Midland Heart Limited (202101516)

REPORT

COMPLAINT 202101516

Midland Heart Limited

22 July 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 complaint concerns the landlord’s decision to decline the resident’s request to purchase her property under the right to buy scheme.

Background and summary of events

Background

The resident is an assured tenant of the landlord, which is a housing association. The property is a house. The resident took on the tenancy of the property in November 2014.
The landlord operates a two-stage complaints process. When a complaint is received, the landlord aims to provide a response at stage one within ten working days. If the complainant is dissatisfied with the response, they can request an escalation of the complaint to the next stage. The landlord will then undertake a review of the complaint and provide a stage two response within 20 working days. This will be the landlord’s final response to the complaint.
Section 4.3.3 of the complaint policy states that the landlord will not normally consider a complaint relating to matters that occurred more than six months from when the complaint was raised unless it was satisfied that there were exceptional circumstances involved.

Summary of events

On 22 October 2020 the resident called the landlord to enquire about the Right to Buy (RTB) process. The landlord’s notes of the call state that it explained to the resident that her property did not qualify for the RTB scheme and that she would also not qualify to buy the property under the Right to Acquire (RTA) or Voluntary Right to Buy (VRTB) schemes.
The resident said the landlord emailed her in 2014 confirming that she did qualify and she had moved into the property based on that email.
The resident wrote to the landlord on 22 October 2020. She expressed her disappointment with how the situation had been handled, informed the landlord that she was considering taking legal action and provided a copy of the email that was sent to her on 28 November 2014.
The 2014 email informed the resident that she was eligible to buy the property under the RTB scheme, how the discount was calculated and advised the resident to contact the landlord to start the process,
The landlord replied on 26 October 2020. It apologised to the resident for the miscommunication she had received and informed her that it would investigate the issue and respond within 14 working days.
The landlord next wrote to the resident on 11 November 2020 and informed her that:
1. The information given to the resident during the 22 October 2020 telephone conversation was correct and that she was not able to purchase the property under the RTB scheme.
2. The property also did not qualify to the bought under the RTA scheme as it was built in 1975 and for it to be eligible, it would need to have been built after April 1997.
3. The VRTB scheme was a pilot scheme ran for one month in 2018 by the Government. Information about the scheme was made available on the landlord’s website at the time. As this scheme was no longer in operation, the resident would not be able to make an application under it.
4. The landlord was hopeful that a RTB scheme for housing associations would be introduced by the Government in the future, and it advised the resident to monitor its website for any updates regarding this.
5. The 2014 email sent to the resident clearly stated that she had the right to buy the property. The landlord apologised for the incorrect information in the email and explained that it had been unable to trace the member of staff who sent the email.
The resident replied on 11 November 2020. She maintained that she only took on the tenancy of the property based on the information provided in the 2014 email and enquired how she could escalate the matter further.
The landlord wrote to the resident on 16 November 2020 and explained that the next stage in the process would be to open a formal complaint into the matter. The resident replied, confirmed that she wanted a complaint to be opened and that she would not have taken on the property had she known she would not be able to purchase it at a later date. The resident requested as a resolution to the complaint for her to either be allowed to purchase the property or to be compensated £20,000 for the work she had undertaken to the property on the understanding that she would be able to purchase it.
The landlord confirmed that a complaint had been opened on 20 November 2020 and requested further details of how and when the resident had invested money into the property.
The resident explained that she had various work done to the kitchen, bathroom and garden. She also noted that she had applied for permission from the landlord to undertake this work at the time.
The landlord requested further details from the resident regarding exactly what work had been done and whether it was carried out by the landlord or one of its contractors. The resident informed it that the landlord did not carry out the work, the costs of the work was approximately £20,000 and that she had already answered its questions.
A stage one complaint response was sent to the resident on 1 December 2020. The landlord informed her that:
1. It could find no record on its system of the email sent to the resident on 28 November 2014. As the email did not include the sender’s details and due to the length of time that had passed, the landlord was unable to investigate the matter further. It apologised to the resident for the incorrect information that was provided to her at the time.
2. When a resident intends to undertake improvements to the property, they must complete a home improvement form. This is done in order for the landlord to first approve the work and then inspect the completed work in order to ensure it had been carried out to a good standard. The landlord noted that if this form had been completed by the resident, it may have highlighted the issue of the property’s eligibility to be bought at the stage.
3. The resident would not be eligible for the RTB scheme as an assured tenant, because the scheme was designed by the Government for secure tenants. The property did not meet the criteria to be bought under the RTA scheme, as this was designed for certain properties that were built after 1997.
4. If the government were to run another pilot scheme, as it did with VRTB in 2018, the landlord would support the resident’s application under such a scheme. It also provided the resident with a link to the Government’s website with information about right to buy eligibility.
5. It was partly upholding the complaint on the grounds that incorrect information was given to the resident in 2014. The landlord apologised to the resident and awarded £50 compensation in view of this.
The resident replied on 1 December 2020 and disputed the response. She declined the compensation offer and noted that the landlord should have a record of the kitchen work as, due to a mistake on its part, it had paid for the work.
The landlord sent a stage two complaint response to the resident on 24 December 2020. It informed her that it was satisfied with its position as set out in the stage one response that she was unable to purchase the property.
The landlord then confirmed that the resident had exhausted its internal complaints process and advised her on the steps to take to bring her case to this Service should she remain dissatisfied.

