ALMO - Notice to quit - is this lawful
02/01/2011 2:13 pm
Re; Secured tenancy - Assignment or Succession
My daughter has been living with my elderly mother for 3 years as her carer. This has been her principal home . However in the last few months my mothers needs have exceeded my daughters capabilities and we have had to take the decision that my mothers needs will be best met in a residential or nursing home. When my Mothers move was imminent we started a dialogue with ..... and was told that as my mother was leaving the property then she would have to write a letter - stating this and my daughter would naturally succeed the tenancy as long as she could provide bonAfide evidence of residency of the property i.e. council tax , social services and GP records. However we have been fed conflicting information which has resulted in my daughter not knowing in her best interest. .... have been less than cooperative in this process and now say this will have to looked at by a panel to decide whether she can stay or not. My mother has written a letter of her wish for her grandaughter to succeed the tenancy (housing act 1985) which has largely been ignored.The housing officer phoned yesterday to say that she will be given a notice to quit and that the fate of the tenancy would be left to the panel. This is my opinion would be an arbitrary decision and not following the proper legislative process. The housing officer also gave my daughter the wrong information saying that my mother could not assign because she was moving into a residential home and that it was a transfer (which is clearly not the case). My daughter has contacted her local counciller who has gained some clarity with regard to it not being a transfer of tenancy but the ALMO is still insisting that she goes through this arbitrary process. i.e. notice to quit - panel decision.
1. Is the social landlord working within a legal framework
2. Would this be considered a succession or assignment
3. Is there anything else my daughter can do to act in her
4. How will she still pay the rent whilst in occupancy
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02/01/2011 5:29 pm
Assuming your mother is a secure tenant and she has not succeeded her tenancy from a previous tenant (i.e. her husband or the tenancy was previously a joint tenancy that became a sole tenancy on a previous death of one of the joint tenants?)
Then your mother can assign her secure tenancy to your own daughter (her grandaughter) as if she had succeeded. Bceuae your own mother is still alive there has been no succession yet - but Housing Act 1985 allows a secure tenant to assign the tenancy to a would-be successor as if the tenat had actually died.
The 'letter' your own mother has written should suffice as evidence in writing of such an assignment. Why this has been ignored suggests that the housing officer and ALMO are not sure of the law!
Consent of local authority or ALMO is not neccesary (so not sure where panel fits into this?) as Housing Act 1985 s.91(3)(c) does not require consent. As a stautory right the local authority/ALMO cannot pretend there is any discretion!
Suggest daughter seek urgent advice form CAB and/or local law centre. Also suggest that tenant continue to pay rent (albeit via grandaughter) to preserve tenancy whilst this confusion is sorted.
04/01/2011 7:44 am
Thank you so much for this clarification. I have now got the local councillor involved in trying to sort out fact from lie. The problem
stemmed from the housing officer telling my daughter that my mother
called not assign the property because she was taking up another tenancy. The head of housing wrote back - saying that there had
been some confusion in the type of accommodation that my mother
was moving to (even though the housing officer was told it was a residental unit and not a tenanted dwelling). The notice to quit was bought posted by hand dated 30th January, although it was bought round on the 31st January. The thing is that the housing officer has not acknowledged the letter from my mother - although e mails have been sent asking why the letter has not been acknowledged
The lletter was witnessed being signed and composed by her official personal carer and a letter was written by her official personal carer to this effect
Thank you again for your much needed advice
personal carer to
04/01/2011 1:49 pm
If your daughter would be significantly under-occupying the property (e.g single person on a 3-bed house) this could be a reason why the Landlord is initially refusing the assignment/succession.
Generally, Landlords would offer more appropriate accommodation, to your daughter, once the NTQ has been served.
04/01/2011 2:18 pm
Cinnamon is right - your daughter should be prepared to move if she is under-occupying, as the ALMO would have the right to refuse to agree to the assignment if she is (I don't agree with your first anonymous poster that the ALMO has no discretion to refuse a request to assign). Your mother should also write formally requesting to assign her tenancy to her grandaughter - she cannot request a succession as this only takes place after death. If she has already moved out this could be problematic!
04/01/2011 3:16 pm
The grand-daughter maybe under-occupying (we don't know this from posting) BUT the law is the law - see my original posting quoting the Housing Act 1985 and the tenant's legally enforceable statutory rights!
Readers might also like to examine any of the recentish Court of Appeal decisions where a family member is left in occupation as a successor following death of tenant to get a feel for the way the higher courts have intrepreted 'reasonableness' and 'suitable alternative accommodation.Bracknell Forest BC-v-Green in March 2009 for example
Of course if grand-daughter is prepared on a purely voluntary basis to ove to a one-bedroom alternative home then no problem.
Suggest readers might also like to read George Monbiot is Guardian 4 January 2011 regarding under-occupation and why is it only an issue in social housing!
07/01/2011 11:09 am
If your mother is being transferred to a residential unit either managed by the landlord or another social housing provider, then your mother will not be entitled to assign the property to your daughter as she is effectively being transferred to another unit of social housing and she cannot assign the former dwelling. If you mother wishes to relocate elsewhere then, in law, provided she is not a successor herself, she can assign the property to a potential successor without requiring the consent of her landlord.
07/01/2011 4:30 pm
Thank you for your reply -
This is where the confusion lies - Enfield Homes manages a sheltered housing provision which also has a residential wing which they do not manage. Even though we told the housing officer that my mother would be moving into the residential wing and therefore not a tenant - he continued to take the line that there would still be a transfer of tenancy (therefore assignment would not be possible)
I have now got the local counciler involved - but we have had the christmas to contend with so communication has been hampered.
Even though my mother had written and signed the letter in the presence of her personal carer before the date she moved - he has taken the stance - that this letter is not authentic.
In simple terms the housing officer has disregarded my daughters statutory rights, choosing to give credence to untruths and follow a arbitrary process which is not contained within a legal framework. He has since served my mother a notice to quit for the 31st January and my daughter has been left in occupation. The panel sits on the 4th February. We have since sent the counciler another correspondence with regard to the lack of reasonableness exercised by Enfield Homes. We are to await this reply and also the decision of the panel.
This is all so terribly wrong - Your views would be appreciated
07/01/2011 5:03 pm
If all of what you say is true then the housing officer's behaviour is very worrying! I would seek independent advice (i.e.CAB or SHELTER) and get this to the housing officer's manager and their manager soon as.
Quite why you should all have to wait until 4 February 2011, which is after the NTQ expires, for any decision is questionable?
IS the behaviour you describe acceptable or professional? Does the housing officer want their behaviour to come before the panel? Does Enfield Homes need a legal challenge and/or the Local Government Ombudsman to investigate?
From what you have revealed thus far, your mother has a strong case and none of you should be trated in this way.
I also believe the councillor should be pushing harder for a quick response and not simply waiting for 4 February.
07/01/2011 5:14 pm
Thank you for your heartfelt response. What you have conveyed reflects our sentiments entirely. My Mother and Daughter have been treated appalingly by the housing officer, and it is hard to believe how unprofessionally this has been dealt with. I think it is time for a legal challenge - if only just to make sure this type of injustice does not happen to other people (who may not be as confident or articulate to kick up a fuss)