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Vivid Housing Limited (202125975)

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REPORT

COMPLAINT 202125975

Vivid Housing Limited

10 August 2022


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 the landlord’s handling of:
    1. The resident’s application to buy her home via the right to buy (RTB) scheme.
    2. The resident’s reports of electrical repairs in the property.
    3. The resident’s reports of damp and mould in the property.
    4. The associated complaint.

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 the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.

a. The resident’s reports of damp and mould in the property.

  1. The Ombudsman cannot consider this issue as part of the current complaint investigation. This is in accordance with paragraph 39(a) of the Housing Ombudsman Scheme which states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, are made prior to having exhausted a member’s [landlord’s] complaints procedure unless if there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not acted within a reasonable timescale.
  2. As this is a separate issue to the complaint raised with the landlord, this is not something on which this Service can adjudicate at this stage, as the landlord needs to be provided with the opportunity to investigate and respond to this aspect of the complaint before the Ombudsman can consider it. The resident will need to contact the landlord and, if appropriate, raise a separate complaint to get these matters resolved. If the resident remains dissatisfied once she has received the landlord’s final response to her complaint, she may be able to refer the matter to the Ombudsman for investigation as a separate complaint at that stage

Background

  1. The resident is an assured tenant of the landlord. In 2009 the resident completed a mutual exchange to move to her current property.
  2. On 4 January 2022 the resident contacted the landlord to enquire why she was not eligible to buy her property under the prescribed RTB. The resident stated in 2009 when she mutually exchanged, she was informed she would be eligible for RTB.
  3. On 10 January 2022, the landlord emailed the resident informing her she was not eligible to buy her property under the RTB scheme. The landlord stated that when the property was transferred from the local authority to the landlord, the residents who held a tenancy established a preserved RTB with the landlord. As the resident had not held a tenancy prior to 18 February 1996, when the landlord took over the local authority’s properties. The landlord also stated that upon completing a mutual exchange, the resident takes over the terms and conditions of the tenancy but not the start date of the previous tenancy. Therefore, the resident did not qualify for a preserved RTB.
  4. On 23 January 2022, the resident complained to the landlord. The resident stated that upon her mutual exchange in 2009 she was informed that she would inherit the preserved RTB from the previous resident. The resident also stated that the mutual exchange ‘sheet’ states that ‘the new resident takes on the rights of the old resident’. She said the deed of assignment stated that it assigns the ‘new tenant all of the estate and interest in the tenancy’. The resident stated that the documents were legally binding, and ‘goes against’ what she was being informed. The resident also stated that it was never explained to her at the point of the mutual exchange, that she would lose all of her rights. She had previously had Right to Acquire (RTA) (a similar scheme to RTB) when she lived in her previous property. The resident also raised concerns regarding the electrics in her current property, which upon inspection in 2009 were ‘not in-line’ with current regulations. The resident said she had damp in the property which had taken the landlord two years to resolve. The resident stated that she would be willing to ‘take on’ the electrical work and work to resolve the damp, if she were able to purchase the property.
  5. On 11 February 2022, the landlord issued its stage one complaint response. The landlord stated that the resident did not have RTB. The landlord stated that the RTB is a personal right and cannot be exchanged between tenants as part of a mutual exchange. The landlord explained that the RTB is a Government scheme in which a strict criterion is set that must be followed, and for which discretion cannot be applied. In regard to the electrical work the landlord stated an inspection would be arranged to complete any works required.
  6. On 13 February 2022, the resident requested her complaint be escalated to stage two of the landlord’s complaints process. The resident stated that she would not have completed the move, had she known she would not be able to buy the property. The resident stated she didn’t see it as fair that certain residents can take rights with them, but others cannot. The resident also stated she felt that this was discriminatory. The resident stated that the landlord also did not ‘keep up with modernisation or standards’ in regard to the electric.
  7. On 24 September 2022, the landlord refused to escalate the resident’s complaint to stage two of its complaints process. It explained it had made this decision as the resolution being sought was outside of its control because it could not allow the resident to buy her property, in line with government legislation.
  8. On the same day, the resident referred this matter to this Service. The resident stated that she remained dissatisfied that the landlord would not allow her to buy her property under the RTB scheme. As a resolution, the resident is seeking for the landlord to review its decision regarding the RTB and allow her to buy the property.

Assessment and findings

Scope of investigation.

  1. The resident stated that she was informed in 2009 that she would be able to buy her new property following a mutual exchange. Whilst the Ombudsman appreciates that these are longstanding issues; the Ombudsman will generally consider events which occurred up to 12 months prior to a formal complaint being raised to the landlord; this is in line with the Housing Ombudsman Scheme, which sets out the rules which govern our service. Landlords are not expected to keep detailed records indefinitely and the landlord would not be expected to have extensive records of issues arising thirteen years prior. For this reason, it would not be possible for the Ombudsman to assess what information the resident was given in 2009 as part of the mutual exchange process. Therefore, the Ombudsman’s investigation does not consider any specific events prior to January 2021, which is 12 months before the resident complained to the landlord in January 2022.

