Clarion Housing Association Limited (202215501)

REPORT

COMPLAINT 202215501

Clarion Housing Association Limited

21 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

The complaint is about the landlord’s handling of the resident’s application for mutual exchange (MEX).
The landlord’s complaints handling has also been investigated.

Background and summary of events

Background

The resident is an assured tenant of the landlord.
Prior to the MEX the subject of this complaint, the resident occupied a one bedroomed first floor flat with remote garden together with his wife, two children and dog.
The resident occupied the property under the terms of a tenancy agreement which started on 26 November 2010. This commenced as a starter tenancy, i.e. an assured shorthold tenancy, and it is assumed for the purpose of this investigation that this subsequently converted to an assured (non-shorthold) tenancy as referenced in its terms.
Under the tenancy terms, after the tenancy became an assured (non-shorthold) tenancy, the resident had the right to exchange the tenancy by way of assignment with that of another assured periodic or secure tenant of a registered housing association or local authority. The landlord’s written consent to exchange was first required.
On 18 April 2022, the resident completed the MEX which is the subject of this complaint. On that date, he entered into a deed of assignment of the tenancy of his one bedroomed property by way of a MEX for an assured tenancy of a two bedroomed house (with garden) held by another tenant of the same landlord.
The landlord has provided this Service with its relevant policies including regarding MEX and complaints.
The landlord’s MEX policy sets out the rights of tenants wishing to exchange properties with other tenants of the landlord (as well as other defined social landlords) and the procedure which is to be followed.
The MEX policy explains that assured tenants have no statutory right to exchange but usually have the right to assign by way of exchange as a contractual right in the tenancy agreement.
The MEX policy states that the landlord must advise a tenant in writing of a decision within 42 days of the tenant’s request for MEX. In default, the landlord cannot rely on the statutory grounds for refusal. However, in those circumstances, the tenant is still required to obtain the landlord’s written consent to the MEX or they will be treated by the landlord as an unauthorised occupier.
The landlord’s MEX policy reflects the statutory position applicable to tenants whose tenure gives a right to exchange, in that a landlord may not withhold its consent to an exchange save on specified grounds and unless it has served the required notice giving particulars of those grounds within 42 days of the tenant’s request for MEX.
The landlord’s MEX policy further explains that the landlord’s decision can be to refuse the exchange; to approve the exchange; or to approve the exchange with conditions. Where conditions are attached to the exchange, these must be met before the exchange can proceed.
The nature of the conditions which the landlord may attach to a MEX are also prescribed in the MEX policy. Where, as in the case of the resident, the tenancy agreement itself does not refer to the statutory provisions of Schedule 3 of the Housing Act 1985 or Schedule 14 of the Localism Act 2011, Appendix 3 to the MEX policy applies. Appendix 3 imports those statutory provisions as grounds and conditions which may be applicable to a proposed MEX. These include that where a tenant is in breach of, or has failed to perform, an obligation of the tenancy, the tenant can be required to remedy the breach or perform the condition.
The MEX policy also sets out the right to repair of tenants who exchange properties. This states that where the landlord has a responsibility to repair, the incoming tenant has the same right to repair as other tenants of the landlord. The responsibility for any repairs which were the responsibility of the outgoing tenant will be assumed by the incoming tenant who agrees to accept the property ‘as seen’.
Under the complaints procedure applicable at the relevant time, that is, to complaints received prior to 17 June 2022, the landlord operated a two stage complaints procedure co-ordinated by the landlord’s customer solutions team (CST). At the first stage, following an initial attempt to resolve the query, a formal complaint is recorded and investigated. The landlord undertakes to do all it can to resolve the issue and put things right. At the conclusion of Stage 1 of the complaint process, a resident may request a review of the case.
The complaints policy does not specify a timeframe within which the landlord’s responses are to be provided at either stage, beyond that it aims to put things right within reasonable timescales. Under the Housing Ombudsman’s Complaint Handling Code, landlords must provide a response within 10 working days at Stage 1 and within 20 working days at Stage 2.
The landlord’s compensation policy also provides guidance as to the circumstances when compensation will be considered and the scale of compensation awards.
The tenancy agreement terms supplied by the landlord relating to the resident’s property are silent as to any obligations on the parties with regard to the repair or maintenance of fencing at the property.
The landlord’s records note that the resident is vulnerable. On account of the resident’s disabilities, the resident’s wife acted as the resident’s Delegated Authority (DA) in many of the communications with the landlord concerning the MEX application and the complaint to this Service.

Scope of the investigation

Under paragraph 42(g) of the Housing Ombudsman Scheme, the Ombudsman will not consider complaints which “concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure”.
In parts of his complaint, the resident has referred to the impact on his health of the events which are the subject of this investigation. Unfortunately, the Ombudsman cannot draw conclusions on causation of, or liability for, impacts on health and wellbeing. This would be more usually dealt with as a personal injury claim through the courts. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident.

