Islington Council (202210653)

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REPORT

COMPLAINT 202210653

Islington Council

23 May 2023

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 is about:
1. The landlord’s handling of the resident’s application for a mutual exchange.
2. The landlord’s complaint handling.

Background and summary of events

The resident was a secure tenant of the landlord occupying a two bedroom, third floor flat within a block of flats. Her tenancy commenced on 10 November 2003. The resident occupied the property with her daughter.
On 28 April 2021, the resident submitted a completed mutual exchange application form at the offices of her landlord.
The resident has advised that alongside her own application for a mutual exchange, she was assisting her mother, for whom she was a carer, in progressing a similar application with her landlord. This was to allow the whole family to move elsewhere within the United Kingdom and be closer to their extended family.
No evidence has been presented by the landlord to this Service that it contacted the resident to acknowledge receipt of her application. There is also no evidence that it contacted her mutual exchange partner and their landlord.
On 2 July 2021 the resident emailed her landlord seeking an update. She explained that 45 working days had passed since she submitted her application and that she had expected to receive a response within 42 days.
Internal call logs show that both the resident and her daughter called and left messages for her tenancy officer to call them back.
The resident sent an email to her landlord on 7 July 2021. Within this, she thanked the landlord for speaking with her the previous day. However, she said that her daughter had been unable to get in touch with staff to arrange the required home visit. The resident asked if the landlord could call her back. She also provided some explanation about why they were moving and said that it was quite urgent as her mother’s exchange had been approved and she was due to relocate on 9 August 2021.
Further calls were made by the resident on 23 and 27 July 2021. The resident explained that she required an urgent update as she was due to start a new job and the move was part of her relocation for work.
The resident logged a formal complaint with her landlord on 29 July 2021 which outlined her concerns about the mutual exchange process. She reported that she had been told on 26 July 2021 that the exchange had been agreed by both parties and that the sign up could go ahead on the 9 August 2021. However, she believed that neither reference had been completed at that point. She stated that she had booked her move for 10 August 2021 but believed that the other landlord had not approved the exchange. She asked to be advised of the process and exact timeframe for a mutual exchange.
On 2 August 2021, the landlord acknowledged the resident’s complaint and advised that it would respond within 15 working days. On the same day, the resident left an urgent request for a manager to call her, “as the signing of the form must be tomorrow.”
The tenancy documents provided show that the resident and her mutual exchange partner signed the tenancy assignment document on 9 August 2021. This document includes a statement that the landlord had “given its consent in writing dated 21 July 2021 to the assignment hereby made.”
On 16 August 2021, the resident called the landlord as her rent account had not been closed and she had been charged two weeks rent. She was seeking a refund of this amount. She followed up this call with an email on the same date.
There was email contact between the resident and the landlord between 17 and 25 August 2021 about the closure of the rent account, and the refund of the credit on that account. Confirmation was provided by the landlord on 26 August 2021 that the refund had been processed and that the money should be in her bank account within three to five working days.
The landlord provided a stage one response to the resident’s complaint on 1 September 2021, in which it set out the following:
1. It set out the mutual exchange process but advised that currently it was unable to guarantee it would meet the 42 day target due to delays caused by the Covid-19 pandemic.
2. It explained that it needed the permission of the resident’s mutual exchange partner to contact their landlord.
3. It confirmed that provisional permission for the exchange had been given ahead of receiving the reference for the resident’s mutual exchange partner to expedite the exchange.
4. It advised that the delay was caused by documents being uploaded incorrectly. The landlord apologised for this and advised that it had fed back to the team concerned.
5. It also apologised for the lack of communication and support given to the resident.
6. It upheld her complaint due to the delay in processing the mutual exchange.
The resident was unhappy with the outcome of her complaint and responded on 1 September 2021. She explained that she understood the issues caused by the pandemic but believed that the landlord still needed to “provide an adequate service.” She expressed her dissatisfaction with her landlord and the unnecessary stress and anxiety caused by its failure to respond to her requests for contact and the timeframe taken to progress the exchange. She also raised the failure to close her rent account when her tenancy ended.
On 14 September 2021, the landlord responded to the resident’s complaint as a stage one review. Within this, the landlord said that it had partially upheld the resident’s complaint. It also said:
1. Accounts for mutual exchange were rarely closed on the same day of the sign up as this process had to be approved by a manager.
2. The resident had not been affected by the delay in the account closure. The account had been terminated from 9 August 2021, and she was not subject to any extra charges.
3. It apologised for the delay in processing the mutual exchange which was due to a two to three week delay in uploading the documents onto its system.
The resident immediately requested escalation of her complaint to stage two of the landlord’s complaints procedure. She stated that she had been affected as she had been charged additional rent which had only been refunded to her on 31 August 2021. She said that it was unclear why it took until July for contact to be made regarding her mutual exchange if it had been uploaded two to three weeks after the form was submitted in April 2021.
The landlord provided a stage two response on 26 May 2022. Within this, the landlord:
1. Offered £75 for the delay in providing the stage two response.
2. Apologised for the undue stress caused. It confirmed that the resident’s mutual exchange request had been submitted in April 2021 but was not uploaded on to the housing system and therefore not processed in a timely manner.
3. Explained that the tenancy officer had failed to advise her that she should not be charged after 8 August 2021. It said that this information was ordinarily passed on by an income officer who would attend a sign up.
4. Offered an apology for the inconvenience and unnecessary expense of paying two rents.
5. Explained that there had been a delay by the tenancy officer in replying to the resident’s numerous emails and calls throughout July and August. It acknowledged that the correct processes and procedures had not been adhered to, and that the level of service that the resident received fell below expected standards.
6. Confirmed that the tenancy officer had moved to a new role; however, it expected all officers who managed mutual exchange applications to follow the process and procedure diligently.
7. Explained that the complaint had been upheld. It concluded that there had been administrative faults in dealing with the mutual exchange application including unnecessary, avoidable delay. It also recognised the time and trouble the resident had taken in raising the complaint. As such, in addition to the £75 offered for the delay in providing the stage two response, it wished to offer a further £150.
The resident contacted this Service on 19 August 2022 as she was unhappy with the outcome of her complaint and the level of compensation offered by the landlord.

