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 3 weeks ago 57

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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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Cathie French

18:39 PM, 10th March 2023, About 2 weeks ago

Reply to the comment left by Rennie at 10/03/2023 - 16:34I have 2 emails forwarded to me by the tenant. One from the council and one from Citizens Advice.
The tenant was aware that the entire property (3 flats) was up for sale when they moved in and we had verbally agreed a date for them to move out by as I had accepted an offer on the property which required vacant possession.
The Council advised them not to move out on that date but to contact CAB.
The CAB advised the tenant that their fixed term tenancy had become a statutory periodic tenancy when they stayed on after the end of the fixed term and they should await a S21 notice. Further: "Runnymede Borough Council would therefore be correct stating that you should be given 2 months' notice and you told me that Runnymede BC also informed you that if you were to move out of the property prior to the expiration of the 2 months' notice statutory duty you will not only not be legally homeless, they will also consider that you made yourself intentionally homeless. Intentionality would mean that RBC is under no obligation to accept the relief duty. According to Shelter the relief duty means the following:
The relief duty requires an authority to 'take reasonable steps to help the applicant to secure that suitable accommodation becomes available for the applicant's occupation' for at least six months.[13] 'Help to secure' does not mean that the authority has to source and provide accommodation, but that it should try to agree reasonable steps for itself and the applicant which could result in accommodation being found.[14] There is, however, a power for authorities to provide accommodation as one of those reasonable steps.[15]
I understand that you are finding so very hard, despite your very best efforts, to find a private rented property 2 bed property for the LHA rate of £1100.00 per calendar month which is what you are allowed for you and your 14-year-old son and that you therefore intend to present as homeless as soon as your 2 months' notice period has expired. For the council to accept the relief duty you will need to show that you are homeless and are in priority need. Your 14y-old dependant son ought to qualify you as being in priority need and I enclose some info"
The enclosed info was from Shelter about who has priority need.
This has been incredibly stressful, especially losing a £1.6m sale. That sale was timed to coincide with the end of the fixed term mortgage and it has since risen 6 times (due to Trussenomics) . If anyone believes it is worth being a Landlord in they abolish S21 I would question their sanity as a Lanlord cannot decide to sell other than with sitting tenants (which equals under market value). If I can be of any further assistance please do not hesitate to respond.

Tricia Collick

8:59 AM, 11th March 2023, About 2 weeks ago

Reply to the comment left by Cathie French at 10/03/2023 - 18:39
Finally proof !
Perhaps we should start a crowdfunding site to raise a class action, this could help tenants too otherwise more private landlords would pull out and rents would therefore rise again.
How many members of Proprty 118 are there ?
If we all put in a small ammount it might stop this nonsense and protect us all from future financial pain.

Robert M

10:38 AM, 13th March 2023, About A week ago

Reply to the comment left by Cathie French at 10/03/2023 - 18:39The wording of the letter from the CAB you've said is:
"you told me that Runnymede BC also informed you that if you were to move out of the property prior to the expiration of the 2 months' notice statutory duty you will not only not be legally homeless, they will also consider that you made yourself intentionally homeless."
The inclusion of the words "you told me" means that the CAB advisor is simply stating what the tenant told him/her the council said, which is not necessarily what the council actually said, and as such it is not evidence of anything.
Unfortunately, I don't believe that this letter from the CAB would pass the evidential burdens required for taking the council to court.


23:47 PM, 16th March 2023, About 7 days ago

As a landlord I completely sympathise. However, I also worked as a Homeless/Housing Adviser and have seen many people trying to fiddle the system. I was dismayed to hear a Shelter employee tell someone who was living with family to ask their family for a letter saying they had to leave. There isn't enough housing to go around, without professionals telling people to commit fraud. In my LA there were over 25,000 people waiting for social housing. The removal of s21 is going to make landlords less likely to take on tenants on benefits too. How is that going to help them?

Jonathan Cocks

12:32 PM, 20th March 2023, About 3 days ago

Reply to the comment left by Angel at 16/03/2023 - 23:47
If this ‘professional’ did suggest a way forwards might be to commit/make a fraudulent action, then maybe the organisation should be asked to explain their recommendation!
We accept their is a major housing shortage in England, caused by many different reasons and in the short term (10:years maybe) we need to work together, pool our resources and hopefully make a positive difference.


