Housing Solutions (202006212)

REPORT

COMPLAINT 202006212

Housing Solutions

28 June 2021

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 resident has complained about:
1. The time taken by the landlord to process their mutual exchange application.
2. The way their reports of anti-social behaviour were used in terms of the mutual exchange application.

Background

The resident moved to their home in January 2020 following a management transfer.
The resident’s child is disabled. They are also educated at home and have at times been supported by children’s services from the council. The resident decided they needed more space at home so they looked for a mutual exchange. One mutual exchange process ran from January – April 2020. It was refused by the other landlord as the resident would have been under occupying. That mutual exchange is not the one the resident has complained about.
The resident submitted a second mutual exchange application in April 2020 with a different property and tenant. The handling of the application then continued until the final complaint response in November 2020. The handling of the mutual exchange application continued after the final response, and the resident had not moved at the time of the final response.
The resident has complained that the landlord took too long to process the mutual exchange application. In particular they have highlighted the landlord’s decision to suspend property inspections (and therefore to suspend its handling of mutual exchange applications) during the covid restrictions.
The resident has explained that they considered their mutual exchange a priority case due to reported anti-social behaviour. They had moved through a management transfer in January 2020 due to anti-social behaviour targeted against the resident’s child. They would later report that this ASB had returned and so they felt the landlord needed to prioritise the mutual exchange application.
At the time of the formal complaint that led to this case the resident did not complain about the landlord’s actual handling of the anti-social behaviour. It was only raised as a reason to support the resident’s request for the landlord to prioritise their mutual exchange application.
There have been further developments in both the handling of the mutual exchange and anti-social behaviour processes after the landlord’s final (November 2020) response. As the role of the Housing Ombudsman is to investigate how a landlord has responded to a complaint we can only assess issues and incidents up to the date of the final response. Therefore if the resident is dissatisfied with the service provided by the landlord after November 2020 then this would first need to be raised as a new formal complaint with the landlord.

