Optivo (202006063)

REPORT

COMPLAINT 202006063

Optivo

15 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:
   1. Handling of the end of the resident’s tenancy following her death.
   2. Requests to speak with the resident following her death.

Background and summary of events

Background

2. The resident was the secure tenant of the property which the complaint concerns.  The landlord owns the property.
3. The tenancy agreement sets out that the tenant was the sole tenant with the tenancy commencing in January 2011.
4. The resident passed away on 31 March 2020.
5. The resident’s son (the representative) makes the complaint on the resident’s behalf.  The representative has provided a Letter of Administration from the High Court of Justice naming him as the administrator of the resident’s estate.  The Letter of Administration is dated 19 October 2020.

Summary of events

6. On 21 July 2020 the representative contacted the landlord to raise concerns that despite providing it with a copy of the resident’s death certificate it had not taken steps to end her tenancy and had continued to take rent from her bank account.  The representative stated that the landlord had verbally informed him that all that was required to formally end the resident’s tenancy was a copy of her death certificate.
7. On 28 July 2020 the landlord responded to the representative.  In summary the landlord said:
   1. On 21 April 2020 the representative informed it that the resident had passed away and requested succession of the tenancy.  The landlord noted that as the resident held a secure tenancy for the property, any succession would have been granted on a statutory basis which meant that the successor would have taken over the existing tenancy and become responsible for the rent payments.
   2. On review of the succession application, it identified that the applicant (the resident’s granddaughter) was not eligible, and it therefore served a notice to quit (NQT) to end the tenancy.
   3. A tenancy did not end upon receipt of a death certificate.
   4. It would chase any rent arrears from the resident’s estate.
8. On the same day the representative responded to the landlord.  In summary the representative said:
   1. On 6 April 2020 he contacted the landlord to inform it that the resident had passed away and was advised that it would “take necessary action” to ensure that no further rent was taken from her bank account.
   2. He provided the landlord with a copy of the resident’s death certificate as requested.  The representative stated that the landlord did not inform him that the resident’s tenancy was not ended following receipt of her death certificate.
   3. Following provision of the resident’s death certificate he enquired with the landlord about a family member succeeding the tenancy.  The representative noted that the landlord encouraged the granddaughter to apply to succeed the tenancy despite it advising him that it was unlikely to be approved as the granddaughter could not provide evidence of residing in the property.
9. On 29 July 2020 the landlord confirmed that it would respond to the representative’s concerns under its complaint procedure. 
10. On the same day the representative wrote to the landlord setting out that as an outcome to the complaint he would like the landlord to refund the rent it had taken from the resident’s bank account following her death.  Within his correspondence the resident reiterated that on 6 April 2020 he was verbally informed by the landlord that the necessary steps would be taken to end the resident’s tenancy.
11. On 6 August 2020 the representative provided the landlord with a chronology detailing his contact with the landlord and advice given.  Within his chronology the representative noted:
    1. That it was his understanding that the tenancy was ended on notification of the resident’s death.
    2. He was not informed that the tenancy would continue while the granddaughter’s succession application was ongoing.
    3. In July 2020 he received a NTQ dated 2 July 2020. 
    4. In July 2020 he was informed that arrears would continue on the resident’s rent account until the tenancy was ended on 2 August 2020.
    5. Following the resident’s death and on 7 May 2020 he had received a call from the landlord requesting to speak with her.
12. On 12 August 2020 the landlord provided its stage one response.  In summary the landlord said:
    1. On 21 April 2020 the representative emailed it to advise that the resident had passed away on 31 March 2020 and to request details for a succession for the granddaughter.  The landlord set out that in response it requested that the representative provide a copy of the resident’s death certificate and on receipt it would provide a succession application form.
    2. It received the resident’s death certificate on 23 April 2020 and on 28 April 2020 it issued the representative with a succession form.
    3. On 7 May 2020 it spoke with the representative about the granddaughter’s succession application advising that it needed evidence showing that the granddaughter had lived at the property.
    4. On 14 May 2020 the representative submitted the granddaughter’s succession form.
    5. On 15 May 2020 it advised the representative that it needed proof that the granddaughter lived at the address to progress the succession application.
    6. On 26 May 2020 the representative provided it with copies of “home care reports” detailing the granddaughter’s attendance at the property.
    7. In July 2020 it wrote to the granddaughter to advised that the succession application had been refused as evidence had not been provided to demonstrate that the granddaughter had lived at the property.  The landlord confirmed that it served a notice to end the tenancy at the same time also.
    8. As previously advised in earlier correspondence any succession to the property would have been granted on a statutory basis meaning that the successor would have taken over the existing tenancy and become responsible for the rent payments.
    9. A tenancy did not end upon receipt of a death certificate.
    10. It received the keys to the property on 4 August 2020 and the tenancy ended on 10 August 2020.
    11. It noted that the representative reported that it contacted the landlord on 6 April 2020 to report the resident’s death however it had been unable to locate any notes referring to the contact.
    12. It was unable to reimburse the rent payments taken from the resident’s bank account following her death or waive the arrears which had accrued.
13. On receipt of the landlord’s stage one response the representative responded setting out that he did not find the landlord’s “conclusion agreeable” including as some issues raised had not been addressed.  The representative therefore requested to escalate the complaint.
14. On 13 August 2020 the representative submitted a completed review panel request form detailing the reasons for requesting a review.  In summary the representative said:
    1. He did not believe that the case had been “reviewed in its proper context with all the particular highlights taken into consideration – that of bereavement, Covid-19, a change in work ethics because of Government guidelines and clearly the mishandling and lack of guidance from [the landlord] regarding the surrendering of the tenancy and succession”.
    2. During a phone call with the landlord it had advised that the rent arrears which had accumulated following the resident’s death would be “waived” as they were due to a technicality.
    3. Since the resident had passed away he had received a phone call from the landlord in May 2020 requesting to speak to her.
15. On 15 September 2020 the representative wrote to the landlord advising that he had received a phone call from its contractor requesting to speak to the resident in order to gain access to the property.  The representative stated that it was unsatisfactory that the landlord had not taken steps to update its records.
16. On the same day the landlord provided its final response.  In summary the landlord said:
    1. It had reviewed its policies and procedures and it was satisfied that it had “generally” followed its tenancy and succession procedures correctly.
    2. It was sorry that the representative had received a phone call requesting to speak with the resident in May 2020.  The landlord explained that the call was part of its “Covid-19 checks” to its elderly residents and due to its systems not being updated to reflect that the resident had passed away.  The landlord said that it was sorry for the distress the call would have caused and therefore offered £25 as a goodwill gesture.  The landlord noted that the complaint had highlighted the importance of updating its systems to avoid the same situation happening in the future.
    3. There was no record of it advising the representative that the rent arrears were a technicality and would be waived.
    4. Its legal team had confirmed that rent would accrue while it considered the granddaughter’s succession application.
    5. It had received the keys to the property on 4 August 2020, ending the tenancy on 10 August 2020.
17. The landlord confirmed that if the representative was not happy with its response then he may refer the complaint to this Service for adjudication.

