LiveWest Homes Limited (202121410)

REPORT

COMPLAINT 202121410

LiveWest Homes Limited

4 October 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

The complaint concerns the landlord’s handling of the resident’s mutual exchange.

Background and summary of events

Background

The resident is a secure tenant. The property is a two-bedroom mid terrace house which the resident moved into in July 2021 as part of a mutual exchange.
The landlord has a number of vulnerabilities listed for the resident including impaired hearing and Raynaud’s disease.
The landlord’s mutual exchange policy covers all properties owned or managed by it and let on secure, assured or fixed term tenancies. The mutual exchange procedure does not cover a number of categories which included those individuals who had not completed their tenancy starter period.
The landlord’s mutual exchange procedure sets out that residents are able to find prospective partners to undertake an exchange with in a number of ways including by means of local authorities and by using national mutual exchange schemes including House Exchange.
Where the landlord is undertaking an exchange with another housing association/local authority resident the procedure sets out that a mutual exchange application form needs to be sent to both exchange partners within two days of request and this needs to be returned within 10 days. When the form is returned the landlord needs to:
1. Check that the household is a suitable size for the property that they are moving to.
2. Ensure that the rent account shows a clear rent balance.
3. Check there is no outstanding legal action or tenancy breaches.
4. Send a landlord report request letter to the other landlord and request one in return.
5. Visit the property within 10 working days of receiving the mutual exchange application form and invite the resident moving to the property to the property inspection as well so that they can be made aware of any repairs in the property.
The mutual exchange procedure explains if the incoming resident resides outside the landlord’s area then they are not required to attend the property inspection. However the landlord would need to talk the resident through the inspection and they would need to sign the property inspection form.
In terms of making a decision the mutual exchange procedure sets out that when all the application information, assessment and landlord references are received the Neighbourhood hub (the landlord’s housing management team) would consider whether there were good reasons to refuse the exchange. Included in reasons to refuse the exchange are where either exchange partner (or member of their household who is expected to be living with the resident) is the subject of an anti-social behavioural order, court undertaking or injunction or there is a request before a court to obtain such an order or injunction. Another ground for refusing is where there is evidence that either exchange partner is causing or has previously caused nuisance to neighbours in the surrounding areas which is likely to be continued after the move.

