Clarion Housing Association Limited (202230637)

REPORT

COMPLAINT 202230637

Clarion Housing Association Limited

3 October 2024

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s handling of the resident’s request:
1. to complete a mutual exchange with his grandmother.
2. to succeed his grandmother’s tenancy.
The Ombudsman has also assessed the landlord’s:
1. complaint handling.
2. record keeping.

Background

The resident is a tenant of the landlord. The landlord has not provided us with the resident’s tenancy agreement that was in place at the time of the complaint. Both the resident and landlord have stated that the resident has been a tenant of the landlord since 2020.
On 14 November 2022 the resident contacted the landlord. Its records show that the landlord told the resident that he was not eligible for a mutual exchange (MEX) because his tenancy was under probation. It was also recorded that the landlord had told the resident that it would contact him once the review process for his tenancy had started.
On 21 December 2022 the resident called the landlord to discuss MEX. The landlord noted that it had given the resident general advice. It also noted that some discussion took place around the resident’s grandmother’s (also a tenant of the landlord’s) tenancy. The records show that the landlord told the resident that he would not qualify to succeed his grandmother’s tenancy, as he was not living with her.
On 28 December 2022 the resident emailed the landlord. He said:
1. he was planning to complete a MEX with his grandmother. However, his grandmother was now receiving end of life care and had become too ill to undertake a move.
2. he had looked at the landlord’s succession policy. It stated that if there was no statutory or contractual right to succeed, the landlord could use its discretion to consider offering a new tenancy to an applicant in exceptional circumstances. He considered that his was an exceptional case.
3. it was his grandmother’s wish that the home remained within the family. She did not have a will but she was willing to talk to the landlord for confirmation.
4. he and his partner were good tenants and would continue to be if the application was successful. He had an emotional connection with his grandmother’s house . She had brought up his father, aunties and uncles in the house. He also lived there when he was first born.
5. he currently lived in a 2 bedroom home with his 4 year old son and had another child on the way. Therefore his current home was too small. His grandmother’s home would be a “perfect size.” His son’s school was also closer to his grandmother’s house.
6. he worked as a prison officer. There was a “halfway house” close to his current home which had caused several issues. He had to complete ‘conflict of interest’ and security forms at work. He had also felt unsafe and had been concerned about the safety of his young family. He asked the landlord to review his application.
On 9 January 2023 the resident contacted the landlord for an update. He said that he had been waiting for a response for over 10 working days. The landlord confirmed that it had received his email. The landlord said that he would receive a response within the next 5-10 working days. It also said that it was still processing the tenancy review, but there was no further update on the matter.
On 16 January 2023 the resident chased the landlord for an update. Records show that the landlord was asked to make contact with the resident in relation to his December 2022 email. There is no evidence that it did so.
On 26 January 2023 the resident called the landlord again. He asked for an update regarding his request to succeed his grandmother’s tenancy. He told the landlord that his grandmother had passed away.
On 26 January 2023 the resident made a complaint. He said:
1. he had contacted the landlord to start the mutual exchange process with his grandmother. He was told that his tenancy needed to be reviewed first and needed to wait until 19 November 2022.
2. he contacted several times after the date and was told that the landlord’s cyber attack had “pushed everything” back 6 months and that his tenancy would be reviewed shortly. This never happened.
3. he was told that he could go down the succession route and was provided with the succession policy.
4. he contacted the landlord again and was told that he was unable to apply for the succession as he had not lived in his grandmother’s home. He explained that the succession policy stated that the landlord had discretion to grant him a tenancy in exceptional circumstances.
5. his grandmother had now passed away. He was told that as she had now passed any mutual exchange or succession could no longer go ahead.
6. he had been given misinformation and was told things would get done, but they did not. He had now missed out an opportunity to move into his grandmother’s home, which had been a family home.
7. he requested that the landlord undertake an “exchange” under exceptional circumstances.
