Teign Housing (201914975)

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REPORT

COMPLAINT 201914975

Teign Housing

22 January 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 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 the landlord’s handling of:

a)     The level of support and guidance given by the landlord to the resident when she was trying to progress a mutual exchange.

b)     The resident’s request to be reimbursed for the rent she paid for the property which she was not able to move into.

c)     The landlord’s complaint handling.

Background and summary of events

2.     The resident applied for a mutual exchange on 26 June 2019, which would have made her a tenant of the landlord.

3.     On 27 June 2019, the landlord acknowledged receipt of the resident’s application. The landlord completed a pre-tenancy form with the resident on 11 July 2019 via a telephone call.

4.     In a letter to the resident, dated 15 August 2019, the landlord confirmed that permission was given to the resident to exchange properties with its tenant and an assignment of tenancy would be prepared and effective from 26 August 2019. It confirmed that the resident could make her own arrangements with its tenant to exchange keys.

5.     On 30 August 2019, the resident signed a tenancy agreement with the landlord, which commenced on 2 September 2019.

6.     The landlord corresponded with the resident’s other, original landlord on 2 September 2019, which advised the landlord that it received an email from the resident stating that she no longer wanted to move.

7.     On 6 September 2019, the landlord wrote to the resident to advise that, if she wished to end her tenancy agreement, she would need to issue it with four weeks written notice. Until this was done, the resident would be liable for the weekly rent of £90.39.

8.     There followed correspondence between the two landlords, in which the landlord said on 13 September 2019 that the resident seemed to be warming to the idea of moving into its property, but that the other tenant who she was exchanging with had not been approached about this. On 20 September 2019, the resident’s other, original landlord said that it appeared that the resident was adamant on not moving out of its property and the other tenant accepted that the mutual exchange could not go any further.

9.     On 24 September 2019, the landlord asked the resident to make contact regarding her issuing it with the above notice on its property and said that it required the resident to complete a termination form.

10. The resident responded on the same day that she was not sure what the landlord meant. She said that she understood that the landlord’s previous tenant did not wish to have any “dialogue” with her, and it was difficult to communicate or find out what their intentions were. She also confirmed that she had paid rent.

11. On 25 September 2019, the landlord confirmed to the resident that it understood that she wished to give notice on the property and it enclosed a termination of tenancy form for her to complete and return. It asked her to do this by 4 October 2019. Due to the circumstances of this mutual exchange, the landlord said it was willing to accept two weeks’ notice from the resident, to commence from 23 September 2019 and end on 6 October 2019. Until the resident completed and returned the termination form, she would continue to be liable for the weekly rent.

12. The resident replied on the same day that she was unsure where the landlord gained the information that she wished to give notice and said she was relying on the landlord to provide updates so far as the other tenant’s wishes or intentions.

13. On 27 September 2019, the resident advised the landlord that she had no communication with her previous landlord or the exchange tenant since 2 September 2019 and assumed that the mutual exchange was going ahead. She said that she was awaiting further direction from the landlord regarding what the exchange tenant was requesting “given I was asked not to communicate with them directly”.

14. The landlord emailed the resident on 27 September 2019 to express its concern with the situation and the “seemingly lack of correspondence from the resident with regard to her intentions.” It said that the other, original landlord suggested that the resident was remaining in its property, at her wishes. The landlord said, “this situation has come from the fact that you refused to move after a mutual exchange had already taken place, which has caused a great deal of stress for the previous tenants”. It suggested that the resident make contact with her previous landlord to discuss her intentions and then advise it what those intentions were.

15. The resident replied to the landlord on 27 September 2019 and said that she had been in contact with it asking about how the situation could be resolved given that she was advised not to contact the exchange tenant. The resident said she had asked what their intentions were as she was told they were pursuing the exchange, but she had been given no indication as to how keys could be exchanged. Furthermore, the resident said she had no communication with her previous landlord. She had her gas capped off ready for the new tenant and made payments as suggested to the landlord.

16. On 3 October 2019, the landlord advised the resident that the previous landlord said that she told them she had sent the landlord a signed termination form. The landlord confirmed it had not received this and asked that this was re-sent. The resident replied that she had not spoken to the other landlord and only contacted it to ask what the intentions of the other tenant were, as the landlord said that it believed that the resident had given notice. The resident said she asked on a number of occasions what the other tenants wished to do because she was not able to speak directly with them. The resident confirmed that she would speak with her previous landlord as she was concerned that they were giving incorrect information to the landlord or potentially speaking with someone else purporting to be her.

17. The landlord asked the resident to contact its office on 3 October 2019 and it said that it wished to forward the resident’s emails to her previous landlord as there seemed to be a lack of communication between them and the resident. 

