Waltham Forest Council (202015034)

REPORT

COMPLAINT 202015034

Waltham Forest Council

30 September 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

1. The complaint is about the landlord’s handling of concerns the complainant raised about succession rights.

Background and summary of events

Background

2. The complainant’s mother (the resident) had a tenancy with the landlord for a three-bedroomed house that started in 1987. The complainant lived with her. The resident and her daughter moved to a new property in early 2020.
3. The landlord is a local authority. The new property is managed on behalf of the local authority by a management company. The terms and conditions of the new tenancy from 2020 refers the resident to the landlord’s “Succession Guide” for more information about succession rights.
4. The Localism Act 2011 changed the succession rules, so that the statutory right to succeed to a secure tenancy was limited to the spouse or partner of the deceased tenant. These changes only come into force where a tenancy is created after 1 April 2012.
5. The landlord’s 2013 allocation policy applies to tenancies that commenced on or after 1 April 2012. This says that a remaining spouse – that is, husband, wife, civil partner or partner) who had been living with the tenant as husband and wife (including same sex couples) – will automatically succeed to the tenancy upon the death of his/her partner, providing that the partner was the original tenant and not themselves a successor. The spouse must have been occupying the property as his/her only or principal home at the time of the tenant’s death.
6. The landlord has a two-stage complaints procedure. It provides responses within 20 days at stage one and within 25 days at stage two.

Summary of events

7. The landlord did not keep a record of a telephone conversation between its housing manager and the complainant at the time her mother was about to view the new property with a view to downsizing. The complainant told this Service that the housing manager had told her that her succession rights would be retained meaning that the complainant would still be able to succeed her mother’s tenancy as that was the case at the previous property. In early March 2020 the complainant wrote to the landlord asking for confirmation about her succession rights.
8. On 6 March 2020 the landlord sought legal advice. It referred to a recent meeting about this case and said that legal advice it had received on a very similar case had indicated that the complainant would be entitled (to succeed). The landlord told the complainant it had sought advice and that it would write to her again once it had a response. The landlord received legal advice on 7 May 2020.
9. Six months later on 11 November 2020, following contact from the complainant, the landlord wrote to her apologising for the delay in responding. It said that its legal team had advised that, as the move to the new property was granted on a new tenancy, the rights of succession under the Localism Act 2011 would apply (paragraph 4). It said that only spouses/civil partners could succeed to tenancies granted after 1 April 2012; the landlord attached the relevant appendix from its allocations policy (paragraph 5).
10. On 2 December 2020 the management company responded to the complainant at stage one of its formal complaints procedure. It gave the background to the complaint which was:
    1. The complainant had spoken to the landlord’s housing manager about succession rights when her mother was considering downsizing and moving to a new property. The housing manager told the complainant that she remembered a similar case where succession had been granted on a transfer case but she would need to take legal advice in this particular case. She asked the complainant to put her request in writing.
    2. In that conversation the complainant said that the resident had made an offer on a property and was going to view it; following this viewing, the offer was accepted.
    3. The complainant subsequently wrote to the housing manager asking about succession and she referred the issue to the legal team. Their response was that the move to the new property was granted under a new tenancy and therefore the right of succession under the Localism Act 2011 would apply. This meant the complainant could not automatically succeed to the tenancy.
    4. The management company said it had been back to the legal team to check this information and they had confirmed that the compliant could not succeed the tenancy, even if she was living with her mother at the time of her death.
    5. The management company said that the complainant had mentioned at the time her mother signed the new tenancy agreement that she had had confirmation that the succession rights would be transferred to the new tenancy but the Housing Officer, who was new in the role, said any application for succession would be transferred to the landlord to make a decision.
    6. The information the Housing Manager gave the complainant in their telephone call was the best information she had at the time but “it was expressly not intended to be the final or settled view” of the landlord as it was seeking legal advice.
    7. The complainant was aware her mother had decided to accept the tenancy without confirmation of her succession rights because she wrote afterwards seeking confirmation.
11. The management company stressed that any decision about whether to move involved compromise. They said that the complainant was aware that she had not had a final answer to her question about succession but her mother had decided to accept the offer notwithstanding that. They explained how the complainant could ask for a review of the decision.
12. On 24 February 2021 the landlord wrote to the complainant at stage two of its formal complaint procedure. The main points were:
    1. The complainant was left with the impression that her succession rights would not be affected by the move to the new tenancy following her conversation with the Housing Manager. As this was a verbal exchange, the landlord said it was not possible for it to say exactly what the complainant had asked or what the Housing Manager’s response was. It apologised if her expectations were raised during that conversation.
    2. The landlord was unable to restore the complainant’s succession rights to the property. It acknowledged that, when she first enquired regarding this matter, her expectations might have been raised; however, following her email in March 2020, it was clear the matter would have to be referred to its legal services team. The landlord said it had no option but to apply the law in this regard and this was not something that could be changed through the complaints procedure.
    3. The landlord apologised that it did not update her sooner regarding this matter, given it did not share the legal advice with her received in May 2020, until November 2020. It added that it did not consider that delay warranted financial compensation, as the response would have been the same even if it had been issued earlier. The landlord signposted the complainant to the Ombudsman.
13. When the complainant approached the Ombudsman, she said that she and her mother would not have moved if they had known in advance that the succession rights would change. She added that this situation had caused a great deal of distress for her and her mother.

