Runnymede Borough Council (202009034)

REPORT

COMPLAINT 202009034

Runnymede Borough Council

4 August 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

The complaint is about the landlord’s response to the applicant’s request to be added to his parent’s tenancy agreement.
The complaint is about the applicant’s housing applications to the local authority’s housing register.

Jurisdiction

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 will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 39.m of the Housing Ombudsman Scheme, the complaint about the applicant’s housing application to the local authority’s housing register is outside of the Ombudsman’s jurisdiction. Paragraph 39.m 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.
The landlord is the local authority. According to the correspondence, the applicant lives with his parents who are in a landlord and tenant relationship with the landlord. The applicant is not on his parent’s tenancy agreement.
The applicant moved back to his parent’s house in 2017 and was unable to join the local authority’s housing register as he was told he did not hold a local connection to the area (May 2018). He was subsequently unable to join the housing register and told that the local authority could not establish a local connection, on the ground that he had not lived in the area for three consecutive years (January 2020). In April 2020 he was able to join the housing register and awarded his banding, he was advised to bid on the choice based letting scheme.
The applicant formally complained to the landlord about his housing status in March 2020. He stated his concerns about becoming homeless and not being allowed to register on the housing register. He wanted to have affordable housing security and live independently from his parents, but close by in order to support them. In particular, the applicant explained that his father is 80 years old and has severe Parkinson’s disease. At the close of the formal complaint, the applicant had successfully been registered on the housing register and awarded a banding.
After the landlord issued its final response, the applicant’s outstanding concern was about the banding decision; he requested a review of this (July 2020). He said “I am unsatisfied with the banding decision and require a review- it is your duty to explain fully and clearly why I have been put in this banding and to also review it- I do not have to contact the LGO to have my banding re-looked at” (16 July 2020).
The landlord informed the applicant that it would process his email as a request for a review of its decision on the banding of the housing register application (17 July 2020). It asked the applicant to confirm if he wished to provide any additional information before setting out the process for the review and timescale for response of ten working days. On 27 July 2020 the landlord told the applicant that the application was dealt with under policy and if the applicant remained unhappy about this, he could approach the current Local Government and Social Care Ombudsman (“LGSCO”).
The landlord’s actions in adding the applicant to its housing register and then calculating his priority/banding was undertaken by the landlord in its capacity as the local authority under part 7 of the Housing Act 1996. Complaints about the local authority’s actions in exercising its statutory duty under the Housing Act, its Allocation Scheme or its decision in awarding priority/banding may be considered by the LGSCO. This is outside of the Housing Ombudsman Service’s jurisdiction.
The remaining investigation considers the complaint about the landlord’s response to the applicant’s request to be added to his parent’s tenancy agreement. The scope of the investigation is from February 2020, though earlier communication may be referenced for background.

