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Midland Heart Limited (201816955)

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REPORT

COMPLAINT 201816955

Midland Heart Limited

18 June 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 response to the resident’s concerns about its refusal of her Voluntary Right to Buy (VRTB) application.

Background and summary of events

Background

  1. The resident has been an assured tenant at the property of the landlord since 14 December 2017. The landlord is a registered provider of social housing.
  2. The landlord was a member of the government’s pilot VRTB scheme.
  3. The landlord operates a two stage complaints policy.
  4. During the pilot VRTB scheme, the landlord used an application form which noted applicants must have resided at their current property for a minimum of 12 months in order to be eligible.
  5. The government’s advice to landlords regarding the pilot VRTB scheme also noted that applicants must have resided at their current property for a minimum of 12 months in order to be eligible, and that landlords have discretion as to whether to sell the property under the scheme.

Summary of events

  1. It is not disputed that in or before November 2018, the resident submitted an application to purchase her property through the VRTB scheme. The landlord acknowledged this application on 28 November 2018 and requested that the resident provide the relevant identity documents. On 13 March 2019, the landlord advised the resident that she did not meet one of the eligibility requirements to proceed with the application, namely that she must have resided in her current property for a period of 12 months prior to making the application. It noted there was a six-week shortfall and subsequently that her application had been cancelled. It also noted she did not “have the right of appeal to a residential property tribunal,” but that she could seek further advice from the government’s VRTB advice service.
  2. On the same date, the resident noted the landlord’s communication and advised she would be seeking legal advice and also seeking to make an appeal. She also noted the government’s website indicated that where an applicant was unable to purchase their property, they may be eligible for a process known as ‘porting’. The landlord replied that porting allowed an applicant to purchase a separate property in instances where their current property was not covered by the scheme, however, this process was only available to eligible applicants. It advised that as the resident was ineligible due to not meeting the 12 months’ residency requirement, she would not be eligible for porting. It is evident that the parties subsequently had a phone call, following which the resident expressed her dissatisfaction that she had no right to buy a property other than through the shared ownership scheme. She noted that the ‘Shelter’ website indicated that “landlords have a duty of care to help and support the tenant in home ownership,” and she subsequently requested the landlord provide her with its policies regarding ‘right to buy’. It is not evident that the landlord responded to this request.
  3. On 18 March 2019, the resident made a formal complaint which included a number of issues, among them that the landlord had refused her VRTB application (the other complaints are not the subject of this investigation). She noted she had been informed she had no right to appeal, that the option of porting was not available to her, and that “over the phone I was told not to seek legal advice.” She also advised that the government’s VRTB advice line had informed her that landlords have discretion about whether to sell their properties and that she had previously received a letter confirming her building was included in the pilot VRTB scheme, and so she disputed the landlord would have been unable to approve her application. She also advised she had raised her concern with the landlord regarding her not having reached 12 months residency, and that the landlord had advised her that it would “they would take it all into consideration. That I shouldn’t worry because it’s only a few weeks shortfall of holding my tenancy for 12 months.”
  4. The landlord provided its initial stage one response on 9 April 2019. Regarding her complaint about her VRTB application, the landlord reiterated the requirement for the resident to have resided at the property for the previous 12 months prior to the application and that the decision to decline the application had been made correctly in accordance with its policies and procedures. It also noted it had confirmed with the ‘National Housing Federation’ that this position was correct, and advised the resident had the option to seek an appeal “to an Agent as appointed by the Department for Communities and Local Government.”
  5.  On 6 November 2019, the resident reiterated her complaint and advised she wanted it to again be considered as a formal complaint. On 20 November 2019, the landlord advised it had already responded to her complaint and reiterated its position that the “the rules relating to eligibility have been set and approved by the Ministry of Housing, Communities and Local Government. They are very clear that unless both sets of criteria are meet, applications cannot be processed further.” It also reiterated she would not be eligible for porting and that it had discussed with her other methods to purchase a home, i.e. shared ownership. It also advised her to continue to monitor updates on the possible roll-out of a nationwide VRTB scheme.
  6. On 1 July 2020, the resident advised the landlord she disputed its position and was seeking to take the issue to a tribunal. Based on the internal emails provided by the landlord to this service, it decided to treat this communication as a further formal complaint. The landlord provided a further stage one response on 20 July 2020. It noted that the VRTB advice service had advised the landlord had discretion whether to sell a property, but reiterated it was required to adhere to the 12-month requirement. Regarding the resident’s comments that the landlord had told her during a telephone call not to worry about this requirement, the landlord advised it had listened to its recordings of telephone calls from that period but was “unable to find the call where you were misled about the Voluntary Right to Buy scheme.” It also noted its correspondence in March 2019 had informed the resident she could seek advice from the government’s advice service and that it was unable to find any evidence it had told her not to seek advice. It advised that, should the resident be able to provide any evidence, it would consider this further.
  7. On 3 August 2020, the resident requested an escalation of her complaint. She disputed that the landlord did not have discretion to waive the 12-month requirement and provided screenshots of the government’s VRTB guidance which noted that “housing associations will have the final decision about whether to sell an individual property.” She also noted that the pilot VRTB scheme was still active at the time she would have achieved 12 months residency at her property and expressed her dissatisfaction the landlord had not waited until this time to process her application.
  8. The landlord provided its stage two response on 18 August 2020. It reiterated its position that the “eligibility criteria for the Voluntary Right to Buy scheme was set by the Ministry of Housing, Communities and Local Government” and that the resident had not met the 12-month requirement. It advised it was unable to make exceptions and concluded that it did not uphold the resident’s complaint.

