Cottsway Housing Association Limited (202211638)

REPORT

COMPLAINT 202211638

Cottsway Housing Association Limited

30 April 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 is about the landlord’s handling of, and response to, the resident’s application for a mutual exchange.

Background

2. The resident is an assured tenant at the property of the landlord. The landlord is a registered provider of social housing.
3. During or prior to May 2022, the resident applied for a three-way mutual exchange with two other households.
4. The landlord rejected the application for the mutual exchange on the basis that the applicants did not have a local connection to the area. This was upheld on appeal.
5. The resident raised a formal complaint on 15 June 2022. She was unhappy that the mutual exchange had been refused.
6. The landlord responded on 27 June 2022. It advised that the resident’s application had been carried out in accordance to the local housing and its own policies. It noted that during the appeals process it was highlighted that mutual exchanges had been made in the past without a local connection being established. It advised it had since reviewed its mutual exchange procedures to make sure it fully complied with the relevant requirements, including the need for a local connection. It explained it did not have the authority to overrule what were known as the ‘section 106’ requirements. It noted the local authority had discretion to overrule this requirement where certain exceptional circumstances such as where a property is under occupied. It had discussed the resident’s request with the local authority, who had determined they would not the section 106 criteria in this case.
7. On 27 June 2022, the resident escalated her complaint. She felt the exchange had been refused unfairly and that there were special circumstances. She also stated that when she moved into her property, and when her tenancy agreement was updated, she was not made aware of it having a ‘section 106’ requirement on her property. She explained that there had been two other mutual exchanges without local connections.
8. The landlord provided its final response on 4 July 2022. It acknowledged that other mutual exchanges had been made in the past without establishing mutual connections, but that it had now ensured the mutual exchange application form made this requirement clear. It explained that the section 106 requirement was legally binding and enforceable in court and that unless an incoming family met the local connection criteria it had no legal basis to be able to grant tenancy. It explained that section 106 requirements were not included in tenancy agreements and that there was no legal requirement to include them. It stated that unless it was successful in varying the terms of the section 106 there were no special circumstances which would allow it to grant a tenancy.

Assessment and findings

Policies and procedures

9. Section 3.6.1, 3.6.2, and 3.6.3 of the relevant planning obligations explain that the landlord cannot allocate a dwelling to an applicant unless they have a local connection to the main parish, second parishes, or third parishes.

Scope of investigation

10. While the evidence provided includes communications between the resident, landlord, local authority, and other parties involved in the mutual exchange agreement, this service can only investigate how the landlord had responded to the resident’s complaint, and whether or not it had acted in line with its policies and obligations.
11. If the resident has concerns with the local authority’s responses and involvement, it would be more appropriate for the resident to submit a complaint to the Local Government and Social Care Ombudsman (LGSCO).

Application for a mutual exchange

12. As per the landlord’s planning obligations, it was required to ensure an incoming tenant had a local connection to the main parishes (i.e. the local area) when moving into the resident’s property. As this is a legally binding requirement, the landlord does not have discretion to deviate from this.
13. While the landlord is unable to consider any special circumstances to waive this requirement, the local authority is able to consider these. It is evident the landlord made a reasonable attempt for any relevant special circumstances by the local authority, but that the local authority did not waive the requirement.
14. In its complaints response, the landlord acknowledged it had previously allowed mutual exchanges where the was no local connection and explained that those were an error on its part. While this would be frustrating for the resident, the landlord justified its reasoning and explained that it had reviewed its mutual exchange procedures and updated them to ensure it did not repeat the same errors. This was reasonable as the landlord would not be expected to act outside of its legal obligations simply because it had done so in error previously.
15. Additionally, the Ombudsman is unable to look at how the landlord had handled previous tenancies, and whether or not it had maintained its obligations. The purpose if this investigation is only to determine whether the landlord acted appropriately in regard to the resident who has made the complaint. Therefore, it had acted reasonably and appropriately in implementing the section 106 requirement in regard to the resident’s request for the three-way mutual exchange.
16. While the landlord’s communication was clear and informative, the resident felt she should have been made aware of the section 106 requirement on her property from the outset. The landlord explained in its complaints response that it was not legally required to add this into the tenancy agreement.
17. This service is not aware of any legislation or policies that indicates that the landlord would need to include this information in the tenancy agreement. It nevertheless would have been helpful for the landlord to have highlighted this, or to have made the resident aware when she began the application process. However, this alone would not amount to service failure.
18. In regard to this, the landlord showed a capacity to learn as it stated in its final response that it had changed its website and mutual exchange request form to include wording advising potential tenants about the possibly properties may be subject to the section 106 agreement. This is in line with this service’s dispute resolution principles, which encourages landlord to learn from out comes and to implement measures to prevent similar issues arising in the future.
19. The landlord acted reasonably and within its obligations when deciding whether to accept the resident’s request for a mutual exchange. It was also reasonable that the landlord updated its website and mutual exchange forms and communicated well throughout the complaint. Therefore, a finding of no maladministration has been found.

Determination

20. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its handling of, and response to, the resident’s application for a mutual exchange.