Ealing Council (202004088)

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REPORT

COMPLAINT 202004088

Ealing Council

18 January 2021


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 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 refers to:
    1. The Landlord’s decision not to allow the Resident’s daughter to succeed the tenancy.
    2. The Landlord’s handling of the Resident’s reports that her husband had been given Incorrect information in 2016 regarding the assignment of the tenancy. 

Background

  1. The Resident’s late husband was previously the sole tenant of the property. Following his passing in March 2020, the tenancy passed to his spouse (the Resident).
  2. The complaint has been raised by the Resident and, at times, by her daughter. For clarity, this report will refer to both the Resident and her daughter as “the Resident”.

Summary of events

  1. The Resident’s husband had submitted a request for assignment in 2016 and requested that if he should pass away, that the tenancy pass to his daughter. The Landlord did not formally respond to this request, although the Resident stated that her husband had been told over the phone by the Landlord that this would be possible.
  2. The Resident raised a complaint with the Landlord on 6 April 2020 and stated the following:
    1.  She had informed the Landlord that her husband had passed away in March 2020 and expressed dissatisfaction that the tenancy passed to her, as his spouse, rather than to her daughter.
    2. She stated that her daughter had moved, with her own family, back into the property in 2003 to assist in caring for the Resident’s son and husband who were both very ill at the time. The Resident’s son had passed away in 2016 and she stated that she struggled to care for her husband on her own.
    3. She stated that her husband had written to the Landlord in 2016 because he wished to transfer the property to his daughter. She stated that he wanted security and that if anything happened, his daughter would be able to continue looking after his son and wife. The Resident also confirmed that her daughter had been paying the rent charges at the property since 2003.
    4. It was explained at the time of the letter in 2016 that if the tenancy was transferred to his daughter, it could not be transferred again. The Resident stated that her husband had fully understood this, and the Landlord had stated that it would not be a problem to arrange.
    5. The Resident explained that the Landlord had now stated that her husband’s wishes could not be fulfilled as he had been given incorrect information in 2016 about the succession of the tenancy.
    6. She stated that this had caused a huge amount of upset and requested that the Landlord investigate the matter and explain why her daughter could not succeed the tenancy and why her husband was given incorrect information at the time.
  3. The Landlord issued a stage one complaint response to the Resident’s complaint on 28 April 2020. It stated that it could not verify the information the Resident and her husband had previously been given as this was verbally communicated and there was no record in writing. It confirmed that the Resident’s husband had been the sole tenant of the property and the succession would only pass to an eligible person. It advised that if the tenant was survived by their spouse or other equivalent relationship, the succession would automatically be granted to them. It stated that it was legally required to award the succession of the tenancy to the sole tenant’s spouse, in this case, the Resident, not her daughter. It enclosed a Succession Application form which the Resident would need to return, so the tenancy could pass to her as the previous tenant’s spouse.
  4. The Resident responded on 3 May 2020 and requested that her complaint be escalated to stage two of the Landlord’s complaints procedure. She stated that she had agreed with her husband’s wishes at the time and had also spoken to the Landlord on the phone and understood that it would not be possible for the tenancy to be assigned again after her husband had made this decision. She said that it was the Landlord’s responsibility to document any advice it had given, and its communication had now caused considerable upset. She stated that she had no paperwork to suggest that it was not possible to pass the tenancy to her daughter. She understood that a tenancy could be passed to a child if there were circumstances such as moving in to help care for someone. She stated that the property had been her home for 40 years and asked the Landlord to take this into account when considering her appeal.
  5. The Landlord issued its stage two complaint response on 1 June 2020 and stated the following:
    1. It explained that there was no file note of the response given to the Resident’s husband in relation to his request to assign the tenancy to his daughter. It noted that the staff member handling the case at the time should have clearly documented the conversation and it apologised that this had not happened.
    2. It explained that the rules of assignment are governed by Sections 91 and 92 of the Housing Act 1985 which states that assignments are prohibited except in three circumstances. The first two circumstances were not relevant to the Resident’s case (assignment by way of exchange or assignment by Court Order); however, the third exception was: ‘an assignment to a person who would be qualified to succeed the tenant if the tenant died immediately before the assignment’.
    3. It had previously explained that, in this case, only the Resident as the spouse would be qualified to succeed the tenancy and the right of assignment would therefore only fall to her.
    4. It acknowledged that this information had not been communicated clearly at the time, although it stated that it was satisfied it would not have changed the outcome as it was not possible for the Resident’s husband to assign the tenancy to his daughter in 2016.
    5. It stated that it understood it to be a difficult time for the Resident and explained that its Tenancy Agreements did not give any additional rights for succession or assignment. It would be unable to consider the Resident’s request that her daughter succeeded the tenancy as it was only able to award succession or assignment in line with housing law.
  6. The Resident requested that her complaint be escalated further on 27 June 2020 and confirmed the reasons for her complaint. She had been told that even if she had been told of the circumstances, it would not have changed the outcome. The Resident stated that this would not be the case because, if she had been told that her daughter would not be able to succeed the tenancy, she could have prepared by saving money for rent or deposits, as she would have known that her family would not have security in their home. She requested that the Landlord consider her request again as she believed it was the discretion of the Landlord to allow succession for children who had been caring for someone within their household. She also requested further information as to whether a joint tenancy would be a possibility and stated that the situation had caused a significant amount of distress for her and her family, who may become homeless should anything happen to her.
  7. The Landlord provided its stage three complaint response on 14 July 2020 and stated the following:
    1. It maintained its previous position that the information provided to the Resident’s husband in 2016 would not have changed the final outcome as there was no right to assign the tenancy to his daughter. It explained that discretionary succession would not be applicable in the Resident’s case as she met the criteria for statutory succession. Only where there were no members of the household who qualified for statutory succession would discretionary succession be considered. This meant that the Resident automatically succeeded the tenancy and the Landlord would not be able to change the decision. 
    2. It acknowledged that the Resident was concerned about what would happen to her family; it advised that there would be no further rights to succession and her daughter and other family members would become unauthorised occupants. At that time, the Landlord would assess the case in line with its Allocation Policy, to determine whether they qualify for rehousing. It was unable to predict the outcome of the assessment; however, it explained that if the application was refused, they would be offered support in finding alternative accommodation.
    3. It confirmed that a joint tenancy would usually only be granted between spouses unless there were exceptional circumstances. As the sole tenant, the Resident would be able to apply for a joint tenancy by completing a Housing Register application form. It would then assess the information provided and inform her whether a joint tenancy could be agreed.

