Welwyn Hatfield Borough Council (202007664)

REPORT

COMPLAINT 202007664

Welwyn Hatfield Borough Council

12 April 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:
1. The landlord’s handling of the resident’s application for succession of tenancy and the quality of customer service provided by the landlord.
2. The landlord’s handling of a gas safety check.
3. The landlord’s handling of the resident’s complaint.

Background and summary of events

The resident occupied her home with her father who was the secure tenant of the landlord. It was a four-bedroom property in which she resided with her husband, and her four children who were five and under. The family has a number of vulnerabilities.

Legal and policy framework

Under Section 87 of the Housing Act 1985, a person is qualified to succeed the tenant under a secure tenancy if he occupies the dwelling-house as his only or principal home at the time of the tenant’s death and … he is another member of the tenant’s family and has resided with the tenant throughout the period of twelve months ending with the tenant’s death unless .. the tenant was himself a successor. A successor under Section 88 of the Housing Act 1985 includes where the tenant was a joint tenant and had become the sole tenant, or he became the tenant on the tenancy being assigned to him (unless it was assigned to him under specific statutory provisions).
Under Section 91 of the same act, a periodic secure tenancy cannot be assigned except in specific circumstances including an assignment to a person who would be qualified to succeed the tenant if the tenant died immediately before the assignment. Case law (Burton v Camden LBC [2000]) confirmed that the right to assign a secure tenancy to a person who would be qualified to succeed to the tenancy if the tenant died immediately before the assignment did not apply to a joint secure tenancy.

Succession policy

The landlord’s policy stated that succession claims would be handled with care and sensitivity and the landlord would try and ascertain eligibility as soon as possible. It stated that a child of the resident had the legal right to succeed if they have lived in the property 12 months up to the date of death of the tenant. Only one person could succeed and only one succession was allowed. The landlord would consider whether to grant a ‘discretionary’ succession, where, if granted, the landlord would grant a new flexible five-year tenancy.

Assignment policy

The assignment policy provided to the Housing Ombudsman is dated May 2018 but the landlord has confirmed that it was the relevant policy at the time of the application. It stated that “wherever possible, a request for a joint tenant to become a secure tenant should be done by assignment and in the case of assigning the joint tenancy to a sole tenant, it will be an assignment to a would–be successor, so no further succession will be allowed. The person requesting the sole tenancy would be deemed to be a successor”.

Gas Safety check procedure

It is a legal requirement under the Gas Safety (Installation and Use) Regulations 1998 that there is a current gas safety certificate for the property. The landlord’s procedure sets out what steps the landlord will take in order to ensure that it complies with its legal obligations, including sending out a letter threatening legal action 19 days prior to the expiry of the gas safety certificate.

The complaints policy

The landlord’s complaints policy concerned failures to follow policy or procedure. It expected the resident to approach the team or person responsible initially, but the landlord can refer the complaint to another officer or team. It is a two-stage process, the first stage is investigation and the second stage is a review. The landlord should acknowledge the complaint within three working days of receipt, and provide a response within ten working days. Where a complaint is upheld, the landlord will consider compensation in line with its compensation policy. The review will be carried out by someone senior and the landlord will respond within ten working days. The landlord would also inform the resident of what actions it would take in response, including adjustments in policies or procedure or deliver staff training.

The compensation policy

The landlord’s compensation policy states that discretionary payments and gestures of goodwill will be determined on a case-by-case basis, considering the particular factors relevant to each case. These may include the impact on a complainant, the length of time, and any inconvenience caused. The policy does not cite any relevant scale for compensation in relation to ‘goodwill’ payments but refers to internal guidance.

