Hammersmith and Fulham Council (202126460)

REPORT

COMPLAINT 202126460

Hammersmith and Fulham Council

28 April 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 application for succession.
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.
Paragraph 42(k) of the Scheme states that the Ombudsman may not investigate complaints that fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.
The resident raised issue with the following matters relating to information:
1. The landlord’s response to the resident’s request for information about its succession policy.
2. The landlord’s use and handling of his personal data.
These are matters that would fall properly under the remit of the Information Commissioner’s Office (‘ICO’), should the resident wish to raise a complaint. The ICO is an expert in the rules concerning personal data and requests for information under the Freedom of Information Act. The resident may seek independent advice about his options to progress his concerns with the ICO.
The resident also says that the landlord is operating a policy and process incompatible with its housing allocations scheme. Complaints about rehousing applications to a local authority’s allocations service, its assessment of applications ie banding awards, offers and allocation policies fall under the scope of the Local Government and Social Care Ombudsman. The resident may wish to refer to this body.

Background and summary of events

The legal status of the relationship between the resident and the landlord is not agreed by the parties to this complaint. The landlord identified the resident to have an unlawful occupant status. The resident asserts he should be considered a tenant of the property. The terms ‘the landlord’ and ‘the resident’ are used in this report in line with the Ombudsman’s standard reporting style. They are not intended to represent any finding connected to the legal meaning of the words.

Background

The resident lives in a two bedroom flat owned by the landlord. The resident’s grandmother had a joint secure tenancy of the flat with the landlord that began in November 2004. The resident moved in with his grandmother before she passed away in 2016.
On 17 June 2016, the resident hand delivered to the landlord’s office an application to succeed to her tenancy with supporting documents. It is not disputed that the landlord did not process the resident’s application to succeed at this time.
The resident says that he chased the progress of his succession application across the following years but did not receive a response from the landlord. It is also said by the resident that the landlord made promises to grant him a tenancy.
On 6 March 2020, the landlord’s notes record a call taken from the resident raising concern about his occupancy status. The resident explains he had difficulty reporting repairs needed to the flat because he was not listed on the tenancy. He asked for a decision on his succession application.
The landlord advised the resident that:
1. On review of its system, there was a previous succession to his grandmother’s tenancy in 2014. This meant he was not eligible to succeed to the tenancy.
2. It was unable to find his succession application but could confirm record of his supporting documents submitted January 2019.
3. There would be liaison with management, and he would be contacted further to confirm their position about his application.

Scope of investigation

Paragraph 42(c) of the Ombudsman Scheme says the Ombudsman may not consider complaints that were not bought to the attention of the landlord as a formal complaint within a reasonable period, normally within six months of the issue(s) arising.
There is no information showing that the resident raised a complaint to the landlord about his succession application that was made in 2016 until the complaint brought in 2021. Due to passage of time, the Ombudsman is not able to review substantively the full background to the landlord’s handling of the application. The investigation starts in January 2021, 12 months before the complaint was submitted to the landlord. The Ombudsman has considered the landlord’s apology for the historic delay to the resident, only so far as to review whether its complaint response and remedy offered was reasonable in all the circumstances.

