Paragon Asra Housing Limited (201912355)

 

 

 

 

REPORT

COMPLAINT 201912355

Paragon Asra Housing Limited

29 January 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 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 the landlord’s response to the resident’s reports about:

• the resident’s request to put a shed in the garden
• complaint handling

Background and summary of events

1. The resident lives in a block of four leasehold properties, of which the landlord is the freeholder. The resident’s lease is a tripartite lease between the landlord (lessor), the resident (lessee) and a management company (managers), of which each owner of the four properties are a director, including the resident. The resident’s lease commenced in 2018.
2. Section 4(6) of the lease covenants the resident “not without the licence in writing of the lessors (such licence not to be unreasonably withheld) to make or suffer to be made any addition to or alteration in the demised premises.” Section 6(j) covenants managers to do all other things reasonably desirable to maintain the building as a respectable block of flats. Section 7(b) states the lessor “may” assume rights and obligations of the managers if they fail to perform and observe their covenants.
3. The landlord’s ‘Application to make a change’ to demised premises webform states the landlord aims to respond to enquiries within 10-15 working days.
4. The landlord operates a two stage complaints procedure, each stage involving a written response within 10 working days. Its definition of a complaint include “Where we have failed to provide a service, or there’s been a delay in providing one,” “If a customer is in any way unhappy about the way we’ve delivered a service,” and “Where there has been inappropriate behaviour or attitude from our staff.” In some cases it withdraws complaints from the procedure and explains why.
5. On 19 September 2019 the resident completed the landlord’s ‘Application to make a change’ webform to obtain permission to erect a shed in the garden.
6. On 9 Oct 2019, the resident complained to the landlord about lack of response to his application and to recent calls. The following day, the landlord advised the process required its solicitors to draft a licence and incurred a fee, which the resident paid. On 28 October 2019 the landlord provided the licence, which needed to be signed by two other directors of the resident’s management company. On 6 November 2019 the resident circulated the licence to directors of the management company and followed this up on 19 November 2019, without receiving response.
7. On 28 November 2019 the resident asked the landlord to intervene in the lack of response, as, in his view, the licence should not be “unreasonably withheld” under the lease. The following day, the landlord stated the management company needed to be addressed on the matter and it would not become involved at that time. It explained it is responsible if the management company defaults on building disrepair, but not in the resident’s circumstances.
8. On 29 November 2019 the resident submitted a complaint to the landlord, about its delay and lack of response in relation to the application; and about its decision not to take action with the management company.
9. On 18 Dec 2019 the landlord informed the resident it was unable to accept the complaint, as this was against the management company. It confirmed it dealt with the licence request which was sent to the resident for signature of two leaseholders. The landlord advised it would not step in as freeholder, chase or force the management company to agree, and advised the resident to get independent advice if he did not receive response from the management company.
10. On 20 December 2019 the resident contacted this Service, after attempting to escalate the complaint with the landlord. He complained about its handling of his application and that it did not explain he may not get a licence if two other directors did not sign it off. He also said that under the lease, it was unreasonable to withhold the licence; the management company was neglecting responsibility; and the landlord had powers to act if the management company failed to observe or perform covenants.
11. On 5 February 2020 the landlord issued its Stage 1 response, after this Service contacted it on 28 January 2020:
    • It explained a complaint would not normally be accepted as the landlord had not failed in service.
    • It explained the management company consists of the four owners of the flats including the resident, who automatically became a director on purchase.
    • It explained its obligations as freeholder if the management company failed in maintenance obligations. It confirmed it otherwise had little involvement and had no authority to override decisions or interfere with day to day running.
    • It explained it drew up the licence in accordance with the lease and this then required two other signatories. It noted the management company did not have to provide consent and suggested the resident provide further information to the management company, to address any potential concern about the shed.
    • It recommended the resident obtain independent legal advice or go through the lease and management agreements, to understand the position.
    • It referred to additional matters involving the resident and the management company.
12. On 6 February 2020, the resident asked the landlord to escalate the complaint within its procedure. He said directors had not responded, rather than objected. He complained at not being informed about the two signatures before he bought a shed and paid for the licence, which he would not have done due to his relationship with other leaseholders. He complained the landlord had not handled the complaint in line with policy, that staff had raised voices during calls, and restated other issues.
13. On 19 March 2020 the landlord issued its final response after this Service contacted it on 12 March 2020:
    • It explained it was unaware two directors needed to sign until it sought to get the licence, unaware they would refuse, and apologised for not having relayed in a timely way that solicitors had to draft the licence.
    • It investigated the staff complaint and advised its staff did not raise their voice until the resident raised his, when he disputed information provided to him.
    • It explained the resident had purchased a property where there is a management company, the shed required approval by two directors and it could not override their management and force them to agree. It advised it could only intervene if there was genuine disrepair and not for matters “that have not been carried out.”
    • It advised if the resident put up the shed without correct permission or licence, he would be in breach of lease and would need to remove it.
    • In regard to lease clauses the resident referred to, the landlord advised it had not unreasonably withheld permission; it could not force managers/directors to agree; and could not dissolve the management company because one individual wanted this to happen.
    • It referred to additional matters involving the resident and the management company.
14. Following the landlord’s final response, the resident advises he provided the landlord with a signed document in October 2020 and had not yet received an issued licence. He raised concern the process has not completed yet, his shed is stored in pieces in the garden and deteriorating, and he needs extra storage space the shed would provide. He raised concern with the landlord’s handling of the issue in light of its handling of a previous consent issue. The resident raised dissatisfaction with the landlord’s handling of the application and complaint, and both responses being from the same individual. He raised dissatisfaction the landlord referred to additional matters, and sought to address these in correspondence to this Service.
15. After the resident asked the Ombudsman to investigate, this Service contacted the landlord on 30 October 2020, 25 November 2020 and 11 December 2020. The landlord has not supplied information requested in the correspondence.

