London Borough of Hackney (202114496)

REPORT

COMPLAINT 202114496

Hackney Council

31 October 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 is about the landlord’s handling of the resident’s request to succeed the tenancy of the property.

Background

2. The resident is the son of the former tenant of the property, who passed away in August 2021. The tenancy began in December 2013. 
3. A relative of the resident provided the landlord with a copy of his late mothers death certificate on 31 August 2021. Following which, the landlord discussed the laws regarding taking over the tenancy (succession) and explained that the resident did not have the statutory right to succeed as only spouses or civil partners had the right to succeed in tenancies that started after 1 April 2012. Following this, the resident was also advised that he did not meet the criteria for a discretionary offer under its policies as he had not lived in the property for ten years or more. The landlord sent the resident a formal Notice to Quit on 16 September 2021 which informed the resident that he would need to vacate the property by 17 October 2021. It also met with the resident on 27 September 2021 and advised the resident that he could seek independent legal advice and speak with its housing options service for support.
4. The resident initially raised a complaint on 29 September 2021 as he was dissatisfied with:
   1. The landlord’s decision not to allow him to succeed the tenancy and that he had not been informed of the appeal process.
   2. He believed that the staff member involved had been unprofessional and cold, without considering his circumstances or offering any formal form of sympathy for his loss once he had provided his mothers death certificate. He said that the staff member had only apologised and signposted him to external services that dealt with homelessness which he did not feel was in line with procedure. 
   3. He was not initially provided with a succession application form and that once this was provided, the member of staff did not accept the supporting documents he had provided.
   4. He had not been offered any alternative options for succession; expressing concern that the landlord had already made up its mind and just wanted him to leave the property.
   5. He noted that the circumstances had caused significant distress and the thought of becoming homeless along with his mothers passing, had impacted his mental health, for which he was seeking support through his GP.
5. In response to the resident’s complaint, the landlord maintained its position that the resident did not have the statutory right to succeed the tenancy as he was not a spouse or civil partner. It had discussed the possibility of a discretionary tenancy but confirmed that the tenant did not meet its criteria as he had not lived at the property for ten years or more. It confirmed that the decision to deny his application was in line with its policies and that it had a record of the supporting documents the resident had provided. It said that it had spoken to the staff members involved who apologised if the resident felt that they had come across cold or emotionless as this was not their intention; they explained that they were seeking to manage the resident’s expectations from the outset.
6. The landlord in its final decision on 9 November 2021, further explained that it had submitted the case to its exceptional circumstances panel who reviewed cases which fell outside of its normal housing procedure. It advised that there was no guarantee that the resident would be granted a tenancy but had asked that a decision was made urgently. It acknowledged that the circumstances were likely to have been distressing for the resident and informed him of the right to seek independent legal advice and its support services available.
7. The exceptional cases panel decision was sent to the resident on 22 August 2022. It confirmed that it needed to balance the need of occupants against other competing priorities for the property and that it would not usually give a new tenancy where the property is larger than that required. It confirmed that the property had two bedrooms and concluded that the resident’s circumstances were not extenuating and the discretionary offer of a tenancy would not be granted for the property. It advised the resident that he could contact its housing advice service who could assist with alternate housing. A further Notice to Quit letter was sent to the resident on 13 September 2022 and was due to expire on 16 October 2022.
8. The resident referred his complaint to this Service as he remained dissatisfied with the landlord’s decision and the issuing of a notice to quit when he had lived at the property for over seven years. He also noted the impact of becoming homeless on his mental health and wanted the landlord to accept his application.

Assessment and findings

Scope of investigation

9. Whilst this Service is an alternative to the courts, it is unable to establish legal liability or whether a landlord’s actions or lack of action have had a detrimental impact on a resident’s health. The Ombudsman is therefore unable to consider the resident’s claims that the landlord’s decision had impacted his health. Whilst this Service cannot consider the effect on health, consideration has been given to any general distress and inconvenience which the resident experienced as a result of any errors by the landlord.

