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Clarion Housing Association Limited (202114535)

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REPORT

COMPLAINT 202114535

Clarion Housing Association Limited

11 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:
    1. The information provided by the landlord about the property and the tenancy type during the tenancy offer process in 2019.
    2. The landlord sending the resident details about another tenant during the stage one complaint response.
    3. The landlord’s decision to not to allow the resident to purchase her current property through the Right-to-Buy scheme.
    4. The landlord’s handling of the associated complaint.

Background

  1. The resident is an assured tenant of the landlord, which is a housing association. She moved to the property on 5 March 2019 after successfully bidding for the property through the Housing Moves website. This is a service which allows local authorities and housing associations in the wider area to provide properties for rent which are bid on by prospective tenants. The resident previously occupied a property let by a local authority and held a secure tenancy there for 20 years.
  2. The resident made a Right-to-Buy application, on 1 March 2021, to buy her current property. The landlord rejected this application on 6 April 2021, stating that she did not have a preserved Right-to-Buy. The resident raised a formal complaint about this, detailing inconsistencies in information it provided at the time of her being offered the property in 2019. She said that, due to being given incorrect information at the time about retaining her Right-to-Buy, she had not been advised when taking on the current tenancy that she would not qualify for buying the property through the Right-to-Buy scheme.
  3. The landlord’s final response to the resident’s complaint, on 21 July 2021, acknowledged that it initially provided her with incorrect property and tenancy term details during the property–offer process but said that these were quickly corrected. It said it could find no evidence that she had been incorrectly advised that she would retain her Right-to-Buy eligibility or that she could transfer her secure tenancy with her previous landlord to the current property. The landlord confirmed that its stage one complaint response had been correct in stating that the resident was not eligible to purchase her current property through the Right-to-Buy scheme. This was because she had not been a tenant at the current property prior to this being transferred to the landlord in 1992 from another local authority.
  4. The resident remains dissatisfied because she felt that the landlord had not investigated her complaint thoroughly enough. She said that her current tenancy agreement did not state that she could not buy her current property through the Right-to-Buy scheme. She maintained that she had made the necessary enquiries prior to moving to her current property and that she had been disadvantaged by the landlord’s failure to keep records.

Assessment and findings

Jurisdiction

  1. 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 will not be investigated.
  2. After carefully considering all the evidence, in accordance with paragraphs 39(e) and 39(m) of the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction:
    1. The information provided by the landlord about the property and the tenancy type during the tenancy offer process in 2019.
    2. The landlord sending the resident details about another tenant during the stage one complaint response.
  3. Paragraph 39(e) of the Scheme states that the Ombudsman will not investigate complaints which were not brought to the attention of the member landlord as a formal complaint within a reasonable period which would normally be within six months of the matters arising. This is because, with the passage of time, a reliable determination cannot be made on historical events. Therefore, a determination will not be made on the issues the resident reported about being provided with incorrect information about the type of property and tenancy when she was offered her current property in 2019.
  4. The resident reported, as part of her request for escalation of her complaint to the final stage, that the landlord had breached GDPR by supplying details relating to another tenant. Paragraph 39(m) of the Scheme states that the Ombudsman will not investigate complaints which fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body. Complaints relating to compliance with GDPR are properly within the jurisdiction of the Information Commissioner’s Office (ICO) (www.ico.org.uk). Therefore, a determination will not be made on this aspect of the complaint and the resident may wish to approach the ICO directly if she wishes to pursue this.

The landlord’s decision not to allow the resident to purchase her property through the Right-to-Buy scheme.

