Gosport Borough Council (202017234)

REPORT

COMPLAINT 202017234

Gosport Borough Council

03 February 2022

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 handling of the disposal of items in the resident’s property following her death.

Background and summary of events

Background

The resident was a tenant at the property, a 1-bedroom flat, from 18 August 1997, under a secure tenancy agreement with the landlord.
The resident passed away on 27 May 2020 and the complaint is brought by her daughter on her behalf. The landlord has informed this Service that at the time of the resident’s passing there were no contact details for her next of kin recorded on its systems and no person eligible to succeed her tenancy. The landlord was not provided with contact details for the resident’s daughter until she made contact on 9 October 2020.
The landlord has provided a copy of a record on its systems from 10 November 2014, which states that ‘The tenant has 2 daughters which she hasn’t seen or heard from in 20 years or so’. The resident had provided what she believed to be their dates of birth. The record also states that details of her friend were provided as next of kin.
The landlord has directed the resident’s daughter and the Ombudsman to the ‘Ending your tenancy’ page of its website. This states that a person with ‘Power of Attorney’, or dealing with the deceased’s affairs, will be asked to meet the Neighbourhood Officer at the property to carry out a ‘pre-void visit’. It has also commented that its usual procedure is for a Neighbourhood Officer to produce an inventory of a deceased tenant’s belongings after serving the required notice to end their tenancy. No further details or copies of the landlord’s written policies and procedures relating to the death of a tenant have been provided.

