Reading Borough Council (202215361)

REPORT

COMPLAINT 202215361

Reading Borough Council

22 December 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 applicant 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 information the landlord provided about the applicant’s right to a mutual exchange.
The Ombudsman has also considered the landlord’s knowledge and information management.
The Ombudsman has also considered the landlord’s complaint handling.

Background

The applicant’s father had been a secure tenant at the property, a 3-bedroom house, since 1963. The landlord is a local authority.
The applicant’s father had Parkinson’s disease and consequently spent time in a care home from 2020. The applicant had hoped his father would be able to return home but it was decided on 1 September 2020 that he would need to remain living there permanently.
The applicant submitted an application to take over the tenancy from his father on 5 August 2020. The applicant told the landlord he had been living at the property with his father for over 12 months before his father had moved into the care home.
On 14 September 2020, the landlord told the applicant his father would need to instigate the assignment of tenancy, but acknowledged his father did not have the capacity to do this because of his condition. The landlord said it would investigate further. The applicant continued living in the property while this was ongoing.
The landlord told the applicant he could bid for properties though the council’s choice based lettings scheme. On an unknown date around March 2022, the applicant says the landlord told him he could also seek a mutual exchange to swap the tenancy of his father’s property, in which he was still living, to a new, more suitable property.
The applicant sent the landlord a completed mutual exchange application on 13 June 2022, which proposed a mutual exchange involving his father’s tenancy and 2 other tenancies.
On an unknown date between 13 June 2022 and 10 August 2022, the landlord told the applicant he was ineligible for the mutual exchange process because he did not have security of tenure at the property.
The applicant raised an online complaint on 10 August 2022, in which he said:
1. The landlord told him in August 2021 that he could stay in the property until he found a new home under the bidding system.
2. He had been bidding on properties until 3 months prior, when the landlord had told him to try for a mutual exchange. The landlord had allowed him to register on its ‘Home Swapper’ website for this purpose.
3. After 3 months of searching, he had found an appropriate swap deal and had completed all the required paperwork with the other parties.
4. The landlord logged his application on the system on 13 June 2022 and told him it would contact him shortly after. However, he received no updates, which meant he had to chase it 3 times before the landlord told him he was ineligible for the mutual exchange process.
5. Because of the landlord’s misinformation, he had wasted 3 months attempting the mutual exchange process when he could have been bidding on properties.
6. This matter had caused distress and inconvenience to him, as well as the two other parties involved in the proposed mutual exchange.
The landlord issued its stage 1 response on 25 August 2022, in which it:
1. Acknowledged the applicant had complained about being refused a tenancy assignment, the landlord not returning telephone calls in a timely manner, and conflicting information he had received from the landlord.
2. Said it was bound by the Housing Act 1985 (as amended), and an assignment of the tenancy was not possible.
3. Told the applicant it had awarded him high priority banding for the home bidding system, and he should continue with this. It offered to provide further assistance with this process if required.
4. “Fully” accepted it had misadvised him about having the option to complete a mutual exchange.
5. Said it had organised training for the relevant team to try to prevent this mistake from reoccurring.
6. Accepted it had not called him back on several occasions when it should have.
7. Apologised for the issues identified and said the complaint would be recorded as upheld.
8. Provided details on how the applicant could escalate the complaint to stage 2 if he felt dissatisfied with the response.
The applicant wrote an undated letter to the landlord, which it received on 7 September 2022. In it, the applicant asked to escalate his complaint to stage 2 because:
1. He felt that, had the landlord acted more quickly and listened to what he had told it about his father, the outcome on the tenancy assignment may have been different.
2. The landlord had told him that, had his father died, he would have succeeded the tenancy. He therefore felt he was being punished because his father had moved into a care home.
3. He could not accept simply an apology for the stress and anxiety the misinformation about the mutual exchange had caused to him and the other parties involved.
4. If the landlord agreed to the mutual exchange it would take him off the housing list and benefit the landlord because the other party in the mutual exchange did not want the property to be redecorated.
5. The matter had caused stress and brought him to the point of hopelessness, particularly because of his health issues which he had previously told the landlord about.
The landlord acknowledged the applicant’s escalation request on 8 September 2022 and told him it would contact him.
The applicant emailed the landlord on 3 October 2022 asking for an update, saying he had not heard anything for almost a month.
The landlord sent an email to the applicant on 4 October 2022, in which it said:
1. It was sorry for the delay in providing its response.
2. It could not consider the part of his complaint about the tenancy assignment any further because it was a matter of law covered under the Housing Act 1985.
3. It could also not consider his complaint about him not being eligible for a mutual exchange because this was also indirectly covered under the Housing Act 1985.
4. The applicant had the right to approach this Service with the matter if he felt dissatisfied.
The applicant duly made his complaint to this Service on 28 November 2022.
On 24 May 2023, this Service called the applicant about his case. During this call, he informed us the landlord had provided him with a tenancy at a new address.

Assessment and findings

Scope of investigation

Section 41(c) of the Housing Ombudsman Scheme says the Ombudsman cannot consider matters that are the subject of court proceedings or were the subject of court proceedings where judgement on the merits was given.
When the applicant brought his complaint to this Service, he raised the issue around his right to be assigned his father’s tenancy. The landlord has provided this Service with a copy of its particulars of claim, which shows this matter was dealt with through a possession claim in the courts. As such, this issue will not be included as part of this report. This investigation will focus on the other issue raised in the applicant’s complaint – namely, alleged misinformation he received about his right to a mutual exchange, and the landlord’s handling of this and his subsequent complaint.

