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Clarion Housing Association Limited (202308878)

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REPORT

COMPLAINT 202308878

Clarion Housing Association Limited

13 August 2024


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 how the landlord handled the resident’s request to assign her tenancy to her daughter.

Background

  1. The resident is a secure tenant of the landlord, a housing association. The property is a 2-bedroom flat. Her tenancy began in June 1980.
  2. On 16 August 2021 the resident contacted the landlord and requested to assign her tenancy to her daughter. There was no progress with the request over the next few months, so the resident complained on 7 October 2021. The landlord responded on 18 November 2021, apologised for the delay, and offered the resident £200 which she accepted. The resident then complained again on 31 January 2022 following a continued lack of progress. The landlord responded on 16 February 2022 and apologised for the delay in reviewing the paperwork she supplied in November 2021. Having reviewed it, the landlord explained it could not permit the assignment. It apologised for giving her contradictory information and offered her £100 compensation which she refused.
  3. On 24 February 2022 a solicitor representing the resident appealed against this decision. At some point in May 2022 the landlord decided its decision was incorrect, accepted the appeal, and provided a draft deed of assignment to the resident on 8 June 2022. On 23 June 2022 the solicitor asked the landlord if it could make some amendments to the terms of the deed.
  4. There was little progress over the following 8 months, and so the resident’s solicitor made a stage 1 complaint on 16 February 2023 about a lack of communication and unreasonable delay. The landlord responded on 16 March 2023 and apologised for the delay. It explained it was unable to accept the requested amendments to the deed, but that the assignment could progress if the original terms were accepted. On 20 March 2023 the resident’s solicitor raised a stage 2 complaint about how the landlord had handled the assignment.
  5. On 18 May 2023 the landlord provided its stage 2 response. It explained it had not been clear enough about the process with the resident and that this had contributed to delays. It also explained a cyber–attack had played a contributory role in the delay. It apologised for this and invited the resident to proceed with the assignment but stressed this had to be within its own “parameters”. It offered the resident £250 for inconvenience caused by the delay. The resident did not feel this suitably addressed the continued delays so brought her complaint to the Ombudsman in June 2023.
  6. On 29 February 2024 the landlord wrote to the resident to advise it had reviewed its stage 2 response. It explained that having done so it was unable to grant the assignment of her tenancy to her daughter because doing so would circumnavigate the Housing Register. It apologised for providing contradictory information over a sustained period, and for a systemic failure in its management of the process. It offered her £750 compensation.
  7. On 15 March 2024 the resident’s solicitor wrote to the landlord and rejected the compensation and its justification for not allowing the assignment. They explained that the resident has a contractual right to assign the tenancy to her daughter, and that the landlord needs to allow this to resolve her complaint. The resident would like us to order the landlord to do so, offer further compensation for distress and inconvenience, and reimburse her legal fees.

Assessment and findings

Jurisdiction

  1. This Service has been provided with correspondence related to the landlord’s handling of the assignment request from August 2021 to March 2024. Under paragraph 42.b of the Housing Ombudsman Scheme, we may not consider complaints that were not brought to our attention normally more than 12 months after they exhausted the landlord’s complaints procedure.
  2. The resident complained in October 2021 about delays in progressing the assignment. The landlord compensated her for this, and she accepted this as resolution. She then complained again in January 2022 about continued delays, and the landlord changed its position and told her it could not permit the assignment. She appealed this soon after, but the landlord did not respond until it upheld the appeal in May 2022. She did not pursue another complaint with the landlord from this point until she raised a stage 1 complaint in February 2023 and stage 2 in March 2023 about continued delays. The resident brought her complaint to us in June 2023.
  3. The events from August to November 2021 were brought to our attention 19 months after the resident had exhausted the landlord’s complaint process, which is 7 months beyond the timescale outlined in 42.b. For this reason, we will not consider events from this period as part of this investigation.
  4. The events from January 2022 to May 2022 were also brought to our attention beyond the timescale outlined in 42.b, by 1 month. However, we note that in May 2022 the landlord had given the resident reason to believe the assignment would be progressed. Therefore, it was reasonable for the resident to continue engaging with the landlord rather than bringing her complaint to us at this stage. It appears she decided to contact us in June 2023 only once the further complaints she made in 2023 had failed to progress things. Also, the events from this period were brought to our attention only slightly beyond our timescale. With these considerations in mind, we have decided to exercise our discretion and consider events from January 2022 as part of this investigation.