18. On 10 October 2019, the resident confirmed that she wished to proceed with the mutual exchange and swap keys with the other tenant and had been trying to ascertain whether they had themselves asked for the notice to be given, as she had not requested this. She confirmed that she been reliant on the two landlords to communicate with the other tenant and subsequently herself.

19. In reply, the landlord asked the resident on 10 October 2019 to contact the current occupant of its property to discuss their intentions.

20. On 11 October 2019, the resident confirmed that she had contacted the current occupant of the property, who said that they had unpacked their items and that they would only move if the resident paid for their removal costs which she could not do. The resident confirmed that she had signed the termination form and would forward this to the landlord if she was unable to come to an agreement with the other tenant.

21. On 14 October 2019, the resident sent the landlord the signed termination form, explaining that she had no other option as she was not able to pay the full removal costs for the other tenant, which was their condition to move. The landlord replied on the same date that it could accept two weeks’ notice commencing on 14 October 2019, bringing the tenancy to an end on 27 October 2019.

22. On 15 December 2019, the resident complained to the landlord. She explained that, on the weekend prior to the tenancy commencing on 2 September 2019, she spoke with its other, current tenant and it was discussed that both households were having trouble moving. However, on 2 September 2019 both the landlords advised the resident that the other tenant was pursuing the situation in relation to the mutual exchange. The resident said that on this day she was told that the other tenant did not wish to have a dialogue with her.

23. The resident confirmed that she had sent numerous emails to both landlords trying to ascertain the other tenant’s intentions, until she was told by the landlord she could now make contact with the other tenant to discuss the exchange of keys. The other tenant would only move, however, if the resident paid their removal costs. Thus, the resident forwarded the landlord a termination form and paid it the amount that she was told to. The resident explained that the other landlord reinstated her tenancy and informed her that the other tenant had been refunded in full.

24. The resident complained that the landlord did nothing to assist her in gaining occupation of its property and, as the other landlord reinstated her tenancy and refunded the other tenant, her account was charged for the two months and therefore she had been paying for both properties. The resident asked that she was refunded the rent that she paid the landlord because the other party in the mutual exchange prevented her from residing there and that it reviewed its current practice so that others did not have to deal with a similar situation.

25. The landlord responded to the complaint on 24 December 2019. It said that, when the resident signed the tenancy for its property, she signed a legal document which stipulated her responsibilities and included the payment of rent. As this was “properly and lawfully executed” the landlord said this did not make the contract unfulfillable. The landlord said that the legal stance was that the resident decided not to occupy the property and the tenancy was the contract, not the exchanging of keys. Therefore, the landlord said that there was no requirement for it to reimburse the resident. It confirmed that the resident may escalate her complaint to stage one of its complaints procedure if she remained unhappy.

26. On the same day, the resident asked to escalate her complaint to stage one of the landlord’s complaints procedure because she did not feel that the response was “any different to what has previously been discussed” or that her complaint had been fully considered.

27. The resident chased an acknowledgement of her stage one complaint on 2 and 7 January 2020 and the landlord acknowledged the complaint on 7 January 2020.

28. The resident chased the landlord for a stage one complaint response again on 15 January 2020.

29. The landlord responded to the resident’s stage one complaint on 15 January 2020. It confirmed that the resident signed a tenancy agreement commencing 2 September 2019, which confirmed that rent was due and payable from that date. The resident was then sent a tenancy termination form to sign to bring the tenancy to an end as of the 6 October 2019. This would be a two-week notice period, rather than the usual four weeks’ notice.

30. The landlord noted that the resident did not return this form until 11 October 2019, so it commenced the two-week notice period from the following Monday, which was 14 October 2019, and the tenancy ended on 27 October 2019. The landlord confirmed that the rent was charged correctly for 2 September to 27 October 2019. The landlord found that the resident was liable for the rent, as per her tenancy “it is clear that you cancelled the initial moving date with the other household and subsequently we received notice from you.” The landlord said that it was unable to comment on the actions of the other landlord. It advised how the resident may escalate her complaint if she remained unhappy.

31. On 15 January 2020, the resident asked the landlord to escalate her complaint to stage two of the landlord’s complaints procedure. She explained that not all of her complaint had been addressed, namely that she did not feel that the landlord did anything to assist her in gaining the keys to the property, despite her being informed not to have a dialogue with the other tenant, and that the other landlord had reimbursed the other tenant.

32. The landlord acknowledged the stage two escalation request on 23 January 2020.

33. In the landlord’s final stage two complaint response, dated 28 January 2020, it said that “the salient point to your enquiry relates to the fact that you have signed a tenancy agreement with the landlord. That is essentially a contract which requires you to give four weeks’ notice. Given the extraordinary circumstances, however, it has been agreed that you give two weeks’ notice.” It said that it could not “guess” why the other landlord would offer a rent rebate to the tenant who was intending to exchange with the resident, and it did not have confirmation of this. The landlord advised that this was its final response to the complaint.