Summary

The resident submitted a mutual exchange application in April 2020. The covid restrictions at that time were:
1. The first ‘lockdown’ from 26 March 2020 which included restrictions on viewing properties and moving home. This included the requirement that ‘no person may leave the place where they are living without reasonable excuse.’
2. Government guidance on 28 March asked that people delay moving home ‘as far as possible.’
3. Viewings of properties, including mutual exchanges, were allowed from 13 May 2020. The guidance asks anyone displaying symptoms or that may have met someone displaying symptoms showed delay any viewings.
4. Government advice to landlords and tenant bodies on 18 May suggested routine repairs could begin to resume.
5. The update to the guidance on 1 June explained people should be able to move except where there is a direct risk of transmitting the virus.
6. From 1 August 2020 routine repairs could resume for those that had been ‘shielding.’
7. A second national lockdown then ran from 5 November until after the final response for this case. However during this lockdown repairs were still possible.
In addition to national guidance each landlord will have had its own risk assessments and individual circumstances to consider when delivering its services during an unprecedented situation.
The landlord explained in April 2020 that it was not handling mutual exchange applications at that time. The resident contacted the landlord extensively during this time to try and arrange an inspection so that they could complete their mutual exchange. In the resident’s email on 11 May they explained they understood the government was opening up options. They explained they would keep 2 metres away or go out for the inspection. They also explained the challenges their child was facing due to their disability, the impact previous experiences had on their mental health, and that a different home would allow them to apply for a support dog. The landlord responded the same day to explain the government restrictions had not changed at that time, and it would only recommence its mutual exchange process when the guidance changed and when it also considered the risks sufficiently reduced for its staff.
During May and June the resident exchanged emails with both their landlord and the landlord of the property they hoped to exchange with. Both landlords continued to confirm their mutual exchange processes were suspended at that time.
At the end of June the resident reported with details about how their child had hurt themselves at their current home, and as such it was not suitable. During previous correspondence the landlord had confirmed they were registered as band B on the local choice-based lettings scheme.
It is important to understand the difference between a transfer request and a mutual exchange. A mutual exchange is largely driven by the two residents involved. There are checks that the two landlords must complete (such as the inspection), however the choice and agreement to swap is made by the residents. This means that a mutual exchange will not be expediated by medical circumstance. Instead if there is a specific need (whether that be medical or some other factor such as the threat of serious ASB) then this will be reflected in how any transfer request is handled. This may be by bidding through the local choice-based lettings scheme (and being awarded a higher band), or through a management transfer.
Therefore if the resident was concerned about the suitability of their property, the main role for the landlord in that situation would be to provide advice about transfer requests and bidding for properties, and to review any supporting information (such as an Occupational Therapist report).
The landlord responded at the end of June to explain mutual exchanges were still suspended. It also stated that there was no change in the government’s ‘risk status.’ It was not clear what this ‘status’ referred to however as the timeline above shows that over this time there had been some changes in the government’s guidance (such as viewings) that could be applied to mutual exchange applications.
The other tenant’s landlord confirmed that it would restart assessing mutual exchange applications from 6 July. Therefore regardless of the resident’s landlord’s actions up to this date, the exchange would not have been able to progress.
Furthermore the other landlord explained there was a queue due to the number of suspended applications and these would be assessed in date order. Although the resident in this case submitted their application in April, the other tenant only submitted their application to their landlord at the start of June. The other landlord explained it was working through applications that had been received, starting from March, and would notify both parties when it reached this application.
The resident submitted their stage 1 complaint on 6 July. They complained:
1. That the landlord continued to suspend inspections despite the government easing restrictions.
2. That the landlord had suggested an OT visit to consider any helpful adaptations, but this contradicted its decision to suspend mutual exchange inspection visits.
3. That the property was having a severe impact on her daughter’s health.
The landlord responded 8 July. It explained:
1. That it understood the resident’s challenging circumstances.
2. That it had processed the paperwork, but would not begin inspections until the government’s risk level was lowered further. This was clarified in an internal email to mean from level 3 to level 2.
3. That the other landlord had only started processing paperwork from July and had a backlog.
4. That the landlord’s staff had to complete the inspection (and not the resident).
The resident was asked to contact the local Occupational Therapist (OT) service at the end of June so that the property they hoped to move to could be assessed. There was some delayed before the resident contacted the OT service as they hoped a past OT report for another property would be sufficient. However the landlords of both properties confirmed it had to be a report about the specific property they were hoping to move to. The other landlord confirmed receipt of the OT report on 12 August 2020.
The resident made the first ASB report on 2 September, and confirmed details on 8 September. As seen in the emails at the time, the landlord’s ASB team contacted the resident on 10 September to offer support. The resident explained that her daughter was harassed and threatened in a park in July. She did not explain whey she reported this in September and not July.
The resident reported further ASB (paint thrown at the property) on 11 September. The landlord spoke to the police, re-referred the resident and her daughter to the local Children’s Services for support and gave advice about how to apply for an emergency transfer if they felt unsafe. The emails with Children’s Services and about the transfer are on file, however the emails or notes about the police’s assessment of the situation have not been provided.
There were two further reports of ASB (described as harassment and hate crime type abuse) in September and October. These reports were again about their home being vandalised.
The landlord has noted that they assessed the three incidents of ASB against the resident’s home as likely to be self-inflicted. They stated the police had also reached this conclusion. The landlord pointed to the paint used also having drips leading to the back door, as well as the high wall and locked gate at the property making access unlikely.
The landlord has explained it did not present this assessment to the resident at the time as it was concerned about the impact it would have on the resident’s mental health. The issue has since come to light after the final response in this case following a Subject Access Request by the resident for all documents and correspondence related to her held by the landlord.
The landlord’s handling of the ASB case (including this assessment of it being self-inflicted) is not part of this case. It was not part of the formal complaint (as the resident was not aware at the time). This means the landlord has not had the opportunity to respond to a complaint about its handling of the ASB. Therefore the Housing Ombudsman Service in turn cannot assess the landlord’s response to a complaint about the handling of the ASB.
However, the internal emails from the time and prior to the final response did note this assessment about the ASB. The resident was asking that their mutual exchange application be prioritised due to the ASB. Therefore the internal assessment of the ASB is relevant to whether the landlord prioritised the mutual exchange application appropriately or not.
It is particularly relevant that in an email (15 October 2020) to Children’s Services the landlord noted:
1. It was not a mental health expert.
2. That it was prioritising mutual exchange applications based on various factors and not just the date they were submitted.
On 12 October 2020 the government replaced the 5 level system the landlord had referred to with a 3 level system.
As a result of this change in guidance by the government the landlord considered the risk level sufficiently reduced. It had been waiting for the move from level 3 to level 2, but the change in framework now placed most of the country at ‘medium’. The property inspection was then completed by 26 October.
The landlord sent a response on 8 October that covered most of the complaint issues but was outside the actual complaint process. It explained:
1. The ASB reports it had received and how they had been logged and investigated.
2. That the handling of the ASB had not been raised in the formal complaint.
3. The timetable of the mutual exchange application and email correspondence between the parties. This included confirmation that during this whole time the inspection service had been suspended.
4. That it was n the process of re-starting its inspection service and would contact the resident when it could offer a date.
The landlord’s final response to this complaint was sent on 12 November 2020. It explained:
1. That the resident had not made a complaint about the actual handling of the ASB, and the 8 October gave a summary of the ASB case.
2. That the landlord did not escalate the complaint due to the unmanageable volume of correspondence the resident had sent in May and June 2020. This had resulted in a restricted contact process being introduced from June 2020.
3. That, as well as the communication restriction, the complaint was not escalated as the issue (progress of the mutual exchange) was related to a national emergency and government guidelines, and not to something within the landlord’s control.
4. That following the October inspection the mutual exchange had been set for December.

