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Mosscare St. Vincent’s Housing Group Limited (202003392)

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REPORT

COMPLAINT 202003392

Mosscare St. Vincent’s Housing Group Limited

19 January 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 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. This complaint is about the landlord’s handling of the resident’s concerns about the information he was given about the Right to Acquire (RTA) the property when he accepted the tenancy.

Background and summary of events

  1. The resident has an assured (non-shorthold) tenancy with the landlord for a three-bedroom house (‘the property’), which started in August 2017.
  2. The resident has said that when he accepted the tenancy in August 2017, he was verbally advised by the landlord that he had a RTA the property after three years.
  3. In March 2020 the resident was considering a mutual exchange and as part of the exchange process he was asked by a prospective exchange tenant whether the property could be purchased via RTA. The resident has said that he contacted the landlord to double-check this and discovered that he did not in fact have a RTA the property. As a result of the property not being eligible for the RTA scheme, the resident was unable to find anyone willing to do a mutual exchange.
  4. The resident raised a formal complaint with the landlord on 10 Apr 2020. He explained that when he accepted the tenancy, he spoke to the Housing Officer at the time of viewing the property and he asked her if he had a RTA the property. The resident has said that the Housing Officer told him that he could purchase the property after three years. He also recalls that the Housing Officer mentioned a change in the government policy and that previously tenants had to wait five years, but this had now been reduced to three years.
  5. The landlord acknowledged the complaint on 5 May 2020 and spoke to the resident and followed this up with an email setting out the next steps.
  6. The landlord issued its Stage 1 complaint response on 18 May 2020, where it said the following:
    1. The Housing Officer who dealt with the tenancy sign-up in 2017 could not recall any specific conversation with the resident about the RTA.
    2. It had therefore sought further clarification from its Development Team, and it confirmed that for a tenant to have a RTA, the property must be an eligible property based upon the government rules, which set out that the property must either have been built or bought by a housing association after 31 March 1997 (and funded through a social housing grant provided by the Housing Corporation or local council) or transferred from a local council to a housing association after 31 March 1997. The resident’s property was built in 1994, so it was therefore not eligible for RTA because of the time that it was built.
    3. The landlord acknowledged that ‘It seems you may have been misinformed about the property at sign up or possibly some miscommunication’. But having checked its records it appears that because of when this property was built it would not at any time have been a property eligible for the RTA scheme.
    4. It apologised ‘for any doubt that it may have contributed to’.
    5. The letter also addressed a few separate customer service issues about a delay in responding to a report about removing a TV aerial, and a missed appointment, and a delay in answering a query about extending the property, for which the landlord apologised and offered £30 compensation.
  7. The resident was unhappy with the landlord’s Stage 1 response and he sent it a letter entitled ‘Letter Before Court’ on 19 May 2020. He stated the following:
    1. When I signed the tenancy at this address I was told in clear and explicit words that this property can be bought after 3 years.
    2. He said this was witnessed by his family who were present at the time.
    3. He said that the tenancy agreement was unclear about the RTA and it should have included wording to the effect of: “To acquire it the property must either have been built or bought by a housing association after 31 March 1997 (and funded through a social housing grant provided by the Housing Corporation or local council) or transferred from a local council to a housing association after 31 March 1997”. The simple wording on tenancy page would give any reasonable man the impression that the property can be acquired.
    4. He explained that the landlord had provided a poor service and had misrepresented the property’s eligibility for RTA. He said that this had two detrimental effects on him:
    5. I cannot buy the house now which is something I wanted before moving in so that in future natural growth of my family could be accommodated.
    6. Alternatively, I planned that in case I cannot afford to buy it I would at least be able to swap it with other housing association or council tenant for a larger house due to growing family size. For this purpose, I had signed up with home swapper more than a year ago. Unfortunately, that has been affected too! A lot of families showed interest in my house through HomeSwapper and House Exchange apps. However, the moment they find out that it cannot be bought/acquired later in future they change their mind.
    7. He asked that the landlord consider his suggested remedies:
      1. reinstating the right to acquire/buy, OR
      2. paying £2,000 in damages and awarding me Band 1 which should increase my chances of rehousing for a larger property, OR
      3. paying £15,810 in damages. This is due to having wasted my two and a half years by being made to live in a property that later turns to be not something I wanted. The calculation is based on the number of months lived in this state up to the date I found about this issue (18 March 20). Therefore, 527 × 30 = £15,810.