Summary of Events

The landlord was informed of the resident’s death on 2 June 2020.
The landlord’s records evidence that on 4 June 2020 it discussed the resident’s death with the individual who reported her passing. This person was a friend of the resident’s and was in possession of the keys to her flat. The landlord was informed that she had been cohabiting with her partner at a different address for the past 20 years. The friend reported that solicitors were attempting to locate her family. The landlord noted that ‘all personal belongings and papers’ had been moved from the property at which she was residing to the flat belonging to the landlord. The notes also record that the flat was ‘fully furnished’.
On 4 June 2020 the landlord checked the Electoral Roll and Council Tax records and confirmed that the resident was not listed on the Electoral Roll but was registered for Council Tax purposes at a different property. The keys to the property were returned to the landlord on 4 June 2020, together with a copy of the resident’s death certificate.
A note on the landlord’s systems from 8 June 2020 records that the Housing Officer had identified an individual with the same name as the resident’s daughter from records it held for its other functions. However, the recorded date of birth did not match that provided in 2014. There were several records of individuals with the name of the resident’s second daughter. No further investigations were made to establish whether these were the resident’s family members.
The landlord served a Notice to Quit, dated 9 June 2020, on the resident’s Personal Representatives and the Public Trustee. This was hand–delivered to the resident’s address on 11 June 2020. The notice stated that the property must be vacated, and possession delivered up to the landlord by 13 July 2020. The landlord made an application to the Public Trustee for the registration of a Notice affecting land on 11 June 2020.
The Public Trustee sent an acknowledgment letter to the landlord on 30 July 2020, confirming that it had received a Notice in respect of the resident’s property. The letter recorded that the Notice had been filed against the name of the deceased on 11 June 2020, as required by law.
On 6 August 2020 the landlord notified its contractor that the property’s contents should be disposed of, as there were no known next of kin and the keys had been returned. The property was cleared of its contents on 7 August 2020, at a cost to the landlord of £634.
The resident’s daughter received news of her mother’s death on 6 October 2020. At this time the landlord was unaware that the resident’s daughter had been traced and it did not have contact details for her.
The resident’s daughter contacted her mother’s friends, who were dealing with her affairs and correspondence. They informed her that her mother was the tenant of a 1-bedroom flat belonging to the landlord. An ‘iPad, photographs and jewellery’ had been removed from her mother’s late partner’s property and returned to her mother’s flat. Her mother’s friends confirmed that the flat was ‘fully furnished’ with food in the cupboards.
The resident’s daughter contacted the landlord by telephone on 9 October 2020 and 12 October 2020 and received a call back to discuss the property on 13 October 2020. She was informed that the landlord believed that all items in the property had been disposed of. The resident’s daughter telephoned the landlord again on 29 October 2020, expressing her distress that her mother’s possessions had been disposed of and querying why she and her sister had not been traced. She was informed that an inventory of items left in the property would usually be prepared but this had not been completed in the resident’s case. The landlord stated that it would make enquiries with the contractor that cleared the property.
The resident’s daughter spoke to the landlord on 2 November 2020, when it was confirmed that the contractor had not made an inventory of the items left in the property. The resident’s daughter asked that the landlord provide a timeline of events.
On 16 November 2020 the landlord telephoned the resident’s daughter and explained that the disposal of a deceased tenant’s possessions could take place after only 28 days. The landlord would investigate the matter and provide her with an update.
The resident’s daughter made a formal complaint to the landlord on 4 December 2020. She referred to the landlord’s communication with her mother’s friend on 4 June 2021, encouraging them to return the property’s keys and noting that there were 2 potential family members that the landlord may be able to contact. She stated that her mother’s friends were informed that the property would not be cleared for 6 months. The resident’s daughter queried why the keys were collected so promptly given that Covid-19 restrictions were in force at that time. She explained that she was very distressed that no record had been kept of her mother’s possessions.
The landlord emailed its contractor on 15 January 2021 to ask whether, if an iPad was found at a property, it would deem this an ‘item of value’ and notify the landlord. The contractor responded stating ‘yes definitely’ and clarified that other items that would be treated as items of value included money, jewellery, and photographs. It also stated that it would not dispose of any mail or paperwork and would notify the landlord. The contractor’s recollection of the property was that it appeared that items had been ‘sorted through’. It did not take an inventory or photographs of the property. The contractor stated that it would review its processes as a result of this case.