Assessment

Time taken to process mutual exchange application

The mutual exchange application was submitted in March 2020. This was the same month that saw the introduction of the first national ‘lockdown’ regulations in response to covid. This was obviously an unprecedented and developing time that required flexibility from all parties. It was also a period where all landlords had to limit the services they provided in the interest of resident and staff safety.
In terms of the time from March to October 2020:
1. March-May: the most restrictive period of lockdown where minimal visits were appropriate.
2. May: Government stated viewings were permitted if social distancing observed.
3. May/June: Both landlords in the mutual exchange confirmed their process had not restarted. The resident’s landlord explained it would wait for the risk level to move from ‘3’ to ‘2’.
4. July: The other landlord confirmed it would restart processing the paperwork for its mutual exchange backlog.
5. July/August: The other landlord waited for the resident to arrange an OT report.
6. October: The government changed its risk framework from a 5 to 3 level system. The landlord arranged the inspection the same month.
Therefore from the brief summary above the time taken to process the mutual exchange was reasonable. The landlord provided clear and consistent explanations throughout the period. It specifically highlighted the government’s nation risk level as the determining factor, and it arranged the inspection when this changed as it said it would do.
There was some confusion in May/June. The resident correctly highlighted how the government had stated that viewings were permitted from this time, and soon after some routine repairs were also permitted. Therefore there was no longer a blanket restriction on landlord staff entering resident homes.
Despite this the landlord continued to state that the government’s advice had not changed. As itemised above however this was not accurate, the advice had changed. The landlord did later clarify in June that it was referring to the national risk levels. However this was not clear in May and June.
There was no specific process for landlords use during the covid epidemic. Each landlord had to carry out its own assessment of the risks for each of its services. Therefore the priority at the time was to ensure it kept residents up to date, as opposed to necessarily actually delivering services it otherwise should.
In this case the landlord was consistent in that it clearly stated mutual exchanges were suspended and it could not give any specific timeframe when they would restart. It maintained contact with the resident. Its approach was also supported in that the other landlord in the mutual exchange also suspended its mutual exchange process for a similar period.
The resident has complained that their application should have been prioritised or dealt with when others were not due to their situation. Some of this consideration is assessed in more detail in the section below. However one important point is that a mutual exchange is not the process to address urgent or emergency housing issues. Mutual exchanges are mostly a transaction between the two residents with the landlord only completing some essential checks of the residents and the properties.
If there is an urgent or emergency housing issue that requires a move these would normally be addressed through priority banding in the choice–based lettings scheme, or through a management transfer application. Equally if there are safety concerns (as the resident stated their child had injured themselves) with the property, these should first be dealt with by trying to resolve the property itself (ie following an OT report, as the landlord had advised in this case). If this is not possible then the medical or other need that could not be resolved would be reflected in the banding of any housing application.
The resident has complained that it was inappropriate for the landlord to suggest an OT visit when it was declining to arrange mutual exchange inspections. However as explained above, it was reasonable for the landlord to conduct its own risk assessments of the different services it provides. OT visits could relate to emergency or urgent issues, so it is reasonable that these would be continued in some way. Meanwhile, as explained above, urgent or emergency moves would normally be managed by transfers as opposed to mutual exchange. Therefore it is not unreasonable that mutual exchange visits would not be restarted as early as OT visits.