    8. He asked that the landlord reconsider its position, or he would pursue the matter further via the courts. 
  8. The landlord acknowledged the escalation on 19 May 2020, and the complaint was escalated to Stage 2 of the complaints process. The landlord also spoke to the resident on 22 May 2020 about the complaint.
  9. The landlord’s internal communications on 26 May 2020 show that further enquires were made about what information would have been provided about RTA at the time of the tenancy sign-up. The landlord found that any verbal confirmation would not have been provided without the Officer having to check with a different team first.
  10. The landlord issued its Stage 2 complaint response on 1 June 2020:
    1. It confirmed that as the property was built before 1997 it was not eligible for the RTA scheme.
    2. It confirmed that it was not able to agree to his suggested remedies, because it cannot make the property eligible for RTA and nor can it influence priority bandings for rehousing.
    3. With regards to the issue of compensation, it maintained that there was no evidence to suggest what was said at the tenancy sign-up, owing to the fact this conversation allegedly took place over two and a half years ago.
    4. As the property does not have the RTA status, it was not able to uphold the complaint, and it therefore considered the matter closed.
    5. The letter goes on to provide an update on the separate complaints about the delay in removing the TV aerial and providing information about whether the resident could extend the property. It increased the compensation for these separate issues to £100.
  11. The resident was unhappy with the Stage 2 response and asked for the complaint to be escalated again on 2 June 2020. This was acknowledged by the landlord the next day and it said that the last stage in its complaints process was a review panel hearing.
  12. The landlord explained to the resident that due to the COVID 19 situation it was not able to facilitate the resident’s attendance, either in person, or remotely, to the review panel hearing. It invited the resident to provide any further evidence or submissions he wanted the review panel to take into account. The resident provided further submissions, which was acknowledged by the review panel, and it assured him that it would consider everything in full and that there would be no detrimental impact as a result of him not being able to attend the meeting.
  13. The landlord’s records show that the panel review meeting took place on 19 June 2020 and the complaint was considered again in full.
  14. The landlord issued its final Stage 3 complaint response on 2 Jul 2020:
    1. It apologised for the slight delay in issuing its response following the review panel meeting.
    2. It reiterated its position, that it had not been able to confirm what was said to the resident at the tenancy sign-up about the RTA. The Officer involved did not recall the conversation and the landlord was unable to verify this one way or another. It said that, in its experience, it was an unusual question for an incoming tenant to pose to an Officer completing a sign-up but that does not mean to say it did not take place. But it was not unreasonable for the Officer not to recall the conversation given the period of time that’s elapsed and the high number of customer transactions they deal with each day.
    3. It had taken into account the evidence provided by the resident about the mutual exchange(s) that had fallen through and the witness statements. However, it concluded that this was not independent evidence and it could not rely upon this to substantiate what may have been said to him.
    4. It had considered the resident’s suggested proposals and remedies but it remained of the view that it could not agree to them. It maintained that no refund of the rent was due as the resident had enjoyed occupation of the property and had a legal obligation to pay the rent throughout the duration of his occupancy.
    5. It could not enable the property to be sold to the resident as it was not eligible for RTA and nor could it accelerate his rehousing priority to Band 1. It felt that these remedies were not appropriate and, in any event, it had no power to amend the priority for rehousing in this way.
    6. In conclusion, it maintained that it was not able to change the outcome of the complaint.
    7. It also reconfirmed its previous offer of £100 compensation for the unrelated service issues.
    8. It was confirmed that this was the final stage of the complaints process.
  15. On 5 July 2020 the landlord acknowledged the resident’s email and confirmed that it had checked the clause in the tenancy agreement and it said that ‘I can see that it’s somewhat ambiguous but the reality is that the legislation as it applies to the right to acquire is as it is and cannot be exercised due to the year your property was built. This is not going to change. The tenancy agreement refers to exceptions without listing the specifics, which is not unusual’. However, in an effort to assist the resident, the landlord agreed to seek legal advice to double check the position with the RTA in the context of both the legislation and the wording in the tenancy agreement.
  16. The landlord obtained legal advice on 9 July 2020 which confirmed that the clause in the tenancy agreement about RTA was not ambiguous in any way.
  17. The landlord then wrote to the resident on 13 July 2020 and said that, in light of the legal advice, it was maintaining its decision that the tenancy agreement was not ambiguous. It also said that ‘for completeness we have double checked our asset and treasury records, which have again confirmed that the property was built in 1994 and therefore the right to acquire does not apply’.
  18. The resident then contacted this Service via his MP, on 21 July 2020 to pursue the complaint further.

