Camden Council (202117312)

REPORT

COMPLAINT 202117312

Camden Council

31 July 2023

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 relates to;
   1. The landlord’s management of the mutual exchange application.
   2. The landlord’s management of their complaint.
   3. The landlord’s record keeping.

Background

2. The resident is a secure tenant and at the time of raising their complaint were living in a one bedroom flat. The resident reports that they lived at the property with their partner and their grandson at the time of the complaint. The landlord says that it had no vulnerabilities recorded for anybody living at the property.
3. The resident made a mutual exchange application in May 2021 which was then acknowledged in July 2021. During the process, the landlord removed their grandson from the application, reducing the occupancy requirement for their application.
4. In September 2021, the application was refused by the other landlord due to the application meaning the resident would be under occupying in the property.
5. The resident raised a complaint with their landlord following the cancellation and questioned why their grandson had been removed from the application. The landlord said that it did not make the decision to refuse the exchange. It also said that their grandson was not part of the application as he did not live at the property.

Policies and Procedures

6. The landlord’s own mutual exchange process, detailed on its website, says that it should consider an application and make a decision within 42 days of receipt of an application. It also says that it can refuse an application if the exchange partner’s property is not suitable for your household’s needs.
7. The Housing Act 1985, Schedule 3, says that a landlord is unable to refuse consent for a mutual exchange if it does not make the decision to do so within 42 days of the residents application being submitted.
8. The landlord’s complaint policy, dated 2020, uses a three stage complaint process. It should acknowledge the complaint within two working days. It should provide responses in line with these timescales:
   1. Stage one – Ten working days
   2. Stage two – Twenty-five working days
   3. Stage three – Arrange an independent panel in thirty working days, obtain findings of the panel five working days later and issue a response within fifteen working days.