On 3 March 2023 the landlord issued its stage 1 response. It said:
1. on 14 November 2022 the resident called to discuss the MEX process. In that call it had told the resident that he was not eligible for MEX because he was still in his probationary period of his tenancy. He was told that it would contact him once the tenancy review period was completed.
2. it had told the resident on 14 November, 21 and 22 December 2022 that a mutual exchange or a succession would not be possible. This was because the resident was on a probationary period on his tenancy and as he was not living with his grandmother, he was not eligible for succession.
3. it received an email from the resident on 30 December 2022, which was sent to the relevant team to review. The emails that the resident had sent were passed between teams without it responding to the resident. This demonstrated a lack of ownership. This was a failing in the service provided.
4. as the resident’s grandmother had passed away, it was now unable to consider a MEX under exceptional circumstances as there was no intent of physically exchanging properties.
5. it offered the resident £100 in recognition of the “issues” that were involved in his complaint. The breakdown included:
  1. £50 for failure to follow process.
  2. £50 for its delayed complaint response.
On the same day the resident escalated his complaint. He said:
1. he first contacted the landlord about the MEX on 26 October 2022. The landlord told him that it needed to review his tenancy on 14 November 2022. He was told to call back then, which he did.
2. the landlord said in its complaint response that he was still in his probationary period, but this was not the case as he moved into his current home via MEX in November 2020. He told the landlord several times that he did not need a tenancy review as he had a 6 year tenancy. The landlord told him that the tenancy review would be completed, but it never happened.
3. he had read the succession policy and it stated that it would consider offering a tenancy to an applicant in exceptional circumstances. This was outlined in his email dated 28 December 2022.
4. the landlord had not considered his concerns or showed empathy with regards to his grandmother’s wishes and the family history with her home. As well as the practical reasons that he had previously outlined.
5. his grandmother’s home remained empty and the situation was causing mental health issues and stress.
On 25 April 2023 the landlord issued its stage 2 response. It said:
1. the resident’s tenancy was not recorded under the correct status. This impacted the initial MEX application request. the resident was under a tenancy review period which related to the fixed term tenancy that he had taken over from the previous MEX. the fixed term had passed. This had effected the status of the tenancy and impacted the ability to proceed with the MEX application. This should have been checked as part of the MEX process and the resident’s request should have been progressed. It did not follow this process and the MEX was incorrectly refused at that time.
2. the resident had requested the MEX on 14 November 2022. It had from that point, 42 days (until 2 January 2023) to provide the resident with the outcome of his request. However, that was not how long the process would take from the beginning to end. It said that the process included signing and moving to formalise the completion of the MEX. It did not believe this would have been achievable in the timescales before the resident’s grandmother’s sad passing. It was a “sad scenario” and it sympathised with the resident and his family.
3. the resident could not succeed his grandmother’s tenancy because the property was dependent on the risk of homelessness and the occupation of a property preceding 12 months. It said that these thresholds were not met.
4. from lessons learnt it had:
  1. completed a full customer journey review of the MEX process and had developed a procedure to avoid a scenario such as this in the future.
  2. moved to case management processing which placed more ownership within the teams. This would improve communication and understanding in the management of individual MEXs.
  3. reconfirmed the requirement of the contact centre of progressing MEXs when there are queries around the status of tenancies.
5. it offered a revised compensation of £600 for the inconvenience. This comprised of:
  1. £250 for its failure to follow policy and procedure.
  2. £250 for administrative management errors and communication.
  3. £100 offered at stage 1 of the complaint.
The resident referred his complaint to this Service. He said that he remained dissatisfied with the landlord’s response because it:
1. had recorded the status of his tenancy incorrectly. Once it realised that the records were incorrect it still did not approve the request. Therefore he missed out on an opportunity to move into his grandmother’s house that she had for 53 years.
2. had not considered his other concerns that he had outlined in his December 2022 email.

