Exeter City Council (202213098)

REPORT

COMPLAINT 202213098

Exeter City Council

19 February 2024

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:

1. The resident’s request to transfer to another property.
2. The resident’s property being categorised as an adapted needs property.
3. The associated complaint.

Jurisdiction

2.             What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.

3.             Paragraph 42(j) of the Housing Ombudsman Scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.

4.             After carefully considering all the evidence, in accordance with paragraph 42(j) of the Housing Ombudsman Scheme, the resident’s request for a transfer to another property, is outside of the Ombudsman’s jurisdiction. This aspect of the resident’s complaint falls properly within the jurisdiction of the Local Government and Social Care Ombudsman (LGSCO). This is because the resident’s landlord is a local authority and it is within the remit of the LGSCO to investigate complaints about local authorities’ allocation of properties, including transfers.

5.             Therefore, the Housing Ombudsman will not consider this aspect of the resident’s complaint. If the resident wishes to pursue this aspect of his complaint, then she can contact the Local Government and Social Care Ombudsman (LGSCO).

Background

6.             The resident is an assured tenant of the landlord. Both the resident and her partner are disabled. Her partner has multiple sclerosis (MS). The landlord is aware of these conditions. The resident’s property has been adapted for her partner’s needs due to MS.

7.             In April 2022, the resident wanted to move to a different local authority area, to be closer to family. She identified a suitable property and completed her application for a mutual exchange. The landlord refused the application as the incoming resident was not eligible for an adapted property. The resident responded that the landlord had previously told her that the adaptions to her property were minimal, and many and been removed. The resident said the landlord had also verbally agreed that it would change the categorisation of the property from adapted needs to general needs.

8.             On 21 June 2022, the landlord’s surveyor told the resident that they had previously discussed that her property was not one of the landlord’s better adapted properties. They informed the resident they had no authority to change the categorisation and that her property would remain an adapted property.

9.             In August 2022, the resident’s local councillor contacted the landlord, stating the resident was unhappy that the landlord had not changed the categorisation of her property. This meant she had wasted time, effort, and money on her mutual exchange application. On 25 August 2022, the local councillor asked the landlord to record the resident’s dissatisfaction as a stage one complaint.

10.        On 4 October 2022, the resident again raised a stage one complaint about the landlord’s decision to not change the categorisation of her property to an adapted needs property.

11.        On 31 October 2022, the landlord provided its stage one complaint response. It said that it had previously written to the resident and informed her that it would not be re-categorising the property. On 4 November 2022, the resident requested the landlord escalate her complaint. She said that many of the adaptions in the property existed in new homes. She also said the landlord had ‘severely misled’ her by previously telling her verbally, that it was changing the categorisation of the property, which led to her wasting time, effort and money.

 

12.        On 1 December 2022, the landlord provided its stage 2 response. It confirmed that the resident’s property remained an adapted property. The landlord apologised for any misunderstanding caused by comments made by a member of its staff that the property should be re-categorised.

13.        In December 2022, after the landlord’s final complaint response, the local resident’s local councillor contacted the landlord. They asked the landlord to issue the resident a vacant 2-bedroom general needs property, without her having to move in. They said this would assist the resident’s attempts to find a suitable mutual exchange. The landlord responded that it did not have the availability in its stock of properties for it to consider this.

14.        The resident brought her complaint to the Ombudsman on 12 December 2022. The resident has arranged a mutual exchange which is due to go ahead in February 2024. She is seeking financial compensation as an outcome to resolve her complaint.

Assessment and findings

15.        When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. There are three principles driving effective dispute resolution: Be fair – treat people fairly and follow fair processes, put things right, and learn from outcomes.

16.        The Ombudsman must consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse effect, the investigation will consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes.

Scope of Investigation

17.        The resident has said that she only found out that the landlord had not altered the categorisation of her property, after she found a suitable mutual exchange. These matters are linked in terms of the impact to the resident. The Ombudsman may comment in this report on the resident’s request to transfer to another property, but this is for contextual purposes only and does not affect the Ombudsman’s decision. As above, this aspect of the complaint is outside our jurisdiction. The Ombudsman has taken into consideration any general distress and inconvenience experienced as a result of any errors by the landlord, caused by its handling of the categorisation of the resident’s property.

 

 

Policies and Procedures

18.        The resident’s tenancy agreement states that she has a right to a mutual exchange, including with a different local authority. The landlord, however, has a right to refuse a specific mutual exchange in certain circumstances. This includes where in the case of an adapted home, the exchange would mean its new resident would have no one living there who needed the service of the adaptions. This ensures that adapted properties remain available for those who need them.

19.        The landlord’s aids and adaptions policy give examples of what it states are larger adaptions to its properties. These require authorisation of an occupational therapist and its adaptions surveyor to put in place. It states these larger types of works include a walk-in shower/wet room, ramped access to the property and widening of doors.

20.        The landlord has a 2 stage complaints process. This policy describes the different ways a resident can make a complaint. This includes through an appointed representative such as a councillor or MP, relative, or advice worker. The landlord states it will provide its written response within 10 working days at stage one. Following a request by a resident to escalate their complaint, the landlord states it will provide its final response at stage 2, within 20 working days. The landlord states it can extend its time to respond, by a further 10 working days, at each stage, if required.

The resident’s property being categorised as an adapted needs property.