Obligations, policies, and procedures

The Mutual Exchange policy and procedure

The landlord’s mutual exchange policy sets out how it should respond to a request for a mutual exchange and “promotes mutual exchange to encourage tenant mobility and as a best use of its stock. “
The policy explains that all social housing tenants have a statutory right to exchange, under schedule 3 of the Housing Act 1985, as amended by the Local Government and Housing Act 1989. They may arrange to exchange their tenancy with the tenant of either the same or another social housing landlord.
The policy sets out that the landlord has 42 days to respond to an application for an exchange. It includes an addendum that “due to Covid 19 the landlord can no longer guarantee that exchanges will be agreed in the 42 day period”. This appears to have been added to the document when it was amended in May 2020.
The policy advises that if the landlord fails to respond within this timeframe the resident cannot assume that consent has been given.
The accompanying procedure sets out the steps that should be taken by both residents and the landlord, in progressing a mutual exchange. The following steps should be followed:
1. Applications for a mutual exchange are to be submitted to the rehousing team who are then responsible for forwarding the application to the tenancy management team.
2. The tenancy management team will provide a written acknowledgement of the application and seek signed consent from the exchange partner where another landlord is involved.
3. A mutual exchange checklist must be completed to record the assessment carried out and reason for granting or refusing the exchange.
4. A home visit is to be arranged where photographs of the property should be taken, and a property checklist completed.
5. References are to be provided to and obtained from the other landlord.
The procedure reinforces the need to adhere to the 42 day timescale and sets a five day target following the home visit for authorisation from a manager for the exchange to proceed.
Once the deed of assignment has been signed by both parties, the procedure indicates that the necessary actions should be taken to update computer records within one working day.

