Are councils acting illegally when telling tenants to stay put?

Are councils acting illegally when telling tenants to stay put?

12:15 PM, 3rd March 2023, About A year ago 102

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Are councils following the law when telling tenants to stay put when they are facing eviction to protect them? Or is the council simply kicking the can further down the road?

The simple answer is – no-one seems to know.

And this Property118 investigation highlights the confusion and mystery that surrounds the stance taken by all councils because it might be illegal.

There’s certainly no guidance that insists this is the correct action to take when landlords issue a section 21 notice to repossess their property.

Councils tell tenants to remain in their rented home

It’s common practice for councils to tell tenants to remain in their rented home when facing eviction – causing stress not just for the tenant but also for the landlord as they deal with the legal costs and complications.

The big question remains, is this action legal?

In the government’s Homelessness Code of Guidance, a person is classed as homeless if:

  • If they have no accommodation in the UK or elsewhere in the world
  • Live in a moving vehicle eg a mobile home, caravan or houseboat and you have nowhere lawfully to put it.
  • You can’t live at home because of violence/abuse or threats of violence or abuse which are likely to be carried out against you or someone else in your household.
  • You have been locked out of your home and you aren’t allowed back.

The Homelessness Code of Guidance also states a person is ‘threatened with homelessness’ if:

  • They are likely to become homeless within 56 days.
  • A person is also threatened with homelessness if a valid notice under section 21 of the Housing Act 1988 has been issued in respect of the only accommodation available for their occupation, and the notice will expire within 56 days.

The guidance says where applicants are threatened with homelessness councils must take reasonable steps to help prevent it from occurring.

The first step the guidance says: “Housing authorities should not consider it reasonable for an applicant to remain in occupation until eviction by a bailiff.”

This is printed out in black and white in the Homelessness Code of Guidance ­­– so why are councils still telling tenants to stay put?

‘The council is just kicking the can further down the road’

In what is known as ‘gatekeeping’, councils that are desperate to cut the numbers of homeless people on their books are unwilling to disqualify renters from council housing and have advised tenants who have been asked to move out to hang on until the very last minute – leaving homeowners who need to sell up or move in a costly limbo.

Paul Shamplina, the founder of Landlord Action, told us: “It’s a common practice that has always happened, it’s not only stressful for the tenant but it’s an extra expense for the landlord.

“Once the Section 21 notice is served and the two months expires, the tenant goes to the council, the council then says, “We’ve got nowhere for you to go.

“The council may say, ‘We might have to put you in temporary accommodation. The council will suggest you wait for the bailiff’s eviction letter which usually is about another four months from when they received the Section 21 notice.

“The council is just kicking the can further down the road.”

He added: “Council waiting lists in London range from 20 to 25 years. You might have 10,000-15,000 people on a waiting list and there are no properties.”

‘Authorities should not routinely be advising tenants to stay’

Brandon Lewis, the former Housing Minister, wrote to all councils in 2016 stating: “Authorities should not routinely be advising tenants to stay until the bailiffs arrive; there is no barrier to them assisting the tenant before this. By doing this, local authorities miss a valuable opportunity to prevent homelessness.”

Councils seem to not have listened to the advice given by the housing minister as the common practice still continues.

The National Residential Landlords Association (NRLA) carried out research in 2016 which found that 49% of tenants who have been served with a section 21 notice by their private landlord say they have been told to ignore it by their local council.

A spokesperson for the NRLA said: “There really is no good excuse for local authorities to give ‘stay-put advice’ to tenants who have been served a valid notice.

“Local authorities who are still gatekeeping in this manner are generally doing so for one of two reasons.

“They are either misreading the Homelessness Code of Guidance, whereby they think that they cannot accept a tenant as homeless, or at risk of homelessness, until they are ordered to leave by the court. This is entirely wrong and was clarified by (then housing minister) Brandon Lewis in 2016.”

The spokesperson added the second reason was that councils have limited capacity for housing people who present as homeless.

They said: “Councils are trying to ration their increasingly limited capacity and resources to aid households in need by putting off helping them until the last possible moment, which is a false economy.

“Either way they are failing to help those in need of support and transferring the burden to private landlords who are in no position to shoulder the costs.”

‘Still best to stay in your home until the council accepts that you have to leave.’

The housing charity Shelter gives advice to private renters with assured shorthold tenancies on its website when facing Section 21 evictions.