Policies and procedures

  1. The landlord’s complaints policy states that, the landlord will not unreasonably decline a request for a complaint to be reviewed at Stage 2 of its internal complaints process, but the request may be declined if the resident:
    1. Hasn’t provided specific reasons for requesting a review
    2. Solely seeks a resolution that’s outside of the landlord’s control, its policies or is unreasonable
    3. Has refused to engage with staff in trying to resolve the complaint at an earlier stage
    4. Is behaving in a manner which is considered unacceptable

Where a request is declined, this decision will be authorised by a senior manager, and the reasons will be clearly explained to the resident.

RTB application.

  1. The Government guidance states that if residents have completed a mutual exchange, the resident’s current tenancy is treated as a new tenancy and the resident retains their own tenancy history and not that of the other resident they have exchanged with.
  2. The landlord has explained that by way of legislation a mutual exchange does not mean an exchange of the rights attached to the tenancy, as such a person with the Right to Acquire exchanging with an individual with the Right to Buy, exchanges the tenancy but does not inherit the Right to Buy. Therefore, it was unable to authorise the resident’s application and this was reasonable based on the evidence provided and in accordance with the relevant legislation and government guidance. As explained by the landlord in its complaint responses, the RTB process has strict criteria and does not allow landlords any discretion. Therefore the landlord could not allow the resident to purchase the property as she did not meet the criteria for RTB and the Ombudsman would not order the landlord to do so.
  3. The resident has stated that she believes her mutual exchange ‘sheet’ and deed of assignment document, state that she would take over the rights of the previous tenant. The Ombudsman notes the resident’s comments, however, it is beyond this Service’s remit to consider or conclude the legal meaning of these documents and the scope of the wording used. This would be a legal matter which would be better suited to a court to decide. Therefore, this Service suggests that if the resident has concerns regarding the wording of the agreements and requires a legal interpretation of the meanings, she should seek independent legal advice for further support on the matter.
  4. It is acknowledged that the resident stated she was informed in 2009, that she would be able to buy the property. However, as discussed above this Service cannot consider that conversation as evidence due to time limitations. However, we can establish if the landlord’s response to the resident’s claims were appropriate in the circumstances.
  5. In response to the resident’s comments about what she was told in 2009, the landlord reviewed its documentation in relation to the mutual exchange and attempted to identify any supporting evidence for the resident’s claims. This was a reasonable action for the landlord to take, as it needed to establish if there was any evidence to show that false information had been provided. However, upon review the landlord could not find any information to support the resident’s claims. Therefore, the landlord was reasonable to rely upon the evidence that this advice had not been given. However, if the resident is able to find evidence of the information being provided to her, the landlord should investigate the matter further. However, any such investigation would not result in the landlord allowing the resident to buy the property because as explained above, the landlord cannot allow this under the RTB scheme.

Electrical repairs.

  1. As stated above, this Service cannot look back as far as 2009 (see scope of investigation). However, the landlord could only be expected to resolve any repair issues once it was made aware of them. In this case, there is no evidence to suggest that the resident  contacted the landlord directly to inform it of her concern regarding the electrics in the property until January 2021, despite the resident stating that the electrical work was not up to standard when she moved to the property in 2009. Following a mutual exchange, residents take on the property “as seen” and the landlord would not carry out a detailed inspection to identify any repair issues as it would if the property was vacant before it was let to a new tenant. . Whilst the resident would be entitled to have any essential repairs which the landlord is responsible for carried out done once they moved in, the resident would be responsible for reporting any repairs to the landlord. The landlord cannot be held responsible for a period of time which it was unaware that a repair needed to take place.
  2. The landlord responded to the residents concerns about her electrics by completing an inspection of the electrics on 24 June 2022. Further works are scheduled for 14 October 2022. Therefore, the landlord acted appropriately by attending the property and completing a full inspection of the electrical work and furthermore, arranging the required repairs.

 

 

Complaint handling.

  1. In the correspondence provided, the landlord refused to escalate the resident’s complaint to stage two of its internal complaints process. As per the landlord’s complaints policy an escalation may be declined if the resident solely seeks a resolution that’s outside the landlord’s control to provide.
  2. As established above, the landlord would not be able to provide the resident with her desired resolution of being entitled to the RTB scheme, as this is a government scheme in which the landlord does not have any discretion to choose who is eligible to participate. Therefore, the landlord was reasonable in denying the resident’s request to escalate her complaint to stage two of its complaints process as there was no possibility that its decision would change if it reviewed the complaint again because the resident was seeking an outcome which was outside the landlord’s ability to provide. Although it refused the resident’s escalation request, the landlord provided details of how she could contact the Ombudsman. Therefore the resident was able to escalate her complaint further outside the landlord’s complaint process and was not prevented or delayed in doing so because of the landlord’s decision not to issue a further complaint response.

Determination

  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:
    1.  Application to buy her home via the RTB scheme.
    2. Reports of electrical repairs in the property.
    3. Associated complaint.