How the landlord handled the resident’s request to assign her tenancy to her daughter

  1. The resident’s tenancy agreement states assignment is permitted if it is to a person who would be entitled to succeed the tenancy on the death of the tenant.
  2. The landlord’s policy on succession sets out that, for secure tenancies granted before 1 April 2012:
    1. There can only be 1 statutory succession to either a surviving spouse, civil partner or partner, or a member of the deceased tenant’s family. The definition of spouse in this context includes persons who have been living together as husband and wife or civil partners.
    2. The potential successor must, at the time of death of the tenant have been occupying the property as their only or principal home. In the case of anyone other than a spouse/civil partner/partner it is also necessary for them to show that they have been residing with the late tenant throughout the 12 months prior to their death.
  3. The landlord’s policy on assignment sets out that:
    1. Assignment of tenancy where the existing tenants are still alive can only be to someone who would otherwise be entitled, in the event of the current tenant’s death, to succeed the tenancy.
    2. It will not allow changes of tenancy involving a parent and adult child unless the tenancy agreement sets out a right to assign to a family member and the relative meets the succession conditions.
  4. The resident complained to the landlord on 31 January 2022 about the time it was taking to progress her tenancy assignment but was advised by the landlord on 16 February 2022 that it could not permit this. It said this was because it had managed the resident’s request through its “Live Successor” process. It explained this process is set up to “facilitate requests whereby the person who would be leaving the tenancy is no longer able to successfully maintain a tenancy themselves”.
  5. The landlord’s decision on whether to permit the assignment should have been made with specific regard to the provisions of the resident’s tenancy agreement and the conditions on assignment set out in the landlord’s policies. There is nothing we can see in the landlord’s policies which outlines the “Live Successor” process it referred to in its 16 February 2022 letter, and we cannot see any reason why it opted to use this process instead of its own established assignment process. Therefore, we consider this decision was not suitably justified.
  6. The resident appealed a week after this decision on the basis that she was entitled to assign the tenancy to her daughter because her daughter would qualify as her successor in the event of her death. The landlord’s assignment policy states it will consider any appeals within 15 working days, however, it failed to address this appeal for 3 months. It also failed to update the resident at any stage while she waited on a response. We consider it likely that the delayed response and lack of updates during this period caused the resident distress.
  7. We have seen internal records from 7 May 2022 which show the landlord decided the 16 February 2022 decision was incorrect because it had been based on a mistaken assumption that the resident’s tenancy started in 2018, rather than 1980. The landlord’s records indicate it upheld the appeal and told the resident that it would allow the assignment. Beyond this, we have not seen any evidence of how this was communicated with the resident, or the reasons the landlord gave her for why it had decided the original decision was incorrect. Therefore, there is a lack of a meaningful audit trail for why the original decision was changed, or for how the May 2022 decision was reached. This does not persuade us that the landlord reached the new decision with due regard for the relevant policies, or the provisions of the tenancy agreement.
  8. Following the decision to permit the assignment, the landlord attempted to call the resident on 19 May 2022 who advised she wanted to speak to her solicitor first. It called again on 31 May 2022 and left a voicemail. We can see the landlord then emailed her solicitor on 8 June 2022 to advise it had prepared relevant documentation to sign but that it needed her to provide “a date that these documents are going to be signed” before it could send them. The landlord then sent a draft deed of assignment to her solicitor on 20 June 2022.
  9. The solicitor responded on 23 June 2022 with some amendments it wanted the landlord to make to the deed before the resident signed it. From this point until December 2022 the solicitor chased the landlord for a response once per month by email and phone. Aside from attempting to call the solicitor on 17 October 2022, there is no evidence of any engagement from the landlord until 21 December 2022, when it asked for the amendments to be sent again because the original document had been lost in a cyber-attack. The solicitor provided the documents on the same day.
  10. We recognise the landlord suffered a significant cyber-attack in June 2022 and that this meant it likely lost lots of its records. Therefore, it would not be reasonable to take the view that the loss of the proposed amendments document necessarily amounts to a failure. However, we do not accept that the cyber-attack prevented the landlord from requesting the documents again for the next 5 months, or at least communicating with the solicitor to explain the situation. We consider this lack of engagement was unreasonable and contributed to the ongoing delays which likely caused the resident further distress.
  11. There was then no further communication from the landlord after the 21 December 2022 email, so the solicitor chased it again on 1 February 2023, and then complained on 16 February 2023. The landlord responded on 16 March 2023 and apologised for the poor communication and delay. It said that the “open process was automatically closed after our system was restored”. This appears to be in reference to when its systems were restored following the cyber-attack. While we accept the landlord’s account, we do not consider that this reasonably explains why it failed to communicate with the solicitor for 3 months, especially since they sent a chaser email on 1 February 2023. This continued delay and lack of engagement again likely further distressed the resident.
