Complaint reference 23831 - Complaint handling, Tenancy management

01 Jan 09 | Ombudsman Case Digests

Mr W was a joint tenant with Ms C of a one bedroom flat. When his partner served a Notice to Quit (NtQ) the landlord started legal action to gain possession of the flat. Mr W complained about this decision and its subsequent handling of his complaint. In particular he complained about its refusal to consider his complaint whilst the legal action was continuing.

The landlord’s decision to accept a Notice to Quit from a joint tenant

On 6 July 2007 Ms C served a Notice to Quit on the landlord. As the tenancy was a joint tenancy the tenants were jointly and severally liable; if one tenant served notice, in law both tenants had effectively served notice. The tenancy agreement required four weeks notice, therefore the tenancy ended on 6 August 2007 and the property reverted to the landlord. The landlord had no discretion regarding the ending of the tenancy once the Notice had been served.

Mr W did not vacate the property but he submitted a formal complaint on 15 August 2007. His complaint letter detailed his accidental discovery that Ms C had served an earlier but not received Notice on the landlord and Mr W’s attempts to serve an injunction on Ms C to stop her service of a further Notice. He queried why the landlord had not informed him that Ms C was ending the tenancy and whether this complied with its policies. He also described his personal circumstances, including his health, and requested that the tenancy be transferred to him as a sole tenant. He believed it to be Trust policy to consider such a request in these circumstances.

As a general principle of good practice it was reasonable of Mr W to expect the landlord to inform him of something as significant to his tenancy as a Notice. However the particular circumstances of the serving of a Notice could place different and more overt responsibilities on a landlord, for example when a joint tenant issues a Notice because of domestic violence or when there are issues of confidentiality.

Mr W also queried why the landlord refused to grant him a sole tenancy as he believed its refusal to do so contravened a policy document that details the ending of a joint tenancy – ‘If you are a joint tenant and one of you terminates the tenancy the whole tenancy comes to an end. We do not legally have to allow the other joint tenant to stay in the home but will make a decision based on the individual circumstances’. However the policy was that of the landlord’s parent Group and not the landlord and we identified that the landlord did not have a policy on either the ending of a joint tenancy or on relationship breakdown, either of which may have enabled it to consider Mr W’s individual circumstances, including any possible vulnerability, when considering what to do once the joint tenancy had ended.

In addition Mr W alleged that Ms C had accused him of domestic violence and that the landlord was influenced by the allegations in its actions towards him. Although the landlord denied this, the evidence of the landlord’s letters and file notes was confused and contradictory. As was its information to Mr W that he could defend the repossession action in the County Court. In fact, whilst Mr W could raise a defence, it would be based on technicalities such as if the Notice was correct; the reasonableness of the decision and/or impact of the Notice on Mr W’s housing circumstances could not be raised. There is no defence to the ending of a joint tenancy once a Notice has been served. The subsequent decision of the European Court on this matter in May 2008 was noted but was not applicable at the time. Once the court procedures had been completed Mr W was evicted.

Determination

We found no maladministration regarding the repossession action. Once Ms C had served the Notice to Quit on the landlord it had no discretion in repossessing the property, nor did Mr W have a defence to the repossession. When the Notice expired the flat automatically reverted to the landlord and any court action was a purely a matter of process. The reason Ms C served the Notice was, for the purposes of Mr W’s immediate tenure, irrelevant. It became relevant when Mr W asked the landlord to exercise discretion and grant him a new sole tenancy on the property. Initially the landlord denied that any allegation of domestic violence was relevant and focused on the legal fact of the irreversible impact of the serving of a Notice. As Mr W had informed the landlord of his mental health condition it would have been reasonable of Mr W to expect the landlord at this point to consider this, and any possible consequential vulnerability into account when responding to his request. However, the landlord has confirmed that it did not have either a relationship breakdown or ending of a joint tenancy policy in place and therefore had no appropriate framework to assess Mr W’ circumstances.

It was a matter of concern that two significant policies were not in place. The apparent failure to reference the relevant policies of its parent Group as guidance compounded the situation and resulted in the landlord fettering its discretion in assessing Mr W’s vulnerability. Having such discretion would not have committed the landlord to rehousing Mr W but would have enabled it to consider any wider options. Whilst the landlord’s decision to gain possession was entirely lawful its overall handling of the decision was misleading and confusing.

Handling of Mr W’s complaint

Mr W submitted his original complaint in August 2007, the landlord acknowledged that it had not responded on time, offered him £20 compensation and told him he could make a stage 3 complaint if he was still unhappy.

On 29 September 2007 Mr W asked the landlord to implement stage 3, a complaints panel. As outlined in the complaint leaflet, this must be arranged by the managing director and take place within a month. On 11 October the managing director wrote to Mr W to say he would contact him again once he had confirmation from the panel members and on the same day Mr W was informed that the matter was now being handled by the Housing Services Manager. 4 days later Mr W received another letter from the managing director’s office to say that the Head of Housing Services was arranging the panel and wished to meet Mr W prior to the hearing. However, before the planned meeting the Head of Housing Services informed Mr W that a panel could not be held as it was against the landlord’s complaint policy to progress a complaint when there was ongoing legal action.

Mr W contacted this Service and our original decision was that the complaint was not in the Ombudsman’s jurisdiction (under paragraph 16(e) of the Scheme) as the case was the subject of ongoing legal action. However, once the landlord had gained a possession order we considered that the legal action was effectively concluded and that as Mr W had had no defence or ‘…opportunity to raise the matters complained of…’ the complaint was now within our jurisdiction. We asked the landlord to progress the complaint to a panel. Mr W was aware of the request.

However it remained the view of the landlord, on the advice of its solicitor, that legal action was not concluded until Mr W was evicted and it would not hold a panel. Following further exchanges of correspondence the managing director confirmed to her that a panel was to be convened as soon as possible with the appropriate warning that the panel could not overrule matters that had been decided in a court of law.

Determination

We found maladministration regarding the complaints handling. A complaints procedure is a dispute resolution process and should alleviate, not exacerbate the problem complained of. This was particularly so in a situation such as that Mr W faced when the serving of the Notice would result in the loss of his home. The landlord’s refusal to hold a panel relied on its policy statement regarding legal action as defined by the policy. When he requested a panel hearing the communications from a number of senior officers including two at executive level were contradictory and confusing. The nature of the legal action meant that possession was inevitable and Mr W would not have the opportunity to present his case in court leaving only a panel hearing for a review of the landlord’s actions. By refusing to hold a panel and then delaying it because of legal action when the result of the action was a foregone conclusion the landlord denied itself and Mr W the opportunity to review its actions and make any necessary recommendations.

We made a number orders and recommendations including compensation and the reviews or introduction of the relevant policies. The landlord accepted our findings and informed us that it has agreed and introduced a Joint Tenancy policy and a Relationship Breakdown policy; and reviewed and amended its complaints policy.