Summary: Mrs X complains, on behalf of Miss Y, that the Council wrongly required Miss Y to clear rent arrears for temporary accommodation before it would let her bid for social housing. We have discontinued the investigation because the dispute about whether Miss Y was a joint tenant of the temporary accommodation, and therefore jointly and severally liable for the rent arrears, is a matter for the courts to decide.

The complaint

1. Mrs X made this complaint on behalf of her step-daughter, whom I shall call Miss Y, with her consent. She complains that the Council wrongly required Miss Y to clear £2,752 rent arrears before it would accept her Housing Register application and let her bid for social housing on the Manchester Moves choice-based lettings scheme.
2. Mrs X says her husband took out a loan to clear the rent arrears. He only did this because officers had told Miss Y that she and her partner were joint tenants. This made Miss Y jointly and severally liable for the rent arrears. When Mr & Mrs later obtained a copy of the tenancy agreement, they noticed Miss Y had not signed it. They then complained the Council had misled them about Miss Y’s status as a joint tenant and her liability for the arrears.
3. Mr X is still repaying the loan. Mrs X says this has caused financial hardship and she wants the Council to reimburse them.

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The Ombudsman’s role and powers

4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
5. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

6. During the investigation I have:
• discussed the complaint with Mrs X and considered all the information she provided;
• considered the relevant sections of the Council’s housing allocations policy;
• considered the Council’s comments and relevant documents from the housing records;
• read the non-secure tenancy agreement for the temporary accommodation;
• considered legal advice.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The housing allocations policy

8. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing.  All allocations must be made in strict accordance with the published scheme.  (Housing Act 1996, section 166A(1) & (14))
9. Manchester City Council’s housing allocations policy explains who qualifies to join the Housing Register and the impact of any housing-related debt.
10. It says an applicant who is unsuitable to be a tenant due to their behaviour, or the behaviour of a member of their household, does not qualify. Such behaviour can include owing significant rent arrears over £1000, and/or failing to comply with a current or past tenancy agreement with a Council, registered provider of social housing or a private landlord.
11. The Council may disapply this provision, with approval from the Head of Homelessness, for an applicant owed a statutory homelessness duty by the Council. However the debt is not written off and the applicant is expected to repay it at the earliest possible opportunity.
12. Applicants who qualify to join the Housing Register can bid for social housing advertised on the Manchester Moves choice-based lettings scheme.

What happened

13. Before they became homeless, Miss Y and her partner, who I shall refer to as Mr A, were joint tenants in private rented accommodation. Miss Y made two applications in 2017 to join the Council’s Housing Register. She included Mr A as her partner. The Council decided they did not qualify to join the Register because Mr A had significant rent arrears from a former tenancy.
14. Miss Y and Mr A built up significant rent arrears on their private rented accommodation. The Court made an order for possession in November 2017. Mr A made a homelessness application to the Council in mid-November.
15. After making inquiries, the Council decided it owed Mr A and his family the main housing duty because they were homeless, in priority need and not intentionally homeless. After a brief stay in a bed and breakfast hotel, the Council arranged for the family to move to self-contained temporary accommodation in early December 2017.
16. Mr A signed the non-secure tenancy agreement for the temporary accommodation at the Council’s office on 1 December 2017. Miss Y was not present so she did not sign the agreement. The agreement names Mr A as the tenant: Miss Y’s name appears further down the page.
17. The tenancy started on the same day. The weekly rent was £202.68. The Council issued a “proof of rent liability” document to support a claim for Housing Benefit. It says Mr A was liable to pay the rent and does not refer to Miss Y.
18. The Council says a Housing Benefit claim was made on 1 December. Although it did not say who made the claim, it seems likely Mr A was the claimant because only he was present on that day.
19. The Council awarded Housing Benefit which was credited to the rent account. There were some breaks in the Housing Benefit claim and the account went into arrears. Mrs X says Miss Y, who worked, gave Mr A money to pay the rent but, without her knowledge, he spent it on other things. Over time the arrears increased to £2,752. Later in 2018 Miss Y applied for a Discretionary Housing Payment, on the advice of the housing support worker, to reduce the rent arrears.
20. Mr A moved out in July 2019. Miss Y and her children remained in the temporary accommodation. In mid-July 2019 Miss Y applied to Manchester Moves for housing for herself and her children (not Mr A). In late August she signed a non-secure tenancy agreement for the temporary accommodation as a sole tenant.
21. Miss Y’s housing support worker told Miss Y she could not bid for properties on Manchester Moves while there were arrears on the temporary accommodation account. Mrs X says it would have taken Miss Y several years to repay the arrears. So her husband took out a loan in September 2019 to clear the debt. He only did so on the understanding that Miss Y was a joint tenant when the rent arrears arose and she was therefore jointly and severally liable for them.
22. After the arrears were cleared, the Council accepted Miss Y’s application to join the Housing Register. She was able to start bidding on Manchester Moves from early September.
23. Mr & Mrs X later obtained a copy of the non-secure tenancy agreement from December 2017. They noticed Miss Y had not signed it. Mrs X says this means Miss Y was not a joint tenant. She says the Council had misled them when it said Miss Y was jointly liable for the rent arrears. Her husband complained to the Council in December 2019 about this (and other matters which are not part of this investigation).
24. The Council considered the complaint at both stages of its complaints procedure. In the Stage One reply it said:

“As a result of non-payment of rent, arrears were accrued which go against both [Miss Y] and [Mr A] as the property is a joint tenancy, Miss Y and Mr A registered as a couple and there would have been an expectation that they both would have been acting on behalf of the whole family.

• At Stage Two it said:

To be eligible to bid for houses as a family group on Manchester Move rent arrears would need to be cleared. Therefore the information provided by the Council in relation to arrears and being live on Manchester Move was correct. How the arrears are cleared is a private matter and not the responsibility of the Council.

• In February 2020, an officer in the Council’s Feedback and Complaints team reviewed the Stage Two reply. She sent an email to Mrs X stating that it had never been the Council's position that Miss Y was responsible for the arrears because they were in [Mr A’s] name. She said the Council’s position was that if [Miss Y] wished to move to a property as a family group, the arrears had to be cleared first.
   
2. Mrs X has made the point that Mr A was not included as a member of the family group when Miss Y made the Manchester Moves application in July 2019. They had separated by then and she did not include him in her family group on the application. She says the Council is therefore wrong to argue that Miss Y had to clear the rent arrears for this reason.
3. In response to our enquiries, the Council maintained that Miss Y and Mr A were joint tenants.
4. During this investigation, we obtained legal advice on the issues raised in the complaint. The key points are summarised below:
• a non-secure tenancy does not have to be created in writing;
• if a non-secure tenancy is recorded in a written tenancy agreement, that agreement does not have to be signed by all parties;
• the absence of one joint tenant’s signature does not, therefore, necessarily mean that a joint tenancy has not been created;
• whether or not a joint tenancy has been created is not a “black and white” legal question but depends on an assessment of several factors;
• if Miss Y was not a joint tenant then she would have had no liability to pay rent under the non-secure tenancy. Any arrears under that tenancy would not be “owed” by her, nor would they be a “debt” that she owed;
• if Miss Y was not a joint tenant, then the fact that there were rent arrears for the temporary accommodation would not have been a reason under the allocations policy to prevent her from bidding for properties. This is because the two relevant sections in the policy refer to “owing rent arrears” and “tenancy related debt”;
• only the Courts can decide whether or not a joint tenancy was created. This will involve an assessment of several factors and not only the non-secure tenancy agreement.

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Analysis

28. The Council’s rationale for asking Miss Y to pay the arrears has shifted at times. But it now maintains that Miss Y was a joint tenant of the temporary accommodation. Mrs X disputes that because Miss Y did not sign the non-secure tenancy agreement in December 2017.
29. The law relating to the creation of joint tenancies is complex. The fact that Miss Y did not sign the agreement is one factor that must be considered but it does not determine the matter. The Ombudsman does not have the powers of the courts to decide whether or not Miss Y was a joint tenant of the temporary accommodation. For this reason, we cannot say whether she was jointly and severally liable with Mr A for the rent arrears.
30. The question of whether the Council correctly applied the rules in its housing allocations policy turns on whether or not Miss Y was a joint tenant of the temporary accommodation and liable to pay these arrears. So we cannot decide whether the Council correctly applied the provisions in the allocations policy when we are not in a position to determine whether or not she was a joint tenant.

31. I have carefully considered the evidence provided so far and our legal advice. I consider the courts are better placed to resolve this matter. I have taken into account the range of factors that must be considered and the fact that the Ombudsman cannot comment on the merits of decisions made by the Council in the absence of fault.

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Final decision

32. For the reasons given in paragraphs 29 to 31, I have discontinued the investigation.

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Investigator's decision on behalf of the Ombudsman