Summary of events

On a date prior to 13 December 2021, the resident identified an exchange partner occupying a two bedroomed property with garden who wished to exchange her property for the resident’s one bedroomed flat with garden. The exchange partner was also a tenant of the landlord and was a friend of the resident.
In a letter dated 13 December 2021 from the landlord to the resident, the landlord referred to a request from the resident to apply for a MEX and enclosed the relevant application form for this.
A further letter dated 30 December 2021 from the landlord to the resident stated that the landlord had cancelled the application for a MEX as the landlord had not received a completed application form in the time requested. It is unclear from the information provided by the landlord to this Service what prompted it to send this letter. The resident has informed this Service that on receipt of this letter, he contacted the landlord to correct the position and confirm he wished to continue with the exchange.
On 31 December 2021, the resident completed the application form for the MEX and submitted it to the landlord. The application form:
1. explained that the resident was applying for a MEX as the family of 4 needed more space and family members had disabilities;
2. attached documents which related to the disabilities of the family members and supported the need for an additional bedroom;
3. confirmed that the resident had not made any structural changes or modifications to the property.
The resident chased the landlord for an update on the MEX on various occasions in February 2022. A record of these communications does not appear in the landlord’s records provided to this Service. However, the resident has provided transcripts of live chat communications with the landlord which occurred on 15 February 2022, 16 February 2022 and 22 February 2022. These transcripts refer to other live chat conversations having taken place. The resident has also supplied an email of 10 February 2022, recording that the landlord promised a response to the resident within 5 working days.
In the live chat communications, the resident’s DA complained that the landlord was outside the 42 day time limit for providing a response to the MEX application and she pressed the landlord to explain the reasons for the delay. She complained that the landlord had stated that there was an issue with the proposed exchange partner on 3 occasions but on each occasion the exchange partner had been told by the landlord that there were no issues. The resident’s DA made it clear in these discussions that 2 members of her family had disabilities and it was emotionally difficult for them to be held in limbo waiting for a result.
No update on the progress of the exchange was provided to the resident in the transcribed record of these calls, nor was any clarification offered of the reason for the delay. The resident was promised a call back with this information in the live chat calls but did not receive one.
In the live chat conversation of 22 February 2022, the resident stated that she had submitted a formal complaint.
In a letter dated 22 February 2022, the landlord wrote to the resident confirming receipt of the MEX application. The letter stated that the landlord aimed to give its decision by 15 February 2022, a date which had already passed by the time the letter was issued.
The letter outlined various points to consider in a mutual exchange. These included that the resident would take over the proposed exchange property in the condition it was in. The landlord would inspect the property to highlight any repairs the outgoing tenant needed to carry out prior to the exchange but if the resident chose to continue with the move, he would take on the responsibility for anything outstanding.
The landlord subsequently conducted home visits to both properties involved in the MEX.
On 28 February 2022, the landlord visited the property of the exchange partner and prepared a MEX home visit report. This included the following:
1. In comments on the condition of the property, the report noted that the bathroom shower door was missing. The exchange partner reported that it had been removed by the landlord at the time of a bathroom upgrade and should have been put back. The exchange partner informed the author of the report that the incoming tenant was happy with it missing.
2. In comments on the external space, the report noted that the fencing to the right hand side of the garden had blown down in recent storms. The exchange partner stated that she had no money to replace it and that the resident was aware of it.
3. In a section on outstanding repairs, the author of the report had ticked “No” to the question “Are any repairs required by the tenant before a move can proceed?”
On 1 March 2022, the landlord visited the property of the resident and prepared a MEX home visit report. This included the following:
1. It confirmed that no structural changes, improvements or alterations had been made to the property by the resident.
2. In comments on the external space and the condition of fencing, the author of the report noted “Well maintained – no dividing fence between him and 62 (leasehold property) believes it’s their boundary”.
3. In a section on outstanding repairs, the author of the report had ticked “No” to the question “Are any repairs required by the tenant before a move can proceed?”
4. In a section of the report describing the general overview of the visit and discussion, the author of the report stated: “Discussed 42 day deadline – advised couldn’t give a date as letter he received was dated 22/02/22 and deadline date was 15/02/22. Other party had their home visit yesterday, he is aware of a few issues raised but will sign to take them on. Discussed fencing responsibility and stated that unless stated in the tenant agreement we won’t do fencing unless it’s a boundary fence…”
On 4 March 2022, the landlord contacted its lands and deeds department to establish responsibility for the fence, according to the landlord’s Stage 1 response. However neither this email, nor any response to it, has been produced by the landlord to this Service.
The landlord’s records show that on 4 March 2022, it spoke to the resident’s exchange partner who confirmed that the bathroom door at her property had been removed at the time of an upgrade and was supposed to have been replaced. The call notes that the fence which had blown down was the exchange partner’s responsibility. The exchange partner informed the landlord that the resident had agreed to fix it. The landlord’s operative agreed to check if the landlord could let the resident accept the exchange property with this outstanding repair.
