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Harlow District Council (202212720)

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REPORT

COMPLAINT 202212720

Harlow District Council

19 July 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 the landlord’s handling of the resident’s request to be removed from a joint tenancy agreement.

Background

  1. The resident and his ex-wife held a joint tenancy for a two bedroom house from the landlord from 6 July 2015 to 7 March 2022.
  2. On 5 August 2021, the landlord was notified that the resident would be moving out of the property on 13 September 2021, and that his ex-wife would be transferring on to universal credit to cover the rent costs. On 6 September 2021, the landlord advised the resident that he would remain jointly liable for the rent even if he was no longer going to be living there. The landlord suggested he contact his housing officer to chase up an amendment to the existing tenancy agreement.
  3. The landlord’s records showed that the resident chased his housing officer on 22 October 2021 for an update as to when his name would be taken off the joint tenancy for the property, as per the application that he and his ex-wife had previously submitted to it for this. It noted that they agreed to request this information and then contact him, which they did on 25 October 2021, explaining that they could find no information on his application, and so would have to start the process again by sending his ex-wife a new application that day for up to date details.
  4. On 5 November 2021, the resident wrote to the landlord to request that his name be taken off the joint tenancy agreement, as he had moved out of the property on 25 September 2021. On 22 November 2021, the landlord wrote to the resident’s ex-wife to confirm that her request for a sole tenancy of the property had been approved, enclosing a notice to quit form that it asked her to complete and return for it to proceed with offering her a management move to a one bedroom property, as she was under-occupying.
  5. On 7 December 2021, the landlord contacted universal credit. It confirmed a joint tenancy, sole liability issue because only one of the joint tenants lived at the property, and therefore the resident’s ex-wife was still individually liable for all of the rent, as well as the resident, because they were still joint tenants. It said because of this she should be getting her full entitlement of universal credit in order to cover the rent costs as a sole occupier.
  6. On 28 January 2022, the resident called the landlord to find out why his ex-wife’s application to change the joint tenancy to sole occupancy had not been completed. He explained he had spoken to her around December 2021 and she had told him she had submitted the application for a second time.
  7. On 9 February 2022, the landlord spoke to the resident and explained it had been unable to process the application, as it was waiting to receive a signed notice to quit and area choices from the resident’s ex-wife. The landlord explained it had only received them in February 2022. It confirmed it would process the application and the resident would be updated once it was completed. The landlord subsequently confirmed that the notice to quit ended the joint tenancy on 7 March 2022, and that the resident’s ex-wife would be downsized by it to a one-bedroom property.
  8. On 28 July 2022, the resident raised a stage one complaint with the landlord. He stated that he moved out of the property in September 2021, and sent letters to the landlord for his name to be taken off the tenancy. The resident said that the landlord had told him this would happen within eight weeks. The resident also said that the landlord had lost his original application, and his ex-wife had to send another one. The resident said it had been nearly a year since he moved out of the property and he was still having to pay rent as it was a joint tenancy.
  9. On 9 August 2022, the landlord issued its stage one response. It explained that a joint tenancy was legally binding, and that it was not legally entitled to remove one of the parties, and it was for one or both residents to allow the tenancy to be transferred by way of a court order or a notice to quit. The landlord confirmed it received an application for sole tenancy and a notice to quit on 8 February 2022, and that it had been processed. It said where the landlord agrees on the change, it is dependent on the properties it has available. Unfortunately, no suitable properties had been identified for his ex-wife to date, and so the account for the property remained live.
  10. The landlord also stated it was unable to verify the contents of the previous telephone calls with the resident, but there was no provision for an eight week timescale. It explained a joint tenant’s name would only be removed from an agreement where a court order was made, or where the tenancy ended. It also explained that its own contact notes made no reference to an eight week timescale being given. The complaint was not upheld.
  11. On 12 August 2022, the resident raised a stage two complaint. He asked why the landlord had not been able to find suitable accommodation for his ex-wife in a year, why a one bed flat was not suitable for her and how long it would take to remove him from the tenancy.
  12. On 31 August 2022, the landlord issued its stage two response. It stated that due to data protection it could not give information about the resident’s ex-wife’s housing application. It reiterated that a joint tenant could only be removed by a court order through family court proceedings, or either tenant could end the tenancy at any time with a notice to quit, which ends the tenancy for both residents.
  13. The landlord confirmed that the process to find new accommodation was totally dependent on stock. Additionally, it confirmed that, when the application for a sole tenancy and notice to quit was served in February 2022, the tenancy ended on 7 March 2022, and the resident had been informed of this. The landlord confirmed it had been trying to source a suitable property for the resident’s ex-wife since, but a suitable one had not been identified. The complaint was not upheld.
  14. The resident remained unhappy with the landlord’s response, and brought his complaint to the Ombudsman in November 2022. He explained he wanted to be removed from the tenancy, reimbursed for the rent he had been paying on the property since he moved out, and for the landlord to speed up the process of re housing his ex-wife. The resident reported that he had continued to pay £200 per month to the landlord for half of the property’s rent, which he could not afford and meant that he struggled to live and afford food.
  15. Since bringing the complaint to the Ombudsman, both the resident and the landlord have confirmed that the resident’s ex-wife was rehoused on 6 March 2023, with her tenancy ending on 19 March 2023. Additionally, the resident has confirmed to the Ombudsman that, after leaving the property in September 2021, he continued to pay his ex-wife £200 a month in cash for joint tenancy rent payments until she was rehoused in March 2023. The landlord has also told the Ombudsman that universal credit was being paid directly to the resident’s ex-wife, and because of this it is unable to verify whether it was backdated to her for the period of September to December 2021.
  16. The landlord has additionally said it is unable to distinguish between any rent payments made by the resident or his ex-wife. Its payment records confirm that rent was paid for the tenancy monthly from the expiry of the notice to quit on 21 March 2022 through to 20 March 2023. This was mostly cash payments, with some debit card payments. It does not have a payee name.

