London & Quadrant Housing Trust (202003307)

REPORT

COMPLAINT 202003307

London & Quadrant Housing Trust

16 November 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 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

The complaint is about the landlord’s response to the resident’s:
1. request to succeed her late father’s tenancy.
2. concerns about the condition of her late father’s property.
3. concerns about repairs at her property including damp and mould.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 39(a) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
1. concerns about repairs at the resident’s property including damp and mould.
In correspondence to this Service, the resident has provided information about repairs issues at her own property which are not the subject of the complaint that was brought to and responded to by the landlord.
Paragraph 39(a) of the Housing Ombudsman Scheme advises that the Ombudsman will not investigate complaints which, in its opinion, “are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.”
In accordance with the Scheme, the Ombudsman is unable to consider complaints that have not been responded to within and exhausted a landlord’s complaints procedure, except in circumstances which are not considered applicable here.
The complaints about the resident’s request to succeed the tenancy, and concerns about the condition of her late father’s property, are within the Ombudsman’s jurisdiction and are considered below.

Background and summary of events

Background

The resident is a tenant of the landlord, an housing association, and lives in a one bedroom flat with her husband and stepdaughter.
The resident’s late father was a tenant of the landlord and lived in a three bedroom house until his death in May 2020. Information provided advises that the resident’s late father held a joint tenancy with his wife (the resident’s mother) and became the sole tenant after his wife’s death.
The landlord’s ‘Succession Frequently Asked Questions’ document confirms a family member may be able to succeed a tenancy in certain circumstances, such as if a spouse (in line with Section 17 of the Housing Act 1988), or if they have lived at the property for a year, although this depends on the tenancy. Only one person can succeed a tenancy and in the case of the death of a joint tenant, the tenancy is transferred to the survivor, which uses up the right of succession. Where there is no legal or contractual right to succeed a tenancy, the landlord can consider a discretionary tenancy.
The landlord’s discretionary tenancies policy sets out that it will consider applications where an applicant has lived in a property continually as their main residence for the preceding 12 months; they have an housing need or lived with the tenant continuously since birth/for 20 years; they face financial hardship securing alternative accommodation; and they have no tenancy for another property. The policy requires multiple criteria to be met rather than only one. When making decisions, the landlord considers an applicant’s housing needs; how to make best use of its stock; and the wider housing needs of the locality. Where a discretionary tenancy is approved, an alternative property may be given where a current property is bigger than household needs.
The Landlord and Tenant Act 1985 confirms a landlord is responsible for the structure of properties, and specific repairs obligations are detailed by the landlord in a document entitled ‘Your home and your maintenance responsibilities as a tenant.’ This explains that keeping homes in a good condition is a joint effort and a tenant responsibility is “to report repairs promptly and let us know if you are worried about anything in your home.” It details how to report repairs including by telephone and online.
At the time of the complaint, the landlord operated a two stage complaints procedure. At stage one, it aimed to respond or set out an action plan within 10 working days. At stage two, which was discretionary, a senior manager carried out a review and responded, although the timeframe was not specified. The landlord did not consider complaints about issues which were over 12 months old, unless for good reason.

