Clarion Housing Association Limited (202003710)

REPORT

COMPLAINT 202003710

Clarion Housing Association Limited

18 December 2020

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 response to the resident’s daughter’s enquiries about service charges between 2012 and 2019; and
2. The landlord’s complaints handling

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the 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.
The resident has raised concerns about individual charges and rising service charge costs since 2012/13, and has noted that some years the landlord has failed to respond to her enquiries, or those made by her daughter on her behalf.
In accordance with paragraph 39(g) of the Scheme, the Ombudsman will not investigate complaints concerning the level of rent or service charge, or the amount of rent or service charge increase. Therefore, the aspects of the resident’s complaint relating to excessive charges are outside the jurisdiction of this Service, as is the complaint about the increase in the level of service charge since 2012.
The resident may consider making an application to the First Tier Tribunal (Property Chamber) (FTT), which has the authority to give a binding determination on the reasonableness of individual charges, or a service charge increase. The Ombudsman’s investigation is limited to consideration of the landlord’s administration of the service charge and its response to the resident’s enquiries and complaints.
In addition, paragraph 39(e) of the Scheme states that the Ombudsman will not normally investigate matters that were not brought to the landlord’s attention as a formal complaint within, a reasonable period, which is usually considered to be within 6 months of the matters arising.
A formal complaint was not made until March 2019, 9 months after the landlord had made its position regarding the service charges for 2016/17 clear in its emails to the resident’s daughter in July 2018. The aspects of the complaint relating to the landlord’s administration of the service charge prior to the 2017/18 period are therefore outside the Ombudsman’s jurisdiction, in accordance with paragraph 39(e) of the Scheme.
This investigation is limited to consideration of the landlord’s administration of the service charge from the 2017/18 period onwards, the information provided by the landlord in response to the resident’ enquiries of 5 October 2018 onwards, and the landlord’s handling of the resident’s complaint. Information about events occurring prior to that time is included in the background section below to provide additional context.

Background

The resident’s daughter has complained on behalf of her mother, who is the leaseholder of the property, which is a 2 bed flat of which the landlord is the freeholder.
Between September 2017 and July 2018 the resident’s daughter exchanged correspondence with the landlord about the service charges billed to her mother for the 2016/17 period and in previous years. The resident’s daughter noted that for several years her parents had raised concerns about the level of the service charge, or queried individual items, and had not received a satisfactory response. Some service charge payments had been reduced or withheld by her parents due to the disputed items and the service charge account was in arrears.
The resident’s daughter asked the landlord to provide copies of invoices for some of the disputed charges for the 2016/17 period. The disputed charges included cleaning and grounds maintenance, which her mother reported was not being completed as regularly as it should be. She also challenged charges for tree removal, when there were no trees on site and a substantial charge for major works where no further details were provided. The resident’s daughter requested further details about other charges for electricity costs, repairs, fire protection and TV/aerial servicing.
The landlord met with the resident’s daughter on 20 April 2018 and wrote to her on 4 May 2018 confirming the agreed action points. It explained that the cleaner had advised that cleans took place on a weekly basis between January and April 2018 and that at the latest inspection by the landlord the condition of the block was satisfactory. The landlord confirmed the past and future dates for window cleaning and outlined some planned grounds maintenance. It also explained that the charges for major works related to the removal of satellite dishes, where the individual owners could not be established and so costs were recharged to all leaseholders. The landlord was waiting for further information on the difference between the projected cost and actual expenditure.
In subsequent emails between May 2018 and July 2018, the resident continued to express her concerns that the landlord was failing to carry out checks to ensure that works had been completed and was in some instances using contractors not based in the area, resulting in excessive charges. She noted that the landlord had failed to provide some of the information she had requested and that her mother had not received any information regarding the major works. She also queried why a cleaner was now engaged on a weekly basis, rather than a monthly basis as before, especially as she believed the cleaning was only taking place once a month. The resident suggested that the service charge arrears should be deleted from her mother’s account by way of compensation
The landlord explained that it could not write off the arrears, as it was in possession of invoices to justify the charges. It stated that it would explore whether any compensation might be due in respect of its service delivery. The landlord noted that it was limited in the information it could provide due to data protection but committed to attempt to obtain more detailed breakdowns of some invoices. The landlord also confirmed that a letter from 2015 in which it stated that cleaning was provided on a monthly basis was inaccurate and that cleaning had always occurred on a weekly basis. The landlord confirmed in July 2018 that it would not be providing the resident with any compensation.

