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Friend passed away - special needs adult daughter and adult son being evicted.

(16 Posts)
ediblewoman Mon 08-Apr-13 16:05:25

I would say that the son and daughter need to speak to Shelter. If the daughter was living at the house for 12 months immediately prior to mum's death (apart from temporary absences, e.g. respite) and the tenancy hadn't previously been assigned or succeeded (i.e. if she had an original joint tenancy and then her partner left/died/ and the tenancy became sole then that would count as a previous succession) then she should be able to succeed with her brother holding the tenancy in trust as she lacks capacity.

To suggest she can't succeed because of her learning disability would, I think, be a breach of the DDA and her article 8 rights.

cumfy Sun 07-Apr-13 18:58:27

I wouldn't give up hope on daughter's succession rights yet.

Here's an example of a council being found guilty of maladministration for failing to recognise succession rights in a similar situation:

Solicitors acting on behalf of Ms Gable
complained that a council failed for a long
period to recognise her right to succeed to
the tenancy of a council property on the
death of her mother.
The circumstances
1. Ms Gable lived with her mother for
25 years in the council house of which
her mother was the tenant. Her mother
died and, at that time, Ms Gable was an
in-patient in a psychiatric hospital. She
was an informal patient who returned
home at weekends.
2. A housing officer decided that
Ms Gable’s residence in hospital affected
her succession rights and that she was
not entitled to succeed to the tenancy.
3. The council took steps to seek possession
of her home and agreed to offer her
alternative accommodation. Ms Gable’s
solicitor disputed the council’s view that
her residence in hospital nullified her
rights to succeed to the tenancy. He
referred to case law in support of his
argument and suggested that the
council should seek its own legal advice.
4. The council’s housing officers did not
seek legal advice. The Ombudsman said
that failure was maladministration.
5. The Ombudsman said it was clear that
officers should have sought appropriate
legal advice about Ms Gable’s right to
succeed to the tenancy of the property
long before the question of arranging a
court hearing for possession.
6. Eventually, more than a year after the
death of Ms Gable’s mother, the council
did seek legal advice.
That confirmed that Ms Gable did have the right to succeed to the tenancy.
In the
meantime, she was caused extreme
distress and uncertainty.
Outcome
7. The council agreed to pay Ms Gable
compensation of £2,000. Also, the
council reviewed its procedures and
introduced liaison arrangements
between local housing teams and the
legal department.
(Report 01/C/3919)

K8Middleton Sun 07-Apr-13 17:00:43

Is the son planning to look after his sister? If not, and she is resident elsewhere then I don't see how the son or the daughter has any right to the property.

If the daughter will be there as her main residence and not just weekends and her brother has guardianship or power of attorney for her then he can apply for the tenancy to be transferred to her and he will act as her agent.

Unless the son gets the legalities and applications processed ASAP and the daughter has permanent residence there then he will not have a case.

digerd Sun 07-Apr-13 16:46:15

The son was living in private rented accommodation but left to live in his late mum's council place after she died.
Could he not be his sister's legal guardian?

Boomboomboomboom Sat 06-Apr-13 19:57:25

just in terms of timing
notice to quit normally 4 weeks to expire
issue possesssion proceedings anything from 1to 8 weeks for first hearing given she is vulnerable they should ask court to list in a reasonable tine frame imo
first hearing listed for 5mins given the seemingly great prospects of defence it should be adjourned for a good while
meanwhile they get to stay in the property

Boomboomboomboom Sat 06-Apr-13 19:51:04

Google shelter or law centre and get some good advice. unless the mother herself succeeded to the tenancy the daughter can still succeed but her tenancy would be held in trust. her brother could be the trustee.

they don't need tp go anywhere and she and him would have a great human rights and public law defence to any possession claim which is required to evict them. if they are under occupying they may get offered a smaller property.

they dont owe rent until mother's tenancy has been ended either by a notice to quit served on the personal representatives and 'public trustee' or the tenancy has been transfered.

seriously get them to shelter or a law centre - this is exactly their type of case

Rockchick1984 Sat 06-Apr-13 16:09:40

Surely though the son is being made involuntary homeless, which means the council have a duty of care to help rehouse him, although in the short term that may mean being in a hostel until a property becomes available? I know it doesn't mean staying in his mum's house but better than being homeless.

Crutchlow35 Sat 06-Apr-13 10:17:56

Get some legal advice and may be contact your local mp? Very sad case.

PartyFops Sat 06-Apr-13 09:13:37

I would get some good legal advice, if she has succession rights then surely it discrimination to not allow her to exercise that right, does anyone have guardianship over her that may be able to take over the tenancy instead?

Maybe try Shelter for advice.

Good luck.

RedHelenB Sat 06-Apr-13 08:40:58

I would contact social services.

Creany172 Fri 05-Apr-13 22:53:53

No the council will not allow her brother to take the tenancy on her behalf. They have told him he will receive a letter from the courts telling him to vacate the property. Ordinarily the daughter would have a succession right, but for her special needs. The whole situation stinks. Just wish there was a way to help him.

PartyFops Fri 05-Apr-13 22:42:37

It may be worth appealing to the council for special consideration. Does the dtr have a succession right? Will the council allow her brother to take the tenancy on her behalf?

Her daughter will fall under the care of SS, who will probably arrange some sort of supported accommodation for her. She will be taken care of. The son will have to fend for himself. I'm sorry for the loss of your friend.

Creany172 Fri 05-Apr-13 22:27:34

No the daughter doesn't have the ability to sign a tenancy agreement. Her mother was her financial guardian. I don't know what is going to happen to either of them. The son is beside himself with worry. His main concern is his sister, but he is now facing being homeless. There doesn't seem to be any help anywhere for him. His mother passed away without any provision for her funeral. He has the responsibility of that and now needs to have finances for deposit on a home.

I've come across this situation in a work capacity before and IIRC, a tenancy can only be passed in once, and only to someone else resident in the house - spouse to spouse, or parent to adult child, for instance. So the son would have no right to stay in the home. What provision was made for the daughter with SN? Does she have the capacity to sign a tenancy agreement, or did she have a welfare or financial guardian? If not, there's not really any chance of the home passing to her.

I'm sorry - that's probably not what you want to hear.

Creany172 Fri 05-Apr-13 22:08:55

My friend was a tenant in a council house where she lived with her adult special needs daughter. Her adult son was living in private rented accommodation at time of death, but due to move back into mothers council house following weekend after death. He has now moved in and council saying he will receive a notice to quit from courts. Special needs daughter has been in respite care since death, but wants to be able to stay with brother on weekends. Where does he stand legally?

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