  12. In its 16 March 2023 response, the landlord also advised it could not make the requested amendments, however, the explanation it gave does not provide much meaningful insight as to the reasons for this. It assured the resident that once the tenancy had been assigned, her daughter’s name and details would be on the system under the resident’s tenancy as it is a “lifetime secure tenancy”. It explained that, once the resident agreed the original terms of the deed of assignment, the “succession” would be granted.
  13. Given the landlord has an established assignment policy, and the resident had been consistently explicit that she wanted to assign the tenancy, it is unclear why the landlord referred to the “succession”. This further persuades the Ombudsman that the landlord was by this stage still failing to handle the process with due regard to the relevant policies or the provisions set out in the resident’s tenancy agreement. We also consider it likely that this confusion on the landlord’s part played a contributory role in the delay.
  14. The solicitor replied to the stage 1 response on 20 March 2023 and complained the landlord had not suitably explained the delay and incorrectly referred to the requested assignment as “succession”. They then emailed it again on 30 March 2023 to say the resident would, as a means of completing the assignment as soon as possible, accept all the landlord’s original terms set out in the draft deed of assignment.
  15. The landlord acknowledged these emails on 13 April 2023, and on 26 April 2023 it advised it would respond no later than 26 May 2023. It provided its stage 2 response on 18 May 2023. It is our understanding that the landlord’s complaint policy obligated it to provide stage 2 responses within 40 working days following the cyber-attack. It met these obligations within this instance, and it took positive steps to mitigate the impact of this delayed response by updating the resident about likely timescales.
  16. The stage 2 response explained that, while the process is legally termed assignment, the landlord uses the terminology “live successor”. It advised it had no legal obligation to permit assignments, but that this “live successor” policy allows the tenancy to be assigned when tenants are in end-of-life care or a nursing home prior to their death. The landlord invited the resident to proceed with the assignment but stressed that this had to be “under our parameters”. This appears to have been in reference to the previously proposed amendments. However, it is unclear why the landlord had emphasised this given the resident had agreed to drop all proposed amendments on 30 March 2023, and it had explicitly acknowledged this email. The landlord went on to say that it should have been clearer on the distinction between “live successor” and assignment, and that this lack of clarity contributed to the delays. It apologised for this and explained that the cyber-attack had also contributed to the delay.
  17. As per our assessment of the 16 February 2022 decision, it is unclear why the landlord was again apparently handling the resident’s assignment request under its “live successor policy”, given it had an assignment policy. It is also unclear what exactly the landlord meant when it said that failing to explain the distinction between “live successor” and assignment had contributed to delays. In any case, it should have been managing the process in line with its own assignment policy, and so its failure to do so is not a suitable explanation for the delay.
  18. After the stage 2 response, we have seen no evidence of any further contact between the resident (or her solicitor) and the landlord for the following 9 months. The landlord then wrote to the resident on 24 February 2024 and advised her it would not grant the assignment at all, because doing so would amount to “circumnavigation of the local housing register”. It said it must ensure housing is allocated fairly and consistently, and that allowing the assignment would contradict this. It said it would be unfair to allocate the tenancy to someone who had not been through the local authority register and waiting list. The resident’s solicitor replied on 15 March 2024 and rejected this, explaining that the resident’s tenancy agreement permits her to assign the property to her daughter.
  19. The resident’s tenancy agreement permits her to assign the tenancy to a person who would be entitled to succeed the tenancy in the case of her death. The landlord’s policies on assignment echoes this, and the resident has been consistently explicit with the landlord that she considers her daughter meets the conditions set out in its succession policy. Therefore, as we have explained above, any decision the landlord makes on whether she is permitted to assign the tenancy should consider whether the conditions set out in its policies are met.
  20. The explanation the landlord has given for rejecting the assignment makes no reference to any of these conditions. This explanation is also not noted as a relevant consideration in either its assignment or succession policy. Therefore, the Ombudsman does not consider this most recent decision was made with due regard to the relevant policies or the provisions outlined in the tenancy agreement. For this reason, we will order the landlord to reconsider the assignment request with specific regard to these.
  21. It is also important to recognise that the resident waited from May 2023 until February 2024 for her assignment request to progress. She had also been given the impression by the landlord in May 2023 that the assignment would be allowed, and so the February 2024 letter must have been an unpleasant surprise. Ultimately, from January 2022 to February 2024 the landlord changed its position on the assignment on 3 separate occasions, and we do not consider any of these decisions were suitably justified. The repeated changing of its position likely caused the resident distress and confusion across the entire period. This distress was likely then further exacerbated by the repeated instances of delay and lack of communication. For this reason, we will order compensation to address this cumulative impact.