Summary of events

On 30 November 2020, the landlord wrote to the resident confirming that he was entitled to a ‘discretionary award of housing’. The landlord also said that:
1. It was sorry for the delay in reaching its decision.
2. The resident would be asked to move to a smaller property suitable for his needs.
3. It would make two offers to the resident of one-bedroom accommodation.
4. There was a further form for completion by the resident to enable the landlord to make the offers of alternative accommodation.
5. Pending his rehousing, the resident must pay a use and occupation charge.
The letter was accompanied by the landlord’s Notice to Quit, formally bringing the resident’s grandmother’s tenancy to an end as of 27 December 2020.
On 8 January 2021 the resident submitted a complaint to the landlord. He detailed in his complaint:
1. The history of his original application to succeed his grandmother’s tenancy.
2. That the landlord told him verbally he would be granted a tenancy but later informed him that he was an ‘illegal occupant’.
3. His position that he believed to be entitled to:
  1. Discretionary succession’; and
  2. Remain living at the flat due to the time passed since his original application.
4. A request for information about the landlord’s succession policy.
5. His concern about the rehousing form he had been asked to complete.
On 29 January 2021 the landlord responded. The landlord provided an apology for the delays to the resident’s application to succeed. The landlord acknowledged its delay had caused distress and advised it had reminded staff of its procedures. The landlord said it had agreed the resident would be granted a ‘discretionary award of tenancy’.
The landlord decided to uphold the resident’s complaint and provided assurance it would support him to find an alternative suitable property. The landlord advised under its policy on discretionary awards of tenancy that the resident:
1. Was required to have his housing needs assessed.
2. Would be offered alternative suitable accommodation if he was ‘under-occupying’.
On 22 February 2021, the resident requested that his complaint be escalated. He raised the following concerns:
1. He was entitled to succeed to his grandmother’s tenancy.
2. He should not be required to complete a form to move; he was entitled to stay at the flat.
3. The landlord’s response did not answer his request for information.
4. He had been provided with a rehousing form that he believed was incompatible with the landlord’s allocations policy.
During the course of the landlord’s investigation into the resident’s escalated complaint, it sought clarification from him about his concerns. The resident repeated his complaint and position that he was entitled to succeed to a secure tenancy and remain at the property.
On 12 April 2021 the landlord provided its stage two complaint response. The landlord said:
1. The resident had been given a discretionary award of tenancy.
2. It had requested the resident to complete a rehousing form because he was under-occupying the flat by one bedroom and so they could offer ‘more suitable accommodation’.
3. It had set up an ‘illegal occupant account’ in line with its discretionary award of tenancy procedure for use until the resident was rehoused.
4. It had attached a copy of its succession policy.
The resident contacted the landlord on 8 May 2021 to advise he was unable to use the password provided to enable him to view its stage two response. He chased a response from the landlord on 13 May 2021, 27 May 2021 and 12 June 2021 asking for assistance so he could inform himself of the outcome. The landlord provided a reply in June following the 12 June 2021 chaser.
The resident subsequently referred his complaint to the Ombudsman. He said that:
1. He experienced delay receiving his landlord’s response to his succession application.
2. His landlord advised him verbally that his application to succeed the tenancy was successful.
3. He was entitled to succeed the tenancy of the property due to the time passed.
4. His landlord asked him to complete a rehousing form incompatible with their allocations policy.
5. His landlord failed to answer the concerns/ questions raised in his complaint.
The landlord advised the Ombudsman it is unable to find the resident’s succession application on its records. It said that the resident has illegal occupancy status pending his rehousing to suitable alternative accommodation.

Assessment and findings

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 landlord’s obligations

The rights of a surviving occupier to succeed to a secure tenancy that began before 1 April 2012 is governed by sections 88 and 89 of the Housing Act 1985. Only one automatic succession can take place as a matter of law.
Where a tenancy was originally joint and one of the joint tenants passes or surrenders their interest, this makes the tenancy ‘sole’ (in one person’s name) and counts as a succession. No further succession to the original tenancy is allowed by law at a later date, even if the person still living at the property would otherwise normally qualify.
Landlords can offer additional ‘succession’ schemes to provide rights for such occupiers without legal rights to succeed the original tenancy. These are commonly referred to as ‘non-statutory’ or ‘discretionary’ succession. Any tenancies set up as a result are actually new tenancies between the occupier and the landlord; they are not a continuation of the original tenancy of the deceased.
The landlord has a statutory succession and discretionary award of tenancy policy (‘succession policy’) that sets out the criteria for a discretionary ‘award of tenancy’. There is no requirement that the new discretionary tenancy relates to the occupant’s current property.
The succession policy states where there are more bedrooms than required for the person qualifying for an award of discretionary tenancy, the council will seek possession of the property. In these circumstances, the landlord says it will require the occupant to downsize.
Under the landlord’s successions procedure, the landlord is required to make a decision in response to a succession application within 20 working days after receiving relevant supporting documents. Its decision should be communicated in writing to the applicant.
Under the same procedure, if the landlord decides an applicant is to be granted a discretionary tenancy, the decision is followed by a notice to quit bringing the tenancy of the deceased to an end. The resident should be invited to complete an application for rehousing to help the landlord assess a suitable offer of housing. The procedure also explains that the resident is to be required to pay ‘use and occupation’ charges awaiting the assessment of their housing needs and rehousing.
The landlord’s housing allocation scheme says when a person awarded a ‘discretionary grant of tenancy’ lives in a property that is not ‘suitable’, it will help find suitable alternative accommodation. It provides an example of unsuitable accommodation as one that is ‘too large’ for the needs of the occupant.
Succession rights including the use of ‘discretionary succession’ schemes are matters of some complexity. Given the importance of succession decisions to an applicant’s housing status and security, it is vital that these are communicated clearly, in an accessible manner and well-reasoned.
The Ombudsman’s Complaint Handling Code sets out actions that member landlords should take when dealing with a complaint to ensure it is responded to effectively and fairly. The code requires at paragraph 5.6 that a landlord address all points raised by a resident and provide clear reasons for any decisions, with reference to relevant policy and law where appropriate.
The landlord was required by its complaints policy to send its stage two response to the resident within 20 working days of receipt.