The charity says: “The council might tell you to wait for bailiffs and that you’ll be intentionally homeless if you leave before then.

“This may not seem right if you will have rent arrears or court costs to pay off. But it’s still best to stay in your home until the council accepts that you have to leave.”

The advice goes on to say: If the council says you must wait for eviction by bailiffs, you can ask the council to:

  • Explain the situation to your landlord
  • Help with court costs or a rent shortfall
  • Provide help under your personal housing plan.

‘The duty to prevent’

The Local Government Association said: “Councils have a duty to ‘take reasonable steps to help the applicant to secure that accommodation does not cease to be available’ if they believe a household to be threatened with homelessness, otherwise known as the duty to prevent.

“The law specifically states that a household is indeed threatened with homelessness if they have been served with a valid section 21 notice seeking possession.

“Helping to secure does not mean that the authority has a duty to directly source and provide accommodation for the applicant, but they do have a duty to provide the household with a Personalised Housing Plan which will outline the steps both the council and the household can take to prevent homelessness.”

The association continued by saying placements into temporary accommodation can be upsetting for families and expensive for councils.

The spokesperson continued: “This measure may be taken by councils to try to prevent temporary accommodation use for as long as possible while other homelessness prevention tactics are implemented.

“Councils often have very high waiting lists for social housing, and with the private sector becoming more and more unfeasible for some households due to widening gaps between Local Housing Allowance (LHA) rates and market rents, alternative housing options are becoming more difficult to source for households approaching homelessness services.”

Tower Hamlets Council told Property118 that they ‘Follow all guidelines.”

London Councils, the local government association for Greater London, said they do not hold data on this issue and declined to comment.

Section 21 to be abolished

With the prospect that the Government looks set to end Section 21 ‘no-fault’ evictions, it appears that there will be more hassle for landlords and tenants.

Mr Shamplina says that ‘at the moment’ Section 21 is a good thing for tenants.

He explained: “There’s a lot of tenants out there that have been evicted under Section 21 when there is rent arrears but landlords don’t claim for the rent arrears on the court order because it doesn’t show. That means they can still try and rehoused by the council.

“When you abolish Section 21, more landlords are going to be forced down the rent arrears route and go down the Section 8 road because a lot of landlords write off rent arrears especially with housing benefit tenants because they weren’t going to get the money.”

He added: “If you’re forced to go down the Section 8 route then the money order shows up on the possession order. The council turns around to the tenant and says, ‘You haven’t paid your rent’ – you’ve made yourself homeless.”

Section 8 is a much lengthier process and, under this procedure, the landlord needs to go to court to regain possession where a tenant is in breach of their tenancy agreement.

But how will councils deal with this added pressure when they are already at limited capacity? Most importantly, if tenants can’t be re-housed by the council or get accommodation in the PRS what will happen to them?

Will councils start to take responsibility for this issue?

The one-million-dollar question is whether councils telling tenants to stay put is legal.

The short answer is we don’t know.

The Local Government Association says ‘Helping to secure does not mean that the authority has a duty to directly source and provide accommodation for the applicant’.

Liverpool City Council told us: “Each homeless application is assessed on its own individual circumstances, which will then inform what bespoke support can be provided to help manage that situation.

“Councils need time to determine that the landlord has followed the correct legal procedures.

“This means the tenant will often be advised to remain in the property until that has taken place.”

Tower Hamlets Council say they ‘follow the guidance’. They couldn’t tell us what that ‘guidance’ is.

Meanwhile, the NRLA argues that councils are misreading the Homelessness Code of Guidance.

The question is: Will councils start to take responsibility for this issue, or will they continue to ‘kick the can’ further down the road?

We are still waiting for a comment back from Brent Council and the Department for Levelling Housing and Communities.

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Chris Rattew

23:14 PM, 4th March 2023, About A year ago

Clearly the council saying that obeying a legal order is wrong and the council needs to be held to account. There may be grounds for a short delay while accommodation is organised for them, but this should be within a week or so.

