“I made him aware he is very lucky”

A Local Government Ombudsman Report on the actions of Maidstone Borough Council towards a homeless household makes for depressing reading. Both for the actions (and inactions) of the Council and for what it lays bare about the attitude to the homeless.

Mr and Mrs A and their young children were owed the full housing duty by Maidstone. They were placed in a flat owned by Mrs X and run by Mr X, which it appears Maidstone used as nightly booked accommodation. There was no formal written agreement between Maidstone and Mrs X.

As this was after the s.184 decision, the accommodation was s.193 accommodation.

Mrs X’s ‘rules’ for the property – which it is not clear were provided to Mr & Mrs A – included ‘no moving furniture around’.

What happened next is as set out in the Ombudsman’s report:

The day after they moved in, Mr A said the flat was not suitable. He said his daughter needed a cot. He was given advice about local charities for furniture.

On 31 March, Mr A spoke to a customer services adviser to say the flat was not suitable as his neighbours were complaining about noise from his children. The customer services adviser noted Mr A had moved furniture around ‘which was not allowed in the licence agreement’. Mr A asked if he could move back to the Bed and Breakfast accommodation. The customer services adviser noted in the computer records that she ‘made him aware that he is very lucky to be in temporary accommodation’.

On 19 June, Mr A spoke to a customer services adviser saying Mr X had asked him to leave because his daughter had drawn on the wall. He said Mr X was abusive.

A caseworker spoke to Mr X on 22 June who denied being rude or abusive and said the couple had treated the property badly – marking the walls by moving furniture and their child had drawn on the walls in pen. Mr and Mrs X repainted the walls. The caseworker spoke to Mr A and said ‘this behaviour cannot continue as discharge of the main housing duty may be done’.

Also on 22 June, the caseworker warned Mr and Mrs A orally that if, there were further issues, they would be evicted from temporary housing.

On 3 July, Mr X said to the Council that he had told Mr and Mrs A to clean the property by 6 July. He said he attended the property and found a broken lampshade, furniture moved and the flat in a ‘bad state’. Mrs A called the police when he tried to speak to her about this as she felt Mr X was harassing her. The caseworker tried to call Mr and Mrs A but could not get hold of either of them.

The Council provided photographs of the interior of the flat showing drawing and marks on the walls, marks on the carpets, a broken lampshade, broken plinth and stained carpets. Mrs A also provided similar photographs of the lampshade and broken plinth which she says were both broken when they moved in.

Also on 3 July, the caseworker left two voicemail messages for Mr and Mrs A asking them to contact her. Mr X then phoned the caseworker and said Mr and Mrs A were refusing to leave the flat. The caseworker’s notes say she spoke to Mrs A and ‘advised she needed to leave the property today. Advised as to why this was. Mrs A advised they were going to clean, but I advised they had been given warnings. Mrs A admitted to moving furniture around and moving a computer desk into the property. I advised they need to leave and attend the Council’s offices. Also advised we may not provide further temporary accommodation and they may be referred to social services’.

On 6 July, the caseworker referred the children to the County Council’s social services department. She noted ‘duty is being discharged due to their behaviour. Duty discharge letter to be completed’.

The Council placed Mr and Mrs A in a hotel over the weekend of 3 to 6 July. Mrs A was told orally on 6 July the Council had discharged its duty to house the family and they should contact social services. Mrs A said she had done so already and been told to contact the Council. Mrs A was told she would receive a discharge of duty letter. Between 7 and 13 July, Mr and Mrs A paid privately for a Bed and Breakfast.

Mr and Mrs A managed to get legal advice and support, from Shelter on the review and from the University of Kent law clinic (under the excellent Viv Gambling) on the complaint. But, astonishingly, even Shelter’s intervention did not stop Maidstone from adding yet more errors.

The housing charity Shelter spoke to a senior adviser at the Council on Mr and Mrs A’s behalf on 13 July. Shelter said Mr and Mrs A had the benefit of the Protection from Eviction Act and were entitled to a court order before being evicted from the flat. Shelter said it was not appropriate for the Council to discharge its duty.

The senior adviser reviewed legal cases to see if the Council had followed the correct process, and decided that Mr and Mrs A should have four weeks’ notice and if they did not leave, a court order would be necessary to evict them. The senior adviser noted the Council was intending to discharge the main housing duty, but would provide accommodation for four more weeks.

