Southwark Council (202128252)

REPORT

COMPLAINT 202128252

Southwark Council

22 April 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 decision to refuse the resident’s request for his daughter to be added to the tenancy agreement.

Background

2. The resident and his wife hold a secure joint-tenancy agreement which began on 14 June 2021. The property is a two-bedroom adapted flat in a purpose-built block owned by the local authority landlord. The landlord’s records show both residents as vulnerable because of their age.
3. The residents’ daughter is their carer. She lives at the address and is named “other approved occupant” on the tenancy agreement. For the purpose of this report, both the residents and their daughter will be referred to as ‘the resident’.
4. On 11 June 2021, the resident asked the landlord to have the names of all three adults on the tenancy agreement, as they all “wanted to have the same rights and responsibilities in the family home.” The landlord responded that: “Only two people can be on the tenancy agreement, and if anything should happen to any of the joint tenants, the tenancy automatically passes on to the other joint tenant, meaning at no time in the future will you be able to add your daughter’s name on to the tenancy agreement as only one succession can take place in the property”.
5. On 23 July 2021, the resident wrote to the landlord and quoted the Tenancy Handbook: “Joint tenancy is when two or more adults […] are named on the tenancy agreement”. The resident said the wording of the Tenant Handbook shows that there could be more than two people as joint tenants and asked for the daughter to be added to the tenancy agreement or for the landlord to issue a new tenancy agreement with all three adults.
6. It is unclear why the landlord did not respond. On 2 September 2021, the resident asked to escalate the complaint to stage two. The landlord responded on 3 September 2021 and said it needed to look into the complaint further and would respond fully by 13 September 2021. The landlord sent its full and final response on 27 January 2022 and said: “I would like to draw your attention to the paragraph [of the Tenant Handbook, which] states: ‘There is no automatic right to a joint tenancy. If you ask us to change your sole tenancy to a joint tenancy, we will normally only agree to your request if the person added to your tenancy is your husband, wife or civil partner or has been living with you as your husband, wife or civil partner. I can therefore confirm that the advice given at the start of the tenancy was correct. I can also confirm that any request to add an additional person to the tenancy would be denied unless that person falls under one of the above circumstances”.
7. The resident wrote to the Service on 11 April 2022 and said he was dissatisfied with the outcome of the complaint and would like the landlord to add the daughter to the current tenancy or issue a new tenancy for the property, with all three adults listed as joint tenants. The resident also said the landlord should produce a clearer policy on joint tenancies.

Policies and procedures

8. The Landlord’s Tenancy Handbook says: “A joint tenancy is when two or more adults are named on the tenancy agreement. Joint tenants have equal rights and responsibilities under the tenancy agreement for the whole of the tenancy. They are both responsible, together and individually, for keeping the tenancy conditions. There is no automatic or legal right to a joint tenancy. If you ask to change your sole tenancy to a joint tenancy, we will normally only agree to your request if the person to be added to your tenancy is your husband, wife, or civil partner or has been living with you as your husband, wife or civil partner in your home for at least 12 months”.
9. Section 160 of the Localism Act (2011) states that the statutory succession to a secure tenancy, in tenancies which started after 1 April 2012, is limited to the spouse or civil partner of the deceased tenant. The statutory right of succession for a family member has been removed for new tenancies, meaning there is no longer a legal entitlement to succession.
10. The Landlord’s complaint process has two stages. Stage one response is within ten working days. Following escalation to stage two, the response is within 15 working days. The policy says: “For some complaints, we may provide a final decision at Stage one so that there is no need for the complainant to go through to Stage two. This is when we deem that the council is not at fault and that our response would be the same after a review of the complaint by the customer resolution team. When this happens, the complainants will be informed of their rights to refer their complaint to the relevant Ombudsman”.

Assessment and findings

11. When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles, which include treating people fairly, following fair processes, and putting things right. The Ombudsman must first consider whether a failure on the landlord’s part has occurred and, if so, whether this led to any adverse effect or detriment to the resident. If the Ombudsman found that a failure led to an adverse effect, the investigation will then consider whether the landlord has taken enough action to put it right.
12. The Tenant Handbook says: “There is no automatic or legal right to a joint tenancy. If you ask to change your sole tenancy to a joint tenancy, we will normally only agree to your request if the person to be added to your tenancy is your husband, wife or civil partner”. During the complaint process, the landlord explained that the same rule applies when adding a third person to a joint tenancy.
13. Under the Localism Act (2011), local authorities were granted more freedom to set their housing policies to manage their stock better. Section 160 of the Act says: A person is qualified to succeed a secure tenancy if, at the time of the tenant’s death, a spouse or civil partner of the tenant did not occupy the property. If a spouse or civil partner lived on the property, they would have priority succession. And the other person on the joint tenancy would automatically lose their succession rights as only one succession is allowed in any tenancy.
14. On 11 June 2021, before the start of the tenancy, the landlord explained to the resident the rules of tenancy succession. He set out why the daughter’s name cannot be added to the tenancy agreement under any circumstances in the future.
15. This Service has seen evidence that the landlord has considered the resident’s request and, on review, still declined the request. The landlord is satisfied that it gave the resident the correct information regarding adding a third person to the tenancy agreement. The same rules apply to existing as well as new tenancy agreements. The local authority landlord has the sole discretion over its rules of joint tenancy.
16. The landlord also confirmed that any request to add a person to the tenancy would be denied unless that person fell under one of the above circumstances.
17. The landlord’s decision was appropriate, in line with its policies and within the framework of its obligations. The Ombudsman is satisfied, therefore, that there was no failing on behalf of the landlord.
18. This Service realises this is not the resident’s desired outcome. However, the resident explained he wanted all three adults to be named on the tenancy agreement, as he wanted all to have the same rights and responsibilities in the family home and for the daughter’s support in maintaining the tenancy. As the landlord has already listed the daughter as an approved occupier and she is the couple’s carer, whether she is or is not one of the joint tenants should make no difference to the resident.
19. In tenancies, which started after 1 April 2012, succession rights are limited to the spouse or civil partner of the deceased tenant. The statutory right of succession for a family member has been removed for new tenancies, meaning there is no longer a legal entitlement to succession. By law, there could only be one succession. In Joint tenancies, should one of the tenants die, the remaining tenant will automatically succeed the tenancy. No one else would have a legal right to inherit the tenancy.
20. Although there was a service failure in the landlord complaint handling in that it took 189 working days from stage one complaint until the landlord issued its final response, the Service does not consider this to have an adverse effect on the resident; it would not have changed the outcome of the case as the decision not to allow the resident’s daughter to be added as a third tenant was appropriate.

Determination (decision)

21. In accordance with paragraph 52 of the Scheme, there was no maladministration in regard to the landlord’s decision not to allow the resident’s daughter to become the third joint tenant of the property.

Orders and recommendations

Recommendations

22. The landlord should produce a clearer policy on joint tenancies to avoid the reoccurrence of such complaints.