Summary of events

9. On 27 July 2020, following the resident’s request for a move to a property with three bedrooms. The Neighbourhood Housing Officer (NHO) advised them to update their housing application and continue to bid for suitable properties.
10. On 9 December 2020, the resident made an application to join the housing register that included their grandson as part of the household.
11. On 8 February 2021, both parties discussed the application. A verification was raised by the landlord to obtain information that would show that their grandson was living at the property. The resident provided documentation such as child benefit details and medical information that detailed their grandson as living at the property. A letter was also provided by his mother to confirm that he stayed at the property four days each week. The landlord accepted this information and progressed the application.
12. On 19 March 2021, the landlord confirmed in writing that the resident had been accepted onto the housing register. It explained that this was due to overcrowding at the property and said they could then apply for two bedroom properties.
13. On 5 May 2021, the resident submitted a mutual exchange application. They had found a mutual exchange partner with a three bedroom property under a different landlord.
14. On 21 June 2021, the exchange landlord communicated that it accepted the application. On 22 June 2021, the resident raised a stage one complaint as they had not had any response from their landlord.
15. The landlord provided a stage one response on 7 July 2021. The resident contacted this Service and advised that in the response the landlord said that the delay was due to a backlog of mutual exchange applications. It provided no timeframe for a response.
16. The resident advised this Service that she requested an escalation to stage two on 7 July 2021. The resident chased a response to the stage two complaint on 20 July 2021.
17. The landlord acknowledged the mutual exchange on 21 July 2021 with both the resident and the other landlord.
18. On 26 July 2021, in a series of emails during a one hour period, the team processing the mutual exchange contacted the NHO to query the inclusion of the resident’s grandson on the application. This was due to him not showing as part of the household on its internal system. They ask ‘are you recognising him as part of the household?’. The NHO replies ‘I wouldn’t recognise that her grandson is living there, he stays there with the resident a lot as they look after him but definitely not living there’.
19. The NHO is then asked for an updated application with the grandson removed from it. The amended mutual exchange application form shows that this was completed the same day.
20. On 27 July 2021, the NHO called the resident to acknowledge the mutual exchange process was underway and to confirm the people who were living at the property. Both the landlord and resident provide a different version of events around this call.
21. On 28 July 2021, the resident received a stage two response from the landlord. The resident responded to thank the agent for their response and explained that they were now happy as the mutual exchange process was now progressing.
22. In September 2021, the landlords involved in the exchange were in correspondence and questions were raised around the occupancy.
    1. 2 September 2021 – Exchange landlord asks resident’s landlord if they were ready to agree an exchange date. The resident’s landlord says that there is work being carried out at the resident’s property that day but once completed, it can discuss an exchange date. In this email, the resident’s landlord says that they have previously asked if this will be accepted as the resident is a ‘one bedroom need’ and is looking to exchange for a three bedroom property.
    2. 3 September 2021 – Exchange landlord says that it has three occupants on the application and asks for clarification. The resident’s landlord says that there are only two occupants, as their grandson is ‘not regarded as part of the household’. The exchange landlord says that it would need to review this and provide a response.
    3. 22 September 2021 – The resident’s landlord chases a response and is told by the exchange landlord that it would not be able to progress the exchange. It explained that given the recognised occupation did not include their grandson, it would mean that they are under occupying by two people. It said that had this been only one, the exchange could have gone ahead. (Lift from email)
23. On 23 September 2021, the resident is informed by it’s landlord that the mutual exchange would not happen. It explained that the NHO had said their grandson did not live there, so could not be listed as being part of the household.
24. On 24 September 2021, the landlord emailed the resident and explained that the matter had been discussed with a manager and their housing application would be reviewed.
25. On 27 September 2021, the resident received a letter from the council showing that they ‘did not qualify for the housing register as the application did not demonstrate a housing need’.
26. On 29 September 2021, the resident was told by the mutual exchange team that they would need to speak to the verification team to discuss their housing need.
27. On 30 September 2021, the resident emailed the landlord to query why the housing application was under review. They provided a copy of the letter from March 2021, which showed that they had been allocated enough points to bid for a two bedroom property. The resident expressed concern around the recent outcome of the mutual exchange process, as after speaking to the NHO in July 2021, they had not ‘indicated at anytime that there was a problem’.
28. On 6 October 2021, the landlord wrote to the resident to confirm that the mutual exchange application had been refused and as the other landlord had said it could not be approved. It explained that this was due to the exchange property being ‘deemed to be too large for your household’. The resident then raised a complaint around the changes to the housing application decision through a legal representative.
29. On 12 October 2021, the resident raised an appeal around the decision to amend the housing register application to show that there were only two occupants at the property.
30. On 18 October 2021, landlord responded to letter dated 11 October 2021 from a legal representative. This letter suggests that the legal representative had queried the rejection of the mutual exchange application. The landlord responded and said:
    1. It had not made the decision to reject the mutual exchange, it was the other landlord.
    2. The NHO said that the resident confirmed that their grandson did not live at the property and this information was then shared with the other landlord, leading to its decision.
    3. It said it could not provide information on the size of the third bedroom at the exchange property.
    4. It suggests that the decision should be challenged with the other landlord.
31. On 22 October 2021, the resident raised a stage one complaint with the landlord. The complaint said:
    1. The mutual exchange application had been mishandled.
    2. The initial date of the mutual exchange application had been incorrectly detailed as being made in July 2021, when it was made in May 2021.
    3. The resident had not been made aware of any problems with the mutual exchange application, despite the phone call with the NHO in July 2021 being detailed as the reason for changes to their application.
    4. The NHO had told her on 27 September 2021, that they had no part in the process, it was the mutual exchange team that dealt with it.
32. On 29 November 2021, the landlord provided a response to the Stage 1 complaint. It partially upheld elements of the complaint but no actions were proposed. It said:
    1. In March 2021, the resident’s housing register application was verified with documentation being provided to show that their grandson lived at the property.
    2. The change of circumstance verification was carried out and their grandson was removed from the housing register application due to information provided by the NHO.
    3. Due to the change, the resident no longer qualified for the housing register.
    4. The NHO indicated that the resident confirmed that their grandson did not live at the property during the phone call on 27 July 2021.
    5. The NHO also said that during this call, they requested documentation to show that their grandson lived at the property but the resident did not provide it.
    6. It acknowledged the resident’s daughter confirmed the living arrangements in March 2021 but this was ‘not investigated further by the mutual exchange team at the point of your mutual exchange application’.
    7. It does not uphold the resident’s claim that they were not made aware of problems with the application, as they were contacted by the NHO on 26 July 2021 in relation the mutual exchange application. It then says ‘it was however for clarification and not to address any problem with your application’.
33. The resident responded and requested an escalation to stage two on 1 December 2021. This Service has not had sight of any acknowledgement of the stage two complaint escalation request. The landlord issued a stage two response on 16 December 2021 and maintained its original decision.
34. In December 2021, following the dispute raised by the resident, they were contacted, over several emails, to review their housing application. The resident was asked about the makeup of the household and further details around their grandson’s situation. Neither party provided evidence of the outcome of this review.
35. The resident contacted their councillor and had a legal representative contact the landlord around their complaint. No formal legal proceedings were made by the solicitor.
36. In February 2022, the resident contacted this Service again as no formal response was provided and the complaint was accepted for review.
37. On 11 February 2022, following this Service accepting the complaint for investigation, the landlord reversed its decision. It emailed the resident’s solicitor and indicated that it would accept their grandson as part of the household. This Service has seen no evidence of the rationale behind this revised decision. It said it would reinstate the mutual exchange and no further submissions would be required. However, after speaking to the other landlord, it advised that both applicants would need to resubmit their mutual exchange applications to the other landlord.
38. In March 2022, the resident’s application was processed and the mutual exchange was completed.