Background and summary of events

On 3 February 2020 the applicant emailed the landlord and asked if it was possible to be added to the tenancy his parents held with it. The tenancy
agreement has not been seen but it is not disputed that the applicant’s parents were in a landlord and tenant relationship.
The applicant explained that the property his parents occupied had been his family home for over 30 years, he moved home again in April 2017 as his father was elderly and ill and his mother found it difficult to cope. He explained his employment and financial circumstances and his own mental health circumstances. The applicant explained that he was living at the property full time and should anything happen to his parents he would be homeless with no property or savings.
On 6 February 2020 the landlord wrote to the applicant and explained that it could add the resident as part of the household but not the tenancy. It explained that should something happen to his parents, it would have to consider the circumstances at the time. It also said that there was usually only one succession, if one tenant in a joint tenancy passed away then the tenancy would go to the remaining joint tenant; this would constitute a succession and there would be no further right to succeed. It explained that it would be able to offer appropriate advice at the time when the circumstances change.
The applicant responded on the same day and provided his details so that it could be added to the household. He iterated his request to be added to the tenancy, his concerns about his housing security and the implication of the succession policy. He disputed the landlord’s interpretation of succession and asked how it would count as succession if one tenant passed away when the tenancy was in both tenant’s names.
On 10 February 2020 the landlord wrote to the applicant and provided the same response on his tenancy request. It explained the law around succession of a secure tenancy and pointed the resident to its website for further information about this. It said it would need to assess the applicant’s situation at the time the circumstances change, and appropriate advice would be given as the law could change.
On 4 March 2020 the landlord provided the resident with the details of its complaint procedure. It provided information on sole and joint tenancies. It also said that if a person or household lived in a property and had no right to succeed then it would want to ensure appropriate advice was given. It signposted the resident to information about assignment.
On 10 March 2020 the applicant emailed the landlord and said:
1. He understood that the information provided by the landlord was in line with current legislation but it was discriminatory against people in social housing and he questioned why these policies had been made and why the landlord sought to make his life and housing security and health worse through them.
2. These actions would make him homeless; he asked why changes to succession had been made and how the landlord justified this.
3. He had been added to his parent’s council home as part of their household, this was a joint tenancy in both his parent’s names and he was told he had no right to succeed the tenancy as when one of his parents died, the remaining tenant would succeed the tenancy.
4. He asked the landlord “for what reason and when this change on only allowing one succession to a tenancy was made” and “why you count one succession as being between two joint tenancies – it clearly isn’t succession as both people are on the tenancy in the first place and so are not succeeding it to anyone”.
The resident complained on 29 April 2020, the Ombudsman has not had sight of the complaint. The landlord issued a stage one complaint response on 30 April 2020:
1. It provided a response on the resident’s claims that it was seeking to make the resident homeless (it refuted this). It also discussed the housing register and explained its position in regard to that part of the complaint.
2. It explained that the resident had been to the senior and housing area manager and asked to be added to his parent’s tenant and given advice about succession and assignment.
3. It clarified that when the tenancy was granted it could not be amended unless there was an assignment, succession or court order.
4. It said the tenancy could only be assigned between his parents as they were the joint tenants and could not be assigned to an additional member of the household.
5. It referred to the Housing Act 1985 (section 91) to underpin its position and said this stated that “assignment is prohibited except in certain circumstances” and provided a list of these (in mutual exchange, by court order, or to a person who would be qualified to succeed the tenant).
6. It told the applicant his circumstances did not fall into the categories for assignment and “only the person qualified to succeed would be the last remaining joint tenant if one of the current tenants passes away”.
7. It also explained the law in relation to succession under section 88 of the Housing Act 1985 (a joint tenant will be a successor if he/she became the sole tenant following the death of one of the tenants and there can only be one succession unless there is an express term in the tenancy agreement that allows for further succession).
8. It advised that its tenancy agreements did not permit further succession beyond the one which was legally permitted.
9. It pointed to its tenancy strategy to explain this decision. This states that due to the demand for social housing the landlord does not support non statutory succession to social housing, to ensure best use of stock and that stock is let to those in greatest needs. It directed those households found to be non– successors to the Council, for a full housing options appraisal, to determine their ability to fulfil their housing requirements through the private market or any potential priority they may have through its Housing Allocations Scheme.
10. It repeated the advice the applicant had been given that if the household was unable to succeed the tenancy, “advice and assistance will be offered in finding alternative suitable accommodation, and a reasonable period of time given before action is taken by the Council to regain possession of the property”.
11. It further explained that the reasonable time it would allow for a non-successor to find alternative accommodation is six months, after which it would serve a Notice to Quit to formally end the tenancy of the deceased tenant. It said it would “weigh up all the facts of each case on its own merits” to determine its response.
On 17 May 2020 the applicant responded to the landlord’s stage one complaint response. The applicant reiterated his initial complaint.
The landlord acknowledged the applicant’s escalation on 17 June 2020 and apologised for the delay which it attributed to unusual work pressures at the time, it said it would respond by 24 June 2020. The applicant acknowledged this on 18 June 2020 and explained he would await the landlord’s response.
On 20 April 2020 (letter dated incorrectly) the landlord issued its stage two complaint response:
1. It apologised for the delay and explained that its normal operations were impacted by staff availability and restrictions due to the pandemic.
2. It considered the complaint about the landlord’s refusal to add the applicant to the tenancy, that he had not been provided with his own social housing tenancy and staff conduct.
3. It said that “it would be discriminatory to allocate social housing to people because their parents have been Council tenants. As public assets, the Council’s properties are allocated in line with the Allocation Policy” and it had sent the resident a copy of this.
4. It further explained that the allocation of housing was done so to ensure it was provided to those most in need, and it referred the applicant to his application to join the housing register. It said that his application would be dealt with according to policy and his finances and health would be considered if the current accommodation was no longer available.
5. In response to the applicant’s complaint about not being able to succeed the tenancy, the landlord explained that the legal reasons were set out in the stage one response which it attached. It also acknowledged that other individuals were in a similar position to the resident (ie “living with their parents and would like the same opportunity”). It also noted this had been conveyed to the applicant in a conversation previously.
6. In response to the applicant’s complaint that he had repeatedly asked questions and was not given reasons, the landlord relayed details of the conversations where it had explained its position around succession of the property in May 2018 and between February – April 2020. It held that the applicant was reluctant to accept the situation. Its staff responded in timely fashion, provided correct information and the legal basis for this.
7. It said that with the level of housing needs in the area it could not assure that the applicant would be offered social housing at some point. It went on to discuss the future possibilities for the applicant “as a single employed man living with your parents, and not having to pay for private rented accommodation, you may be in a position to save towards a deposit, therefore if you decide you no longer want to live with your parents and you have not been successful in bidding for social housing you could move into a private rented property”.
8. The landlord agreed with the stage one response and did not uphold the complaint as it found officers behaved in a professional manner, there was no fault with their decision, it also said it found the applicant had adopted an “aggressive and belligerent tone” in his correspondence with officers.
9. It concluded by saying that the resident was not threatened with homelessness and if this changed then it would work with the applicant to secure suitable accommodation. It finally asked the applicant to restrict his comments to those relevant to his enquiry.
The applicant responded on 6 July 2020 to the landlord’s stage two response. The applicant explained that he found the landlord’s email “offensive and insensitive” as well as “ignorant” of the applicant and other people’s situation. He queried the landlord’s view that he could save a deposit, and why he would need this. The landlord did not comment on this, and instead confirmed that the internal complaint process was complete (15 July 2020).
The landlord confirmed that it had dealt with the complaint under the complaint process and directed the applicant to the LGO. It considered that the applicant did not agree with its policy and therefore it could not resolve this matter.