16:04 PM, 20th March 2023, About 3 days ago

I gave a s21 in Feb 2022. My tenants were in arrears and the house was a disgusting mess and I couldn't take it anymore but I did feel sorry for them so didn't go down the s8 route. I had tried to help them over the years but they were incapable of doing anything for themselves. By the time of the eviction it was 2 parents and a 26 year old daughter. The daughter had certain issues and needed the mother to care for her and neither parent was without their own issues.
The s21 I served was perfect with every box ticked. Unfortunately for all, they got "advice" from somewhere and filled in a defence which was weird when you read it. However, the court clearly didn't read it but just decided it should go to hearing where several months later I won immediately.
Today the bailiffs went in and ultimately the 3 of them ended up leaving a house full of stuff and walking pathetically down the road carrying a table and a chair, with nowhere to go. Only once they had the piece of paper from the bailiffs would the council help them, or so the baiiff told me.
So whatever the rules are, whatever the councils should do, this was the reality of today with Sutton council. I think it is dreadful. There was another party involved in all of this. My wife and I. We will be haunted by this, but on the flip side we couldn't afford to carry on housing them. What a country.


17:40 PM, 20th March 2023, About 3 days ago

Some time back I had a tenant that used the Local Authority Housing Dept. (Council) when she turned bandit. I had her as tenant for about 5 years with a guarantor as she did not work. Two children and then another from a new relationship. No issues so far- until I noticed a non payment. She did explain the circumstances and since I knew the family I was not too concerned. She called me several times keeping me up to date and payment was made. Winter came and payments delayed or stopped, Then guarantor notified me by a solicitors letter that she wished to pull out of being a guarantor. The legal mafia wanted me to produce all sorts of personal information, tenancy agreement and details of my banking statements etc. Now, I have a Masters Degree in law (never practised - just despise the profession and use the knowledge to defend myself), so I told them in writing to Foxtrot Oscar!

Arrears continued to build up, non payment, no communication. would not answer her mobile, ignored e mails etc.

She did however allow the Gas Safety chap in for the annual safety check. He had called me a minute or two before hand that he was "outside" but failed to get an answer. As we were talking she arrived back from wherever. I called her again but she refused to answer. I called the Gas Safety chap - I had used him for nearly 15 years - asking him to tell her to ring me or in the alternative speak to me on his mobile. Nothing, a complete blank.

I followed this up with a Special Delivery letter. She signed for it. Still nothing in response,

Arrears now approaching £5K I sent her a final warning to settle the arrears before a given date or get out. If she failed to vacate by or on the prescribed date a Section 21 would be issued immediately. The date for vacating was a Sunday with filing of the Section 21 Notice in default on Monday. I had prepared all required documents and bundles in advance- all that remained was to pay the fee and lodge the application.

Lo and behold I had an un announced call from Council alleging that I was harassing the tenant and that if proved I would /could be facing imprisonment and or a substantial fine. Yes, harassment!

She had fed them a whole litany of hard luck stories but nothing about the lies, failures to communicate and above all nothing (from them) about the arrears. The Council had trawled through all documents available to them including Rent Smart in Wales. All personal information was being passed without any compliance with Data Protection Regulations etc.

I welcomed their threat to prosecute me for alleged harassment and looked forward to receiving their statement of claim. It never came.

A week or two later I had an email from SHELTER who claim they were acting for the council. They invited my response and were seeking to arrange a meeting with me at their location 185 miles from where I live.

I replied to their email pointing out that they were "not on the record" in this matter, Good legal words "not on the record" . Essentially it was another Foxtrot Oscar. Or was it?

Next day I had a call on my land line from SHELTER. Where did they get my ex directory number from?. She claimed to be from the "legal department. After a few moment she too was dispatched in a similar manner.

As days went by a few more emails from SHELTER and the Council which met the same response. Both SHELTER and the Council had requested details of the arrears as now they were in dispute. So, they wanted my bank statements, it was not enough to check her payment records they said. Again I refused to give them any information and should they persist in harassing me it would be open to me to apply to the Court for an injunction.

The day for vacating was looming (2 days) when Tenant emailed me requesting a further day. In reply, a refusal to allow another day and a further reminder that a Section 21 would be filed in default.

I travelled the 185 miles on vacating date and booked in to a Premier Inn so that I would file the S. 21 if she defaulted.

I travelled to the property. She had gone that morning. I let myself in and surveyed the condition. Filthy and grimy with damage here and there -all of which were replaceable.

I returned home next day to be met by answer phone and e mail messages from Shelter and the Council. They claimed once again I had harassed her and that "I must allow her to return to her home" and that I had acted illegally.

My response - Thank for for your email and telephone messages - the contents of which are noted but not agreed.

Never heard from either Council or Shelter again.

I had contractors in to ready the house for sale which completed on 1st viewing at asking price.

With this experience behind me I got out of the jungle.

So my message is take SHELTER on and remind them that they are "Not On The Record in this matter.

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