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Wythenshawe Community Housing Group (2) Limited (202006965)

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REPORT

COMPLAINT 202006965

Wythenshawe Community Housing Group Limited

18 March 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

  1. The complaint is about the landlord’s handling of the resident’s Right to Buy application, specifically, delay to the process.

Background and summary of events

  1. The resident was an assured tenant of the landlord, at the property, from 6 October 2008.  The landlord was formed after Large Scale Voluntary Transfer from the local authority.  The landlord instructs the local authority to provide legal services for it.
  2. Ten years later, in October 2018, the resident made an application to purchase the property under the Preserved Right to Buy.  In January 2019 the resident accepted the landlord’s Section 125 offer notice dated 20 December 2018 and solicitors were instructed. It is understood that the neighbour had previously purchased her property with the local authority providing legal services for the landlord at the time.
  3. The surveyor which carried out the valuation for the resident’s Right to Buy application drew the plan for the resident’s property with the whole of the ginnel between her property and her neighbour; however, the landlord and its legal representative, the local authority, noted that half the ginnel had been sold to the neighbour.
  4. The resident’s solicitor advised the resident on 6 March 2019 that there was a delay as part of the ginnel had incorrectly been sold to the neighbour, therefore the Right to Buy surveyor would need to amend the plan before sending it over.  The solicitor also advised the resident that the local authority would be issuing a “delayed notice” and advising it of another date for completion.
  5. At this time, the landlord asked the neighbour to agree a deed of rectification as they had been sold land that they did not occupy and which needed to be removed from their title. 
  6. On 17 April 2019, the local authority sent the resident’s solicitor a revised transfer document and plan to be signed. The resident’s solicitor requested an amendment and enquired about the variation to the plan for the neighbouring property. On 26 June 2019, the local authority sent the resident’s solicitor the completed deed of rectification for the neighbouring property. The local authority advised the resident’s solicitor that the neighbour’s solicitor would be responsible for the registration of the deed as the neighbours were re-mortgaging and suggested that they complete the resident’s Right to Buy application in the interim.  This option was not pursued.
  7. On 7 October 2019, the local authority advised the resident’s solicitors that the neighbour’s solicitor was sending on that day the deed of rectification to the Land Registry for registration. It is understood that the Land Registry rejected the deed of rectification and asked for a new plan. On 18 November 2019, the local authority advised the resident’s solicitors that it had spoken to the neighbour’s solicitor which had advised that the application was still being processed by the Land Registry but that the neighbour’s solicitor had not received a requisition from the Land Registry.  The local authority advised the resident’s solicitor that she should issue a delay notice if she was dissatisfied with the length of time the sale of the property was taking.  This offer was not taken up.  
  8. The correspondence between the parties states that from November 2019 to 27 April 2020 the resident’s solicitor communicated with the neighbour’s solicitor to rectify the transfer of the ginnel to the resident’s property. On 27 April 2020 the neighbour’s solicitor provided the new transfer deed documents. The correspondence between the parties also notes that the resident’s solicitor then chased up the local authority between 12 May 2020 and 13 August 2020 to progress the Right to Buy sale. The resident has provided an email to this Service from her solicitor to the landlord and local authority within this period, dated 1 July 2020, requesting a new transfer deed to include the ginnel that was to be transferred to the resident. The correspondence between the parties accept that the resident also chased up her Right to Buy application by speaking to landlord directly in May/June 2020 although no contemporaneous records have been provided to this Service. The resident has also stated that the landlord sent an email to her on 30 June 2020 stating that the local authority did not have access to her file due to office lockdown although a copy of this email has not been provided.
  9. Almost two years after the application, on 28 September 2020, the sale of the property was completed. 
  10. Shortly before completion, on 7 August 2020, the resident made a formal complaint to the landlord about its delay in handling her application to purchase her property, stating that this had left her at a financial loss, paying rent on the property she was seeking to buy.  As resolution to her complaint, she wished to be compensated and for the correct transfer deed and title plan to be completed immediately, so the purchase could be finalised. The landlord’s Stage 1 response dated 28 August 2020 noted that the Right to Buy transaction was being dealt with by the parties’ solicitors and that there had been no contact between the solicitors between November 2019 and May 2020.  The landlord also noted that the resident’s solicitor had incorrectly informed her that its solicitor was not processing Right to Buy cases during lockdown.   The landlord noted that the local authority had been liaising with the resident’s solicitor since May 2020 and was waiting for a completion date to be sent.
  11. On 17 September 2020 the resident escalated the complaint, raising a number of points. On 6 October 2020, the landlord sent the Stage 2 response to the complaint. It found some delay on its part between July and August 2020, with the majority of the delay (between January 2019 and May 2020) being due to resolving the previous incorrect transfer of the ginnel to the neighbouring property.   The landlord reiterated previous advice it had given in this regard, to contact the local authority about this. It also noted a delay by the local authority between June and July 2020 due to Covid-19.
  12. For the delay it found specifically on its part, however, the landlord offered the resident one month’s rent to reflect a delay from 17 July 2020 to 20 August 2020, which it later confirmed to be £450.20, and a further £150 for inconvenience. This delay related to the preparation of documentation it needed to sign. The landlord later established that the reason for the delay at this time was having to change surveyors to complete the final plan because the original surveyor was furloughed due to the Covid-19 pandemic.  The landlord noted another delay from August 2020 to September 2020 concerning the sending of a duplicate Land Registry document that the resident needed to sign but which was not sent to her initially.  The landlord stated that it was unsure whether this was the case and indeed whether this was from the landlord or the local authority.
  13. On 13 November 2020 the resident expressed her dissatisfaction with the landlord’s response.  She also provided an email from the local authority stating that it would not accept a complaint from her as it provided a service for the landlord, not her. The landlord’s Designated Tenant’s Panel considered the complaint further taking into account the email from the resident’s solicitor of 6 March 2019 which the landlord had not previously seen. On 27 November 2020 the Panel increased the compensation to £750.  A further letter from the Panel dated 11 December 2020 increased the compensation to £900.30, an increase of 50% to the Stage 2 offer.
  14. On 23 December 2020, the landlord provided an additional response to the complaint.  It explained that a solicitor acting for the purchaser should satisfy itself and certify, both for the land registry and any lender, that the title plan is correct.  The landlord attributed the delay to the resident’s solicitor not providing a correct report on title and stated that the resident should take this up with her solicitor.  The landlord also stated that the resident’s solicitor’s suggestion that delays from March to June 2020 occurred because the local authority was not undertaking legal work at that time was incorrect. The landlord confirmed the offer of compensation offer of £900.30.