Summary of events

In May 2020, the resident notified the landlord of her father’s death and made enquiries about taking over his tenancy. Following this, the landlord sent an application form, succession FAQs and discretionary tenancies policy, and explained she would need to show she had lived at the property for 12 months.
In June 2020, the resident applied to succeed the tenancy and detailed that she had lived at the property for over 20 years until 1996; had stayed there three nights a week for the past year as her father’s carer; and lived at her permanent residence the rest of the time. In a supporting letter, she explained how the property would meet the needs of her and her husband, her stepdaughter who now lived with them, and her husband’s children who often stayed. She said the property required a lot of work which she and her husband were prepared to do.
The landlord subsequently responded that, while it had considered her “heartfelt” account and evidence, she did not meet the criteria to be granted a tenancy, because she held a tenancy at another address which was her main home.
On 23 June 2020, the resident complained that the landlord had treated her unfairly and not considered her circumstances. She also stated the landlord had not met its obligations to maintain the property, and that she intended to seek advice on whether issues such as asbestos had contributed to her father’s death.
On 6 July 2020, the landlord responded that the property must have been the resident’s main home for a full 12 months, and because she held a tenancy elsewhere, she was not eligible to succeed or be granted a discretionary tenancy. It advised that, due to the resident’s stepdaughter living with her full time, she was entitled to be considered for a two bedroom property, and as it had no record of her stepdaughter, it would send a form for its records to be updated. It advised it would also send a form to register on an housing list and offered to go through her re-housing options with her.
In July 2020, the resident restated that the landlord had failed in its duties, including to check for signs of asbestos, and this had impacted her and her late mother and father’s health. Later, she wrote to a MP, copying landlord staff, and advised that a survey she had arranged evidenced her father had lived in appalling conditions. A forwarded email advised of suspected subsidence; existing/historic damp and mould; and suspected asbestos. The email is unclear about the author’s professional credentials.
On 28 July 2020, the resident complained that the landlord had ignored previous emails. She stated that the property was in disrepair for over 40 years and should have been maintained. She also stated the landlord had failed to send a form to register her stepdaughter. The landlord and resident subsequently liaised to add her stepdaughter to its records, and on 7 August 2020, the landlord issued its stage one response to the resident’s complaint:
1. It acknowledged the sentimental value of the property but advised she was not eligible to succeed, or be granted a discretionary tenancy. It noted she was already a tenant in another property and would need to apply to the local authority’s housing list as overcrowded, now her stepdaughter was living with her permanently. It explained it had an obligation to those on the housing list and that it would be unfair to provide the requested outcome.
2. It noted no reported repairs were outstanding and disrepair at the property had never been raised by the resident’s father. It explained asbestos may be present but this was not dangerous unless disturbed, and there had been no previous concerns raised about disturbed asbestos for safe removal to be arranged.
On 10 August 2020, the resident advised that the landlord should have addressed issues such as cracks and damage which existed from 2008; should have addressed disturbed/exposed asbestos at the property including when a wall was plastered over; and should have carried out inspections yearly. She advised that her father gave up reporting issues, but that she had regularly reported his boiler breaking down. She stated that issues such as asbestos, damp and mould at the property were linked to her father’s death, and that she had reported matters to the local authority’s environmental health team.
On 20 August 2020, the landlord issued its final response to the resident’s complaint.
1. It acknowledged her dissatisfaction with the decision not to grant a succession and that she sought a review of the case. It noted it had considered the correspondence, her tenancy agreement and its policies.
2. It noted that after her application to succeed the tenancy, she was informed she was not eligible for this or for discretionary succession. It explained this was because her late father’s property had not been her one and only principal home for the previous 12 months; she was not eligible for a three bedroom property; and she already held an assured tenancy at another property. It explained that as the local authority had 100% nomination rights to all its properties, which it had no control over, her late father’s property would be returned to the local authority for nomination and re-letting.
3. It acknowledged she reported she was overcrowded and her stepdaughter lived with her. It explained that after her stepdaughter was added, she would be eligible to bid for a two bedroom property, and would be unable to search and bid for a larger property unless it was evidenced she and her partner had shared custody of children who stayed with them. It explained that as a social landlord it had to ensure properties were allocated to families with the most need, and the children were not counted as part of the household as they did not reside at the property full time.
4. It acknowledged concerns about outstanding repairs and that the property should have been inspected annually. It explained it operated a reactive maintenance service which relied on residents reporting repairs, and it noted the only reported repairs in the past two years were for a boiler and there were no records for structural repairs or legal disrepair. It explained that before re-letting, its void team would ensure any required repairs would be completed.
5. It acknowledged reports of asbestos and explained many properties will have this and it was no cause for alarm. It explained asbestos presented no danger when undisturbed and it was common for floor tiles to be covered or ceilings replastered without removal, which met regulations. It explained contractors were trained to arrange testing of materials which may contain asbestos, prior to repairs being undertaken.
6. It concluded that it was satisfied it had adhered to its obligations and that the property would not be let to the resident for the reasons explained. It confirmed this was its final decision and not open to negotiation.
The resident subsequently contacted this Service. She expressed dissatisfaction that the landlord did not consider her family to be a priority and “a family with the most need.” She advised that the landlord made it hard to get through to report repairs on the telephone and few pensioners had internet and a computer. She restated that repairs were outstanding since 2008, and provided views and photographs in respect to the work and expenditure she believed was required for the property.

