24 March 2022

A recent tenancy succession case made headlines, where two daughters were told they cannot succeed to a three bedroomed house in Glasgow after their mother died. This is a difficult scenario for many housing associations who have to balance their policy, succession law and the wishes of a grieving family.

In this particular case, press statements tell us:

• Both daughters moved out of the property in order to further their education.  Their mother, who was the tenant of the property, properly intimated a change in circumstances to the Association landlord when they moved out.
• When the mother was diagnosed with cancer in November 2021, the daughters moved back into the property to look after her.  Given that they had only returned to the property for approximately three months before their mother died, this is where the difficulty lies. The current rules require that they were living there for 12 months to inherit the tenancy upon their mother’s death.
• Before 2019, the daughters may have been entitled to inherit the tenancy because the rules about succession were different.

How can Association landlords avoid being subject to headline-grabbing news while being sensitive to what is a difficult time for all concerned?

When the law changed in 2019, all tenants would have been sent a letter letting them know that anyone who hoped to inherit the tenancy needed to have been there for 12 months and the Association would need to know they were there. The further we get from this change, the more likely that tenants, and particularly longer-standing tenants (whose tenancies began before the change in the rules), might not remember the changes. Therefore, Registered Social Landlords (RSLs) could:

• Consider sending leaflets to all tenants to remind them of the rules, or include that information in newsletters.
• Consider applicants’ circumstances on a case-by-case basis.  An RSL’s board or committee of management may, in terms of their Allocations Policy and/or Succession Policy, exercise discretion in exceptional circumstances.
• RSLs should review their Succession Policy and consider what exceptional circumstances might give rise to a departure from the rule that a succession should not be granted without being notified that the applicant was living there for 12 months, or where they have not been told that the person was living there. Or, it may be that an allocation can be made for a new tenancy, rather than a succession to the previous one under the Allocations Policy.
• It should be acknowledged that all cases of succession follow the death of a tenant, so bereavement cannot be a reason, in itself, for a departure from the rules. If exercising discretion, applicants should have an exceptional level of need, which exceeds that of others who might otherwise be allocated the house, or are so extreme or unusual that the policy cannot adequately assess and prioritise them.
• If a policy is working effectively, RSLs should not need to use their discretion regularly.  If the same extreme or unusual housing needs arise frequently, a wider review of need may prove useful.
• RSLs should keep clear audits of when discretion has been exercised and should be authorised by a team leader or housing manager, as set out in any policy.
• When RSLs receive a Change of Circumstances form it may assist to contact the tenant and discuss their situation. Changing information in relation to the tenancy may have an impact on benefit deductions and other matters, but the tenant may not be aware of other consequences, such as the one demonstrated by the recent case.  

If you require any assistance in relation to your Allocations Policy, please get in touch with Lynsey Wilson or Marion Davis within our Social Housing Team on 0141 221 8012, who would be delighted to assist.

Lynsey Wilson, Senior Solicitor: lwi@bto.co.uk / 0141 221 8012

Marion Davis, Senior Associate: mda@bto.co.uk / 0141 221 8012