Brighton and Hove City Council (202120965)

REPORT

COMPLAINT 202120965

Brighton and Hove City Council

25 May 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 response to the resident’s reports about her application for a mutual exchange.

Background

2. The resident is a secure tenant of the landlord, at the property, where she applied to mutually exchange from.
3. The resident complained about the landlord’s communication and handling of her request for information and clarity as to her position on the mutual exchange waiting list and the subsequent procedure.  The resident was unaware that the landlord had altered its procedure in respect of mutual exchange application processing due to the impact of Covid-19.  She was unclear as to timeframes for her application to be processed and had noted, through social media platforms, that others who had also applied to mutual exchange, had moved.
4. In its response to the complaint, the landlord explained that it had changed its procedure due to Covid-19.  It advised that it was holding a waiting list for applications to be processed and so the ordinary timescale for processing mutual exchange applications was not applicable.  It advised it would be months, rather than weeks, before her application would be processed, but it could not provide any further estimated timeframe. It explained that it had telephoned her in June to seek clarity as to some aspects of her application but this did not mean her application had begun being processed at that point and so the usual 42-day timeframe in which it would need to make a decision did not apply.
5. The resident remains dissatisfied that the landlord did not manage her expectations and did not communicate with her effectively, in not providing answers to her questions.

Assessment and findings

6. Having completed an application for a mutual exchange on 11 May 2021, the resident waited to hear as to when she would be able to move. Having not heard, the resident said that she began enquiring with the landlord as to her position on the waiting list but was unable to get any clear answers.
7. This led to a formal complaint being made on 13 July 2021, where the resident explained that she had seen on social media that others who had been on the waiting list appeared to have moved before her.  She was dissatisfied that this was the case and wanted answers as to where she was on the waiting list and the process.
8. With a mutual exchange, the landlord has a statutory duty to process applications within 42 days, in accordance with section 92 of the Housing Act 1985.  This is reflected in its Mutual Exchange Policy, which states at section 4.1.2 that “The landlord must give a formal decision to an exchange request within 42 days (six weeks) of the receipt of the formal application. Failure to do so will result in the tenant automatically acquiring the right to exchange.”
9. In the extraordinary circumstances of pandemic, the landlord changed its procedure for processing mutual exchange applications. The impact of Covid-19 and the national lockdown had far-reaching consequences and other statutory obligations, including those around routine repairs, were also affected. The change in procedure enabled the landlord to essentially ‘stop the clock’ on receipt of an application for mutual exchange, not starting it until it had actually begun to process it.  On receipt of an application, the landlord added it to a waiting list, which it processed in date order.
10. There is no documentation evidencing contact between the resident and landlord about her mutual exchange application prior to her complaint, although the resident states that she had contacted it and was not getting her questions answered, which is what led to the complaint.  Nor is this issue of prior contact addressed in response to the complaint, besides a telephone call in which the landlord asked the resident to clarify aspects to her application. In the absence of evidence of any other contact on the matter prior to the complaint being made, besides the telephone call, the landlord’s response, or lack of response, prior to the complaint cannot be assessed.  That does not mean to say that the resident did not contact the landlord beforehand, but as an evidenced-based Service, there cannot be assessment of this without evidence.  The focus of this investigation, is therefore, on the landlord’s response to the complaint, including the contact between it and the resident during the complaints procedure itself.
11. It was appropriate that the landlord explained its change in procedure to the resident in its stage one response to the complaint, advising the reason for the change and letting her know that it was currently processing applications from September 2020; ones that had been submitted eight months earlier than the resident’s.  Whilst it was an especially busy time and a unique and uncertain situation, the landlord could have done more to manage expectations, however. Although difficult, the landlord did not estimate a timeframe within which the resident could expect to have her application processed and did not offer to provide an update, even if infrequent, such as monthly.  In the absence of this, the resident felt understandably frustrated and was unable to plan, with the possibility of mutually exchanging being on hold for an indeterminable length of time.
12. This lack of clarity led to a number of questions from the resident, including reiterating her request to be provided with clarity as to the process, asking where she was on the waiting list and whether she needed to provide any further information or documentation in support of her application.  The resident asked too, why somebody had called her about her application in June, if it had not yet begun being processed and repeated that others appeared to have moved before her.
