply with their duties then you may wish to consider making a complaint.
Complaints should be made to the local authority initially but, if their response is unsatisfactory, then you can raise the complaint to the Local Government and Social Care Ombudsman (LGO). This must be done within 12 months of the issue arising. Help on making a complaint can be found on the LGO website.
An example of a successfully upheld complaint can be found here. In this case the landlord was paid compensation because the tenants stayed on in the property but failed to pay rent. The local authority failed to properly meet their duties by neglecting to consider the landlord's circumstances, properly communicating with the tenants, or providing a personalised housing plan in an appropriate time.
Has this happened to you?
This practice is something the policy team raises regularly in our meetings with Government, making the case that the homelessness duty should be applied consistently across the country.
We are keen to hear from landlords who have been affected by this, so we can share examples of poor practice with the Department for Levelling up Housing and Communities. In particular, we are keen to hear from landlords who know their tenants have not been given a personalised housing plan, or have been told that nothing will be done until a warrant is issued.
If you have experience of this, please get in touch using the form below.
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