34. The resident visited one of the landlord’s staff members on 4 February 2020 and it sent the resident an email on the following day. In this, the landlord said that there were several interpretations on what happened in the lead up to and after the mutual exchange was due to be completed and it was not its “intention to judge or speculate”. It continued to confirm that, both parties signed new tenancy agreements even though at least one party had changed their mind.

35. The landlord confirmed that neither party physically moved into their new tenancies and keys were not exchanged. It advised that, from a legal perspective, both parties then needed to give notice on their new tenancies for them to be closed down, so that they could be re-assigned to their previous tenancies. The landlord expressed the importance of each party doing the necessary research to satisfy themselves that this is the right move for them and their household.

Assessment and findings

Mutual exchange

36. There is no evidence that the resident was told not to contact the other tenant and the landlord advised the resident in its letter of 15 August 2019 that she was to arrange to exchange keys with the other tenant. This is common practice. The landlord’s mutual exchange policy does not advise that it will arrange this. Therefore, the landlord was not responsible for the communication and arrangement of the key exchange between the residents.

37. However, the resident repeatedly contacted the landlord to advise that she was of the understanding that she was not to communicate with the other tenant and was struggling to ascertain their intentions. It would therefore have been reasonable for the landlord to explain its responsibilities and potentially provide the resident with advice on how to proceed.

38. The other tenant additionally remained in possession of the landlord’s property throughout the entire period of the attempted mutual exchange and it was aware of this and that the resident reported being unable to communicate with the other tenant for some of this time. This meant that it would have also been appropriate for it to have contacted the other tenant to try and confirm their intentions directly and to have advised the resident accordingly.

Rent reimbursement

39. The resident’s tenancy agreement with the landlord confirms that the agreement, signed by the resident on 30 August 2019, came into effect on 2 September 2019 and that the rent amount detailed was due from the latter date. The tenancy agreement also says that residents can end the tenancy by giving the landlord at least four weeks’ written notice, ending on a Sunday.

40. The landlord’s response regarding this aspect of the complaint was in line with the tenancy agreement. It clearly explained why the resident was required to pay rent and that she was obliged to do so as per the date in her tenancy agreement, regardless of whether the keys were exchanged or not. The landlord also required the resident to provide a shorter notice period than it was obliged to, considering the circumstances. Therefore, the response was reasonable.

41. Furthermore, it is not for the landlord to investigate and explain why the other landlord chose to reimburse the residents of the property that the resident was supposed to move into, and subsequently if the resident was charged for the time that she was not the other landlord’s tenant. This is something that is more appropriate for the other landlord to investigate and consider.


Complaint handling

42. It was a key aspect of the resident’s complaint that she understood that she was not to communicate with the other tenant about the mutual exchange and that she did not receive assistance with ascertaining their intentions. In each of her complaint escalations she asked the landlord to address this. The landlord failed to address this part of the resident’s complaint, which was service failure.

43. The resident also complained to this Service that the landlord did not escalate the complaint further to its final” stage two complaint response. Following its ‘stage two review’ of the complaint, the landlord advised that this was its final response to the complaint. The landlord’s complaints procedure says that ‘stage three (panel)’ reviews are available to tenants, leaseholders, shared owners and applicants only. As, at the time of making the complaint, the resident was not a tenant of nor any longer an applicant to the landlord, it was appropriate for the landlord to conclude the complaint at the ‘stage two review’ stage of the complaint, as per its complaints procedure.

Determination (decision)

44. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s complaint about the level of support and guidance given when she was trying to progress a mutual exchange.

45. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s complaint about its complaint handling.

46. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s request to be reimbursed for the rent that she paid for the property which she was not able to move into.

Reasons

47. The landlord concluding the complaint at the ‘stage two review’ stage was in line with its complaints procedure, but the landlord failed to address the resident’s complaint about level of support and guidance given when she was trying to progress a mutual exchange. The landlord was not obliged to arrange for the keys to be exchanged, but its communication with the resident about this could have been better.

48. The landlord’s response to the resident’s request to be reimbursed the rent she paid was in line with the tenancy agreement she held with the landlord.

Orders

49. The landlord is ordered to:

a)     apologise to the resident, and

b)     pay the resident £100 compensation, in acknowledgment of the service failures identified, within four weeks of the date of this determination.

Recommendation

50.The landlord should review its communication with all parties to mutual exchanges for its properties in light of the above findings to try and prevent its service failures in this case from occurring again in the future.

51.The landlord shall contact this Service within four weeks of the date of this determination to confirm that it has complied with the above order.

52.The Ombudsman accepts that, because of the present restrictions due to the coronavirus pandemic, the timing of the above actions will depend on what is reasonable in the light of Government guidance regarding the health of the resident and of the landlord’s staff.