Assessment and findings

Policies, procedures, and agreements

Tenancy agreement:

  1. Under the Right to Acquire section, it states:
    1. You do not have the right to acquire unless and until this tenancy has become an assured (non-shorthold) tenancy. After that time, you may have the right to acquire your house under the Housing and Regeneration Act 2008, unless you live in sheltered housing or other housing excluded from this right by that legislation in which case you would not be able to exercise this right.

The landlord’s response to the resident’s concerns

  1. The Ombudsman’s role is to consider whether the landlord’s response to the resident’s concerns was appropriate and in accordance with its policies, procedures, and any agreements it has with the resident, and whether it acted reasonably, taking into account what is fair in all the circumstances of the case.
  2. The resident considers that the landlord misinformed him at the start of the tenancy about the property being eligible for RTA. He considers that the landlord ought to take responsibility for the alleged misinformation he was given, and it should compensate him for, what he considers to be, the adverse financial impact on him and his family.
  3. With regards to the RTA the property, the Ombudsman understands that the property is not eligible for the RTA scheme based upon when it was built. The property has never been eligible for RTA, and any potential mis-advice or error on the part of the landlord would not change the property’s eligibility under the RTA scheme. The fact remains that the resident was not entitled to acquire this property and the landlord is not obligated to now facilitate this. Neither the landlord, nor the Ombudsman, can change the RTA scheme rules or criterion that are set out in legislation.
  4. It is noted that the resident has not actually made an application to purchase the property under a RTA scheme. The evidence shows that, following a query during a potential mutual exchange, the fact came to light that the property was not eligible for RTA. The information given by the landlord in response to the mutual exchange query was correct, in that the property was not eligible for RTA. As such, the landlord has not acted inappropriately and it cannot be held responsible for the prospective tenant not going ahead with the mutual exchange.
  5. With regards to the question of whether or not the resident was misinformed in 2017 about the property’s eligibility for RTA, the resident has provided witness statements to support his recollection of what happened at the sign-up. These witness statements are from close family members who were said to be with the resident at the time. The landlord has rightly acknowledged the witness statements and it has duly considered them. However, the landlord has said that this evidence is not independent and is therefore not persuasive. The landlord has also said that there are no other records to establish what was said at the tenancy sign-up.
  6. Given that the witness statements were from close family members, and are not contemporaneous evidence, the Ombudsman considers that the landlord is not being unreasonable in concluding that this evidence is not persuasive. The fact of the matter is that there is no definitive independent evidence to substantiate what was said to the resident at the time of the sign-up. As such, the Ombudsman cannot say that the landlord misinformed the resident about the property’s eligibility for RTA. In addition, even if there had been independent evidence to show that the housing officer had misinformed the resident at the sign-up, this would not alter the fact that the property is simply not eligible for RTA.
  7. The landlord has acted appropriately by investigating the resident’s concerns about what he was told at the time of signing for the tenancy. Given the length of time that had passed (almost three years) since the alleged misinformation was given, it is not unreasonable for the landlord to conclude that the particular Officer’s recollection of the event was unclear.
  8. The Ombudsman can only look at the evidence that is available, and in this case, there is very little independent evidence to demonstrate what occurred at the time of accepting the tenancy. The landlord is right not to dismiss the resident’s comments about what he was told, but by the same token, it cannot independently verify what was actually said at the time.
  9. The resident is seeking punitive damages and/or compensation from the landlord for alleged misrepresentation. He has said that the wording of the tenancy agreement, in so far as the RTA clause is concerned, is ambiguous and the legal advice he has obtained suggests that the landlord’s actions and misinformation at the start of the tenancy may well amount to legal misrepresentation.
  10. While the resident’s comments are duly noted, the Ombudsman is of the view that the clause is not unusual in any way and is similar to what is found in most tenancy agreements of this type. However, whether or not the specific clause in the tenancy agreement amounts to misrepresentation is not a matter that the Ombudsman can determine. Such matters are better suited to a court of law.
  11. In any event, the evidence available to the Ombudsman shows that the landlord has acted appropriately by referring the matter to its legal advisors and has obtained legal advice on this issue. It is not appropriate for the Ombudsman to interrogate, or otherwise question, the validity of that legal advice, and the landlord is entitled to rely upon the legal advice it has obtained. Should the resident wish to challenge the legal position taken by the landlord he would need to do so in a court of law – and not through the Ombudsman.
  12. With regards to the issue of damages and/or punitive compensation awards, the role of the Ombudsman is not to punish or penalise the landlord for any error, and as we are an alternative to the courts, we operate differently and we do not award damages or punitive compensatory awards or other such financial penalties like a court would.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its handling of the resident’s concerns about the information he was given about the RTA the property when he accepted the tenancy.

Reasons

  1. The landlord’s handling of the matter was appropriate and its decision-making with regards to the outcome was reasonable. It fully considered the resident’s concerns and investigated the complaint in depth and provided appropriate responses in a timely manner. It acknowledged the resident’s evidence and provided a reasonable explanation as to why it was not able to uphold the complaint.