Information about mutual exchange

In this case, it has not been possible to determine exactly what advice the landlord gave the applicant, and when, about his right to a mutual exchange, because of the landlord’s poor record keeping. We provided the landlord with an opportunity to provide additional information to this Service, but it did not do so. The landlord’s record keeping is assessed separately below.
The landlord’s stage 1 complaint response shows it agreed with the applicant that it did misadvise him about his right to a mutual exchange. As this is not in dispute, it is reasonable for the Ombudsman to accept this.
The applicant has described how he spent 3 months searching for an appropriate house swap under the mutual exchange process based on the landlord’s misinformation. This is time the applicant could have spent bidding on properties under the correct process. The Ombudsman notes the landlord has now housed the applicant, but it is possible this could have happened sooner – and prevented stress and inconvenience for the applicant – had the landlord not misadvised him.

Knowledge and information management

The Ombudsman has issued guidance about record keeping in its ‘Spotlight on: Knowledge and Information Management’ report. This stresses the importance of good record keeping, describing it as “the closest thing the sector could get to a silver bullet” enabling landlords to provide a better service.
This Service contacted the landlord twice during the course of this investigation to request copies of all its telephone records with the applicant, but these were not provided.
As part of his complaint, the applicant raised the issue of the landlord not returning his calls several times when agreed. In its stage 1 response, the landlord said the applicant’s housing officer had left the business, so it could not check this and it therefore fully accepted the applicant’s claims. This points to further poor record keeping from the landlord because, had there been up to date consistent record keeping on a central system, the landlord would have been able to investigate this further without the need to speak to the former housing officer.
In his stage 2 escalation request, the applicant said he had health issues and had previously informed the landlord of this. There is no indication the landlord made a record of any health issues or took these into account when dealing with the matter. It is imperative that the landlord updates its records with any vulnerabilities to ensure it can accommodate service users’ needs. Had the landlord done this, it could have adapted its approach to the applicant.

Complaint handling

The landlord’s complaints procedure says it will “talk with everyone involved” before issuing a formal response.
There is no evidence to show the landlord called the applicant to discuss the complaint at stage 1 of the process, but this may be owing to the landlord’s poor record keeping.
It is evident the landlord did not call the applicant after he requested a stage 2 escalation, because the applicant emailed it on 3 October 2022 saying he had not heard anything for almost a month. The landlord then sent its response by email on 4 October 2022 without calling the applicant. This was a failure by the landlord to abide by its policy.
Section 5.6 of the Housing Ombudsman’s Complaint Handling Code (the Code) says that any remedy offered by landlords must reflect the extent of any service failures and the level of detriment caused to the complainant as a result.
Section 5.7 of the Code says factors to consider when formulating a remedy can include:
1. Length of time a situation has been ongoing.
2. Frequency with which something has occurred.
3. Severity of any service failure or omission.
4. Number of different failures.
5. Cumulative impact on the complainant.
6. A complainant’s particular circumstances or vulnerabilities.
Despite accepting in its stage 1 response it had misadvised the applicant about his eligibility for a mutual exchange and that it had failed to call him on several occasions, the only remedy the landlord provided was to apologise in writing. This was not proportionate to the significant inconvenience the applicant had faced in spending 3 months navigating the mutual exchange process, visiting properties, finding a suitable exchange, liaising with the other parties involved and completing the required paperwork. This also did not address the distress the applicant faced because of the landlord’s failings, particularly given his health issues and the worries he may have had about potentially becoming homeless.
Section 4.11 of the Code says that landlords should not unreasonably refuse to escalate a complaint through all stages of the complaints procedure and they must have clear and valid reasons if they take that course of action.
The landlord’s given reason for refusing to escalate the applicant’s complaint to stage 2 – namely, that the Housing Act 1985 covers tenancy assignments and mutual exchanges – was not valid. Even if this was the landlord’s view, it should have included this as part of a full stage 2 response.
Furthermore, in saying this, the landlord seemingly misunderstood the applicant’s complaint. The applicant was not seeking to argue that he was legally entitled to a mutual exchange but rather he was complaining that the landlord had misadvised him about his right to a mutual exchange. The landlord could have provided a full response to this complaint without the need to refer to the legislation. Had the landlord properly assessed and responded to the complaint, while working with the applicant to find a housing solution, this may have prevented escalation to the Ombudsman.

Determination

In accordance with section 52 of the Housing Ombudsman Scheme, there has been maladministration with the landlord’s:
1. Information about the applicant’s right to a mutual exchange.
2. Knowledge and information management.
3. Complaint handling.

Orders and recommendations

Orders

It is hereby ordered that, within 4 weeks of the date of this report, the landlord provides the applicant with a payment of £350. This comprises:
1. £250 for the distress and inconvenience caused to the applicant by the landlord’s misinformation about the mutual exchange.
2. £100 for the inconvenience caused by the landlord’s poor complaint handling and record keeping.
It is ordered that the landlord provides the applicant with an apology written by a senior member of staff.

Recommendations

It is recommended that the landlord carries out a review of its record keeping practices in light of the Ombudsman’s ‘Spotlight on: Knowledge and Information Management’ report.