When a tenant is legally homeless after a section 21 notice

How local authorities should assess if someone is legally homeless after they receive a section 21 notice from their landlord.

Waiting for the bailiffs

Section 21 Housing Act 1988 allows a landlord to serve notice without having to prove a ground for possession. If the landlord has followed the correct process, the court must make a possession order and allow eviction by bailiffs.

People who apply for homeless help from a local authority after a section 21 notice are often told that they are not legally homeless until the court has made a possession order, or they are due to be evicted by bailiffs. 

This approach runs counter to the statutory guidance, which states that local authorities should not consider it reasonable to expect someone to stay until they are evicted. This instruction can often reflect a failure to properly apply the law. Local authorities must consider whether it is reasonable to expect the tenant to remain after the notice expires. 

Impact of eviction on tenants

The instruction to wait for the bailiffs often means uncertainty and increased debt for the tenant. They generally have to pay additional costs as a result of the landlord applying to enforce the possession order.

Delays can also make a local authority's task more difficult. Understanding when someone is legally homeless after a section 21 notice can help local authorities and advocates identify what assistance a homeless applicant requires. Vulnerable tenants can get the support they need without going through the often stressful and expensive eviction process.  

Local authority duties when someone gets a notice

A local authority must accept a homeless application if it has reason to believe someone is homeless or threatened with homelessness. Reason to believe is a low threshold and the authority doesn’t need proof straight away to accept an application.

Most tenants who have been given a valid section 21 notice are threatened with homelessness. If they are eligible based on their immigration status, the authority has a duty to help prevent them becoming homeless.

Get a quick answer on whether someone is likely to be eligible using our Homeless rights checker.

The local authority should also consider whether the person is legally homeless.  A tenant given a section 21 notice might be homeless if it isn’t reasonable to expect them to remain in their accommodation pending eviction. In some cases accommodation might not be reasonable to occupy for other reasons, for example if they are at risk of domestic abuse.

Help with accommodation when someone is homeless

If the authority decides the person is homeless, it has a duty to help them secure accommodation that is available for at least six months. The authority must also provide emergency accommodation if it has reason to believe the person might be homeless, eligible and have a priority need. For example, if they are pregnant, have children or are vulnerable for other reasons.

Is the tenant threatened with homelessness?

Someone given a section 21 notice is legally threatened with homelessness if:

  • the notice is valid

  • the end date on the notice is in the next eight weeks

  • it relates to the property they live in as their home

The notice is valid if the landlord uses the correct form and follows the rules that apply to section 21 notices.

Section 21 notices need to give at least two months’ notice. Usually that means when someone approaches their local authority because of the notice, it will expire within eight weeks.

How to check the notice is valid

The notice needs to be on the correct form, called form 6A. You can find a version of the correct notice form on Gov.uk.

A section 21 notice might be invalid if the landlord:

  • didn’t follow the tenancy deposit rules

  • didn’t give the tenant a gas safety certificate or energy performance certificate

  • failed to give the tenant the How to Rent guide

  • doesn’t have a licence for the property if one is needed

  • served the notice after a complaint about the property

  • took a banned fee

Get quick answer on whether a section 21 is likely to be invalid using our Section 21 checker.

Is the tenant already legally homeless?

Someone who has been given a section 21 notice might already be legally homeless if it isn’t reasonable for them to occupy the accommodation. For example, because:

  • they are at risk of domestic abuse 

  • it’s unaffordable

  • it’s very overcrowded

  • it’s unsafe or a risk to their health

Read more from Shelter Legal about when accommodation is not reasonable to occupy.

Check if the accommodation is unaffordable

Accommodation is unreasonable to continue to occupy if the costs of paying for it mean the person cannot pay for basic essentials, such as food, heating and transport.

Someone living in unaffordable housing should get debt and benefit advice to make sure they have done everything they could to pay the rent. If the person’s living expenses were not reasonable, the local authority might decide that they could have paid their rent and find they are intentionally homeless.

Risk of domestic abuse

Anyone who is at risk of domestic abuse by remaining in their accommodation is legally homeless. A local authority cannot treat them as threatened with homelessness, even if the initial reason for their application was that the landlord gave them notice.

