London Borough of Wandsworth (18 018 642)

Category : Housing > Council house sales and leaseholders

Decision : Upheld

Decision date : 29 Oct 2019

The Ombudsman's final decision:

Summary: Miss D complained about the Council’s handling of her Right to Buy application between September 2018 and March 2019. The Council was at fault. Its poor internal communication led to the Council wrongly serving Miss D and her brother Mr E with a notice to quit the property and threaten them with eviction. It then obtained incorrect legal advice from its solicitors which caused it to incorrectly withdraw the Right to Buy application. The Council agreed to pay Miss D and Mr E a total of £500 to recognise the distress, uncertainty and time and trouble the faults caused them.

The complaint

  1. Miss D complained about the Council’s handling of her Right to Buy (RTB) application. Miss D said the Council withdrew and cancelled the application unnecessarily and threatened her with eviction. Miss D said the Council took six months to accept the application which caused her distress, uncertainty and time and trouble.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I spoke to Miss D about her complaint.
  2. I considered the Council’s response to my enquiry letter.
  3. I considered the Housing Act 1985.
  4. Miss X and the Council had an opportunity to comment on my draft decision. I considered the comments before I made my final decision.

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What I found

Secure council tenancies and succession

  1. Most council tenants are secure tenants. A secure tenancy is a lifetime tenancy.
  2. The right for someone to inherit a tenancy when the tenant dies is called succession. A tenancy can only be inherited once. When a tenant dies, and that tenant was a successor then the tenancy cannot be succeeded again.
  3. The council can take action to evict someone if they continue to live in the property after the tenant’s death and they don’t have the right to inherit the tenancy.

Right to Buy scheme

  1. The Right to Buy (RTB) scheme refers to rights granted under the Housing Act 1985 to tenants of social landlords including councils to buy their home at a discount provided they meet the criteria.
  2. The Housing Act says eligible tenants for RTB scheme are those who:
    • have rented the property for three years (as a secure tenant) in a row or for a period amounting to three years;
    • have lived in the house as his/her only or main home; and
    • lived in a home which is self-contained and is not specially adapted for disabled or elderly residents.
  3. Joint applications for the RTB scheme can be made by someone who shares the tenancy or up to three family members who have lived with the tenant for the past 12 months.
  4. A tenant has the right to share the RTB with up to three non-tenants who are members of his/her family as long as they live in the property as their only or principal home and are either:
    • the tenant’s spouse, or
    • a member of the family who has lived in the property with the tenant for the 12 months prior to the application.
  5. Members of the family who are to be included in the RTB application must be stated on the tenant’s notice claiming the right. Once they have been included, they are treated as if they are joint tenants for the purposes of the RTB. This means that a non-tenant member of the tenant’s family could continue to exercise the right to buy even after the tenant had died, and even though they have no right to succeed the tenancy because one succession had already taken place.

