Severnside Housing (202115584)

REPORT

COMPLAINT 202115584

Severnside Housing

18 March 2022

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 response to the resident’s reports about his attempts to purchase the property.

Background and summary of events

2. The resident has held an assured shorthold tenancy for a three-bedroom house owned by the landlord since 2014, and has no vulnerabilities recorded.

The tenancy agreement

3. The tenancy agreement sets out the rights and responsibilities of both the resident and the landlord. Only general terms have been supplied in this instance.

The Housing (Right to Acquire) Regulations 1997

4. Section 40 Rural Areas 1A says the right to acquire does not arise if the dwelling house is situated in a rural area designated by order of the secretary of state under section 17 (1) (b) of the Housing Act 1996.

The complaints policy

5. The landlord’s complaints policy states at section 7.4 that stage one complaints will be responded to within 10 working days, and stage two within 20 working days. Section 7.7 says a complaint will not be escalated to stage two if there is no new information and the stage two complaint relies on the same information already considered at stage 1.

Summary of events

6. On 7 June 2021, the resident emailed the landlord about his Right to Acquire (RTA) application being declined due to the property being in a rural area. He said that a neighbour had bought their property and had only been in the area for three years, and another had bought theirs due to a ‘preserved right to buy’. The resident explained that he had spent a lot of money on the house hoping to one day afford to buy it and pass it to their children.
7. On 15 June 2021 a stage one complaint was submitted and acknowledged by the landlord.
8. The complaint response was issued by the landlord on 16 June 2021:
   1. The complaint was that the resident was unhappy that he was not allowed to purchase his home when other residents had, and the landlord had newer properties in the village and should consider selling the resident’s home. In the resident’s view, the eligibility criteria of the various statutory sale schemes did not seem fair.
   2. To resolve the complaint the resident wanted the landlord to overturn its decision and allow him to purchase his home.
   3. The landlord explained that it followed the rules set out in law and enclosed the government’s leaflet which stated that properties in rural areas were excluded from sale under the RTA scheme.
   4. The landlord said that if the resident moved to another property not in a designated rural area, he may be able to purchase that property.
   5. Due to Data Protection, the landlord could not discuss other resident’s cases, but it could confirm that no other properties in the village had been sold under RTA rules due to the village being located in a designated rural area.
   6. There was another scheme for tenants with a continuous tenancy from 2001, the Preserved Right to Buy (RTB), but the resident’s tenancy began in 2014 so he was not eligible for this other scheme as he had been correctly advised.
   7. The landlord’s primary business was the provision of homes to those in housing need and it did not sell properties save where it was legally obliged.
   8. The eligibility criteria were not decided by the landlord, and it was unable to change the rules so the complaint could not be upheld.
   9. Escalation rights were given to stage two of the complaint process.
9. The resident responded on 23 July 2021. He said that he did not understand how their neighbour who moved to the village purchased their property recently, and the decision seemed unfair, and he was prepared to challenge the landlord’s decision in court.
10. The landlord responded on 3 August 2021 and said it appreciated how unfair this would seem when neighbours moved in after him but could purchase their home. It explained the rights for existing tenants of the local authority and that the landlord had no control over this. It directed the resident to his MP to lobby on his behalf. Information about the ‘preserved right to buy’ from Shelter was quoted. The landlord offered to escalate the complaint to stage two if the resident remained unhappy.
11. The resident replied on 10 August 2021 and said he had the backing of the local MP and council and school due to his child needing one to one care and being vulnerable to change. The landlord’s decision was, in his view, discriminatory and needed resolving at government level and he would take the issue to court.
12. The landlord acknowledged the email that day, and the resident made contact on 16 August 2021 to ask what progress had been made.
13. Internal landlord emails on 25 August 2021 queried the issue of the resident’s neighbour having purchase their property. A responding email explained the preserved right to buy:
    1. Local authority (LA) tenants had the RTB when the LA was their landlord.
    2. In 2001, a large-scale transfer took place to the landlord, but the original LA tenants kept their preserved RTB.
    3. The neighbour of the resident who purchased their property must therefore have been a transferring tenant with preserved RTB.
14. The landlord wrote to the resident on 22 September 2021 and said it would close the complaint as it had not heard from him. The resident responded that the case should not be closed and he wished to escalate the complaint.
15. The landlord spoke to the resident on 30 September 2021 and issued a further complaint response confirming that it had decided not to escalate as the RTA policy or procedure had been followed correctly and it was unfair to its customers to escalate when the landlord was certain the outcome would be no different.