Summary of Events

The resident’s daughter wrote to the landlord again on 5 October 2018, regarding her mother’s annual service charge for 2017/2018, sent on 28 September 2018. The resident’s daughter did not receive an acknowledgment from the landlord or a response to her request for clarification of some charges. She chased the landlord on 5 December 2018, enclosing a copy of her letter of 5 October 2018 and a cheque for some of the arrears on her mother’s account. The landlord provided a Notification of Charge for Actual Costs to the resident on 27 December 2018, referring to a ‘door replacement’ at a cost of £683.53.
The resident made a formal complaint to the landlord on 15 March 2019. She stated that she had still not received a response to her letters of 5 October 2018 and 5 December 2018, however, the landlord must have received the letter of 5 December 2018, as the accompanying cheque had been cashed. She also complained that her mother was being charged for services that were not carried out and that she did not receive a ‘clear, transparent and detailed invoice’ for the service charge. She felt that the service charge did not represent value for money, referring to previous discussions. The resident requested that her complaint be considered at stage 2 of the landlord’s complaints process and that it provide an independent review.
The landlord responded to the resident’s daughter by email, dated 18 March 2019, apologising that her letters of 5 October 2018 and 5 December 2018 had not been responded to. The landlord provided a table showing the breakdown of the service charges from 2012 to 2018, inviting her to highlight the outstanding disputed items and offering to provide evidence to support the charges. It confirmed that it would provide a response to the resident’s daughter’s request for information about the disputed charges totalling £897.03 for the 2017/18 period.
The resident’s daughter responded on 25 March 2019. She noted that the main disputed charge since 2012/13 was in respect of the cleaning. She continued to challenge the landlord’s statement that the cleaning had always been carried out on a weekly basis, asking who had authorised this change and why. The resident’s daughter also outlined the charges that were disputed for 2015/16 and 2016/17.
The landlord provided further information on the disputed charges for the 2017/18 period and a stage 1 response to the complaint on 8 April 2019. A copy of this response has not been provided to this investigation. The landlord agreed to add 2 small credits to the resident’s account for the 2017/18 period.
The resident’s daughter emailed the landlord on 18 April 2019, noting that she was disappointed that the landlord considered the complaint concluded. She noted that she had not received a response to the other matters raised in her email of 25 March 2019.
The resident’s daughter did not receive a further response from the landlord and, due to personal circumstances, did not seek to raise the issue again until 15 January 2020 when she wrote with reference to her formal complaint of 15 March 2019. She confirmed that her complaint was about the landlord’s failure to provide information in relation to previous years’ service charges and an ongoing dispute about the cost of several items. The resident had received the actual costs for the 2018/19 period on 27 September 2019. The resident’s daughter noted that an independent review of her complaint had never taken place, as required by the landlord’s complaints policy.
The landlord responded to the resident at stage 1 of its complaints process on 13 February 2020. It noted that following the meeting in April 2018, it had advised that all disputed historical charges were adequately evidenced and that no adjustment would be made to the service charge account. Following the resident’s formal complaint, invoices relating to the 2017/18 service charges were provided and the landlord ‘again advised that all historical charges were applicable’. The landlord advised that it would provide invoices relating to the 2018/19 charges but noted that a request should have been made direct to the relevant team. The landlord confirmed that no actions from the meeting in April 2018 remained outstanding and that it had identified no service failure in relation to the complaint. The response was provided by a Customer Solutions Co-ordinator.
