Dudley Metropolitan Borough Council (202122067)

REPORT

COMPLAINT 202122067

Dudley Metropolitan Borough Council

21 June 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:
   1. The landlord’s handling of the resident’s request to remain in his grandmother’s property following the termination of the tenancy.
   2. The landlord’s handling of the resident’s enquiry about purchasing the property via the Right to Buy (RTB) scheme.
   3. The landlord’s complaints handling.

Background

2. The property is a 2-bedroom, semi-detached house. The resident’s grandmother succeeded his grandfather’s tenancy at the property when he passed away in November 2021. The resident states that he has lived with his grandparents at the property for most of his adult life.
3. The landlord has confirmed that it was unaware that the resident lived at the property until 15 June 2021, when he made enquiries about taking over the tenancy as his grandmother had gone into residential care. At that time, the landlord informed the resident that he could not succeed the tenancy, as his grandmother had already done so, and she was not deceased. The landlord informed the resident that if his grandmother terminated the tenancy and he remained in the property, he would be classed as an illegal occupier.
4. The resident made a formal complaint to the landlord, stating that its refusal to transfer the tenancy to him was unfair and ‘morally wrong’. He noted the considerable stress he had been under since his mother and grandfather had passed away the previous year and stressed his emotional attachment to the property. He stated that the Government was not building sufficient social housing to meet the public need, highlighting that some families were allowed to remain in a property larger than their requirements, for example when their children left home. The resident also complained about the Housing Manager’s manner and that they refused to speak to him about the tenancy because they did not have his grandmother’s written permission to do so. The resident also made an enquiry about purchasing the property through the RTB scheme.
5. Prior to the complaint response, the landlord received written notice from the resident’s grandmother that she wished to terminate her tenancy. The landlord wrote to the resident to inform him that the notice period would expire on 1 November 2021 and that he would need to seek alternative accommodation from that date. The landlord urged the resident to make a housing application, noting that if he remained in the property, he would be an illegal occupier and required to pay the landlord ‘mesne profits’ as compensation for trespass.
6. The landlord logged the resident’s complaint as an appeal against the outcome of his application to succeed the tenancy. The appeal outcome letter was also stated to be the landlord’s stage 1 complaint response. The landlord rejected the appeal, repeating its position and concluding that there were no exceptional circumstances that would warrant a deviation from its policies in this case. In response to the resident’s RTB enquiry, the landlord informed him that the RTB scheme only applied to public sector tenants and so as an occupier of the property he did not have the RTB. The resident requested that his complaint be escalated but the landlord refused, as no new evidence had been presented and the landlord’s Complaints Policy stated that complaints about issues where there was already an existing appeals process were excluded from its complaints process.

