Clarion Housing Association Limited (202109325)

REPORT

COMPLAINT 202109325

Clarion Housing Association Limited

26 July 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 response to the resident’s request to remove him from the joint tenancy.

Background and summary of events

Background

2. The resident’s current tenancy status is unclear, but at the time of the complaint he was an assured non-shorthold joint tenant of the landlord with his ex-husband.  The tenancy seems a periodic one, as it was for an initial term of one week and then continuing thereafter until determined.
3. The tenancy agreement requires tenants to give at least four weeks’ written notice when a tenant intends to end the tenancy. The changes to a tenancy are not normally allowed if a rent account is in arrears.
4. The landlord’s tenancy change policies allow a periodic assured tenancy to be changed to a sole tenancy, by assignment or (if a departing joint tenant is no longer available) by ending the tenancy and granting of a new one:
   1. The assignment of a tenancy from a joint tenancy to a sole tenancy requires for a deed of assignment to be signed by both tenants.
   2. The ending of a tenancy requires a notice to quit from one tenant, after which a new sole tenancy can be granted with the landlord’s agreement.
5. The landlord operates a two stage complaints policy where it responds at stage one within ten working days, and at stage two within 20 working days. Where service standards are not met the landlord may consider compensation awards from £50.

Summary of events

6. In February 2018, the resident says he and his ex-husband wrote to the landlord to request that the tenancy be changed to a sole tenancy in the ex-husband’s name. The resident says that he requested for this to be from 31 March 2018 to reflect when he moved out of the property. There is limited evidence to support this account. Information provided shows that the rent account went from being in credit at the end of March 2018 to being in arrears from early April 2018. By the time of the resident’s formal complaint in February 2021, the rent account was in arrears of around £7,000.
7. The landlord provides some call records which advise that the resident has made occasional calls to the landlord, from 27 April 2018. The landlord has stated that while its records show the resident and his ex-husband made enquiries about changing the tenancy to a sole tenancy in March and April 2018, there was no record of a request that adhered to the correct procedure for doing so. The landlord has noted that in September 2018, the resident’s ex-husband was informed that where there was a joint tenancy, both tenants must sign a letter. Information provided shows the rent account was in arrears at this time.
8. In July 2019, the resident wrote a letter to the landlord and asked it to accept this as a formal notice to remove his name from the tenancy. The resident said that he moved from the property at the end of March 2018, leaving the other tenant as resident. He enclosed a copy of his ID; provided his telephone and email details; and signed the letter as the only signatory. Information provided shows the rent account was again in arrears at this time.
9. The same month, the landlord responded that it had tried to contact the resident about the request. It stated that it would not be able to assign the tenancy and said that the resident should seek independent legal advice.
10. In June 2020, the landlord responded to a further request to change the tenancy. Information provided shows the rent account was again in arrears at this time. The landlord said that it was unable to assign the tenancy at that time as the rent account was not up to date, and asked the resident to contact it again to consider the request when the account was up to date. It provided contact details if he had questions or needed help or advice about the tenancy and rent payments.
11. On 16 February 2021 the resident made a formal complaint to the landlord. He said:
    1. In February 2018, he had sent a letter to the landlord, signed by him and his ex-husband, in which he asked to be removed from the tenancy. He had assumed he had not heard back from the landlord because his ex-husband had not forwarded a letter to him.
    2. In 2019, his ex-husband informed he was still on the tenancy and he wrote to the landlord, but was informed he could not be removed from the tenancy as it was in arrears. He had also contacted the landlord at the beginning of 2020.
    3. In February 2021, he had requested rent account statements from the landlord and been informed these would be provided by 15 February 2021. He explained the point of his obtaining these was to prove the account had not been in arrears when he left the property.
    4. He queried why the landlord had ignored letters and phone calls from him; why its June 2020 letter had been sent to the tenancy address rather than his current address; and why the agreement had not been ended and his ex-husband evicted due to the arrears.
    5. He said he understood the landlord refusing to remove him from the tenancy agreement when it was in arrears, but he stated that when he sent his first request the account was clear and he could prove he had not resided at the property since March 2018. He asked the landlord to backdate the tenancy agreement to the change of circumstances in March 2018.
12. On 22 Mach 2021, the landlord responded. It said:
    1. It was unable to remove him from the tenancy due to the rent account arrears, and he remained half responsible for these.
    2. It had internally discussed his stated reasons for his removal from the tenancy, including his having followed correct process to get the joint to sole process started by writing to it in February 2018; however the account showed there were arrears as of 4 April 2018 which was why ‘the first process’ was rejected.
13. On 26 March 2021, the resident requested escalation of the complaint. He said:
    1. The arrears on 4 April 2018 was not a valid reason for not having updated the tenancy agreement, as the letter he had sent in February 2018 gave almost two months’ notice and on 31 March 2018, his last day as tenant, the rent account was in credit.
    2. The landlord had not addressed all the points in his original complaint.
14. The landlord provided its final response on 19 May 2021. It said:
    1. Its records showed the resident and his ex-husband enquired in March and April 2018 about changing the tenancy from a joint to a sole tenancy, however there was no record of a request that adhered to the correct procedure, and in September 2018, the resident’s ex-husband was informed that where there was a joint tenancy, both tenants must sign a letter.
    2. It said that after a call on 1 March 2018, there was no record to suggest that information was received to process the change in tenancy and it said no written request was received before July 2019. It said there were then were arrears on receipt of a July 2019 letter and so the request was rejected.
    3. It apologised that the resident felt its handling of contacts from him had not been adequate. It advised that its records had been updated when he had called and that from system information, there was no failing in its handling.
    4. It advised that its first complaint response was incorrect to say April 2018 arrears were a rejection reason (as it had not received prior notification in 2018) and it confirmed internal actions to improve service in respect to this.
    5. It apologised for its complaint handling and a delay in responding to the complaint and awarded £100 in recognition of these.
15. The resident brought his complaint to this Service as he was unhappy that the landlord did not remove him from the tenancy; unhappy he was being held responsible for half of the arrears that accrued on the rent account; and unhappy with the landlord’s handling following contact from him.

