Wealden District Council (202016257)

REPORT

COMPLAINT 202016257

Wealden District Council

10 June 2022

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 reports of financial errors in its service charge calculations in the period 2017-2020.
2. The landlord’s response to the resident’s reports of inadequate works by the grounds maintenance contractor in 2020-2021 and therefore that the costs of those services should be limited accordingly.
3. The landlord’s response to the resident’s request for inspection of invoices pursuant to Section 22 of the Landlord and Tenant Act 1985.
4. The landlord’s response to the resident’s request to participate in a consultation on a draft service charge policy.
5. The landlord’s response to the resident’s report of the landlord’s inaccurate report to the local authority cabinet.
6. The landlord’s complaint handling.

Scope of this investigation:

In relation to the above complaints, the Ombudsman will investigate this complaint insofar as it concerns the service and response the landlord provided to the resident in relation to his requests for information. However, the Ombudsman has not investigated the substantive aspect of the resident’s complaint namely whether the differences between leaseholder’s and tenant’s service charges for the stated period or any period are justified and correct as this concerns issues outside of the Ombudsman’s jurisdiction.
The Housing Ombudsman Scheme states that:
1. Under paragraph 39(g), the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, concern the level of rent or service charge or the amount of the rent or service charge increase.
2. Under paragraph 39(i), the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, 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.
3. Under paragraph 39(m), the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.
4. Under paragraph 39(o), the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, seek to raise again matters which the Housing Ombudsman, or any other Ombudsman has already decided upon.
Where requests were made under the Freedom of Information Act, the Ombudsman considers that the handling of such requests falls outside of the Ombudsman’s jurisdiction under paragraph 39(m), as that aspect would be for the Information Commissioners Office (ICO) to review. It would be disproportionate and risking duplication to review matters that are within the remit of the ICO. However, this investigation will refer to some of the Freedom of Information (FOI) responses, if and where relevant to the resident’s complaints being investigated in this report.
The aspects of the resident’s complaints which concern the Landlord and Tenant Act 1985 (LTA 1985), will be a matter of law and for consideration by the Property Tribunal. It is not the role of the Ombudsman to make determinations that require a legal analysis of principles of law and a forensic study of evidence.
Therefore, given the aspects fall outside the Ombudsman’s jurisdiction under paragraphs 39(g) and 39(i), the Ombudsman will not investigate:
1. The reported financial errors on service charge summaries 2017-2020.
  1. This is because this complaint would require a forensic analysis of the accounts and a determination of the law which is not within the remit of the Ombudsman to carry out and, in the view of the Ombudsman, is best suited to the jurisdiction of the First Tier Tribunal (Property Chamber – Residential Property) (referred to in this report as the “Property Tribunal”).
2. Whether the works by the grounds maintenance contractor were inadequate and therefore the costs of those services should be limited accordingly in 2020-2021.
  1. This is because the resident’s complaint concerned the standard of works and that therefore he should not have to pay for them. This complaint would involve a consideration of Section 19 of the LTA 1985 which (in summary) limits the recovery of service charges to costs reasonably incurred and to the extent the works are carried out to a reasonable standard. The resident’s complaint therefore falls within the ambit of the LTA 1985 and again, in the opinion of the Ombudsman, is best suited to the jurisdiction of the Property Tribunal.
  2. Moreover, the resident’s reports regarding the quality of services, such as grounds maintenance, was addressed in the Ombudsman’s report reference 201906855 and, in the circumstances, fall, in the opinion of the Ombudsman, outside the Ombudsman’s jurisdiction under paragraph 39(o) of the Scheme. The landlord, however, further addressed this complaint in a response that post-dated that report and, in the circumstances, this report will address that further response.
3. Whether the landlord complied with its obligations under Section 22 LTA 1985 in its disclosure of invoices.
  1. This is because this aspect of the resident’s complaint falls under the LTA 1985 as the resident’s complaint is that the landlord had not complied with its obligations under that act.
However, in relation to the above complaints, the Ombudsman will investigate this complaint insofar as it concerns the service and response the landlord provided to the resident in relation to his requests for information.
While the Ombudsman has not considered the substantive issues of the resident’s complaints for the reasons set out above, it remains open to the resident to make an application to the Property Tribunal for a determination as to whether the landlord was in breach of its statutory obligations under the Landlord and Tenant Act 1985.