Legislation, policies and procedures

The Housing Act 2004 states that mutual exchanges occur when two tenants of social landlords swap homes by legally assigning their tenancies to each other. The permission of the landlord of both tenants is required.
At the time of the complaint, the landlord’s mutual exchange policy stated:
1. it would not unreasonably withhold permission to exchange.
2. the resident must be advised in writing of a decision within 42 days of requesting a mutual exchange.
Its interim complaint policy stated that it would respond to stage 1 complaints within 20 working days and within 40 working days at stage 2.

Assessment and findings

Scope

It is noted that the resident raised concerns throughout this case, that the landlord’s actions meant that he missed an opportunity to move into his grandmother’s house. He has also told this Service that the property remains vacant. While the Ombudsman empathises with the resident’s situation, it is not the Ombudsman’s role to decide whether or not a MEX or succession should have been agreed by the landlord. Rather, the Ombudsman’s role is to assess the landlord’s response, whether it acted in accordance with relevant policies and procedures, and acted in a manner that was fair reasonable in the circumstances.

Mutual exchange

The resident has stated that he contacted the landlord on 26 October 2022 to discuss the MEX process. We do not doubt the resident’s account. However, we do not have any other evidence relating to this interaction. As such, we cannot say with certainty what was discussed during the conversation.
The evidence available demonstrates that the resident contacted the landlord on 14 November 2022. The landlord noted that it had told the resident that he was not eligible for a MEX because his tenancy was under probation. It said that it would contact the resident for a tenancy review.
As highlighted above, the resident’s tenancy was not under a probationary period. The status of the tenancy had been incorrectly recorded by the landlord. The resident had a fixed term tenancy via a MEX in 2020. Therefore he was eligible to apply for the MEX with his grandmother at this time. In our May 2023 Knowledge and Information Management (KIM) Spotlight we said that failing to create and record information accurately results in landlords not taking appropriate and timely action. In this case, that the landlord’s records were inaccurate, meant that it did not progress the resident’s MEX as it should have.
The evidence suggests that the next contact between the resident and the landlord was on 21 December 2022. The landlord noted that it had given the resident “general” advice about a “potential” MEX with the resident’s grandmother. While it was appropriate for the landlord to record the outcome of its conversation with the resident, its note was vague. Creating clear and robust records is vital. It would have been reasonable for the landlord to have explained in further detail what advice it gave the resident at this time. This would have demonstrated that it had provided the resident with reasonable and appropriate advice about the MEX process, which he may have relied upon. It is noted at this point, the resident was still waiting for the landlord to carry out a tenancy review, therefore the MEX was unable to progress.
On 28 December 2022 the resident asked the landlord for an update on his tenancy review. As it had not been completed, the landlord noted the resident would call again the following week for an update. In its stage 2 complaint response, the landlord said that as the resident was on a fixed term tenancy, his review should have been carried out as part of the MEX process. Additionally, the MEX should have been progressed. Therefore, that the resident had to chase the landlord for an update on the tenancy review that could have formed part of the MEX process was a further failing. The landlord missed an opportunity to identify its process error as this time and to put matters right. As it did not meant that it caused the resident further time, trouble and inconvenience.
On the same day the resident told the landlord via email that he had planned to complete a MEX with his grandmother but she had become too ill to move. Despite the resident chasing the landlord for a response on several occasions in the following months, the landlord failed to respond. The reasons for the landlord’s failure to respond are unknown. However, that it did not was inappropriate.
In January 2023 the resident continued to chase the landlord for an update on the tenancy review. During that time the resident’s grandmother sadly passed away.
In his formal complaint, the resident said that the landlord had not carried out a tenancy review in a timely manner. Subsequently, his grandmother had passed away and the MEX could no longer go ahead. Therefore, he had missed an opportunity to move into his grandmother’s home.
In its stage 1 complaint response the landlord stated that as the resident’s grandmother had passed away, it was unable to consider the MEX under exceptional circumstances. While it is acknowledged that this would have been the cause of disappointment for the resident, the landlord’s explanation was appropriate. In its response, the landlord also referred to the resident tenancy as being in a probationary period. In his escalated complaint, the resident explained that this was not correct.
The available evidence suggests that it was only then that the landlord realised that its records were incorrect. In its response the landlord appropriately acknowledged that it had recorded his tenancy status incorrectly, which had an initial impact on his request. It said that as the resident was on a fixed term tenancy, the status should have been checked as part of the MEX process and it should have be progressed. It said that it did not follow the process.
Whether the resident’s application would have been approved is not for this Service to decide. Nor whether the mutual exchange would have been finalised before the passing of the resident’s grandmother. The resident’s comments in relation to this are acknowledged, but we cannot speculate as to what the outcome may have been. However, due to the landlord’s errors the resident’s application was not progressed in a timely manner as per its own policy. That was a failing. This caused him distress and inconvenience. It is understandable that as a result the resident felt that he missed an opportunity to move into his grandmother’s home.
The landlord appropriately acknowledged its failings in this case. It final compensation offer was £300 for its failure to follow policy and procedure. It also offered £250 for administrative errors and communication. Taking into consideration the full circumstances of this case, its offer of £550 compensation was appropriate. It is noted that the landlord’s offer of compensation was not the outcome that the resident was hoping for. However, we are satisfied that it is a proportionate remedy for the administrative failing and the departure from policy in this case.
Overall, the landlord’s poor record keeping and failure to follow its process meant that it did not progress the resident’s MEX request in a timely manner. This caused him time, trouble and distress. In recognition of its failures, the landlord offered the resident appropriate level of compensation. Therefore, there was reasonable redress in the landlord’s handling of the resident’s request for a mutual exchange with his grandmother.
It is noted that the landlord completed a review of its MEX process and developed a procedure to avoid such a scenario in the future. This was positive and demonstrated that it had taken reasonable steps to mitigate any similar failings occurring again. As such, we have not made any orders in relation to process reviews.
We encourage landlords to self-assess against the Ombudsman’s Spotlight reports following publication. In May 2023 we published our Spotlight on knowledge and information management. The evidence gathered during this investigation shows the landlord’s record keeping practices may not be in line with that recommended in the Spotlight report. We encourage the landlord to consider the findings and recommendations of our Spotlight report unless the landlord can provide evidence it has self-assessed already.