On 7 March 2022, the landlord’s records show that the resident’s DA telephoned the landlord customer solutions team (CST) chasing the MEX. She confirmed that the resident would accept the exchange partner’s property in the condition it was in and had a letter from the landlord stating that the resident could do so. The CST advised it could be possible but a disclaimer may be needed and that a MEX specialist would call the resident back. The resident’s DA also asked for confirmation of the deadline as the letter received from the landlord was dated 22 February 2022 with a deadline of 15 February 2022.
On 8 March 2022, the landlord spoke to the resident regarding the fence at his property. The resident explained that the exchange partner was willing to waive the requirement for a replacement fence. However, the landlord’s representative advised that the fencing needed to be done before the move. The call log records that the resident explained his anxiety and that the landlord was over the time limit for a decision. The landlord’s representative advised that the MEX was conditionally approved and would speak to a team leader and call back. The landlord called back the same day and confirmed that the fence at the resident’s property needed to be replaced. The resident was advised to call the landlord’s repairs team to find out what type of fence to put up.
On 8 March 2022, the landlord spoke to the exchange partner. It advised the exchange partner that the missing bathroom door should not affect the move if the resident was happy. The fence at the exchange property needed to be repaired prior to the move. The exchange partner advised the landlord in this call that she could not afford to repair the fence but that the resident was going to do it for her.
The documents provided to this Service by the landlord do not record or shed any light on the decision making process by which the landlord decided that it should be a condition of its approval to the MEX that the resident should put up a fence at his property and that the fence at the exchange partner’s fence should be repaired prior to the move.
On 8 March 2022, the landlord wrote to the resident by letter stating that it had conditionally approved his application for MEX. The letter stated that the conditions applied to any current tenant of the landlord involved in the MEX before the landlord could allow the move. The conditions set out in the letter did not refer to the fences at either property and were expressed in general terms as follows:
1. The resident was to clear any arrears and keep the account clear until the move.
2. The resident was to remove anything he had installed/altered without the landlord’s permission.
3. The resident was to repair any damage which was his responsibility.
4. The resident was to allow its staff access to undertake a gas safety check if the annual service was due to expire before the date of the exchange.
5. The landlord must carry out an electrical and gas safety check before the move date.
6. The letter stated that the landlord would be in contact with the resident and his exchange partner shortly.
On 10 March 2022, the resident’s DA contacted the landlord’s live chat service. She explained that there was no dividing fence at the property when the resident moved in and it was not an expense that they had accounted for. She needed to ensure that the chain link fencing which the resident intended to install at his property would be acceptable to the landlord and enable the mutual exchange to proceed. She received confirmation that it was.
On 11 March 2022, the resident’s DA contacted the live chat service to enquire whether the landlord would assist with putting up the fence if the resident paid for it. She again pointed out that there was no dividing fence at the property when the resident moved in, he had lived in the property for 13 years, and the tenancy agreement did not state that he was responsible for fencing. The landlord’s operative stated that the landlord did not carry out dividing fence repairs but agreed to confirm with CST whether the resident was still required to put up the fence when there was no fence when the tenancy was accepted. There is no record of any subsequent confirmation of this.
On 22 March 2022, the resident’s DA called the landlord to inform it that the fencing was done at both properties and sent photographs of the completed work the next day.
On 25 March 2022, the resident’s DA called the landlord to chase a date for the MEX move. She informed the landlord that, due to the disabilities of the resident and her child, she was desperate to move. She was advised by the landlord that the resident had done everything from its end but due to tenancy management issues with the exchange partner, it could not yet approve the move. The landlord could not disclose what the reasons were for confidentiality reasons. On the same day, the resident also called the landlord and expressed concern at the lack of communication. He explained that this was causing him distress and anxiety which he felt the landlord had not made adjustments for. The resident mentioned that his wife had made a complaint which the landlord’s operative noted to chase up.
There were further calls between the landlord and resident on 28 and 29 March 2022 in which the resident expressed concerns at the delay in receiving approval from the landlord to the move and the stress that this was causing. The landlord’s log note for 29 March 2022 indicates that the landlord’s CST reviewed whether the missing door to the bathroom at the exchange property was the responsibility of the tenant or the landlord to replace.
On 30 March 2022, the log records that the landlord was to replace the door and that the MEX was internally approved. On the same date, the landlord confirmed by letter to the resident that the date for the mutual exchange had been agreed for 17 April 2022. The MEX proceeded on or about that date.
Around 9 May 2022, the resident sought to make a further formal complaint online. He followed up the complaint by telephone to the landlord’s CST which agreed to investigate why the MEX took so long to go through. In a subsequent call on about 9 May 2022, the resident was advised to start a new complaint.
Accordingly, the resident made a formal complaint to the landlord on 13 May 2022 regarding the MEX by telephone and provided further detail by email that day. The issues raised by the resident were as follows:
1. The landlord had disregarded the resident’s disabilities (Autism and Anxious Avoidant Personality Disorder). The landlord had been informed multiple times to make reasonable adjustments as the anticipation, waiting, and uncertainty caused the resident to go into a breakdown. The resident had since had to be referred back to his mental health team and had still not recovered. This had had a huge impact on the family. Reasonable adjustments could have included regular updates, assigning a specific person for the resident to contact and help walk him through the process, or escalating the exchange to decrease the time frame of 42 days. However, no adjustments were made.