The Complaints policy

The landlord’s corporate complaints policy in place at the time of the complaint set out how it would deal with complaints. The landlord operated a two stage procedure. At stage one, the policy states that “the first stage and first stage review is investigated and responded to locally by the service area in which the complaint originated.” The second stage is the Chief Executive stage which is handled by the landlord’s corporate central complaints team.
In terms of timescales, the policy states that a complaint should be acknowledged within three calendar days, and a response should be sent within 21 calendar days of receipt of the complaint. If the complainant requests the escalation of their complaint, it can be dealt with as a stage one review. Once a stage one response and a stage one review has been completed, and if the complainant remains unhappy, the matter will be referred to the corporate central complaints team so that a review of the complaint can take place. A full response should then be issued within 28 calendar days of receiving the complaint.
The landlord published an updated complaints policy on its website on 23 March 2023. This provides updated timeframes for dealing with stage one and stage two complaints which correspond with the Ombudsman’s complaint handling code. It also removed the stage one review stage from the process.

The compensation guidance

The landlord’s compensation guidance advises that where a complaint has been upheld “it is appropriate that the council should take action to rectify any problems that are due to mistakes or negligence…”
The aim of this guidance is to resolve issues at the earliest opportunity. It recognises that compensation may not always be financial but that it should be appropriate and proportionate in the circumstances of an individual complaint.
The guidance provides a framework for financial compensation and advises that the landlord “should be mindful that the compensation should reflect the injustice that the complainant has experienced.”
At point 10, under the heading of time and trouble, the guidance recognises that many complaints start out as service requests but become complaints where the landlord has failed to take reasonable steps to address issues. It also recognises the escalation of complaints where appropriate remedies have not been offered at the earliest stage. This provides compensation within a range of between £100 and £300.
Further, at point 12, under the heading of distress, the guidance provides the following:

“Many complainants will describe the distress they have experienced because of the complaint; this can take different forms and must be considered as part of the complaint resolution. When we consider distress we should take into account the age of the complainant, family circumstances, length of time involved, vulnerabilities and disabilities.”

This provides compensation within a range of between £100 and £300, with severe or prolonged stress awarded up to £1000.

