Sanctuary Housing Association (202006890)

REPORT

COMPLAINT 202006890

Sanctuary Housing Association

8 June 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 the landlord’s refusal to allow the resident to purchase the property.

Background and summary of events

2. The resident has been a secure tenant of the landlord, at the current property, from 4 March 2002.
3. The landlord has a two stage complaints procedure whereby it aims to provide a response within 5-10 days at stage one and where a complainant is dissatisfied with the outcome and requests escalation of the matter, the landlord aims to investigate and provide a response within 20 working days at stage two.  On occasion, where an investigation requires a longer period of time, the landlord will communicate this to the complainant.
4. On 23 July 2020 the resident asked the landlord if she could purchase the property under what she believed was her right to buy and shortly thereafter sent her application, which was received by the landlord on 29 July 2020.
5. On 10 August 2020 the landlord contacted the resident, explaining that she was not eligible to purchase the property under its Preserved Right to Buy Scheme; however, it said that she may have the Right to Acquire, although this later turned out not to be the case.  No information has been provided to this Service explaining why it reached the conclusion that the resident was not eligible for the Right to Acquire scheme.
6. Email discussion continued, with the resident expressing her dissatisfaction with being told she was ineligible and the landlord reiterating the position and advising the resident she keep an eye on its website as any updates regarding the ability to purchase a property and changes to schemes or pilot schemes would be on there.
7. On 12 August 2020 the landlord emailed the resident following her request to speak to a member of the legal team and advised it would come back to her within 10 working days, in accordance with its target timeframes.
8. On 20 August 2020 the landlord responded to the resident, apologising for the delay and repeating its previously explained position. It invited the resident to let it know if she felt it had not considered something pertinent to her application.  In response, the resident advised that having had a conversation with someone on a Government website she had been told she was eligible to purchase the property as she signed the tenancy agreement (on another property) in 1988 and the law changed in 1989.
9. The landlord responded, stating that it did not have a record of the resident being a tenant from 1988 and asked her to provide it evidence of this.  It again stated that it only offers the Preserved Right to Buy where it preserves the rights of secure tenants who were part of a stock transfer from a local authority.
10. On 24 August 2020 the resident submitted a formal complaint to the landlord about its refusal to let her purchase the property under the Statutory Right to Buy Scheme, reiterating that she had spoken to a Government advisor who had told her that she was eligible. The following day, the landlord telephoned the resident to advise her that it would be in touch in due course.
11. On 7 September 2020 the landlord provided a stage one response to the complaint. The complaint was not upheld.  The landlord explained that it offered the Preserved Right to Buy but not the Statutory Right to Buy and in order to qualify for the Preserved Right to Buy the applicant would need to be a former local authority tenant whose property had been involved in a stock transferred to the landlord.  This was not the case for the resident.
12. On 8 September 2020 the resident requested escalation of her complaint to stage two of the landlord’s complaints procedure, as she did not believe the landlord’s decision to be right or fair, given the length of time she had been a tenant.
13. On 7 October 2020 the landlord sent its stage two response to the complaint. The complaint was again not upheld, with the landlord apologising that “the case had not been logged” but explained that even if it had of been, this would not have changed the outcome of the application.  It is not clear what it meant by ‘the case not being logged’.
14. The landlord said that if the resident was able to provide proof of her being a tenant from 1988 then it would reassess her application. It added that it had learned from the complaint, reminding relevant staff of the correct procedure when processing an application to purchase a property.

Post complaint

15. On 8 October 2020, the landlord located proof of tenancy for the resident from 1988 for a previous address. The landlord explained it had not previously found the record because it was in a different name and asked the resident whether she wished it to proceed with reviewing her application, on this basis.  It is not known if or how the resident responded to this invitation.
16. Later, the landlord determined that it could find no evidence of the property being part of stock transfer from the local authority and therefore any review of the resident’s application to purchase the property would not change the outcome. There is no information as to whether this was communicated to the resident and the landlord has advised this Service that there has been no further contact from her.