Assessment and findings

Decision not to allow the Resident’s daughter to succeed the tenancy

  1. The Landlord’s Succession Policy states that for tenancies granted before 1 April 2012, The Housing Act 1985 allows a spouse or civil partner to succeed to a secure tenancy. If there is no married partner or registered civil partner, another member of the family can succeed to the tenancy. They must have been living at the property as their only or principal home 12 months prior to the tenant’s death. By law, there is only one succession on a secure tenancy. If the current tenant is already a successor, there can be no further succession. If the tenancy was not previously a joint tenancy and more than one person has the right to succeed, then the spouse has priority. If there is no spouse, the members of the family will decide between themselves on who should succeed.
  2. Following the passing of the former tenant in March 2020, the Landlord advised that the Resident, as the former tenant’s spouse, would succeed the tenancy. The Resident raised a complaint as she had been told in 2016 that her daughter would succeed the tenancy as that was her late husband’s wish. The Resident stated that this had been confirmed with the Landlord over the phone in 2016, although neither she nor her husband had received a formal response or confirmation that this would be the case.
  3. There has been no maladministration by the Landlord in respect of its decision not to allow the Resident’s daughter to succeed the tenancy. Whilst this Service understands that this decision is likely to have caused the Resident distress, the Landlord has acted in line with its Succession Policy and legal framework by naming the Resident as the successor of her late husband’s tenancy. This is because the spouse has priority over any other family members with the right to succeed. It is correct that the succession may pass to a family member if the tenancy began before 1 April 2012, although this would only be the case if there was no existing spouse or civil partner to succeed the tenancy. The Landlord has also acted appropriately by seeking legal advice on the matter before providing its stage one complaint response where it was confirmed that, if there is a spouse eligible to succeed, then they will automatically succeed and they cannot waive their right to allow another family member to succeed. This Service understands the Resident’s reasons for wanting her daughter to succeed the tenancy rather than herself. However, this would not mean that the Landlord should depart from its Succession Policy and the law to allow for this.