Chronology

The tenancy was granted to the resident’s father, as joint tenant with his wife, on 25 August 1957. The resident’s father made an application for a sole tenancy received by the local authority on 25 May 2004. The reason given for the application was that the resident’s mother had moved out. The resident’s mother signed the application to say she was giving up the (existing) tenancy. The landlord gave an internal instruction to vest the tenancy into the father’s sole name commencing 25 May 2004. This was later treated by the landlord as an ‘assignment’ of the tenancy from the resident’s mother to the resident’s father. The resident had lived in the property since the tenancy began.
The resident’s father passed away on 15 November 2019.
An appointment for the annual gas check was booked for 20 November 2019. The day before, the resident requested that the appointment be postponed. She explained that her father had just died and she was due to have a Caesarean operation. The landlord wrote to the resident on 1 December 2019 threatening legal proceedings if she did not provide access. On 15 December 2019, following a text reminder from the landlord, the gas check was re-booked for 16 December 2019 after 2pm, which appointment took place. On 17 December 2019, the resident received a letter from the landlord dated the same day. It stated she was in breach of her tenancy agreement for not providing access and again threatened legal action if she did not contact the landlord within 7 days. According to the resident, she was told by the landlord to ignore the letter.
The resident made an application to succeed to her father’s tenancy which was received by the landlord on 31 December 2019. On the same day, the landlord wrote to the resident stating it would review the tenancy in order to consider whether the resident had a right to succeed.
On 2 January 2020, the landlord wrote again to the resident, and stated there had been a previous succession (the purported assignment to the resident’s father) and therefore the resident did not have a legal right to succeed, as only one succession was allowed. The landlord would meet with the resident and serve a Notice to Quit on her on 10 January 2020. The landlord also arranged for a meeting on 27 January 2020 with the landlord’s housing department, in order to discuss the resident’s housing options.
According to the resident, both these letters of the 31 December 2021 and 2 January 2020 arrived the same day.
The landlord served the resident with a Notice to Quit (NTQ) on 10 January 2020 as previously arranged, with a letter to say the landlord would issue possession proceedings if the resident did not vacate by 10 February 2020. The landlord also referred the resident’s case to its specific panel of officers of the landlord with “the view to award a discretionary succession based on (the resident’s) housing need and the length of time (she) had lived at the address”.
On a date in the week commencing 18 January 2020, the landlord wrote to the resident to state that the panel had deferred making a decision whether to grant a ‘discretionary succession’ until the outcome of the meeting with the housing department on 27 January 2020. The landlord wrote to the resident on 22 January 2020 by email as well, confirming the contents of that letter and checking that a call from a health visitor was genuine.
On 29 January 2020, the housing department emailed the landlord’s housing officer stating that the local authority would have a duty to provide emergency housing to the resident and her family if homeless, but even if her priority banding were increased, it would take approximately 21 months to rehouse the family, during which time the resident would be in temporary accommodation, which would probably be bed and breakfast accommodation. It was deemed that the family could not afford private rented accommodation. The local authority was of the view that the case should go back to the landlord’s panel so that the resident could be awarded ‘discretionary’ succession.
On 7 February 2020, the resident chased the outcome of the panel meeting and expressed her feelings of stress.
On 2 March 2020, the resident received a rent request addressed to her father.
The landlord sought in-house legal advice regarding the notice to quit on 11 March 2020 as it did not consider that the previous NTQ that had been served was valid. The landlord’s internal email notes that it was anticipating that the resident would be able to “succeed” to the tenancy. It said it considered that serving the fresh notice would encourage the resident to provide the necessary financial information required so that the landlord could consider the succession application, but at the same time was looking at following the process of recovering the property.
On 16 March 2020, the landlord wrote to the resident to explain that the original NTQ served was not valid and that the possession proceedings had not yet begun. The landlord added “IF it goes that far” the resident would be informed, but permission could still be granted to succeed to the tenancy, and the NTQ would be void. She and her husband would be granted a new tenancy.
The landlord sent a demand for ‘use and occupation’ charges dated 16 May 2020 to the resident.
The landlord wrote to the resident on the 18 May 2020, stating that it had agreed a discretionary succession and would grant a new five-year fixed–term tenancy. The letter also explained that the tenancy could be renewed upon her family’s housing circumstances being reviewed.
On 19 May 2020, the resident wrote to the landlord with her first stage-one complaint regarding “a failure by the landlord to follow policy or procedure”. The letter stated that Shelter advised her that she was entitled to a statutory succession and attached that advice. This would also mean she would have a lifetime tenancy. She said she would be also complaining about the lack of communication, inconsistency of advice and the significant emotional impact this had had on her as a mother of a new–born, as well as on her family, in particular as she had just lost her father. She requested that she be granted the correct tenancy.
