Yorkshire Housing Limited (202104504)

REPORT

COMPLAINT 202104504

Yorkshire Housing Limited

5 February 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 concerns:
   1. The landlord’s decision to decline the resident’s Right to Acquire (RTA) application.
   2. The effect on the resident’s health caused by the landlord’s decision.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated. After carefully considering all the evidence, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:

The effect on the resident’s health caused by the landlord’s decision to decline her RTA application

3. During correspondence with this Service relating to the outstanding issues and her desired outcome to the complaint, the resident asked for compensation from the landlord in recognition of the adverse effect on her mental health caused by its decision to decline her RTA application.
4. Paragraph 39(i) of the Housing Ombudsman Scheme states that “The Ombudsman will not investigate complaints which, in the Ombudsman’s 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”.
5. The Ombudsman does not doubt the resident’s comments regarding her health, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Matters of personal injury or damage to health, their investigation and compensation, are not part of a landlord’s complaints process, and are more appropriately addressed by way of the courts as a personal injury claim to the landlord’s liability insurer (if it has one). Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident and how the landlord responded to her concerns about the impact on her health.

Background and summary of events

Background

6. The resident in 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 via a mutual exchange in 2019.
7. The landlord operates a two-stage complaints process. When a complaint is received, the landlord aims to acknowledge the complaint within two working days and 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.
8. The complaints policy states that the landlord would not normally consider a complaint raised about a matter that had occurred more than three months previously. The policy goes on to note that the landlord would consider a complaint outside of that timeframe on a case-by-case basis. The policy also states that the landlord would not open a complaint into “decisions taken by external organisations or bodies over which [the landlord] have no control (e.g., a Local Council or a utility company)”.