  1. It should be clarified that the resident’s report of being given inconsistent information during the tenancy offer process about the property and the tenancy type will not be considered here, as explained in the jurisdiction section above. However, as she would not have been aware of the accuracy of any information it provided at the time about her Right-to-Buy eligibility until she made enquiries about buying her property on 2 February 2021, this will be considered in this assessment.
  2. For a resident to be eligible to purchase their property through the Right-to-Buy scheme, they must have been a secure tenant of a local authority-owned property for at least three years. In order to have a preserved Right-to-Buy of the property, the resident must have been a tenant of the property when it underwent a stock transfer to a qualifying housing provider, such as a housing association. When the resident moved from the property, however, her eligibility was lost; the Right-to-Buy does not transfer between properties when moving from a local authority landlord to a housing association landlord.
  3. For the resident to have been eligible to buy her current property, she would need to have been resident in her current property when it underwent a transfer of ownership from a local authority to the current landlord. As the resident applied to move to the property when it was already owned by the current landlord, there would have been no preserved Right-to-Buy. Therefore, there was no failure in the landlord’s response when it informed her that she did not qualify for purchasing her current property through the Right-to-Buy scheme. This is because she was not resident in her current property when it was transferred to the current landlord.
  4. The resident has reported that she was misadvised by the landlord during the offer process of her tenancy about her Right-to-Buy eligibility when she moved; however, neither she nor it have supplied evidence of any communications during the tenancy offer process for the current property that would confirm or disprove this. Therefore, it is not possible to determine whether she was misadvised. The landlord would still be expected to investigate this and provide its findings in a timely manner.
  5. The landlord said in its stage one complaint response, on 27 May 2021, that due to the restructuring of its organisation since 2019, it was not possible for it to investigate the resident’s report of being supplied with incorrect information. Despite this, a landlord would still be expected to ensure that it kept robust records of any communications to provide an audit trail and to evidence its actions when disputes arise concerning any information it provided. A recommendation about this will be made below.
  6. It is noted that, in the course of the final stage complaint investigation, the resident provided an email trail to the landlord for its consideration and informed it that she had been misadvised about her Right-to-Buy eligibility on a telephone call. After considering this information, it was reasonable for the landlord to advise, in its final complaint response, that its investigation had found no evidence of her being misadvised about her Right-to-Buy eligibility at her current property.
  7. In taking on a new tenancy, it would be the responsibility of the tenant to satisfy themselves that the new tenancy agreement, a legally binding document, was suitable for them. It may, therefore, have been prudent for the resident to clarify the situation regarding her Right-to-Buy eligibility with her outgoing landlord, or to have sought independent advice, prior to signing the new tenancy agreement.
  8. Ultimately, whether any information supplied by the landlord to the resident at the time of the tenancy offer about her Right-to-Buy eligibility was correct or not, it would not alter the outcome of the substantial complaint. The substance of the resident’s complaint was that she wished to retain the eligibility to buy her property through the Right-to-Buy scheme; if incorrect information had been supplied by the landlord, this would still not confer this eligibility to the resident.
  9. This Service is unable to ascertain whether incorrect information was supplied by the landlord in 2019 for the reasons stated in the paragraphs above on the limits to our jurisdiction. However, the landlord’s complaint responses were reasonable and in line with the Government’s “Your Right to Buy Your Home” guide in confirming that she was not eligible to buy her current property. The resident may have consulted a number of sources, including the Government’s own website Right-to-Buy website at www.gov.uk/right-to-buy-buying-your-council-home/ to satisfy herself of her eligibility. Therefore, there was no evidence of a failure in the landlord’s decision not to allow the resident to purchase her property through the Right-to-Buy scheme.

The landlord’s handling of the associated complaint.

  1. The landlord’s complaints policy states that it will respond to complaints at stage one of its procedure within ten working days. At the final stage of this procedure, it is to respond within 20 working days. If the landlord is unable to respond within either of these timeframes, it should keep the resident informed, explain why there was a delay, and provide an alternate timescale.
  2. The landlord provided its stage one complaint response to the resident on 27 May 2021, 27 working days after she raised her complaint on 18 April 2021. It provided its final response to her on 21 July 2021, 28 working days after she escalated her complaint on 11 June 2021. There was no evidence that the landlord explained to the resident why its responses had been delayed, nor that it provided an updated timeframe. It therefore failed to handle the complaint in accordance with its policy.
  3. The Ombudsman’s remedies guidance provides for awards of compensation of £50 to £250 for instances where a failure has occurred which had an impact on the resident but was of short duration and may not have significantly affected the overall outcome for the resident. The landlord offered £25 in its stage one complaint response for its delayed response, and a further £50 in its final response for its delay. This totalled compensation of £75 offered for its delay in handling the complaint. Given that there was no evidence of any significant detriment to the resident by these delays and that the delays would not have altered the outcome of the complaint, the £75 compensation offered by the landlord was reasonable and broadly in line with this Service’s remedies guidance. This offer reasonably and proportionately recognised any inconvenience caused to the resident by its failure to handle the complaint in accordance with the timeframes set out in its policy.

Determination

  1. In accordance with paragraph 39(e) of the Housing Ombudsman Scheme, the complaint concerning the information provided by the landlord about the property and the tenancy type during the tenancy offer process in 2019 is outside of the Ombudsman’s jurisdiction.
  2. In accordance with paragraph 39(m) of the Housing Ombudsman Scheme, the complaint concerning the landlord sending the resident details about another tenant during the stage one complaint response is outside of the Ombudsman’s jurisdiction.
  3. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its decision not to allow the resident to purchase her property through the Right-to-Buy scheme.
  4. In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, the landlord offered redress to the resident prior to investigation which, in the opinion of the Ombudsman, resolves the complaint satisfactorily about its handling of the associated complaint.

Recommendations

  1. The landlord should:
    1. Pay the resident the £75 compensation it offered her for its delays in the handling of her complaint, if it has not done so already.
    2. Review its record keeping procedures to ensure that robust records are kept of communication with residents.