Background and summary of events

The resident occupied a first–floor, one–bedroom retirement-living flat under a lease which began on 18 February 2008. The resident’s property is within a ‘retirement housing’ development of which the landlord is the freehold owner.

Legal and policy framework

Under the lease, the landlord’s obligations included “to keep in good and substantial repair and condition and to renew amend and clean when and as necessary and appropriate… all drives paths parking spaces landscaped areas and grounds forming part of the Development” and “to manage the Development for the purpose of keeping the Development in a condition similar to its present state and condition”.
Under Paragraph 5(1)(b) of the terms of the lease, the resident was obliged to pay the landlord a service charge, being one part of the costs of the landlord carrying out its lease obligations. These included to insure and keep insured the resident’s property and the estate in which it was situated, provide a warden service, provide communal facilities, and keep in good and substantial repair the buildings and elements in those buildings. The Ombudsman has not seen the tenancy agreements of the tenants but the contractual arrangements are likely to be different, particularly given the respective relationships are different.
The Fourth and Fifth Schedule of the lease agreement lay out how the service charge was calculated. The lease states that the landlord may estimate the costs of the services provided for a given financial year, which will run from 1 April to 31 March. If the actual costs exceed the annual contribution, once the accounts have been served on the leaseholder, the leaseholder is to pay the amount due within 28 days. If the annual cost is less than the annual contribution, the difference will be applied to the annual cost in future years.
The landlord’s service charge policy states that:
1. Each year, normally in February or March, the landlord will write to residents to notify them how much service charges they will have to pay for the year, April to March.
2. Service charges will be calculated based on what the landlord knows or estimates it will cost to provide services to a block of flats or other group of properties. Normally the charge will be based on what has been spent in 4 previous years but the landlord may also consider how inflation or other costs such as prices from contractors, may affect the charge.
3. In almost all circumstances, the service charges are variable meaning that they reflect the actual cost incurred, or where this is not known, they are estimated and adjusted when the costs are known.
The leaseholder’s handbook stated as follows: “We also have a procedure for formal disputes that leaseholders may have with their service charge. Simply mark on the job description list and/or account the items you are disputing and forward it to a specific officer.” It would aim to answer a leaseholder’s query, in full, within two weeks.
The landlord’s complaints procedure defined a complaint as “an expression of dissatisfaction about our services’ customer comments, requests for service or reports of problems were not considered to be complaints and would not be recorded as such but passed to the relevant department for consideration”.
The complaints procedure comprised of a two–stage process where the landlord would respond with its Stage 1 response within 15 working days of the complaint being made and with its Stage 2 response within 20 working days of the complaint being escalated.
The landlord had categorised the resident as a vexatious complainant under the landlord’s ‘Unreasonably Persistent or Vexatious Complainants Policy’. This policy allowed for the landlord to limit contact with the resident by applying one method of contact or reducing duration of contact. It also stated that: “This policy does not prevent an individual who is categorised as unreasonably persistent or vexatious under this policy from raising a legitimate request for service e.g. about bin collections, as outlined in the Council’s complaint procedure. This will be considered and logged and, where appropriate, dealt with as a request to do something about the matter.’
The restrictions implemented include the terms that the landlord “will not acknowledge receipt of any correspondence from you” and “will respond to any requests in strict order of receipt” and only spend 30 minutes per month on the resident’s communication. Following an investigation by the Ombudsman in connection to a separate matter, the landlord was advised to inform the resident on those occasions where it declined to progress a formal complaint.
It is noted that the landlord has since amended its approach to provide the residentwith a timescale for responses.
In response to the Ombudsman’s report dated 8 January 2021, the landlord changed its practices to either log the complaint or provide an explanation why it would not do so.

