St Albans City and District Council (202103381)

REPORT

COMPLAINT 202103381

St Albans City and District Council

04 January 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 the landlord’s decision that the resident would have to downsize following succession to the property.

Background and summary of events

Background and policies

2. The resident succeeded the tenancy at the property on 22 February 2021, following the death of her mother on 18 February 2021, who was a secure, sole tenant at the property, through a mutual exchange which took place on 29 April 2002. The property is a three-bedroom house where the resident resides with her brother – previously her mother and brother.
3. The landlord’s succession policy states that “when a non-spouse relative qualifies to succeed but lives in a property which exceeds their housing need by one bedroom or more they are to be offered accommodation that matches their needs”.
4. The landlord has a two-stage complaints procedure whereby it aims to respond within 15 working days at stage one and within 20 working days at stage two, where the matter has been escalated through the complaints process.

Summary of events

5. In the year prior to the resident’s mother’s death, she began to contact the landlord regarding the security of her tenure at the property. This was due to her mother’s deteriorating health, as she was then likely to go into permanent care or pass away. 
6. Following an enquiry from the resident about this on 10 January 2020, the landlord responded on 22 February 2020, explaining that one of the resident’s mother’s children would be entitled to succession, but if the property exceeds housing needs, there would be a need to downsize.
7. Correspondence continued in February and March 2020 and the landlord considered its legal position on 22 May 2020, where its stance was that the resident would only be asked to downsize where succession came about by virtue of the death of the previous tenant and where that tenant was not the previous tenant’s spouse or civil partner.  This was in accordance with the law and policy.
8. The resident’s mother passed away on 18 February 2021 and on 23 April 2021, the succession of tenancy to the resident was confirmed as having taken place from 22 February 2021.  The landlord explained, however, that because the resident was under-occupying, she would need to move and asked her to register a housing application.  It also advised that the resident could request the matter to be heard by the Housing Review Panel (HRP), should she be unhappy with this decision.
9. On 11 May 2021, the resident’s GP wrote to the landlord, supporting her staying in the property, citing physical and mental health difficulties and the detriment that moving may cause, insofar as the resident would lose the support network around her.
10. On 17, 18 and 26 May 2021, the resident’s neighbours wrote to the landlord supporting her request to remain at the property, citing the support they provided to the resident.
11. On 26 May 2021, the HRP convened to consider the matter, following the resident’s request to remain in the property and determined that she could not remain.  Shortly thereafter, on 3 June 2021, the landlord wrote to the resident advising her of the outcome.  It explained that it could offer to house the resident and her brother together in a two-bedroom property, although there would be no succession right, as the tenancy would have already once been succeeded, or it could house the resident and her brother in two separate one–bedroom properties and it asked for the resident’s decision by 11 June 2021.
12. On 4 June 2021, the resident made a formal complaint to the landlord about its decision that she would have to downsize. She explained the physical and mental health difficulties she lived with and the support that she currently had around her which she would lose should she have to move.  The resident also referred to the garden at the property easing her anxiety and stressed the length of time she had lived there, as reasons she would like the landlord to consider in revisiting its decision as to whether she would have to leave.
13. The landlord acknowledged the complaint, advising that it would respond by 24 June 2021 and if it could not make this date, it would let her know.
14. On 7 June 2021, the resident reiterated the reasons she felt it important for her to stay in the property and expressed the worry that that situation was causing her and her brother who remained residing there with her. The outcome she was seeking was to be able to remain in the property.
15. On 2 July 2021, the landlord responded to the complaint at stage one of its complaints procedure, apologising for the short delay, which it explained was due to personnel being away from the office. The landlord explained that although there is a right to succession, in accordance with its policy, the resident was required to downsize to a smaller property in accordance with her housing needs.  It made the following points:
    1. In 2012, a member of the resident’s household had contacted it to enquire as to the position in respect of taking over the tenancy in the event of the mother’s death and it advised at that time that there were succession rights but if the household was under-occupying the property, then the successor would be asked to downsize.
    2. The advice from 2012 was repeated following enquiries again in January 2020, when the resident’s mother became unwell.
    3. In August 2020, the landlord received a request from the resident’s MP about the possibility of assigning the tenancy as the resident’s mother was unwell in hospital at that point.  In response, it advised that should the resident’s mother have capacity, this could happen, but an assessment of capacity would first need to be undertaken and it explained how to do this.
    4. There followed a gap of six months before the resident contacted the landlord again, which was in February 2021, to advise that she had died and to request succession. A succession form was sent, and the landlord advised the resident again at that time that she was entitled to succession, but this would be based on the existing household composition and there would be a requirement to downsize. 
    5. The same information was again reiterated, this time to the resident’s MP on 7 May 2021 and to the resident’s councillor on 11 May 2021. The matter had now been considered by its HRP, and the decision had been made.
16. The landlord explained that the next steps would be to make an application for housing, otherwise it would be seeking possession of the property, which it was sorry for but that it would rather work with the resident than take legal action.
17. On 5 July 2021, the resident requested escalation of the complaint to stage two of the landlord’s complaints procedure.  She was dissatisfied with the landlord’s stage one complaint response, as she was of the view that it had not properly considered her circumstances, including the length of time she had lived at the property, her poor physical and mental health and the local support network she had around her there, which she would lose should she have to move.
18. On the same date, the landlord acknowledged the escalation request and said it aimed to respond within 20 working days in accordance with its policy, which would be by 2 August 2021.
19. On 29 July 2021, the landlord responded at stage two of its complaints procedure. It did not uphold the complaint.  The landlord explained that although it could appreciate the resident’s reluctance to want to move, there was a shortage of three-bedroom properties in the area and it had to consider wider housing need. 
20. It said it would look to rehouse the resident and her brother in the local area and although there were currently no two-bedroom properties available, there were designated elderly two-bedroom properties elsewhere in the district. The landlord also explained that it could offer support with moving, such as assistance with removals, a handyman and cash assistance.