Succession

The evidence available suggests that the resident and landlord first discussed the possibility of the resident succeeding his grandmother’s tenancy in mid-December 2022. The resident has stated that he was told by the landlord that he could “go down the succession route” and was provided with the policy. We do not doubt the resident’s account. However, we do not have a contemporaneous record of this event. Therefore there is no other evidence to corroborate the resident’s comments.
The landlord’s records show that on 21 December 2022, the landlord told the resident that he would not be eligible to succeed his grandmother’s tenancy as he was not living with her. This was in accordance with its policy. Around this time the resident read the landlord’s succession policy and considered that he would be eligible for succession under its discretionary grounds. On 28 December 2022 the resident explained the reasons he believed that he would qualify under those grounds. This included concerns about the safety of his family at his current address, the upcoming arrival of another baby and his connection with his grandmother’s house. He said that he wanted the landlord to consider his application for succession.
The landlord’s policy states that it is under no obligation to offer a spouse, partner or family member a tenancy of the deceased’s property, if they have no statutory or contractual right to succeed. It also states that it can use its discretion to grant a non-qualifying family member a tenancy for the deceased tenant’s property. In doing so, it would normally expect the family member to meets its criteria, which includes amongst other elements that the:
1. deceased tenant was a parent or legal guardian of the applicant.
2. the applicant had always resided in the property with the tenant as their only or main home since the tenancy start date or their date of birth whichever is more recent.
The resident chased the landlord for an update on 9 and 16 January 2023. There is no evidence that the landlord responded. Subsequently, the landlord missed further opportunities to appropriately explain its policy and signpost the resident .This caused the resident time, trouble and distress.
On 26 January 2023 the resident informed the landlord that his grandmother passed away. The resident reiterated his request that the landlord consider approve his request to succeed the tenancy on discretionary grounds. In response the landlord said that it had told the resident that he would not be eligible to succeed his grandmother’s tenancy between 14 November and 22 December 2022. However, it failed to address the resident’s comments around its ability to approve a request on discretionary grounds. This was a failing and the landlord missed an opportunity to address the resident’s concerns as a result.
In his escalated complaint, the resident reiterated that he considered that the landlord was able to use its discretion to approve his succession request. In its stage 2 response, the landlord said that the resident could not succeed his grandmother’s property because it was dependent on the risk of homelessness and the occupation of the property preceding 12 months. While the landlord’s decision was in accordance with its policy, it did not appropriately explain why it had decided not to approve the request on discretionary grounds. In the circumstances, it would have been reasonable for the landlord to have explained its decision with reference to the discretionary criteria and the resident’s circumstances. This would have demonstrated that it had given due consideration to the resident’s situation but made a decision in accordance with its policy. This may have given the resident some reassurance that his request was thoroughly considered.
Based on the evidence available, the landlord did not meaningfully respond to the resident’s request to succeed his grandmother’s tenancy. This meant that he was left feeling that the landlord had failed to understand the reasons for his request, and that he missed an opportunity to live in his grandmother’s home. This caused him distress and inconvenience.
Overall, the landlord failed to:
1. respond to the resident’s December 2022 request to succeed his grandmother’s tenancy.
2. appropriately explain how it had considered the resident’s request and why it was not able to offer a tenancy on discretionary grounds.
We have therefore found that there was service failure in the landlord’s handling of the resident’s request to succeed his grandmother’s tenancy.

