LiveWest Homes Limited (202221350)

REPORT

COMPLAINT 202221350

LiveWest Homes Limited

29 September 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 ending of a joint tenancy.

2.     The Ombudsman has also considered the landlord’s complaint handling.

Background

3.     The resident occupied a property as a joint tenant under an assured tenancy which commenced on 10 July 2017. The property was a three-bedroom semi-detached house.

4.     During the tenancy agreement, the resident and the joint tenant separated. The landlord logged a call from the resident on 10 June 2022 stating there had been a separation and that he had moved in with his mother and would like his name removed from the tenancy agreement. In response to the call, the landlord drew up a deed of assignment for both tenants to assign the resident’s interest in the tenancy to the other joint tenant. This deed was never signed by the resident. The resident told this Service that he was only ever visiting his mother temporarily.

5.     On 26 July 2022 the other joint tenant served notice to quit on the joint tenancy by email and in telephone communication to the landlord. Although the landlord formally acknowledged the notice by sending a farewell letter to the joint tenant, it did not make any contact with the resident. The landlord advised the resident that because of his previous intentions to be removed from the tenancy, it felt it was reasonable not to contact him. The resident advised this Service that he was unaware that the joint tenant had the right to end the tenancy on behalf of both tenants and felt that it was unlawful for the landlord to end the tenancy on this basis.

6.     The resident raised his issues informally with the landlord on 8 September 2022 and explained he was seeking substantial damages from the way it had handled the end of tenancy process. The resident requested, on at least three occasions during this correspondence, to escalate his concerns to higher management. The landlord responded by stating it would wait for contact from the resident’s solicitor and did not escalate the resident’s concerns.

7.     The resident raised a formal complaint on 20 September 2022 regarding the lawfulness of the tenancy being ended, the lack of communication around the end of tenancy process and explaining he did not at any point intend to give up his home as he was only temporarily visiting his mother. The landlord issued its stage 1 response on 28 September 2022 and did not uphold the complaint. However, it had identified a communication issue and offered £25 as a goodwill payment. The resident escalated his complaint to stage 2 on 4 October 2022.

8.     The landlord issued its final response on 20 October 2022. In it, the landlord upheld the resident’s concerns based on communication and identified a service failure in not escalating the resident’s complaint earlier. It offered the resident £75 for its failure to send an end-of-tenancy acknowledgement letter, call the resident back or recognise the request for complaint escalation.

9.     The resident confirmed to this Service that the outstanding issues are that he lost his home, his social connections, and possessions because the landlord failed to notify him that his tenancy was coming to an end. He is seeking:

1. The end of tenancy clause applicable to joint tenancies be removed from future tenancy agreements;
2. Acknowledgement of the landlord’s failure to communicate with him specifically relating to the alleged falsehoods purported by the landlord in its communications with him; and
3. Financial redress.

Assessment and findings

The communications about ending the tenancy

10. The resident stated that he was not notified by his landlord in good time, or at all, after the joint tenant gave notice, meaning that he was unaware that the tenancy agreement he had with it was ending. As a result, he was unable to make arrangements for his possessions in a timely manner. The resident explained to this Service that the landlord’s ending of his tenancy had a significant detrimental impact on him because it left him homeless from a location that had been his home.

11. In its initial contact with the resident on 8 September 2022, the landlord stated that he had not lived in the property or paid the rent for the property for the previous 6 months. It also said that it provided documents to him at an address stipulated by the resident, and if this was not the correct address, he should have contacted it. The evidence shows that the only documentation provided to the resident was a deed of assignment which was sent digitally to an email address, not a postal address. The emails did not alert the resident of the seriousness of the notice, namely that he could lose his home.

12. The Ombudsman would expect the landlord to have used this contact with the resident as an opportunity to signpost him for further housing advice.

13. In its stage 1 response dated 28 September 2022, the landlord acknowledged that its normal practice is to provide an ‘end of tenancy letter’ to any outgoing tenants. However, on this occasion, it had chosen not to. This was on the basis that the resident contacted the landlord on 10 June 2022 asking to be removed from the tenancy. The landlord said this showed his intention to be removed from the tenancy so he would have been aware of the consequences. It is evident that the landlord only contacted the tenant who has provided notice in this case and this was not appropriate or fair.

14. It was not reasonable for the landlord to have concluded that the resident did not need to receive notification that his tenancy was ending. Whilst the resident had asked to be removed from the tenancy, he had not followed through with that intention. Up until the resident removed himself from the tenancy following the correct legal process, he was at will to change his mind. It would have been fair and reasonable to have provided the resident with details that the tenancy was ending.