The resident’s daughter wrote to the landlord again on 2 March 2020, stating that she was dissatisfied with the landlord’s complaint response of 13 February 2020. She made the following comments:
1. The response of 13 February 2020 stated that the resident should have requested invoices from the team directly. The resident’s daughter noted that she had done this on 15 January 2020.
2. The landlord had failed to escalate her complaint to stage 2 despite her requests.
3. The resident would not be paying the charge of £683.53, as there had not been any door security since February 2019 when the works began. The resident’s daughter was concerned that the landlord had not inspected the works to ensure they had been completed to the agreed standard.
4. The resident’s daughter stated that the landlord’s records were incorrect as ground rent payments had been made in August 2016, April 2017 and April 2019.
5. The resident’s daughter listed the disputed items of the 2017/2018 service charge, relating to works that she stated had not been completed, and enclosed a cheque for the balance. The disputed items were sums for caretaking, communal cleaning, communal window cleaning and grounds maintenance.
6. The resident’s daughter noted that agreed credits to her mother’s account, confirmed in an email from the landlord of 8 April 2019 had not been added.
7. The resident’s daughter noted that her mother had received post from the landlord on 6 February 2020 bearing her address but the name of another resident.
The landlord provided a further response on 5 March 2020 from the Rent and Service Charge Manager. The landlord attached further details of the 2018/19 expenditure and explained the charge to which each invoice related. It promised to provide a response to the other issues raised in the resident’s letter of 2 March 2020 by 20 March 2020.
The landlord provided a final response from the Rent and Service Charge Manager at stage 2 of its complaints process on 28 April 2020. The landlord confirmed in relation to the service charges that:
1. It had forwarded the resident the 2018/19 Certificate of Actual Expenditure by email on 5 March 2020. A table was also attached outlining the year on year costs, payments received and the balance outstanding for each financial year.
2. Following the meeting on 20 April 2018 it was satisfied that all services had been carried out to the standard expected and recharged appropriately. Therefore it would not be considering any further amendments.
3. 3 small credit’s had been added to the resident’s account on 14 March 2020. The landlord apologised that these had not been added sooner.
The landlord upheld the stage 1 response in relation to the service charges. It noted that the resident had raised additional issues in her request for escalation and it responded as follows:
1. The landlord confirmed it had received the resident’s ground rent payments for the past 3 accounting periods. It noted that ‘payments received will not necessarily show against the corresponding charge due to the way our system settles payments’.
2. The landlord clarified that the charge of £683.53 related to a new door entry system, following a consultation with residents where no queries or challenges were received. The landlord confirmed this work had been completed but a second part of the work to replace damaged doors was outstanding, preventing it from making the system operational. The replacement doors were likely to cost in excess of £30,000, therefore the landlord was considering how it would deliver these works.
3. The landlord explained that letters were sent to her mother’s address with copies sent to her daughter as her named delegated authority. It confirmed that this would be the procedure going forward.
4. The landlord had notified its Data Protection Team about the incorrectly addressed letter that her mother had received. An internal investigation was underway to determine how this had happened and to prevent future incidents.
In the course of gathering information to provide to this investigation, the landlord has noted that there was a delay in providing the stage 1 and stage 2 responses to the resident. It has confirmed that it would like to apologise to the resident for this, and to offer £75 compensation.