The landlord responded at stage 1 of its internal complaints process on 18 January 2021. It apologised for the delay and attached a link to the ‘Ending Your Tenancy’ page of its website, together with a ‘crib sheet’ of questions that an officer would answer to understand the circumstances of a case. The landlord explained that:
1. Following the resident’s death, the landlord served a notice to end her tenancy on her personal representatives and the public trustee on 8 June 2020. Due to the pandemic, the landlord did not receive a response from the Public Trustee until 30 July 2020, meaning the tenancy ended on 2 August 2020, as all the landlord’s tenancies ended on a Sunday.
2. The landlord would usually ask those dealing with the resident’s estate to remove all rubbish and belongings from the property and to leave it in a clean and tidy condition. If the landlord had to remove rubbish and belongings, costs would be charged to the resident’s estate.
3. Under section 41 of the Local Government (Miscellaneous Provisions) Act 1982, the landlord must keep property left in its premises for one month after giving notice to its owner. The landlord then had the power to dispose of the property.
4. It was normal practice for the landlord’s contractor to put aside any personal mail and documents, which would then be collected by the Neighbourhood Officer, with correspondence returned to sender and documents passed to the registered executor. The landlord’s contractor had confirmed that no personal mail or documents were found at the property.
5. Due to the Covid-19 pandemic, the landlord’s Neighbourhood Officers did not have the usual level of involvement in the void process. A full inventory of personal possessions would normally be taken, listing items of value, and the relevant persons would then be contacted to collect it before the end of the tenancy. The landlord’s contractor was not instructed to complete an inventory of the resident’s property. The landlord explained how waste and bulk items were disposed of by its contractor.
6. The resident’s friends had advised the landlord that the resident was co-habiting with her partner at a different address, where he believed she had lived for a long time. They also reported that the bank and solicitor were looking to trace family members.
7. A note on the landlord’s systems referred to the resident having 2 daughters with whom she was not in contact. Her partner was listed as her next of kin. The landlord’s Housing Service were unable to share the resident’s daughter’s details due to GDPR. It was reasonable for the landlord to assume that any identified next of kin would get in contact following her death. By 3 August 2020, the landlord reasonably concluded that no next of kin had been found, on the basis of the information that was available.
8. The property was cleared on 20 August 2020, almost 3 months after the date of death and 2 months after service of the Notice to Quit on the Public Trustee and personal representatives. The Housing Officer had decided that other departments should not share the resident’s daughters’ details and the information listed on the resident’s file named another person as her Next of Kin.
9. Arrears of £735.84 had accrued on the resident’s rent account by the time the property was cleared. As a gesture of goodwill, the landlord was willing to write off the arrears and to offer £100 compensation in ‘full and final’ settlement of the complaint, in recognition of the distress that had been caused.
The resident’s daughter wrote to the landlord on 14 February 2021 requesting escalation of the complaint to stage 2. In response to the landlord’s findings, she stated that:
1. The landlord said a Notice to Quit was served on the resident’s personal representatives on 8 June 2020, although its systems recorded that it had been served on 11 June 2020. As the landlord had already collected the keys, no one would have been able to collect the Notice, which was sent to the resident’s property. The landlord was aware that the resident’s only living relatives had not been contacted.
2. The resident’s daughter remained dissatisfied that her mother’s personal digital devices had been disposed of.
3. The landlord stated that no personal mail or documents were found at the property. The resident’s daughter queried whether any personal mail was delivered to the property between 11 June 2020 and 16 September 2020 when the key was returned to the key safe by the landlord’s contractor.
4. It was disappointing that the voids inspection process had not been completed, as this would have evidenced whether possessions remained in the property at that time. The resident’s daughter knew that ‘it was a fully furnished one bedroom flat with even food in cupboards’.
5. The resident’s personal representatives had expressed regret that they were unable to clear the property as they were not notified of the need to do so by the landlord. Had the landlord traced the resident’s next of kin, this would not have been necessary. The resident’s daughter did not accept that the restriction on attending a property to collect items was reasonable in the circumstances, although she acknowledged the risks posed by the Covid-19 pandemic.