Assessment and findings

The landlord’s response to the resident’s request to succeed her late father’s tenancy.

This investigation understands the resident feels the landlord may have been unsympathetic about her circumstances, and understands that she will have been frustrated, distressed and disappointed by the decision not to allow her to move into her family home which she grew up in.
When assessing a complaint, this Service considers whether a landlord has appropriately considered matters, and correctly applied policy and procedure, in accordance with its obligation to treat all residents fairly and consistently and against the same criteria when reaching decisions.
Following the resident’s application and complaints, the landlord responded to these in a relatively timely manner. It considered her application and set out that she did not meet criteria. When the resident relayed dissatisfaction, it provided further explanation; provided assistance to register her stepdaughter to enable her to be eligible for a larger property; and addressed and set out its position on other matters raised.
In the Ombudsman’s opinion, the landlord’s responses and conclusions were reasonable and generally in accordance with its policies.
The landlord’s guidance advises that a family member may succeed a tenancy if they have lived at the property for a year, although this depends on the tenancy. While the resident advises she lived at the property for over 20 years until 1996, this investigation understands this criteria relates to current circumstances. This criteria does not appear to be met, as while the resident states she stayed at the property three days a week, she is a tenant of another property which is reasonably considered to be her main residence. The landlord therefore appears to have been reasonable to consider the resident not eligible to succeed the tenancy under this criteria.
Further, this investigation notes that the landlord’s guidance advises that only one person can succeed a tenancy and in the case of the death of a joint tenant, the tenancy is transferred to the survivor – which uses up the right of succession. This investigation understands that the resident’s late father held a joint tenancy with his wife (the resident’s mother) and became the sole tenant after his wife’s death. This appears to have used up the right of succession under the landlord’s guidance, and will have been a further reason why the resident may not be eligible to succeed the tenancy.
The landlord’s guidance and discretionary tenancies policy set out its approach to circumstances where there is no legal or contractual right to a tenancy. As this suggests, because there is no right to such a tenancy, the landlord has ultimate discretion. The policy sets out that it will consider applications where an applicant has lived in a property continually as their main residence for the preceding 12 months; have an housing need or lived with the tenant continuously since birth/for 20 years; face financial hardship securing alternative accommodation; and have no tenancy for another property. The policy requires multiple criteria to be met rather than only one, and it notes that an alternative property may be given where a current property is bigger than household needs.
The criteria based on living in the property does not appear to have been met. While the resident states she stayed at the property three days a week, and lived at the property for over 20 years until 1996, she is a tenant of another property which would reasonably be considered her main residence. The landlord therefore appears to have been reasonable not to have considered the resident to have lived in the property continually as her main residence for the preceding 12 months; or to have lived with her late father continuously since birth or for 20 years.
The criteria based on housing need does not appear to have been met either. The resident is a tenant of another property, and has alternative accommodation, which do not meet criteria for a discretionary tenancy, and was stated to be ineligible for a three bedroom property. A social landlord generally allocates a property based on an household’s housing needs, which for the resident was stated to be a two bedroom property, after addition of her stepdaughter. The resident’s late father’s property is a three bedroom property, which exceeds her stated housing needs. This means that even if the resident was granted a discretionary tenancy, this may still not have achieved her desired outcome, as the landlord’s policy is that where a property is bigger than household needs, an alternative property may be given. This appears reasonable, as it is the landlord’s stated aim to consider a locality’s wider housing needs, to make best use of its stock and to allocate homes to those who will directly benefit from them. In the case of the resident’s late father’s home, this would be allocation of the property to an household with a stated housing need of a three bedroom property.
The landlord’s responses demonstrate that it considered and responded to the resident’s request and concerns in line with policies, and sought to assist with concerns she raised about her current housing situation in a fair and resolution focused way. It was appropriate for the landlord to consider wider housing needs in the locality when considering the resident’s request to succeed the tenancy.

