Harlow District Council (202347550)
REPORT
COMPLAINT 202347550
Harlow District Council
17 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 for a mutual exchange.
Background
- The resident is a secure tenant of the landlord. The property is a 3 bedroom house. She has lived at the property since June 1997. She lives with her husband. Both the resident and her husband have physical disabilities. The resident’s son helped her with the complaint and any contact from him will be referred to as being from ‘the resident’ in our report.
- Sometime during her occupation of the property, the resident converted the third bedroom into a bathroom and erected a conservatory.
- In March 2022 the resident applied for a mutual exchange with a third party. In September 2022 the landlord refused the application. In October 2022 the landlord emailed the resident outlining the reason for the refusal. It said the third party did not meet the property size criteria (it was too large). It also said the resident had converted the 3 bedroom house into a 2 bedroom. The resident says that between October 2022 and April 2023 she tried to appeal against the landlord’s decision and meet with it. The landlord’s records show emails between the parties in April 2023, discussing the organisation of a meeting.
- The resident complained on 15 June 2023 about the lack of communication and the landlord’s handling of her request for a mutual exchange. The landlord issued its stage 1 response on 3 July 2023. It refused the exchange because “the accommodation afforded by the dwelling house is substantially more extensive than is reasonably required by the proposed”. It had inspected the property in September 2022 and noted that the resident had made unauthorised alterations. It did not uphold the complaint about the handling of the resident’s request for a mutual exchange. It did uphold the complaint about the lack of communication. It found that it had not responded to the resident’s requests to meet. It apologised and arranged a meeting with the resident to discuss her housing options and the alterations to the property.
- The parties met in July 2023. Following the meeting, on 18 August 2023, the landlord emailed the resident to confirm that the property would remain a 3 bedroom house. In November 2023 the resident made a second application for a mutual exchange. The landlord inspected the property on 13 December 2023 and identified the alterations made by the resident. It recorded that the mutual exchange could not progress until the resident removed the conservatory, reinstated the bathroom in the kitchen, and reinstated the bedroom. It also noted that there were wooden panels in the lounge, hallway, landing, and bedroom that failed the inspection.
- The landlord called the resident in December 2023 to inform her that it would be refusing the application. The resident replied by email in December 2023 and disputed the landlord’s findings. She emailed again in January 2024. She said that during the meeting in July 2023 the landlord said that if she found a family that would meet the property criteria as a 3 bed house, but accept it as a 2 bed, then she could pursue a mutual exchange. She was not aware that she would need to restore the property to its original position when let.
- In January 2024 the parties exchanged emails discussing the mutual exchange application. The resident reiterated her position and asked to meet with the landlord. The landlord shared the case internally and agreed to confirm its position in writing. On 24 January 2024 the landlord emailed the resident and said that it would keep to its current position. It had reviewed its records and there was no evidence that it had approved the alterations. It would not grant retrospective permission. The resident would need to remove the conservatory and reinstate the internal layout of the property.
- The resident sought assistance from her MP in February 2024, who wrote to the landlord on her behalf. She sought to escalate her complaint on 23 February 2024. The landlord issued its stage 2 response on 12 March 2024. It did not uphold the complaint. It reiterated its same position regarding its decision to refuse the mutual exchange application. The resident remained unhappy with the landlord’s response and referred her complaint to the Ombudsman.
Assessment and findings
Scope of investigation
- The resident told us that the landlord asked her to return the property to its original internal layout before approving a mutual exchange. A remedy she has sought from the Ombudsman was for the landlord to remove this condition. Our role is to look at whether a landlord’s actions were compliant with the policy and procedures in place at the time the matters occurred, and how they communicated with the resident. We cannot act as an appeal body, and it is not our role to overturn a decision made by a landlord. We will, however, investigate how the landlord came to its decision and if this was in line with current legislation and its policies and procedures.