Assessment and findings

The landlord’s handling of the resident’s application for mutual exchange

The resident submitted her completed application for a mutual exchange on 28 April 2021. In line with the landlord’s policy, she could have expected her move to have been approved or refused by 25 June 2021, 42 days after submitting the application.
The landlord has advised that there was a delay of between two and three weeks in uploading the application onto its system and advised that it had experienced some delays due to Covid 19. The whole exchange took a total of 73 days from submission of the application to signing the deed of assignment.
Contact evidence in the landlord’s mutual exchange file is one sided. The resident contacted her landlord on a number of occasions, both by email and telephone between 1 and 9 July 2021, seeking an update on her mutual exchange application. Further attempts to contact the landlord were recorded between 23 July and 2 August 2021.
There is no record of the landlord’s response to these emails or records of any telephone conversations. The only evidence of the landlord contacting the resident is contained within the resident’s email of 7 July 2021, when she thanked it for speaking to her the previous day.
The evidence does not show that the landlord followed its mutual exchange procedure. There is no evidence of its contact with the other landlord, reference requests made, or references provided or a completed mutual exchange checklist. There is also no evidence that an inspection of the resident’s home was undertaken. The landlord has also failed to evidence that it provided written approval for the exchange to proceed, despite this being referenced within the final assignment document.
In a request from the Ombudsman for further evidence, the landlord has advised that documents relating to the resident’s mutual exchange are not held within its files. Without this evidence it is not possible to find that the landlord’s management of the mutual exchange process was appropriate. The available evidence indicates that the actions taken by the landlord were as a reactive response to contact from the resident.
There was significant delay in handling the resident’s mutual exchange application. The landlord failed to keep the resident informed about the progress of the application, or follow its own procedure. The resident was left to chase the landlord to ensure that progress was made. This increased the level of distress and anxiety experienced by the resident. This was evidenced through her contact with her landlord, in the expressed urgency noted within her telephone contact, and in emails in July and September 2021. This was particularly acute given her move was linked to that of her mother, for whom she was a carer, and starting a new job, which was located elsewhere in the United Kingdom, a significant distance from her existing home.
There was a further delay in ending the resident’s tenancy, which caused her to be charged an additional two weeks rent. This was raised by the resident as part of her complaint, that was considered by the landlord in its stage one review. In its response it stated that she had not been affected by this delay, failing to acknowledge that she had been charged and paid additional rent, after the end of her tenancy with the landlord, whilst also paying rent on her new home.
This was addressed by the landlord in its stage two complaint response, where it offered an apology for the inconvenience and unnecessary expense of paying two rents. The landlord did not however offer any redress for this, which was inappropriate, given the distress and inconvenience caused by its acknowledged failing, and the significant unexpected expense incurred by the resident.
In providing its stage two complaint response, the landlord appropriately upheld the resident’s complaint. It reasonably acknowledged that moving home can be a stressful time and apologised for the “undue stress” caused. It was also appropriate that the landlord apologised for the administrative delays in handling the mutual exchange. The landlord acknowledged the time and trouble taken to raise the complaint with the landlord. In upholding her complaint, and in recognition of this, the landlord offered £150 compensation.
In communication with this Service the resident has advised that the level of compensation offered does not appropriately reflect the amount of stress and anxiety caused through the delays in the mutual exchange process. She has said that the unnecessary delays impacted both her work and family life.
The landlord’s compensation guidance provides guidance under the headings of both “time and trouble” and “distress”, with recommended payments of between £100 and £300 for each. While the landlord acknowledged that undue stress had been caused, it does not appear to have considered the level of distress, reported by the resident and caused by its failings, in its calculation of compensation. It would have been appropriate in line with its guidance, and reasonable given the circumstances of this case, for the landlord to have considered this element separately, noting the level of distress and inconvenience reported by the resident, considering the specific circumstances behind her move.
It is not known how much of the £150 offered as compensation at stage two was intended to compensate the resident for the time and trouble caused by the mutual exchange delays, which included the failure to close her rent account, and how much was for having to pursue a complaint. However, the offer was not proportionate in line with the landlord’s own guidance.
Having considered the landlord’s compensation guidance, the Ombudsman’s guidance on remedies, and the circumstances of the complaint, the Ombudsman has ordered a more fitting sum of compensation, aimed at putting things right.
The landlord has advised this Service that in acknowledging its failings, it introduced a new monitoring system in 2022 to improve compliance with its mutual exchange process and timescales. This is a cross departmental system and compliance with the 42 day decision target is part of its monthly performance indicators. Based on additional evidence provided by the landlord it is believed that this will prevent such failures occurring in the future.
In taking these actions, the landlord has demonstrated that it has learnt from the outcome of this complaint. It is important, however, that through the introduction of this new monitoring system the landlord also addresses its record keeping. It should ensure that it maintains a contemporaneous record of actions taken and contact with residents when progressing applications for mutual exchange.