Assessment and findings

  1. The role of the Ombudsman is to investigate and assess how a landlord has responded to issues raised or notified to it and its subsequent handling of the complaint.  The Ombudsman will determine whether the landlord acted in accordance with its policies and procedures and whether its actions were appropriate and reasonable in all the circumstances.  The Ombudsman cannot assess the actions of legal representatives acting on behalf of the landlord, or the legal processes for the purchases of property.  It follows that when considering this complaint, it has not been the role of the Ombudsman to assess the conveyancing procedure, including the registration of land.
  2. The resident is complaining about the landlord’s handling of her application to purchase the property, under the Right to Buy scheme.  In particular, the complaint is about the delay to the conveyancing process and mistakes made in the registering of the land adjacent to the property. 
  3. There is statutory provision for tenants to seek redress for certain delays in the Right to Buy procedure. If a landlord does not respond to the notice claiming the Right to Buy (RTB1), the resident may submit an ‘Initial Notice of Delay’ (RTB6) form to the landlord.  The landlord must then either move the sale along within one month or send a “counter notice”. The counter notice will detail that the landlord has already responded, or why it is unable to speed things up. If the landlord does not respond to the RTB6 within one month, the tenant may submit an “Operative Notice of Delay” (RTB8) form.  The effect of submitting this form means that any rent the tenant pays whilst they are waiting for the landlord to respond can be deducted from the sale price of the property.  The landlord must also send a section 125 offer notice within eight or twelve weeks of the response to the RTB1. The delay forms must be completed at the time of the delay.
  4. The Right to Buy does not apply any further timescales to the rest of the conveyancing procedure, and the time taken for a purchase to complete (after the Notice of Intention has been returned by the resident) will be dependent on the individual circumstances of each property purchase, and the parties involved – including their legal representatives. It follows that there is no requirement on the landlord under the Right to Buy to ensure that it completes the sale of a property within a specified time. However, the tenant can serve notices on the landlord and apply to the county court for an injunction to enforce the landlord to comply with its duties.  Such action was not taken in this case, and the resident may wish to take this up with her solicitor, who was advised in November 2019 that the resident may want to issue a Notice of Delay.
  5. In this case, it would appear that the delay in the completion of the Right to Buy occurred after the offer notice of December 2018.  There were delays in the conveyancing arising from the incorrect registering of the ginnel, and from the consequent legal processes involving the local authority, the resident’s and neighbour’s solicitors and the Land Registry.   These legal processes sat outside of the landlord’s control and it was therefore reasonable that the landlord did not offer redress to the resident for these delays. These legal processes cannot be assessed by this Service; however, they can be considered by the courts.  The court, unlike this Service has the power to make a definitive ruling on the overall handling of the resident’s Right to Buy application and can order redress.
  6. The delay in the completion of the resident’s Right to Buy application arose from the incorrect registration of the ginnel several years earlier when the neighbour purchased their property. It is acknowledged that the prolonged delay in rectifying this must have been frustrating and distressing to the resident. However, at the time of the neighbour’s application, it was reasonable for the landlord to rely on the decisions of appointed surveyors and legal representatives.  As such, the Ombudsman cannot find that the incorrect registration of the ginnel constituted a service failure to the resident on the part of the landlord.
  7. Although the court can consider the overall handling of the Right to Buy application, the Ombudsman can consider those aspects of the resident’s case that fell within the landlord’s control.   After the neighbour’s solicitor provided required documentation for the transfer of the ginnel on 27 April 2020, there would appear to be a further delay, in part due to the resident’s solicitor being of the understanding that the local authority was not dealing with Right to Buy applications due to Covid-19 lockdown measures.  Evidence has not been provided to this Service to confirm what advice was given to the resident and her solicitor at this time, and it is not possible to determine to what extent completion was delayed by the misunderstanding. However, there had already been an extensive delay compounded by the change of working practices at that time due to Covid-19.  Therefore, it was unreasonable that the landlord did not proactively intervene to confirm how the application would be taken forward, in order to manage the resident’s expectations.  Its failure to establish the working arrangements of the local authority and to communicate the next steps indicate a lack of oversight and joined-up working, and ultimately contributed to the resident’s uncertainty. The landlord also took a passive approach between November 2019 and April 2020 when there was no communication between the parties’ solicitors and the process stalled.