Policies and procedures
- The landlord’s mutual exchange procedure states that once it has received an application for exchange it will make all decisions within 42 days. Within this period, it will conduct internal investigations, a property survey, a gas inspection, and an electrical inspection. If during these investigations it finds unauthorised works, it will contact the resident within 5 working days to discuss the findings. Within 5 working days of this discussion, it will write to the resident and say why the inspection failed and the remedial action required.
Mutual exchange
- The Housing Act 1985 sets out the terms which the landlord must follow when receiving a request for a mutual exchange. Paragraph 92.5 of this Act states “where rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed, the consent required by virtue of this section may be given subject to a condition requiring the tenant to pay the outstanding rent, remedy the breach or perform the obligation”. In addition to the above, Schedule 3 of this Act provides grounds for withholding consent to assignment by way of exchange. Ground 3 states that “the accommodation afforded by the dwelling-house is substantially more extensive than is reasonably required by the proposed assignee”.
- The landlord’s decision to refuse the resident’s mutual exchange in September 2022 was clearly set out in its email on 6 October 2022. It appropriately referred to ground 3 in its decision. Additionally, it correctly said that there was no right of appeal of this decision and appropriately directed the resident to its housing options team for advice.
- The landlord provided the Ombudsman with copies of the original mutual exchange application and inspection report. The resident applied for an exchange in March 2022 and the landlord inspected the property on 30 August 2022. During the inspection the landlord recorded the property type as a 2 bedroom house and noted that the added conservatory would remain following exchange. The landlord did not provide any information regarding the alterations made by the resident in its response or during the inspection. There were many alterations including non-standard doors, and timber boarding to the ceiling that she would need to remove. Its internal communications in October 2022 show that it recognised that the resident had made alterations. It sent its decision in October 2022 which was around 7 months after the initial application. This was considerably outside of the 42 day statutory timescale.
- The landlord should have been clear in October 2022 if, during its property inspection, it found unauthorised works. Its policy states that it will contact the resident within 5 working days to discuss the findings. Within 5 working days of this discussion, it will write to the resident and say why the inspection failed and the remedial action required. There are no records that show the landlord raised this issue as a reason to refuse the first mutual exchange. There are no records showing that the landlord sent its decision to refuse the exchange in writing. The resident repeatedly questioned the landlord on this issue between March and June 2023.
- The records show the resident called and emailed the landlord to try and meet with it to discuss her housing options between March and June 2023. In her complaint on 15 June 2023, the resident set out the dates that she had called the landlord without a response. She provided a copy of emails sent between 3 March and 25 May 2023 asking to meet with the landlord. She said that she was in the process of submitting a new application and wanted to meet with the landlord before doing so. She wanted the landlord to clarify what she would need to do before it would approve an exchange. She highlighted the impact the housing situation had on her health. The landlord upheld the complaint about its poor communication in its stage 1 response on 3 July 2023. Its apology was appropriate. Although it offered no financial redress for the resident’s time and trouble, its offer to meet with her showed its intention to put things right.
- In its stage 1 response on 3 July 2023 the landlord appropriately listed the alterations found during its property inspection on 16 September 2022. It said the resident had converted one of the bedrooms into a bathroom, removing the original downstairs bathroom to extend the kitchen. The resident had made these alterations without permission from the landlord. It would not grant retrospective permission or amend the classification of the property type from a 3 bed to 2. These decisions were reasonable.
- However, the landlord did not set out what the resident had to do regarding these alterations. It did not use its complaint handling as an effective tool to put things right for the resident. It should have been clear with the resident if she would need to put right any alterations before it agreed an exchange. Its failure to do so at the earliest opportunity caused the resident considerable time and trouble later in the timeline.
- When the resident met with the landlord on 27 July 2023, the records show that the landlord fairly assessed the health needs of the household. It recognised the urgency of their housing need and appropriately offered support through its housing register. Its actions were appropriate and the resident thanked it for its support.
