Rochdale Boroughwide Housing Limited (202108118)

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REPORT

COMPLAINT 202108118

Rochdale Boroughwide Housing Limited

30 September 2021


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 application for a mutual exchange.
    2. The landlord’s decision to not allocate the proposed property to the resident following the collapse of the mutual exchange.

Jurisdiction

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
  2. After carefully considering all the evidence, in accordance with paragraph 39 (m) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
    1. The landlord’s decision to not allocate the proposed property to the resident following the collapse of the mutual exchange.
  3. The landlord arranges new allocations of properties on behalf of the local authority.
  4. Under Paragraph 39 (m) of the Housing Ombudsman Scheme, the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator, or complaints-handling body. The Housing Ombudsman cannot consider complaints which relate to decisions on applications for re-housing made by or on behalf of local authorities Complaints about the assessment of such applications, the awarding of points or bandings, are more likely to be considered by the Local Government and Social Care Ombudsman (LGSCO). Please note, residents need to have complained to the local authority before bringing a complaint to the LGSCO.

Background and summary of events

  1. As part of this investigation, correspondence has been received from both the resident and her partner. For clarity, this investigation will refer to both the resident and her partner as ‘the resident’.
  2. The resident is not a tenant of the landlord but is a tenant of a different landlord. The resident and a third party had agreed to a mutual exchange, whereby the resident and the third party would exchange properties. The third party is a tenant of the landlord, who lives in a property managed by the landlord, which the resident wished to move to as part of the mutual exchange.
  3. The third party completed a mutual exchange application to exchange properties with the resident. The application was received by the landlord on 29 March 2021.
  4. On 22 April 2021, the landlord emailed the resident to confirm that it could not authorise the mutual exchange to go ahead on the grounds that the property she was looking to move to did not meet her requirements and it would be putting her at risk if this was allowed to go ahead. The landlord explained that her Occupational Health (OH) assessment stated that she required a wet room or walk-in shower, which the proposed property did not have, and that she was unable to use the stairs without assistance.
  5. The resident’s reply of 24 April 2021 clarified her position as follows:
    1. The stairs at the proposed new property would not be a problem, as stairs help her exercise; and with the help of her carer, she was able to manage them in the morning and evenings.
    2. She would ask permission to install a walk-in shower in the new property at her own expense.
    3. The new property had a downstairs toilet, which meant she only had to use the stairs twice a day to access the bedroom.
  6. She concluded by asking the landlord to reconsider its position, stating she was willing to sign a disclaimer, in which she would take full responsibility for moving to a property that did not fully meet her needs.
  7. On 29 April 2021 the landlord reiterated that its original decision was correct and also that it could not authorise a mutual exchange which put her in a

two-bedroom house when the OH assessment stated that she needed a ground-floor property, with a level-access shower, or a house with a bedroom and level-access shower downstairs.

  1. In the resident’s complaint email (undated), she expressed her dissatisfaction with the landlord’s responses, contending that the landlord had ignored her situation and stated that the main issue was that to find a property that met all her requirements would take years and, as such, would result in her remaining in an unsuitable property in the meantime.
  2. In the landlord’s stage one complaint response, dated 11 May 2021, it acknowledged that the resident’s OH assessment was outdated and therefore it confirmed that this would be removed from the application and would be reviewed, with the landlord confirming that it would notify her of any changes. Nevertheless, it said that the resident did not qualify for the requested mutual exchange at this stage because she had a need for a two-bedroom property and the property she wished to exchange with was a three-bedroom property.
  3. On 14 May 2021 the resident emailed the landlord to appeal its decision on the basis that she had been informed previously by the landlord that the reasons set out in the landlord’s complaint response above would not be an issue, and she did in fact require a three-bedroom property.
  4. In the landlord’s stage two complaint response of 24 May 2021, it confirmed that it had considered all the relevant factors and determined that the mutual exchange should be allowed to go ahead. It said that, as she would be under occupying her new tenancy, she may be asked to sign a disclaimer to confirm that she understood the potential implications of this on any housing benefit she may wish to claim for in future.
  5. The resident’s local councillor wrote to the landlord on 8 June 2021 to contend that the resident’s proposed mutual exchange had fallen through due to the amount of time it was taking to approve, which resulted in the third party pulling out of the exchange.
  6. The landlord logged a formal complaint and provided a stage one complaint response on 9 June 2021. In it, the landlord explained the differences between new allocations (also known as lettings) and mutual exchanges, to clarify why the resident was eligible for a three-bedroom property via exchange but was not eligible for a three-bedroom property via its usual allocations process.
  7. Regarding the resident’s mutual exchange, the landlord explained that it had previously interpreted Schedule 14, Ground 7 of the Localism Act to mean that it would not allow under-occupation by a tenant wishing to exchange. However, it agreed that there was room for discretion in how this was interpreted. Therefore, in light of the complaint brought by the resident, it had reviewed this approach and had taken the decision that it would, in future, allow under-occupation by a maximum of one bedroom.
  8. In the resident’s councillor’s response email of 23 June 2021, the councillor clarified that the complaint was about the length of time it had taken the landlord to make the initial decision which had, as a result, caused the mutual exchange to collapse.  The councillor contended that if the landlord had looked at the resident’s circumstances more closely initially, the exchange would have gone ahead. Therefore, the councillor was seeking that the landlord accept that it was responsible for the exchange falling through and take steps to remedy its mistake.
  9. In the landlord’s stage two complaint response, dated 28 June 2021, it concluded the following:
    1. That its decision regarding the mutual exchange was within the 42-day period that the Localism Act 2011 allowed in order to provide its decision. Therefore, it did not accept that it was responsible for the exchange not going ahead.
  10. On 1 July 2021, the resident’s councillor requested that the Housing Ombudsman review:
    1. The landlord’s handling of the mutual exchange application, which resulted in the collapse of the exchange, due to the delay in the landlord providing its decision.
    2. The landlord’s decision to not allocate the resident the proposed property via allocation instead, following the collapse of the mutual exchange, on the basis that she only qualified for a two-bedroomed property.

