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Swindon Borough Council (201916176)

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REPORT

COMPLAINT 201916176

Swindon Borough Council

16 December 2020


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 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

  1. The complaint is about the landlord’s response to the resident’s request for succession of her late mother’s tenancy.

Background and Summary of events

Background

  1. The resident’s mother was a secured tenant at the property of the landlord from 5 October 1992 until she passed away on 20 April 2019. The resident was residing at the property at the time of her mother’s death. The landlord is a local authority.
  2. The resident’s mother’s tenancy agreement notes that following the death of a tenant, under the provisions of the Housing Act 1985, the tenancy will be transferred by succession to the spouse of the tenant, or any close relative who has been in occupation for 12 months prior to the tenant’s death. It further notes that there may only be one automatic succession, and any further successions are at the landlord’s discretion. The courts have also found that there is no automatic statutory right to additional successions beyond the initial succession.
  3. The landlord operates a three stage complaints policy. Stage three involves a referral to the ‘Tenant Complaints Panel’ who seek to determine if the landlord applied its policies and procedures correctly and acted in a fair and reasonable way.

Summary of events

  1. Following the death of the resident’s mother, the resident contacted the landlord to request succession of the tenancy. This service has not been provided with a copy of this initial request. The landlord attended a meeting with the resident on 31 May 2019, which it followed up with an email on the same date. The landlord noted that, based on its investigations, it understood that the resident had resided at the property since 28 March 2019. Prior to this date she had lived at alternative accommodation with her adult son, who had remained at the alternative accommodation when the resident moved to the property. The resident advised the landlord that her other adult son had also resided at the property for the previous 18 months, however the landlord noted it had “found official information that places him at [the resident’s previous alternative accommodation] very recently.” The landlord also noted that the resident’s mother had succeeded the tenancy from her deceased husband, and so “the legal right to one succession has been granted previously.”
  2. The landlord wrote to the resident on 20 June 2019. It advised that because the resident had only resided at the property since March 2019, she “would not have the right to succeed the tenancy.” It noted that on 24 April 2019 it had offered the resident a “homelessness assessment” to establish what her housing options were, but that the resident had “failed to engage with that assessment.” It also noted that at its meeting with the resident, the resident “gave me information that has since been found to be untrue and I believe you gave that information in an attempt to obtain a tenancy fraudulently.” It further noted it was “sympathetic to your circumstances” and so had attempted to arrange alternative accommodation. It noted that the resident had initially agreed to a one bed flat in sheltered accommodation, but that she had subsequently turned it down as she wanted to be housed with her son. The landlord advised that it did not have a duty to house her son as he “has no vulnerabilities.”
  3. The landlord wrote to the resident again on 25 June 2019. It noted that the resident had received its notice to quit the property. It noted the resident had requested a one bed general needs flat but advised that it could not offer this as the demand was too high and the resident would need to wait an “unacceptable length of time.” It also advised it had “no duty to offer you accommodation,” but was willing to support her application for sheltered accommodation, as the “vacancy rates tend to be quicker.” It further advised that the resident “must vacate [the property] by 22 July” and that it would seek possession through the courts after that date.
  4. The resident subsequently sought legal advice from a community legal advice centre. The legal advice centre contacted the landlord on the resident’s behalf on 30 July 2019. It disputed that the resident’s son had no vulnerabilities and advised that he suffered from bipolar disorder. It also requested that the resident and her son be offered a two-bed sheltered or general needs accommodation. The landlord replied on 6 August 2019 and noted that the resident had advised it she had resided at the property for 12 months prior to the death of her mother but had been unable to provide any evidence. Subsequently, the landlord had “referred the case to our fraud team because I suspected tenancy fraud,” and the fraud team had discovered the resident had been a “joint tenant with her son” at another two-bed property. It noted that the resident had left that tenancy in March 2019, but that her son remained a tenant. It advised it would not consider an offer of a two-bed accommodation and would only consider rehousing the resident in a one-bed sheltered accommodation “as a good will gesture.” It further advised that it had instructed its legal team to seek possession of the property and that, if the matter was settled in court, it would not offer rehousing.
  5. The resident made a formal complaint on 4 December 2019. She noted that she had since moved into sheltered accommodation on 6 October 2019. She advised that she had felt “bullied” into accepting this and it had affected her mental health. She subsequently requested she be allowed to return to the property.
  6. The landlord provided its stage one response on 16 December 2019. It noted that as the tenancy had already benefited from an automatic succession when it passed to the resident’s mother from her husband, any subsequent succession would be discretionary. It noted it had previously advised that the resident did not meet its criteria to allow a further succession. It disputed the resident’s assertion that she had lived at the property “for most of your life,” noting she had lived at two other properties between 1986 and March 2019. It advised that “given … you have been back at the property for one month prior to your mother’s passing, you did not qualify for a succession on discretionary grounds.” It reiterated that it had “no duty” to rehouse the resident, but had provided her with accommodation, noting “it would not have been appropriate to let you continue living [at the property]” given the number of homeless families living in temporary sheltered accommodation. It concluded that it could not allow the resident to return to the property as she “had no right to remain there” and another family had subsequently moved in. It advised the resident had the right to apply for a mutual exchange if she was unhappy with her current accommodation.
  7. The resident reiterated her complaint on 27 December 2019 to another landlord staff member, who subsequently escalated her complaint to stage two. The landlord provided its stage two response on 2 January 2020. The landlord advised it was “satisfied that [it has] acted appropriately in both the decision regarding our offer of sheltered accommodation for yourself and the decision not to allow succession of your mother’s tenancy.” It further advised it had “used discretion to ensure you were offered accommodation appropriate to your needs,” and that it had “no legal obligation to offer this accommodation, but … acted reasonably in making this offer.” The landlord also reiterated the resident had the right to apply for a mutual exchange if she was unhappy with her current accommodation.
  8. The landlord has advised this service that it subsequently met with the resident on or around 19 February 2020 to outline her options regarding her complaint. Following this meeting, the resident requested on 17 March 2020 for her complaint to be escalated to the panel stage. The landlord responded on 9 April 2020 and advised that due to the current COVID-19 restrictions, it was not possible to arrange a panel investigation, but that it remained committed to doing so once it was in a position to do so. On 27 April 2020, the resident enquired as to whether a virtual panel investigation was possible, but the landlord responded on the same date that it was not. It also confirmed it had passed the resident’s details to its wellbeing team as per the resident’s request to assist with the mental health concerns she had. The resident made several further requests for an update, to which each time the landlord confirmed that due to the COVID-19 restrictions, it was not possible to arrange a panel investigation.
  9. The landlord contacted the resident on 19 June 2020 to confirm that the panel investigation had commenced. The landlord gave its stage three panel investigation response on 12 August 2020. It firstly apologised for the length of time it had taken to review the case. It advised it had found that it “did comply with policy and implemented it correctly,” and that “due to you not being registered as living in the property in question for at least 12 months prior to your mother’s death no right to succession can be granted.” It also advised it had “no obligation to house you and your son together,” and that it had gone “above and beyond [its] legal duty in rehousing you. [It] acted quickly to find a suitable available property to prevent you from becoming homeless.” It further advised it “can find no evidence you were bullied by [its staff]. All correspondence … appears to be empathetic and professional.” It finally advised it had found that, despite a few typographical errors, its “correspondence … to yourself was clear and effective.” It also encouraged the resident to continue to work with it to find alternative accommodation.

