Central Bedfordshire Council (202109175)

REPORT

COMPLAINT 202109175

Central Bedfordshire Council

13 July 2022

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 concerns the landlord’s handling of the resident’s request to succeed to the tenancy.

Background and summary of events

2. The property is a three-bedroom semi-detached house.
3. The original tenancy started on 24 November 1986 and was in the joint names of resident’s mother and father who were secure tenants. The tenancy was succeeded by resident’s mother in 2018. The resident’s mother died on 5 February 2021. The resident and her brother had been occupants of the property since their respective births.
4. The resident has reported to the landlord that she had mental health issues and is undergoing counselling for this. This is noted in the landlord’s records.
5. On 8 February 2021, the resident called the landlord to advise of her mother’s death on 5 February 2021.
6. On 22 February 2021, the resident called the landlord and was told she and her brother had no right to succeed the tenancy.
7. On 26 March 2021, the landlord issued a 28-day Notice to Quit (NTQ) addressed to: “the personal representatives” of the tenant asking for vacant possession of the property by 26 April 2021. This document confirmed it had been served due to the tenant passing away and there were no succession rights. It said that it was a legal requirement that a Notice to Quit was served in these circumstance, and court proceedings commenced, if necessary, to obtain possession no later than 12 months following the date the tenant passed away. It further stated that they had been advised to make an application onto the Housing Register and that it would hope that this was achieved before the 12 month period came to an end. It said if they needed further help and advice regarding their future housing needs to contact its Housing options team.
8. On 29 March 2021, the resident’s brother called the landlord and spoke to its Assistant Estates Management Officer (AEMO) seeking a solution to the situation.
9. The resident raised a complaint with the landlord on 31 March 2021. Within her letter she said managers had failed to contact them as promised during calls on 8 and 22 February 2021. Following its service of the NTQ on 26 March 2021, the resident said she attempted to get in touch with the landlord again to resolve the matter, but her attempts were unsuccessful, although she was advised to appeal its decision in writing. The resident asked that her communication be treated as a request to appeal its decision and formally complain.
10. The resident explained why she felt that they had a right to stay in the property including:

1. She had lived at the property since 5 December 1986 and her brother had lived there since 28 August 1993. The property had been a family home for many years and memories that come with it were irreplaceable.
2. She suffered from mental health complications and was currently undergoing counselling.
3. She and her brother both work full time and therefore they were fully able to pay rent and bills.
4. She was aware of instances where second successions of tenancy had been granted to children living at the property where parents had passed away.
5. As a result of the NTQ, they potentially faced being made homeless.

11. The landlord provided a complaint response on 27 April 2021. Within its response it explained that it had considered her complaint under its complaint process. It said it offered “sincere condolences” on the loss of her mother.
12. It stated whilst it had taken on board the resident’s comments regarding the length of time she and her brother had lived at the property, under the Housing Act and under the terms of the tenancy, only one succession could take place. It explained that when her father passed away, her mother succeeded to the tenancy, therefore, one succession had taken place and no further successions could occur under the tenancy.
13. The landlord explained that whilst in certain circumstances, it could grant discretionary tenancies. When making this decision, the landlord considered the demand for the type of property and explained as it had three bedrooms and it was a 5- person property, it was suitable for families and was in high demand. It said as a responsible landlord, it must make use of the stock it had available. Therefore, whilst it could offer her and her brother a tenancy, they were required to move from the property to an alternative suitably sized accommodation. It said its AEMO would contact her and explain how to move forward and what options she had available.
14. On 4 May 2021, the resident’s brother wrote to the landlord raising concerns about way the matter had been handled. He explained they would prefer to speak to someone at the landlord, so it understood the full circumstances and their case was handled with the correct care it deserved.  He said he had tried to discuss the matter when he called it on 8 February, 3 March and 4 March 2021 without success although on 29 March he spoke to its AEMO about a possible short-term tenancy and was told he would hear back within a couple of weeks.  He stated that a month had passed yet he had not heard back.
15. The landlord arranged for an officer to meet with the resident and her brother at the property on 12 May 2021 to resolve their concerns. The landlord made notes of the meeting which it sent to the resident.
16. These showed that the parties discussed the reasons why the residents did not have a right to succession and why their individual circumstances were not such that it would grant a discretionary tenancy. The landlord advised the resident that ‘Use and Occupation’ charge of £122.64 per weeks was payable since February 2021 and that £1200 was owed. 
17. It apologised that there was not full communication prior its service of the NTQ so the residents fully understood the necessity for taking this step. The notes indicate actions were agreed including that the landlord would make a referral to a Tenancy Sustainment Officer (TSO) due to the resident’s mental health to provide support through the process.
18. On 13 May 2021, the resident advised the landlord that she disputed its decision that mental health was not a valid ground to remain at the property. She also disputed liability for the usage charges as she had not previously been notified of any liability, charges had accumulated to £1200 since February 2021.  The resident stated that they were happy to pay this going forward once they received clarification of the charges in writing.
19. On 14 May 2021, the landlord sent a letter to the resident confirming the outcome of the meeting. Within its communication, the landlord advised that it had received confirmation from resident that she and her brother wished to be housed together and she would hold the tenancy with her brother as the household member. It provided documents that it said were required to verify their application. It referred to the resident’s query as to whether her significant mental health issues would have any bearing on the decision not to grant the tenancy. It reiterated that this would not as the decision was a point of law as defined within the Housing Act 1985. It said its response given at the time of the visit in relation to her request was not intended to diminish in any way the severity of any mental health that she was currently experiencing.
20. The landlord also said it accepted that communication could have been improved prior to the service of the NTQ and again would take this opportunity to apologise for any distress caused to the resident and her brother.
21. On 17 May 2021, the resident wrote a letter to the landlord setting out points that she wanted the landlord to consider at the review stage of its complaints process. These included:

1. The apology was not sufficient for the lack of communication which she said was “appalling”.
2. Her mental health condition was “brushed over too easily” by the landlord.
3. She had not received communication in relation to the occupation charges prior to point is told they owed £1200. She requested a contract with terms and conditions in relation to the charges.

22. On 18 May 2021, the landlord provided a ‘Use and Occupation statement’ to the resident. The resident replied advising that she was still disputing arrears of the usage charge and raised queries in relation to the formalities of the statement which the landlord promptly responded to.
23. On 28 May 2022, the landlord sent the resident a complaint response at its ‘Formal Investigation’ stage. The landlord acknowledged her points raised in her 17 May 2021 communication and reiterated its apologies for the lack of communication and the early NTQ. It referenced its prior apologies given for this in its 27 April 2021 response and in person when its officer visited her and her brother at the property. It said that the face-to-face meeting was arranged in recognition of the issues raised and to provide her and her brother the opportunity to ask any questions and raise any concerns that they had. At this meeting, its officer answered their questions however explained the reasons why the notice needed to be served but also acknowledged that the situation should have been dealt with more sensitivity and that the process should have been communicated to her throughout. It was sorry for any undue stress this caused, but the NTQ was an unavoidable legal step in its processes for dealing with succession cases where no further succession rights exist. It concluded whilst the service of the NTQ was an appropriate action to take, it upheld her complaint on the poor communication she had experienced.
24. Further, it recognised that the situation had been stressful and that she was suffering from a mental health issue but explained this was not necessarily in itself a reason to override legislation and grant a discretionary tenancy. It said whilst it did take into consideration facts such as mental well-being and history at the property, these needed to be weighed against demand for the property in the area. It reiterated that demand for family sized accommodation in the area outstripped supply, and as she and her brother only needed two bedroomed accommodation, it was therefore asking them to move elsewhere. It reiterated its commitment to looking to offer them alternative accommodation to help resolve their housing needs. It therefore did not uphold her complaint that her mental wellbeing had been “brushed aside”.
25. It said that during the visit on 12 May 2021, its officer had explained her responsibility to pay the continued ‘Use and Occupation charges’ in relation to the property effective from February 2021. It said it was important that they started paying the weekly amount due of £122.64 as soon as possible to prevent the outstanding balance increasing. However, it acknowledged that its communication had been poor and therefore in recognition of this, it proposed the levy the Use and Occupation charges levied from 5 April 2021 only when her brother had asked about payments during a telephone call at the end of March 2021 so was made aware of the financial situation at that point.
26. It was sorry she felt it had not treated her fairly when dealing with her application to succeed the tenancy. In all cases it considered the individual applicant’s circumstance as well as those of anyone who may be living with them. The landlord explained it has policies and procedures that dictate how it must treat each case and the legislation sets out what it could and could not do. Its Allocation Scheme outlined that discretion can be exercised for cases where someone, such as herself, was not entitled to succession. Regarding her case, it had decided to apply that discretion in terms of offering a tenancy (elsewhere). Therefore, it found no evidence that she had been treated unfairly by the officers who administered her application or those who responded to her subsequent complaints.
27. In conclusion, it was satisfied that its decision not to grant her a tenancy at the property was correct and therefore it was for her to consider and progress her rehousing options as discussed with its officer to: complete her housing register application or access accommodation that is available in the private rented sector potentially with support from the relevant team.
28. On 3 June 2021, the resident told the landlord she was unhappy with its final response as:
    1. She disputed that her brother was made aware that payment was due during the call with it in late March and asked the landlord why it had not been in communication with then regarding the payments owed.
    2. She was unhappy that only an apology had been provided for neglect showing towards them since 8 February 2021.
    3. She understood its legal stance however the landlord owed her and her brother a duty of care and it had not treated them fairly. 
    4. No one had been in touch about help with their housing application.
    5. She said the “bigger picture” had not been looked at and it had not taken into account her mental state. 
29. On 8 June 2021, the landlord provided a further response to the resident. It said she was not made aware of the Use and Occupancy charge from the date they were applied due to an administrative error and a “breakdown in communication”. It apologised again for this.  It said it had taken responsibility for this by applying a credit of £575.46 to her account. It advised that it could not provide the 1986 tenancy agreement and it no longer had it in its records.
30. Regarding completing her housing register application, it had arranged for its TSO to assist her with her housing register application and identifying suitable properties. It further explained its obligations to make best use of its stock and explained 54% of the households on its housing register needed family sized homes, therefore, it was unable to exercise discretion and it would be applying its succession policy. However, it provided a further assurance around assisting with her housing register application and identifying suitable properties.
31. In July 2021 the resident contacted the Ombudsman advising that the landlord had treated them unfairly and had not sufficiently communicated with them. She asked that the landlord allow them to keep the family home. The resident attached a timeline of events which detailed her personal circumstances including her in relation to her mental health and she provided a letter from her doctor to show this. 
32. On 21 June 2022, the resident confirmed to the Ombudsman that she and her brother had been re-housed by the landlord.

