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Lewisham Council (202015261)

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REPORT

COMPLAINT 202015261

Lewisham Council

25 November 2021


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

  1. The complaint is about:

a)     The landlord’s response to the resident’s succession application.

b)     The landlord’s response to the resident’s Right to Buy application.

c)     The landlord’s actions whilst the resident’s Right to Buy application was ongoing.

  1. The landlord’s complaint handling has also been investigated.

Jurisdiction

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint, or aspects of a complaint, will not be investigated.
  2. After carefully considering all the evidence, in accordance with paragraph 39 m of the Housing Ombudsman Scheme (the Scheme), the complaint about the resident’s Right to Buy (RTB) application is outside of the Ombudsman’s jurisdiction.
  3. Paragraph 39 m of the Scheme states that ‘the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion: fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body’. In this case, the resident’s landlord is a council, providing functions as both a landlord and as a local authority. Complaints about an RTB process concern the disposal of property by the Council in its capacity as a local authority and complaints about the actions of a local authority are a matter for the Local Government & Social Care Ombudsman (LGSCO). I am therefore satisfied that the Housing Ombudsman cannot consider this aspect of the complaint any further. The landlord’s response to the resident’s reports about succession and it considering the property unoccupied are within jurisdiction however and have been considered below. Any reference to the RTB process detailed below is included for contextual purposes only.

Background and summary of events

Background

  1. At the time of the complaint, the resident occupied the property on a ‘use and occupation’ basis following the ending of his mother’s secure tenancy in August 2020.
  2. The landlord has provided its standard secure tenancy agreement, which confirms that a joint tenant will automatically succeed the tenancy. This is reflected in the landlord’s succession procedure document, which also confirms that, following a succession, any further applications will be considered as an application for a discretionary succession.
  3. The succession procedure outlines the criteria for the landlord considering a discretionary succession, including the requirement that the applicant has a housing need. In the event that a discretionary application is refused, the landlord will confirm the decision in writing, offer housing advice and issue a Notice to Quit, upon expiry of which the persons remaining in occupation will be considered ‘unauthorised occupants’, with a ‘use and occupation’ account set up for their continued occupation.
  4. The resident’s mother was a joint tenant at the property with the resident’s father, until his father’s death in September 2019, following which his mother succeeded to the tenancy in her own right. The resident has said that he had moved into the property in February 2019 in order to provide care to his parents and, following his father’s death, he and his mother made a joint RTB application. The resident’s mother died in May 2020, with the RTB application ongoing at that point.

Summary of events

  1. The resident notified the landlord on 22 May 2020 of his mother’s death. He also enquired about how to make rent payments. The landlord responded on 9 June, confirming that his mother had already succeeded to the tenancy, but that the resident had the option of making an application for the landlord to consider him for a discretionary succession. The landlord informed the resident that it would serve a Notice to Quit (NTQ) on the property in order to protect its interests in the event that a succession was not granted. It also noted that its records showed that his mother had been living at the property on her own as it had received no response to previous requests for an update on her household composition.
  2. The resident made an application to succeed to the tenancy on 9 June 2020. He said that he and his mother had previously responded to the requests about household composition; he also provided welfare benefits correspondence from the landlord’s benefits team that confirmed updated household details. Following this contact, the resident supplied the landlord with additional information in relation to his succession application.
  3. The landlord emailed the resident on 18 June 2020 to confirm that his succession application would not be successful as it had identified that he had a mortgage elsewhere and therefore could not demonstrate a housing need. It provided him with a ‘deceased tenant termination notice’, which it requested he complete and return along with the keys to the property so that it could end the tenancy. The landlord followed this up with a formal refusal letter regarding the succession application on 24 June 2020, in which it confirmed that it would serve a NTQ in due course and that the resident would be liable for use and occupation charges from the point that the NTQ expired. The NTQ was subsequently served on 30 June, with a commencement date of 13 May 2020 (the date of the resident’s mother’s death) and an expiry date of 9 August 2020.
  4. On 1 July 2020, the resident requested a temporary license to remain in the property whilst his RTB application continued. The landlord responded the following day to say that he was unable to purchase the property as his succession application had been refused and he had been served with an NTQ. The resident was dissatisfied with this response and made further contact that same day expressing his belief that he had the right to continue with the RTB application.
  5. The landlord’s records, as detailed in its summary of the case at stage three of its complaints process confirms the following correspondence (though the actual correspondence detailed below is not available to this investigation):

a)     6 July 2020 – Resident emailed the landlord, requesting confirmation as to whether his RTB application can proceed.

