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Nottingham City Homes Registered Provider Limited (202208244)

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REPORT

COMPLAINT 202208244

Nottingham City Homes Registered Provider Limited

3 July 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:
    1. The landlord’s handling of the resident’s mutual exchange application.
    2. The landlord’s handling of the associated complaint.

Background

  1. The resident was a tenant of the landlord.
  2. On 1 June 2022, the resident applied for a mutual exchange, as she wanted to move from her two-bedroomed property to a one-bedroomed home to be closer to her daughter. On 21 June 2022, the landlord refused the mutual exchange as the other party in the exchange did not meet the grounds under Schedule 3 of the Housing Act 1985 (HA 1985).
  3. The resident asked for a review of the landlord’s decision on 5 July 2022, as she felt that the landlord had failed to consider her extenuating medical circumstances. She also complained that the landlord had failed to respond to her enquires, or additional evidence submissions. The landlord responded with its review on 14 July 2022. It explained that after consideration it had found that it had applied its policies correctly, and the mutual exchange could not be approved. It stated that it had considered the resident’s medical evidence but was still bound by the above criteria. It also explained that it had contacted the resident on several occasions to try and support her in finding a more suitable exchange but had not been able to reach her. It apologised if it had missed any further communication from her.
  4. The resident contacted this Service on 22 July 2022, stating that the landlord would not raise her complaint formally. This was confirmed by the landlord in an email to this service on 15 August 2022 in which it said that it ‘‘did not see any valid grounds’’ for the matter to be entered into Stage 1 of its complaint process.
  5. After contact from this Service, the landlord sent its stage one response on 2 September 2022. It explained again that there were specific criteria that had to be met in order for the residents to be granted an exchange, which had not been met by the other party. It acknowledged that the resident was frustrated but explained that it did not have discretion to grant the mutual exchange in these circumstances. It reviewed its handling of the application and found that it had responded within the correct timescales.
  6. The resident escalated her complaint on 20 September 2022. She asked the landlord to consider her medical circumstances, stating that the potential property’s proximity to her daughter would be beneficial for her mental health and wellbeing.
  7. The resident contacted the landlord on 20 October 2022, stating that the other party had now fulfilled the criteria under the HA 1985. The landlord contacted the relevant parties but found that this was not yet the case.
  8. The landlord issued its stage two response on 28 October 2022. It explained that it had investigated if it was possible for the resident to make a new application, but as yet the circumstances remained the same. It reiterated that it did not have discretion to waive the criteria laid out in the HA 1985. The landlord also reminded the resident that she had a Band A status and could bid on the housing register, as well as look for another property via mutual exchange.
  9. In her complaint to this Service, the resident remains unhappy with how the landlord handled her application for mutual exchange.

Assessment

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

  1. A mutual exchange is where one resident exchanges their home with another resident. The legal background to mutual exchanges for secure tenancies is contained in section 92 of the Housing Act 1985. This is subject to the consent of each landlord which can only be refused in the circumstances set out in Schedule 3 of the Housing Act 1985. Some examples of grounds for refusal are, but are not limited to, where a possession order has been granted by the courts, where one of the properties has been adapted and the incoming resident has no need of the adaptions, or if the exchange would result in under, or over, occupying the property.
  2. According to the landlord’s mutual exchange procedure, if one party to the exchange meets any of the circumstances specified in Schedule 3 of the HA 1985, then the exchange cannot proceed. The procedure goes on to say that the landlord shall inform the party who fails to meet the criteria, notifying them of the grounds for refusal and reasons. It shall then inform the other party that the exchange cannot take place.
  3. Under the same policy, upon receipt of a mutual exchange application, the landlord must inform the applicants of its decision within 42 days. It also states that applications will be progressed swiftly, and with regard to the needs and wishes of the applicants. Where an application for exchange cannot be allowed, the reasons will be explained to the applicant. No resident may complete a mutual exchange without the express permission of the landlord.
  4. The landlord received the residents’ application for mutual exchange on 1 June 2022. It acted appropriately and in-line with its above policy by considering the resident’s application and responding within the 42-day timeframe on 21 June 2022. It found that the other party could not be considered for mutual exchange for this property, as under Schedule 3 of the HA 1985, one or more of the grounds for refusal applied. In its response, it clearly explained to the resident that the exchange had not been approved, and explained why, within the constraints of data protection guidelines. The landlord again acted appropriately by trying to contact the resident. It emailed her on 23 June 2022, stating that it had been trying to phone her to discuss the outcome of the application, and to offer its support in finding a more suitable exchange.
  5. The resident asked for a review of the landlord’s decision on 5 July 2022, as she felt that it had not considered the medical evidence that she had since submitted. She also complained that the landlord was failing to respond to her communication. The landlord acted reasonably by explaining in its review on 14 July 2022, that it had already examined the medical evidence, and responded to the resident’s various medical teams. It reiterated that the exchange had not failed due to the resident’s suitability, but because the other party failed to meet the legal criteria to be approved.
  6. The landlord is required to act within the legal constraints of any applicable legislation. It considered the resident’s application and reasonably concluded that it could not at that time approve the exchange. However, once the resident contacted it on 20 October 2022 to state that the grounds for refusal no longer applied to the other party, the landlord acted appropriately by investigating. It contacted the other party, and relevant authorities, to ascertain if the parties could make another application. It found that the grounds for refusal still applied to the other party at that time, which it then communicated to the resident. It was reasonable of the landlord to consider the circumstances again, to establish if the exchange was now possible.
  7. The landlord acted appropriately in its complaint responses, as it explained clearly the reasons why the grounds of refusal applied to the other party. It also stated that it had considered all the relevant evidence and had responded within the correct timescales in line with its mutual exchange policy. It explained to the resident that it did not have discretion to grant the exchange, as the other party failed to qualify due to a legal requirement in the HA 1985. The landlord also explained to the resident that she had other options for moving, such as making a bid for a home on the housing register, or through an alternative mutual exchange.