6. Following her mother’s death, the personal representative had requested that the landlord collect the keys to the property only 8 days later. The resident’s daughter queried whether this was a ‘priority’ during the pandemic, particularly as there was a procedure to follow to end the tenancy.
7. The resident’s daughter explained her mother’s relationship to the person who had contacted the landlord to inform it of her death, which she stated highlighted inaccuracies in the landlord’s stage 1 response. The landlord’s statement that the bank/solicitors were undertaking searches for next of kin was inaccurate and this information had not been provided by her mother’s friends.
8. The resident’s daughter felt the case should have been escalated to someone more senior, due to its complexity, and expressed her sadness that the landlord had not made more effort to trace her and her sister before disposing of her mother’s possessions. She declined the landlord’s offer of compensation, which she did not feel was adequate.
The landlord acknowledged the complaint escalation on 15 February 2021.
The landlord provided a response at stage 2 of its complaints process on 15 March 2021. The landlord found no service failure. It explained that:
1. At the time of the resident’s passing her next of kin was listed as a person who had unfortunately pre-deceased her. Although her housing file referred to her having 2 daughters there was ‘limited further information that could be used to identify’ them. It would not have been appropriate for the landlord to ‘use other information collected for different purposes’ to identify the resident’s daughters, due to the legal restrictions imposed on the sharing of personal data.
2. ‘Other parties’, acting on behalf of the bank, were taking steps to identify and contact relatives and further action by the landlord would have ‘been a duplication of these efforts’ and ‘unlikely to have had more timely results’.
3. As part of the complaint investigation the landlord had confirmed that no personal possessions were found at the resident’s property when it was cleared. Had valuables been found, they would have been passed to the Housing Officer for storage.
4. As a result of the Covid-19 pandemic the landlord had altered its usual procedures to minimise the risks to staff and customers. The landlord’s decision to suspend void inspections was not unreasonable. It was reasonable for the landlord’s officers to take ‘prompt steps’ to take possession of the keys to the resident’s property ‘to ensure third parties were not responsible for its security’.
5. The landlord did not accept that its stage 1 response was inaccurate. The landlord apologised for any distress caused by explaining how her mother’s personal belongings were disposed of by its contractor. Other information set out in the stage 1 response was recorded in good faith and ‘based on information provided by a third party’, although the landlord accepted that the resident’s daughter had been provided with contradictory information.
The resident’s daughter responded on 9 April 2021, stating that:
1. She remained dissatisfied with the landlord’s response. She stressed that it was unreasonable for the landlord to fail to share records in order to locate her mother’s next of kin. She also noted that the Housing Officer had commented to her mother’s friends that ‘our records indicate that there are two potential family members that we may be able to contact on behalf of Miss Neale’.
2. No inventory was taken of the items that remained in the property following her mother’s death and stated that the landlord had failed to follow its policies and procedures.
3. The landlord was aware of the details of her late mother’s friends and would have been aware that there was no one at the property to receive the Notice that was served, as it had collected the keys 8 days after her mother’s death.
4. The landlord’s response was inconsistent, as it had accepted that someone had collected the property’s keys but maintained that due to the Covid-19 pandemic an inspection of the property could not take place.
5. The landlord had shown no empathy, compassion or understanding and the resident’s daughter did not agree that information had been provided ‘in good faith’.
6. The offer of £100 was inadequate compensation for the ‘whole contents, history and memory of [the resident’s] life. The resident’s daughter requested adequate compensation and that the landlord reassess its procedures to be inclusive of tenants with no known next of kin.
The landlord provided a final response to the complaint on 12 May 2021. It offered its condolences and reflected that the ‘tone and content of other communications’ was not as sensitive as it could have been, for which it apologised. The landlord was satisfied that there had been no service failure in its treatment of the resident’s property following her death and it did not agree that its policies and procedures should be amended. It had taken the opportunity to, ‘remind staff of the need to approach such situations with sensitivity, especially where the disposal of personal effects are concerned’. The landlord would not pay compensation for loss of belongings, as it noted that it had no record of what had been lost and highlighted that a previous without prejudice offer had been rejected.
The resident’s daughter has requested compensation for the loss of her mother’s personal belongings and for the landlord to review its policies and procedures to be inclusive of tenants who pass away with no known next of kin.