What happened

  1. Miss D and her brother Mr E lived with their mother Mrs F in a Council owned property (the property). Their father Mr G was the secure tenant which he signed in 1995. In 2002, Mr G died, therefore the tenancy succeeded to Mrs F and she became the sole tenant. Miss D and Mr E continued to live in the property.
  2. In March 2018, Mrs F, Miss D and Mr E made a joint application to the Council to exercise the RTB on the property. The Council accepted the application. In August 2018, Mrs F died before the completion of the RTB process.
  3. Miss D said she had trouble clarifying the RTB process following her mother’s death so therefore asked her local councillor to write on her behalf. The councillor asked the Council whether it was still possible for Miss D and Mr E to continue with their RTB application.
  4. The records show a Council’s estate manager who had oversight of the property sent an internal response to the home ownership team following the councillor’s email. They said as Miss D’s mother had already succeeded the tenancy following Mr G’s death, there was no further right for Miss D to succeed the tenancy. The estate manager said that the Council would need to withdraw Miss D and Mr E’s RTB application and that they would need to apply for a discretionary tenancy to remain at the property for a short period. The manager said Miss D and Mr E may need to downsize as the property was too large for their needs.
  5. The Council sought legal advice on the matter. The Council’s solicitors said Miss D and Mr E were entitled to continue with their RTB application as the process had begun before their mother’s death. Miss D and Mr E were therefore considered as joint tenants, even though they were not able to succeed the tenancy. There is no evidence that the Council communicated the legal advice to the estate manager.
  6. Miss D received a final offer letter for the property following a revised valuation which she accepted in October 2018. Miss D said she instructed her solicitors to complete the purchase of the property and they sent the relevant paperwork to the Council’s RTB team.
  7. During October 2018, the estate manager served Miss D with a notice to quit the property. The notice said that following her death, Mrs F’s tenancy had ended. The notice said the Council considered the property was too large for Miss D and Mr E’s needs and said therefore it would make them an offer of a small property.
  8. In November 2018, the Council’s RTB team sent the relevant documents to Miss D’s solicitors to proceed with their application to buy the property.
  9. The estate manager wrote to Miss D again in December 2018 to inform her that the notice to quit had expired and that she and her brother were now unauthorised occupants of the property. The letter said it would not commence legal proceedings because the Council had a ‘one offer policy’ on properties. This meant it would only start legal proceedings to evict Miss D and Mr E should they refuse any offer of a suitable alternative property.
  10. In January 2019 the Council called Miss D and said it had found a new property for her and Mr E to move into. Miss D declined the new property and said she was in the final stages of completing the purchase of the property under the RTB scheme. The Council told Miss D it would refer the matter back to its legal team.
  11. Records show the estate manager asked the RTB team to withdraw Miss D’s application with immediate effect. They said the property had already succeeded from Mr G to Mrs F and therefore the tenancy had ended and could not succeed to Miss D and Mr E. The Council decided to seek further advice from its solicitors on the matter.
  12. The records show the solicitor responded to the Council’s request for advice and said it was their view that Miss D and Mr E were not entitled to succeed the property and therefore did not have the RTB. The Council sent Miss D a letter confirming it had withdrawn her RTB application.
  13. Miss D complained to the Council. She complained the Council’s decision to withdraw the RTB application was flawed and unjustified. Miss D said the Council had already sought legal advice in September 2018 and had allowed the RTB to continue. She said the RTB process was almost complete before the Council withdrew it. Miss D said the matter had caused her and Mr E distress and anxiety.
  14. Following Miss D’s complaint, the Council asked its solicitors for confirmation of their previous advice that Miss D was not entitled to use the RTB scheme. The solicitors reiterated their previous advice and said there was no further right of succession at the property.
  15. In February 2018 Miss D’s local councillor and her MP enquired about the matter again with the Council. Following this correspondence, the Council decided to refer the matter back to the solicitors to fully consider the matter. The solicitors gave their advice in March 2018. They said that as the RTB application included Miss D and Mr E, then they were deemed to be joint tenants and were able to continue the RTB application following Mrs F’s death. The solicitor said the Council’s estate manager had made a mistake and the notice to quit they served was invalid.
  16. On receipt of that legal advice the Council reinstated Miss D’s RTB application and cancelled the offer of the alternative property. The Council wrote to Miss D with its complaint response at the end of March 2019. The Council said it received incorrect legal advice about how it should proceed with Miss D’s RTB application. That led to the Council incorrectly withdrawing the RTB application. The Council said Miss D had already received confirmation that the RTB application would proceed.
  17. Miss D was unhappy with the Council’s response and escalated it to the next stage. The Council responded in April 2019. The Council apologised for the errors it made with her RTB application. It said it was updating its procedures to ensure the error was not repeated.
  18. Miss D remained unhappy and complained to the Ombudsman.

My findings

  1. The Housing Act allows members of the family other than the secure tenant to share the RTB application. Where the RTB application includes other family members, they are for that purpose treated as joint tenants, regardless of whether there was more than one succession of tenancy in the past. Mrs F’s RTB application in March 2018 included Miss D and Mr E. Following Mrs F’s death, the Council’s solicitors told it that as the RTB application was already established then it should proceed. The Council’s RTB team continued to process the RTB application but it did not adequately communicate it to the estate manager. The poor communication led to the estate manager incorrectly serving Miss D with a notice to quit. Therefore, the Council was at fault.
  2. The Council’s RTB team continued to process Miss D’s RTB application, however its estate manager continued to progress the notice to quit. The confusion led to the Council obtaining further legal advice on the matter in January 2019 when Miss D refused the offer of an alternative property. The Council’s solicitors gave incorrect legal advice which led to the Council withdrawing Miss D’s RTB application. It was not until Miss D formally complained and her local councillor and MP made enquiries with the Council that it sought further legal advice which clarified the matter. The solicitor who gave the incorrect legal advice was acting on behalf of the Council; therefore, the Council was at fault.

Injustice to Miss D and Mr E

  1. The Council’s faults caused injustice not just to Miss D but also to Mr E who was the joint tenant for the purposes of the RTB application. The Council’s poor communication and incorrect legal advice caused it to threaten Miss D and Mr E with eviction from the property at a time when they were still grieving for their mother. The Council’s faults caused Miss D and Mr E distress and uncertainty between September 2018 and March 2019. If it were not for the tenacity and time and trouble Miss D put into pursuing the matter, it is highly likely Miss D and Mr E would now be living in an alternative property and would have been denied their right to buy the property.
  2. The Council has already apologised for its faults in its complaint response and it has carried out a procedure change to ensure a similar error does not occur again. However, I have recommended a further remedy below to acknowledge the injustice to Miss D and Mr E as outlined above.

Agreed action

  1. The Council agreed within one month of the final decision to:
    • pay Miss D £300 to acknowledge the distress, uncertainty and time and trouble caused to her by the Council’s faults.
    • pay Mr E £200 to acknowledge the distress and uncertainty caused to him by the Council’s faults.

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Final decision

  1. I have completed my investigation. The Council was at fault and agreed to my recommendations to remedy the injustice caused by those faults.

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Investigator's decision on behalf of the Ombudsman

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