Assessment and findings

16. This investigation notes that the resident did not make a formal complaint to the landlord until February 2021. It is normally considered reasonable for complaints to be made closer to the time of events complained about, as the longer time goes on, the more the ability to conduct an effective investigation may be impacted. This means that the main focus of this investigation assesses whether the landlord appropriately considered matters, correctly applied its policy and procedure and responded reasonably within the timeframe of the complaint from February 2021.
17. There is no specific evidence to support the resident’s account that he wrote to the landlord in February 2018, to give notice that he was leaving in March 2018 and to request for the tenancy to be changed to be solely in his ex-husband’s name. There is no evidence that the resident contacted the landlord about the matter before March 2018 according to its complaint response, or before 27 April 2018 according to records the landlord provides toward this investigation. The resident was invited to provide information at the start of the investigation to support his account, but the available evidence shows the first formal request to change the tenancy was made in July 2019.
18. The landlord’s policies advise however that the reported February 2018 correspondence alone would have been insufficient to put the landlord on notice to amend the tenancy. If the resident notified the landlord before he left the property, the landlord’s policies advise that he and his ex-husband would have both needed to sign a ‘deed of assignment’ for the tenancy change to take effect. There is no evidence to show that the resident and his ex-husband signed and returned such a document before he left the property. The resident has stated that he is able to show he moved into a different property in 2018, however this would be insufficient to terminate his tenancy, and would go no way to show that in 2018 the formal requirements to remove him from the tenancy were met. While the landlord’s policies allow a surrender of tenancy to be expressed by a letter or deed, or implied by action such as leaving the property, these are only stated to apply to fixed term tenancies and further, may require a court order to take effect.
19. The landlord’s policies advise that changes to a tenancy are not normally allowed if a rent account is in arrears, so when the resident requested his removal from the tenancy in July 2019 and June 2020, the landlord’s refusals were in accordance with its policies. This investigation has noted that the resident did not make a formal complaint until 2021, and his contact to the landlord in July 2019 or June 2020 would seem to have been beneficial, timely and appropriate opportunities to have made a complaint about the reported unactioned request in February 2018. Further, while the resident’s reluctance to engage with his ex-husband is understandable, this investigation would have expected to see attempts, closer to the time, to directly query if the landlord had met the reported February 2018 request. This would have been reasonable given the significant obligations that a tenancy agreement places on a tenant until this is properly terminated.
20. Overall, the landlord’s responses to the request to remove the resident from the tenancy and to the complaint seem reasonable, based on the evidence available. The landlord considered the substantive issues matters and its complaint handling in a reasonable way, given the complaint was made three years after the period complained about. It took appropriate steps to review records to assess what these said and set out its position to the resident. It appropriately acknowledged that it did not provide a complaint response within the timeframes set out in its complaints procedure, and provided reasonable remedy for this in accordance with its compensation policy, given that each of its complaint responses exceeded their target timeframes by several weeks.
21. While the above is the case, this investigation does make recommendations to the landlord in respect to two aspects.
22. The landlord has said that in September 2018, it informed the resident’s ex-husband that where there was a joint tenancy, both tenants must sign a letter. This does not seem entirely accurate if a joint tenant has departed and is no longer available, as section 6 of the tenancy changes and assignment procedure states that for periodic assured tenancies a tenancy can be ended and a new one granted after a notice to quit by one tenant. This seems applicable here, but this does not seem to impact the complaint in a substantial way, as the information was provided to the resident’s ex-husband after April 2018 when the account was in arrears. However, this investigation has made a recommendation in respect to ensuring accurate information is being provided.
23. This investigation has seen reference to events, such as the September 2018 one above, that are not included in background information the landlord provided to this Service. At the start of the investigation, the landlord was asked to provide some information in respect to a reference in its complaint records to “another process that was worked from April 2018 under ex partner,” which it did not supply due to issues caused by a recent cyber-attack. The evidence shows that the landlord considered information in respect to the resident’s complaint including contacts from his ex-husband, which gives little reason to doubt it has not already considered matters. However, this investigation has made a recommendation to ensure that no information relevant to the resident, but recorded in his ex-husband’s file, has been overlooked when considering matters.

Determination (decision)

24. In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, there was reasonable redress in the landlord’s response to the resident’s request to remove him from the joint tenancy.

Reasons

25. The landlord considered the substantive issues matters and its complaint handling in a reasonable way, given the complaint was made three years after the event complained about. It took appropriate steps to review records and set out its position to the resident. It appropriately acknowledged that it did not provide a complaint response within the timeframes set out in its complaints procedure, and provided reasonable remedy for this in accordance with its compensation policy.

Orders and recommendations

Recommendations

26. In light of the issue identified at paragraph 22 of this report, the landlord to:
    1. review whether, once a joint periodic assured tenant has departed, it should be informing remaining joint periodic assured tenants that both tenants must sign a letter, in order to change a joint tenancy to a sole tenancy.
    2. take any appropriate action to ensure accurate advice is given, where applicable.
27. The landlord, when it has regained access to its IT systems, to:
    1. review the ex-husband’s records to confirm there is no evidence a request to change the tenancy was received in February or March 2018 which was not dealt with appropriately. As part of this, it should consider the process it worked on from April 2018 and how this came about, including the chronology of communication that led to it.
    2. consider whether any information changes its position on the substantive issues and inform the resident and this Service of the outcome.