Chronology

On 16 January 2020, the landlord responded to a FOI request from the resident and explained as follows:
1. The service charge estimates for 2020/21 were not available until after the service charges estimate were calculated and leaseholders would be notified of the 2020/21 service charges by 9 March 2020.
2. Service charges were calculated based on the estimated budgeted costs for the financial year 1 April 2019 to 31 March 2020 (2019/20). The service charge estimates would include adjustments each year for differences between the previous year’s estimated costs and the actual costs, once these costs had been audited following the closure of accounts.
3. Adjustments were made to service charges each year to ensure that actual costs relating to services for the property were recovered. This meant that the resident’s service charge could go up or down each year to reflect under/over recovery of the previous year’s costs.
On 11 February 2020, the landlord provided a website link to further information including the contract value and supplier in relation to the services provided. It also provided a source of information for all contracts awarded in relation to the landlord.
The resident wrote to the landlord on 13 May 2020 with a letter headed “complaint” that the landlord had not responded to the resident’s “legal enquiries” regarding the high level of charges in 2020/21. His view was that the landlord often underestimated the charges, which would not become apparent until six months after the year end. He felt that the figures demonstrated that the estimates were a “shot in the dark”. While he was deemed to be a vexatious complainant, the landlord still had a legal obligation to respond to his enquiries.
In June 2020, the parties’ correspondence focussed on the quality of the grounds maintenance which issues has been already investigated under the Ombudsman’s report, reference 201906855.
On 7 July 2020, the resident wrote to the landlord that he had written to the landlord “on a number of occasions”, disputing service charge payments in the service charge years 2015 to 2021. The grounds of his dispute were that he had not been provided with evidence of some expenditure, he had been overcharged based on an incorrect apportionment of service charges in one or two years, or there had been an incorrect calculation of the 10% management charge.
There was further correspondence regarding the quality of the services paid for by the resident’s service charges.
On 29 September 2020, the landlord sent to the resident the summary of accounts for the service charges for 2019/2020.
The landlord wrote to the resident on 30 September 2020 that it would not acknowledge receipt of correspondence and would allocate 30 minutes a month to the resident’s queries. It explained that it had received 104 letters since January 2020, 89 of which were since April 2020 and 30 since the beginning of September 2020. This level of correspondence was impacting on its ability to respond. It provided a summary of issues and responses in order to draw a line under the previous correspondence. This included that the resident was entitled to information about service charge estimates but not until the prescribed time, on receipt of the service charge summary. It would not respond to the resident’s comments on the standard of work by the contractors.
In response to the summary of accounts, the resident wrote to the landlord on 1 October 2020 with further queries.
On 5 October 2020, the resident made a request to inspect the invoices under section 22 of LTA 1985 and proposed times for inspection.
On 12 October 2020, the resident wrote to the landlord stating he would like to participate in an on–line consultation on the landlord’s website regarding the landlord’s proposed service charge policy. On 13 October 2020, he provided his points on the consultation on the service policy. He wanted to know how to participate.
On 25 October 2020, the resident made a complaint that the landlord received on 29 October 2020, regarding the quality of the grounds maintenance works and his objection to paying the costs of the service pursuant to Section19 LTA 1985.
The resident wrote several letters to the landlord on 28 October 2020, including as follows:
1. The first letter, framed as a “comment”, stated that the landlord should amend its procedures as he felt there was little chance of the service charges covering a deficit from the previous years.
2. The second letter was a complaint that the landlord had not replied to the resident’s request of 12 October 2020 to participate in the consultation.
On 5 November 2020, the landlord wrote to the resident that there were no “internal transfers” invoices raised between one section and another.
There followed correspondence in November 2020 regarding arrangements for inspecting the invoices. The opportunities for an inspection in person were limited due to the pandemic. Eventually the landlord arranged to provide the documents electronically on a date on or before 16 November 2020.
The resident wrote to the landlord on 19 November 2020 referring to “the recent Section 22 inspection of the copy invoices” for 2019/20 undertaken by him on 16/17 November 2020 using the electronic means provided by the landlord. He reported that many invoices for services published on the landlord’s website were missing. He requested an inspection to view the “missing invoices” in person with a list of those invoices. After the “second inspection” he would submit any enquiries regarding expenditure in 2019/20. He wrote again on 25 November 2020 referring to having been provide with “some DPA documents” electronically and requesting a copy of the landlord’s spreadsheet of his correspondence.
On the 7 December 2020, the ICO made a finding that the landlord had disclosed a full and correct copy of the breakdown of the estimated service costs held for the year 2019/20.
On the same day, the resident wrote several letters including a complaint that he had not received a response to his letter in relation to his reported errors in the landlord’s “data”.
On 14 December 2020, the resident wrote two similar letters, both date stamped as received by the landlord on 11 January 2021. The resident was chasing his complaint that the landlord had not responded to him regarding its lack of response in relation to the service charge policy consultation and regarding the quality of the garden maintenance for the “first six months of 2020-21”, made 25 October 2020. He said that he had requested a link to allow him to participate in the consultation but had not received a reply, hence his complaint 10 November 2020. He also referred to a cabinet meeting of 9 December 2020 commenting that he considered that the way the landlord completed the Housing Ombudsman self-assessment form was “disingenuous“ or “factually incorrect”, as the landlord’s responses did not reflect his own experience.