Assessment and findings

The Ombudsman has considered if the landlord has responded reasonably to the applicant’s request to be added to the tenancy agreement (or succeed the property).
When the applicant contacted the landlord in February 2020 with his request the landlord responded and clarified what it could and could not do. It explained that it would not add the applicant to the tenancy agreement, but it could add him to the household. It responded in a reasonable timeframe and managed the applicant’s expectations about the limitations of its response to his request.
Upon further requests and communication from the applicant, the landlord further explained its position and provided its reasons for its decision not to add him to the tenancy agreement. The landlord’s position was that it could not add the applicant to the tenancy and directed the applicant to how he could get his own tenancy under its Allocation Scheme. This was reasonable. The applicant’s complaint about the housing register, as noted above, is not within the scope of this investigation.
When the applicant disputed the landlord’s interpretation of succession, the landlord explained the nature of the tenancy and pointed to the relevant legislation as the basis of its reason. This can be considered by the applicant himself with appropriate legal advice. For reference, section 87 – 88 of the Housing Act 1985 contains the provision that a tenant is himself a successor if he was a joint tenant and became the sole tenant. It was reasonable for the landlord to explain the reason for its decision and point the applicant to the law and its tenancy strategy.
The landlord also responded reasonably as it explained what it would do should one joint tenant pass away, which was assess the situation and provide the relevant advice. It is appropriate for the landlord to have offered advice on what it would do based on the current circumstances and manage the applicant’s expectations that this could change depending on future circumstances and guidance. Its explanation that it would consider the circumstances at the time and provide relevant advice in relation to succession and the applicant’s housing circumstances was also reasonable.
It is acknowledged that this is distressing to the applicant. However, the evidence in the communication between the parties shows that the landlord responded and explained its position, and the outstanding dispute was due to the applicant’s disagreement with this. Although the applicant disagreed with the fairness of the landlord’s position, there has been no evidence that the landlord acted inappropriately in its decision. The Ombudsman acknowledges the applicant’s concerns about having to potentially leave the property at some stage and it is understood that this has been distressing for him. The Ombudsman is unable to adjudicate on the motivation or merits of the law or the landlord’s policy of succession, which the applicant also raised concerns about. It can only act on the evidence seen and this has not shown that there has been maladministration.
The applicant found the landlord’s communication about saving for a deposit upsetting. In future communications and under similar circumstances, it would be resolution focussed for the landlord to signpost an applicant to seek independent advice after explaining its position. In this case, though the applicant said he found the landlord’s suggestion insensitive, this did not affect the landlord’s decision or the reasonableness of its position in relation to the substantial complaint about being added to the tenancy. There has been no evidence of maladministration in respect of the landlord’s response to the applicant, though the applicant remained dissatisfied.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration in the complaint about the landlord’s response to the applicant’s request to be added to his parent’s tenancy agreement.

Reasons

The landlord responded reasonably to the applicant’s request by explaining its decision and the reasons. When the applicant persisted, the landlord provided further explanation. The outstanding dispute was due to the applicant’s disagreement about the merits of the landlord’s position, the law and policy of succession. The disagreement with the landlord’s position is not evidence of maladministration.