The landlord sought in-house legal advice on the same day, 21 May 2020. The internal email stated that “under current processes at the time, this was dealt with as an assignment and the tenancy was vested in the sole name of (the resident’s father) from 25 May 2004”. The landlord set out that the delays to date had been due to the landlord’s decision–making process, as well as awaiting to hear from the resident with financial information.
The legal advice was provided on 27 May 2020 explaining that one joint tenant cannot assign a tenancy to another under Section 91 of the Housing Act 1985. The consequence was that a new secure tenancy had been granted to the resident’s father in 2004 which would have its own succession rights. The resident was entitled to succession as she satisfied the relevant criteria.
The landlord ascertained on 2 June 2020 that the tenancy would have to be in the resident’s sole name, otherwise the landlord would be creating a fresh tenancy.
The landlord responded to the resident’s complaint on 3 June 2020. The landlord stated that while the procedure was followed correctly, the procedure had not been updated to reflect “case law which had changed the way that applications for sole tenancies were managed”. The application for the sole tenancy was treated as an assignment, but that “Section 91 of the Housing Act 1985 states that a joint tenant cannot assign to another joint tenant”. Consequently, its view was that when the “tenancy change” was made on 25 May 2004, a new secure tenancy “should have been granted” to the resident’s father with its own succession rights.
The landlord upheld her complaint as the resident had been entitled to succeed to the tenancy all along. The landlord, through the resident’s housing officer, expressed its “sincere apologies for the inconvenience and the uncertainty you have experienced” and was “very sorry for any distress this has caused” the resident and her family. It also assured the resident that it would be reviewing how it had managed similar cases as well as reviewing its procedures and policies to ensure that they are up to date with legislation. The landlord confirmed that the tenancy had been changed to show that the tenancy had been vested in the resident’s sole name. It explained that the “assignment” will be classed as a succession to the father’s tenancy and under the Housing Act 1985, there will not be any future “rights of assignment”.
The landlord thanked the resident for bringing the issue to its attention so as to give it the opportunity to review its procedures. It informed the resident of its right to escalate the complaint to the second stage of its complaint procedure.
On 19 June 2020, the landlord sent the resident a letter addressed to her late father.
On the 7 July 2020, the resident submitted a further complaint, as she had stated was her intention, regarding “poor delivery of service causing extreme distress”. She felt she was treated with a lack of clarity/empathy and sympathy. At the time of making the application, she was suffering a bereavement, she was due to give birth and was undergoing a high–risk pregnancy. She was also hospitalised, including over Christmas, and was given notice to quit shortly after. She felt the landlord’s handling of her application had therefore adversely affected her maternal and mental health. During the period of the process, there were further health and family difficulties. She felt confused by the apparent contradiction between the landlord’s actions and its expressions of sympathy. At a meeting in February 2020, the landlord explained that “eviction would not happen” but it was following policies and procedures, and it would ‘fight’ her case. She also found it confusing why the landlord sought information such as affordability of private renting, and whether she had looked for private renting. She also referred to the rent demands being addressed to her father. When she was offered a tenancy, it was for a minimum of 12 months. She was on antidepressants “due to this entire unnecessary situation”. She said she had had 61 phone calls with the landlord between December 2019 and June 2020, and she had sent it 31 emails and letters requesting updates, but that she had only received 20 letters and emails from the landlord in reply.
Regarding the gas safety check, she cited there were two letters threatening court action in relation to access, one when she had changed the date to accommodate her father’s funeral, and one after the check had taken place.
On 17 July 2020, the landlord responded to the resident’s complaint dated 7 July 2020. It summarised the events and acknowledged that its letter of 2 January 2020 was incorrect when it refused the resident’s application to succeed and, instead, served a Notice to Quit on the resident. It acknowledged that it caused distress and anxiety at a time when the resident was bereaved and the resident was due to give birth. It noted that the resident felt overwhelmed and misled. It addressed the reasons for the lengthy time the application for a discretionary succession took, given its necessary processes and that it had been awaiting financial information from the resident. The landlord explained the gas service letter was sent a day after the gas check took place because the systems had not caught up. The landlord offered £500 in compensation in acknowledgment of the failure to manage the resident’s succession application satisfactorily and in recognition of the time that she had to spend liaising with the landlord and how the resident was affected by the prospect of losing her home at a very difficult time.
On 7 August 2020, the resident requested that the landlord escalate her complaint. The written request itself has not been provided to the Ombudsman service however the landlord’s response indicated it understood that the reason for the escalation was that, while the resident was satisfied with the response, she was dissatisfied with the amount of compensation. The landlord acknowledged the request for review on 11 August 2020 and it said it would respond within 10 working days.
The landlord wrote to the resident with its final response 25 August 2020, stating it acknowledged the time that the resident had to spend liaising with it, and how she was affected by the prospect of losing her home at a very difficult time. The landlord, however, upheld the amount of the compensation and assured the resident that the procedure that led to her being refused succession in the first instance has been reviewed.