Assessment and findings

33. Section 160 of the Localism Act 2011 inserted new sections into the Housing Act 1985 which limited the statutory right of succession to spouses and civil partner meaning other family members such as children no longer had the right of succession. These changes further limited the right to one statutory succession.
34. The landlord’s Succession policy echoes this and states if the deceased tenant succeeded to the tenancy on the death of the previous tenant or was a joint tenant and then became the sole tenant, his or her potential successors are not qualified to succeed. Further, its policy states where there are no rights to succeed, it could grant a new tenancy at the property if it considers the circumstances to be exceptional.
35. On being informed about the death of a sole tenant, the landlord is required provide clarification to members of the family occupying the property regarding any succession right. Further, if there is no succession right, it is reasonable to expect that the landlord provides advice and support in relation to the available housing options and how to progress matters.
36. In the resident’s case, after reporting the death of their mother to the landlord, it advised her and her brother that they did not have a right to succeed the tenancy. As one statutory succession had already taken place in 2018 when the joint tenancy was succeeded by their mother on the death of their father, no further succession right existed. This is in accordance with the Localism Act 2011 and the landlord’s Succession policy. Therefore, the landlord’s advice provided that the resident was not eligible to succeed the tenancy, was accurate.
37. The landlord, however, did not confirm this position in writing to the resident nor did it provide any written information about their housing options prior to it serving the NTQ on 26 March 2021. Whilst the NTQ explained the position and advised the residents to contact its Housing Options team for advice on their future housing needs which was reasonable, as the resident had contacted the landlord previously in the weeks following their mother’s death to discuss the possibility for a discretionary tenancy, the lack of a response from the landlord about this was unreasonable. This was failure in the service provided by the landlord.
38. Following the landlord’s service of the NTQ, the resident raised a formal complaint regarding the landlord’s handling of the situation, setting out reasons why she and her brother felt they should be able to remain at the property. In its stage one response, the landlord apologised for the level of service provided when handling her succession request and explained why there was no right to succession.  It also explained the circumstances when it could offer a discretionary tenancy but advised that due to the property having three bedrooms which was more suitable for families and in high demand, it was unable to offer them a tenancy at the property. The landlord did however indicate that it could offer a tenancy at an alternative property.
39. Whilst the landlord’s response made clear its position in relation to the requests to succeed the tenancy and for a discretionary tenancy, the response was brief and did not address many of the points raised by the resident in the formal complaint. This included the resident confirming she was suffering from a mental health condition and was receiving counselling. The landlord missed the opportunity to fully address the resident’s concerns at this time including signposting her to an appropriate support service.
40. Following further communication from the resident’s brother in which he made clear they had not been given an opportunity to properly discuss the situation with anyone from the landlord, it arranged for a senior officer to visit the resident and her brother at the property on 12 May. The landlord’s action taken here was appropriate as it shows a willingness to listen to the resident’s concerns to resolve her complaint and to further explain its position on the succession request.
41. The landlord made detailed notes of the meeting and recorded action points which it sent to the resident following the meeting. It is acknowledged that the resident was unhappy with outcome of the meeting in particular the landlord’s refusal to grant a discretionary tenancy at the property. 
42. In its subsequent responses of 14 May and its final response, the landlord gave further detailed explanations regarding the basis of its decision.  In effect that it did not consider their circumstances to be exceptional and because the number of bedrooms exceeded their housing needs and there was a shortage of family-sized properties, a discretionary tenancy at the property was not warranted in the circumstance. It confirmed that it was willing to re-house them in alternative suitably sized property (either together or separately depending on their preference) and offered to refer the resident to a support service due to her informing it of her depression and mental health.