Assessment and findings

Jurisdictional limits to the investigation

17. 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 or aspects to a complaint will not be investigated.
18. The resident does not believe that the landlord has appropriately assessed her application to purchase the property, believing she has the right to do so and that the landlord is incorrect in its determination that she does not.
19. The Right to Buy is available to secure tenants of local authorities and non-charitable housing associations and to assured tenants of registered providers (housing associations) who moved with their homes from a local authority to a housing association as part of a stock transfer (Preserved Right to Buy).
20. Where there is no Right to Buy or Preserved Right to Buy, a resident may be eligible for the Right to Acquire, where they can still purchase a property at a discount.  To be eligible, a number of criteria must be met, including; the resident must have been a tenant of a social landlord for the last three years and the property must have been built or bought by a housing association after 31 March 1997 (and funded through a social housing grant provided by the Housing Corporation or local council) or transferred from a local council to a housing association after 31 March 1997.
21. Paragraph 39(i) of the Scheme states that “The Ombudsman will not investigate complaints which, in its opinion, concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure”.
22. The Right to Buy (including the Preserved Right to Buy) and Right to Acquire schemes are statutory processes and as legal processes, they are not ones which the Ombudsman has jurisdiction to rule on but instead, this must be done by a Court of Law which has the power to do so. The court can resolve disputes where resolution requires a definitive or binding ruling, which can include the interpretation of an occupancy agreement. It follows that, after carefully considering all the evidence, in accordance with paragraph 39(i) of the Housing Ombudsman Scheme, that this Service is unable to consider whether the landlord has correctly assessed the resident’s application to purchase the property in accordance with statutory guidelines. The resident should seek independent legal advice if she wishes to pursue this matter further.
23. What can be considered, however, is how the landlord responded to the resident’s enquiries and complaint that followed and whether its responses were in accordance with its policies and procedures and appropriate and reasonable in all of the circumstances.

Assessment

24. It is not known what the landlord initially advised the resident when she enquired about purchasing the property, however, she nonetheless submitted an application form shortly thereafter, presumably in the belief that she qualified or may qualify. Notwithstanding not knowing what was or was not advised, often it is not possible to determine eligibility – whether this concerns purchasing a property or something else – until a formal assessment of an application has been carried out. Submitting an application form and a formal assessment taking place means that there is an audit trail of decision making and allows the time and consideration needed, for the appropriate decision to be reached and for reasoning to be communicated clearly.
25. The landlord missed the opportunity to manage expectations, in advising the resident that she did not have the Right to Buy but may have the Right to Acquire, which then wasn’t the case and there is no evidence of the landlord explaining reasons as to why this may be the case or for its decision making in respect of this (that she was not).
26. Further, the reasoning provided in respect of the Right to Buy was insufficient.  It was insufficient because there continued to be a number of communications back and forth around the length of tenancy and tenure, which re-opened the possibility of a Right to Buy being possible, on the proviso that the resident prove her original tenancy dating back to 1988.  Had all avenues been sufficiently explored in the application process or earlier on, then this situation may have been avoided.
27. The resident, for unknown reasons, did not provide this documentation, however, the landlord managed to locate proof of tenancy from 1988, following contact from this Service.  Although the search for the original tenancy was made more complicated due to a change in both name and address and because of the passage of time, the landlord did still retain this information and it was available.
28. It is important for thorough systems searches to be carried out and cross-checks to be made where applications such as this are received and is particularly vital in situations concerning the purchase of property because of the serious implications of having not sufficiently considered all necessary factors and therefore arriving at the wrong decision.
29. Having located proof of tenancy from 1988, it is unclear whether a formal reassessment of the application took place, with no evidence of a response from the resident following the landlord appropriately offering to do this in light of the information it had located. In any event, according to internal emails provided to this Service, the landlord appears to have then determined that irrespective of the original tenancy dating back to 1988, there was no evidence of the property being part of stock transfer from the local authority.  No evidence has been provided to this Service of the landlord’s decision making here based on all the evidence obtained, nor is there evidence of any further communication with the resident regarding this. The resident in her complaint to the landlord made reference to her tenancy of 1988 pre-dating a law change in 1989, and having located proof of tenancy, the landlord was in a position to address the point put forward by the resident; however it failed to do so, and therefore missed the opportunity to provide greater clarity and possibly resolve the complaint.

Determination

30. In accordance with paragraph 54 of the Scheme, there was service failure by the landlord in respect of the complaint.

Reasons

31. There was service failure because the landlord missed opportunities to provide greater clarity on the resident’s right to purchase her property under either the Right to Buy or Right to Acquire and to identify the resident’s historical tenancy and tenure at an early stage.  Although it ultimately did obtain this information there is no evidence on how it then arrived at its decision on the resident’s application nor is there evidence that it communicated this decision to the resident.

Orders

32. The landlord pays the resident £200 compensation in respect of the distress and inconvenience caused by its handling of her Right to Buy application.
33. The landlord honours the offer made previously to reassess the resident’s Right to Buy application. It should make clear whether this requires a new application to be made due to the passage of time.    The landlord then communicates its decision to the resident in writing, thoroughly and clearly explaining the factors and any relevant statutory requirements it has considered in arriving its decision.

*The resident to note that any reassessment or assessment of a new application will not necessarily mean that she now has the preserved right to buy or is able to acquire the property. The resident may wish to seek legal advice if she remains dissatisfied with the outcome.

34. The landlord to conduct a lessons-learned exercise in respect of the complaint.