Priority of mutual exchange application

Prior to September 2020 the resident explained that the need for the mutual exchange was based on their child’s health (both in terms of safety issues with the property, and their care and education needs at the property). However in September 2020 the resident explained their need had increased further due to serious ASB incidents.
As explained above, the actual handling of this ASB was not raised as a concern until after the final response in this case. Therefore any complaint about the investigation and response to the ASB would at first be for the landlord to respond to.
However the landlord’s internal email (and its 8 October letter to the resident) stated that there was some of prioritisation of the mutual exchanges it began to handle once the process restarted. Alongside this the resident was presenting the ASB incidents as evidence of the seriousness of their situation, while at the same time the landlord had concluded the ASB situation was not as serious as stated. This was based on its conclusion some of the ASB was self-inflicted.
The landlord has not provided any medical evidence to support its justification that it withheld its conclusion about the ASB reports out of concern for the resident’s mental health.
Therefore the landlord made a decision about the way it would handle the resident’s evidence without giving the resident the opportunity to comment or challenge the landlord’s conclusion. This is unfair. Furthermore it meant the resident’s expectations were not appropriately managed as they felt they continued to provide evidence of the need for a prioritised mutual exchange while the landlord continued to investigate but then set aside this evidence.
In terms of the actual substantive impact, the landlord was clear throughout that it would not process the application until the national risk level changed, and this s what it did. Furthermore, as explained above, if there was sufficient serious ASB this would ultimately need to be managed either with the perpetrators or a management transfer. Therefore the way the landlord handled its conclusion about the ASB did not affect the timetable of the mutual exchange process.
However there was a failure of communication, and in the landlord not providing a fair service. The landlord should always present the evidence it has used when reaching a decision that directly affects a resident. The only exceptions would be instances such as specific, expert advice that states it would affect the resident’s health, or where there are confidentiality concerns. If the landlord had any such concerns it should have sought appropriate expert advice.
It was not appropriate for the landlord, given it stated it was not a mental health expert, to conclude it would not share its conclusion about the ASB.

Determination (decision)

I can confirm in accordance with paragraph 54 of the Housing Ombudsman Scheme:
1. There was no maladministration in the time taken by the landlord to process the mutual exchange application.
2. There was maladministration in the way the reports of anti-social behaviour were used in terms of the mutual exchange application.

Reasons

The landlord consistently explained the limitations affect the mutual exchange process, and eventually progressed the application when then the criteria it had consistently explained were met.
However the customer service, both in terms managing expectations and providing a fair service to the resident, was not adequate. The landlord reached a conclusion about the ASB evidence the resident had provided to support their mutual exchange. The landlord should have responded to this directly and raised its concerns with the resident to manage their expectations.

Orders

As a result of the determination above I have ordered that the landlord will, within 4 weeks:
1. Pay the resident £100 to acknowledge the inconvenience caused by continuing to provide ASB reports that were being handled differently than stated.