The landlord wrote to the resident on 16 December 2020 referring to its letter of 30 September 2020 and his reply of 3 October 2020. The resident had written numerous letters on the service charge policy including his request to be included in the consultation. This was a draft policy and therefore it would not be considering queries arising from the draft policy on how it intended to charge in the future. It appreciated his taking part in the consultation but it would not enter into further correspondence on the matter.
In relation to his request to see further supporting documentation for the service charge year 2019/2020, it had provided the documents it believed it was obliged to electronically. The landlord did not consider that the additional documents he had requested were covered by the LTA 1985.
The resident wrote on 29 December 2020 in response to the landlord’s letter of 16 December 2020. His view was that the invoices did not total the “remaining“ service charges. He would await the outcome of this complaint.
There followed some further correspondence about the service charge calculations, some of which correspondence reiterated the content of previous correspondence.
The landlord wrote to the resident on 19 January 2021 in separate letters as follows:
1. The first two letters were in relation to his complaint received on 11 January 2021 regarding the costs of grounds maintenance and the report to the cabinet.
2. The third letter covered issues addressed by the Ombudsman’s report regarding grounds maintenance. It explained that the costs were not calculated on how many visits were made to site but on getting the work done. The resident had had the opportunity to inspect the tender return and had been sent the relevant documentation. It had also advised previously that looking at the supplier payments and then trying to reverse-calculate the cost that the resident estimated would be charged was “not at all “helpful. Therefore, the resident’s calculations on how many operatives attended site, how long a break they took, how many vehicles attended site on a particular occasion, was largely “irrelevant”. It explained again that service charges were estimated and adjusted in the following service charge year.
The landlord wrote again on 28 January 2021 as follows:
1. The first letter was its Stage one response in relation to the resident’s complaint received on 11 January 2021 regarding the resident’s report that it did not respond to his request to participate in the service charge policy consultation as follows:
  1. It had informed the resident that it would not acknowledge his correspondence, it would address correspondence in strict date order and allocate 30 minutes per month to deal with the resident’s enquiries. However, in this service’s investigation report of 8 January 2021, the Housing Ombudsman advised that where complaints are made, the landlord should either register and address a complaint or inform the resident that it did not deem the letter to constitute a complaint, namely that it was an expression of dissatisfaction with the service.
  2. It explained that the landlord had provided residents with the opportunity to consider and comment upon its draft service charge policy. In addition to asking to be considered in any online consultation, the resident had sent a 6–page letter received on 20 October 2020, containing comment upon the draft Service Charge Policy. In the event, the consultation was extended.
  3. The consultation could have been completed in a number of ways, for instance submitting comments in writing or online. The resident had submitted a written response.
  4. However, the landlord had not recorded the correspondence as a complaint, nor did it inform the resident whether or why it was not considered an expression of dissatisfaction with the service. Given the Ombudsman’s report dated 8 January 2021, it upheld the resident’s complaint.
  5. The resident was entitled to ask the landlord to consider whether there were sufficient grounds to escalate the complaint if he was not satisfied with the outcome.
The landlord’s second letter of 28 January 2021 addressed the resident’s complaint it received on 11 January 2021 that the landlord “cannot agree” that the comments made in the complaints self-assessment were either disingenuous or factually incorrect. In a separate letter, with a difference complaint reference, it also responded as follows:
1. The responses in the self-assessment form about complaints handling “very clearly and very obviously” referred to complaints and complainants in general and not specifically how the landlord applied the Vexatious Complainant Policy to the resident’s circumstances. Hitherto, the resident’s frequent letters addressed as complaints were considered and only responded to if they were actually deemed to be complaints. The Housing Ombudsman advised that these should either have been recorded as complaints or the resident should have been notified why they were not being recorded as complaints. It had since changed its approach. Consequently, it could not be said that the comments made in the self-assessment were either disingenuous or factually incorrect; responses to the resident were being limited in accordance with his vexatious status. Nevertheless, given the Housing Ombudsman’s determination of 8 January 2021, his initial complaint received on 3 November 2020 should have been recorded as a complaint or he should have advised why it was not recorded as such. Consequently, the complaint was upheld.
2. The resident was entitled to ask the landlord to consider whether there were sufficient grounds to escalate the complaint if he was not satisfied with the outcome.