The landlord’s handling of the resident’s application to succeed.

The landlord confirmed by its decision of 30 November 2020 that the resident met its criteria for a ‘discretionary award of housing’. It set out its decision that the resident was considered to be under-occupying the two bedroom property and would be asked to move.
The landlord correctly applied the law and its succession policy and procedure by offering a discretionary award of housing when deciding the resident’s application. The landlord followed the law and its procedures by its issue of a notice to quit and its identification of the resident as a person without a tenancy or automatic succession rights. The resident was not legally entitled to succeed to his grandmother’s tenancy as a matter of law.
The resident’s grandmother’s tenancy began in 2004. The resident’s grandmother’s tenancy was originally joint and later became sole before her passing. This meant her tenancy was unable by law to be succeeded to by the resident, even though he was living with her at the time of her death and would otherwise have qualified. The resident’s grandmother’s tenancy agreement did not provide additional ‘discretionary succession’ rights. However, the landlord’s succession policy allowed for the discretionary grant of a tenancy.
That the property is under-occupied is not in dispute by the resident. The landlord’s request that the resident downsize was made in accordance with its policies and its legal discretion. It communicated its decision concerning downsizing clearly so that the resident could understand what he was being expected to do and gave reasoning about the size of the property. The request to downsize was properly and fairly made by the landlord and handled in accordance with requirements.
It is understandable, however, that the resident had some doubt concerning the downsizing request given the landlord’s communication of his succession rights. The landlord’s succession decision of 30 November 2020 failed to formally address the question as to whether the resident was entitled to ‘succeed’ to his grandmother’s tenancy. The decision letter simply provides confirmation and explanation of its decision to grant ‘a discretionary award of housing’.
It did not explain that the resident did not have the right to succeed to the original tenancy or provide any reasons. It did not clearly make a distinction between the tenancy award and the property. While the landlord did clearly communicate its request that the resident downsize, this was not a direct answer to the question of succession. The question of succession should not reasonably be left to inference.
By failing to address the key issue of succession directly in its decision, the landlord left the matter open for question. The communication was unclear and left the resident with concerns about his status as progressed in his complaint. It is apparent from the resident’s correspondence that there was prolonged frustration on his part seeking to understand the landlord’s position. He was evidently left unclear on what a discretionary award of housing was. Had the landlord provided a proper and clear formal decision, it may have avoided subsequent misunderstanding and allowed an opportunity to restore trust to enable the resident to focus on his rehousing.
The resident sought to engage with the landlord about his understanding of his succession rights through its complaints process. In his correspondence at both stages, he asserted having rights to succeed to his grandmother’s tenancy and/or the right to ‘succeed’ to a tenancy of the flat. The basis of his position was presented as the passage of time and his understanding of the legal grounds available to the landlord to recover possession. The resident raised concern about being referred to as an ‘illegal occupant’.
The landlord failed to adequately engage with or address the position raised by the resident at complaint stage. There is no evidence that the landlord sought to explain to the resident with reasons why he was not entitled to succeed to the tenancy or automatic allocation of the flat. It failed to explain to the resident what his occupancy status was and what this meant. The landlord simply recited its previous decision at each turn.