The landlord’s response to the resident’s concerns about the condition of her late father’s property.

This investigation understands the resident feels the landlord failed to maintain the property, historically and more recently, and that this impacted her and family’s health. This investigation understands the resident’s situation and recognises the repairs concerns she reports have affected and caused distress to her.
When assessing a complaint, this Service considers the timeframe of a complaint to be of note, because the Ombudsman’s remit in relation to complaints is set out by its Scheme. Paragraph 39(e) of the Housing Ombudsman Scheme advises that the Ombudsman will not investigate complaints which, in its opinion, “were not brought to the attention of the member as a formal complaint within a reasonable period, which would normally be within six months of the matters arising.” The landlord’s complaints policy similarly sets out that it does not consider incidents that occurred more than twelve months before the complaint was made.
This reflects that it is normally considered reasonable for complaints to be made closer to the time of events complained about, because the longer time goes on, the more the ability to conduct an effective investigation may be impacted.
As the landlord has explained and its ‘Your home and your maintenance responsibilities as a tenant’ guide details, it operates a reactive repairs service whereby a tenant is responsible for reporting any repairs concerns. This investigation notes it has not seen specific evidence that issues complained about occurred/were reported within a reasonable period of time, before the complaint was made.
This investigation would expect to see instances where issues complained about have been previously reported, to then be able to assess the landlord’s handling of these. The absence of prior reports or complaints about concerns raised, in a reasonable timeframe or while the resident’s father was alive, limits both the landlord and this investigation’s ability to assess handling of repairs at the property.
This investigation notes the resident has supplied photographs, and stated her views on the property condition and opinion that this impacted the health of her and her family. This investigation understands the resident’s concerns, however it is not in this Service’s authority or expertise to draw conclusions on the cause of, or liability for, impacts on health and wellbeing. The resident’s views were not accepted by the landlord and, taking into account availability of evidence, where such issues are in dispute, in the Ombudsman’s opinion it is more effective to pursue matters through an alternative procedure such as a liability claim procedure, through which a legally binding decision can ultimately be provided by the courts. This is in accordance with paragraph 39(i) of the Housing Ombudsman Scheme that the Ombudsman will not investigate complaints which, in its opinion “concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.”
For the reasons set out above, the Ombudsman has not considered the landlord’s handling of any repairs requests made whilst the resident’s father was the tenant. However this investigation has considered how the landlord responded to the resident’s concerns about these matters, and is satisfied that the landlord responded reasonably. It provided reasonable explanation that asbestos may be present but had not been removed, as no concerns about disturbed asbestos were identified in the course of any works, or were reported by the resident’s late father or on his behalf. It also provided reasonable explanation that its voids process would ensure any identified remedial works were carried out prior to re-letting. The landlord is entitled to rely on any views that its staff or contractors will have on works which are necessary for re-letting.
Whilst the above is the case, this investigation notes (as detailed at paragraph 23 of this report) that the resident raises concern about the landlord’s telephone reporting service, and therefore makes a recommendation in relation to this.

Determination (decision)

In accordance with paragraph 54 of the Scheme, there was no maladministration in the landlord’s response to the resident’s request to succeed her late father’s tenancy.
In accordance with paragraph 54 of the Scheme, there was no maladministration in the landlord’s response to the resident’s concerns about the condition of her late father’s property.

Reasons

In the Ombudsman’s opinion, the landlord considered and responded to the resident’s request and concerns in line with policies, and sought to assist with concerns she raised about her current housing situation in a fair and resolution focused way. It was appropriate for the landlord to consider wider housing needs in the locality when considering the resident’s request to succeed the tenancy and take over the property. Whilst this Service understands the resident was disappointed by the decision, this was a decision that the landlord was entitled to make, based on its own criteria.
In the Ombudsman’s opinion, considering all of the circumstances of the case, the landlord responded reasonably to repairs concerns, by noting that there were no recent or outstanding repairs reports; that no concerns about disturbed asbestos had been identified or reported; and by confirming that it would ensure any identified remedial works were carried out prior to re-letting.

Orders and recommendations

Recommendations

The landlord to review its telephone repairs reporting service and the resident’s concern that this may not be user friendly for older residents.