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Sanctuary Housing Association (201910465)

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REPORT

 

COMPLAINT 201910465

Sanctuary Housing Association

14 December 2020


Our approach

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction and is governed by the Housing Ombudsman Scheme (the Scheme). The Ombudsman must determine whether a complaint comes within their jurisdiction. The Ombudsman seeks to resolve disputes wherever possible but cannot investigate complaints that fall outside of this.  
  2. In deciding whether a complaint falls within their jurisdiction, the Ombudsman will carefully consider all the evidence provided by the parties and the circumstances of the case.

The complaint

  1. The complaint is about the level of service charges and service charge increase, as well as the landlord’s communication regarding the service charges, including the amount payable and its response to queries regarding the amount.

Jurisdiction

  1. 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.
  2. The resident, a leaseholder of the landlord, at the property, from 19 May 2017, is dissatisfied that the landlord incorrectly informed her that the service charges for the property were £140.45 for the 2017/18 financial year, when they were in fact £173.45.
  3. This is an error accepted by the landlord in its final complaints response of 9 October 2019, following the resident’s complaint of 2 August 2019 and for which it has apologised.  The landlord offered £25 compensation in recognition of this, as well as an additional £75 compensation for communication failures and inconvenience.
  4. However, the resident does not feel she should be liable for the service charge amount of £173.45 because she signed to agree to pay £140.45.  The landlord has said that the resident is required to pay the correct amount of money, notwithstanding the error it made, in accordance with her obligations under the lease.  The resident has further argued that the percentage increase in service charges from 2017/18 to 2018/19 is excessive.
  5. In addition to the level of service charges and service charge increase, the resident is dissatisfied with the landlord’s communication, namely, its initial communication regarding the level of service charges and its later communication with her when she began questioning the level of service charges and the increase.
  6. Whilst this Service is able to consider complaints about a landlord’s communication, the communication issues in this case are intrinsically linked to the substantive matter, which, after carefully considering all the evidence, is not within the Ombudsman’s jurisdiction. This is because paragraph 39(g) of the Scheme, states that “The Ombudsman will not investigate complaints which, in its opinion, concern the level of rent or service charge or the amount of the rent or service charge increase”.
  7. Issues pertaining to the level of service charge or service charge increase should be properly dealt with by the First Tier Tribunal (Property Chamber), who can make determinations on all aspects of liability to pay a service charge.  This includes being able to assess the reasonableness of the charges and whether the landlord has followed statutory requirements in notification of charges.
  8. To consider the landlord’s communication around service charges in isolation would not be feasible because part of doing so would require assessment of whether the landlord followed statutory requirements in the notification of charges and its communication that the resident was obliged to pay; matters which require ruling by the First Tier Tribunal.
  9. Additionally, and for completeness, the resident is alleging a breach of contract in regard to the initial error in service charge completion statement, which is a matter for the Court and as an outcome to her complaint, not only has the resident asked for compensation, but has expressed that she would like the landlord to go back to the original charge in 2017 and make a minimal yearly increase on this original figure. 
  10. The outcome the resident is seeking is not an outcome this Service is able to provide; the role of the Ombudsman is to seek to resolve disputes between tenants or leaseholders and landlords and part of that resolution may include the landlord explaining what went wrong and why, apologizing for service failures identified and putting things right by way of carrying out repairs or changing its policies and procedures to help prevent a recurrence, for example, as well as, in some circumstances, offering a reasonable level of compensation. 
  11. The Ombudsman is unable to become involved in the landlord’s financial affairs and order it to reduce its service charges or make promises to lower its service charges; again, matters relating to the level of or increase to service charges are for the First Tier Tribunal.
  12. These additional factors which render the complaint outside of the Ombudsman’s jurisdiction, are in accordance with paragraphs 39(i) and 39(r) of the Scheme which state, respectively, “The Ombudsman will not investigate complaints which, in its opinion…”

(i)                 “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”, and/or;

(r)  “concern matters where the complainant is seeking an outcome which is not within the Ombudsman’s authority to provide”.

  1. It is acknowledged that while the resident has previously been informed by this Service that the matters she raises may not be within the Ombudsman’s remit, it has taken some length of time to confirm this and the resident will undoubtedly be disappointed by the outcome.
  2. The Ombudsman would like to offer its sincerest of apologies for the length of time it has taken; jurisdiction is a complex matter and to come to a conclusion on the complaint a thorough assessment the facts had to be completed first.

Reasons

  1. In accordance with paragraph 39(g) of the Scheme, the complaint is outside of the Ombudsman’s jurisdiction insofar as the matter concerns the level and increase of service charges, which are matters for the First Tier Tribunal.
  2. The complaint is also outside of the Ombudsman’s jurisdiction by virtue of paragraphs 39(i) and 39(r) of the Scheme, insofar as the resident is raising legal matters, which cannot be ruled on by this Service, by rather, a Court and is seeking an outcome to the complaint that the Ombudsman is unable to offer.