Assessment and findings

  1. It is evident from the government’s advice to landlords regarding the pilot VRTB scheme that applicants must have resided at their current property for a minimum of 12 months in order to be eligible. It is also evident that the resident would have been aware of this requirement as it is noted on the landlord’s VRTB application form. Additionally, the resident has advised she discussed this requirement with the landlord prior to making her application.
  2. While the government’s advice regarding the VRTB scheme noted that the landlord has discretion about whether to sell a property, it is evident that it can only exercise this discretion where an eligible applicant seeks to purchase their property. Should they choose to exercise their discretion and not sell the property, or if the property is not applicable for sale, the government’s advice noted that the landlord should then offer the eligible applicant an alternative property to purchase through the porting process. It is not evident, however, that the landlord has discretion to waive the government’s eligibility requirements, nor that porting can be accessed by an ineligible applicant.
  3. It is not disputed that at the time of her application, the resident had not resided at her property for the past 12 months. In her communication dated 3 August 2020, the resident noted that she would have resided at her property for the required period of 12 months while the pilot VRTB scheme was still operating. It was therefore reasonable that the landlord sent letters to residents in 2018 indicating the building was eligible to be part of the pilot VRTB scheme. It is not evident that it made any assertions that individual tenants would be eligible at this time.
  4. Based on the evidence provided to this service, it is not evident that rejected applicants have the right to appeal the rejection at a tribunal. It was therefore reasonable that the landlord gave this advice to the resident in its communication on 13 March 2019. It was also appropriate that it signposted the resident to where she could obtain further advice. It was also appropriate that it responded to her query regarding porting and that it advised her why she was not eligible for this option. While it also appropriately discussed with the resident her alternative options for purchasing property, it is not evident, that it responded to her request for its policies on ‘right to buy’, which would have been helpful for her to further understand her options.
  5. Following the resident’s formal complaint on 18 March 2019, the landlord appropriately reiterated its position on why it had rejected her application, and also appropriately advised it had investigated whether this position was correct with the National Housing Federation. It also appropriately signposted her to where she could make an appeal with an agent appointed by the Department for Communities and Local Government.
  6. In her complaint, the resident also noted that the landlord’s employee had advised her she “shouldn’t worry” about the 12-month requirement, and also that following her rejection, she had been advised not to seek legal advice. It is not evident that the landlord addressed these concerns in its initial stage one response, which would have caused distress to the resident. It was appropriate, therefore, that following her reiterated complaint in November 2019, and subsequent further concerns in July 2020, that it reopened the resident’s complaint and offered a further stage one response. The landlord appropriately addressed these concerns and in the Ombudsman’s opinion, its investigation into the issues by listening to its telephone recordings was reasonable. It was also appropriate that it advised it would readdress the issues if the resident had any additional evidence.
  7. Following the resident’s request for an escalation, the landlord appropriately addressed her position that it had discretion to approve applications by clearly articulating its position that the eligibility criteria were set by the Ministry of Housing, Communities and Local Government. While the Ombudsman understands that the resident was frustrated that had she made her application seven weeks later, she would have satisfied the 12-month requirement, it was reasonable for the landlord to process the application at the time it was received, and it was appropriate that the landlord advised in its stage two response that it was unable to make exceptions.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s concerns about its refusal of her VRTB application.

Reasons

  1. It is evident that the government set the eligibility criteria for applications to its pilot VRTB scheme, one of which was a requirement that the applicant must have resided at their property for 12 months prior to the application. It is not disputed that the resident had not resided at her property for this amount of time prior to application and it was reasonable that the landlord processed her application when received. It was therefore reasonable for it to reject her application and throughout its correspondence and formal responses, it has clearly articulated this position.
  2. While the resident raised concerns in her complaint that the landlord had advised her not to worry that she did not meet the 12-month requirement prior to her application and that following the rejection, that she should not seek legal advice, the landlord appropriately investigated these concerns in its further stage one investigation by listening to its telephone recordings, and having not found any evidence to support this, it was reasonable that it did not comment on this further.

Recommendations

  1. The landlord to contact the resident within four weeks of the date of this determination and (if it has not already done so) provide her with its policies regarding ‘right to buy’.