b)     14 July 2020 – Resident emailed again, providing ‘transcripts from the RTB agent’ which advised that his RTB application can proceed.

c)     14 July 2020 – Landlord’s RTB team acknowledged the resident’s contact and advised that it will respond within 10 days.

  1. On 15 July 2020, the landlord’s homeownership team contacted a government advice agency in relation to the resident’s circumstances. It asked whether the resident could continue with the RTB application given the succession refusal and NTQ it had served. The agency responded on 21 July to say that the RTB application could continue if the resident had been accepted on the existing application at the point his mother passed away, though it also advised to seek further clarification on this matter.
  2. Also on 21 July, the landlord’s home ownership team asked its RTB team whether the resident could continue with the RTB application, given that he did not have a secure tenancy.
  3. On 22 July 2020, the landlord reiterated to the resident that he did not have the right to purchase the property and also said that it would be seeking possession when the NTQ expired. The resident responded to confirm that he understood that he was not entitled to succeed to the tenancy, though he had received legal advice that confirmed that he had the right to continue with the RTB application.
  4. On 27 July 2020, the landlord’s RTB team emailed the resident to say that he did not have the right to continue with the RTB application as he had ‘no legal right’ to the property.
  5. The landlord wrote to the resident on 13 August 2020 to say that the NTQ had now expired and that he was required to leave the property immediately as he was an ‘unauthorised occupant’. It also confirmed that he would need to make use and occupation payments until he left the property, for which it provided him payment arrangement details. The resident responded immediately to confirm that he was awaiting a response from the landlord’s RTB team regarding his rights. In addition, he said that he had requested that the NTQ be put on hold and that he continued to make payments of rent.
  6. The landlord responded to the resident on 14 August 2020 to say that it understood that its RTB team had confirmed that the RTB application could not proceed and that it required possession of the property. The resident did not agree, confirming that his legal advisor would make contact regarding his rights. The landlord’s records confirm that, following the resident’s contact, its tenancy audit team had advised that the RTB application should proceed, in accordance with legislation.
  7. The landlord’s stage three summary notes refers to the following correspondence (the actual contact is not available to this investigation however):

a)     16 September 2020 – Internal email advising that the issue was being raised with its legal team.

b)     17 September 2020 – Internal email confirming that the RTB application should proceed. ‘based on RTB legislation’.

