East Devon District Council (202113709)

REPORT

COMPLAINT 202113709

East Devon District Council

9 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 applicant 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:
   1. The landlord’s refusal to allow a mutual property exchange.
   2. The landlord’s handling of the complaint.

Background

2. The applicant applied for a mutual exchange with a property owned by the landlord. Her two children have complex needs and go to school in the area where the applicant wishes to move.
3. The landlord refused to allow the exchange to take place. The applicant’s current property has been adapted for her husband’s disability, so that it has a wet room. The landlord said the new property where the applicant wants to move does not have this adaptation, and it would not be appropriate to approve an exchange where adaptations would be required.
4. The applicant confirmed that she was willing to fund the costs of adapting the new property to meet the household’s disability needs. The landlord confirmed in its response to her complaint however that it was unable to grant this request and that it would be appropriate for the applicant to source suitable accommodation in her chosen location that was already adapted to these needs.
5. The resident remained dissatisfied with the landlord’s decision, stating that she considered the refusal to allow the exchange to amount to “discrimination”. In addition, she also said that she believed the landlord to have handled her complaint poorly, with delays and communication failures throughout the complaints process.

Assessment and findings

Scope of investigation

6. The applicant has stated her view that the landlord demonstrated discrimination in its handling of the substantive issue. It is outside the Ombudsman’s remit to establish whether the landlord has been discriminatory in a legal sense, and so this would be better suited for a court to decide. The Ombudsman will however consider the landlord’s response to the complaint, in relation to its policies and procedures, any legal obligations. In so doing, the Ombudsman will seek to establish whether, in all the circumstances of the case, the landlord has acted fairly and reasonably.

The landlord’s refusal to allow the mutual exchange

7. It is not disputed that the applicant’s circumstances might be greatly improved by a move to a suitable property in her desired location. The applicant’s children’s care worker has explained why moving to the new property would help the applicant and her family. Her children have complex needs and attend school near the new property. It is thought that they would benefit from living in close proximity to the school, in order to allow the children to develop independence, social skills and life skills. The landlord has encouraged the applicant to look for properties already adapted to suit her family’s needs. However, it is recognised that it may be some time before another property in the area becomes available that is adapted in the particular way the applicant’s husband requires.
8. The landlord’s mutual exchange policy explains that it aims to support the Government’s social home swap programme to give tenants a wider choice of homes. The policy also sets out the grounds under which a mutual exchange application can be refused, which are also found under Schedule 3 of the Housing Act 1985, and Schedule 14 of the Localism Act 2011.
9. The ground for refusal that the landlord has relied upon states:
   1. ‘The property is not reasonably suitable to the assignee and their household.’
10. As the applicant’s husband requires a wet room due to his disability, it was appropriate for the landlord to say that the property where the applicant wished to move is not suitable for the applicant and her household. The landlord was therefore entitled to refuse the mutual exchange by relying on the above ground for refusal.
11. The landlord stated in its stage one complaint response that mutual exchanges are not meant to cost councils any money, and so it would not approve an exchange knowing it would have to make funding available for adaptations. It also said that it is not its policy to adapt general purpose properties.
12. The landlord’s disabled adaptations policy says that the landlord will not make any adaptations to a property which has changed hands by way of mutual exchange for at least 12 months from the exchange date. It also says the landlord has a large number of ‘adapted’ properties, including ground floor flats and bungalows that are suitable for people with a disability.
13. The landlord’s disabled adaptations policy also provides the landlord with discretion to allow tenants to fund adaptations themselves, subject to it providing written permission, which it would only withhold subject to “valid and substantial reasons”. However, it is clear from the wording of the policy that this applies to existing tenants, rather than applicants through a mutual exchange process, as is the case here.
14. The applicant has offered to fund the adaptations to the property herself. However, as the landlord has noted in its response to the resident, allowing the exchange to progress on these terms would entail the household initially taking possession of a property that is not adapted to their needs. As such, it is entirely appropriate and reasonable for the landlord to have taken the decision to not allow the exchange.
15. It is also relevant that, even if a solution could be identified that would enable the applicant to fund any adaptations, the landlord may need to put the property back to its previous condition after the applicant’s tenancy ended, incurring additional costs as a result.
16. Having considered the applicant’s request and explained its position in refusing her application, the Ombudsman considers the landlord to have responded both reasonably and appropriately to this aspect of the complaint. The decision to refuse the mutual exchange was in accordance with the landlord’s legal obligations and its policies and, whilst there is scope under its policy to allow an existing tenant to fund adaptations themselves, this does not apply to an incoming tenant by way of mutual exchange.
17. Whilst the mutual exchange decision was appropriate, it is noted that the landlord did not offer further guidance to the resident within its complaint responses as to what further assistance it might be able to offer to help her achieve her desired outcome, i.e. suitable accommodation closer to the educational establishments of her children.
18. The landlord is a district local authority, with responsibility for the local housing register and would therefore be in a position to advise the applicant about her options from this perspective. It might also be able to signpost the applicant to appropriate bodies for further assistance. Whilst issues relating to a local authorities decision making under the housing register are outside of the Ombudsman’s jurisdiction, it would still be expected that a member landlord, in dealing with a complex issue such as this through its complaints process, would look at all the circumstances of a complaint to ensure that all possible avenues of support are made accessible to a vulnerable household seeking to resolve their difficult circumstances.

Complaint handling

19. The applicant thought the landlord had dealt with her complaint poorly. She said the landlord kept changing the date it would give her an answer, and did not keep her informed at all. She says she had to chase to find out what was happening.
20. The landlord operates a two-stage complaint handling process. Its complaints policy explains that a complaint will be acknowledged within five working days, and a stage one response provided within 20 working days of this. If an appeal is made, then a stage two response will be sent within 20 working days, though if this is not possible, this would be made known to the complainant and an indicative timescale would be given.
21. The applicant complained to the landlord on 16 April 2021, and a stage one response was provided on 23 April 2021. This was within the landlord’s stated timescales.
22. The applicant appealed on 15 May 2021, and the landlord confirmed it would provide a response by 15 June 2021. However, the stage two response was not sent until 27 July 2021.
23. The landlord’s stage two response was sent outside its 20-working day timeframe. Although the applicant was initially kept informed of the delay, the landlord then failed to keep her updated and she had to contact it about this.
24. In consideration of the communication failures and delays identified here, plus the failure to signpost/advise about possible further support options that might be available to the resident, the Ombudsman considers it both reasonable and proportionate for the landlord to pay the applicant £100 compensation to recognise the detriment caused by this.

Determination (decision)

25. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in respect of the landlord’s refusal to allow a mutual property exchange.
26. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in respect of the landlord’s handling of the complaint.

Order

27. The landlord to pay the applicant £100 compensation for its handling of the complaint.
28. The landlord to evidence compliance with this order to this Service within four weeks of this report.

Recommendation

29. The landlord to write to the resident, confirming the further advice and support that may be available in her attempts to get re-housed in her desired location.