Assessment and findings

Scope of this investigation

16. The Ombudsman would not make a decision about whether the resident has the right to purchase their property through the RTA process, as this would be a decision appropriately left to the courts. The resident appears to acknowledge that his property is excluded from the scheme, but believes that the rules are unfair, this is not something that the landlord can use discretion over and is not something the Ombudsman can overrule.
17.  The Right to Buy is available to secure tenants of local authorities and non-charitable housing associations and to assured tenants of registered providers (housing associations) who moved with their homes from a local authority to a housing association as part of a stock transfer (Preserved Right to Buy).
18. Where there is no Right to Buy or Preserved Right to Buy, a resident may be eligible for the Right to Acquire, where they can still purchase a property at a discount.  To be eligible, a number of criteria must be met and properties in rural areas are excluded from the scheme.
19. Paragraph 39(i) of the Scheme states that “The Ombudsman will not investigate complaints which, in its opinion, concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure”.
20. The Right to Buy (including the Preserved Right to Buy) and Right to Acquire schemes are statutory processes and as legal processes, they are not ones which the Ombudsman has jurisdiction to rule on but instead, this must be done by a Court of Law which has the power to do so. The resident should seek independent legal advice if he wishes to pursue this matter further.
21. The Ombudsman can look at whether the landlord has responded to the resident’s complaint about how it handled an application for the RTA. We can also consider whether the landlord has responded to other questions raised by the resident, such as about other residents who might have been able to purchase through RTA, and whether its responses were in accordance with its policies and procedures and appropriate and reasonable in all of the circumstances of the case.

Landlord response to the resident’s reports about his RTA application.

22. The resident said that his neighbour was able to buy their property but has not commented on whether the neighbour’s case came within the remit of the ‘preserved right to acquire’ exemptions the landlord has quoted. The Ombudsman does not have the authority to assess the circumstances of the neighbour’s case, and it is noted that the landlord reasonably refused to discuss other cases, for data security reasons. Nonetheless, the landlord has explained, in general terms, the circumstances under which a tenant may purchase their home, and why the resident did not fulfil the criteria.
23. The resident’s email of 10 August 2021 suggested change at government level and the possibility of legal action, both of which would be outside of the landlord’s remit, and no substantive response was made by the landlord. Once the resident clarified that he did wish to escalate the complaint on 16 August 2021 there was some delay in the landlord issuing the final response on 30 September 2021, including the landlord mistakenly advising that the complaint would be closed due a lack of contact. Overall, however, the final response did not significantly exceed the 20-working day timescale given in the landlord’s complaints policy.
24. The landlord’s final response explained that it would not be investigating the case any further, on the grounds that there was no reasonable expectation that a different decision would be reached as it had followed policy and procedure and the resident’s dissatisfaction was with the legislation relating to the RTA scheme. This was a reasonable decision as the resident had not raised anything new that might challenge the findings of the landlord’s stage one decision.
25. The Ombudsman recognises the resident’s distress at not being able to purchase the property he had invested money and time in, but there is no indication that the landlord had misled him to believe that he would be able to purchase this particular property. Although the resident may be unhappy about the landlord’s position, its actions were reasonable in the circumstances. The landlord has provided the resident with a clear explanation of why it was unable to proceed with the RTA. Its correspondence was empathetic and offered future options in respect of moves to other areas which may fall under the scheme.

Determination (decision)

26. In accordance with paragraph 54 of the Scheme there was no maladministration in respect of the landlord’s response to the resident’s reports about his attempts to purchase the property.

Reasons

27. The landlord provided its reasoning for the refusal of the resident’s RTA application. It also gave general advice about the RTA and RTB schemes. The landlord also clarified that it has no authority to amend the legislation relating to these schemes.