Summary of events

9. On 1 April 2021 the resident completed a RTA application to buy her property. The landlord replied to the resident on 3 April 2021 and informed her that the application had been declined.
10. The resident wrote to the landlord on 3 April 2021 and expressed her dissatisfaction with its decision. She explained that she had been assured by the landlord on two separate occasions that she would be eligible for the RTA scheme and that she had pursued the mutual exchange based on that advice.
11. The landlord replied and explained that for the property to the eligible for the RTA scheme it would have to have been built after in 1997, but it was built in 1930; and for the resident to be eligible for the Right to Buy (RTB) scheme, the resident would have needed to be a secure tenant with the local authority when its housing stock was transferred to the landlord, which was not the case. The landlord advised the resident that she had the right to raise a complaint if she wished to take the matter further.
12. The resident replied and explained the impact that the incorrect advice from the landlord had caused. She informed it that she had spent “thousands of pounds” on improving the property on the assumption that she would then be able to purchase it. The resident requested to be compensated for the money she had spent.
13. The landlord replied again and explained that it had no discretion in enforcing the rules of the RTA scheme and advised the resident to raise a complaint if she remained dissatisfied. The resident wrote back and explained she understood the landlord’s position on the scheme and that her issue was that in two telephone calls with two different members of the landlord’s staff, she had clearly stated that she would only move to the property if she was able to purchase it.
14. The landlord wrote to the resident on 4 April 2021 and informed her that in order for it to investigate the issues she had raised, a formal complaint would have to be opened. The landlord also provided the resident with information on how to raise a complaint.
15. The resident wrote to the landlord on 12 May 2021 and requested to raise a complaint relating to the incorrect information provided by the landlord and the impact, both financially and emotionally, that this had on her.
16. The landlord called the resident on 12 May 2021 to confirm the complaint had been opened and discussed the issues. It stated that it would send a response once it had concluded its investigations into the conversations the resident had with its staff members.
17. An internal landlord system note added on 20 May 2021 noted that the landlord had been unable to locate the two telephone call recordings highlighted by the resident as they occurred in March/April 2019 and the landlord only kept records of calls for 12 months.
18. The stage one complaint response was sent to the resident on 20 May 2021. The landlord explained that it had been unable to locate recordings of the calls due to the length of time that had passed; and that it could not offer the property for sale under the RTA scheme as the property did not meet the criteria, and the scheme was run by the government not controlled by the landlord. The landlord also gave the resident information on how to escalate the complaint if she was dissatisfied with the response.
19. The resident wrote to the landlord on 21 May 2021. She requested further information on how to progress the complaint to stage two of the landlord’s process and enquired what criteria the landlord used to make its decision and which department was responsible for making the decision. The landlord replied and informed the resident how to request an escalation of the complaint.
20. Following a telephone conversation, the landlord wrote to the resident on 8 June 2021 to confirm that the complaint had been escalated and that it would call her on 9 June 2021 to discuss the outstanding issues in further detail.
21. The landlord’s notes of the 9 June 2021 state that the resident described to it the effect that the situation has had on her and that as a resolution to the complaint she wanted to be given the option of buying a similar property.
22. The landlord wrote to the resident on 14 June 2021 to give an update on the progress of its stage two investigation. The resident replied and noted that other properties next to hers were also formal local authority stock and enquired why they had been allowed to be sold while her property had not.
23. The landlord replied on 17 June 201 and stated that the resident’s query had been added to its stage two complaint investigation. The resident wrote further emails on 17 and 18 June 2021 and enquired about how the landlord was formed and the training it provided to its staff. The landlord replied on 18 June 2021 and acknowledged the resident’s questions.
24. The landlord wrote to resident on 25 June 2021 to give her an update on the complaint. It explained that it had contacted an external expert for advice and that it was waiting to hear back from them.
25. The landlord next wrote to the resident on 29 June 2021 and requested arrange a telephone call to discuss the complaint. The stage two complaint response was then sent to the resident on 16 July 2021. The landlord arranged to call the resident on 19 July 2021 to discuss the response in more detail with her.
26. The landlord first addressed the questions and queries raised by the resident during their telephone conversations and email correspondence during the stage two investigation. It informed her that:
    1. The property was not available to buy under the RTB scheme as the resident was an assured tenant and did not transfer to the landlord with the property from the local authority.
    2. The property was also not available to buy under the RTA scheme. The criteria used to decline the resident’s application was from the Capital Funding guide. This states that in order to qualify, the property must be:
       1. Built or bought by the housing association after 31 March 1997 or transferred from a local authority to a housing association after 31 March 1997.
       2. Not be in a designated rule area,
    3. The resident’s property is in a designated rural area and therefore as specified under the Housing (Right to Acquire or Enfranchisement) (Designated Rural Areas) Orders 1997, it cannot be bought as part of the RTA.
    4. It consulted an external expert to look into the as to whether a rural covenant could be used to alter the RTA decision. However, it was determined that the covenant only applies to the RTB scheme and would have no effect on the resident’s RTA application.
    5. When the resident was informed by a landlord staff member that nothing else could be done, this comment was in relation to the legislation the landlord must follow during a RTA application. All its residents have the right to the raise a complaint and the landlord apologised for the confusion that this statement caused.
    6. It was unable to comment specifically on the reasons why other properties near the resident had been sold, but it was likely that these properties were sold under the RTB scheme while they were still under the control of the local authority.
    7. It had a dedicated team that responded to RTB and RTA requests, and that training was ongoing throughout the landlord’s organisation.
    8. It had spoken to the staff members who had talked to the resident in the two telephone calls she highlighted. However, due to the length of time that had passed they were unable to recall any details from the conversations.
27. Then landlord then addressed what alternative options where available to the resident to purchase a home with a discount. It informed her that:
    1. It would be willing to offer a management move to a property in the same area with a RTA status. It explained that a management move is a discretionary process where the landlord would rehouse a tenant in high priority cases, and that it would be willing to work with the resident to locate a suitable property through this process as a goodwill gesture.
    2. If the resident was able to find a property for sale that she was interested in, the landlord would offer advice and guidance in buying the property through the Discounted for Sale scheme.
    3. It would also provide help and guidance if the resident looked to pursue a further mutual exchange to a property with RTA status.
28. The landlord informed the resident that it would not consider selling the property to the resident as a standalone sale and explained that “as a social housing landlord, we have a strong social purpose and a responsibility to provide affordable housing in rural areas in order to maintain local sustainability. As a regulated sector, we would not be able to sell our homes without good reason”.
29. The landlord noted that during its discussions that the resident had requested compensation of £9,000 in recognition of the RTA discount she would have been eligible for. The landlord declined the request on the grounds that it was unable to gather any corroborating evidence as to what was discussed in the two telephone conversations raised by the landlord and that it was satisfied that the alternative options it had offered to the resident were reasonable redress in the circumstances.
30. In an email sent to this Service on 2 August 2021, the resident described her desired outcome to the complaint was to be compensated £78,000 by the landlord. She broke this down as £68,000 for the discount she would have been eligible for if she had remained in her previous property and £10,000 for costs in improvements made to her current property on the expectation that she would be able to purchase it. The resident also requested further compensation be considered to recognise the effect on her mental health as a result of the ongoing issue.