Assessment and findings

16. The Housing Ombudsman Scheme sets out the type of complaints which the Ombudsman will and may not investigate. This includes that it only investigates complaints which have exhausted a landlord’s complaints procedure. It is noted the resident expresses dissatisfaction with additional matters the landlord refers to in its responses, which he acknowledges are not the subject of the substantive complaint. As such, this Service only considers the substantive issues.
17. The Scheme sets out the Ombudsman will not investigate complaints which concern employment or personnel issues. It is noted the resident complains about staff and in this case, this Service considers how the landlord responded to the resident’s complaint.
18. It is not within the Ombudsman’s authority or expertise to decide on matters such as breach in the same way as the courts. While the Ombudsman can take a view on the position by reference to law and the lease agreement, if this is disputed, only a court or tribunal can offer a definitive and legally binding decision.
19. The Ombudsman has assessed whether the landlord has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case.

The landlord’s response to the resident’s reports about the resident’s request to put a shed in the garden

20. The landlord does not assess its handling of the reply to the resident’s application against its service standards, however the two week timeframe it took is not an excessive one to consider an application to make changes to demised premises. This can be a complex area. The landlord’s eventual reply was in line with the timeframe stated on its ‘Application to make a change’ webform, and the resident contacted the landlord before this elapsed. Nevertheless, the landlord apologised it did not inform the resident “in a timely manner” the licence needed to be drafted by solicitors. The landlord’s handling of this aspect is therefore reasonable.
21. The landlord does not dispute staff raised their voices and provided explanation on the matter. The landlord’s actions demonstrate it investigated the resident’s concerns and provided a reasonable response, which is in accordance with what the Ombudsman would expect to see.
22. The landlord’s explanation is reasonable that until solicitors draft the licence, it may not be aware of a signature requirement from other residents. It is also not unreasonable for the management company to be involved in issues of addition to or alteration of demised premises in the location they manage.
23. The landlord response to the resident’s request to intervene was reasonable. It provided its position on clauses referred to and explained circumstances where there are obligations to intervene. This demonstrates the landlord reviewed the resident’s requests against its obligations and provided a response, which is reasonable.
24. Additionally, there is no evidence the landlord is required to intervene in the circumstances the resident asked it to. Section 6(j) of the lease, that the resident refers to, relates to the management company’s maintenance of the building. Section 7 states the landlord “may” take actions if the management company fails their obligations, which it considered not applicable. The landlord advised the resident early on to seek independent advice if there was disagreement over the positions advised. This is reasonable in light of the above, as if there is dispute over the lease, only legal procedures can offer definitive and legally binding decisions.
25. Overall, the landlord provided reasonable response to the resident’s request to put a shed in the garden.