Summary of Events

The resident completed a mutual exchange form on 17 April 2021. This form noted that the mutual exchange involved an eight-way swap taking place involving a number of different landlords.
The resident emailed the landlord’s housing officer on 26 April 2021. She asked where she needed to send bank statements which had been requested alongside the mutual exchange form. She explained that she had not received the current statements at the time she had completed and returned the form.
The landlord’s housing officer emailed the resident on 27 April 2021. It explained that the resident should send the bank statements to a different address relating to home swaps. The email questioned whether the resident was currently a tenant of it at the present time. It also noted the resident was involved in an eight-way swap which could be complex as many different providers were involved.
The resident replied to the landlord on the same day confirming she was with a different social housing provider. She explained that she had previously been involved in a seven-way swap which had gone effortlessly. She added all of the parties involved were in a group chat and that they had all viewed homes and organised inspections. The resident explained whilst she had sent her bank statements as requested, neither her nor the party who was presently at the property had received any confirmation that the applications were being processed. She also asked whether the property had a radon pump.
The landlord replied to the resident on 28 April 2021. It explained as the current occupier was one of its tenants it would keep her informed. It informed the resident to check with her own current landlord for updates. It added that as no mutual exchanges had taken place during lockdown there was a large back log which was likely to slow down the process.
The resident replied to the landlord on 28 April 2021. She stated her current landlord could not tell her if the property had a radon pump which was why she had asked it about the matter. Neither could her landlord tell her if her application was processing. This had been why she had enquired with it on both aspects. She thanked the landlord for its assistance.
The landlord replied to the resident on 28 April 2021 confirming that this was the last email it would reply to her as it was in direct contact with someone, which it named, at her current landlord over the matter.
The landlord also sent an email to the resident’s current landlord on 28 April 2021. This was in response to an email asking if there were any restrictions based on where the residents involved in the exchange lived which could cause the mutual exchange to be refused. The landlord explained it would check on the matter and that it had sent a response to the resident who had contacted it a number of times over the previous two days. The landlord explained it had referred the resident to it (as her current landlord) going forwards.
The resident’s current landlord sent the landlord an email on 10 May 2021 asking if it had found out whether there were any local restrictions which could prevent the mutual exchange from taking place.
The landlord sent an email to the resident’s current landlord on 11 May 2021. This explained that the operative sending the email had just returned to work after a few days off and there was nothing preventing the exchange from taking place. The landlord confirmed that it would be conducting the inspection at its end soon. It added that it had a huge backlog of mutual exchange requests to administer so the process could take longer to go through. It asked how the matter was proceeding at the other’s landlord’s end.
The landlord sent an internal communication on 17 May 2021 in relation to the mutual exchange. This concerned all of the incoming and outgoing residents which remained its responsibility as part of the eight-way switch. In terms of the properties concerned, it asked a series of questions which it required answers to. The questions included whether there had been an open anti-social behaviour (ASB) case and whether there was any historical ASB which could affect its decision to allow the exchange to proceed.
The landlord sent an internal email on 19 May 2021. This had followed on from the property inspection taking place. The email noted the property condition was good and that it had been nicely kept. It noted the incoming resident, who was moving in from outside the area, had been to the property to see it.
The property inspection form noted under tenant alterations that this comprised raised decking in the rear garden. Under other comments the landlord noted that the tenant had put in a new kitchen themselves in around 2015. There were no repairs required noted for either the landlord or the tenant to undertake. In terms of items noted to be left for the incoming resident, the form noted this to be carpets throughout the property as well as upstairs blinds. The form was signed on behalf of the resident by the housing officer.