Assessment and findings

The Government’s guide to the Right to Buy (RTB) scheme states that that the scheme is available to secure tenants of a public sector landlord, normally a locally authority, who has spent at least three years as a public sector tenant.
The guide goes on to state that a tenant will have a Preserved Right to Buy (PRTB) if they if they occupied the property as a secure tenant of a public sector landlord while the property was transferred to a registered provider, normally a housing association, and became an assured tenant of that provider.
The Government’s guide to the Right to Acquire (RTA) scheme states that the scheme “only applies to property built or purchased with public funds or transferred by a local authority after 1 April 1997”
The landlord explained that as the property was built in 1975, it did not meet the criteria for the RTA scheme. The resident signed an assured tenancy agreement with the landlord on 12 November 2014. Therefore, as the resident did not occupy the property when it was owned by a public sector landlord, she would not have a Preserved Right to Buy and not be eligible purchase the property under the RTB scheme.
The resident received an email from the landlord dated 28 November 2014 which informed her that once her tenancy moved from a starter tenancy to an assured tenancy that she would be able to purchase the property. This email was sent from the customer service centre email address and did not include the name of the sender.
The landlord has been unable to trace the circumstances under which this email was sent. Due to the timescales involved, a landlord would not usually be expected to retain correspondence for this length of time so it is reasonable for the landlord not to have a copy of the email now.
The landlord’s privacy policy states that its customer’s personal information is subject to the General Data Protection Regulations (GDPR) and in relation to how long it retains personal information, the policy states that the landlord “will never retain personal data for any longer than is necessary for the purposes for which we need to use it and/or as is required by law”. GDPR does not give recommended timeframes for retention of data, but standard industry practice would be for general correspondence not to be held for longer than six years.
It was therefore reasonable for the landlord to be unable to fully explain to the resident the circumstances under which the email was sent due to the time that had elapsed and the lack of available evidence. The landlord did recognise the confusion that this email had caused and offered the resident £50 as a goodwill gesture, which was declined.
It should also be noted that the 28 November 2014 email was sent to the resident after she had signed the tenancy agreement and it is not clear any other information or guidance relating to the potential purchase of the property was provided to the resident prior to the tenancy being signed.
The landlord would not be expected to allow the resident to purchase the property based on the fact that she was given incorrect information in 2014. This is because the landlord is obliged to follow the rules and regulations for the RTB and RTA schemes as set out by government and it cannot deviate from these rules, even if it has given a resident incorrect information concerning their rights to purchase a property.
The resident requested compensation of £20,000 to reimburse her for the work that had been done to the property with the expectation that she would be able to purchase it. The landlord requested further information as to exactly what work was done and what permissions were sought by the resident prior to commencing any work.
This is in line with the landlord’s home improvements policy, which states that permission must first be granted by the landlord for a tenant to replace a bathroom or kitchen, replace electrical heating (no gas related work would be approved), the replacement of external or internal doors, add laminate flooring, or work to driveways and pathways. The policy also states that permission is not required for redecoration as long fixtures and fittings will not be painted.
This is an appropriate position for the landlord to take, as when an item is replaced, its upkeep may no longer be its responsibility and any required repairs or maintenance would then fall on the resident. The landlord would require a record of what items in the property had been changed and what remained its responsibility in order for it to respond correctly to any reports of required repairs from the resident.
The landlord would also be expected to ensure that any work undertaken to the was carried out by appropriately qualified operatives to ensure planning permission rules were being followed, the operatives were suitably qualified and that they could provide proof of public liability insurance. The landlord may also want to inspect the proposed work prior to it commencing and once it had been completed.
The landlord also operates a compensation for improvements policy, whereby work done by a tenant to the property during occupancy is reimbursed by the landlord when the tenancy ends. The landlord warns that if permission had not been sought to undertake the work, a tenant may not be eligible for this compensation and could be held responsible for returning the property back to its original condition when they move out. Interior decoration does not qualify for compensation. Compensation will also not be considered if the property is bought under the RTB or RTA schemes.
As the resident estimated the costs of the work done at around £20,000, it was reasonable of the landlord to assume that significant changes had been made to the property and request further information. This was not provided by the resident and landlord had no record of permission being sought to undertake improvements.
When requesting an escalation of the complaint to stage two of its internal process, the resident noted that the landlord should have records of the work done to the kitchen, as it had paid for it following an error on its part.
In May 2020 the resident raised a separate complaint relating to a leak underneath the kitchen sink. Due to delays in completing repairs to the sink, decoration work arranged by the resident had to be cancelled and the resident accrued £475 in expenses due to a lost deposit.
This complaint went through the landlord’s internal complaint process and then was brought to this Service, where the landlord agreed to pay £475 compensation to resolve the complaint.
Other than this payment, the Ombudsman has not seen any record of other kitchen work undertaken by the resident that was subsequently paid for by the landlord. Therefore, there is no evidence of service failure in the compensation offered by the landlord. No evidence has been provided by the resident to support her request for £20,000 and the landlord is under no obligation to provide recompense on this basis.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its decision to decline the resident’s request to purchase her property under the Right to Buy Scheme.

Reasons

The landlord has acted in line with its policy in response to the resident’s request to purchase the property and her request for compensation. It has explained its position clearly to the resident and responded to her queries and complaints in a timely manner.