Dudley Metropolitan Borough Council (202125040)

REPORT

COMPLAINT 202125040

Dudley Metropolitan Borough Council

18 October 2023

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

This complaint is about the landlord’s decision to end, and not regrant, the resident’s tenancy.

Background

The resident was a secure tenant of the landlord, occupying a 3-bedroom house. The tenancy ended on 12 April 2021 following a notice to quit being sent in by the resident’s spouse. There is currently a use and occupation agreement in place.
The resident has a number of recorded medical conditions, including fibromyalgia, anxiety, panic attacks, and arthritis.
The resident had a joint tenancy with their spouse, which began in 1993. In early 2020, the resident’s spouse was released from prison after 4 and a half years. They returned to the matrimonial home. In April 2020, the relationship broke down and the spouse applied to the landlord for new housing. Around 2 June 2020, the landlord spoke to the resident and said they would also need to apply for new housing. The resident’s daughter wrote to the landlord to ask that it reconsider this request based on the resident’s medical conditions. The landlord wrote to the resident to confirm that it would not reconsider.
On 22 June 2020, the landlord had a housing interview with the spouse and said they would need to “relinquish their half of the tenancy at the point of any offer”. No evidence has been provided of further contact between the landlord and the resident or spouse until December 2020. On 23 December 2020, the landlord offered the spouse a new tenancy on a one-bedroom property. The spouse moved into this property on 8 February 2021.
On 12 March 2021, at the request of the landlord, the spouse submitted a notice to quit the tenancy (otherwise known as a termination of tenancy document or a notice to terminate) in respect of the matrimonial home. On 17 March 2021, a letter was sent to the resident advising that their tenancy would end on 12 April 2021. The landlord spoke to the resident around the same time to confirm that they would not be granted a sole tenancy of the property. On 13 April, the resident was moved onto a “use and occupation” agreement and was considered an illegal occupant of the property.
As part of the process of terminating the tenancy, the landlord agreed to consider whether the resident could remain in the property on medical grounds. On or around 2 June 2021, the resident’s spouse was receiving end of life care and moved back into the property. The spouse died on 3 June 2021.
Around July 2021, the landlord declined the resident’s request to remain in the property as it was outside their housing allocation policy. The landlord asked the resident to make a new housing application. The resident completed this in September 2021 and submitted medical evidence. At the same time, the resident appealed the decision not to allow them stay in the property. This was on the basis that the move would have a negative effect on their physical and mental health. The resident claimed that they needed a 2-bedroom property due to needing a regular carer and received housing benefit on this basis.
The landlord responded to the appeal on 26 October 2021. It declined the appeal on the basis that the tenancy was ended correctly and the medical assessment did not identify any need to remain in a 3-bedroom property. It also said that 3-bedroom properties are much sought after in the local area and it did not consider that allowing the resident to remain in the property would be the best use of its housing stock. It said that the resident would only be offered 1-bedroom properties.
On 15 November 2021, the resident appealed that decision to stage 2 of the landlord’s appeal process. That appeal raised concerns about the landlord’s decision making, namely that:
1. The landlord’s occupational health professional did not meet the resident at any stage or visit the property.
2. The resident provided evidence that a carer was required to manage their medication, but this was not taken into account.
3. The landlord was biased, and the resident felt the process was designed solely to remove them from the property.
4. The landlord did not assess the resident’s mental health, nor did it contact the resident’s doctor or counsellor.
On 22 December 2021, the landlord wrote its final response to the resident. It confirmed that it would not review the decision as the stage 2 appeal did not meet its criteria, defined as:
1. The decision has been made on a factual error.
2. There has been evidence of an oversight on a significant piece of evidence.
3. New evidence has been provided to support the original complaint, which was not included with the original submission.

It further explained that it had spoken to the occupational health team and that a phone assessment was completed, which included consultation with health professionals and a review of the evidence provided.

The resident escalated their complaint to this service in February 2022. The landlord has confirmed that it still considers the resident to be an illegal occupant and is reviewing its options for removing them from the property. The landlord has been providing housing options for the resident, but these have been limited to 1-bedroom apartments and bungalows. The resident has said they will not consider moving unless a suitable 2-bedroom property is identified.
Since the landlord issued its final response, the resident has made further complaints alleging that the spouse did not “have the capacity” to make housing decisions due to their health at the time. The resident also alleged that the landlord “bullied” the spouse into submitting the notice to quit. The resident has provided additional medical evidence to support their request for a 2-bedroom bungalow, but it is unclear if this has been considered by the landlord.