The landlord’s failure to directly address the resident’s asserted points added to the lack of clarity in the landlord’s overall communication of its position. Had the landlord addressed matters raised directly and substantively in its complaint responses, the resident would have had the opportunity at that stage to appreciate his status and be sufficiently informed to make important decisions about his housing.
The matter of succession rights and potential required rehousing was one to be handled carefully given the likely impact on the resident. This was especially key set against a background of an acknowledged delay communicating its formal decision. By not addressing the resident’s asserted understanding of his rights, the landlord demonstrated poor communication, complaint handling and a lack of appreciation of the importance of the matter to the resident. An earlier and direct attempt to address his points may have prevented him the time and trouble pursuing this matter to the Ombudsman and ongoing uncertainty and concern about his status at the flat.
The resident raised a specific query in his stage one complaint regarding the date of creation of the landlord’s succession policy. The landlord did not provide a direct response in its stage one letter. At stage two, the landlord provided a copy of the policy. While the content of the information requested and response required is outside of the scope of this investigation, the Ombudsman notes the landlord did not engage with the resident’s question. The policy copy provided listed an approval date only and the landlord’s response was silent as to the direct question asked. It did not reply or advise of its future intention or any separate process for provision of information. This was a failure by the landlord to address a specific point raised by the resident in his complaint.
The resident also put assertions to the landlord concerning the rehousing form he had been requested to complete. The Ombudsman is not in a position to comment upon the content of this form for the reasons detailed under ‘Jurisdiction’ heading above. However, the Ombudsman may consider how the landlord handled the complaint. There is no evidence that the landlord made efforts to engage with this concern raised by the resident. The landlord’s stage one response of 29 January 2021 has no reference at all to the form. The stage two response of 12 April 2021 explains its purpose. This was not an answer to the specific issue raised about the form. This is a further failure to address a point raised by the resident.
The landlord advised the Ombudsman it was unable to locate a copy of the resident’s succession application. The landlord’s records of contact with the resident on this matter also confirm it was unable to find a retained copy.
The landlord’s records show that it was aware of the record missing from its systems, however it was not transparent about whether this played any part in the delay accepted in its complaint responses. It is reasonable to consider that the landlord’s failure to retain a copy of this key document is likely to have hindered the efficient progression of the resident’s application and service provided to him. This was a failure of appropriate record keeping.
There were multiple failings in the landlord’s handling of the resident’s succession application that amount to maladministration. While the landlord determined the succession application in accordance with the law and its policies, it failed to effectively communicate its position or address issues and questions raised by the resident. It failed to maintain a copy of a key document. The landlord is ordered to apologise and to pay the resident compensation to recognise the avoidable distress and inconvenience undoubtedly caused on a matter of personal importance.
It is additionally noted by the Ombudsman that the landlord’s succession policy contains an inaccuracy with reference to its intended reliance on ground 15A of Schedule 2 to the Housing Act 1985 should it wish to seek possession from a successor or non-successor.
This ground can be relied on to seek possession from a secure tenant only. While the policy is reasonably clear in asserting it will require that the occupant move, this precise error leaves open the potential for misunderstanding by those residents whose circumstances do not otherwise meet conditions of ground 15A. The landlord is recommended to review the policy.