The resident emailed the landlord on 2 June 2021. She explained that the 42 days completion had passed and the party moving to her property had been accepted. However there had been a hold up with the residents whom the landlord was responsible for. The parties had yet to hear if they had been approved for the exchange. She was enquiring about schools for her son as she was informed that she needed to apply eight weeks prior to the end of the summer term for admission in September and this time had passed. She asked the landlord to chase up the matter.
The landlord emailed the resident on 7 June 2021. It explained that the 42-day deadline for exchange at its end was on 21 June 2021. It confirmed that inspections had been completed on the properties it was responsible for and that the resident needed to electronically sign the inspection form which it would email across. It added it had not completed all the checks to give a formal approval but that it would do so as soon as possible. It added that the resident should not make any formal arrangements until it had given its approval in writing.
The resident emailed the landlord on 7 June 2021 to thank it for the response. She digitally signed the inspection form. She explained that in relation to her son’s school admittance she needed a document with her name on and the new address on it. She added she was happy to sign any documents she received from it.
The resident emailed the landlord on 16 June 2021. She asked if she was able to sign the tenancy virtually due to the lockdown and the rising number of Covid 19 cases. She also asked if she needed to move within two weeks of her signing the tenancy.
The landlord emailed the resident on 16 June 2021. It explained that it could arrange for a digital sign up following a video call with its housing officer. In terms of the date of moving this would be agreed with the other landlords and tenants and the date she signed the paperwork would be the Friday before the tenancy start date. It did however state other landlords could have different policies on the tenancy sign up date.
The resident emailed the landlord back on 16 June 2021. She asked if it was possible for a different housing officer to be present as she had been informed by the current tenant that the housing officer had asked specific questions about her race and personal circumstances. She also said he had not engaged with her on email when she had contacted him at the end of April 2021. As a result she did not feel comfortable with having him as her housing officer.
The landlord sent an internal email about the resident’s query on 23 June 2021. The email asked how it should respond to the resident. An internal email on 24 June 2021 confirmed that the housing officer had tried to call the resident but had not been able to get through. Instead he had left a voicemail for the resident to introduce himself. The email noted the housing officer had some annual leave so he might not be present at the sign up but it confirmed that he would be the housing officer.
The landlord wrote to the resident on 21 June 2021 to confirm that the mutual exchange had been approved. It explained that the resident needed to sign the assignment letters.
The resident sent the landlord an email on 22 June 2021. She confirmed that all eight parties were in a group chat and would prefer to move on 15 July 2021.
The resident and landlord exchanged a series of emails on 28 June 2021. The emails noted the current tenant had informed her that she was replacing a long black radiator in the kitchen with a basic white one. The resident asked whether the gas man could check this when it undertook the gas checks on the property which were due at the end of the month. The resident also requested that the carpets in the property be removed due to her health concerns. The landlord informed the resident that the property inspection form noted the carpets would be left behind. If she had changed her mind she needed to discuss this with the outgoing tenant. It added that the current tenant had informed it that the radiator had already been changed and that it would be checked on 30 June 2021 as part of the gas safety checks. The resident confirmed she had not seen the bit on the property inspection form about the carpets as she was keen to hurry along with the swap. She asked if the inspection report could be redone.
The resident emailed the landlord on 29 June 2021 stating she was not happy to sign unless the carpets had been removed from the property she was moving to.
The landlord emailed the resident on 29 June 2021 to explain this was a matter she needed to discuss with the outgoing tenant. It asked if she wished to proceed with the exchange. The landlord also emailed the resident’s current landlord on the same date to make it aware of the situation. It asked whether the current landlord had been in touch with the resident.
The current landlord emailed the landlord on 5 July 2021 to explain it had emailed the resident to enquire whether she wished to proceed with the transfer.
The landlord emailed the resident’s current landlord on 5 July 2021 to explain that the resident had confirmed to it over the weekend that she wanted to proceed. As a result it was arranging the sign up.