Assessment and findings

Policies and Procedures

  1. The landlord’s tenancy policy states that Assured & Assured Shorthold tenants have the right to exchange their tenancy with another tenant of a Registered Provider (another registered social landlord such as a housing association or local authority). The landlord will consent to a Mutual Exchange unless the grounds for refusal apply.
  2. Schedule 14 of the Localism Act 2011 sets the grounds on which landlord may refuse to surrender and grant tenancies under section 158:
    1. Ground 7 of the schedule states that an exchange may be refused because the accommodation afforded by the dwelling-house proposed to be let on the new tenancy is substantially more extensive than is reasonably required by the existing tenant or tenants to whom the tenancy is proposed to be granted.
    2. Ground 8 of the schedule states that an exchange may be refused because the extent of the accommodation afforded by the dwelling-house proposed to be let on the new tenancy is not reasonably suitable to the needs of:
      1. the existing tenant or tenants to whom the tenancy is proposed to be granted; and
      2. the family of that tenant or those tenants.
  3. Section 159 of the Localism Act 2011 states that a landlord may not rely on any of the grounds set out in Schedule 14 unless the landlord has, within the period of 42 days beginning with receipt of the relevant tenants’ request, given each of the tenants a notice specifying the ground and giving particulars of it.

Scope of Investigation

  1. It is noted that the resident has said that the landlord’s refusal to allow the mutual exchange to go ahead has exacerbated her mental health issues. The Ombudsman does not doubt the resident’s comments regarding her medical condition, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. However, this Service will consider the general distress and inconvenience which the situation may have caused the resident as well as the landlord’s response to the resident’s concerns about her health. The resident may be able to make a personal injury claim against the landlord if she considers that her health has been affected by its actions. This is a legal process and the resident should seek independent legal advice if she wants to pursue this option.

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

  1. The landlord received the third party’s mutual exchange application on 29 March 2021 and provided its response, as well as its reasons for denying the mutual exchange, on 22 April 2021; this was within the stipulated timeframe of 42 days in which to provide a response and was in accordance with Schedule 14 of the Localism Act 2011.
  2. The landlord’s initial decision to refuse the mutual exchange based on the resident’s OH assessment was reasonable in the circumstances and supported by the grounds for refusal outlined in Ground 8 of Schedule 14 of the Localism Act 2011. Landlords are expected to take into account residents’ circumstances when considering requests for mutual exchanges and it would not be reasonable for a landlord to agree an exchange which may result in a resident being housed in a property which was unsuitable for their requirements.
  3. A review of the landlord’s decision was undertaken during the complaint process, which was reasonable for it to do in light of the resident’s appeal detailed in her complaint. The subsequent decision, detailed in the landlord’s stage one complaint response of 11 May 2021, took note of the resident’s comments regarding the OH assessment being outdated, and made the adjustments accordingly to remove this from the application and undertake a further review. However, the decision at the time of the stage one response to refuse the mutual exchange again was reasonable based on the stipulations outlined in Ground 7 of Schedule 14 of the Localism Act 2011 which says, as above that landlord can refuse to allow a mutual exchange if it will result in a tenant under-occupying a property.
  4. The landlord’s decision to agree for the mutual exchange to go ahead, on 24 May 2021, was also reasonable in light of the change of circumstances with the OH assessment. Moreover, the landlord also adapted its position and took a broader interpretation of Ground 7 of the Localism Act, explaining clearly its reasoning, and setting the expectation that a disclaimer may nevertheless be required.
  5. Although understandably frustrating for the resident, the landlord’s explanation was reasonable in the circumstances, in accordance with legislation, and it showed a willingness by the landlord to revaluate the resident’s change in circumstances and reconsider its original decision in light of her further comments.
  6. Unfortunately, shortly after the decision was reversed, the third party pulled out of the mutual exchange and the swap collapsed. This would have caused distress and inconvenience for the resident. However, the collapse of the mutual exchange could not be attributed to the landlord, as it had assessed the mutual exchange application in accordance with its obligations and made reasonable decisions and adaptations based on the information provided to it at the time. Ultimately, the landlord had no control over whether the third party decided to withdraw from the mutual exchange process.  In light of this, there was no maladministration by the landlord in its handling of the mutual exchange.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its handling of the resident’s application for a mutual exchange.

Reasons

  1. The landlord has adhered to the stipulations set out in the Localism Act 2011 and thereby no service failure has been found in the landlord’s handling of the resident’s mutual exchange.
  2. The landlord was in adherence with the Localism Act 2011 when it denied the application initially; and, when new information was presented to it, it was reasonable for the landlord to consider this and subsequently reverse its decision, with the caveat that a disclaimer may be required.
  3. The fact that the third party pulled out of the exchange whilst a decision was being made could not be attributed to the landlord.