Assessment and findings

The landlord’s management of the mutual exchange application

39. In March 2021, after the resident was added to the housing register and told they would be able to bid for two bedroomed properties, the landlord’s records should have been amended at that time to include their grandson as a member of the household. It’s failure to do so demonstrates a lack of effective internal communication to ensure consistency around it’s record keeping.
40. In line with its process, the landlord should have provided a response to the mutual exchange application submitted by the resident within 42 days in line with its statutory obligation. The application was submitted on 9 May 2021, so in this case it should have provided a response by 16 June 2021. The landlord acknowledged the start of the review in its letter dated 21 July 2021, this was 72 days after the application was submitted. Given that it had not responded within the first 42 days, the landlord would not be able to refuse the exchange itself, as per the Housing Act 1985. The failure to carry out the review in this timeframe is a service failing, as it had not met the required timeframe for the process. The landlord should have managed the resident’s expectations that any review would be delayed, given that it was already aware of delays.
41. The mutual exchange application was only processed following the resident’s request to escalate their complaint to stage two and subsequent to contact from this Service. The resident’s escalation emails show that they were concerned about the possibility of the other party cancelling the exchange, due to the delay by their landlord. These emails show that the delays were causing the resident distress at this time.
42. The emails provided show that in July 2021, the mutual exchange team questioned the NHO on the number of occupants in the property. This was because its internal system did not show the grandson as being a member of the household but the mutual exchange documentation provided by the NHO included him. When the mutual exchange team ask the NHO for clarification, they respond to say that he ‘definitely’ does not live in the property. Although the NHO may have had some knowledge of the occupancy at the property, the response to the mutual exchange team was provided quickly and without any further investigation. The emails show that the NHO had provided the mutual exchange application with the grandson included as a member of the household, despite their view that he did not live there. This shows that the NHO had failed to check these details on the application before passing it to the mutual exchange team. Had they carried out the required checks on the application and noticed the grandson on the application, they should have then investigated further at this time.
43. When the question around the occupancy was raised by the mutual exchange team, it would have been reasonable for it to investigate the occupancy at the property. A review of the housing register application from March 2021 would have shown that the landlord had already requested verification of the occupancy and eventually accepted the grandson as part of the household. This could have removed the need for the discussion with the NHO. Instead, the mutual exchange team questioned the information provided by the NHO and then accepted the NHO’s amended view and asked them to resubmit the application without the grandson, with no further investigation being carried out. The NHO agreed to remove the grandson from the application and the form was resubmitted on the same day, 26 July 2021.
44. It is evident from both the landlord’s emails and the residents responses that there was a phone call between the NHO and the resident on 27 July 2021, in which the occupancy was discussed. The landlord suggests that on this call the resident said that their grandson does not live at the property. It then goes on to state that the NHO also asked the resident to provide evidence of their grandson living there. This version of events, provided by the landlord, was contradictory and the resident has disputed it.
45. It is evident that the landlord failed to keep a record of this call being made, its contents or the outcome of the discussion. The landlord should have kept accurate records of any interactions with residents, so that there would have been a clear audit trail. Given its version of events from the call, the landlord should have either informed the resident that the mutual exchange would not go ahead given the occupancy at their property, or, it should have written to them requesting further evidence of the occupancy. Instead, the landlord has continued with the process, liaising with the other landlord and carrying out a survey at the property in advance of a potential exchange. As a result, the resident had been left under the impression that the exchange was going ahead.
46. When carrying out it’s review of the household in July 2021, the landlord should have been aware that removing the grandson from the application would then reduce the housing need for the resident. This would then likely reduce the resident’s entitlement when it comes to the mutual exchange application. Given this knowledge, the landlord should have made the resident aware of this on the call on 27 July 2021 and followed this up with confirmation in writing shortly after. The resident’s email on 28 July 2021 to the complaint department shows that the resident was under the impression that there was no problem with her application and the process was moving forward. This would suggest that at no time during, or following the call, has the resident had any suspicion that the discussion had changed their status in regards to housing need or that the exchange may not go ahead.
47. The landlord allowed the mutual exchange process to continue between 27 July 2021 and 23 September 2021. It did so in the knowledge that given the exchange parties policies on bedspace needs, the exchange would not proceed following the changes to the household composition it had made on the mutual exchange application. This is evident in the exchange of emails, where it raises the question around the viability of the exchange.
48. Although the landlord did not make the eventual decision to reject the mutual exchange, it is clear that it did not act in a fair or transparent manner throughout the application process. It was aware that its actions would have a consequential impact on both the mutual exchange and the housing application. Initially, it failed to review the application within the timeframe set out in its own policy. Once it did review the application, it then failed to make the resident aware of its decisions or set their expectations correctly around the process itself. It is the view of this Service that there were significant failings by the landlord in the management of the mutual exchange application.
49. In its response to the complaint in November 2021, the landlord states that the housing register application itself, was changed as a result of the disputed phone call on 27 July 2021. While the conversation cannot be evidenced, the landlord has not communicated this change or requested further evidence of the occupancy during this period.
50. It is evident that during the housing application process, the resident provided sufficient evidence to validate that their grandson lived there. The landlord failed to update its own internal system in March 2021 to show the addition of their grandson as an occupant in the property. This record keeping failure led to the application being questioned by the mutual exchange team in July 2021 and contributed to the eventual decision to remove the grandson from both the mutual exchange and housing applications.
51. The landlord has failed to address the mutual exchange application in time to meet its statutory requirement. It took 72 days in total before it reviewed the initial application. The landlord then changed the mutual exchange application and the housing application without taking adequate steps to ensure its actions were correct. Further to this, it has not met its own policy in terms of communication with the resident around such a decision. This has led to a significant delay, as a decision was not provided until two months later, in September 2021. There is then a further six months between September 2021 and March 2022, after the resident raised their complaint and following the involvement of this Service the landlord revised its position. This caused the resident inconvenience and distress during this time. In particular, this decision has led to a further nine months of the resident living in an overcrowded property, between June 2021 and March 2022. This could have been avoided had it followed its own process or completed a thorough investigation. When considering the failings in the management of this process, cumulatively this amounts to maladministration.

