Chesterfield Borough Council (202120286)

REPORT

COMPLAINT 202120286

Chesterfield Borough Council

25 May 2023

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 handling of:
1. The resident’s request to assign her tenancy to her son.
2. The associated complaint.

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 42(k) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.
1. The landlord’s handling of the residents concerns regarding the suitability of the property she was allocated.
The Ombudsman cannot investigate complaints about how councils assess housing needs and the suitability of properties they offer, this is something that a council does as a Local Authority and is therefore a matter for the Local Government and Social Care Ombudsman.

Background and summary of events

Background

The resident and her adult son were rehoused via a homeless application where the resident was the main applicant and the son included as a household member.
The property is a two-bedroom ground floor flat, and the tenancy started on 29 March 2021. The resident was the secure sole tenant and shared the property with her adult son.
The landlord has vulnerabilities recorded for the resident.
The resident initially contacted this Service for advice regarding the landlord’s lack of response to her stage three complaint.

Summary of events

Landlord notes showed that during the property viewing and sign up on 25 March 2021, the resident asked the landlord what would happen if she relinquished the tenancy. The notes showed that the landlord explained that if her son was left in occupation at the property, the landlord would have to consider if he had a right to the tenancy. It explained that he could be assessed as under-occupying the property and if so, the landlord would potentially find alternative accommodation for him.
According to landlord notes, on 28 April 2021, the resident sought advice from the landlord about assigning the tenancy to her son. Further notes dated 30 April 2021, showed that the landlord had considered the request by seeking advice on succession and assignment. The notes showed that an introductory tenancy could be assigned to a person who was eligible to succeed but added that the resident’s son would not have the right to succeed so the tenancy could not be assigned to him.
Between 24 May 2021 and 26 May 2021, there was an email exchange between the resident and the landlord. The resident explained that she had attempted to contact the landlord previously but that she felt that her emails had been ignored. She stated that she was disappointed with the property that she had been allocated and that she felt that she had been bullied into accepting it. The landlord noted that it had failed to respond appropriately to her request for information or to her subsequent emails. The landlord accepted that given the resident’s level of dissatisfaction with how her complaint had been handled thus far, it would escalate her complaint to stage two. The resident explained that she would like the opportunity to explain the full extent of her complaint by telephone.
This Service has not seen any notes relating to a telephone conversation, but it is noted that the landlord responded to the resident’s stage two complaint on 11 June 2021, 11 working days after it had been escalated, the response referenced a conversation between the landlord and resident on 8 June 2021.
In its response, the landlord apologised to the resident for the lack of timely responses and acknowledged that the resident felt she had been given conflicting information. It stated that whilst the information it had provided was correct, it accepted that it could have communicated better. The landlord acknowledged that the resident no longer wanted to live with her son and stated that it would seek to rehouse them individually.
The landlord further explained that it would not have been possible to assign the resident’s tenancy to her son, as it would have left him under-occupying the property and that this could put him at risk of eviction if he were unable to maintain the rent payments. It clarified that in accordance with its allocations policy, as individuals the resident and her son required a one-bedroom property each. It explained that as a landlord it was required to utilise its housing stock to best meet demand and that it was prepared to add them both to its direct offer waiting list so that they could both be rehoused into a one-bedroom property.
The resident advised that she wanted to escalate her complaint to stage three of the landlord’s complaints process on 26 October 2021. She explained that she could no longer live at the property and that she had resorted to sleeping on a mattress in the kitchen as she could not cope with noise from other resident’s. In response to the landlord’s explanation that it was unable to assign the tenancy to her son due to the impact it may have on his ability to pay the rent, the resident stated that after payment of housing benefit the shortfall was affordable to him.
The landlord responded and explained how the resident could escalate her complaint. It also asked her to provide details of the anti-social behaviour she had alluded to.
On 27 October 2021, the resident escalated her complaint to stage three and emailed the landlord with her reasons. She explained that she did not agree with the reason the landlord gave for not considering assigning the tenancy to her son and set out that the rent was affordable to him. She stated that whilst the landlord had said it could not assign a two-bedroom property to a single person, she was aware of at least two resident’s who were living in a property larger than they needed. She maintained that her son was settled at the property and that she could not afford removal costs for both of them. In addition, she stated that living at the property was having a negative impact on her mental well-being.
The resident contacted the landlord again on 3 November 2021, for an update on her complaint. The landlord responded on 4 November 2021 and stated that it would respond within a couple of weeks.
The resident contacted the landlord again on 18 November 2021 and 30 November 2021 for a response to her complaint.
On 22 December 2021, a legal advisory service contacted the landlord on behalf of the resident. It explained that the resident was seeking to assign her tenancy to her son so that she could then seek rehousing in a more suitable property. It explained that the resident was unable to continue living at the property as it was impacting greatly on her mental well-being. It also explained that the resident was concerned that if her son had to move out of the property it would exacerbate his mental health issues. Thus, her request to assign the tenancy to him.
The landlord responded to the resident’s stage three complaint on 11 January 2022, 51 days after the resident escalated the complaint and 36 days outside of its response timescale.
The landlord apologised for its delayed response and upheld the stage two decision. It stated that its response was considered and appropriate. The landlord acknowledged the resident’s desire for her son to remain at the property they shared but explained that given the size of the social housing waiting list and the demand on properties, it could not allow a two-bedroom home to be occupied by a single person. It also reiterated that by staying in a property that was too large, the resident’s son would be subject to an under-occupancy charge, which could impact on his ability to sustain the tenancy. The landlord confirmed that it had offered to rehouse both the resident and her son individually and would prioritise them for one-bedroom properties.