The landlord’s complaint handling

There were delays in providing responses at both stages of the complaints process. The landlord’s initial response at stage one was provided within 35 working days, outside the procedural target of 21 calendar days.
The landlord then considered the resident’s request to escalate her complaint as a stage one review, in line with its policy in place at the time of her complaint. This review was concluded within 14 calendar days.
Despite upholding the complaint at stage one and partially upholding the complaint at the stage one review, no offer of compensation was made. This was a missed opportunity to put things right for this resident and to resolve the issue at the earliest opportunity, as expressed in the landlord’s compensation guidance.
It is an obligation of the landlord’s membership of the Housing Ombudsman Scheme that it must manage complaints from residents in accordance with its published procedure or, where this is not possible, within a reasonable timescale. The landlord’s complaints handling procedure must also be compliant with the Ombudsman’s Complaint Handling Code (the Code).
There were significant delays in providing the stage two response. It took almost nine months from the resident’s request to escalate her complaint for the landlord to provide its final response on 26 May 2022. This far exceeds the timescales in the landlord’s own procedure in place at the time, or the Code.
At stage two of the complaint’s procedure, the landlord offered a total of £225 compensation comprised of:
1. £75 for the delay in responding to the complaint.
2. £150 in recognition of the administrative faults, unavoidable delays and for the time and effort taken to raise a formal complaint.
The landlord’s compensation guidance states that where there is a delay an offer of £25 per month should be considered for delays beyond the “service statutory period”. The landlord’s complaints policy sets a target of 28 calendar days to respond to a complaint at stage two. From receipt of the resident’s complaint until it provided a response on 26 May 2022, a total of 268 calendar days elapsed. A period of almost eight months outside its published timescale.
The landlord did not set out its basis for compensation in its complaint response, and there is no evidence to demonstrate that the landlord acted reasonably in deciding to offer £75 for the extensive delay in issuing its stage two response, and not £25 per month in line with its guidance.
It has been noted in other investigations carried out by the Ombudsman that the landlord also offered £75 compensation in other complaints, considered around this time, where there were delays in providing a stage two response. Also, that this sum was offered for differing periods of delay. This indicates that rather than giving due consideration to its compensation guidance and the individual circumstances of the complaint, the landlord applied a set level of compensation for delays at stage two. A relevant order has been made to the landlord in relation to its complaints handling.
The further £150 offered in compensation was designed to address the failures acknowledged by the landlord in its complaint response, in addition to £75 for the delay at stage two. This in part recognised the time and trouble taken by the resident in bringing her complaint to the landlord. It is not known what element of the compensation offered was intended for the time and trouble of pursuing the complaint. However, it is evident that this was not all of the £150 offered.
Given the lengthy delay in the handling of the complaint, and the failures identified within the landlord’s final response, there was maladministration in the landlord’s handling of the resident’s complaint which was not put right by its offer of compensation.
Having considered the landlord’s compensation guidance, the Ombudsman’s guidance on remedies, and the circumstances of the complaint, an order has been made for the landlord to pay compensation which is appropriate to its complaint handling failings in this case.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman scheme there was maladministration in the landlord’s handling of the resident’s application for a mutual exchange.
In accordance with paragraph 52 of the Housing Ombudsman scheme there was maladministration in the landlord’s complaint handling and the level of compensation offered.

Reasons

The landlord failed to comply with its own procedure in the handling of the resident’s application for a mutual exchange. Through poor record keeping it is unable to demonstrate what actions were completed as part of this process or provide evidence of its contact with the resident and her mutual exchange partner. There were delays in the landlord’s handling of the application, and its actions were prompted by the resident’s contact. The landlord did not offer appropriate redress for the adverse effect caused by its failings.
The complaints process was protracted for the resident, with the final stage two response issued almost 10 months after she submitted her initial complaint. The level of compensation offered for these delays is not in line with the landlord’s own guidance or proportionate to the circumstances of the complaint.

Orders

Within four weeks of the date of this decision the landlord should:
1. Apologise to the resident for the failings identified in this case.
2. Pay the resident a total of £500 compensation, comprising:
  1. £250 for the distress and inconvenience, and time and trouble caused to the resident through the landlord’s poor handling of her mutual exchange application, including the failure to close her rent account.
  2. £250 for the distress and inconvenience, and time and trouble caused by the failings in its complaints handling.
  3. The landlord’s offer of £225 compensation should be deducted from the above total, if already paid.
Within the next six weeks, considering the failings in this case, the landlord should:
1. Review the complaint handling failures and confirm to this Service whether action has already been taken to ensure that these failings are not repeated, and;
2. If not, confirm to this Service what further action will be taken to reduce the risk of these failures happening again. This may include training on the Ombudsman’s complaint handling code.

Recommendations

Considering the failings identified through this report and taking into account the advice from the landlord of the steps it has now put in place to mitigate these; the landlord should ensure that it has also addressed the issue of record keeping in its handling of mutual exchange applications.
Within its monitoring of the mutual exchange process, it should undertake regular sampling of cases to ensure that appropriate documentation is completed.