  1. The landlord completed its stage two response on 24 September 2020, though the independent adjudicator report (below) stated that this was not sent to the resident until 30 October 2020. The landlord confirmed that, in its view, the NTQ from June 2020 was valid as it was issued to the personal representatives of the resident’s mother and the notice effectively ended the secure tenancy at the property, with the resident becoming liable for use and occupation charges at the expiry of the notice. The landlord confirmed that the RTB application could continue as the resident had been included on his mother’s RTB application prior to her death. It apologised for any distress it had caused in responding on this issue previously. Relating to its decision to change the locks at the property, the landlord said that a new staff member had mistakenly understood the property to be vacant at the end of his mother’s tenancy. The landlord apologised for this error and said that it had identified learning from the complaint for relevant teams so that similar errors would not re-occur.
  2. The RTB application proceeded, with the resident requesting compensation for the inconvenience he had experienced in its management of the RTB process, with the landlord confirming, on 24 December 2020 that it was not considering payment of compensation. When he escalated his complaint to stage three of the landlord’s complaints process (date unknown), he clarified that this included his concerns that he would be unable to complete the purchase prior to the lowering of the stamp duty threshold on 1 April 2021.
  3. The independent adjudicator instructed to investigate the complaint at stage three of the complaints process completed this final review on 22 February 2021. The complaint was summarised as relating to, the delay in reinstating the RTB application, the landlord failure to recognise the resident as an authorised occupant of the property and its failure to offer compensation for its failures and attempts to evict the resident.
  4. The independent adjudicator excluded the complaint about whether the resident was an ‘authorised’ occupant from the review on the grounds that this was a court matter. The delay in reinstating the RTB application has not been investigated here so the stage three response on this issue will not be referenced further. In regards compensation, the review concluded that the resident had the option of challenging the landlord’s possession action through the courts, including concerns about the notice period on the NTQ and whether he was occupying illegally. As such, the review found that it was not appropriate to offer the resident compensation for its actions in its attempts to evict the resident (including changing the locks). The review recognised the distress experienced by the resident throughout the process but linked this primarily with his bereavement and the ‘general stress’ resulting from the ongoing pandemic.
  5. The stage three review identified complaint handling issues, namely the date that the stage two response was sent not matching the date it was completed and its failure to specifically address the ‘occupancy checks, the attempt to evict (the resident), or correspondence telling him to move out’, though it identified that these issues had ‘broadly’ been covered in the stage two response when it commented on the validity of the NTQ.
  6. In a call with the Ombudsman on 4 March 2021, the resident highlighted the notice period on the NTQ (which had been backdated and therefore gave less than the required three months). He also said that the landlord repeatedly turned up at the property during lockdown unannounced, including sending a locksmith to change the locks in July 2020, following which he had submitted a formal complaint. He said that he had only ever had an apology for the landlord’s failures and that, in the circumstances, this was not appropriate.

Assessment and findings

Scope of the investigation

  1. The jurisdiction section above has explained why the LGSCO are the appropriate body to take up the complaint relating to the RTB process. Nonetheless, it has proven essential to the investigation at hand to reference in some detail the landlord’s response to the RTB enquiries raised by the resident. It is clear that the landlord’s concerns about the resident’s RTB application impacted upon its consideration of the complaint, including its actions to secure possession of the property following the refusal of the discretionary succession application.
  2. At the final stage of the complaints process, the independent adjudicator confirmed the view that the resident had the option to challenge the landlord’s possession action, including the details of the NTQ, through a court process and, as such, the complaint about whether the resident was authorised to occupy the property sat outside the complaints process. Whilst the Ombudsman agrees that the resident had the option to challenge the landlord’s actions through the courts, it remains that there were aspects of this part of the complaint that sat within the landlord’s complaints process.
  3. It is noted that the evidence available to this investigation appears to be incomplete. There is no evidence of a stage one complaint response, no evidence of the resident’s formal complaint or the landlord’s (undisputed) attempts to change the locks at the property (both from July 2020). In addition, the summary of events has listed some details from the landlord’s stage three summary that were not available to this investigation. This investigation has progressed on the evidence available, with the landlord’s record keeping identified as a possible issue in the assessment of its complaint handling.

Succession

  1. The landlord responded appropriately and in a timely manner to the resident’s application to succeed to the tenancy. It confirmed that his mother had succeeded to the tenancy upon the death of his father and that, as such, he would need to apply for a discretionary succession. This application was refused on the basis that the resident had a mortgage elsewhere and therefore could not demonstrate a housing need, as required by the landlord’s succession policy.
  2. It is noted that, in the evidence, the resident has not disputed this aspect of the case. His concerns relate primarily to whether the RTB application could continue and the landlord’s actions whilst this was established.

