Date of decision: 12 May 2025
Summary
A private landlord complained that the Council took far too long to end the tenancy of a vulnerable adult who had lost capacity, causing significant inconvenience and preventing the landlord from selling the property. The Council’s delay in applying to the Court of Protection did not result in lost housing benefit, but it did cause the landlord unnecessary trouble and distress.
What happened
The landlord’s tenant, who received housing benefit paid directly to the landlord, was hospitalised in May 2021 and moved to a care home by July 2021.
The Council’s social services informed the landlord that the tenant lacked capacity to end the tenancy, requiring a Court of Protection application.
The landlord provided all requested information and repeatedly chased the Council for updates.
The Council’s legal team delayed action, and the housing benefit continued until August 2022, after which the Council reclaimed an overpayment. The landlord did not appeal the Council’s decision to recover the overpayment.
The Council only applied to the Court of Protection in October 2022, submitted the correct form in February 2023, and received the court order in June 2023.
The tenancy finally ended in July 2023, and the landlord sold the property later that year.
The landlord’s October 2023 complaint to the Council went unanswered until the Ombudsman’s involvement in June 2024. It covered the failure to pay housing benefit while also preventing it from ending the tenancy and taking possession of the property. The Council did not respond.
The Council later acknowledged its errors and agreed not to recover a separate housing benefit overpayment.
What was found
The Ombudsman found the Council at fault for taking over a year to apply to the Court of Protection after identifying the need in July 2021. This delay did not cause financial loss in housing benefit however, as the tenant was ineligible after moving to a care home.
However, the Ombudsman did state that the delay prevented the landlord from selling the property and caused significant inconvenience and distress through repeated chasing and lack of response to the complaint. Consequently, the Ombudsman found this to be maladministration causing injustice.
The Council was required to apologise in writing for the delay and the trouble caused, and to provide evidence of compliance.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
If a mentally incompetent person cannot end the tenancy themselves, then someone else can act lawfully on their behalf to do so – either a person with a lasting Power of Attorney, a Deputy appointed by the Court of Protection, or the Court of Protection itself, can be enabled to do so.
A council must not delay in making an application to the Court of Protection, as seen here, if it is necessary to protect the person’s best interests (here, save them from liability to pay rent). The law is clear – the Care Act 2014 imposes a duty on councils to promote the well-being of adults with care and support needs (section 1) including social and economic wellbeing; prevent escalation of needs (section 2) and act in a timely manner (Statutory Guidance).
It should be observed that there is no fixed time for applying to the Court of Protection, but delays can be unlawful if:
- The tenancy continues unnecessarily for months
- The person is liable for rent they cannot manage
- The person has already moved into new accommodation
- The delay is causing financial harm
- There is no explanation for the delay
There is no clarity in the report as to the state of the person’s capacity when they first took on this lease or whether someone else had purported to sign ‘for’ them or whether it was simply unsigned, or whether they had just lost capacity over the passage of time.
We do not think that it is correct to suggest that there was no financial loss here for the landlord. Whilst it is true that a person is not eligible for Housing Benefit once in a care home, their deemed occupation by the incapacitated tenant keeps the owner out of renting let alone selling the property, and that obstruction amounts to an unanswerable claim for mesne profits – damages for use and occupation, for which the council would have to accept responsibility.
Please use the following link to read the original Local Government and Social Care Ombudsman’s London Borough of Haringey (24 002 895)) report.
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