Assessment and findings

The landlord’s handling of the end of the resident’s tenancy following her death

18. The landlord’s procedure on ending a tenancy sets out:
    1. It will only accept notice from the executor of the estate for a deceased tenant where a Grant of Probate or Letter of Administration has been provided.
    2. Where there is no executor of the estate for a deceased tenant it will serve a NTQ on “the personal representatives of the tenant” at the property and inform the next of kin that it has issued a NTQ.
19. The landlord’s procedure on succession sets out:
    1. Where the tenant was a sole tenant, and no one else was living in the property, there are no succession rights.
    2. Where the tenant was a sole tenant, and someone else lives in the property, the other person may apply to succeed the tenancy where they have lived in the property for at least the last 12 months.
    3. Where succession is granted for a qualifying family member of a deceased tenant who had a secure tenancy granted before 1 April 2012 the family member would take over the existing tenancy.
    4. Where an application for succession is refused it will issue a NTQ to end the current tenancy.
20. The resident sets out that he informed the landlord of the resident’s passing on 6 April 2020 and was informed that on receipt of a death certificate steps would be taken to formally end the tenancy and no more rent would be taken.  The landlord states that it has no record of this advice being given.  In the absence of any evidence documenting a discussion on 6 April 2020 the Ombudsman cannot come to any conclusions on the information which was given and what was discussed regarding ending the resident’s tenancy.  This is because it is not the Ombudsman’s role to make a balance of probabilities decision about whether a phone call took place on 6 April 2020 and what might have been said.  Rather it is for the Ombudsman to consider whether the landlord’s response to this aspect of this complaint was reasonable or not.  The Ombudsman can see that in responding to this aspect of the complaint the landlord checked it systems and identified no records of a call on 6 April 2020.  It was therefore reasonable for the landlord to respond based upon the evidence it had available to it.
21. The first evidence which the Ombudsman has seen regarding notification of the resident’s death between the representative and landlord is on 21 April 2020.  The representative wrote to the landlord confirming that the resident had passed away on 31 March 2020 and stated that he would like to receive details regarding the succession of the tenancy.  In response the landlord confirmed that it would issue a succession application form once it had received a copy of the resident’s death certificate.  The landlord also noted that the application would be considered in line with its succession policy and the terms and conditions of the deceased resident’s tenancy. 
22. The evidence shows that on receipt of a copy of the resident’s death certificate, from the representative, the landlord issued him with a succession application form on 28 April 2020.  The completed succession application was returned to the landlord on 14 May 2020 and following this the representative provided additional documents on 26 May 2020 to support the granddaughter’s application, at the landlord’s request.  The landlord issued a NTQ on 2 July 2020 to bring the resident’s tenancy to an end and on 3 July 2020 the landlord wrote to the granddaughter confirming that her succession application had been refused; on the grounds that she had not been able to provide proof of living at the property form the last 12 months before the resident’ passed away. 
23. The Ombudsman notes that the Letter of Administration naming the representative as the administrator of the resident’s estate is dated 19 October 2020 and was therefore not available in April 2020 when he first notified the landlord of the resident’s passing.  In accordance with the landlord’s procedure on ending a tenancy where there is no executor of the estate for a deceased tenant the landlord should proceed to issue a NTQ to end the tenancy when it learns of their death.  In this case the landlord did not do so.  In the Ombudsman’s opinion the landlord’s action in not issuing a NTQ in April 2020 was reasonable as on notification of the resident’s death it was made aware of the granddaughter’s intention to apply to succeed the tenancy, and therefore the tenancy would need to remain open in order to consider the application.  This is because if the application was successful the granddaughter would take over the original tenancy rather than starting a new tenancy.
24. It was appropriate that the landlord issued the NTQ to end the resident’s tenancy at the same time that it informed the granddaughter that her application to succeed the tenancy had been unsuccessful to bring matters to a close.
25. The representative has suggested that the landlord encouraged the granddaughter to submit an application to succeed the resident’s tenancy despite it being aware that the application was unlikely to succeed due to lack of evidence to support proof of residency.  While the representative’s concerns are noted, in the Ombudsman’s opinion it was reasonable for the landlord to defer making any decisions regarding succession until it had received a completed application form, and supporting evidence, on which it could determine if the criteria had been met.  If the representative was concerned that the application would be unsuccessful, on the grounds that the granddaughter would not meet the criteria, it was open for him to discontinue with the application.  In the Ombudsman’s opinion it would not be appropriate for the landlord to have pre-empted a decision on the succession application prior to receiving it.
26. While the steps taken to end the resident’s tenancy were reasonable, as the landlord followed its procedures, in the Ombudsman’s opinion its communication with the representative could have been better.  Following a review of the chronology of the case the Ombudsman cannot see that the landlord clearly explained the process for ending the resident’s tenancy following her death by a NTQ or that the tenancy would remain live while the succession application was open.  In the Ombudsman’s opinion this would have been best practice, particularly to ensure that the representative was aware of the impact of the succession application in relation to ongoing responsibility for the tenancy, including rent.  However alone this admission does not amount to a service failure.  The Ombudsman notes that some information is available on the landlord’s website regarding ending a tenancy and succession, and therefore would have been available for the representative to review.
27. As the landlord followed its procedure in relation to ending the resident’s tenancy following notification of her death in April 2020 and on receipt of the granddaughter’s succession application it was not unreasonable for the landlord to decline to refund the rent which it had received after 31 March 2020. The Ombudsman is aware that following the end of the complaint procedure the arrears on the resident’s rent account have been written off as the resident did not have an estate to claim from.