The caseworker emailed the discharge of duty letter to Mr and Mrs A. She also emailed a Notice to Quit. The Notice to Quit gave Mr and Mrs A until 11 August to leave “any temporary accommodation provided….by Maidstone Borough Council”.

Eventually, Maidstone withdrew the discharge of duty and permanent accommodation was secured.

To recap, Maidstone were a) prepared to discharge duty because a couple with children had moved furniture about, b) told the family that they had to leave the section 193 accommodation immediately, because Mr X was insisting on it, so facilitating an unlawful eviction, c) even after accepting 28 days notice was required, apparently thought this meant it covered any accommodation provided in the next 4 weeks, not a specific property.

In its response to the Ombudsman, Maidstone said in relation to the eviction

the Council did not allow an unlawful eviction. The Council had no legal right to interfere. The provider ended the contractual arrangement with the Council. The property was being used by the Council on a nightly basis and the owner could withdraw the arrangement at short notice. The Council cannot be held accountable for the provider’s actions. This is a common arrangement in many councils;

The Ombudsman was not at all impressed.

The issue of whether the agreement was a licence or a tenancy and the identity of the landlord (Mrs X or the Council) do not need to be settled by this investigation and would most appropriately be decided by a court. Regardless of the identity of the landlord and the nature of the agreement, Mr and Mrs A were entitled to a minimum of 28 days’ notice because the Council had accepted the main housing duty (see paragraph 12). So the caseworker was at fault on the eviction day because she incorrectly told Mr and Mrs A to leave the accommodation straight away. The caseworker should have told Mr X that there was an entitlement to 28 days’ notice and that if he did not stop, the eviction would be unlawful. Regardless of which party had to give proper notice, the Council is at fault because it was responsible for an unlawful eviction committed by Mrs X through her son.

The agreement said the Council would end accommodation if there was unreasonable or antisocial behaviour or if there was a breach of the rules. The Council told us minor breaches would result in a warning. Damage to the property including marking the walls and uncleanliness may amount to unreasonable and antisocial behaviour depending on the severity. Mrs X claimed the property needed cleaning but has not evidenced a significant problem with poor hygiene in the photographs provided for this investigation. Mrs X also commented during the investigation that a large piece of pine furniture was put in the flat and the Council agreed this should be moved, but this is not documented or evidenced elsewhere. Based on the photos provided by both Mrs A and Mrs X, we consider the marks to the walls, small stains to the carpet and missing plinth fall within the meaning of minor breaches which would not on their own be an adequate reason to end accommodation.

The Ombudsman further noted that if the eviction had taken place according to law, it would most probably not have taken place before the Council reversed its decision to discharge duty on review.

On remedy, the LGO recommended that the Council should do the following:

• apologise to Mr and Mrs A for the fault identified;
• pay them £500 to reflect lost and broken belongings including a television. We are satisfied on a balance of probabilities, relying on the audio and video evidence of Mr X’s conduct on the day of the eviction that there was some damage to their property. And we consider it likely some belongings got left behind due to the pressure on Mrs A to leave immediately. As Mr and Mrs A cannot provide receipts or further evidence of exact costs, a symbolic payment is appropriate;
• pay Mr and Mrs A £550 for the cost of Bed and Breakfast from 6 to 13 July 2015 (the Council has already agreed to do this);
• pay Mr and Mrs A’s removal and storage costs of £370. We recommend this not because of any legal requirements in section 211 of the Housing Act 1996, but because if the Council had acted without fault, Mr and Mrs A would have been able to remain in the flat and not incurred these costs;
• pay Mr and Mrs A £750 which reflects some of the cost of takeaway food for the two months the family was in the Bed and Breakfast after the eviction. Without fault by the Council, Mr and Mrs A would have remained in the flat which had its own kitchen and not incurred these additional costs; and
• pay them £2,000 to reflect the high distress described in paragraph 83. We have taken into account in particular, that Mr and Mrs A’s children were present on the day of the eviction. This is in line with our published guidance on remedies.

However, Maidstone did not accept this, still insisting it was in no way responsible for the unlawful eviction. In a statement reported here, Council Leader Fran Wilson said:

“This is an extremely complex case and we are considering this report and its findings. It is disappointing that we are found to be at fault and it will be discussed at our full council meeting, where a decision will be made about what action needs to be taken.”