Assessment and findings

Scope of Investigation

  1. In his complaint raised with the landlord and his correspondence with the Ombudsman, the resident mentioned that he was unhappy with how the landlord handled the rehousing of his ex-wife, and he wanted it to be conducted quicker, as well as with the effect of this on their rent and her universal credit for this. The Ombudsman understands the resident’s concerns about this. However, this part of his complaint is not something the Ombudsman can consider.
  2. This is in line with the Housing Ombudsman Scheme, which states that we may not consider complaints that fall properly within the jurisdiction of another Ombudsman. As complaints concerning rehousing applications handled by local authority landlords and universal credit fall properly within the jurisdiction of the Local Government and Social Care Ombudsman and the Parliamentary and Health Service Ombudsman, respectively, these are outside the scope of this investigation. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident.

Removal from the joint tenancy

  1. The resident’s and his ex-wife’s joint tenancy agreement states that a notice to quit served by either tenant will have the effect of ending the tenancy for both parties. Additionally, it states that residents must tell the landlord in writing at least four weeks before they want to end a tenancy.
  2. The landlord’s housing management policy states that a joint tenancy agreement is a binding legal contract, under which each tenant is jointly and individually liable for complying with the tenancy conditions. These obligations remain for so long as the joint tenancy exists, even where one tenant leaves the property, provided that one of the joint tenants continues to reside at the property. For example, where one joint tenant leaves the property both tenants remain legally responsible for payment of the full rent.
  3. The housing management policy also states that, while a joint tenancy can remain in effect for any number of years in the absence of one of the tenants, a common issue for landlords occurs when the departed tenant no longer wishes to be a party to the joint tenancy. As a landlord, it is not legally entitled to simply “remove” one of the parties to a joint tenancy and it is therefore for either, or both, of the joint tenants to take steps to allow for the tenancy to either be transferred by way of a court order, where possible, or alternatively to end the tenancy.
  4. The housing management policy states that, where one joint tenant serves a notice to quit, this has the effect of ending the whole joint tenancy. The policy also states that where a joint tenancy is ended by notice to quit by either or both tenants, this removes the right for either joint tenant to live in the property, and entitles the landlord to recover possession of the property. In these circumstances the landlord has discretion as to whether to grant a new, sole tenancy to the remaining tenant in line with its existing policies and procedures. Although the landlord’s allocations policy states that, when a notice to quit is served on it by one party to a joint tenancy, the tenant left in occupation will be offered a sole tenancy if the property is not larger than required and will be considered for a suitable alternative property if they are under-occupying.
  5. The landlord received the notice to quit from the resident’s ex-wife in February 2022. Once the landlord received this, the joint tenancy was ended on 7 March 2022. The landlord then had the discretion to grant a sole tenancy to the resident’s ex-wife, which it suggested that it intended to do for her as an under-occupying tenant left in occupation under its allocations policy, but it was waiting on sourcing a smaller property for her.
  6. The landlord’s housing management policy states that, following expiry of the notice to quit, the remaining tenant will be expected to maintain payments for use and occupation, but payment will not constitute a new tenancy, which is instead determined under the allocations policy.
  7. The landlord’s housing management policy also states that, on receiving a request from a joint tenant to be removed from their tenancy, its housing officer will advise the tenant in writing that it is unable to do so unless by court order, suggesting that they seek advice and explaining that either tenant may end the tenancy by serving notice to quit, as well as the effects of this. The resident told the landlord on 5 August 2021 that he was leaving the property, and his ex-wife would be using universal credit to make rent payments after that.
  8. Although the resident should have received a copy of his tenancy agreement at the start of the joint tenancy on 6 July 2015, the landlord has no record of any letters being sent to the resident in relation to the service of notice to quit for the tenancy before or after the notice was served by his ex-wife in February 2022. This was a failure by the landlord, as its housing management policy states that advice should have been provided to him about this in writing, including the effect of the notice to quit, once the resident requested that he be removed from the joint tenancy from 5 August 2021 onwards. However, the landlord instead only wrote to his ex-wife about this on 22 November 2021, which was inadequate.
  9. The resident has made reference to original paperwork being lost by the landlord, resulting in his ex-wife having to re send documents. He has also said that when he originally spoke to the landlord he was told his name would be removed from the joint tenancy within eight weeks. The landlord has provided its contact notes, and there is no information in the notes to reflect this. As there is no record of this on file from either the resident or the landlord, the Ombudsman is unable to make a finding on this aspect of the resident’s complaint based on the information provided by both parties.