The landlord emailed the resident on 5 July 2021 to make it aware of the advance rent which she needed to pay prior to the sign-up appointment. It asked the resident to forward a copy of the payment receipt after the payment had been made.
The resident emailed the landlord on 6 July 2021 to confirm that she was awaiting a copy of the tenancy agreement prior to paying. This was to check whether it was an assured or secured tenancy. She sent a further email later on the same day enclosing proof that she had made the advance rent payment.
The sign-up appointment took place via MS Teams on 9 July 2021. At the meeting the resident and the landlord’s housing officer both signed the deed of assignment which confirmed the start date of the tenancy would be 12 July 2021. The parties also signed the property acceptance form and the tenancy exchange sign up checklist. The checklist confirmed that the landlord had summarised the ASB policies as well as the resident’s rights and responsibilities over ASB.
The landlord sent an internal email following the digital sign up. This noted that the housing officer had chatted to the resident and that he would be meeting the resident who would be coming by train.
The resident completed an online complaint form on 16 July 2021 following moving into the property. She set out the nature of her complaint concerned rubbish left outside the property. In addition she complained about the internal state of the property which she explained involved it being left dirty including mould and a radiator which had been left hanging off the wall.
The landlord spoke to the resident in relation to the issues raised. It explained that it would charge her to remove the rubbish as it was not deemed as a repair. The landlord has confirmed that it dealt with this issue as a separate complaint.
The resident contacted the landlord over the next few months in relation to a number of issues including repairs to the property. This included a hole in the wall of the front room, changing taps grouting and tiling in the toilet, the plastering in the property and sealing windows.
The resident completed an online complaint to the landlord on 15 December 2021. She stated it had failed in its duty of care by approving a mutual exchange whilst knowing that she would be moving next to an anti-social neighbour. She added she had specifically asked the former tenant if there were any issues and she had denied this despite the former tenant having complained directly to the landlord about the neighbour. She explained that the mutual exchange should not have been approved where there was an anti-social behaviour issue ongoing and she as the incoming resident should have been informed about it. She asked the landlord to move her.
The resident emailed the landlord on 17 December 2021. She explained she had completed an online complaint form but had not received any acknowledgement. She reiterated the nature of her complaint and added that she wanted to take legal action against the former tenant for lying to her. She added she had text messages to prove she had asked her about whether there were any issues and she was told there were none.
The landlord emailed the resident on 23 December 2021 setting out its stage one response. It explained:
1. The decision to take part in the mutual exchange process was an agreement between tenants. It added that it processed the request and followed all the guidance as set out in the policy procedures.
2. Due to General Data Protection Regulations (GDPR) it could not discuss other customer’s details without consent.
3. It was not privy or could be held accountable to any private conversations held by the resident with the former tenant of the property.
The resident requested the complaint be escalated to the second stage of the landlord’s complaint process on 27 December 2021. The resident explained:
1. As the landlord was dealing with ASB issues associated with the neighbour it should have put mutual exchanges on hold until this was dealt with.
2. She considered it immoral for the landlord to have approved a swap especially as children were involved and as she had moved hundreds of miles at a large cost. She added the landlord had done a background check on her to ensure she was not an anti-social tenant so why did it think it was acceptable to move her next to an anti-social neighbour.
3. The police had been around on a number of occasions and this had caused distress to both her and her son.
4. Whilst she wanted to move having an anti-social neighbour was hampering this due to the neighbour having a broken window and unkempt garden.
5. She understood the former tenant was still a tenant of the landlord and she felt she should be held accountable for lying to her as well as ensuring she did not speak to the housing officer. The resident explained the former tenant had told her that he was “racist”.
6. She accepted that she did not expect to know details relating to the neighbour from the landlord but that it should have ensured a duty of care by not allowing mutual exchanges to be approved due to the problematic neighbour.
7. Had she been buying instead of renting there would have been a duty to disclose from the seller about nuisance or ASB nearby. However it appeared in the case of renting no such obligation existed.