Law, Policies & Procedures

Section 21 of the Landlord and Tenant Act 1985 provides a right for tenants to request in writing a summary of the relevant costs making up the service charge in the previous accounting period. The landlord must provide the summary within 1 month of receiving the request (or within 6 months of the end of the 12-month accounting period, whichever is later).
Under section 22 of the Landlord and Tenancy Act 1985, tenants may request in writing that their landlord make available for inspection documents relating to the service charge, including ‘accounts, receipts and other documents supporting the summary’. The tenant should make their request within 6 months of receipt of the summary. The landlord must make these documents available within 1 month of the date of the request.
The landlord includes a summary of rights and obligations with its service charge demands, as required by law. This sets out the tenant’s right to withhold service charges in certain circumstances and to make an application to the FTT. The landlord also provides an FAQ sheet with explanations of some common charges.

Assessment and findings

Enquiries regarding service charges

This service has not been provided with a copy of the response of 8 April 2019 following the resident’s daughter’s original complaint. It is noted, however, that at the time the landlord reviewed the charges for the 2017/18 period and concluded that 2 small credits were due. There was a delay in applying these credits to the resident’s account, however, as the account was in arrears by a considerable amount this caused no detriment to the resident.
The stage 1 response of 13 February 2020 confirmed that the landlord had provided invoices relating to the 2017/18 service charges following the complaint of 15 March 2019. The landlord has also provided a considerable number of invoices relating to the charges for 2018/19 and a detailed explanation of each disputed charge. As stated in the jurisdiction section above, this service cannot make findings about the reasonableness of individual charges or the level of any increases.
The Ombudsman is satisfied that the landlord provided sufficient information to evidence the accuracy of the service charges and to support its position that all charges were reasonably incurred. The resident stated in her letter of 2 March 2020 that she had not received a response to a letter of 15 January 2020 requesting information relating to the 2018/19 service charges. A copy of this letter has not been provided to this investigation.
The Ombudsman notes the legal requirement to respond to a request in writing for additional information within 1 month of receipt of the request, however, in the absence of a copy of the letter sent on 15 January 2020 no findings are made about whether the landlord failed to comply with its legal obligations. As noted above, further clarification on the 2018/19 charges was provided in the landlord’s letter of 5 March 2020 and accompanying attachments.
The landlord has sought to explain any discrepancies in the service charge accounts raised by the resident and has provided summary tables showing the charges dating back to 2012 and how the arrears have been calculated. It has also asked the resident to confirm which items remain in dispute. On the basis of the information provided to this investigation, the landlord has reasonably concluded that it cannot write off the arrears, as it was entitled to recover the cost of each item via the service charge and the amounts charged are accurate. Should the resident wish to challenge the landlord’s position, an application would need to be made to the FTT, as outlined above.
The Ombudsman considers that the landlord has not adequately responded to the resident’s concerns that cleaning is not taking place as frequently as it should be. Although the landlord raised this with its contractor in 2018 and accepted the contractor’s account of visits made to the site, the resident has continued to report that visits are not occurring on a weekly basis. There is no evidence to suggest that the landlord has raised this with its contractor since 2018 or sought further proof that cleaning is being completed weekly.
The landlord has not provided details to the resident of any regular inspections it carries out to ensure cleaning and maintenance is being undertaken in accordance with its service contracts. As this aspect of the complaint has been highlighted by the resident and her daughter on many occasions, the Ombudsman would expect the landlord to provide confirmation of how it monitors the performance of its contractor or to conduct further enquiries into this aspect of the complaint. The Ombudsman considers that there was service failure by the landlord in its response, and orders the landlord to write to the resident setting out the investigation it has undertaken and outlining how it intends to monitor the cleaning and grounds maintenance going forward.
The Ombudsman notes that the resident has also complained that the frequency of the cleaning has changed from monthly to weekly without explanation. The landlord has discussed this aspect of the complaint with its staff and concluded that information provided in 2015 was inaccurate and that cleaning has always been carried out weekly. On the basis of the information provided, the Ombudsman is unable to conclude that a change in the cleaning schedule has occurred, and so is unable to reach any findings in relation to this aspect of the complaint.
The resident’s daughter has complained that the service charge invoices lack clarity and are insufficiently evidenced. The Ombudsman would not expect a landlord to provide invoices to evidence all individual charges as a matter of course and the landlord has demonstrated that it is willing to provide these on request, as required by law. The landlord’s service charge invoices are accompanied by an FAQ sheet, which provides a description of most common charges. The Ombudsman is therefore satisfied that the landlord’s approach to the provision of information relating to service charges is reasonable and appropriate.
There have been occasions where the landlord’s service charge invoices have inaccurately described the works carried out, for example the charge for ‘door replacement’ was later confirmed to be a charge for replacement of the door security system, and a communal cleaning charge was clarified as a charge for communal window cleaning. Whilst the landlord is encouraged to take care to provide accurate descriptions of the charges, this does not amount to service failure as the landlord provided further information clarifying these charges on request and corrected the errors in description.
The Ombudsman is also satisfied that the landlord’s explanation of the charge for the door security system replacement works is reasonable. The resident has complained that the landlord did not check that the works had been completed to the required standard, however the stage 2 response indicates that the works have been completed but that the landlord is currently unable to activate the system as some doors are inoperable due to vandalism.
The Ombudsman notes the resident’s daughter’s concern that her mother’s block is currently without adequate security and so recommends that the landlord write to the resident providing an update on the works to replace the defective doors and the measures it is taking in the interim to ensure that the building is secure.