  10. The resident has also told the Ombudsman that since his ex-wife was re housed, he has not received anything in writing from the landlord to say he is no longer on the joint tenancy agreement. However, its housing management policy requires it to respond to valid notice to quit from a joint tenancy by writing to the tenant to confirm that this will end the joint tenancy, and the date on which it will end, as well as then attempting to meet, call or visit the tenant, before writing to the tenant again to confirm this information.
  11. The landlord nevertheless has no record of it responding to either the resident or to his ex-wife following her notice to quit of February 2022 in writing, as per the housing management policy requirements set out above. This was another failure by the landlord, which was particularly concerning because it did not confirm to the resident at the time that the joint tenancy would be ended by the notice to quit or when, and so he was not provided with this information by it directly until its stage two complaint response of 31 August 2022, which was an unreasonably lengthy delay. Although information about notices to quit was provided to the resident’s ex-wife by the landlord two months after he had left the property on 22 November 2021, as well as in their tenancy agreement from the start of the tenancy on 6 July 2015.
  12. The resident has said he continued to make rent payments towards the joint tenancy in cash to his ex-wife after he moved out of the property in September 2021, up until she was re-housed in March 2023. However, the landlord has said it is unable to distinguish between any rent payments made by the resident or his ex-wife during this period, or confirm the universal credit that she received for the rent at that time.
  13. Therefore, it is not possible to fully evidence exactly how much rent was paid by the resident after the notice to quit expired. He has said he continued to make payments to his ex-wife in cash, and she then would pay this to the landlord in person. This is in line with the landlord’s payment records.
  14. There was no direct communication to the resident confirming his joint tenancy had ended or when until the landlord’s stage two complaint response over five months later. This means it is fair and reasonable to conclude that the lack of clear communication from the landlord to the resident in regard to ending the joint tenancy, and its notice to quit procedure, could have contributed to the resident believing he was still liable for rent on the property for longer than was necessary. This was a failure by the landlord, which was only limited by it being required to have provided them with details of notices to quit in a copy of their tenancy agreement over five years before the resident’s ex-wife served the notice to quit, and by its letter to her but not him about this two months after he had left the property, which was three months before it was served.
  15. The landlord has therefore been ordered below to write to the resident to acknowledge, apologise for and explain its above failings, and to invite the resident to submit a reimbursement claim to it for any rent that he unnecessarily overpaid it after the notice to quit expired, with supporting evidence, for it to consider and respond to. It has also been recommended below to review its staff’s training needs in relation to providing full, accurate and timely responses to requests to end tenancies, and to notices to quit, in order to prevent these failings from occurring again.
  16. The Ombudsman’s remedies guidance recommends that landlords’ failures that adversely affected the resident, which have not been acknowledged and that no attempt has been to put things right for, be recognised with over £100 compensation. The landlord has therefore additionally been ordered below to recognise its lack of communication following the resident’s request to end his joint tenancy with £100 compensation, and after his ex-wife’s service of a notice to quit with another £150 compensation. This takes into consideration the contents of their tenancy agreement, and of its subsequent communication with his ex-wife and its response to his stage two complaint.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s request to be removed from a joint tenancy agreement.

Orders and recommendation

  1. The landlord is ordered to:
    1. Write to the resident within four weeks to acknowledge, apologise for and explain its failings in respect of its lack of communication regarding his request to end his joint tenancy, and his ex-wife’s service of a notice to quit.
    2. Write to the resident and invite him to submit a reimbursement claim to it for any rent overpaid after the notice to quit expired, with supporting evidence, for it to consider and respond to.
    3. Pay the resident compensation totalling £250 within four weeks, which is broken down into:
      1. £100 to recognise the lack of communication following his request to end his joint tenancy.
      2. £150 to recognise the lack of communication following his ex-wife’s service of a notice to quit.
  2. It is recommended that the landlord review its staff’s training needs in relation to providing full, accurate and timely responses to requests to end tenancies, and to notices to quit, in order to prevent its communication failings in the resident’s case from occurring again.
  3. The landlord shall contact the Ombudsman within four weeks to confirm that it has complied with the above orders, and whether it will follow the above recommendation.