The landlord’s third letter of 28 January 2021 was its Stage one response to the resident’s complaint received on 11 January 2021 in response to the resident’s report of possible financial errors in the service charge calculations. It had interpreted the resident’s statement “unless the landlord amended the way it presents service charges to residents, there was little chance that the service charge will recover from deficit” as an observation rather than a complaint. It therefore decided not to provide a response to that letter or the resident’s subsequent letters chasing a response. It concluded however that, given the Ombudsman’s report of 8 January 2021, that they either should have been registered or sent an explanation as to why they were not registered. Consequently, his complaint was upheld. The service charges were variable, meaning that they were estimated for the forthcoming year with a correction made for any over or under-recovery. The way to avoid under and over-recoveries would be to charge fixed service charges. The landlord believed that variable service charges were fairer than fixed charges.
The resident wrote on 9 February 2021 in response to the landlord’s various Stage 1 responses stating that the landlord did not cite the subject of the complaint with the complaint number, it had referred to the resident’s letter the landlord had received on 11 January 2021, but it did not specify which of those letters.
On 24 February 2021, the landlord wrote to the resident acknowledging the resident’s request to escalate his complaints regarding the service charges calculation, the draft service charge policy consultation, and the “inaccurate” cabinet report. It stated that it would consider the resident’s request and set out the landlord’s criteria for escalation, namely that there was a fault with the way the complaint was handled rather than that the resident was dissatisfied with the response. It invited the resident to provide more information where he felt the complaint had not been handled or it had misconstrued elements of the resident’s complaint. It would reply in 20 working days, namely on 18 March 2021, but it could extend the timescale.
The landlord wrote to the resident on 24 March 2021 with its second Stage response in relation to the resident’s complaint regarding the draft service charge policy consultation and the “inaccurate cabinet report”. It had considered a) whether the resident’s request of 18 February 2021 to escalate his complaint contained any new information that supported the original complaint b) whether the complaint was answered fully at Stage 1 and c) whether the right conclusion has been reached.
It would not escalate the complaint regarding the draft service charge policy consultation and the “inaccurate cabinet report”, given that the landlord had upheld the resident’s complaint. It did not consider that there was any relevant new information. Therefore it concluded that there were no grounds to escalate the resident’s complaint to Stage 2. It added that the survey had been available online. He had accessed this survey and provided his comments in writing, the contents of which were given due consideration alongside with those of other residents who had responded.
It wrote again on 25 March 2021 referring to the resident’s request of 18 February 2021, to escalated his complaint on the basis that the landlord had not provided evidence that the contractor had completed the maintenance works and that the landlord failed to comply with its complaints procedure. It did not consider that the request contained any new information that supported the original complaint. The landlord had upheld the resident’s complaint regarding the original letters that were not responded, it therefore considered that the matter had been fully addressed. In relation to the grounds maintenance, it added that the landlord was responsible for the monitoring of the contract and it was for the landlord to be satisfied that the contractor was complying with the terms of the contract. It was so satisfied and it set out the dates that the contractor was in attendance between August 2020 to January 2021. The complaint in terms of the lack of work carried out by its contractor and costs was not upheld.
The landlord wrote on 13 April 2021 with its Stage 2 response regarding possible financial errors and referred to the resident’s request to escalate his complaint, received on 18 February 2021 as follows:
1. It did not consider that there was any relevant new information and had concluded that there were no grounds to progress the resident’s complaint to Stage 2. It added some comments as follows:
2. It had interpreted the resident’s letters in relation to the resident’s reports of service charge errors from 2017 onwards as observations, not something that would be considered as a complaint. However, the landlord upheld his complaint as it had failed to inform the resident as to how it intended to deal with his correspondence regarding the matter.
3. It explained again in detail how it calculated service charge estimates and adjusted them after the year end. The service charge summaries provided the information it was required to, including the over and under recoveries. It considered that the resident disagreed because the resident could not see the actual HRA income on the summary of accounts and was not prepared to accept its position. The landlord employed suitably qualified staff in order to make the relevant calculations. It stood by the information and calculations provided in the service charge summaries. It referred the resident to the Property Tribunal if the resident wished to dispute the charges.
The landlord wrote to the resident on 29 July 2021 regarding the resident’s request to inspect documents under Section 22 of LTA1985.
1. It had concluded that it had not adequately informed the resident as to how it would be progressing this matter. Originally, it was registered as a complaint but should not have been so. It failed to inform him that the matter was not being progressed as a complaint and it apologised for not doing so. The resident had access to all the relevant invoices electronically. He had also made a number of FOI requests and he had received confirmation that he had received all the information the landlord held on record. It had responded more generally to the resident’s comments in its letter dated 16 December 2020. It had understood the matter to have been resolved and therefore did not progress it.
2. It did not consider that the lengthy list of invoices provided by the resident were relevant to the service charges. Its view was that the resident had compiled his own list using information from the landlord’s website. The published data provides a list of all invoices paid to suppliers by all parts of the landlord including charges that were not relevant to the service charge and these were therefore not included.