2. A representative of the landlord had called the resident to state that there was an outstanding judgement against him two days after the application was made. This was not true and had started his downward spiral.
3. There were delays in that the exchange decision took 89 days instead of 42 and was resolved only after the resident had emailed his MP and directors of the landlord. The resident was offered a move date of a month after already waiting 89 days and this was inconsiderate.
4. There was no dividing fence between the resident’s garden and the other tenant when the resident moved in 12 years ago, yet the resident was expected to erect a fence at his property.
5. At the exchange property the resident wished to move to, the fence was up and would have passed inspection if the exchange decision had been completed within 42 days. It was torn down in the Eunice storm after that.
6. The resident had received a letter from the landlord stating that the MEX was conditionally approved pending repairs unless the resident wanted to accept the property as it was. The resident would have accepted the exchange property as it was and repaired the fence once he was financially stable after the move yet he had been informed by the landlord on the telephone that the fence had to be repaired.
7. As the resident’s family was a family of four, two with documented additional needs, plus a baby with extra needs (pending referrals), the resident could not risk not being able to exchange homes. The resident repaired the fences as the family could not wait any longer to argue about it. Repairing the fences had put a massive financial burden on the resident’s family.
8. The landlord cancelled the exchange and restarted it to avoid the system showing that it had exceeded 42 days. The resident had proof that the forms were sent in by email on 31 December 2021. This caused the MEX to take even longer.
9. On four occasions the resident was told there was an issue with the exchange partner’s account which needed to be sorted out. The resident understood that the exchange partner had called the landlord and had been told that this was not the case.
10. The landlord ignored complaints. The resident had filed a complaint with the landlord sometime between 16 and 22 February 2022 on the its website. This complaint was ignored. In March, the resident’s DA made a complaint by telephone. The landlord’s representative had acknowledged that this complaint was logged on the system but said that no action had been taken in relation to it. The landlord’s representative had started the current complaint for the resident.
11. The resident’s DA had been told by team leaders on several occasions that they would “sort out” the issues and call her back the following day or same day, yet she did not ever get a call back. On multiple occasions she had requested that a team leader call to supply an update yet she had only been called back on two occasions.
12. After the resident had repaired the fences, the landlord waited over a week before stating that an interior door removed by the landlord’s repair team a year ago was the cause of further delay. This could have been dealt with at the same time as the fences.
13. The resident wanted a financial resolution to cover the cost of the fencing, the damage done to the resident’s mental health, and the impact it had had on the family.
14. The resident provided receipts for the cost of the fencing totalling £402.77.
Receipt of the resident’s email was acknowledged by email on 30 May 2022 and a letter from the landlord dated 31 May 2022 confirmed that it would investigate the complaint and provide a response within 10 working days.
The landlord provided a Stage 1 response to the complaint by letter dated 31 May 2022 from its customer solutions coordinator. The Stage 1 response:
1. outlined the issues in the complaint and the outcome sought by the resident;
2. gave an explanation for the reasons for the delay as follows:
  1. part of the delay in completing the MEX was that numerous processes were raised and then closed due to non-receipt of MEX forms
  2. the main issue was that the landlord’s Customer Accounts team had not removed a legal action court order flag on the account
  3. the other reason for delays was that the resident’s exchange partner needed to replace a broken fence and clarification was needed as to when the bathroom door was removed at the exchange property;
3. stated that the landlord had accommodated an earlier tenancy start date due to the delays that had been caused at the start of the MEX process;
4. stated that it was made clear at the home visit that the fence at the resident’s property was the tenant’s responsibility to replace and therefore the landlord was unable to refund the resident the cost of replacing it;
5. stated with regard to communication and the resident’s disabilities, that the landlord had liaised with the resident’s wife;
6. set out a chronology which listed some but not all of the communications between the landlord and the resident and the resident’s DA regarding the MEX;
7. identified a service failure due to delay and handling of parts of the MEX, apologised for the inconvenience and upheld the complaint;
8. offered £150 compensation, described as a discretionary payment, broken down as:
  1. consideration of the household vulnerabilities including age and disability
  2. repeated failures to reply to letters, return phone calls or resident repeatedly having to chase
  3. recognition of any failure to follow process/policy.
On 8 June 2022, the resident’s DA sent an email to the landlord requesting a review of the response, stating that the resident did not accept the response or compensation amount. The main issues in the email were:
1. One of the main goals of resolution was compensation for the emotional damage done to the resident as his disability was not taken into consideration. The resident’s DA explained the impact on the resident and family life. The landlord had downplayed the damage done to the resident. The offer of £150 compensation was insulting.
2. The response had not addressed the two occasions when the resident had submitted complaints which were ignored.
3. The resident outlined factual mistakes in the Stage 1 response, including the landlord’s reference to an email dated 16 February 2022 which he had not received and the landlord’s reference to an incorrect move date which he had not been contacted about.