Compensation

  1. The landlord’s compensation policy states that payments of £700 and above are offered in recognition of failure that has had a severe long-term impact on the complainant. The Ombudsman’s guidance on compensation payments sets out that payments between £600 and £1,000 are typically suitable to redress a failure which has had a significant impact on the resident.
  2. We consider the resident was likely caused significant distress from January 2022 to February 2024 by the delays, poor communication, and unsuitably justified changes in the landlord’s position. Therefore, we will order the landlord pays the resident £1,000 compensation to remedy this. This figure takes into account the long-term nature of the impact and the fact that the resident is still waiting for the issue to be resolved over 2 and a half years after the initial complaint.
  3. The resident also wants the Ombudsman to order the landlord to reimburse her legal fees. While we recognise the resident felt this was the best way to progress things, it was ultimately her decision to enlist paid legal support. The Ombudsman provides a free service, and the resident was free to contact this service at any stage between January 2022 and February 2024 as a way to seek resolution. Therefore, we cannot reasonably take the view that the identified failings gave her no choice but to take legal action. For this reason, we will not order the landlord to reimburse these fees.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in how the landlord handled the resident’s request to assign her tenancy to her daughter.

Orders

  1. The landlord is to apologise to the resident for the failings identified in this report.
  2. The landlord is to reconsider the resident’s request to assign her tenancy to her daughter with specific regard for:
    1. the provisions set out at paragraph 3.32 of her tenancy agreement.
    2. the conditions set out in the landlord’s assignment and succession policies.
  3. The landlord is to write to the resident and explain its decision on the assignment with specific reference to the above.
  4. The landlord to pay the resident £1,000 in compensation for its poor handling of the assignment request from January 2022 to February 2024. This is inclusive of any compensation it has offered so far.
  5. The landlord should provide the Ombudsman with evidence of compliance with the above orders within 4 weeks from the date of this report.