The landlord’s management of the complaint

52. The resident first raised a complaint in respect of the issues in this investigation, by email on 22 October 2021. The complaint was around the landlord’s management of the mutual exchange process. The landlord failed to acknowledge this complaint. The resident chased a response to their complaint on 5 November 2021. The landlord acknowledged this email and asked if this related to the previous complaint from July 2021, or, if it was new complaint. The resident asked for a continuation of a previous complaint at this stage.
53. The previous complaint that is mentioned was around the delay in the landlord reviewing the mutual exchange, this was addressed in July 2021. As this had since been reviewed and the resident had made it clear that the complaint was around the outcome of the mutual exchange process, it was clear that this would not be a continuation of the previous complaint. Had the landlord taken further steps to understand the complaint, it would have been clear that this would be a new complaint and this would have allowed it to be reviewed sooner.
54. In its response, dated 29 November 2021, the landlord says that the complaint was assigned for investigation on 12 November 2021. This was fifteen working days after the initial complaint was raised on 22 October 2021. The response to the complaint was then issued eleven working days after it was assigned for investigation. This means that the response was not provided until twenty-six working days after the complaint was raised. In line with the complaint process that it followed, this was sixteen working days late, with no notice given to the resident that it would not be providing a response in line with its stage one process. This is a service failing on the part of the landlord which has caused delays and the resident further frustration in their attempts to resolve the matter.
55. The landlord provided its response to the complaint on 29 November 2021 and partially upholds the complaint. It upholds the parts of the complaint relating to the changes made to the mutual exchange and housing applications but maintains it did not refuse the mutual exchange. Although it did not make the decision to refuse the mutual exchange, the landlord fails to acknowledge the link between the two elements of the complaint. Had it not made the change to the application, the mutual exchange would not have been refused by the other landlord. Therefore, the landlord failed to acknowledge in its complaint response that it was indirectly responsible for the refusal of the mutual exchange and on that basis, any delays in the process being completed.
56. In that response, the landlord also says that the resident made a complaint on 12 October 2021. It says that this was recorded as an appeal against the decision to amend the Housing Application decision. It acknowledges that in line with its Allocations Policy, this should have been completed within fourteen days. However as of 29 November 2021, thirty four working days later, it had not reviewed this appeal. The landlord acknowledges this as being well outside of its standard review process. It said ‘regrettably, we are generally out of the target to complete such reviews’ showing that it was aware of this kind of delay but it had not made attempts to inform the resident. The landlord said that it would ‘ensure that your review is followed up accurately by the officer that it has been allocated to and a decision is provided to you shortly.’ It is clear that there were email exchanges following the response, however, these do not lead to a decision being made or issued.
57. On 1 December 2021, the resident asked for their complaint to be escalated to stage two. The landlord has not provided any evidence to show that it acknowledged this request. The landlord’s stage two response was dated 16 December 2021. This was issued within the 25 working days permitted by its complaint handling policy.
58. It is the view of this Service that the landlord has failed to manage the resident’s complaint in a timely manner. It failed to provide acknowledgement of the complaint and only progressed the complaint due to the resident’s persistence in seeking a resolution. The response it provided was contradictory in its explanation of the disputed phone call in July 2021 and it failed to acknowledge the link between its actions and the eventual rejection of the mutual exchange application. When considering these failings, cumulatively, they amount to service failure.
59. The landlord’s original response to the complaint did not provide a copy of the stage two response. It is of concern that the landlord failed to provide all relevant information when requested by the Ombudsman. A stage two complaint response is a principal piece of evidence that should be provided with every case under review by this Service.
60. It is vital that landlords keep clear, accurate and easily accessible records to provide an audit trail. When the Ombudsman investigates a complaint, we will ask for the landlord’s records. If there is inaccurate or incomplete information provided by the landlord, we may not be able to conclude that an action took place or that the landlord followed its own policies and procedures. In this case, the original investigation reached a reasonable determination based on the information provided. Now the landlord has provided a full record of its complaints correspondence, the determination has been changed.
61. Strong record keeping practices are core to good landlord services. I have therefore ordered that the landlord reviews its practices and processes when responding to the Ombudsman’s information requests to ensure all relevant information is provided. The Ombudsman’s recent Spotlight report on record keeping rt demonstrated that poor knowledge and information management by landlords was causing detriment to residents and impeding and delaying the Ombudsman’s work. This damages the sector’s reputation and erodes trust with residents. The landlord should confirm that it has read and considered implementing the recommendations within that report.