4. There was no communication or updates through the process and constant false stressors, such as the call received on 4 January 2022 incorrectly stating that the exchange would be cancelled as the resident had a court judgement against him. The resident understood that this was in fact the exchange partner’s protected information.
5. The landlord had implied that the resident fixed the exchange partner’s fence out of choice. However, the resident had no choice. The resident’s DA reiterated that if the landlord had done its job in time the repair would have not been needed to complete the exchange. The landlord’s delay had therefore cost the resident money.
6. The landlord had stated that the resident was required to replace the fence at his property but something could not be replaced that was not there to begin with. The resident replaced the fence under duress but did not feel responsible as the landlord had not provided a fence at the start of his tenancy.
7. The resident did not accept the landlord’s statement that part of the delay was due to numerous processes having been raised and closed due to non-receipt of MEX forms. The resident had email proof that the landlord received the forms on 31 December 2021. The resident was not requested by the landlord to provide forms after the initial submission. The resident’s DA complained that the landlord was trying to shift the blame onto the resident.
8. The landlord claimed that the fence repair delayed things yet the request for fence repair was made on day 63, which was 21 days after the landlord was required to respond.
9. The landlord’s response claimed that an earlier tenancy start date was given as a response to all the delays but this was not true. The landlord had offered a start date more than 4 weeks ahead and after the resident had already waited 3 months. The resident had declined and asked for a date immediately.
10. The landlord’s list of correspondence only mentioned times that the resident had telephoned and only covered the period 23 February 2022 to 30 March 2022. The resident’s DA had been seeking answers from 31 December 2021 to 30 March 2022 and had had multiple web chats, and even more phone calls than the landlord had listed. It was not comprehensive and was misleading.
11. The fact that the resident was still having to seek justice and that the landlord continued to drag him through the process was adding another issue to the resident’s long list.
On 17 August 2022, the landlord Head of Customer Accounts provided a Stage 2 response. The response:
1. apologised for the delay in replying and explained that the landlord was experiencing issues with its IT systems due to a cyber-security incident;
2. outlined the issues in the resident’s complaint;
3. set out its understanding that the resident’s outstanding concerns were that:
  1. he disputed some of the information given in the stage 1 response regarding the time taken to resolve the exchange and the reasons given for the delays
  2. he was unhappy that he was asked to re-instate a dividing fence and pay for his exchange partner’s fence to be repaired;
4. set out the landlord’s understanding that in order to resolve the complaint, the resident was seeking an official apology, compensation for fencing costs and compensation for mental distress;
5. stated that to investigate and review the complaint, it had reviewed all information available and had made the following findings:
  1. that the response provided at Stage 1 was both fair and reasonable in that it gave correct information on the issues raised and where service failures were identified, applied compensation according to the landlord’s policy
  2. that MEX completions depended on the status of both parties and that the resident’s exchange partner’s account impacted the progression of the exchange
  3. that the correct decision was made in asking the resident to repair the fence at his property
  4. with regard to the replacement of the resident’s exchange partner’s fence, this was a personal decision and not one which the landlord had asked him to undertake, therefore, the landlord would not compensate him for this
  5. that the landlord’s engagement with the resident’s DA suitably demonstrated its consideration of his needs
  6. that the landlord’s complaints process could not be used to determine liability and that if the resident believed that his health had been affected by the landlord’s actions or inactions he could submit for consideration an insurance claim for personal injury and information was provided on how to do this
  7. that the compensation awarded at Stage 1 was fair and reflected the delays caused by the landlord
  8. that there were other factors causing delay which were outside the landlord’s responsibility and reference was made to the landlord’s policy in ensuring that outstanding repairs were completed by the resident.
The resident submitted a complaint to this Service on 17 October 2022. The resident raised the following issues in the complaint:
1. Regarding the his disabilities, the resident complained that the landlord had disregarded these and had not made reasonable adjustments to the process.
2. Regarding the landlord’s handling of the MEX application and determination, the resident complained that the landlord had taken 89 days to take a decision on the MEX when a decision should have been given within 42 days. The landlord had cancelled the MEX and restarted it without the resident’s knowledge to make it appear to be within the 42 day timeframe. There had been inaccuracies and delays throughout the process and the landlord promised phone calls to the resident which were not made.
3. Regarding responsibility for, and repairs to, fencing in the garden, the resident had been informed by letter that he could proceed with the MEX on the basis that he accepted liability for repairs at the exchange property. Over the telephone, the resident was informed that the fencing at the exchange property had to be repaired prior to the MEX and this had pushed the resident into debt. The landlord had required the resident to install a fence at his property even though to the resident’s knowledge there was no fence there at the start of the tenancy.
4. With regard to the resident’s formal complaint, the landlord had failed to respond to two complaints made by him and the process started only on the third. The resident was unhappy with the level of compensation offered of £150. The resident did not feel that this took into account the cost of fence repairs at both properties and the level of stress, inconvenience and impact on mental health which the situation had caused. The outcome sought by the resident was an apology letter, a refund for fencing costs and compensation for the administrative errors and emotional trauma he had experienced.

