Brighton and Hove City Council (202119154)

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REPORT

COMPLAINT 202119154

Brighton and Hove City Council

16 March 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

  1. The complaint is about:
    1. the landlord’s response to the resident’s request that his tenancy be assigned to his son;
    2. the landlord’s handling of the associated complaint.

Background and summary of events

  1. The resident holds a secure tenancy for a three bedroomed house, which started in 2013. The resident lives there with his adult son, and is planning to move out to live with his partner. He explained he wanted to ensure his son was not made homeless, and wants him to be assigned the tenancy. The resident explained he understood this would leave the house under-occupied, and that his son would be prepared to transfer to a one-bedroomed property once he was a tenant.
  2. There is agreement from both parties that the terms of the tenancy agreement signed in 2013 allowed for assignment of the tenancy to anybody who would qualify for succession in the event of the death of the tenant. There is also agreement that at the time, the terms of the tenancy agreement included adult children who had lived in the property for a year.
  3. In 2017 the landlord sought to vary the tenancy agreement, under the powers granted by the Housing Act 1985. This requires the landlord to issue a preliminary notice of variation setting out the changes it intends to make, consider any comments received in response, and send a notice of variation confirming the changes. It does not require the tenant to sign in agreement.
  4. There is agreement that the landlord sent a preliminary notice of variation to the resident in April 2017. The Ombudsman has seen internal records from the landlord relating to the consultation period held from April to June 2017. The records show there was appropriate consideration and analysis of the feedback it received from tenants in response to the preliminary notice. The preliminary notice specified changes to Government guidance on succession rights as one of the reasons for the changes, and internal “frequently asked questions” guidance to staff to aid responses to the notice of variation specified the changes to succession rights as one of the main concerns tenants may have.
  5. There is agreement that a notice of variation was issued to the resident in November 2017. The resident has explained this contained details of a lot of changes, and that he understood the explanation from the landlord to mean that these would have a minimal effect on his rights, and were instead focussed on making the language easier to understand.
  6. The changes to the tenancy came into effect in January 2018. The succession and assignment rights were brought in line with changes made possible by the Localism Act 2011, allowing landlords to limit succession rights to spouses, civil partners and co-habitees living as spouses/ civil partners. This affected all tenancies created after 1 April 2012. It is important to note that the act did not require the landlord to exclude others from succession or assignment, and the landlord kept the right to allow discretionary succession and assignment.
  7. In late 2020 the resident asked for his son to be assigned the tenancy, as he was intending to move out. The landlord advised this would not be possible at the start of December 2020. On 21 January 2021, the resident asked to make his request through the formal route of an application, and a consideration of his household’s circumstances and response to be issued accordingly. The landlord sent the resident an assignment application form the same day, and its internal communications show that it sought legal advice and began discussions of the resident’s rights. The resident returned a blank form on 29 January 2021, which he later explained was an accident. However, the landlord and resident communicated in the interim, with the landlord seeking to understand who would be living at the property after the resident moved out and whether they had any vulnerabilities that would give them priority need for housing assistance.
  8. The landlord issued a response to the resident on 11 March 2021, confirming that its position remained the same and it would not grant permission for an assignment of the tenancy to the resident’s son. On 18 March 2021, the resident asked for a formal letter outlining the reasons his request was refused, and for a copy of the notice of variation to his tenancy. He advised the landlord of his intention to appeal the refusal to grant the assignment once these had been received. The resident returned a completed assignment application form the next day, 19 March 2021.
  9. On 24 March 2021 the landlord confirmed its position was the same, and it would not give permission for the tenancy to be assigned. It advised the resident there was not an appeals process for this decision, and that he would have to submit a complaint should he want the decision making reviewed.
  10. On 20 April 2021 the resident submitted a stage one complaint, reiterating his belief that his tenancy rights allowed him to assign the tenancy to his son, and that the landlord was incorrect to refuse permission for this. The landlord acknowledged this complaint on 21 April 2021, and advised it would aim to respond within 10 working days.
  11. The landlord spoke to the resident on 7 May 2021, and advised that it would need to seek further legal input and therefore agreed with the resident that the complaint response may take some weeks. Due to bank holidays, this did fall within the 10 working day window. It issued a stage one response eight working days later, on 19 May 2021, and the decision to refuse the assignment was upheld.
  12. The resident escalated the complaint to stage two on 18 June 2021, and explained that he believed the changes to succession and assignment rights applied only to new tenancies, and not retrospectively to current ones such as his. The stage two complaint was acknowledged by the landlord on the same day, and it said it would aim to provide an outcome within 10 working days.
  13. On 2 July 2021 the resident chased an outcome from the landlord, and said that he was willing to make an additional submission which he intended would assist with the decision if it had not yet been made. He asked the landlord to confirm whether he should send this in.
  14. On 16 July 2021 the resident contacted the landlord, highlighting the length of time he had already waited for an outcome to his stage two complaint, and asking for a realistic timescale that he could expect to hear back, and an explanation of why the response had been delayed so far. The landlord responded on the same day, advising that the delay was caused by unexpected absence in the team and a higher number of cases than expected. It advised it would aim to provide a response by the end of August at the latest.
  15. On 28 July 2021 the resident’s local Member of Parliament contacted the landlord on his behalf, asking for an update and for details of when a final complaint response would be provided.
  16. On 19 August 2021 the landlord sent an update to the resident, apologising for the delay and updating him that the complaint had been assigned to a manager who had begun investigating it. It said it would provide an outcome as soon as possible.
  17. On 20 September 2021 the resident submitted a new stage one complaint, regarding the fact he was still waiting for a response to his stage two complaint. He explained his frustration that he had not been kept updated after the end of August had passed. The Ombudsman has seen the response issued to the new stage one complaint. The landlord apologised for the delay, which it confirmed was due to staff absence, and advised it had now appointed a temporary member of staff in order to increase its short term capacity to handle complaints. 
  18. On 21 September 2021, the landlord sent an update to the resident’s stage two complaint, apologising for the delay and explaining the manager who had been assigned his complaint was unexpectedly away from the office. It said the manager was due to return imminently, and would provide an update then.
  19. On 29 September 2021 the landlord assured the resident it would issue a response by the end of 11 October 2021. On 11 October 2021 the landlord sent the resident an apology and advised its response was being reviewed by its legal team. It said it aimed to provide the response by the end of 15 October 2021 and would update the resident if this was not possible. The resident responded to this, expressing his dissatisfaction with the time taken to reach a decision.
  20. On 12 October 2021 the landlord issued its stage two complaint response to the resident. The landlord apologised for the time taken to respond, and confirmed it did not give permission for the assignment. The landlord explained its position and recognised the issue had become unnecessarily complicated at earlier stages due to references to the Localism Act. It set out the resident’s rights following the variation to his tenancy in 2018. The complaint handler recommended that the resident’s son be assessed for discretionary succession to ensure all potential options were exhausted, and advised the resident the housing options team would contact him to complete this. The landlord directed the resident to the Local Government and Social Care Ombudsman should he remain dissatisfied with its response.
  21. The landlord contacted the resident on 14 October 2021, for the purposes of conducting an assessment of the resident’s son for discretionary succession. The resident responded on 15 October 2021, but did not supply some of the information requested and asserted that he thought it unlikely his son would qualify under the criteria. The landlord’s internal records show it considered what it knew of the resident’s son’s circumstances in line with its discretionary succession policy and it notified the resident of the outcome on 3 November 2021, confirming his son was found not to be in priority need.