It really isn’t that complex. In fact it is pretty simple. Maidstone should not have had this form of contractual arrangement with a private provider for s.193 accommodation, which arrangement could apparently be terminated immediately at a whim, and it should most certainly not have stood by on an unlawful eviction. It would indeed be the prosecuting authority on an unlawful eviction, so the suggestion that it ‘couldn’t interfere’, is nonsense. Taking the landlord’s side and telling the occupiers to leave immediately simply compounds the level of irresponsibility and ignorance of the law here.

While the opinion of the ‘senior adviser’ that 28 days notice to quit could be given to cover any and all accommodation provided by the council is not addressed by the Ombudsman, I think that can also be said to be wrong. A notice to quit is in respect of a specific dwelling, not whatever accommodation someone might be occupying at the expiry of the notice. Take notes for next time, Maidstone.

Beyond that, bad as it is, there is the attitude to the homeless betrayed in the case notes. Any complaint about the suitability of accommodation being met with the response that ‘you are very lucky to be in temporary accommodation’. Shut up and be grateful. Oh, and don’t move any furniture.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Homeless, Housing law - All.

5 Comments

  1. Thanks Giles for bringing this case to wider attention.

    You know it is BAD ENOUGH that incompetent Councils make such mistakes but what I find even more disturbing is that Council Leader Fran Wilson is still trying to deny their fault.

    Maybe the action that should be taken at the Council meeting is for a vote of no confidence in Fran Wilson as Council Leader.

    To not accept the findings of the Ombudsman in this case is simply disgusting.

    All organisations make mistakes, some of them are foolish and some are tragic, what matters is how you respond when you are made aware of the mistake.

    Do you accept the mistake and try to do what is necessary to prevent it happening again or do you play the political game of trying so cover your backside and wriggle out of your responsibilities?

    For God’s sake where is the humanity here; a child is homeless, they lose their home, are moved from bedsit to flat rented on an exploitative basis for the homeless, so what if that child draws a little crayon on the wall, it can all be fixed later.

    The hardest part of being homeless is not knowing when it will end, even in temporary housing that feeling continues and even when housed it has major mental health issues thereafter.

    Shame on Fran Wilson for running a Council where the culture seems to be to treat the so called “clients” as vermin and for not facing up to her responsibilities.

    Wasn’t it this sort of culture that led to the mistakes that caused Grenfell?

    Very Lucky!!

  2. That no one, from top to bottom of the council, recognised the issues here is astounding. It clearly betrays an attitude towards the homeless of ‘shut up and be grateful or else.’

    It also highlights the lack of knowledge and accountability within some councils. I can’t tell you how many times I’ve argued with Homelessness Officers who don’t know the law, how did they not recognise this was an unlawful eviction? What really irks here is that they seem to be completely oblivious to so many things being wrong. It does make you wonder about how many people have just gone along with this lunacy because they think they’re being properly advised by “Senior Advisors.”

  3. The reason is so many heads not enough beds for reasons of housing supply to funding and behavior (which needs help not scolding) It is unforgivable that local councils have and continue to manage down claims and include as part of that approach a degree of error which they can learn from and move forward. As the supplier of sole and last resort that is plain wrong, the duty is much higher, human dignity and shelter not a choice of supermarket- utterly repugnant – as applicants cannot ever be customers, unless Councils accept that the customer choice is a street corner.Clearly they do.

  4. I belatedly read your blog entry
    I agree with you with you that Maidstone have behaved appallingly and inappropriately for a public authority especially because the courts require the council to exercise their powers applying them in “a high principled way” with the “highest standards of probity and fair dealing” Tower Hamlets v Chetnik [1988] 1 All ER 961@ 969g (also House of Lords) and see the Local Commission for Administration report 03/8/12862.

    Maidsone should have it very clear the relationships between provider, local authority and homeless person.

    On the assumption agreement between homeless person and Maidstone, I think if a Notice to Quit is given (if sensible with a date escape clause) by the local authority to the homeless person of “every accommodation provided by us to you”, the NTQ could only apply to accommodation provided as at date of service of the NTQ and can’t apply to subsequent accommodation but in principle I cannot find that a formula description of the accommodation as to whcih the NTQ refers to can any different to a formula date for the date of termination of the tenancy.

    • A notice to quit has to refer to a specific demise/licence. It can’t be termination of a general obligation to secure accommodation.

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