The landlord’s actions whilst the RTB application continued

  1. The landlord did not dispute that it had attempted to change the locks at the property, referring to an error made by a new staff member and for which it apologised. No contemporaneous details were available about this incident, as such, it is reasonable to rely on the resident’s assertion that this took place in July 2020 (in advance of the NTQ expiry date). Whilst the landlord has pointed towards human error for this issue, the Ombudsman notes that there is no evidence, at any point, that the resident had any intention of vacating the property. His language was consistent throughout, he wanted to continue to make payments of rent, he wanted to succeed to the tenancy and wanted to continue with the RTB application. In the circumstances, it is difficult to see the basis upon which the landlord took the action that it did.
  2. It is also evident that the landlord continued to correspond with the resident throughout July and August 2020 in such a manner as to demand that he vacate the property. It clarified that the NTQ expired on 9 August 2020 and that he would be an unauthorised occupant from that point onwards and then confirming, upon the expiry of the NTQ that he was now considered an unauthorised occupant with his ongoing residence based upon ‘use and occupation’ only.
  3. However, it is also evident that, at the same time that the landlord was writing to the resident informing him that he had no right to purchase the property and that he would need to vacate, it was also making enquiries to establish whether it had accurately considered its position here. It enquired of a government sponsored agency, on 15 July 2020 as to whether the RTB application could proceed and received a response on 21 July 2020 that this was likely to be the case. Despite having this information available to it, the landlord continued to progress down its possession procedure.
  4. In the circumstances, the Ombudsman does not consider the landlord’s apology to provide reasonable nor proportionate redress for its service failures here. It was essential that it put the resident at the centre of its service delivery. Instead, it acted in a heavy–handed manner, sticking to its position that he would need to vacate and including a direct attempt to exclude him from the property by changing the locks. These actions might have resulted in the resident vacating unnecessarily, with a resulting impact upon his RTB application.
  5. It is also likely that the landlord’s actions will have impacted upon the wellbeing of the resident. The stage three review sought to downplay the impact of the landlord’s actions here, referring to the bereavement the resident had experienced and the impact of the pandemic. In the Ombudsman’s view, these factors were additional reasons to act with a degree of empathy and understanding. Instead, the landlord’s actions had the effect of adding to the resident’s distress at a very difficult time.

Complaint handling

  1. The landlord’s stage three review highlighted that there was no evidence of a stage one complaint response on the case. In addition, the review highlighted a delay in sending the completed stage two complaint response (completed on 24 September 2020, but not sent until 30 October 2020). In the absence of the actual dates that the resident complained, or sought escalation of his complaint, it has not been possible to identify to what extent these failures contributed to a protracted complaints process, though is clear that there were delays. The original complaint was submitted in July 2020 and the final response not sent until February 2021, this represents an unacceptable delay in progressing the case through the complaints process.
  2. A timely and effective complaints process might have identified the landlord’s service failures at an earlier point. This might have had a positive impact upon the substantive matters at hand and resulted in reassurance and clarity for the resident.
  3. In addition, the landlord has not demonstrated that it has retained a sufficient and contemporaneous records of events. There is no evidence of a stage one response and important information has not been made available, such as the original complaint. Such records are essential aspects of a landlord’s service delivery as they inform decision making and provide an audit trail after the event.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme (the Scheme) there was no maladministration with respect to the landlord’s response to the resident’s succession application.
  2. In accordance with paragraph 39 m of the Scheme, the complaint about the Right to Buy application is outside the Ombudsman’s jurisdiction.
  3. In accordance with paragraph 54 of the Scheme, there was maladministration with respect to the landlord’s actions whilst the Right to Buy application was ongoing.
  4. In accordance with paragraph 54 of the Scheme, there was service failure with respect to the landlord’s complaint handling.

Reasons

  1. The landlord’s refusal of the resident’s discretionary succession application was in accordance with its policy.
  2. The landlord attempted to change the locks whilst the resident remained in occupation and prior to the expiry of the NTQ it had issued. The landlord also continued with its attempts to secure possession of the property despite simultaneously making enquiries as to whether it had correctly identified that he did not have the right to proceed with a RTB application. In all the circumstances of the case, its actions present as acting in a heavy handed and unreasonable manner towards a resident who had recently suffered two bereavements.
  3. The landlord failed to send a stage one complaint response and delayed in sending its stage two response. In addition, there were significant record keeping failures that contributed to its poor handling of the complaint.

Orders and Recommendations

Order

  1. The landlord to pay the resident compensation of £400, broken down as:

a)     £300 for the service failures identified with its actions whilst the Right to Buy application was ongoing.

b)     £100 for the service failures identified with its complaints handling.

  1. The landlord to confirm compliance with the above order by 23 December 2021.

Recommendation

  1. The landlord to review the case and consider whether any relevant policies and procedures require amendment.