43. Whilst the landlord’s policy allows it discretion to grant a tenancy at the property where there are no succession rights, it has clearly explained to the resident that it has a wider responsibility to allocate its properties according to housing need and that there is a shortage of family-sized properties.  On balance the landlord has demonstrated that its decision is reasonable in the circumstances and the factors it has taken into account outweighed the resident’s individual circumstances.  The resident is understandably distressed by its decision given she and her brother wished to remain in the family home. However, the landlord has demonstrated a willingness to assist and support them with completing their housing application to be re-housed into suitable alternative accommodation taking into account their preferences. As the landlord is not obliged to do this then the landlord has fairly exercised its discretion by committing to meet their housing needs and provide an appropriate level of support to them.
44. In regard to Use and Occupation charges, the landlord’s Development (Tenancy) Procedure makes clear that where there is no statutory right to succeed, any person who remains in the property is liable to pay charges for their ‘use and occupation’ of the property pending a decision as to whether to grant them a new tenancy or recover possession.
45. However, it is reasonable to expect the landlord to have confirmed this and the details of the charges to the resident at the outset.  As this was only confirmed by the landlord during the meeting on 12 May 2021 when charges applied since February, had accumulated to £1200, the delay of approximately three months is evidence of a failure in the service provided by the landlord.
46. In response to the resident’s complaint about its handling of this issue, the landlord explained she was not made aware of the charge due an administrative error and a “breakdown in communication”. It agreed to apply the charges from 5 April 2021 which generated a credit of £575.46, which reduced the overall outstanding balance.
47. It is noted the resident disagreed with the landlord’s explanation for applying the charges from this date as she said her brother was not made aware of their liability to pay ‘use and occupation’ charges at that time. Whilst the available evidence does not establish whether this issue was discussed between the parties earlier than 12 May, it is reasonable to expect the resident to recognise they will have to pay for occupation of the property whilst the issues surrounding the tenancy and their housing remained unresolved.
48. In conclusion, the landlord’s advice to the resident regarding her eligibility for succession was correct and its decisions to decline the request for a discretionary tenancy at the property and to apply Use and Occupations charges were reasonable. There were some failures in the service provided including delays by the landlord when responding to the resident’s queries regarding the statutory succession and discretionary tenancy and in confirming the charges due.
49. However, during the complaints process, the landlord recognised failures in aspects of its service including that its initial communication with the residents was lacking in sensitivity and that it did not fully discuss its position with the residents at the earliest opportunity, prior to the service of the NTQ. Further, it has taken steps to put matters right in that it has provided a comprehensive and reasonable response to their queries, apologised and it has written off around 50% of the charges. This and its offer to re-house the resident and her brother and support and them through this process was reasonable in the circumstances and therefore resolved this complaint.

Determination (decision)

50. In accordance with paragraph 55(b) of the Housing Ombudsman Scheme there was reasonable redress by the landlord in respect of its handling of the resident’s request to succeed to the tenancy.

Reasons

51. The landlord’s advice provided to the resident regarding eligibility for succession was appropriate and its explanation for not granting a discretionary tenancy at the property was reasonable. There were delays and shortfalls in the service provided however the landlord acknowledged and apologised for these during the complaints process and took steps to put them right. It wrote off some of the Usage and Occupation charges and it has offered alternative accommodation as promised.

Recommendation

52. The Ombudsman recommends that the landlord ensures it provides comprehensive advice and information to remaining occupiers in a sensitive manner as soon as it is advised of the death of one of its tenants.