Assessment and findings

The Ombudsman acknowledges the extreme distress caused to the resident’s daughter at the discovery that her late mother’s possessions had been disposed of by the landlord prior to her knowledge of her mother’s death. The Ombudsman offers its condolences for the resident’s daughter’s loss and appreciates that this must have been a very difficult time.
It is noted that the landlord has not provided copies of any written policies or procedures relating to the treatment of a resident’s personal possessions following their death. Although it has referenced a page on its website, this contains only a limited and brief summary of its processes. It is therefore recommended that the landlord produce written policies and procedures dealing with these matters if it has not already done so.
The following Government website provides advice for landlords on ending a tenancy after the death of a resident who dies with no executor or will: https://www.gov.uk/tenancy-agreements-a-guide-for-landlords/if-your-tenant-dies-without-an-executor-or-a-will.
In such circumstances, in the absence of an executor or appointed administrator, the landlord must serve a Notice to Quit on both the Personal Representative of the resident’s estate and the Public Trustee. Service on a Personal Representative is completed by posting or hand delivering the Notice to the resident’s property, which the landlord did in this case.
The Ombudsman notes the resident’s daughter’s comments that as the property was vacant and the landlord had taken possession of the keys, no one would be notified of the need to clear the property by a specified date. She also states that her mother’s friends were informed that the property would not be cleared for 6 months.
The resident’s daughter’s frustration is understandable, however, the landlord followed the correct process to serve notice of the end of the resident’s tenancy and it would not have been permitted to release the keys to the property to anyone other than the executor or administrator of the resident’s estate. Although the statement regarding the timing of the property clearance is not disputed, the Ombudsman must base its findings on the documentary evidence available and there is no evidence that the landlord informed any party that the property would not be cleared for 6 months.
It is understandably very upsetting for the resident’s daughters that the landlord may have held information, as a result of its other functions as a local authority, that may have helped to trace them. The Ombudsman is unable to comment on the landlord’s responsibilities in relation to personal data and whether it would have been permitted to do so in the circumstances. Should the resident’s daughter wish to pursue this aspect of the complaint she is advised to contact the Information Commissioner’s Office (ICO). Further information about the ICO can be found at https://ico.org.uk/.
In cases where a tenant dies with no known, living next of kin, the landlord is not required to take steps to trace them. The landlord has explained that it did conduct preliminary searches and was unable to identify any specific individuals who matched the details it held for the residents’ daughters exactly. The Ombudsman does not consider that it would have been appropriate for the landlord to contact each of the individuals identified in order to investigate their relationship to the resident. In the circumstances, the landlord’s approach was reasonable.
The evidence shows that the landlord was aware that items had been moved to the property from the address at which the resident was residing prior to her death. This is recorded in the landlord’s notes of 4 June 2020. The notes do not indicate that the landlord was informed that any valuables had been returned to the property and no description of the items was given, other than to state that documents were included. No other evidence has been presented by either party describing what items remained at the property prior to its clearance on 7 August 2020.
The landlord was not responsible for the contents of the resident’s property between service of the Notice to Quit and the end of the tenancy. The landlord has informed this Service that a pre-void visit would usually be conducted, and an inventory taken of any items remaining in the property as part of its pre-void processes. The landlord is not required by law to remove valuable possessions from a vacant property or to store them elsewhere prior to collection, however it has noted that valuable items identified by its contractor at the point of disposal would usually be separated, passed to the Neighbourhood Officer for safekeeping and stored.
The Ombudsman agrees that it is best practice to ensure that an inventory is taken following the death of a tenant. Such a document would evidence the type and location of any valuable items, or items that may be of sentimental value, and may help to avoid disputes in the future. In the circumstances, the landlord has stated that it was unable to conduct a pre-void inspection and to complete an inventory, due to the restrictions imposed by the Covid-19 pandemic and the steps it had taken to protect its staff.
The Ombudsman notes that no contemporaneous records have been provided showing that the landlord amended its policy regarding pre-void inspections because of the pandemic, or that it assessed the risk in relation to the resident’s property. Between 11 June 2020 when the Notice to Quit was served and 7 August 2020 when the property was cleared, restrictions were eased across England. The Ombudsman is not satisfied, based on the evidence provided, that it was reasonable for the landlord to fail to conduct a pre-void inspection and to take an inventory in an empty property during this period. Had the landlord produced an inventory of the items left in the property it would have been able to identify any items of value and, as it has stated were its usual processes, may have removed these to storage, although there was no obligation for it to do so.
The landlord has referenced section 41 of the Local Government (Miscellaneous Provisions) Act 1982, stating that this provision permitted it to dispose of the resident’s possessions one month after serving notice on the owner. The landlord has stated that as the Notice to Quit was served on 11 June 2020, it was entitled to dispose of the resident’s possessions one month after that date and in fact, it did not clear the property until 7 August 2020.
The Ombudsman cannot give a binding determination on whether service of the Notice to Quit constituted adequate notice as required by section 41. For this to be established, the resident would need to seek independent legal advice and to make an application to the court for a binding determination. On the assumption that the notice was valid for the purposes of section 41, the landlord was entitled to clear the property as it did on 7 August 2020, disposing of all items that remained there.
There is no evidence of any communication with the landlord’s contractor prior to, or on, 7 August 2020, about the items that were cleared from the property. As part of its investigation into the complaint the landlord contacted its contractor to enquire about its processes and whether it recalled any valuable items, paperwork or correspondence found at the property during clearance. The contractor indicated that no such items were found. The landlord conducted a reasonable investigation into the complaint, which revealed that there were no items of value present. In the absence of further evidence contradicting the contractor’s account, it was reasonable that the landlord took no further action.
To resolve the complaint and in recognition of the distress that the situation has caused to the resident’s daughter, the landlord confirmed that it would not seek to recover the rent arrears that had accrued on the resident’s rent account, or the fee for clearance of the property, from the resident’s estate. It also offered the resident’s daughter an additional £100 compensation. The landlord’s offer of compensation demonstrates a genuine willingness to be fair and to put things right, which is in line with the Ombudsman’s Dispute Resolution Principles.
The Ombudsman cannot award compensation for the loss of personal belongings, as it is unable to confirm what items were left at the property after the resident’s death, or to quantify their value. Should the resident’s daughter wish to pursue a claim for the loss of her mother’s belongings, she would need to seek independent legal advice. The landlord argues that it was not obliged to store the belongings after the end of the tenancy and it had the right to dispose of them at that time. The Ombudsman agrees with the landlord’s assessment.
The evidence indicates that the landlord followed the law by preserving the resident’s belongings for the required period. It then disposed of them in accordance with its usual processes. Whilst it is regrettable that the landlord did not undertake a pre-void inspection of the property and obtain an inventory, there is no written policy or law requiring it to do so. In any event, had an inventory of the items been taken, this may not have resulted in them being preserved beyond 7 August 2020 or until the date of the resident’s contact.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in its handling of the disposal of items in the resident’s property following her death.

Reasons

The landlord followed the correct statutory process to serve notice to end the resident’s tenancy following her death. It was not required to take steps to trace her next of kin and in the absence of an executor or administrator of her estate, it was not able to release keys to a third party to allow the property to be cleared prior to the end of tenancy. Although the Ombudsman is not satisfied with the landlord’s explanation that it was unable to complete a pre-void inspection and inventory due to pandemic restrictions, there was no maladministration as it followed the law and retained the goods for the required period before disposing of them in accordance with its usual procedures.

Recommendation

It is recommended that the landlord:
1. Produce detailed written policies and procedures relating to the ending of a tenancy following a tenant’s death and the process to be followed where personal items are left in the property.