Croydon Council (202004277)

REPORT

COMPLAINT 202004277

Croydon Council

23 November 2021

Our approach

What we can and cannot consider is called the Ombudsman’s jurisdiction and is governed by the Housing Ombudsman Scheme. The Ombudsman must determine whether a complaint comes within their jurisdiction. The Ombudsman seeks to resolve disputes wherever possible but cannot investigate complaints that fall outside of this.

In deciding whether a complaint falls within their jurisdiction, the Ombudsman will carefully consider all the evidence provided by the parties and the circumstances of the case.

The complaint

1. This complaint is about the landlord’s handling of mutual exchange applications made by the resident. In particular, the resident states:
   1. The landlord discriminated against her under the terms of the Equality Act 2010.
   2. The landlord was not permitted to decline the mutual exchange at the time it did and for the reasons it did.

Determination (jurisdictional decision)

2. 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.
3. After carefully considering all the evidence, I have determined that the complaint, as set out above, is not within the Ombudsman’s jurisdiction.

Summary of events

4. On 11 December 2017, the resident issued proceedings against the landlord in respect of the application of its exchange policy and procedure. This related to a decision by the landlord not to allow the resident to mutually exchange with another resident on 18 February 2016.
5. The resident made a further application to mutually exchange on or around 1 July 2020. The landlord informed the resident that it was not processing mutual exchange applications at that time, due to the corona virus pandemic.
6. The resident complained that the landlord had refused her application. The landlord issued its final response on 21 August 2020, in which it explained it had not declined the application – but had placed all mutual exchange requests on hold until the end of the pandemic.
7. The landlord stated it issued a further final response on 8 October 2020 – however, a copy of this letter was not provided to this Service. 
8. On 23 October 2020, the resident applied to the court for an injunction against the landlord.
9. The mutual exchange went ahead on or around 17 December 2020.
10. The Ombudsman explained to the resident that it was unlikely this Service would investigate this complaint – as the subject matter of the complaint, namely the handling of the mutual exchanges, had been the subject of legal proceedings.
11. In response, the resident explained that part of the complaint related to discrimination, and she could not make that application to the courts as the time limit had expired. She further stated that the court had not taken her claim forward.

Reasons

The complaint about discrimination

12. Paragraph 39(i) of the Scheme states

“39. The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion: i. 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”

13. Part of the resident’s claim relates to a breach of the Equality Act 2010. Section 114 of the Equality Act 2010 makes it clear that the court has the jurisdiction to determine whether there has been discrimination. The Ombudsman’s jurisdiction is to determine, under paragraph 54 of the Scheme, whether there has been maladministration and not discrimination. Therefore, the Ombudsman is of the opinion that it would be fairer and more effective for the resident to seek a final decision on this via the courts.
14. I have carefully considered the resident’s submission that it is too late for her to issue proceedings for discrimination.
15. The Ombudsman notes that the resident issued an application for an injunction in October 2020 – which was within 3 months of the landlord’s decision in July 2020. The resident has the right to apply to amend that claim to include discrimination. Moreover, the court has the discretion to accept a claim outside the time limits where it would be just and equitable to do so (section 118(1)(b) of the Equality Act 2010).
16. Having carefully considered the evidence the Ombudsman is of the opinion that it would be fairer, more reasonable and more effective for the resident to seek a final and binding determination on the issue of discrimination, via the courts and, as such, the Ombudsman will not investigate this complaint.

The complaint about the mutual exchange decisions 

17. Paragraph 39(h) of the Scheme states that:

“39. The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion: h. concern matters that are, or have been, the subject of legal proceedings and where a complainant has or had the opportunity to raise the subject matter of the complaint as part of those proceedings”

18. Both the discrimination claim issued in 2017 and the injunction application issued in October 2020 were legal proceedings for the purposes of paragraph 39(h) of the Scheme.
19. The subject matter of the complaint before this service, and the legal claims, was about the mutual exchanges made by the resident.
20. As such, the Ombudsman will not investigate the resident’s complaints about the mutual exchanges because, it is the Ombudsman’s opinion that the subject matter of the complaint before this Service is the same, or very similar, or in any event could be raised in the legal proceedings issued in 2017 and 2020.
21. Whilst the resident has stated the court has not responded to her claim – that is a matter for her to take up with the court. In this case, the Ombudsman has concluded that proceedings have been issued based on the claim form, particulars of claim, and application notice all of which have been stamped by the court and contain claim numbers. The subject of those claims is the handling of the mutual exchanges the complaint will not be investigated.