Complaints Handling

The resident’s daughter has complained that the landlord failed to escalate her complaint of 15 March 2019 following its response of 8 April 2019. In her email of 18 April 2019, the resident’s daughter was clear that she remained dissatisfied with the landlord’s response and it would have been prudent for the landlord to confirm whether she wished to escalate her complaint.
A copy of the landlord’s response of 8 April 2019 has not been provided to this investigation, and so it is not possible to determine whether this was stated to be its final response. The Ombudsman expects a landlord to be clear about the status of a complaint and to provide a complainant with details of the next avenue of appeal, be that internally, to this Service, or via an application to the FTT. The landlord has not evidence that it did so.
The resident’s daughter has also noted that the complaint was reviewed by the same person and not someone more senior and independent, as required by its Complaints Policy. The Ombudsman’s new Complaints Handling Code does not prescribe that a stage 2 should be carried out by an independent member of staff, however, a landlord’s own policies and procedures may require it to do so.
It appears from the information provided to this Service that the landlord responded to the resident’s letter of 15 January 2020 as a new complaint, which was reasonable given the length of time that had elapsed since its response of 8 April 2019 and as the resident’s daughter wished to raise ongoing concerns about charges that were also present in the 2018/19 service charge accounts.
This investigation has not been provided with a copy of the Complaints Policy in use in 2019 and so the Ombudsman is unable to consider whether it complied with its terms regarding the stage 2 review. It is noted, however, that the response of 13 February 2020 was provided by a Customer Solutions Co-Ordinator and the response of 28 April 2020 by the Rent and Service Charge Manager. The complaint was therefore escalated to a more senior member of staff, albeit to someone with previous involvement in the issues. There is therefore no evidence of service failure in relation to this aspect of the complaint.
The landlord has acknowledged its failure to respond to the resident’s emails of 5 October 2018 and 5 December 2018 and provided an apology. Following the intervention of this Service it has also identified delays in providing responses at stage 1 and stage 2 of its complaints process. It has offered the resident £75 compensation in recognition of its failings. The Ombudsman is satisfied that this reflects the landlord’s willingness to put things right where it has identified failures to adhere to its policies and procedures. In circumstances where the Ombudsman feels that the landlord has made a reasonable offer of redress to the resident, a finding of service failure will not be made.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its response to the resident’s service charge enquiries.
In accordance with paragraph 55(c)of the Housing Ombudsman Scheme, the Ombudsman is satisfied that following the intervention of this Service, the landlord has made an offer of redress to the resident, which in the Ombudsman’s opinion satisfactorily resolves this aspect of the complaint.

Reasons

There was service failure by the landlord in its response to the resident’s enquiries regarding the service charge, as it failed to adequately respond to her concerns about the frequency of communal cleaning and grounds maintenance.
The landlord has offered the resident £75 compensation in recognition of the delays in providing a response at stage 1 and stage 2 of its complaints process. The Ombudsman is satisfied that this offer of compensation is proportionate to the failings identified, and that the landlord has therefore made an offer of redress to the resident that satisfactorily resolves the complaint.

Orders

Within 28 days of the date of this report, the landlord is ordered to:
1. Write to the resident’s daughter detailing the investigation it has carried out into the resident’s concerns about the infrequency of cleaning and grounds maintenance and confirming the action the landlord currently takes, and intends to take, to monitor the performance of its cleaning and grounds maintenance contractor.

Recommendations

It is recommended that the landlord:
1. Write to the resident’s daughter providing an update on the door replacement works, an indication of when the door security system will be activated, if this has not already taken place, and details of how the landlord is seeking to ensure the block is secure in the interim.