Blackpool Council (202122535)

REPORT

COMPLAINT 202122535

Blackpool Council

28 November 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. This complaint is about the landlord’s:
   1. Decision to seek possession of the resident’s home.
   2. Handling of a Right to Buy application.
   3. Decision to continue to charge rent while seeking possession of the property.

Background

2. The resident was a secure tenant of the landlord, a local authority. They moved into the property in 2015 and lived there until 2019.
3. In September 2019, the resident was arrested outside their home following an incident with a neighbour. The resident was convicted of a number of serious offences and sentenced to at least 7 years in prison. The resident was sentenced on 12 February 2020.
4. In February 2020, the landlord contacted the resident in prison, and their mother, to seek voluntary termination of the resident’s tenancy agreement. The landlord told the resident it would seek possession through the court if it was not granted voluntarily. The resident’s mother (who has permission to represent the resident while they are in prison) told the landlord that they intended to fight any possession attempt.
5. The resident’s solicitor was in contact with the resident and intended to visit them to discuss voluntary termination of the tenancy. However, the solicitor had difficulty visiting the resident and the tenancy was never terminated. In March 2020, COVID-19 restrictions meant landlords were unable to seek possession of properties as court proceedings had been suspended. The restrictions lasted until 20 September 2020.
6. On 4 April 2020, the resident submitted a Right to Buy application to the landlord. The landlord requested documents in relation to this application and otherwise progressed it under its normal processes. The resident’s mother said they were given the “go-ahead” by the landlord to request to buy the property. The landlord wrote to the resident on 22 September 2020 to confirm that the resident had the right to buy the property. The resident’s mother continued to pay rent on the property during this time.
7. On 20 September 2020, the landlord sent a Notice Seeking Order of Possession to the resident and their mother. This notice confirmed that the landlord was applying to the court for possession of the property. The notice sought possession under the following grounds:
   1. Conviction of a serious offence.
   2. Unpaid rent arrears.
   3. Antisocial behaviour.
8. The resident appealed the notice on various grounds, including that the rent was up to date. The appeal was heard on 22 October 2020 and the landlord refused the appeal. It said seeking possession was proportionate considering the seriousness of the offence committed. The landlord wrote to the resident on 5 November 2020 to confirm that the Right to Buy application had been suspended due to the impending court proceedings. The court proceedings took place on 3 December 2020 and the landlord was granted possession of the property on mandatory grounds. The resident had 2 weeks to vacate the property.
9. On 16 December 2020, the resident complained, through their mother. They said that:
   1. They believed the property was theirs and so continued to pay rent.
   2. They were told that the Right to Buy application would halt possession proceedings.
   3. They renovated the property in anticipation of being granted the right to buy the property.
   4. The landlord failed to give accurate information.
10. On 13 January 2021, the landlord responded to the resident’s complaint. It provided a summary of events. It also said:
    1. The advice given to the resident was from their own solicitor and not the landlord.
    2. The landlord was obliged to progress the Right to Buy application while it sought possession but did not need to complete the sale of the property.
    3. While the resident remained in possession (even though they were not in occupation), rent remained due.
    4. Any money spent in anticipation of purchasing the property was outside the landlord’s control.
11. The resident’s mother responded to this letter and explained a number of further points:
    1. Citizens Advice had told the resident not to sign the tenancy termination notice.
    2. They were never told that seeking possession of the property would cancel the Right to Buy application. They had assumed that the opposite would happen and the possession proceedings would be halted.
    3. In multiple conversations with the landlord, they were told they could apply to buy the property, even as a prisoner.
    4. The property had even been valued in expectation of the purchase.
    5. The landlord should not have allowed the resident to continue paying rent if it intended to get possession of the property.
12. The landlord responded to the resident on 3 March 2021. It did not uphold the complaint and reiterated that the advice the resident received from their solicitor was outside the landlord’s control. It said the information it provided to the resident in February 2020 was unambiguous in confirming that the landlord intended to seek possession of the property if it was not given voluntarily. The landlord’s designated elected member for housing reiterated this position on 25 March 2021.
13. The resident’s mother escalated their complaint to this service in January 2022. The resident wishes to claim all rent back from the point of being sentenced in February 2020, to when possession was granted in December 2020.

Assessment and findings

Scope

14. The resident has raised 2 complaints which the Ombudsman is unable to consider. These are the landlord’s:
    1. Decision to seek possession of the resident’s home.
    2. Handling of a Right to Buy application.
15. The landlord sought possession of the property through the courts. Under the Housing Ombudsman Scheme, paragraph 41(c), the Ombudsman “cannot consider complaints which, in the Ombudsman’s opinion,… concern matters that were the subject of court proceedings where judgement on the merits was given”. As the courts made a judgement on the merits of the possession order, it is not possible for the Ombudsman to review this complaint point.
16. Under paragraph 42(j), the Ombudsman “may not consider complaints which… fall properly within the jurisdiction of another ombudsman, regulator or complaint-handling body”. By convention, local authority Right to Buy schemes are considered the jurisdiction of the Local Government and Social Care Ombudsman. The resident would need to seek advice from that service on whether they can bring their complaint.
17. As a result, this report only considers the remaining complaint point:
    1. The landlord’s decision to continue to charge rent while seeking possession of the property.

Rent charges

18. Under the tenancy agreement, the resident is responsible for paying rent at the start of every week. The agreement also says that the resident “must pay all rent and charges up to the date of the end of your tenancy”.
19. The tenancy started in 2015 and ended on 17 December 2021. The latter date being the possession date granted by the courts. The resident has complained that rent should not have been charged while possession was being sought. However, we do not find this position reasonable. Up to the date of possession granted by the courts, the resident maintained a legal interest in the property. This meant the landlord was unable to either offer another tenancy of the property or sell the property.
20. The resident maintained that they intended to “fight” any eviction notice. Had the resident not kept paying rent on the property, arrears would have continued to accrue until the date possession was granted by the court. This would mean that on the date the tenancy ended, the rent would become immediately due. Failure to pay this could result in negative consequences in the future if the resident wished to take out another tenancy with the landlord.
21. The resident’s mother claimed that the landlord failed to properly inform them that it sought possession of the property. The landlord did tell the resident in February 2020 that, if possession was not given voluntarily, it would be sought through the courts. However, we do not actually consider this relevant. The tenancy agreement, and relevant legislation, says that the tenancy can only be ended in a limited number of circumstances. These include:
    1. Where it is surrendered.
    2. Where possession is granted by court order.

As the tenancy was not surrendered at any point by the resident, it followed that rent was due until some other event ended the tenancy.

22. It is clear that the resident and their mother believed they would be successful in their Right to Buy application and that is why they did not surrender the tenancy. The application itself is not within our jurisdiction, however the rent charged during the application is. In our view, it is perfectly reasonable for a landlord to continue to charge rent during a Right to Buy application. The fact that this application was, in the end, unsuccessful would not affect this decision. With this in mind, we have found no maladministration in the landlord’s decision to continue to charge rent while seeking possession of the property.

Determination

23. In accordance with paragraph 52 of the Housing Ombudsman Scheme, we have found no maladministration in the landlord’s decision to charge rent while seeking possession of the resident’s property.