15. The resident was also a tenant of the landlord and therefore was due all the rights conferred to him, by virtue of the contractual relationship that existed between the parties and under its policies. The Ombudsman finds that this omission was a service failure by the landlord. This had a significant impact on the resident, regardless of whether the end of tenancy process could have been stopped, because he was unable to put his affairs in order before the end of the tenancy.

16. Additionally, the landlord, in both of its formal responses, confirmed that it had received a callback request from the resident on 10 June 2022. This date is after the notice was served by the joint tenant. The landlord stated that due to annual leave within the team, the callback request was not actioned. It is reasonable to conclude that had this telephone callback request been actioned, the resident would have been made aware that the tenancy was ending. The resident would then have been afforded the opportunity to put his affairs in order.

17. The Ombudsman concludes that the landlord failed to contact the resident to inform him that his joint tenancy was coming to an end when it had ample opportunity to do so.

Ending Tenancy Clause

18. The resident’s tenancy agreement had an end-of-tenancy clause that allowed one of the joint tenants to end the tenancy agreement on behalf of both tenants. This clause is based on settled law, therefore the clause itself is not open to determination by this Service.

19. The tenancy agreement also stipulates in Clause 6.3 that any legal notices served on the landlord, to be properly served, “must be in writing and posted to, or left at the landlord’s office, addressed 72 Paris Street, Exeter, Devon, EX1 2JZ.” The evidence shows that the other joint tenant served notice on the landlord by email and telephone communications on 26 July 2022. The landlord has told this service that the email communication was accepted as valid notice by it.

20. There has been no evidence provided to show this Service there was any written waiver consented to by the landlord in respect of the service of notice requirement. This means that the landlord should not have accepted the notice because it was defective. Therefore, the tenancy agreement had not been ended in compliance with the conditions set out in the tenancy agreement.

21. The Ombudsman considers this to have been a significant failure by the landlord to follow its contractual obligations. The Ombudsman would expect the landlord to have fully understood and complied with its contractual obligations as set in its own tenancy agreement.

The landlord’s handling of the subsequent complaint

22. The landlord failed to escalate the resident’s concerns on 8 September 2022 despite having three requests from him to do so. It was not until the resident wrote to the landlord using a different method to bypass the email communication stream, on 20 September 2022, that his concerns were considered formally.

23. This failure was identified in its final response, and it apologised. It also said it had addressed this with the officer involved and increased its offer of compensation from £25 to £75. The Ombudsman considers this to be an unreasonable delay and although the landlord applied a reasonable set of remedies to address its failure to escalate the resident’s concerns, the amount of compensation offered does not suitably address the failures identified by this Service.

24. In its final response the landlord said it was unable to consider the resident’s request for damages because its complaint policy stated that it would not consider a complaint where legal proceedings were “about to be issued.” There is no evidence that proceedings were about to be issued and the landlord accepts no proceedings were actually issued. Secondly, this clause is incompatible with the Complaint Handling Code. The Code states at paragraph 1.8:

“A complaints policy must clearly set out the circumstances in which a matter will not be considered, and these circumstances should be fair and reasonable to the resident. For example: legal proceedings have started.” [emphasis added]

25. The landlord’s decision to exclude this part of the complaint was unreasonable The Ombudsman considers this to be a service failure and the landlord should review its exclusion criteria to ensure it is compatible with its obligations under the Code.

Other points

26. The Ombudsman is not able to say to any degree of certainty what items of the resident were lost. As such, the Ombudsman cannot award compensation for this.

27. The Ombudsman has concerns that by failing to accept the validly served notice – the tenancy was not ended. The landlord should seek advice on this. 

Determination

28. In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord in its handling of the end of the resident’s tenancy.

29. In accordance with paragraph 52 of the Scheme, there was service failure by the landlord in its handling of the subsequent complaint.

Orders and recommendations

Orders

30. The Ombudsman orders the landlord to take the following steps, within 28 days of the date of this determination:

1. Write to the resident to apologise for the failures identified in this report.
2. Pay the resident compensation of £2,000 for the distress and inconvenience caused by the failures identified in the handling of the termination of the joint tenancy.
3. Pay the resident £250 for the service failures identified in its complaint handling. This figure includes the £75 already offered to the resident in its final response.
4. Consider rehousing the resident upon a request by him in a property suitable for his needs.
5. Provide evidence of compliance with these orders to the Ombudsman.

Recommendations

31. To consider creating an end-of-tenancy workflow which includes communications with outgoing tenants, so they are clear about who should be contacted, for what, and at which stages within the process.

32. To consider providing more information on its website for the end of tenancy process and include which notifications or communications tenants can expect during the process.

33. To consider seeking legal advice on any future risks presented by the current working practices for the handling of its end of tenancies and joint tenancies.

34. To provide training to staff to ensure they are aware of contractual responsibilities at the end of tenancies.

35. To review its exclusion criteria regarding legal proceedings in its complaint policy.