Assessment and findings

21. The landlord explained its position to the resident in 2012 again in 2020, on a number of occasions, following deterioration of her mother’s health. This was repeated again on a number of occasions in 2021 and throughout the complaints procedure, which included a panel hearing of the matter.  The landlord’s position was clear and consistent throughout; it did not change at any point and the landlord sought legal guidance on the issue, also, to ensure it was not applying policy or law incorrectly or in an unnecessarily dogmatic manner.
22. Although the resident feels the landlord has simply based its decision on a policy, the documentation provided to this Service demonstrates it seeking to support the resident in resolving the issue at various points, rather than a closed approach to the issue; the landlord explained in 2020 how the tenancy could be assigned while the resident’s mother was alive, for instance, although for unknown reasons, this was not taken up or responded to.
23. The landlord also agreed to offer the resident her own one-bedroom property or a two-bedroom property with her brother, highlighting the potential difficulty with the latter, given that there had already been a succession and offered support with moving.  It also noted her preference for the local area, given the friends and support she pointed out having, although unfortunately no properties were available at that point and so instead offered the potential of an elderly-only two-bedroom property.
24. This is undoubtedly a deeply difficult, upsetting and unfortunate situation for the resident – the property is not just a property but a home and one that the resident has lived in for almost two decades.  The worry and stress of losing her home, came also at a time of grief and loss and this fact is not lost on the Ombudsman, who recognises the painful reality that the resident has had to face for a protracted period of time.
25. While the landlord does have discretion not to follow its policy, as a landlord and statutory authority, it has a responsibility to allocate its property in accordance with need.  The shortage of three-bedroom properties and families in need with overcrowding issues, outweighed the individual circumstances of the resident, which were indeed heard and taken into account by the landlord, although this was not conveyed as strongly or as empathically as it could have done.
26. The decision the landlord has made is not a reflection on the resident. Considering her physical and mental health difficulties it was a difficult choice for the landlord, but one it was entitled to make it in the circumstances.

Determination (decision)

27. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in respect of the complaint.

Reasons

28. There was no maladministration by the landlord in respect of the complaint, insofar as the landlord conveyed its unchanged position over time, on a number of occasions; a position which was in accordance with policy and the law – it sought legal guidance as to the position, to ensure appropriateness and fairness in its approach.