 

 

Assessment and findings

The landlord’s response to the resident’s request that his tenancy be assigned to his son

  1. The evidence shared with the Ombudsman demonstrates the landlord took appropriate steps to vary the terms and conditions of the resident’s tenancy agreement. There is no dispute that prior to 2018 the resident’s son would have qualified for succession, and by extension consideration for assignment of the tenancy. This was changed in 2018, however the landlord retained the ability to give permission for discretionary succession and assignment.
  2. The landlord recognised it had unnecessarily complicated and confused the matter in its original responses to the resident, and sought to clarify its position in its stage two response. In its final complaint response it explained it had based its decision on the terms and conditions of the resident’s tenancy, which was appropriate. It was also appropriate that it sought to assess the resident’s son’s application under its discretionary succession policy. The evidence supplied to the Ombudsman shows that it gave reasonable consideration to what it knew of the resident’s son’s circumstances when making its decision. The landlord’s decision letter set out its reasoning and demonstrated it had given reasonable consideration to the separate points the resident had raised.
  3. The landlord’s decision to refuse the assignment request was reasonable. For children of the resident, the tenancy allowed only for discretionary succession with the landlord’s permission. The landlord demonstrated it gave this reasonable consideration based on the individual circumstances of the resident and his son.

Complaint handling

  1. The resident experienced unreasonable delays waiting for the stage two complaint outcome, and it is understandable that this caused him frustration. The landlord did not offer compensation, despite acknowledging the time and trouble the resident had been caused by its failure to update him and progress the complaint investigation in a timely way. Given its acknowledged failings, it would have been reasonable for the landlord to have considered financial redress as part of its complaint handling. The landlord also signposted the resident to the incorrect Ombudsman.
  2. In relation to failures identified, the Ombudsman’s role is to provide fair and proportionate remedies where maladministration or service failure has been identified. In considering this, the Ombudsman takes into account the Ombudsman’s Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes, as well as the Ombudsman’s guidance on remedies.
  3. Given the circumstances, an offer of compensation would have resolved the matter in a more satisfactory way. With reference to the Ombudsman’s guidance on remedies and the landlord’s complaint policy, the sum of £75 would be appropriate redress for the impact of the landlord’s complaint handling on the resident.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman’s Scheme there was no maladministration by the landlord in respect of its response to the resident’s request that his tenancy be assigned to his son.
  2. In accordance with paragraph 52 of the Housing Ombudsman’s scheme, there was service failure by the landlord with respect to its complaint handling.

Reasons

  1. The landlord took steps early on to understand the household’s circumstances and take these into consideration. Whilst it is understandable that the resident wanted a formal process to be followed and formal responses from the landlord, to enable him to challenge the outcome, the Ombudsman is satisfied that the landlord gave reasonable consideration to the resident’s son’s needs and circumstances throughout the process.
  2. The substantive issue was the rights conveyed by the resident’s tenancy agreement. The landlord advised the resident of these when he first made an enquiry, however it caused confusion with its later responses. The resident has explained that he felt misled by the communication issued with the notice of variation, and this provides an opportunity for the landlord to examine whether it could make communications regarding changes to tenancy terms and conditions clearer in future.
  3. The landlord delayed the stage two response unreasonably, and this caused the resident time and trouble. Reasonable redress should therefore include an offer of compensation.

Orders and recommendations

Orders

  1. It is ordered that the landlord pay the resident £75 compensation for the time and trouble caused by the delays in its complaint handling. It should do this within four weeks of the date of this report. The landlord should provide evidence of compliance with this Order to the Ombudsman.

 

Recommendations

  1. It is recommended that the landlord reviews its:
    1. External communications relating to notices of variation, to ensure clarity and transparency at all stages.
    2. Internal stage two complaint response guidance and training, to ensure it directs residents to the correct Ombudsman whenever possible.