Assessment and findings

The landlord’s response to the resident’s request to succeed to her father’s tenancy and the quality of the landlord’s customer service.

The landlord’s refusal of the resident’s right to succeed was not appropriate given that the refusal was incorrect as a matter of law. The landlord treated the resident’s application as if her mother had assigned the tenancy to her father, and stated that such an assignment was deemed to be a succession. While an assignment would be deemed to be a succession, no assignment ever took place.
An assignment could not have taken place, for the reason that the landlord itself acknowledged, that the Housing Act 1985 prohibits assignment except in specific circumstances. The relevant exception, of the right to assign a secure tenancy to a person who would be qualified to succeed to the tenancy if the tenant died immediately before the assignment, does not apply to a joint secure tenancy. This is a matter of law which position was confirmed in 2000 by the case of Burton V Camden, some considerable time before the resident’s application.
In any event, there is no evidence that the joint tenants even executed a deed of assignment, despite that being the required (if mistaken) procedure at the time. The document provided to this service as the document vesting the tenancy into the resident’s father’s sole name was the resident’s father’s application for a sole tenancy. The resident’s mother signed the application to say that she was giving up the tenancy. The internal instruction at the time stated that a sole tenancy should be vested to the resident’s father but no other documents have been provided.
In all the circumstances, as a matter of law, the resident’s mother had surrendered the original tenancy and the landlord granted the resident’s father a fresh sole tenancy on, according to the landlord’s records, 25 May 2004.
It is of concern that the landlord’s assignment policy which purported to allow, indeed encourage, such assignments was incorrect. Either it had been drafted incorrectly from the outset, or it had not been reviewed with the benefit of legal knowledge. Policies should be informed by the relevant experts in law.
While the landlord’s refusal of the resident’s application was inappropriate, the resident has specifically reported that the landlord’s delivery of its service caused her distress, in that it acted with a lack of clarity, empathy and sympathy. The landlord’s policy promised that it would handle succession cases with care and sensitivity. While the Housing Ombudsman’s role is not to determine whether the landlord caused the resident stress or mental health issues, it can consider the impact of the landlord’s conduct on the resident in terms of distress and inconvenience.
It was unfortunate, rather than the landlord’s error, that its letters of the 31 December 2019 and 2 January 2020 reached the resident’s home at the same time. It was the landlord’s policy to ascertain eligibility as soon as possible. The timing of the correspondence was therefore neither unreasonable or insensitive. The landlord’s explanation that it telephoned the resident in order to mitigate the effect of the decision was a reasonable attempt to be sensitive and demonstrated an effort to be so.
It was appropriate the landlord referred the resident’s application to the discretionary panel, and did so promptly, and assisted the resident by asking her to provide information that would be helpful to her application, such as exploring the affordability of private housing, and the needs of the household’s. While the local authority’s housing needs department is outside the jurisdiction of the Housing Ombudsman, it is noted that it supported the application and the landlord responded to its recommendation.
The landlord kept the resident informed as and when it had an update, such as the deferring of the decision by the panel until other options could be explored, though it is unfortunate the landlord did not update the resident of the local authority’s email of the 22 January 2020. The landlord, however, would have been limited in the degree of reassurance it could have afforded the resident, in order to manage her expectations. The landlord could consider adjusting in similar situations the timing of serving a notice to quit. The landlord should also ensure it updates its records so that it does not send out correspondence addressed to the deceased. It could, for example, address correspondence to the estate of the deceased. It was, however, throughout the process, balancing taking steps to advance the resident’s application to the succession panel, while taking steps towards seeking possession that its policy, and its obligations as a social landlord managing its stock, required.
It is understandable that it would be confusing for the resident that the landlord was taking steps to eviction as well as assisting her to remain in the property. The landlord did however explain what steps it was taking. It provided updates when new information was forthcoming on the 18 January 2020, by the resident’s own account in some detail at a meeting in February 2020, and again on the 16 March 2020. The resident was informed she had been granted a tenancy on the 18 May 2020. Notwithstanding the resident’s very understandable anxiety, it was reasonable for the landlord to update the resident at the point when there was an update.
Without access to expert legal advice, in particular in relation to a complex area of law, a resident would not have the tools with which to have discovered the error for itself. This case demonstrates the value of access to expert legal advice. It also, more crucially, underlines the particular burden of responsibility on the landlord to ensure that its policies and procedures comply with the law.
The impact of the landlord’s error on the resident was significant, given the prospect for the resident of potentially losing her long–term home, in circumstances where the resident had just lost her father she had lived with all her life, and she was facing a difficult pregnancy. This was not assisted by the landlord sending letters to the addressed to the resident’s late father.
While this was a serious failure, which ought to have never happened or, at best, been corrected a significant time ago, there was no permanent impact on the complainant. Moreover, the landlord took action promptly, corrected its decision and fully acknowledged the impact of its error. The role of the Housing Ombudsman is not to be punitive but to compensate the resident for the stress and inconvenience it had suffered due to the service failure or maladministration. The Housing Ombudsman’s awards of compensation are generally moderate and take into account the landlord’s need to make the most effective use of its limited resources as a social landlord. In the circumstances, the landlord’s offer to the resident of £500 compensation was reasonable, and within the guidelines set out in the Housing Ombudsman’s guidance on remedies.