Assessment and findings

14. In this case, the complainant considers the landlord told her that she would retain her succession rights; the recollection of the Housing Manager was different in that she told the complainant she recalled a case where the rights had been transferred but that she would need legal advice in this particular case. When investigating cases where one party’s recollection of events is different from another’s, it would be reasonable to rely upon any contemporaneous notes of that conversation. In this case no record of that conversation was made. That was a service failure. The landlord should ensure that it makes notes of all conversations to ensure it has a clear trail of information it has provided.
15. Due to the lack of evidence, the Ombudsman cannot be certain as to the exact content of the conversation held between the housing manager and the complainant because there is no evidence. We cannot therefore make a robust finding on what information the housing manager gave about succession and whether or not she said she would need to seek legal advice.
16. However, the evidence suggests the landlord told the complainant that it was likely her right to succession would continue – the housing manager had had a similar case where that was the case (paragraph 8). As the landlord has acknowledged in its complaint handling, that would have raised her expectations and it apologised for that (paragraph 12.a).
17. Having sought information, it would be reasonable to expect the landlord to give the complainant clear and accurate information relating to succession.  Where it was unable to do so, as in this case, and where the impact was significant, the landlord should have checked and followed up quickly. The landlord failed to do so and that was a service failure.
18. The email from the complainant prompted the landlord to seek legal advice but there was a delay in providing that to the complainant and it was only provided after further prompting from her (paragraph 9). That was a further failing. The landlord apologised for that delay.
19. Ultimately, it was the responsibility of the resident to satisfy herself of the succession rules before signing the new tenancy agreement. The new tenancy agreement gave details of where to find these rules, and, if there was any uncertainty then written confirmation should have been sought before signing the new tenancy agreement. The landlord is unable to change the resident’s tenancy.
20. However, the landlord’s failings in this case: not making a note of a telephone enquiry; failing to give accurate information about succession rights; and delaying providing such information amount to a service failure.
21. In relation to the failures identified, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the complainant’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes as well as our own guidance on remedies.
22. In this case, the landlord apologised for raising the complainant’s expectations and for the delay in sharing the legal advice it obtained. These failings evidently caused uncertainty and distress to the complainant and her mother as well as the time and trouble in pursuing the matter. This meant that the apologies alone were not a proportionate way to put the failures right.
23. The sum of £150 is appropriate for the impact on the complainant and her mother. This amount is also within the range of amounts that the Ombudsman can order when he has found evidence of service failure or maladministration and includes cases where there has been a failure to provide accurate information in response to an enquiry.
24. Going forward, it might be helpful if the landlord could explain to the complainant the housing options that might be available to her and have made a recommendation, below, to that effect.

Determination (decision)

25. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of handling of concerns raised about succession rights.

Reasons

26. While the landlord cannot change the resident’s tenancy, there were several failures by the landlord for which apologies alone were not a proportionate remedy.

Orders

27. The landlord shall take the following action within four weeks of the date of this report:
    1. Pay the complainant the sum of £150 for the service failings identified in this report.
28. The landlord shall also provide the Ombudsman with evidence of compliance of that order within four weeks of the date of this report.

Recommendations

29. It is recommended that the landlord takes the following action:
    1. To remind staff of the importance of recording all conversations with residents.
    2. To ensure that staff have sufficient training to be able to give accurate information when residents transfer/change tenancy types and that, when a resident will lose succession rights, this is clearly explained to them prior to signing up. 
    3. To give the complainant information about her options for housing in the future.