Find out more on Shelter Legal about homelessness due to domestic abuse.

What happens at the end of the notice?

An assured shorthold tenant has the right to stay in the property until the tenancy ends.

A section 21 notice does not end the tenancy by itself. The landlord needs to apply to court for a possession order and then a warrant of possession. The tenancy ends when the warrant is enforced by county court bailiffs.

Section 21 possession process

1 Landlord gives the tenant a section 21 notice
2 Landlord starts a possession claim
3 Court makes a possession order
4 Landlord applies for a warrant of possession
5 Bailiffs enforce the warrant and evict the tenant

Is it reasonable to expect the tenant to stay until eviction?

Someone is legally homeless if it is unreasonable to expect them to continue to occupy their accommodation.

The Homelessness Code of Guidance states it is unlikely to be reasonable for the tenant to remain after the notice expires if:

  • the notice is valid

  • the landlord intends to seek possession

  • there is no defence to the possession claim

  • any further efforts to persuade the landlord to let the tenant stay are unlikely to be successful

The guidance says it is highly unlikely to be reasonable for someone to continue to occupy a property beyond the date on a possession order. Local authorities should not consider it reasonable to expect someone to stay until the court issues an eviction warrant. 

Extra costs for the tenant

Local authorities should bear in mind that the landlord will still charge rent, and the tenant is usually required to pay the costs of the possession proceedings. Sometimes local authorities might offer pay the court costs if the tenant agrees to stay in the property pending eviction.

Why did the landlord give notice?

A landlord does not need to provide a reason for giving a tenant a section 21 notice. In practice there is usually a reason for notice being served. For example, because the:

  • landlord needs to move in

  • landlord is selling the property

  • tenant has made a complaint about the property

  • tenant has rent arrears or has breached the agreement

Establishing the reason for the notice can help the authority to understand if it can negotiate with the landlord to allow the tenant to remain.

Ombudsman complaint: considering the impact on the landlord

The local authority must also consider the financial impact on the landlord. 

Following a complaint from a landlord, the Local Government and Social Care Ombudsman found that a local authority was at fault for failing to follow the Code of Guidance in relation to a homeless application from a tenant who received a section 21 notice. The authority did not consider the impact of ongoing rent arrears on the landlord, as well as the extra expense of applying for a warrant of eviction. 

The Ombudsman found it was likely that if the authority had contacted the landlord and considered the statutory guidance, it would have found that it was not reasonable for the tenant to continue to occupy the accommodation.

If the tenant moves out before being evicted

If the local authority does not accept that it is unreasonable for the person to remain pending eviction, it might find them intentionally homeless if they chose to leave the property anyway.

The local authority looks at whether a person is homeless intentionally when deciding if it owes them a long-term housing duty. It must decide if they deliberately did, or failed to do something that led them to lose accommodation that would otherwise have been reasonable to occupy.

The person can request a review of a decision that they are intentionally homeless. If the decision is upheld, the authority will not have a long-term accommodation duty.

In practice, this means that if the person has nowhere else to go, it might be in their best interest to remain in the property if the local authority does not accept that it is unreasonable for them to remain pending eviction. 

Other local authority duties

Other local authority duties apply regardless of whether the person is homeless intentionally. The local authority must still:

  • accept a homeless application

  • take reasonable steps to help secure accommodation

  • arrange emergency accommodation if the person might have a priority need

Challenging an incorrect decision

A person can request an internal review if the local authority decides that they are threatened with homelessness rather than actually homeless. They have 21 days from the date they were notified of the decision to request a review.

Find out more on Shelter Legal about internal reviews of homelessness decisions.

If a local authority refuses to accept a homeless application or to provide interim accommodation, the person can challenge this through judicial review. They will need advice and representation from a solicitor.

Another option is to make a complaint to the local authority. This can be escalated to the Local Government and Social Care Ombudsman. The Ombudsman can recommend that the authority reviews its policies and procedures. For example, if the authority takes a blanket approach to when it is reasonable for a tenant to remain in occupation after a section 21 notice.

Find out more on Shelter Legal about complaints to the Ombudsman.

About the author

Douglas Jensen was a senior legal editor and trainer at Shelter. Douglas now works for the civil service as a senior content designer.