The landlord emailed the resident on 4 January 2022 to acknowledge the complaint which had been escalated to stage two. It explained that it would aim to respond to the complaint by 13 January 2022.
The resident emailed the landlord during the early hours on 12 January 2022. She enclosed a video which she stated showed bad language and threats of violence. The landlord also received an online complaint on the same day from a representative acting on behalf of the resident.
The landlord acknowledged the video sent by the resident on 12 January 2022. It explained it would pass the matter on to the investigating officer.
The resident sent further videos to the landlord on 12 January 2022. She asked again how the landlord could have allowed the swap to proceed when it was clear there was ASB occurring. She stated whilst she understood the landlord could not have broken the data protection act, it could have paused exchanges until the neighbour had been evicted. She questioned how the landlord had allowed a single person to occupy a two-bedroom property in a family community.
The resident provided her consent to the landlord on 13 January 2022 for a representative to act on her behalf. On the same day the landlord issued the stage two response to the resident. The stage two response explained in addition to looking at the stage one response the landlord had also considered the emails containing video footage which had been submitted on 12 January 2022. It stated:
1. It was sympathetic to the situation the resident had found herself in and it had viewed the footage sent by the resident. It explained the resident’s housing officer had changed as the previous one no longer worked for it.
2. The law relating to mutual exchanges was set out under schedule 3 of the Housing Act. This included the reasons on which mutual exchanges could be refused. This had been mirrored by the landlord’s own policy on mutual exchanges which it considered it had correctly applied in this case.
3. It was not able to share or discuss matters relating to the neighbour and under GDPR it could not do so without consent.
4. As a landlord it was required to undertake checks on incoming and outgoing parties however the onus was on the parties as to whether they wished to proceed with the exchange.
5. In terms of the conversation the resident had with the former tenant on the matter, this was a matter between the parties and the landlord had not been privy to these conversations so could not be held accountable for the information provided to her.
6. Whilst it was unable to uphold the complaint it was continuing to take the complaints of ASB seriously (based on the footage provided) and it would continue to work towards a resolution.
The resident emailed the landlord on 13 January 2022. She explained she had not been informed that the housing officer who had been present at the time she had moved had left. She added she had sent him messages. She questioned why she had not been informed that he no longer worked for the landlord. The resident added in a further email to the landlord on the same day that, when she had approached the housing officer prior to moving, he had informed her he could not deal with the matter as she was not a tenant of the landlord at the time. As she was informed by the former resident that the housing officer was racist she had had limited contact with him.
The resident’s representative also phoned the landlord on 13 January 2022 to ask it to move her. The representative explained that the resident was having ongoing issues with the neighbour and that the police had been there multiple times each week. He added that there had been an assault the previous day and that the whole estate wanted to move due to the issues with the neighbour. The representative explained the matter was distressing for the resident and her son.
The landlord emailed the resident on 20 January 2022. It apologised for her not being made aware the housing officer had left. It explained it could make a referral for her to the Tenancy Sustainment Team if she needed any support, which she accepted However it added it could not provide any information on the neighbour’s property. The new housing officer added she would be carrying out a visit in the near future.
The resident contacted the landlord on 27 January 2022 to explain she had not received any contact from the Tenancy Sustainment Team. It informed her on this day that it had received a referral and would be in touch soon. The resident also raised concerns about the neighbour’s broken window as well as the former tenant who she explained was still parking near to the property and was intimidating her, even though she did not live nearby. The resident stated she had evidence captured on CCTV and wanted assistance in relation to harassment from the former tenant.
The landlord undertook a check on the former tenant and replied back to the resident on this matter. It also responded to the further queries the resident had raised with regards to the neighbour’s window.
The resident has continued to communicate with the landlord mainly by email in relation to a number of different issues.