Complaint handling

It is noted that in June 2022 the landlord experienced a cyber incident which affected its access to its records and systems. This caused challenges to its day to day service delivery. Subsequently at the time of the resident’s complaint, the landlord operated an interim complaint policy . It stated that it would issue stage 1 responses within 20 working days.
This was approximately an additional 10 working days more than its substantive policy. The resident made his complaint on 26 January 2023. Under the interim policy, the landlord’s response was due around 23 February 2023. However, it informed the resident approximately 3 times during February that its response would be delayed.
Our March 2022 Complaint Handling Code (the Code) stated that when a landlord should need to extend its response deadline, it would be reasonable for it to provide a clear timeframe for when the response would be received.
In this case, given that the landlord was unable to adhere to its own interim policy timeframes it would have been reasonable for it to have provided the resident with a date that he should expect a response. While it was appropriate that the landlord confirmed that its response would be delayed, a revised deadline would have helped to manage expectations and would have been in accordance with the Code. That it did not caused him distress and inconvenience.
The landlord issued its stage 1 response on 3 March 2023. This was approximately 6 days passed its deadline of 23 February 2023. While the reason for the delay is unclear, that there was one was a failing. In recognition of the delay, the landlord offered the resident £50 compensation. This was reasonable and proportionate for the inconvenience caused by the delay.
In its stage 1 complaint response, the landlord told the resident that he was not eligible for a MEX because his tenancy was in its probationary period. This, which has already been established in this investigation, was incorrect. Our KIM report states that poor record keeping can lead to missed opportunities to identify what has gone wrong and offer reasonable redress. In this case, the landlord’s poor record keeping impacted not only the resident’s substantive issue, but the landlord’s ability to effectively investigate his associate complaint. This meant that it missed an opportunity to put matters right in a timely manner. In doing so the resident incurred further avoidable time, trouble and distress by having to explain to the landlord in his escalated complaint that his tenancy was not under probation.
The landlord acknowledged that it did not respond to the resident’s December 2022 email and that the resident had chased it for a response in early January 2023. However, the resident’s email at this point still went unanswered. Therefore, it would have been reasonable for the landlord to have considered whether it could reasonably respond at this time. If it had done so, it may have gone some way to put matters right and provided the resident with a meaningful and final response. This would have demonstrated effective complaint handling and enabled the resident to be heard and understood.
In his escalation request the resident reiterated that the landlord could allow him to succeed his grandmother’s tenancy by using its discretion outlined in its policy. He also said that it did not take into account his considerations that he had previously outlined.
In its stage 2 complaint response, the landlord reiterated that the resident was unable to succeed his grandmother’s tenancy because he had not lived with her prior her passing. At this point, the resident had explained several times, including in his escalated complaint, that he considered that the landlord should use its discretion to grant his succession request. In the Code, we stated that landlords must address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law and good practice where appropriate. As such, while the landlord had explained its decision, it would have been reasonable for it to address the resident’s comments and to clearly explain why his circumstances were not such that it could agree to a discretionary succession. That the landlord missed another opportunity to respond specifically to the crux of the complaint was unreasonable.
It is noted that the landlord issued its stage 2 response within 36 working days of the resident’s escalation complaint. This was a deviation from the landlord’s substantive policy and the Code. However, it was in line with its interim 40 working days deadline. Therefore was reasonable at this time.
Overall the landlord failed to:
1. respond to the resident’s stage 1 complaint in accordance with its interim policy.
2. provide accurate information in its stage 1 response due to poor record keeping.
3. respond to the resident’s specific concerns.

We have therefore found that there was maladministration in the landlord’s complaint handling. Given the failings identified, we have ordered the landlord to pay the resident further compensation for the distress and inconvenience caused.

On 8 February 2024 the Ombudsman issued the statutory Complaint Handling Code. This Code sets out the requirements landlord must meet when handling complaints in both policy and practice. The statutory Code applies from 1 April 2024. The Ombudsman has a duty to monitor compliance with the Code. We will assess landlords using our Compliance Framework and take action where there is evidence that the requirements set out in the Code are not being met. In this investigation, we found failures in complaint handling. We therefore order the landlord to consider the failings highlighted in this investigation when reviewing its policies and practices against the statutory Code examined under the duty to monitor remit.

Determination

In accordance with paragraph 53.b. of the Housing Ombudsman Scheme, the landlord has made an offer of reasonable redress in response to the resident’s complaint about its handling of his request for a mutual exchange.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s request to succeed his grandmother’s tenancy.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s complaint handling.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s record keeping.

Orders

Within 4 weeks of the date of this determination, the landlord should do the following:
1. apologise to the resident for the failings highlighted by this investigation.
2. pay the resident £350 compensation, which is comprised of:
  1. £200 for the distress and inconvenience caused by its communication in response to the resident’s request to succeed his grandmother’s tenancy.
  2. £150 for the distress and inconvenience caused by its complaint handling
3. taking into consideration the failings outlined in this report, the landlord should issue guidance to staff to ensure they are thoroughly explaining the landlord’s decisions relating to succession requests.

Recommendation

Within 4 weeks of the date of this determination, the landlord should pay the resident the £600 compensation it offered in its complaint response, if it has not done so already.