Mutual Exchanges Covid-19 Guidance

Ashford Borough Council (ABC) will deal with all applications for Mutual Exchanges promptly, fairly and efficiently. Where applications for assignment are agreed by ABC, it will make the necessary administrative changes as quickly as possible, at least within 42 days.

We will ensure that all applicants receive a consistent level of quality in the service provided, including the information received about the property under consideration. 

Due to the current pandemic, any tenants wishing to complete a mutual exchange will be required to have a visual inspection of their property via Microsoft Teams, which will be saved as an accurate record of the property condition.

Failure to accommodate an inspection via Microsoft Teams will result in any mutual exchange inspection being refused.

Aim

This staff guidance aims to outline how ABC manages mutual exchanges of properties including practice guidance during Covid-19.

Statutory responsibilities

ABC is bound by statutory regulation as described in the 1985 and 1988 Housing Acts, Housing and Regeneration Act 2008 and the 2011 Localism Act.

General information

Tenants must be given a decision in principal within 42 days of receipt of their application to exchange.

Where the exchange includes other social landlords we will need to ensure the other landlord(s) have given written consent to the exchange.

The Housing Management Support Officers will complete the following on receipt of all mutual exchange applications:

  • Check the tenancy agreement gives the right to exchange.
  • Check for any breaches that would prevent the exchange from going ahead, this includes a current notice of seeking possession on any grounds. Examples being, rent arrears, anti-social behaviour or unkept gardens.
  • Confirm receipt of mutual exchange applications.
  • Arrange for a virtual or physical inspection of the property. 
  • Send a reference and reference request to the incoming tenants’ landlord.
  • Compare reference information with the application form and check any anomalies with the reference provider and applicant. 

Guidance

There are a number of scenarios that can occur when considering mutual exchanges and are dependant on the type of tenancy held by the exchanging parties.

Mutual Exchange via Deed of Assignment

In most cases mutual exchanges will take place via a deed of assignment. This means that exchange partners will simply swap tenancy agreements effectively taking on the tenancy agreement belonging to the tenant they exchange with, including rent levels (in the case of fixed term tenancies) for the remaining tenancy length.

Exchanges between Secure and Fixed-Term Tenancies

Under certain circumstances a mutual exchange can only be achieved by the surrender and re-granting of tenancies. These scenarios occur where a tenant with a secure tenancy exchanges with a tenant who has a fixed term tenancy with more than 2 years to run.

Even where surrender and re-granting of tenancies takes place, mutual exchange parties will, in all cases, take on the rent levels applicable to the property they exchange with.

In the majority of these cases the tenant with the secure tenancy will maintain their security of tenure and thus be granted another secure tenancy and the tenant with a fixed term tenancy will be granted a new tenancy in line with our Tenancy Strategy and Policy. (Or the policy of the relevant partner housing association).

However where a secure tenant exchanges with a fixed term tenancy let on affordable rent terms under our Tenancy Strategy their tenancy will be protected but the affordable rent will stay the property, therefore the secure tenant will now have to pay the affordable rent rate as opposed to social rent. 

Where an exchange (between a fixed-term tenant and a secure tenant) takes place between two ABC tenants or a fixed term tenant from another housing provider exchanges with an ABC secure tenant, the exchange party with a fixed term tenancy will be granted a tenancy in accordance with ABC’s Tenancy Strategy and Policy. 

ABC is committed to promoting its mutual exchange scheme and participates in Home Swapper and Kent Home Choice. ABC will actively participate in other nationwide schemes if this promotes choice for our residents. 

Refusal to consent to a Mutual Exchange

We can only refuse to consent to a request for a mutual exchange from an ABC tenant (secure) where we have a good reason to do so (as set out in our tenancy agreements). In practice ABC will rely on the grounds set out in Schedule 3 of the Housing Act 1985 (amended by Schedule 11 of the Housing and Regeneration Act 2008), mirrored by those found under Schedule 14 of the Localism Act 2011, but reserve the right to rely on any other good reason which we may have to refuse any particular request for an exchange. 

A refusal of consent on the grounds of breach of tenancy (Ground 2 of Schedule 14 Housing Act 1985) will include, but is not limited to, reinstating the property to the satisfaction of ABC where unauthorised improvements have been carried out to the property or works undertaken by the tenant are of an unacceptable standard as identified as part of the inspection process.  