- The landlord did not keep clear or accurate records of the discussions had during the meeting. This caused issues later in the timeline when the resident sought assistance from the landlord with her second mutual exchange in November and December 2023. The resident told the landlord that, during this meeting, there was no inference that she would need to remove the alterations. She also said that the landlord offered to help her by looking for possible mutual exchange partners. The landlord later denied saying that it would allow a mutual exchange in January 2024. The landlord should have systems in place to maintain accurate records of meetings and discussions had with the resident. Good record keeping is essential to evidence the action the landlord has taken which then aids in its service delivery, enabling it to respond professionally when something goes wrong. In this case it would have ensured that there were clear reasons for its decision making, that it could have shared with the resident.
- The records show that the landlord broadly complied with the timeframes set out in its policy for the second mutual exchange application. It conducted its inspections on 13 December 2023 which was within 28 days of the application on 24 November 2023. It contacted the resident within 5 working days of the inspection and discussed the required remedial action. It followed this up in an email to the resident on 3 January 2024 to say the inspection had failed. It then took around 15 working days to clearly set out the remedial action required in its email on 24 January 2024. This was around 27 working days after the inspection on 13 December 2023. Despite the delay in setting out its position in writing, the landlord maintained regular communication with the resident throughout.
- In an email to the landlord on 23 January 2024 the resident provided a chronology of events. She highlighted the impact these issues had on her health. She felt disregarded by the landlord. She felt that the landlord had lacked ownership of the issue since December 2023. She provided a statement from the third party saying they would accept the property with the alterations in place. The landlord reiterated its position on 29 January 2024. It was clear in its decision making. It said that, due to the fact the resident had undertaken substantial alterations without approval or authorisation, it would not approve a mutual exchange. It also would not grant retrospective permission for the alterations as they changed the property status and the internal layout of the property. The resident would need to reinstate the property to its original layout before being able to exchange. It would not allow the third party to accept the property as it was. This decision was reasonable.
- In its stage 2 response on 12 March 2024 the landlord did not uphold the complaint. It said that it had followed its policies and procedures and reiterated its position regarding the alterations. The evidence shows that the landlord had not followed its procedures correctly for the first exchange. It should have reflected on its decision making and the impact these issues had on the resident. It did not demonstrate that it had learned from outcomes. It missed the opportunity to put things right.
- Whilst pursuing her complaint in January and February 2024 the resident highlighted the impact her housing situation had on her health. She explained the difficult and distressing situation she was in. The Ombudsman does not dispute the impact these issues had on the resident. She was understandably upset by the landlord’s decision. However, the alterations she made to the property were substantial. There has been a change to the internal layout of the property. Section 18.5 of the tenancy conditions state that the resident must not make any improvements or alterations to the property without obtaining written permission first. It goes on to say that it may require the resident to return the property to how it was before if any changes were made. The landlord’s decision to refuse the application was reasonable in the circumstances.
- Overall, the Ombudsman finds maladministration in the landlord’s handling of the resident’s request for a mutual exchange. Although its later decision making was reasonable, its failures to address the issues early in the timeline caused the resident unnecessary inconvenience. It failed to manage her expectations or resolve the issues in a timely manner. The landlord should have set out its position clearly after it identified unauthorised alterations during the mutual exchange application from March 2022. It would have been able to identify that it would refuse any future exchange based on the alterations to the property.
- Had it set this out sooner in the timeline, the resident would have had reasonable understanding of her position and the alterations required to pursue an exchange. The landlord should pay the resident £500 compensation. This is comprised of:
- £200 for her time and trouble.
- £300 for the distress and inconvenience caused.
Determination
- In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s request for a mutual exchange.
Orders
- Within 4 weeks of the date of this report, the landlord is ordered to:
- Apologise to the resident for the failures identified in this report.
- Pay the resident compensation of £500. This is comprised of:
- £200 for her time and trouble.
- £300 for the distress and inconvenience caused.
- Provide evidence of compliance with the above to the Ombudsman.