Just A Queen

7:26 AM, 5th March 2023, About A year ago

Reply to the comment left by JamesB at 04/03/2023 - 20:13
I could never afford all that if that happened to me. I would contact every paper going

Just A Queen

7:34 AM, 5th March 2023, About A year ago

Reply to the comment left by Christopher Rattew at 04/03/2023 - 23:14
What are we going to do about it. A peaceful protest needs to be done about it


9:50 AM, 5th March 2023, About A year ago

Reply to the comment left by Just A Queen at 05/03/2023 - 07:26To be honest, going through the process, and still worrying about whether the bailiff part will even be the end, I am petrified re the rest of my property portfolio.
As a result, I am due to exchange on the sale of a really nice BTL house tomorrow (fingers crossed). I discounted it for a quick sale to a cash buyer. I had 3 offers within a week on the market and took the lowest but most proceedable.
When the tenants moved out of that one in January, I advertised it to re-let and was inundated with enquiries. Most applicants were unsuitable and loads were clearly full of lies. That was right at the time I was preparing for the court hearing on the s21 house. I have owned this particular house I am selling for nearly 20 years and carried out a full £50k refurb just before COVID. I overspent really as I wanted a perfect easy to let house for the next 20 years.
The first tenants in after the refurb took the govt's advice and took a rent holiday from me as soon as Covid hit. They used the money to buy a new car. Fortunately they returned to Spain and the next tenants were perfect but I now see how different things can be.
I have lost all confidence in ever letting another property to a stranger. I have now proven that one mistake and you lose over a year of your life to stress, as well as thousands of pounds and clearly the govt is set on making this worse. The whole court experience was frankly disgusting too and I say that even having won. (Although what did I win? A fee I will never get back in reality, a terrible week of my life preparing to represent myself at a hearing, a PO that everybody knew would be ignored and yet more lost rent waiting weeks for the process to play out.)
I even had a low rate fixed mortgage on the house I am selling and will be paying a £7000 redemption penalty to get out of it. That really is a measure of how crap I feel about being a landlord now.
The second I get the S21 house back it will be getting refreshed (which will be a massive job) and then sold as well.
To put it in context, I have been a landlord for 27 years and have literally had hundreds of tenants, I can't work with this government or the local authorities or Shelter directly against me any longer.


9:55 AM, 5th March 2023, About A year ago

I have had a judge give me possession (due to over 2 months rent arrears) with the usual 14 day time scale and then told the tenant if they do not move out the landlord then has to get a bailiff to remove you which gives you more time to move out!

How can a judge give this judgement and then tell the tenant how to go against it?

I have found judges vary enormously in their attitude.

dismayed landlord

10:41 AM, 5th March 2023, About A year ago

Reply to the comment left by JamesB at 05/03/2023 - 09:50
I totally get what you are saying. Very similar in many respects and aiming to sell everything. Let the corporations take over. It’s working well in every other aspect of our lives!

Abraham George

16:06 PM, 5th March 2023, About A year ago

Reply to the comment left by Just A Queen at 05/03/2023 - 07:26
UK Social Housing in Crisis worsened by Local Council policy encouraging lawlessness! These headlines should hit all the National newspapers !

Its time for the media and public to get involved in this matter as the current regulations and snail pace policies from the County courts and the encouragement of Council officials to favour unlawful tennants to defy the court order has to stop for once and for all ! Local Council officials who are encouraging contempt of Court orders should be brought forward and sacked as well for encouraging lawlessness in the country! Govt and Immigration officials need to close the open gate policy to unlawful tennants to stay in the country and claim free Council houses at the expense of UK taxpayers ! In addition the council houses should be prioritised to UK 🇬🇧 citizens rather than to illegal and unlawful tennants from abroad !

Paul Power

16:31 PM, 5th March 2023, About A year ago

Reply to the comment left by JamesB at 04/03/2023 - 20:13
How do you know this? Has the tenant got it documented? When seeking help the council has a duty of care to the individuals seeking help. If the advice has caused costs to be incurred then it is potentially actionable. This is the situation I alluded to earlier, so tenant jumps on a no win no fee to recover the excess costs the LL will claim due to following process excessively based on councils direction.


23:46 PM, 5th March 2023, About A year ago

Reply to the comment left by Paul Power at 05/03/2023 - 16:31
The tenants told me that they were told they needed to wait for bailiffs before they would get help. Proving it might be another matter.
Regardless, I don't want to take a council to court. They have muich deeper pockets than I do. I just want a quiet life. I had thought that was going to be managing my small portfolio for the rest of my days, but now I am going to cash in and look to do something else.

aga smart

6:58 AM, 6th March 2023, About A year ago

Reply to the comment left by JamesB at 05/03/2023 - 23:46
Would you and/ or your tenants go to the media and tell them to make this public ? That could be a start?

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