Post internal complaints process.

The resident contacted this Service setting out her dissatisfaction with the landlord’s response to her request to assign the tenancy to her son. She explained that as a resolution, she wanted the landlord to:
1. Move only her to a new property with a garden and for the landlord to allow her to assign the tenancy to her son. Or
2. If the council would not rehouse her, at least allow her to transfer the tenancy to her son.
When providing information and evidence to this Service, the landlord accepted that it had failed to follow up the resident’s request for advice on assignment of the property to her son. It accepted that it had failed to respond to the resident, which resulted in the complaint being escalated directly to stage two of its complaint’s process.
On 18 May 2023, the landlord advised that it had rehoused the resident in a one-bedroom bungalow on 10 April 2023. It confirmed that her son remained at the original property but that it could not confirm whether the tenancy would be assigned to him.

Assessment and findings

Landlord’s policies and procedures

Section 13.1 of the tenancy agreement states that a tenant has the right to assign the tenancy to a person living with the tenant who would be qualified to succeed to the tenancy, subject to certain conditions.
Section 13.4 of the agreement sets out the conditions of succession. It states that if the tenant dies, the tenancy may pass to a joint tenant, a spouse or civil partner or a person who has been living with the tenant as husband or wife or as civil partner. The tenancy could also pass to a close relative if they had been living with the tenant for the previous 12 months and the tenancy began before 1 April 2013. It also states that if the tenancy is passed to a relative and the property is larger than they need, the landlord may move them to a more suitable property.
In addition, section 13.6 of the tenancy agreement states that a tenant must not assign, sublet, part with possession of the whole property or exchange the property without the prior written consent of the landlord.
At the time the resident submitted her complaint, the landlord operated a three stage complaints process. At each stage, the landlord’s response target was 15 working days.

The landlord’s handling of the resident’s request to assign the tenancy to her son

The Ombudsman’s Dispute Resolution Principles are:
1. Be fair.
2. Put things right.
3. Learn from outcomes.
This Service will apply these principles when considering whether any redress is appropriate and proportionate for any maladministration or service failure identified.
The resident initially asked about assigning the tenancy to her son when she signed the tenancy agreement. She was advised that it was unlikely that it would be allowed, due to under-occupation.
She asked again about assigning the tenancy to her son approximately a month after she moved in. The landlord failed to respond to her query but has provided this Service with evidence that it had considered the request and concluded that the resident’s son did not have the right to succeed to the tenancy and therefore the resident would not be able to assign it to him.
The landlord reiterated its position, confirming that it would not allow the assignment on the basis that it would leave the resident’s son under-occupying the property. However, it acknowledged that the resident was unhappy at the property and offered to rehouse both the resident and her son individually as a priority. The landlord’s response was reasonable and in line with its policy.
This Service is unable to comment on the landlord’s allocation policy regarding the size of property the resident and her son would be eligible for individually. However, given the well-publicised demand on social housing and taking into account section 4.22 of the Allocation of Accommodation Guidance 2012, which states: When framing the rules which determine which size property to allocate to different households, housing authorities are free to set their own criteria, and the explanation contained there within that housing authorities should take account of the provision in the Welfare Reform Act 2012, which reduces housing benefit to under-occupiers. The landlord’s suggestion to find each of them a one-bedroom property and offer a priority for a move, was reasonable.
Whilst the resident’s tenancy agreement confirmed that both introductory and secure tenants had the right to assign their tenancy, this would only be granted with the permission of the landlord. In addition, certain conditions had to be met. This Service is satisfied that the conditions set out in the tenancy agreement were not met by the resident and her son. Consequently, the landlord’s position not to give permission to the resident to assign her tenancy to her son, was reasonable and appropriate. This Service finds no maladministration in the landlord’s handling of the resident’s request to assign the tenancy to her son.

The landlord’s handling of the associated complaint

Following the landlord’s failure to respond to the resident’s request for information regarding the assignment of her tenancy, the landlord escalated her complaint directly to stage two of its complaint’s procedure. It is unclear how the landlord lost sight of the resident’s initial complaint, but this Service acknowledges that the landlord sought to put this right be immediately escalating the complaint.
The complaint was responded to within a reasonable timescale, it set out clearly what it understood the complaint to be about and responded accordingly.
The resident escalated her complaint to stage three of the landlord’s complaint’s process. According to its policy in force at the time, the resident should have expected a response within 15 working days. However, it took the landlord a total of 51 working days to respond to the resident’s complaint. This Service therefore finds that there was a service failure in the landlord’s handling of the residents associated complaint.
In addition, the landlord operated a three stage complaints process which was not in accordance with the Ombudsman’s Complaint Handling Code published in July 2020 for compliance by 31 December 2021.

Determination (decision)

In accordance with paragraph 52 of the Housing ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s request to assign her tenancy to her son.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure in the landlord’s handling of the associated complaint.

Reasons

The landlord acted in line with its policy when considering the residents request to assign the tenancy to her son.
The landlord failed to respond to the resident within its prescribed timescales and operated a complaints policy that did not comply with the Housing Ombudsman’s Complaint Handling Code. This Service acknowledges that whilst the landlord lost sight of the resident’s stage one complaint, it sought to put this right by escalating the complaint to stage two.

Orders

Within four weeks of the date of this report, the landlord is ordered to:
1. Apologise to the resident for the failings highlighted in this report.
2. Self-assess against the complaint handling code and review its complaints policy to ensure compliance with the code (If it hasn’t already done so).
3. Pay £100 to the resident for the time and trouble spent chasing a response to her complaint.
The landlord must show compliance with the above orders within four weeks of the date of this report.