The landlord’s handling of the associated complaint.

  1. According to this Service’s complaint handling code (the code) once the resident makes a complaint, this should be recorded as a stage one complaint and responded to under the landlord’s complaints policy. Although the landlord did provide the resident with a review of its decision on 14 July 2022 it should have raised the resident’s continued dissatisfaction with its response, and its failure to respond to her enquires, or additional evidence submissions, as a formal complaint, in-line with the code.
  2. The landlord stated to the resident that it was unable to assess matters related to a mutual exchange decision within its complaint procedure. Under the code, the landlord’s complaints policy should clearly set out the circumstances in which a matter will not be considered, and these circumstances should be fair and reasonable. The landlord’s complaint policy does not specifically prohibit complaints regarding the handling of a mutual exchange application. Therefore, the landlord should not have refused to raise a complaint when asked to do so by the resident.
  3. Additionally, where a landlord’s complaint policy does provide for it to refuse a complaint, the landlord must provide a detailed explanation to the resident, setting out the reasons why the matter was not suitable for the complaints process. The landlord must then signpost the resident to this Service. Failing to do so can prevent residents from having access to this Service and receiving a fair and impartial investigation into their complaint. While the landlord did send an explanation to the resident, it did not do so until after she had complained to this Service on 22 July 2022.
  4. Following contact from the resident, this service asked the landlord to raise a formal complaint regarding its handling of the resident’s mutual exchange application on 15 August 2022. The landlord was initially reluctant to do so but then issued its stage one response on 2 September 2022. Whilst this just outside of the 10-working day deadline set out in the landlord’s complaints policy, the landlord’s reluctance to log the resident’s concerns as a formal complaint, prior to the intervention of this service, resulted in its stage one response actually being delayed by over a month.
  5. The resident escalated her complaint on 20 September 2022 and the landlord issued its stage two response on 28 October 2022, which again was outside the timescales set out in its complaints policy, which states that stage two responses will be issued within 20 working days.
  6. Overall, there was service failure by the landlord in respect of its response to the resident’s complaint. This is because it initially, and unreasonably, refused to raise the resident’s concerns as a formal complaint and only did so following the intervention of this service. There were then delays in the landlord providing its responses to the resident at both stages of the formal complaints process. Whilst these delays were not excessive, it is understandable that this would have been frustrating and inconvenient for the resident.
  7. To redress these failures, the landlord has been ordered to apologise and pay the resident £100 compensation. The landlord has also been ordered to consider whether further training is required to ensure that all relevant staff understand under what circumstances a complaint may be refused, and to ensure that those circumstances are consistent with the expectations of this service’s complaints handling code.

Determination (decision)

  1. 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 application.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the associated complaint.

Orders

  1. Within four weeks of the date of this report, the landlord is ordered to:
  1. Apologise and pay the resident £100, in recognition of its poor complaint handling.
  2. Ensure all relevant staff understand under what circumstances a complaint may be refused, and that those circumstances are consistent with the expectations of this service’s complaints handling code.
  3. Confirm to this service that it has complied with the above orders.