Assessment and findings

The landlord’s decision to decline the resident’s RTA application

31. 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 have spent at least three years as a public sector tenant.
32. 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.
33. 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 guide goes on to note that some properties whose purchase/build date is after 1 April 1997 are exempt from the scheme. This includes “properties in certain rural parishes identified by the Government as being exempt from the Right to Acquire”.
34. The landlord explained that as the resident’s property was built in 1930 and was situated in a designated rural area, it did not meet the criteria for the RTA scheme, and as a result the resident’s RTA application was declined. The resident took on the tenancy of the property in 2019. 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.
35. The resident has stated that during two telephone conversation with two different landlord staff members in March/April 2019, that she was informed that the property did have RTA status. She further explained that had she been made aware that the property was not eligible for the RTA scheme at this time, she would not have proceeded with the mutual exchange.
36. The landlord has been unable to trace the recordings of these telephone conversations. A landlord would not usually be expected to retain correspondence for more than twelve months, so it is reasonable for the landlord not to have a copy of the recordings at the time when the complaint was raised. The landlord acted reasonably by speaking to the staff members concerned to get their recollections of the telephone calls. However, the members of staff were unable to recall details of what was said due to the length of time which had passed since the calls. It should also be noted that the landlord has not disputed the resident’s account of the telephone conversations but has explained that without any corroborating evidence to show the contents of the conversations, it was unable to determine what information was given to the resident and whether this had constituted a service failure. The Ombudsman is also unable to determine with certainty what happened during the phone calls, for the same reasons.
37. The landlord would not be expected to allow the resident to purchase the property if it was proven that she was given incorrect information in 2019. This is because the landlord is obliged to follow the rules and regulations for the RTB and RTA schemes as set out by the government and it cannot deviate from these rules, even if it had given a resident incorrect information concerning their rights to purchase a property. 
38. As part of her compensation request, the resident requested £10,000 for costs in improvements she had made to the property. In the RTA application, the resident confirmed that she had made improvements to the property that may affect the valuation and stated that she had spent £6,000 to secure and landscape the garden.
39. The landlord 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. This is confirmed in clause 2.6 (Right to Make Improvements) of the tenancy agreement, which states that a tenant “may make improvements, alterations and additions to the Premises …. If you have first obtained the written consent of [the landlord]. You have the right to claim compensation payable at the end of the tenancy in accordance with policy and procedure”. Therefore, the resident may be entitled to compensation at the end of her tenancy, in line with the landlord’s policy and industry best practice. The resident would not be entitled to compensation whilst she is living in the property as she is able to benefit from the improvements during this time.
40. In its stage two complaint response, the landlord recognised the disappointment, stress and inconvenience that its decision had caused to the resident. It offered to work with her to source an alternative property for her to purchase. This included offering a management move to a property with RTA status. A management move is a discretionary process by which a landlord can offer a property transfer outside its usual housing list. Management transfers can be offered for a variety of reasons including anti-social behaviour, disrepair or medical needs. A management transfer will usually only be considered in exceptional circumstances where a resident cannot safely remain in their current property, rather than simply wanting to move. Residents who have been offered a management transfer are expected to be able to move as soon as possible, but they may still need to wait for a suitable property to become available within the landlord’s stock of properties.
41. As the resident’s circumstances would not normally meet the criteria for a management move, the landlord’s decision to use its discretion demonstrates that it was willing to work with the resident to explore all options available to it to help the resident purchase a property in the local area. The resident would not be expected to reimburse the resident for the discount she has lost out on when she moved to the property because it has offered to help her find an alternative property so she would still quality for a discount. Also, as explained above, there is insufficient evidence to confirm the landlord misadvised the resident when she moved to her current property. Therefore, there is no evidence of service failure in how the landlord handled the resident’s RTA application.

Determination (decision)

42. 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 RTA application. 

Reasons

43. The landlord provided the correct information on the eligibility of the property for the RTA scheme when the resident applied. Due to the length of time that had passed, and the lack of any corroborating evidence, the landlord was not able to determine what information had been provided to the resident in two telephone conversations held in 2019. It has also offered appropriate support and advice to the resident in identifying a property in the local area she that would be able to purchase.