Assessment and findings

Legal background, landlord policy, and sector guidance

Joint tenancies can normally be ended by either party informing their landlord that they wish to do so. This has been established in case law and is common in joint tenancy agreements. It is also normally the case that joint tenancies are not “assigned” from both parties to one of the parties without the landlord’s consent. One exception to this is where the parties separate in either a marriage or civil partnership and apply to the Family Court for a transfer of tenancy under the Family Law Act 1996.
While holding a secure, social, tenancy agreement, tenants are expected to use the property as their “only or main” home. The tenancy agreement allows for movement away from the home for periods exceeding a month, providing notice is given to the landlord. In cases where notice is not given, the tenancy agreement says that the landlord will seek to end the tenancy agreement. There are common exceptions in cases where a tenant is in prison and intends to return to their home on release.
The landlord’s Housing Allocation Policy has a section on “matrimonial rehousing”, which deals with tenancies following a relationship breakdown. However, the section only considers housing in respect of separations where children are involved. There is a section in the same policy on “conversion to sole tenancies” which says that:

“A joint tenancy may be transferred solely to either party if either:

The other party dies and the succession rules apply.
The tenancy transfer is ordered by a court as part of a matrimonial settlement.
There is a matrimonial breakdown, either partner gives notice on the joint tenancy, and the tenancy of the family home is being transferred to the sole name of the partner with primary care of the children or, where there are no children, to either partner who is eligible for the property size under Section 7.
Single people/couples have been sharing but one or more has/have given notice, and the remaining sharer(s) are eligible and suitable to take on the sole tenancy.”

The council has further provisions in its policy which can “require” tenants to issue a notice to quit a tenancy in cases of relationship breakdown. However, the policy says this is only used where a tenant either refuses to move or cannot be traced.

The landlord also has a “selection process” which deals with movements of tenants between properties in the landlord’s stock. Under this section of the policy:

“Where a current tenant accepts and signs up for a new tenancy, they will need to terminate their current tenancy on the same date or be liable for rent on both dwellings during the week of transfer. If the current tenancy is joint, all parties must sign the termination of tenancy document.”

The Housing Allocation Policy has a specific section on exceptions, reviews, and appeals. That section allows for decisions outside of policy to be made in exceptional circumstances, including:

“To accept a request for transfer within two years or with arrears or other breaches of tenancy, or allow a joint tenancy or mutual exchange that would not otherwise be allowed, or an allocation of a property to a former joint tenant, an under-occupying successor, a non-successor, or other lodger left in occupation of that property – authorised by Team Manager (Estates & Communities) or Head of Service”.

In 2015, the House of Commons Library issued Briefing Paper 05149 in respect of ending a joint tenancy. This set out the legal position of joint tenancies, their benefits, and best practice for councils. This highlighted the legal position that one party ending a joint tenancy, ended it for all parties. It confirmed that landlords have discretion to grant sole tenancies to remaining tenants, as long as this is outlined in its allocation scheme. It also provided advice relevant to this particular complaint. Namely:

“Landlords will be cautious when advising joint tenants on the question of terminating a joint tenancy as they will want to avoid suggestions of having procured a notice to quit with a view to repossessing the property in question for re-letting.”

In the briefing notes section on the court’s powers to transfer tenancies into sole names, it explains the factors courts will consider in such requests, including a landlord’s views on the suitability of a property for one tenant. It highlights that:

“In all cases concerning tenancy transfers constituents are best advised to seek professional legal advice and assistance.”