Determination (decision)

The landlord’s management of the mutual exchange application

62. In accordance with section 52 of the Scheme, there was maladministration in the management of the landlord’s management of the mutual exchange application.

The landlord’s management of the complaint

63. In accordance with section 52 of the Scheme, there was service failure in the landlord’s management of the resident’s complaints.

The landlord’s record keeping

64. In accordance with section 52 of the Scheme, there was service failure in the landlord’s management of the resident’s complaints.

Reasons

The landlord’s management of the mutual exchange application

65. The landlord failed to acknowledge or provide a decision on the mutual exchange application from 5 May 2021, for more than 42 days. The landlord then made a decision to change the mutual exchange application and housing register applications prior to carrying out any form of reasonable investigation in July 2021. This seems to stem from a lack of accurate record keeping after a housing application decision in March 2021. The occupancy had been verified only two months before the mutual exchange application was submitted and the landlord has then changed the application without providing the resident with sufficient information or opportunity to dispute the change. It then failed to manage the residents expectations, allowing them to think the process would complete, despite their knowledge that this was highly unlikely.  This led to a delay of around nine months before it then agreed to update the landlord’s housing application and allow bids for a two bedroom property.

The landlord’s management of the complaint

66. The landlord has failed to manage the stage one complaint in line with its complaint policy. It takes over a month for it to provide a response to the complaint. Its response was contradictory and does not take any accountability for its part in the mutual exchange process not being completed.

The landlord’s record keeping

67. The landlord failed to provide the Ombudsman with essential complaints correspondence when requested.

Orders

68. Pay the resident £800 in compensation. This is comprised of:
    1. £500 for the delays, distress and associated inconvenience due to the landlord’s management of the mutual exchange application.
    2. £300 for the complaint handling and record keeping failings and the distress and frustration caused.
69. Review the learning from this report, advise this Service of any actions it plans to take as a result of its review and implement any actions within three months of the date of this report. This review must include consideration of:
    1. How to manage its record keeping and communications during the mutual exchange applications process.
    2. How to manage investigations into complaints about occupancy changes in mutual exchange applications.
    3. How to manage applicant expectations and communications when there are known or potential delays in the mutual exchange applications process.
    4. The landlord’s practices and processes when responding to Ombudsman information requests to ensure all relevant information is provided. The landlord should confirm that it has read and considered implementing the recommendations within the Ombudsman’s recent Spotlight report on record keeping.
70. Orders should be implemented within 28 days of this report (unless stipulated).