Assessment and findings

The landlord’s handling of the MEX application

It is convenient to start this assessment with the conditions imposed by the landlord on its approval of the MEX application.
Under the landlord’s MEX policy, the landlord could impose conditions on its approval on specific grounds. These included that a tenant could be required to remedy a breach, or perform an obligation, of the tenancy.
With regard to the resident’s property, the landlord imposed a condition that the resident should install a fence along the dividing boundary between the resident and his neighbouring property.
It is implicit from this that the landlord considered that the resident’s property had the benefit of a dividing fence and also that the resident was under an obligation to maintain and repair it. However, no documentary evidence has been produced by the landlord to this Service which would support either of those matters. The evidence which is available points the other way: according to the resident, there was no dividing fence at the property throughout his 13 year tenancy; and the tenancy agreement applicable to the resident’s property is silent as to the existence of fences and as to any obligations on either party in respect of fences.
If the landlord had had information available to it at the time which showed that the resident’s property had the benefit of a dividing fence and that the resident was under an obligation to maintain and repair it, it would be reasonable to expect the landlord to have shared this with the resident. This did not occur. The landlord did not explain or address the basis on which it considered it was entitled to impose the installation of a dividing fence as a condition of its approval, notwithstanding that the resident’s DA raised the issue in conversations with the landlord, in particular in the call which took place on 11 March 2022, and subsequently as part of the complaint.
In these circumstances, it is unclear on what basis the landlord considered it appropriate to impose the condition that it did.
It would have been reasonable in any event for the landlord to consider whether, as a matter of its discretion, it should impose an obligation on the tenant to install a fence at his property as a condition of the MEX approval. The resident had not had the amenity of a dividing fence throughout the lengthy period of his tenancy at the property. The exchange partner had indicated that she did not require one. The landlord has produced no records which show the decision making process by which it decided to impose this condition or the factors it took into account.
On the information available, the landlord has not demonstrated that the resident was under a contractual obligation to install a new dividing fence, which the MEX policy required for the imposition of such conditions; nor that it reasonably exercised its discretion when deciding to impose this as a condition of its approval. The resident was put to cost and inconvenience in complying with this condition.
With regard to the exchange partner’s fence, the resident has not disputed that the obligation to repair the fence applied to the exchange partner’s property. He objected to the landlord’s imposition of a condition that the fence be repaired prior to the move. The resident wished to move into the exchange property and undertake the repair to the fence when he was in a more financially stable position.
Various of the landlord’s communications suggested that it was open to MEX tenants of the landlord to do this:
1. The letter sent by the landlord to the resident on 22 February 2022 explained that it would inspect the property to highlight any repairs the outgoing tenant needed to carry out prior to the exchange but if the incoming tenant chose to continue with the move he would take on the responsibility for anything outstanding.
2. In the home visit report on the exchange partner’s property dated 28 February 2022, in which repairs were noted, the author had ticked “No” to the question “Are any repairs required by the tenant before a move can proceed?”
3. The right to repairs section of the landlord’s MEX policy states that any repairs which were the responsibility of the outgoing tenant will be assumed by the incoming tenant who agrees to accept the property ‘as seen.’
4. In the call with the resident’s DA on 7 March 2022, the landlord’s CST suggested that this might be possible, subject to receipt of a disclaimer.
It would have been reasonable for the landlord to allow the resident to defer the repair until after the MEX move in the circumstances of this case. The landlord was aware that the resident and his family were living in cramped conditions and that members of the family had disabilities. The move was therefore a matter of urgency for the resident. The exchange partner had made clear to the landlord that because she had no funds to repair the fence, the cost of repair would be borne by the resident. Together, these factors meant that requiring the resident to repair the fence prior to the move would likely place him under a particular burden.
The landlord decided and notified the resident on 8 March 2022 that the exchange partner’s fence would need to be repaired prior to the move. No evidence has been produced to this Service by the landlord to explain the landlord’s decision making process or which would demonstrate that the landlord took into account the circumstances of the resident and his family when taking it.
On the information available, the landlord’s decision to require the fence to be repaired prior to the move was not reasonable in the circumstances. The resident was put under financial strain and inconvenience in having to meet the repair obligations of the exchange partner prior to the move.
For completeness, it is noted in respect of this part of the complaint that the resident contended that if the landlord had complied with the 42 day time limit for responding to the resident’s MEX application, the fence would still have been in situ at the exchange partner’s property. The resident argued that in that case the issue of repair would not have arisen and the landlord’s delay cost him money. Whilst that may be so, the landlord was entitled to deal with the circumstances as it found them when taking its decision on 8 March 2022.
With regard to delays in the landlord’s handling of the MEX application, under the landlord’s MEX policy, the landlord was required to advise the resident in writing of its decision in relation to the MEX within 42 days of the resident’s request. The resident submitted his request to the landlord by email on 31 December 2021. Accordingly, the landlord should have responded by 11 February 2022 with a written decision to refuse or approve the MEX, or approve the MEX with conditions. In fact, the landlord did not provide its decision until 8 March 2022, a delay of 25 days beyond the required deadline.
It is unclear from the records provided by the landlord to this Service why this delay occurred.
The 25 day delay was significant in the context of the 42 day policy timescale for the landlord’s response.
Following the landlord’s issue of the written decision on 8 March 2022, the date for completion of the MEX was dependent on both the resident and the exchange partner fulfilling the conditions which had been imposed by the landlord.
