Cottsway Housing Association Limited (202205746)

REPORT

COMPLAINT 202205746

Cottsway Housing Association Limited

27 January 2023

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

1. The complaint is about the landlord’s handling of, and response to, the resident’s application for a mutual exchange.

Background

2. The resident, who is an assured tenant, found two other families to agree to a three-way mutual exchange. It is unclear when the application was sent to the landlord, however, it was sometime between February and May 2022. The application was denied due to a Section 106 Agreement (s106) which required applicants to have a local connection to the area in order to move into the property. As one of the families did not have a local connection, the three-way mutual exchange could not go ahead. The resident appealed the decision, but the outcome of the appeal remained the same.
3. The resident raised a formal complaint on 13 June 2022, in which she advised that she was aware that the s106 agreement had not been enforced in the past. She also believed that herself and the other families fell within “special circumstances” as one of the families was under-occupying their property, and that the landlord was not using its available discretion to take this into account. Additionally, the resident raised her concerns that she had not been made aware of the s106 agreement prior to the refusal of her application. She advised that it was not included in the tenancy agreement, nor was it included on the site that she used to make her application.
4. The landlord’s final response (29 June 2022) acknowledged that the s106 agreement had not been fully enforced in the past, and acknowledged the resident’s frustrations towards this. It reasoned that it had tightened up its processes in relation to the agreement to ensure that it was being put into practise. It also advised that as it was a legally binding agreement, it had no legal basis to grant a tenancy outside of this agreement. Additionally, the landlord advised that there was no legal requirement for the agreement to be included in the tenancy agreement. However, it did note that it had updated its website and mutual exchange application to advise that some properties are subject to the agreement. As well as this, the landlord also approached the local authority with a request to add a variation to the terms of the s106 agreement, such as removing occupancy restrictions. However, this was denied by the local authority on 21 July 2022.
5. The resident advised this Service on 22 September 2022, that she felt she had been treated differently by the landlord as it had applied the s106 agreement to stop her exchange request, when it had not been implemented in the past. She advised that she wanted the landlord’s decision to deny the exchange to be independently reviewed by this Service.

Assessment and findings

Policies & Procedures

6. Section 3.6.1 of the landlord’s and local authority’s planning obligations states that the landlord is to “allocate the dwelling to the applicant having a local connection with the main parish”.

Scope of investigation

7. Whilst the evidence provided includes communication between the resident, landlord, local authority, and other parties involved in the mutual exchange agreement, this Service can only investigate how the landlord had responded to the resident’s complaint, and whether or not it had acted in line with its policies and obligations. If the resident is concerned with the local authority’s responses and involvement, it would be more appropriate for the resident to submit a complaint to the Local Government and Social Care Ombudsman (LGSCO). Similarly, should the other parties involved in the exchange agreement also want to pursue a complaint about the landlord, they would need to raise their own complaints with the Housing Ombudsman.

The landlord’s handling of, and response to the resident’s application for a mutual exchange

8. As shown in the landlord’s planning obligations, it was required to ensure that tenants moving into said property had a local connection to the main parish and local area. This was a legally binding agreement and therefore the landlord would not be expected to deviate from this agreement. Additionally, whilst the landlord may use its discretion to make exceptions in special circumstances, it is not an obligation for it do so.
9. The landlord acknowledged that it had not exercised the s106 agreement in the past and had allowed tenants to move into properties with no local connection. It acknowledged the frustration it had caused the resident by then implementing the agreement for her request for a mutual exchange. However, the landlord justified its reasoning and offered a reasonable explanation as to why it had arrived at its decision. It explained that it had tightened its processes around the agreement to ensure that it was being put into practise. This was fair, and as noted, the landlord would not be expected to act outside of a legally binding agreement just because it had done so before.
10. Additionally, this Service is unable to look at how the landlord had handled previous tenancies, and whether or not it had maintained its obligations. The purpose if this investigation is only to determine whether the landlord acted accordingly in regard to the resident who has made the complaint. Therefore, it had acted reasonably and appropriately in implementing the s106 agreement in regard to the resident’s request for the three-way mutual exchange.
11. In addition to this, the landlord did exercise reasonable discretion in approaching the local authority in order to make a request to amend the agreement to allow for less occupancy restrictions. Although the request was denied by the local authority, the landlord was not obliged to make this request, and in doing so, demonstrated a clear intention to put the resident first, and resolve the issue within its legal means. Additionally, this was a good attempt to improve he landlord/tenant relationship, an important part of the landlord’s service delivery. The landlord also kept the resident informed by relaying the local authority’s decision to not amend the agreement.
12. As well as demonstrating an intent to resolve the issue for the resident, the landlord also maintained constant communication and clearly explained its reasoning and decision making. The evidence provided showed that the resident did not have to chase responses as the landlord was consistently engaging. This is an integral part to the landlord’s service delivery as keeping the resident informed manages the resident’s expectations.
13. Whilst the outcomes may not have been what the resident was seeking, the landlord ensured that it explained its reasoning fully. It also informed the resident as to what steps it was taking to look into and resolve the issue, as well as alternatives that may have been appealing to the resident. For example, following the final response, it offered advice on seeking properties that would have been suitable for the resident to bid on, as well as attempting to change the agreement as mentioned. As well as maintaining consistent communication, the landlord’s complaint responses addressed each aspect of the resident’s complaint and offered appropriate explanations and reasoning.
14. Although the landlord’s communication was good, the resident felt that the failure to disclose the agreement prior to refusal was unfair. She felt that it should have been made clear from the outset that the property was subject to the s106 agreement. Whilst it is understandably frustrating for the resident, the landlord explained in its final response (29 June 2022) that there was no legal requirement for it to include it in the tenancy agreement.
15. This Service is not aware of any legislation or policies that indicates that the landlord would need to include it in the tenancy agreement, and therefore it is not clear that the landlord was acting outside of its obligations by not doing so. However, it would have been appropriate for the landlord to make clear to the resident in other ways, that it was subject to the s106 agreement.
16. Regarding this, in its final response, the landlord demonstrated capacity to learn as it advised that it had changed its website and mutual exchange application to advise potential tenants that properties may be subject to the agreement. This was in line with this Service’s dispute resolution principles, which encourages the landlord to learn from outcomes and to implement measures that may prevent similar scenarios from occurring in the future.
17. The landlord clearly acted within its obligations when deciding on whether or not to accept the resident’s request for the mutual exchange. Whilst landlords often have discretionary powers to make alternative decisions in exceptional circumstances, it is not an obligation to do so. Therefore, in this sense, there was no maladministration by the landlord’s response to the resident’s request for a mutual exchange. Additionally, the landlord maintained regular contact with the resident, attempted to find alternative means to resolve the issue, and went above its obligations in requesting that the agreement be altered. Therefore, its handling of the resident’s request was also reasonable and appropriate.

Determination

18. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of, and response to, the resident’s application for a mutual exchange.