The landlord’s handling of the annual gas safety check

It is a legal requirement to ensure that the property has the benefit of a current gas safety certificate. It is a vital function of any landlord to ensure the health and safety of its residents. It is reasonable for the landlord to have a clear procedure in place in order to ensure it complies with its obligations, in particular concerning health and safety. While there is no evidence of the date the existing gas certificate would expire, and while the gas checks came at a very difficult time, the resident would have already had the relevant notifications, and indeed an appointment was in place for the 20 November 2019. The landlord’s first warning letter was dated some 12 days after the appointment was due to be re-arranged, which was not an unreasonable timescale given the important of the check.
While the landlord could consider a more responsive system, the second letter was sent the day after the check took place so that there was little time for the landlord to have updated its system. While it is understandable the resident was upset at receiving two letters threatening court proceedings, in particular at a very difficult time, and after the check had taken place, it was reasonable for the landlord to have followed its procedures in the matter of the gas check.

The landlord’s handling of the resident’s complaint

The landlord responded promptly and in accordance with its policy to the resident’s first complaint that her succession rights had not been recognised. Appropriately, the landlord immediately took specific legal advice. It did not however consider compensation regarding the serious matter that it had not recognised the resident’s rights. The language of the letter was confusing as it used the terms assignment and succession incorrectly. The letter, however, provided a full apology. Importantly, and also in line with its complaints policy, the landlord also said it would review similar cases, and that it would review its policies and procedures.
The resident made a further complaint, as she had so intended, regarding the manner in which she was treated. The landlord again responded promptly and in line with its policy. Its approach reasonably was to take both complaints (the decision to refuse succession and the manner in which the resident was treated) as a whole. While this should have been considered sooner, the landlord made an offer of compensation. As set out above, the level of compensation was within the limits of reasonableness and in line with the housing ombudsman’s guidance on remedies.

Determination (decision)

In accordance with paragraph 54 of the Scheme, there was:-
1. Reasonable redress in relation to the landlord’s response to the resident’s request to succeed to her father’s tenancy and in relation to the quality of customer service provided by the landlord.
2. No maladministration in relation to the landlord’s handling of the annual gas safety check.
3. No maladministration in relation to the handling of the resident’s complaint.

Reasons

The landlord made a serious and avoidable error which had a significant impact on the resident having to deal with a threat of losing her and her young family’s home she had lived in most of her life, at a very difficult time. However, the landlord corrected its decision, and fully acknowledged the impact of its error. The offer made was in line with the Housing Ombudsman’s guidelines in these circumstances.
Had the landlord not fully acknowledged its error and not awarded any or only minimal compensation, the Ombudsman would have found maladministration. This would have been because the refusal of the resident’s application to succeed to her father’s tenancy was due to an apparently long-standing error by the landlord of a very serious nature.
Setting aside the context of the landlord having made a serious initial error in denying the resident’s application to succeed, there was evidence it sought to act with sensitivity, and it sought to support the resident to retain the property, while being obliged to comply with its procedures and wider obligations as social landlord to manage its stock.
While the landlord could consider having procedures in cases of exceptional circumstances, it followed its procedures in relation to the gas check. It is reasonable for the landlord to have and to follow a strict procedure for carrying out a gas safety checks, given the importance of the checks to protect the health and safety of its residents, and that it is managing a large number of properties.
The landlord responded pro-actively to the complaint, it responded within its stated timescales, it apologised, it offered compensation, and it confirmed it would put the lessons learnt into action.

Recommendations

It is recommended that the landlord pay the resident the compensation in the amount of £500 that the landlord has offered the resident.
It is recommended that the landlord carry out the steps it promised the resident and has assured this service it would take, namely a) to review how it has managed similar cases and, in addition, b) to continually review its procedures and policies. These should be reviewed pro-actively in conjunction with its legal advisors to ensure that they are up–to–date with case law as well as statute. The landlord should also consider alerting its residents to any updated policy when complete, confirming the changes it has made and what they mean.
It is recommended that the landlord provide training to its housing officers in relation to succession rights and rights of assignment.
It is recommended that the landlord’s succession policy, which is being reviewed, explain more fully the circumstances in which succession is deemed to have taken place.
It is recommended that, if practical, the lessons learnt from this case be shared with other local authority landlords as a point of learning in any information sharing forum.