The complaint

The landlord became aware that the spouse was seeking housing in April 2020 and that the relationship had broken down. At the time, the landlord placed the spouse on the lowest banding for rehousing. According to their notes the spouse had “no need” and could continue to reside in the matrimonial home. Specifically, the landlord said that the spouse and resident did not qualify under its separation criteria as there were no children in the property. As the spouse had been in prison since 2015, this seems like an unreasonable approach from the landlord. It would have been reasonable to consider what was in the interests of all parties in such a situation and whether exceptional circumstances applied.
The landlord then gave 2 sets of conflicting advice in June 2020. It told the resident and spouse that the tenancy would need to be terminated, but then it advised the spouse they could relinquish half of the tenancy. The landlord does not seem to have considered this contradiction at any point during its internal process and how this may have affected the resident and spouse’s choices. The resident has maintained that they always intended to remain in the property. They had lived on their own for nearly 5 years so it seemed unreasonable to them that they could now be evicted.
It is quite clear that at this stage there was a dispute over the tenancy and a matrimonial breakdown. The landlord should have advised both parties to seek professional legal advice and, if necessary, apply to the Family Court. Based on the evidence provided by the landlord, there is no indication that this option was ever considered.
There is no further evidence of consultation with the resident or spouse until the landlord offered the property to the spouse in December 2020. According to its own records, it said that it expected the tenancy to be ended at the point of such an offer. That did not happen and the spouse was allowed to sign a new tenancy. This is despite the landlord’s policy stating that, on moving from a joint tenancy, both parties should sign a notice to quit.
It is clearly preferable for a tenant to hold a single tenancy, and it is normally expected that a resident has a primary home for the purpose of the tenancy agreement. However, the landlord allowed a situation where this was not the case. While it could have decided to seek possession of the resident’s home on this basis, which would have been in line with its policy, instead it decided to advise the spouse to submit a notice to quit. If it had followed its policy, the resident would have received warnings prior to the tenancy being ended.
The resident suggested that the notice to quit was obtained by the landlord “bullying” the spouse. There is no evidence to support this statement, and so we make no judgement on this. However, the briefing paper makes it clear that landlords should avoid such a perception by not providing advice on submitting a notice to quit. The landlord’s actions may have created a reasonable perception of bias because no advice was being offered to the other party to the tenancy. Had the landlord followed its own policy, it is likely that both parties would have been able to access advice and potentially avoid the situation that resulted.
The landlord determined under its policy that it could not allow the resident to remain in the property once the tenancy ended. We have no evidence as to how this decision was communicated, but based on the other evidence available it is likely that this was done over the phone. The subsequent appeal was heard in a meeting. The decision letter says that the landlord only considered the resident’s support network, the fact that the tenancy was terminated legally, and the landlord’s need for 3-bedroom houses. The landlord’s policy says that it should have considered exceptional circumstances in such a case. There is no evidence that it considered the circumstances that led to the tenancy being ended.
The landlord declined to consider the stage 2 appeal request on the basis that it did not meet its criteria. It is clear there is a dispute over what evidence the landlord’s occupational therapist considered. In the evidence we have received, we can see that an occupational health assessment was made which recommended a 1-bedroom adapted or non-adapted property. It would have been reasonable for the landlord to consider why the resident was receiving housing benefit for a 2-bed property in this case. While the 2 organisations may not necessarily agree on any such decision, we think the landlord should have been curious about this. Instead, it simply told the resident that they should query this with the housing benefit team.
From the point at which the spouse was released from prison, we can find very little evidence that the landlord has followed its own policies and good practice:
1. It offered contradicting advice on avenues to find a new tenancy for the spouse.
2. It failed to offer appropriate advice to either the resident or the spouse, in respect of legal options.
3. It failed to follow its own process for moving tenancies.
4. It circumvented its own policy for situations where a joint tenant left the property.
5. It did not consider exceptional circumstances in respect of regranting a tenancy.
Taking these failures into consideration, alongside the impact of the resident losing their tenancy, we determined that there was maladministration in the landlord’s handling of this complaint.
It then comes to how the situation can be resolved. While we have determined there to be a significant failure in how the resident’s situation was handled, we do recognise that remaining in a 3-bedroom un-adapted property may not be appropriate for the resident. We also must consider that, if the landlord had followed the correct process, it is possible that the tenancy would still have been ended.
With this in mind, we wrote to the landlord to ask what it intended to do moving forward. We asked it to consider whether it could regrant a tenancy to the resident considering the failings identified. The landlord then wrote to the resident to offer:
1. 3 direct offers of housing, with moving costs to be paid.
2. £1,000 in compensation.
We have considered the landlord’s offer and determined that it was a reasonable one. With this in mind, we agree that it has offered a suitable remedy for the failings identified, following our intervention. The landlord should ensure it carries out these actions after considering the resident’s support needs, housing preferences, and any other evidence it has available. It would not be appropriate for the Ombudsman to make orders as to what kind of offers the landlord should make, as this would be within the landlord’s expertise and knowledge.

Determination

In accordance with paragraph 53(c) of the Housing Ombudsman Scheme, the landlord has made a reasonable offer of redress, following the Ombudsman’s intervention.

Recommendations

The landlord should carry out its promised actions, including:
1. Pay £1,000 compensation to the resident for distress and inconvenience caused by the loss of their tenancy.
2. After considering any evidence it has available to it, find a suitable alternative home for the resident and make at least 3 direct offers of housing.
3. Pay reasonable moving costs for any move agreed as a result of (b).
4. Write to the resident, explaining exactly what it intends to do moving forward, including whether it intends to seek possession through the courts. It should provide indicative timescales for any such actions where possible.
The landlord should review its housing allocation policy and consider the following:
1. Whether the matrimonial rehousing section should consider situations where no children are involved.
2. Whether there is a need for guidance on tenants returning from prison.
3. That its moving policy should reflect practice in respect of joint tenancies.
4. When residents should be advised to obtain legal advice.
5. What qualifies as exceptional circumstances in section 19.
6. When it is, and is not, appropriate to tell tenants to submit a notice to quit their tenancy.