13. The landlord’s response to the resident’s queries was poor, with it initially stating that it could not provide details of other applicants’ situations due to data protection reasons, although this was not what the resident was asking for. The landlord missed an opportunity to de-escalate the complaint, by providing answers to the reasonable questions posed.  In the absence of this, the complaint was escalated to stage two of the complaints procedure, which could have been avoided. Responding to a complaint provides the landlord with an opportunity to demonstrate that it has heard and understood the concerns and a chance to put things right.  Putting things right in this case, involved providing clarity as to the mutual exchange procedure and manage the resident’s expectations, which it did not sufficiently do, early on.
14. In escalating the complaint, the landlord’s request that the resident reiterate why she was dissatisfied was inappropriate.  It was inappropriate because it was clear why she was dissatisfied, which she had repeated a number of times.  While part of escalating a complaint may include the need for a complainant to explain what they are unhappy with, this was not the case here and served to further frustrate the situation and delay the resident in receiving answers to her valid questions. This was further aggravated by the landlord failing to return a phone call the resident made to it, which it said it would, to provide her with an update as to her position on the mutual exchange waiting list.
15. The landlord’s communication failures are of particular concern in this instance. The resident made clear, in her escalation request of 16 July 2021, that she and other household members are autistic. She also explained the difficulty she had in putting together written correspondence. It is not known if the landlord was aware of her household vulnerability prior to this point, however, the Ombudsman would expect such issues to be identified from a resident’s correspondence and responded to accordingly. The Ombudsman does not have the expertise to determine whether a landlord has acted appropriately in light of its responsibilities under disability legislation, but would always expect to see evidence of how a landlord has reflected these vulnerabilities in its subsequent management of that resident’s tenancy.
16. In this case, there is no evidence of the landlord having responded to the resident having highlighted her household vulnerability to it. This might have resulted in a consideration of potential reasonable adjustments, particularly in the way that it communicated with her. Such consideration may have then enabled the substantive complaint to have been resolved, rather than continuing to escalate.
17. The landlord’s stage two response to the complaint was delayed by six days outside of its 20-working day timeframe to respond at stage two, in accordance with its complaints policy, for which it appropriately apologised, explaining the delay being due to staff shortages. Sometimes complaints are delayed and the landlord’s recognition of this and subsequent apology and explanation sought to put right this shortfall in service. The landlord missed an opportunity to manage the resident’s expectations here also, however, as it did not inform her by the due date, that it would be delayed in responding.
18. The landlord was entitled to decide not to investigate the matter further at stage two, in accordance with its complaints procedure, however, in making this decision as it did, it was unable to sufficiently address the failed call back or its failure to respond to the resident’s questions early on – although the questions were made during the complaints process itself, rather than beforehand. It was appropriate that it explained the procedure more thoroughly in its stage two response, explain the reason for its change in procedure and letting the resident know that she could expect to wait months rather than weeks. 
19. In the continued absence of an estimated timeframe, the landlord did not take steps to mitigate the inconvenience and frustration this would undoubtedly cause to the resident. The landlord could have offered a monthly update as to what month of applications it was processing, for instance, or it could have explained what it was doing to address the backlog. The landlord also did not recognise that the phone call it had made to the resident in June, to clarify aspects of her application, had reasonably given rise to the assumption that her application was being processed at this stage.  The landlord’s overall communication and handling of the resident’s queries pertaining to her mutual exchange application amounts to maladministration, for the reasons described.

Determination

20. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord, in respect of the complaint.

Orders and Recommendations

Order

21. Within 28 days of the date of this report the landlord is ordered to pay the resident a total of £200 compensation, comprised of:
    1. £100 for the service failures identified;
    2. £50 in recognition of the distress and inconvenience caused, and;
    3. £50 for the resident’s time and trouble. 
22. The landlord to evidence compliance with this order to this Service within 28 days of this report.

Recommendations

23. The landlord to consider the viability of providing updates as to the position on the mutual exchange waiting list.
24. The landlord to take steps to identify a strategy and approach to return to its usual operations in respect of processing mutual exchange applications.
25. The landlord to consider the resident’s household vulnerability in its management of her tenancy (and mutual exchange application), including consideration of whether any reasonable adjustments are required.