Assessment and findings

Scope of Investigation

Since the end of the landlord’s complaints procedure the resident has continued to contact it in relation to a number of different issues. This has included asking it to undertake repairs to her property, repairs to the neighbour’s property including the external surroundings, concerns about ASB by the neighbour following the resident’s email of 12 January 2022 and harassment in relation to the former tenant. In terms of these matters, these will not be addressed as part of this investigation as the Ombudsman cannot consider complaints which have not yet exhausted the landlord’s complaints procedure nor been addressed to the landlord in the first place.

The landlord’s handling of the resident’s mutual exchange

The mutual exchange which the resident undertook involved multiple different parties and a number of different landlords. This made the situation more complex than a simple single swap involving two parties.
When seeking a property the responsibility for ensuring it was suitable and it was as described by the party offering it, rested with the prospective resident. The resident informed the landlord on 28 April 2021 that all the parties involved in the multiple exchange had viewed the properties that they were moving to. Asa result it was reasonable for the landlord to have assumed that the resident had satisfied herself at that time, if she wished to proceed with the mutual exchange, that the property met her needs.
The mutual exchange took place during a time when there had been lockdowns in place due to the Covid-19 pandemic which had an impact on viewings and moves taking place. However the resident had confirmed to the landlord that she had been to see the property. So it would not have necessarily known that she had not spoken to her prospective neighbours at that time and satisfy herself that there was nothing which would prevent the mutual exchange from taking place.
The resident has pointed out that if she was not renting but instead buying the property, there would be a duty on the seller to disclose any nuisance or ASB nearby. However the resident was aware from the online article titled “Do you have to tell tenants about noisy neighbours?” which she sent to the landlord when she escalated the complaint to stage two, that it had no obligation to disclose this information to her unless she had asked a specific question before signing the tenancy agreement / assignment.
The resident explained that she had been put off speaking to the landlord’s housing officer due to being informed by the former tenant that he was racist and had asked personal questions about her. The resident also stated that when she had contacted the housing officer he had not responded to her and instead referred her to her existing landlord. In terms of the resident’s communication she had contacted the landlord’s housing officer on a number of occasions over a few days in late April 2021. This had initially followed the resident asking where she needed to send the bank statements to which were needed alongside the mutual exchange form she had completed. The landlord’s housing officer had directed the resident as to where to send the statements. The landlord’s response was, in the Ombudsman’s opinion, professional and there was no indication that the housing officer’s conduct was in any way discriminatory towards the resident.
The resident had followed up with further emails to the housing officer asking a specific question about whether the property had a radon pump and about the process as neither she nor the former tenant of the property had heard anything. The resident had also confirmed that she was not a current resident of the landlord unlike the former tenant. The landlord had responded on the same day to explain that it would keep its tenant updated on the progress and directed the resident to contact her current landlord for updates. This was an appropriate action as until the exchange took place the resident had no contractual relationship with the landlord and as a result it was not appropriate on that basis for the landlord to keep her updated. Although the landlord had not directly answered the question of the radon pump, it clearly explained that it was in contact with a named individual at the resident’s current landlord and it directed the resident to obtain updates from there going forwards. The landlord’s communication with the resident was appropriate given the circumstances.
Whilst the resident stated her limited interactions with the housing officer had prevented her from asking it about whether there were any issues with the neighbour, she continued to communicate with the landlord up to the time the mutual exchange took place in July 2021. This had included emails in relation to securing a school admission for her son and about removing the carpets from the property due to health concerns. Should the resident have required clarification on what the former tenant had told her about the neighbour she had the opportunity via this further contact to enquire about the matter with the landlord. As she had not done so, the landlord could not have been expected to disclose any information it had not been asked directly about.
The resident had directly informed the landlord on 16 June 2021 that she wished for another housing officer to be present at the sign up. The resident had explained the reasons for this at that time, based on the information provided to her by the former tenant. The landlord at the time confirmed that the housing officer might not be available at sign up due to annual leave but that he would remain the resident’s housing officer. The landlord did not at the time communicate with the resident about her concerns about the housing officer and it did not enter into any further dialogue about it apart from a single response. Whilst there was no evidence of any racial discrimination by the housing officer towards the resident, this was a missed opportunity for the landlord to at least acknowledge her concerns, albeit that she had got them from a third party as opposed to having witnessed it herself. The Ombudsman has therefore made a recommendation to the landlord about ensuring it responds appropriately to such concerns.
The landlord cited in any event it would have been unable to provide any details due to GDPR as it did not have consent (from the party the data concerned). The resident was seeking information on a party which was not involved in the mutual exchange. Whilst the former tenant did have an ongoing relationship with the neighbour, this was not the case with the resident. So the landlord would not have been able to disclose information about the neighbours to the resident, even if she had asked it about them.
The resident says that despite the landlord not telling her about the neighbour prior to the exchange it had no reluctance to divulge the information after she had moved. It is not clear when this had occurred. The landlord has confirmed that the housing officer no longer worked for it so it was unable to ask him for his recollection of the issue. The resident did not raise the issue immediately but did so in December 2021.
In terms of not allowing the move to take place, the landlord’s mutual exchange procedure sets out a number of criteria on which its Neighbourhood hub team could refuse to allow the mutual exchange. Whilst these criteria did include ASB, this was in relation to whether it applied to either exchange partner or a member of their household who would be living with them. So in this case it would relate to the resident and the former tenant, but not to the neighbour. From the evidence provided to this Service the issues of ASB and nuisance all related to the neighbour and not to the former tenant. There is no indication that there was any court action or injunction against the former tenant. Given this the landlord would not have had grounds to refuse the mutual exchange.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s mutual exchange.

Reasons

The landlord was not directly asked by the resident about the issue of nuisance or ASB from the neighbour prior to completing the mutual exchange. Although the resident has explained that she was told there were no issues by the former tenant and she has evidence of this, the landlord was not a party to any conversation held between them and the landlord was not responsible for any information provided by the former tenant.
The mutual exchange was an agreement between the resident and the exchanging partner and by proceeding with it the landlord was entitled to deduce that the property satisfied her needs.

Recommendations

The landlord should review its processes to ensure it responds appropriately to all concerns including staff conduct which are raised by residents.