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LondonlawyerJ
LondonlawyerJ, Advocate
Category: Law
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Experience:  Solicitor with over 15 years experience.
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Help....urgent advice needed re mothers council tenancy

Resolved Question:

Hi. Urgent advice needed.i have been my mums carer for the few years and have been living with her since April 2014 in her council flat. My mum has advanced Alzheimers Disease and no longer has the capacity to make any any major decisions. I had begun the process of applying to the court of protection in order to be added to the tenancy. However the beginning of last week my mum was admitted to hospital with severe confusion. The hospital are recommending my mum is placed into permanent residential care. At the beginning of May I provided the council with evidence that I have been living in the property since April 2014. I have been told by a friend that if my mum goes into a care home the council will serve me with a notice to quit. Are the council obliged to rehouse me in a one bedroom property? Everything is going wrong and my job is on the line as a result of my role as a carer so I am very scared right now
Submitted: 1 year ago.
Category: Law
Expert:  LondonlawyerJ replied 1 year ago.
Hello, I am a solicitor with 20 years experience I will try to answer this for you.
The council will not necessarily have to rehouse you but your mother may well be able to assign (ie transfer) her tenancy to you. Generally this is not possible for secure tenancies but you as a potential successor tot he tenancy on death are in a category where it is allowed. This would usually require her to transfer her tenancy to you by a deed. Has she go the mental capacity to do this?
In terms of serving a notice when your mother enters a care home the council would need to be sure that she has truly left with no prospect of a return at come point.
Customer: replied 1 year ago.
Hi
My mother has no capacity to make any decisions. I understand I need to apply to the court of protection but the council have taken around Two and a half months to tell me that this is what I need to do in order to become a joint tenant. I have the forms to apply to the court of protection but understand this could take a further three months. I am keen to get this done as soon as possible in order to be able to move me and my mum to a smaller Single level property where there are no stairs reducing the risk of falling.
Expert:  LondonlawyerJ replied 1 year ago.
OK it sounds like you have a very good idea of what you want to do. You intend from the sound of it to want to care for he at home, but want a more suitable home. Is this contrary to the medical advice you refer to above?
Is your plan to become a joint tenant and then apply for a transfer?
If the council were to try to gain possession of the tenancy you might well be able to defend the claim.
I am a little unclear what you want to know from me. Please let me know what your specific questions are.
Customer: replied 1 year ago.
I am basically asking, if it gets to a point my mum has to go to a care home before getting a single level flat (hoping that won't be the case for quite some time, if at all), will I be made homeless if this happens before the tenancy is assigned? The council took 10-11 weeks from me sending in the change of circumstance form to them telling me I need to get POA or COP in order to assign.
Expert:  LondonlawyerJ replied 1 year ago.
There would be a risk of that I am afraid if your mother could be argued to have abandoned the flat before it was assigned to you.
Customer: replied 1 year ago.
So I could not argue that their slowness at giving me the necessary advice has stalled everything else?
Expert:  LondonlawyerJ replied 1 year ago.
I think the position would be that if the tenancy has ceased to exist following it ceasing to be your mother's home then they would be able to get the property back.
It might be that you would have an argument on public law grounds that it would be unreasonable, virtually an abuse of power for the council to do so, but arguments like these are difficult, hard to predict and can be expensive to bring.
So you need to get the assignment done before the council can argue the tenancy no longer exists.
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