The resident fulfilled the condition in relation to the fences at both his own and the exchange partner’s property and provided evidence of this to the landlord on 22 March 2022. The landlord could have been expected to permit completion of the exchange within a reasonable time thereafter provided none of the other conditions set out in the landlord’s letter of 8 March 2022 remained outstanding.
In the event, the landlord approved the move 8 days later, on 30 March 2022. The landlord informed the resident that the cause of the delay during this 8 day period was that there were tenancy management issues with the exchange partner. The landlord did not disclose to the resident what the tenancy management issues were and it was appropriate for the landlord not to do so as this information was likely to have been confidential to the exchange partner.
The resident has complained that the tenancy management issues referred to by the landlord did not exist, based on information provided directly to the resident by the exchange partner. However, that is a matter which primarily concerns a tenancy other than the resident’s and is not an issue on which this Service can form a view. The resident was also concerned that the outstanding issue relating to the exchange partner’s bathroom door contributed to the delay. However, from the landlord’s records, it seems that if there was a delay due to the outstanding bathroom door replacement, this was resolved in short order between 29 March 2022 and 30 March 2022.
With regard to the period between 8 March 2022 and 30 March 2022, therefore, it was reasonable for the landlord to take this time to satisfy itself that all outstanding conditions had been met prior to approving the move.
Following the landlord’s approval of the move, the completion of the new tenancy took place on or about 17 April 2022, which was within a reasonable time of the landlord’s approval being given on 30 March 2022, bearing in mind the landlord needed to prepare and obtain execution of the necessary documentation to record the MEX.
The landlord’s communications with the resident about the MEX process were poor:
1. The landlord sent the resident the relevant application form to apply for the MEX on 13 December 2021 and then sought to cancel the application on 30 December 2021. It is not clear what prompted this action by the landlord and it appears to have been an error. This caused confusion and inconvenience to the resident who was obliged to notify the landlord of his wish to pursue the application.
2. The resident submitted his MEX application on 31 December 2021. The letter of acknowledgement from the landlord was very delayed, being sent seven weeks later on 22 February 2022. It referred to a date by which the landlord aimed to provide its decision. This date had already passed. It was also outside the 42 day policy timeframe for the landlord to provide a response but this issue was not addressed by it in the letter or subsequently.
3. At the home visit to the resident’s property on 1 March 2022, the landlord’s representative was also unable to advise the resident on the deadline date for the landlord’s response, in response to the resident’s query.
4. During this period, the resident was put to inconvenience and caused anxiety by having to chase the landlord for an update on the MEX application. The landlord failed to provide any firm updates in response to the resident’s chasers or until 8 March 2022, when it gave approval to the MEX with conditions. Following the landlord providing conditional approval to the MEX on 8 March 2022, the resident was also required to chase the landlord for information on when the MEX would be approved and the move could proceed. The resident was promised return calls from the landlord during this time which were not made.
5. The communications from the landlord regarding the MEX gave inconsistent information. For the reasons stated above, the resident was given the impression that it was open to him to take over the exchange property in the condition ‘as seen’ when this was not the case.
6. The conditions imposed by the landlord with regard to the fence and the fencing repair were not included in the written conditions listed in the landlord’s letter dated 8 March 2022. They were communicated only by telephone and the basis of the decision was never explained. This likely added to the lack of certainty and clarity for the resident.
The poor communication impacted the resident to his detriment. The resident was caused inconvenience in having to chase the landlord throughout the period of the MEX application. He was also caused anxiety by the delay and uncertainty in the progress of the MEX application.
The detriment suffered by the resident was amplified by the fact that he had disabilities which were sensitive to situations of uncertainty. The landlord was aware of the disabilities but does not appear to have taken any steps to seek to understand and address how it might have assisted the resident by making reasonable adjustments in this regard. It is noted from the landlord’s Stage 2 response that the landlord believed that its engagement with the resident’s DA suitably demonstrated its consideration of the resident’s needs. However, it was made clear to the landlord at an early stage that the landlord’s handling of the MEX application was causing particular detriment to the resident because of his disabilities, notwithstanding that the resident’s DA was dealing with many of the communications. It would have been reasonable for the landlord to review its approach in the light of this.
The landlord’s response to the resident’s complaint at Stage 1 appropriately recognised a service failure due to delay and handling parts of the MEX, apologised for the inconvenience and upheld the complaint. It was also appropriate for the landlord to offer compensation. However, the sum of £150 offered fell within the lowest scale of the landlord’s policy guidelines and was not adequate redress for the extent of its failures in the handling the MEX as set out above or the emotional impact on the resident by reason of his disabilities.
In summary, there was maladministration in respect of the landlord’s handling of the resident’s MEX application in that:
1. The landlord’s approval was made subject to conditions which were not shown to relate to an obligation of the tenancy as required under its MEX policy and/or it was not reasonable to impose.
2. The landlord’s response to the resident’s application was not provided within the 42 day timeframe specified in its policy but was unreasonably delayed for a period of 25 days beyond that.
3. The landlord’s communications with the resident regarding the MEX were poor in a number of respects.
4. The landlord failed adequately to take into account the resident’s disabilities or make reasonable adjustments for the same which amplified the impact of the landlord’s service failure on the resident.
Under the circumstances, the landlord is ordered to pay the resident an amount equivalent to the cost incurred by him of installing the new fence at his property and £100 compensation for the inconvenience, including financial, caused to him by having to install the fence and repair his exchange partner’s fence as a pre-condition to the move. The landlord is also ordered to pay the resident a further £350 compensation (in addition to the £150 compensation offered for its acknowledged failures in its handling of the MEX) in respect of its service failure in handling the MEX and the inconvenience and distress caused to the resident by this.