Assessment and findings

Given the substantive issues of the resident’s complaints concerning service charges were outside the Ombudsman’s jurisdiction, the Ombudsman will consolidate its investigation of those complaints, which is limited to how the landlord handled the resident’s queries prior to referring the resident to the Property Tribunal.
1. The landlord’s response to the resident’s reports of financial errors in its service charge calculations in the period 2017-2020.
2. The landlord’s response to the resident’s reports of inadequate works by the grounds maintenance contractor in 2020-2021 and therefore the costs of those services should be limited accordingly.
3. The landlord’s response to the resident’s request for inspection of invoices pursuant to Section 22 of the Landlord and Tenant Act 1985.
It was not disputed that the landlord also had obligations under LTA 1985 to provide certain information. The landlord’s approach to the resident as a vexatious complainant was to apply a different timescale for responses because of the high level of correspondence it received. It did not decline to response altogether. However, it may be clearer for the resident if the landlord gave a timescale for responses rather than state how much time it would allocate each month, an approach that the Ombudsman understands the landlord has since adopted.
The landlord acted reasonably in not merely and immediately directing the resident to the Property Tribunal but by seeking to explain its position and to provide a response to the resident’s questions. The Ombudsman would expect a landlord to seek to address an issue without immediately referring a resident to a court or tribunal without having first provided a reasonable explanation of its actions. This aligns with the dispute resolution principles of being fair and proportionate and also with the expectations of a court or tribunal to seek resolution without recourse to litigation.
The timescales adapted for providing estimates and actual accounts were within industry standards. Its approach was appropriate as it complied with both its service charge policy and the relevant provisions of the resident’s lease. In accordance with its policy to accept queries about individual service charges, while it retained the final judgement on the matter, it addressed the resident’s concerns about “inadequate” grounds maintenance. It provided sufficient access to its records, much of which was on its website and despite the challenges of lockdown. The evidence showed that it provided the information and documents the resident had requested, and there was no evidence it was withholding information.
The landlord explained on a number of occasions what was stated in the lease: how it calculated service charges, its reason for adopting variable rather than fixed service charges, and about transfers of funds between teams or departments. Even where it did not escalate the resident’s complaints, it attempted to provide an explanation for the discrepancies that the resident said he had identified. The landlord explained that the invoices the resident said were missing were not in relation to works he had been charged for under the service charges. In the Ombudsman’s view, the landlord had taken the matter as far as it reasonably could, and it was reasonable to draw a line under the correspondence. For example, it did so in relation to the grounds maintenance and policy consultation. It was therefore reasonable, in the circumstances, to refer the resident to the Property Tribunal at that stage.
The explanation that the landlord was unable to provide facilities for inspection of hard copies of its invoices due to the pandemic was reasonable. The evidence showed that the landlord offered alternative inspection facilities. The evidence showed that the resident was able to, and did, access the documents.
In the circumstances, the Ombudsman concluded that it does not find service failure in the landlord’s responses to the resident’s above requests.