Assessment and findings

  1. The tenancy agreement for the property notes that only one instance of succession is guaranteed, and that any further instances of succession are at the discretion of the landlord. There is no statutory right to any further instances of succession. It is not disputed that the tenancy was succeeded to the resident’s mother following the death of her husband. It was therefore at the discretion of the landlord as to whether it allowed the tenancy to succeed to the resident following her mother’s death.
  2. The landlord has advised that its criteria for allowing a discretionary succession is in circumstances where a close family member of the tenant had resided at the property for at least 12 months prior to the death of the tenant, as per the conditions in the tenancy agreement. While the landlord has indicated that the resident initially advised it that she had resided at the property for at least 12 months prior to the death of her mother, the landlord has indicated that it has not received any evidence to support this. Following the results of the investigation of its fraud team that the resident had only been in occupation at the property since March 2019, it was reasonable for the landlord to advise the resident that she did not meet its criteria for discretionary succession.
  3. Given that at the time of the resident’s mother’s death the resident was not party to a formal tenancy agreement with the landlord, it was appropriate for the landlord to request the resident complete its “homelessness assessment” so it could assess its obligation to provide housing. It is not disputed that the resident did not engage with this process and so it was reasonable for the landlord to advise it did not have a responsibility to house the resident. It was commendable, therefore, for the landlord to continue to work with the resident to arrange sheltered accommodation. The landlord appropriately responded to the resident’s request for a general needs flat by giving articulate reasons as to why it would not be possible due to the high demand. Given that the landlord was unable to establish if it had any obligation to provide housing to the resident, and that its records indicated her son was a tenant at the resident’s previous alternative accommodation, it was also reasonable for it to advise it did not have an obligation to offer joint accommodation to the resident and her son.
  4. It is standard procedure to serve a notice to quit as part of the process to arrange possession of a landlord’s property. It was appropriate that the landlord gave advance warning to both the resident and the legal advice centre assisting her of its intention to seek possession and it was also appropriate that it clearly outlined the process and the further steps it would take if required. It was further appropriate that the landlord reiterated its offers to find alternative accommodation for the resident in each communication and formal response.
  5. In the Ombudsman’s opinion, the landlord’s correspondence was empathetic regarding the resident’s mother’s death. The landlord appropriately acknowledged the resident’s concerns about her mental health and took reasonable steps to arrange for assistance from its wellbeing team. It also appropriately advised the resident how she could arrange new accommodation through its services and repeated this advice in its formal responses.
  6. While the landlord took an extended period of time to arrange for its ‘Tenant Complaints Panel’ to issue a stage three response, in the Ombudsman’s opinion, the delay was reasonable given the COVID-19 restrictions in place at that time. The Ombudsman also considers that the landlord gave reasonable updates regarding these delays to the resident over this period.

Determination (decision)

  1. After carefully considering all the evidence, in accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the complaint regarding its response to the resident’s request for succession of her late mother’s tenancy.

Reasons

  1. The Ombudsman understands that this situation must have been very distressing for the resident.
  2. The landlord appropriately applied its discretion regarding further successions and it was reasonable for it to refuse succession given that it did not have any evidence that the resident had resided at the property for the requisite 12 months prior to her mother’s death. The landlord appropriately outlined its reasons and also appropriately took steps to determine any obligations to provide housing for the resident.
  3. It was commendable that the landlord continued to arrange housing for the resident, despite it not being evident that it was required to do so. The landlord also took reasonable steps to address the resident’s mental health concerns and to advise her how to arrange for alternative accommodation.
  4. The landlord gave reasonable updates during the delays to its complaints process caused by the COVID-19 restrictions.