Information regarding the assignment of the tenancy in 2016

  1. Upon receipt of the application for the assignment of the tenancy, the Landlord should have assessed the information provided by the tenant and made a decision to approve or refuse the request. Following this the tenant should have been informed of the Landlord’s decision. The Landlord’s sample Tenancy Agreement states that a tenant may assign the tenancy of the property as permitted by section 91 and 92 of the Housing Act 1985.
  2. The Landlord has acknowledged that it had received the application for assignment in 2016. It stated that the telephone conversation in which the previous tenant and Resident had allegedly been informed that their daughter could succeed the tenancy in 2016 was not noted in writing. It could therefore not be verified as the Landlord had no evidence to suggest that this information had been given. It noted that there had been no further communication from the previous tenant or his family and that it had regrettably not provided a written response to the application of assignment.
  3. The Landlord has acknowledged that notes of the phone call should have been left at the time, although the Landlord would not be expected to keep detailed telephone records for this extended length of time. The evidence we have suggests the response provided at the time was not clear and the Landlord did not formally respond to the application. The Resident has stated that no further information was received to state that her daughter could not succeed the tenancy and therefore presumed the matter was resolved following the informal telephone conversation. Although the succession may have been discussed by phone, It may have been helpful for the Resident and the former tenant to chase the matter at the time, to ensure a formal response had been provided.
  4. This Service does not doubt the Resident’s claims that there had been unclear information given in 2016. There is a lack of evidence to verify the details of the telephone conversation and there is no evidence to suggest that the assignment had been granted to the Resident’s daughter. The Landlord has acted reasonably by  apologising that it had not formally responded to the previous tenant at the time and went on to explain why the tenancy would not have been assigned to the Resident’s daughter, and how this was in line with its policies and obligations.
  5. Furthermore, the Landlord has taken reasonable steps to acknowledge the Resident’s concerns about her family’s security of housing in the future. It has advised the Resident about applying for a joint tenancy and the support it could provide in the future to the Resident’s family. This Service acknowledges that the circumstances are likely to be distressing for the Resident and her family. The Landlord should have responded formally in 2016, although the lack of response at that stage would not significantly change the outcome as the Landlord’s decision not to allow the Resident’s daughter to succeed is appropriate and in line with its policies and legal obligations.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the Landlord in respect of its decision not to allow the Resident’s daughter to succeed the tenancy.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the Landlord in respect of its handling of the Resident’s reports that her husband had been given incorrect information in 2016 regarding the assignment of the tenancy. 

Reasons

  1. The Landlord has acted in line with its policies and obligations when passing the succession of the tenancy to the previous tenant’s spouse – in this case the Resident. It had provided a reasonable explanation as to why the Resident’s daughter would no be legally entitled to succeed the tenancy and has provided guidance to the Resident’s family in relation to any future support which could be offered.
  2. The Landlord has taken reasonable steps to investigate the Resident’s claim that she and her husband had previously been given incorrect information in relation to the assignment of the tenancy in 2016. It is noted that the Resident understood that the tenancy would pass to her daughter; unfortunately, there is no evidence to verify the information she had been given, and the evidence suggests that the Landlord did not formally respond to the application for assignment. Therefore, the Landlord has acted reasonably in explaining its position on the matter in line with its policies and obligations.