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

10. The landlord has been unable to provide this Service with a copy of the original tenancy agreement for the property which began on 16 December 2013 due to circumstances outside of its control. It has, however, confirmed that the resident was named as an authorised occupant under his mother’s tenancy but was not named as a joint tenant.
11. The Localism Act 2011 sets out the legal rights for persons who qualify to succeed a tenancy in the event of a tenant’s death. It states that a person is able to succeed a tenant under a secure tenancy if they occupy the property as their only or principal home at the time of the tenants death and is the tenants spouse or civil partner for tenancies that began after 1 April 2012. The landlord’s website confirms that if a person lives at the property but is not eligible to succeed the tenancy, it would serve a notice to end the tenancy and the person would need to find alternative accommodation.
12. The landlord’s former letting policy (2016) states that the landlord would only consider awarding discretionary tenancy offers to household members who do not have the statutory right to succeed to a property following the death of a tenant where; an adult child has resided with their parent for a minimum of ten years prior to the tenant’s death and has never held their own tenancy, where a spouse or civil partner is unable to succeed the tenancy due to previous successions, or where a carer has been assessed as required for a tenant by the Council’s Medical Advisor, and the carer left their own social tenancy to care for the disabled tenant.
13. In this case, it is not disputed that the circumstances around the resident’s request to succeed the property were likely to be upsetting for the resident. Whilst this Service appreciates the distress caused to the resident, the landlord has demonstrated that it took reasonable steps to manage the resident’s expectations from the outset by confirming that he did not have a statutory right to succeed his late mother’s tenancy. This decision was made in line with relevant policies and legal framework as outlined above. The resident is the son of the former tenant and would not qualify for the statutory right to succeed as he is not a spouse or civil partner. In addition, he did not qualify for a discretionary offer of tenancy under the landlord’s policies as he had not lived at the property for ten or more years.
14. The resident has raised concern that the landlord’s staff acted unprofessionally and did not show any sympathy or emotion when handling his request. The landlord acted fairly by apologising to the resident if he felt that this was the case. It also acted appropriately by speaking with the members of staff involved to determine their record of events. It was reasonable for the landlord to advise the resident about his rights to succession from the outset in order to manage his expectations. It offered a clear explanation to the resident and there is no evidence to suggest that this was incorrect or not in line with its policies and procedures. The evidence shows that the landlord also took steps to support the resident by providing the details of support agencies available which was reasonable in the circumstances.
15. It is noted that the resident was dissatisfied with the timing of the landlord’s decision. Following the passing of a tenant, the landlord has an obligation to ensure that any decisions regarding succession are made in a timely manner and to act against unauthorised tenants where required, to ensure that its properties are available for those on its housing waiting list who need a property of the correct size. The landlord demonstrated that it had acted appropriately by also assessing its decision to issue a Notice to Quit to the resident to ensure that it was proportionate and that the decision was fair and in line with the Equality Act. There is no evidence to suggest that the landlord acted unreasonably in its handling of the matter.
16. The resident was also dissatisfied with the lack of information provided regarding an appeals process. Ultimately any decision made regarding the legal right to succeed would be final. The landlord acted reasonably by referring the case to its exceptional circumstances panel in view of the residents’ concerns regarding the impact of becoming homeless. It also acted fairly by confirming that it could not guarantee that he would be offered a tenancy and this managed his expectations. The panels decision clearly set out the reasons why the resident would not be offered a tenancy at the property. It explained that it needed to balance needs of competing priorities for social housing and that as the resident was under-occupying the property, it would need him to vacate so that the property could be offered to a larger family who required two bedrooms. This decision was reasonable as the landlord has an obligation to utilise its properties to the benefit of all resident’s and applicants. It acted reasonably by providing the resident with information regarding its housing support services so that the resident could seek advice on finding alternative accommodation.
17. However, the panel decision was not issued until 22 August 2022 which was approximately nine months after the landlord’s stage two complaint response. There is no specific information within the landlord’s policies regarding the timescales in which a response should be issued and it acted appropriately by apologising for the delay within its response. The delay in issuing its decision did not have a detrimental impact on the resident as he was otherwise permitted to remain in the property during this time and no additional formal action was taken until September 2022, once the response had been issued.
18. Whilst the timeframe is not considered proportionate and there is no evidence to suggest that the resident’s expectations of when he would receive a response were adequately managed, given that there was no change in position, a position which had been made clear to the resident, the Ombudsman does not consider this failing extensive. However, a recommendation will be made for the landlord to ensure it provides timescales for responses from its exceptional circumstances panel, in order to manage expectations and avoid any inconvenience which may be caused by delays.

Determination

19. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its handling of the resident’s request to succeed the tenancy of the property.

Recommendations

20. It is recommended that the landlord takes steps to ensure that decisions by its exceptional circumstances panel are issued within a reasonable timeframe and ensure that residents are provided with an estimated response date in order to manage their expectations.