21.        On 24 April 2022, the resident submitted an application for a mutual exchange. On the application form, the resident ticked that the property had been adapted and included:

1. Ramped access to the front of the property.
2. A wet room.
3. A downstairs bedroom.

22.        On 29 April 2022, the resident told the landlord, that 2 members of its staff; a housing officer and an occupational therapist, both verbally agreed that her property would be re–categorised from adapted to a general need’s property. The landlord spoke to both members of its staff. They both denied telling the resident this. Where there are conflicting accounts of what happened during a conversation and a lack of evidence to support either account, the Ombudsman as an impartial arbiter cannot determine what happened with certainty. Therefore, the Ombudsman cannot conclude whether the landlord’s staff told the resident that it would change the categorisation of her property.

23.        However, it was reasonable for the landlord to investigate the resident’s concern by speaking to the staff members involved.

24.        The landlord’s surveyor sent an email to the resident on 21 June 2022, stating the resident’s property would remain categorised as an adapted property. It was right the landlord did this, so the resident knew the category of her property in writing. It was also reasonable that the landlord confirmed to the resident, that it had no correspondence relating to any formal approval, or intention to change the categorisation of her property from adapted to general needs. By saying this, it was managing the resident’s expectations. The landlord would not be expected to recategorize the resident’s property on the basis that she had been told it would do so verbally, with no written confirmation of this agreement.

25.        In the same email, the surveyor explained there had been discussions about the resident’s property not being one of the landlord’s better adapted properties. The surveyor also accepted some of the adaptions had been removed, but the decision to keep the property as an adapted property would remain. The landlord said it had a lack of adapted properties in its stock, as well as an increase in demand for them. It was fair the landlord sought to explain its decision and to address any confusion caused to the resident. However, the landlord’s choice of words was poor in respect of telling the resident that it was not one of its better adapted properties. This would most likely have caused further confusion and distress to the resident.

26.        In August 2022, the resident’s counsellor contacted the landlord and said the resident had been left confused about the categorisation of her property. On 30 August 2022, the landlord repeated in writing that the resident’s property remained an adapted property. It also confirmed that following any mutual exchange, any future resident would need the services of the adapted property. On 13 September 2022, the landlord repeated that it would not change the categorisation of the resident’s property. It apologised for any confusion in its communication to the resident about the categorisation. This included for any confusion caused its surveyor’s email dated 21 June 2022. The landlord’s response was appropriate and reasonable. This was because the landlord has limited properties with adapted needs, and in increase in demand for them. Therefore, it is reasonable to retain these properties for those who need the adaptions.

27.        On 13 December 2022, the resident’s councillor asked the landlord to issue the resident a vacant 2–bedroom general needs property, that she did not have to move into. They said this would assist the resident in being able to carry out a mutual exchange. The landlord responded that it did not have a suitable, vacant general needs property in its stock to do this. This was a reasonable response by the landlord as it explained its position clearly to the resident. It could only follow this request if it had such a property available within its stock.

28.        The landlord also acted in line with its own mutual exchange policy, and the resident’s tenancy agreement. This is in relation to not allowing a mutual exchange for an adapted property, where the incoming resident does not require the service of the adaptions within an adapted property. Whilst it is accepted that some adaptations have been removed, the adaptions described as still remaining within the resident’s property, are also considered large adaptions, within the landlord’s adaptions policy.

29.        For the reasons described above, the Ombudsman makes a finding of no maladministration in the landlord’s handling of the resident’s property being categorised as an adapted needs property.

 The associated complaint

30.        On 25 August 2022, the resident’s councillor asked the landlord to raise the resident’s dissatisfaction about its handling of the categorisation of her property as a complaint. The landlord agreed to raise a stage one complaint the next day. This service has not seen any evidence that the landlord responded to this complaint. The landlord’s complaints policy states that a councillor can make a complaint on a resident’s behalf. The landlord, therefore, should have provided a stage one complaint response within 10 working days of receiving this complaint. This is evidence of poor complaint handling which would have caused the resident inconvenience as she had to raise the complaint again due to the landlord’s lack of response. The Ombudsman has seen correspondence between August 2022 and October 2022, that show the landlord did continue to communicate with the resident and her councillor about her dissatisfaction, despite not addressing her complaint formally through its complaints process.

31.        The resident raised further a stage one complaint on 4 October 2022. The landlord acknowledged the resident’s complaint 9 working days later, on 17 October 2022. Its complaints policy states that it will acknowledge a complaint within 5 working days. Although this is not a significant delay, it is accepted that this may have caused some degree of negative impact on the resident.

32.        The landlord provided its stage one complaint response on 31 October 2022. This was 10 working days later, and in line with its complaints policy response times.

33.        Overall, there was service failure in the landlord’s handling of the resident’s complaint. We have considered our own remedies guidance (published on our website) in respect of compensation. In line with the Ombudsman’s remedies guidance, the landlord should pay the resident compensation of £100 for errors in its handling of the resident’s complaint. Amounts in this range are appropriate in cases where there has been service failure by a landlord. Examples of this are where there was a minor failure, and the landlord did not appropriately acknowledge the failing, or do enough to put it right. Or where the landlord’s acknowledgment failed to reflect the detriment caused to the resident.

Determination (decision)

34.        After carefully considering all the evidence, the complaint about the landlord’s handling of the resident’s request to transfer to another property, is not within the Ombudsman’s jurisdiction, in line with paragraph 42(j) of the Scheme.

35.        In accordance with paragraph 54 of the Scheme, there was no maladministration in the landlord’s handling the resident’s property being categorised as an adapted needs property.

36.        In accordance with paragraph 54 of the Scheme, there was service failure in the landlord’s handling of the associated complaint.

Orders

37.        The landlord is to apologise to the resident in writing within 28 days of this determination for the service failure in its handling of the resident’s complaint.

38.        The landlord is to pay the resident £100 within 28 days of this determination for the service failure in its handling of the resident’s complaint.