Assessment and findings

Handling of request to remain in the property

7. The Ombudsman will not make findings about whether the resident had a right to succeed his grandmother’s tenancy, as it is beyond the jurisdiction of this Service. This is because, in accordance with paragraph 39(i) of the Scheme, the Ombudsman will not investigate complaints where it is considered quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, or other tribunal or procedure. The Ombudsman is unable to give a binding determination on whether the resident had the right to succeed the tenancy and if he wishes to challenge the landlord’s decision on this matter, he should seek independent legal advice. The Ombudsman can, however, look at whether the resident’s request to remain in the property was handled in line with the landlord’s policies and procedures, and whether its actions were fair and reasonable in all the circumstances.
8. In response to the resident’s initial enquiry in June 2021, the landlord advised that if his grandmother were to end her tenancy, he would have no right to acquire it, or to the grant of a new tenancy in his name. The landlord correctly informed the resident that the succession rules only apply where the existing tenant has died, which was not the case with the resident’s grandmother who was voluntarily ending her tenancy due to her care needs. Succession by the resident was also prevented as his grandmother had already succeeded his grandfather’s tenancy and there can usually only be one statutory succession. The landlord also explained that the resident would not be granted a new tenancy of the property, as he was a single man and so would not be considered for a 2-bedroom house. The landlord’s initial response to the resident’s enquiries was clear, accurate and in line with the law, and its policies and procedures.
9. The resident stated that the Housing Manager was unsympathetic and abrupt, and complained that she refused to discuss his grandmother’s tenancy with him. No contemporaneous notes of phone–calls have been provided to this investigation, although the Housing Manager provided a statement following the formal complaint. There is no evidence that the Housing Manager behaved inappropriately towards the resident during their discussions, and the correct advice was provided in response to his enquiries. It was also appropriate for the Housing Manager to refuse to discuss details of the tenancy with the resident without his grandmother’s express permission. It would, however, have been helpful to acknowledge the complaint about the Housing Manager’s manner in the landlord’s complaint response. This would have assured the resident that his concerns had been properly investigated and made the landlord’s final position clear.
10. On receipt of the formal notice to end the tenancy, the landlord acted appropriately by writing to the resident as a known occupier to inform him of his residential status. The landlord encouraged the resident to make a housing application, assisted him with progressing this and offered a referral to housing support. The landlord did not immediately pursue the resident’s eviction after the date of termination and instead continued to support him to seek alternative accommodation, which showed that it wanted to treat him fairly and to help rehouse him.
11. The landlord’s Succession Procedure outlines the formal procedure where a tenant has died, and an occupant has made a request to succeed the tenancy. The procedure requires the Housing Manager to speak to the resident to gather information, assess the request and ‘make a clear written record of the decision on the house file with clear and sufficiently detailed reasons’. The decision should be communicated to the resident in writing and ‘the Housing Manger must consider whether there are any circumstances that may entitle the person(s) to remain in the property under a fresh tenancy or be offered alternative accommodation’.
12. As the Succession Procedure only applies where a tenant has died, the landlord was not required to follow it in response to the resident’s request to remain in the property. It was sufficient to inform the resident that succession was only possible where the existing tenant had died and, in the Ombudsman’s view, it would have been more straightforward to respond to his concerns via the landlord’s complaints process. Treating the resident’s request to remain in the property as a succession appeal created confusion, as the tenant was not deceased and no initial, formal decision on succession had been made. It is evident from the landlord’s internal emails that there was some confusion as to which procedure should be followed and so the landlord should review its policies to ensure that there is a clear process to be followed should a similar situation arise in the future.
13. The landlord did take several helpful steps to ensure it had adequately considered the resident’s request to remain in the property and it clearly communicated and documented its position. This included assessing whether there were exceptional circumstances that suggested it should deviate from its standard policy. The landlord’s willingness to be flexible in some circumstances is in line with the Ombudsman’s dispute resolution principle to ‘be fair’ in its treatment of people and in the application of its processes. The landlord acknowledged the resident’s emotional attachment to the property but reasonably concluded that it was not appropriate to grant him a new tenancy at the property, as it must ensure properties are allocated according to housing need and as a single man the resident would be under-occupying a 2-bedroom property.
14. The landlord’s overall treatment of the tenant was fair, reasonable and in line with its policies and procedures. The landlord’s actions demonstrated empathy towards the resident’s situation, as he was offered advice and support to seek alternative housing. Whilst the Ombudsman acknowledges the resident’s strong desire to remain in the property, there was no maladministration in the landlord’s handling of his request.

Handling of enquiries about purchasing the property via RTB

15. The resident emailed the landlord to enquire about purchasing the property via the RTB scheme on 24 September 2021. He referred to a previous enquiry about his grandmother’s lack of photo ID, although no evidence of any previous correspondence with the landlord about RTB has been provided to this investigation. The Housing Manager verbally confirmed to the resident that as he was not a tenant, he would not have the RTB the property. This advice was repeated in a written response dated 21 October 2021. Although the Ombudsman cannot make findings about a person’s eligibility for the RTB scheme, based on the information provided the advice given by the landlord was sound.
16. It is also noted that the landlord responded to the resident’s concerns that insufficient social housing was being built and how this impacted upon his situation. This landlord response, of 24 November 2021, provided general information about the supply of council housing and the RTB scheme.

Complaints handling

17. The landlord’s decision to combine its succession and complaints procedures to respond to the resident’s concerns was unhelpful. Where a resident has raised concerns about the landlord’s handling of a request or application that go beyond simply disagreeing with the decision itself, a formal complaint should be logged. In this case, it may have been reasonable for the landlord to refuse to log a complaint and to deal with the request to remain in the property via another procedure, but this should have been clearly explained to the resident and he should have been properly informed about his rights of appeal or escalation.
18. The landlord’s justification for refusing to escalate the complaint was contradictory, as it stated that where there was an existing route of appeal the matter would not be treated as a formal complaint, having already stated that the appeal outcome letter was also a stage 1 response. In any event, the complaint response was provided almost 8 weeks after the complaint was made, which was unreasonable.
19. The Ombudsman considers that there was service failure in the landlord’s complaints handling. The landlord should review its policies and procedures to ensure complaints are distinguished from applications or requests, and that the resident is clearly informed of the process the landlord is following and any applicable route of escalation or appeal.

Determination

20. In accordance with paragraph 54 of the Scheme, there was no maladministration by the landlord in its handling of the resident’s request to remain in the property after the termination of his grandmother’s tenancy.
21. In accordance with paragraph 54 of the Scheme, there was no maladministration by the landlord in its handling of the resident’s enquiry about purchasing the property via the RTB scheme.
22. In accordance with paragraph 54 of the Scheme, there was service failure in the landlord’s handling of the resident’s complaint.

Orders and Recommendations

Order

23. The landlord to pay the resident £50 compensation in recognition of the failings identified in the landlord’s complaints handling.
24. Within 28 days of the date of this report the landlord must confirm to this Service that it has complied with this order.

Recommendation

25. The landlord to review its policies and procedures to ensure that service complaints are distinguished from other applications or requests, and that the resident receives clear information regarding the appropriate route of escalation or appeal.