The landlord’s response to the resident’s reports about complaints handling

26. As the landlord provided reasonable response to the substantive issues, this Service goes on to consider its specific complaint handling.
27. The resident complained on 29 November 2019 about the landlord’s delay in the application and its lack of response to a complaint on 9 October 2019. The landlord responded on 18 December 2019 that it was unable to accept the complaint, as it was “against your Management Company.” As the complaint met the landlord’s definitions of a complaint and included complaints about the landlord, its response to the resident’s request to make a complaint was not reasonable.
28. The resident then requested escalation of his complaint on 6 February 2020 as he felt there had been a failure in service in relation to his original complaint, and explained why. As the landlord’s complaints policy allows escalation to Stage 2 if a complainant advises an issue has not been resolved, the landlord should have escalated the complaint at that point.
29. The Ombudsman’s Dispute Resolution Principles are:
    • Be fair – treat people fairly and follow fair processes
    • Put things right
    • Learn from outcomes
30. This Service’s guidance to landlords encourages the local resolution of complaints and promotes landlords’ complaints procedures as a means through which this can be achieved. The guidance goes on to acknowledge some issues might be excluded, but landlords are encouraged to take as wide a range as possible through formal complaint procedures and if an issue is excluded, this should be clearly explained in writing along with residents’ right to approach the Housing Ombudsman Service.
31. The Service’s Complaint Handling Code also sets out that landlords should not unreasonably refuse to escalate a complaint through all stages of the complaints procedure. Where a landlord decides not to escalate a complaint, the Code sets out that landlords should explain this to the resident, and make clear the previous response was the final response to the complaint along with residents’ right to approach the Housing Ombudsman Service. The Ombudsman has a number of resources about the Code on our website, and landlords are also able to sign up to webinars about it or watch a previous webinar.
32. For a landlord to address a complaint in its formal complaint procedure, rather than focus on whether to ‘accept’ a complaint or escalation, can benefit both resident and landlord. This allows landlords to address whether complaints are justified/accepted or not, and provides residents with a clear path to escalate complaints if dissatisfied. It should not require this Service to prompt the landlord to follow complaints process, and that this was required for both stages is a service failure on the part of the landlord, as it did not follow best practice and its own policy.
33. After referral to this Service by the resident, this Service contacted the landlord to request information relevant to the complaint. Paragraph 10 of the Housing Ombudsman Scheme, as well as the Complaint Handling Code, confirm a member landlord must respond promptly to information requests made by the Housing Ombudsman Service as part of the ongoing investigation into complaints from residents. Following several requests, the landlord has failed to provide evidence, which is not in accordance with its obligations under the Ombudsman’s Scheme.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s reports about the resident’s request to put a shed in the garden.

In accordance with paragraph 55 of the Housing Ombudsman Scheme, there was service failure by the landlord in its response to the resident’s reports about complaint handling.

Reasons

The landlord’s response to the resident’s reports about the resident’s request to put a shed in the garden

The landlord’s handling of the resident’s request to put a shed in the garden was reasonable. It handled the application within reasonable timeframes and its position on issues the resident raised in relation to the lease was reasonable.

The landlord’s response to the resident’s reports about complaints handling

The landlord refused to accept complaints and only did so following intervention by the Ombudsman. This was not appropriate or in line with best practice and its own policy.

The landlord failed to provide information to this Service, which is not in accordance with its obligations under the Housing Ombudsman’s Scheme.

Orders and recommendations

Orders

The landlord to:

• Apologise to the resident and pay him £50 for its service failure in its complaint handling.
• Review service needs in relation to the issues identified, to ensure it responds to complaints and information requests in line with its complaints policy, the Complaint Handling Code and the Housing Ombudsman Scheme.

Recommendation

• The landlord to review the status of the licence and take any reasonable steps to issue it, if outstanding.

The landlord should contact this Service within 4 weeks of the date of this decision to confirm it has complied with the above orders.