The landlord’s complaint handling

The landlord provided its stage two response letter to the resident by email within 20 working days of his escalation request, with a separate email containing a password for access. By the time the resident says he tried to use the password, it had either expired or was faulty. The resident sent to the landlord four separate chasers raising this issue and waited over a month before receiving the requested copy letter. Some of his emails elicited no acknowledgement or response from the landlord.
While the landlord complied with its response timescale requirement, there is no evidence that the delay of over a month was reasonable in all the circumstances to supply a further link/ copy of this important document. The landlord did not provide a holding response with an updated timescale or explain the reason for the delay. The landlord failed accordingly to deal with the stage two response in a timely manner. The resident was left waiting additional time for important questions about his status at the property to be answered. This is a further failure for which the landlord is required to apologise.
The landlord provided its decision by letter of 30 November 2020 in response to the resident’s application to succeed. The landlord’s complaint correspondence acknowledged that the resident had made repeat contact to seek progress of his application. The landlord apologised for the time taken to confirm its position and repeated an apology for delay. The landlord further acknowledged it had not met expected service standards and advised having reminded its staff of procedures.
As explained above, the Ombudsman is unable to assess the landlord’s handling of the resident’s application across 2016-2019. However, the landlord’s complaint responses consider its processing delay. It is appropriate for the Ombudsman to consider whether the landlord’s apology and staff reminders were reasonable in all the circumstances as sufficient remedy to the resident when handling his complaint.
The question of whether or not an occupant may succeed to the tenancy of a loved one is a matter to be treated by a landlord with great sensitivity and sufficient efficiency to provide certainty. The landlord acknowledged a delay of some 4 years, a period significantly past its procedural timeframes. It apologised, however did not offer an explanation for the extent of delay. While it was appropriate that the landlord gave a sincere apology, the lack of explanation prevented transparency as to why the resident had been left for over 4 years without formal confirmation of his status. The landlord’s failure to be candid was a missed opportunity by the landlord to seek to restore trust in its service and improve its relationship with the resident.
The landlord was aware when handling the complaint that the resident had been put to detriment as a result of its delay. An apology and staff reminder alone was insufficient remedy to acknowledge the extent of the delay or its impact. He was prevented an opportunity for timely understanding of his status at the property and information to plan for his future whilst grieving a loss. He was put to inconvenience and inevitable stress repeatedly chasing a response.
The landlord’s failure to provide sufficient and appropriate remedy to the resident in the face of its acknowledged significant delay is maladministration in its complaint handling.
The Ombudsman notes the absence of any remedies or compensation policy disclosed by the landlord. The Ombudsman’s remedies guidance suggests financial redress of between £100 to £600 where a failure has adversely affected the resident and the landlord’s response did not address the detriment to the resident and/or the offer made was not proportionate to identified failings. The Ombudsman has considered the following factors as relevant to its assessment of compensation:
1. The extent of the accepted delay.
2. The sensitivity of the issue under consideration; and
3. The landlord’s failure to offer any form of compensation to address the detriment to the resident.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s application for succession.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of the associated complaint.

Reasons

While the landlord’s request that the resident downsize was made in accordance with its obligations, the landlord failed to provide a clear or reasoned decision in response to the resident’s application to succeed. The landlord failed to clarify its position effectively during the course of the complaint or engage directly with matters raised by the resident about his application. The resident was left for prolonged periods uncertain of his status at the property and without the clarity required to inform decisions about his housing. The landlord also failed to keep an adequate record of the resident’s application for succession.
The landlord failed to offer an appropriate remedy to the resident when acknowledging its delay processing his succession applicant. The redress offered failed to reflect the extent of the delay experienced by the resident or the detriment caused.

Orders and recommendations

Orders

Within 4 weeks of the date of this decision, the landlord is ordered to:
1. Arrange for a senior member of the landlord’s staff to apologise to the resident for the failings identified in this report.
2. Pay the resident £700 compensation comprised of:
  1. £450 to reflect the time and trouble to the resident and the distress and inconvenience caused by leaving him without a clear and proper succession decision and by failing to address associated matters raised in his complaint.
  2. £250 to recognise the distress and inconvenience caused by its poor complaint handling that failed to offer appropriate redress despite acknowledging the resident suffered significant delay.

Recommendations

It is recommended that the landlord:
1. Review its succession policy and procedure. This review is to include:
  1. Legal accuracy check against references to ground 15A of Schedule 2 to the Housing Act 1985.
  2. Consideration of its standard communications with residents in the course of the succession procedure to ensure its decisions and explanations are provided in plain English, are clear and cover the relevant decision and matter(s) in issues.
  3. Regard to whether the decision-making steps taken by the housing office to assess the suitability of a direct let or a potential downsize for non- statutory successors could be made more explicit within the succession procedure.
2. Assess its complaint handling in this case and more generally against the Code and share any learning with relevant staff across the organisation.
3. Develop and operate a formal remedies/ compensation policy in line with good practice.
4. Review its record keeping practices to ensure that accurate and accessible records are kept and maintained of succession applications and related contact with the applicant.