  8. The landlord accepted that it delayed in the preparation of documentation between 17 July 2020 and 20 August 2020, for which it offered a rent refund for this period.  The rent refund put the resident in a position she would have been in had the delay not take place insofar as she, in effect, did not pay rent for a property that may have otherwise been purchased earlier.  Taken together with the explanation for the delay – the change of surveyors – the landlord’s offer for this delay constituted satisfactory redress. 
  9. There was another delay from August 2020 to September 2020 due to the resident not receiving a duplicate Land Registry document.  It is not evident from the information provided to this Service that this delay was the responsibility of the landlord, or that the landlord was notified that the resident had not received the form at the time.  As such, it was not unreasonable that the landlord did not offer redress for this delay.
  10. The landlord increased its compensation by 50% after having sight of the email of 6 March 2021 from the resident’s solicitor which referred to a “Delayed Notice”.  It is not clear what advice the local authority provided to the resident’s solicitor – it possibly referred to the fact that landlords may send Right to Buy applicants Notices to Complete if there are delays to completion.  Regardless, it cannot be concluded the email in itself conferred an additional responsibility on the landlord.
  11. However, given that there was a lack of action on the part of the landlord which contributed to the resident’s distress and inconvenience, it was appropriate that the landlord offered compensation for inconvenience. The landlord’s Compensation Policy allows it to make discretionary monetary awards “where we wish to resolve a problem to the satisfaction of the customer”. Taking away the amount specifically for the rent refund, the landlord offered £450.10 to reflect the inconvenience. This was a discretionary offer in line with the landlord’s compensation policy.
  12. It also accords with this Service’s Remedies Guidance which recommends “Awards of £250 to £700 – Remedies in the range of these amounts may be for cases where the Ombudsman has found considerable service failure or maladministration, but there may be no permanent impact on the complainant. Examples include misdirection – giving contradictory, inadequate or incorrect information about a complainant’s rights (for example in relation to decants, mutual exchanges, or preserved Right To Buy)”. Taken altogether, the landlord’s compensation offer was proportionate the identifiable failures on its part.

 

Determination (decision)

  1. Paragraph 55 of the Housing Ombudsman Scheme states that “At any time, the Ombudsman may determine the investigation of a complaint immediately if satisfied that the member has offered redress to the complainant prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily. This will result in a finding of ‘reasonable redress”.
  2. In accordance with paragraph 55 of the Housing Ombudsman Scheme, the Ombudsman has determined that the landlord offered redress to the resident that resolved the complaint satisfactorily.

Reasons

  1. The appropriate route for requesting rent reimbursement for delays in the Right to Buy process was through submission of the Notice of Delay form. It is not clear why this was not pursued; whether the resident decided not to at the time, or whether her solicitor did not make her aware of this option. If the resident is dissatisfied with the advice provided by her solicitor, she may wish to complain directly to her solicitor’s firm.
  2. The landlord reasonably considered its part in the delays towards the end of the Right to Buy process. It offered satisfactory compensation for the delay that it was responsible for, specifically, its delay in the preparation of documents between 17 July 2020 and 20 August 2020.  It also offered compensation for the general distress and inconvenience caused by its handling of the case that was in accordance with the discretion allowed for by its Compensation Policy and proportionate to the circumstances of the case.  Whilst the resident wishes for compensation to reflect the whole delay in the conveyancing, this should be appropriately considered by the court. The legal processes sat outside of the landlord’s control and cannot be taken into account by this Service in the assessment of this complaint.

Recommendations

  1. Since this determination is contingent on the landlord’s offer of compensation, the landlord should pay the resident the £900.30 offered within the complaints process.
  2. The landlord reviews its procedure for dealing with Right to Buy application with particular focus on what action it and its legal representative should take in situations where conveyancing issues prolong the transactions, and how such cases are monitored.