Complaint handling

The resident made two formal complaints prior to a third complaint being acknowledged and dealt with by the landlord. The first was on or about 22 February 2022 to which no response from the landlord is recorded. The second was on a date in March 2022 which landlord’s CST operative noted to chase up on 25 March 2022. No action appears to have been taken by the landlord in response to this second complaint.
The resident’s formal complaint dated 13 May 2022 was acknowledged by the landlord and a Stage 1 response was provided on 31 May 2022. The Stage 1 response failed appropriately to deal with the resident’s complaint in various respects:
1. With regard to the resident’s complaint of delay in the MEX process, the response wrongly suggested that part of the reason for this was due to numerous processes being raised and then closed due to non-receipt of MEX forms. No evidence of this has been produced by the landlord to this Service. The impression given by the landlord by this statement was that the resident was to blame for the delay when there is no evidence of any delays attributable to the resident’s conduct. This understandably contributed to the resident’s dissatisfaction.
2. Another reason given for delay was that there was a legal action court order flag on the account which the landlord had failed to remove. However, the response did not directly respond to the resident’s complaint that this information was not true.
3. The response referred to an email communication to the resident of which there is no record and in the list of correspondence it omitted communications which had been made by the resident. The response also stated that an earlier tenancy start date was offered to compensate for delays but there is no evidence of this in the records produced to this Service by the landlord, nor is it evident from the sequence of events which occurred. The inaccurate information in the response gave the impression that the landlord had not properly reviewed the relevant records.
4. The response did not address the resident’s contention that he was under no obligation to install the fence at his property, beyond restating that this was the case. The landlord failed to explain the basis on which it considered it was entitled to impose this condition.
5. The response did not address certain other aspects of the resident’s complaint, in particular, that the resident had wished to repair the fence at the exchange partner’s property after the MEX and had received information from the landlord that this was permitted; and that the resident had made two complaints which had not been acknowledged.
6. In respect of the resident’s complaint that the landlord had not recognised the resident’s disabilities in its communications, the response stated that the landlord had liaised with the resident’s DA. It did not comment further, including in respect of the reasonable adjustments which the resident had suggested the landlord could have made. It would have been reasonable for the landlord to do so given that this was a main part of the resident’s complaint.
The Stage 2 response was delayed due to the IT issues experienced by the landlord following a cyber security incident. As a result, the resident’s request for a review which was made on 8 June 2022 did not receive a response until 17 August 2022. The cause of the delay was appropriately explained by the landlord in the Stage 2 response and an apology provided.
However, the Stage 2 response did not engage with all of the outstanding issues of the resident’s complaint, although these had been identified in detail by the resident’s DA in her email of 8 June 2022.
In particular, the landlord again failed to explain to the resident the basis for its decision to impose a condition that he replace the fence at his property. The Stage 2 response simply stated that the landlord was satisfied that the correct decision had been made.
In respect of the exchange partner’s fence, the Stage 2 response referred to the fact that the resident had agreed to undertake the fence repair for his exchange partner and that this was a personal decision which the landlord had not asked him to undertake. Whilst this was true, it did not address the resident’s complaint, which was that he had wished to deal with the fence repair after the MEX and information he had received from the landlord had suggested that this was permitted.
With regard to the resident’s disabilities, the Stage 2 response appropriately made clear to the resident that the landlord’s complaints process could not be used to determine liability for personal injury and signposted the resident to making an insurance claim.
The landlord further stated that it believed that the landlord’s engagement with the resident’s DA suitably demonstrated its consideration of the resident’s needs. However, in circumstances where the resident had made it plain that this had not been effective to adjust for his needs, it would have been helpful and appropriate for the landlord to also consider and respond to the resident’s suggestions on the reasonable adjustments which he felt that the landlord could have made for him.
The landlord did not clarify for the resident, at either stage, or prior to the formal complaint being made, that the 42 day timescale in its MEX policy was applicable to the landlord’s decision to approve, refuse or approve the MEX with conditions, rather than the timescale to complete on the MEX. It would have been helpful for this to be clarified for the resident at an early stage to assist in managing his expectations and consequent anxiety.
In short, there were failures in the landlord’s complaint handling as outlined above. This caused the resident detriment in that he had to spend significantly more time and trouble in seeking to resolve his complaint than would reasonably be expected. Under the circumstances, an award of £300 would be reasonable compensation to the resident.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its handling of the resident’s MEX application.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its complaint handling.

Reasons

The landlord failed to provide its response to the resident’s MEX application within policy timescales. The landlord’s approval was made subject to conditions which were not shown to relate to an obligation of the tenancy as required under its MEX policy and/or it was not reasonable to impose. The landlord’s communications with the resident were poor and did not adequately take into account the resident’s disabilities. This caused detriment to the resident.
The landlord failed to acknowledge or deal with two complaints lodged by the resident. In respect of the complaint which is the subject of this investigation, the landlord did not engage with all of the issues raised by the resident and its responses referred to incomplete and inaccurate information and sought to blame the resident for delay when this was not the case. This caused detriment to the resident.

Orders

Within 4 weeks of this report, the landlord is ordered to:
1. Write to the resident to apologise for the service failures identified in this report.
2. Pay the resident an amount equivalent to the cost incurred by him of installing the new fence at his property. For this purpose, the resident is to identify to the landlord within 10 days of this investigation report how much of the total £402.77 cost he incurred in respect of fencing is attributable to the fence at his property.
3. Pay the resident £100 compensation for the inconvenience caused to him in complying with the conditions imposed by the landlord on its approval to the MEX.
4. Pay the resident £500 compensation for its failures in handling the MEX application which is the subject of this complaint and distress and inconvenience caused to him (which sum is inclusive of the £150 awarded through its complaints process, if that has not already been paid).
5. Pay the resident £300 as compensation for time and trouble caused by its poor complaint handling.
The landlord should contact this Service within 4 weeks of the date of this determination to evidence its compliance with the above orders.