The landlord’s requests to speak with the resident following her death.

28. The Ombudsman appreciates that it will have been distressing for the representative to have received contact from the landlord requesting to speak with the resident following her death.  Within the landlord’s final response it acknowledged this. 
29. Where a landlord acknowledges a service failure the Ombudsman will then consider whether the landlord has offered reasonable redress to make good the failure.  In this case the landlord apologised and awarded £25 compensation in recognition that the representative had received a phone call requesting to speak with the resident in May 2020.  The landlord also confirmed that the incident had highlighted learning which it would take forward in respect of ensuring that its systems are appropriately updated. 
30. While it was appropriate that the landlord acknowledged that a service failure had occurred in relation to the phone call in May 2020, and took steps to put things right, in responding to the complaint it did not address the representative’s report of a further call in September 2020.  In the Ombudsman’s opinion this was unsatisfactory.  It would have been appropriate for the landlord to have acknowledged that it did not take steps in May 2020 to avoid a repeat of the situation, causing further distress to the resident’s family.  The Ombudsman therefore considers that a further sum of compensation is due in respect of this shortfall.

Determination (decision)

31. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was:
    1. No maladministration by the landlord in respect of its handling of the end of the resident’s tenancy following her death.
    2. Service failure by the landlord in respect of its requests to speak with the resident following her death.

Reasons

The landlord’s handling of the end of the resident’s tenancy following her death

32. While the landlord’s communication regarding ending the resident’s tenancy could have been better, the Ombudsman is satisfied that the landlord followed its policies and procedures to end the resident’s tenancy following notification of her death and following receipt of the succession application.

The landlord’s requests to speak with the resident following her death

33. While it was appropriate that the landlord acknowledged that a service failure had occurred in relation to the phone call in May 2020, and took steps to put things right, it is unsatisfactory that it did not also offer redress in relation to the phone call in September 2020; in recognition that it did not take steps in May 2020 to avoid a repeat of the situation.

Orders and Recommendations

Orders

34. The landlord should pay the representative £100 compensation in respect of its request to speak with the resident in September 2020.  The landlord should comply with the order within four weeks of the date of this determination.

Recommendations

35. The landlord should review the information which it provides to a resident’s next of kin and executor of estate, following their death, to ensure that clear information is given detailing the actions needed to formally end a tenancy, including the impact of a succession application on a tenancy while it is live.
36. The landlord should review its procedures to ensure that a resident’s records are updated promptly following their death