Where any improvement works have been carried out by the outgoing tenant ABC will advise the tenant moving into the property that they will be responsible for the repair and maintenance of these items. ABC does not take responsibility for the maintenance of resident improvements or repairs.

Rent that is lawfully due has not been paid. 

Refusal to consent to a surrender and regrant for Mutual Exchange

Under section 158 Localism Act 2011 a secure tenant as at 1 April 2012 can request to exchange their home with a fixed term tenant by way of surrender and re-grant.

We can refuse a request for surrender and re-grant if the tenancy is not one to which s158 applies (e.g. affordable rent fixed term tenancies) and also where one of the grounds for refusal of consent applies. The Grounds are set out at Schedule 14 of the Localism Act.

As with a mutual exchange (by assignment) we can refuse consent on the grounds of breach of tenancy (Ground 2 of Schedule 14) which will include but is not limited to reinstating the property to the satisfaction of ABC where unauthorised improvements have been carried out to the property or works undertaken by the tenant are of an unacceptable standard as identified as part of the inspection process. 

We can refuse where a court order for possession exists (Ground 3 of Schedule 14). 

Consent will also be refused where the property has been significantly updated to make it suitable for occupation by a physically disabled person, and if the assignment goes ahead no such person will be residing in the dwelling (Ground 11 of Schedule 14).

In certain circumstances we may allow an exchange of homes by surrender and re-grant even if section 158 does not apply (e.g. fixed term affordable rent tenancies). Cases of this sort will be judged on their own merits and will be entirely at our discretion and therefore we may refuse consent to a discretionary surrender and re-grant of this sort. 

Under Occupation

Consent to an exchange by way of assignment or surrender and re-grant may be refused (under Ground 7 of Schedule 14) where the accommodation will be substantially more extensive than reasonably required by the tenant or proposed tenant.

We will allow under occupation by one bedroom but we will highlight the change in legislation (from 01 April 2013) with regards to housing benefit entitlement under the social sector size criteria prior to the exchange and exchanging partners will be expected to sign to show their understanding of the housing benefit adjustments.

Mutual Exchange with Rent Arrears

A mutual exchange will not be withheld if our tenant has rent arrears unless they are under a Notice of Seeking Possession or a Court Order, however there will be an underlying agreement that the arrears to be cleared in full prior to the exchange taking place.

In the case of tenants affected by the social sector size criteria who have engaged with their Area Manager or the Welfare Intervention Office and an assessment has been made that they are under significant financial burden to which a mutual exchange will assist with reducing the burden a tenant needs to have shown that prior to the change they had made regular payment towards their arrears or maintained their court order for a minimum of 12 weeks. The tenant with the assistance from a relevant officer will need to show their attempts to contribute towards the arrears and reduction in housing benefit.

Condition of Property

Property inspections continue to be an important element of a mutual exchange.

Whilst Covid-19 is impacting heavily on face to face service delivery, each tenant(s) will be required to carry out a video call with the relevant Neighbourhood Housing Officer and then subsequently send photos of each room. This should be carried out via WhatsApp where possible, as this is encrypted from start to finish. 

Where there are concerns about the property condition, a request can be made to the Electrical Services Team, via the intranet, on the “Request for works” form, for their team to take photos of any areas of concern whilst they are in attendance to carry out Electrical Safety Check. 

The Neighbourhood Housing Officer must make the incoming tenant aware of any damage, and a disclaimer is to be signed stating they accept the property in its current condition, with no recourse to Ashford Borough Council to make good.

Compliance

To meet compliance, an Electrical Safety Test is to be carried out, requested though the “request for works” form, with requests included for further property photographs to be taken if required.

A valid Landlords gas safety certificate dated within the last 12 months is acceptable during this period of Covid-19.

If these certificates are unavailable, the exchange will not be approved.

Completion

When the exchange has been approved, an appointment will be made for all parties to sign the documentation.  This will be at the Civic Centre, Tannery Lane. Safety measures such as Perspex and one time use pens will be in place.

The outgoing tenant will ensure the rent account is up to date.

The incoming tenant will pay 2 weeks rent in advance, and/or show evidence that a change of circumstances has been submitted for Housing Benefit claims.

Where the incoming tenant is in receipt of Universal Credit and the payment date and income information is not clear, a payment agreement must be made with the Neighbourhood Housing Officer.

Payment by direct debit should be encouraged. Alternatives are online payments, automated telephone payments or BACs through their bank account.

Mutual exchange applications and copies of the assignment paperwork will be stored digitally.