Are councils acting illegally when telling tenants to stay put?

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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