The landlord’s response to the resident’s request to participate in a consultation on a draft service charge policy.

The landlord’s response that the resident had not been excluded from the consultation and had in fact taken part was reasonable and appropriate. The evidence did not show any grounds for the resident’s complaint. Not only was the information on how to participate provided on the website but the resident had, in fact, successfully submitted his views. It was reasonable that the landlord should draw a line under the correspondence as to undertake individual correspondence was neither proportionate or, in the view of the Ombudsman, necessary. The purpose of a consultation is that a number of residents could participate in a fair and inclusive manner and is designed to collate responses in a cost and time-effective way.

The landlord’s response to the resident’s report of the landlord’s inaccurate report to the local authority cabinet.

The landlord’s explanation for the statistics it provided to the cabinet meeting and in the self-assessment of its complaints was reasonable.

The landlord’s complaint handling.

While the complaint history is set out in the chronology, given the number of complaints, it is useful to summarise the individual chronologies for each one:
1. The resident’s initial complaint regarding inaccurate service charges was made on 13 May 2020. The landlord provided the resident with a response addressing all of the resident’s queries on 30 September 2020. It referred to the complaint having been made in a complaint received on 14 December 2020. The Stage 1 complaint response was made on 28 January 2021. The landlord received the resident’s request to escalate his complaint on 18 February 2021 and provided its Stage 2 response on 13 April 2021.
2. The resident’s initial complaint regarding grounds maintenance was made on 25 October 2020, the landlord received it on 29 October 2021 but did not log it as a complaint until 19 January 2021, on which date the landlord addressed the issues but without referring to it as a Stage one response. The landlord received the resident’s request to escalate the complaint on 18 February 2021 and the landlord provided its Stage 2 response on 25 March 2021.
3. The resident’s complaint regarding the board report was received by the landlord on 11 January 2021 and logged as a complaint on 19 January 2021. The Stage 1 complaint response was made on 28 January 2021. One of the letters was brief and incorrectly headed. The correspondence also referred to two different complaint references. The landlord received the resident’s request to escalate his complaint on 18 February 2021. The landlord provided its Stage 2 response on 25 March 2021.
4. The resident’s complaint regarding the draft policy consultation was made on 28 October 2020. However, the landlord treated it as having been received on 11 January 2021. While the landlord responded to the resident in the meantime, the Stage 1 response was made on 28 January 2021. The landlord received the resident’s request to escalate his complaint on 18 February 2021. The landlord provided its Stage 2 response on 24 March 2021.
5. The history of the resident’s complaint in relation to the Section 22 LTA 1985 request was not altogether clear. The Ombudsman did not see clear evidence of a formal complaint. This service asked the landlord to address the resident’s report that he had made a complaint and the landlord wrote to the resident accordingly. The landlord, in its letter of 29 July 2021, explained that it had logged the correspondence in error. Its explanation for not treating the issue as a complaint was reasonable and in addition, it reasonably provided an explanation and clarification of its position. Given the lack of clarity as to whether there had been a complaint, the delay was understandable.
The landlord acknowledged that it did not respond to the resident’s initial complaints in a timely manner, due to how it managed its approach to the resident’s correspondence. In respect of each complaint, it explained and rectified its approach.
There were a number of delays in the complaint process. The reason for the delays in the landlord’s responses prior to January 2021 was the same throughout: that it was due to the way it had decided to treat the resident’s correspondence under its Vexatious Complainant Policy. Its failure to respond to previous complaints was addressed in the Ombudsman’s report reference 201906855 dated 8 January 2021, following which the landlord rectified the way it dealt with the resident’s complaints. The Ombudsman therefore considers that the impact of the landlord’s service failure in that respect was addressed by the compensation awarded in that case. The Ombudsman also considers that the landlord rectified the matter as far as it was able to, by changing its practices in response to that report.
The landlord concluded that it had upheld the complaints on the basis that it had not responded to the resident’s complaints in a timely manner by either providing an explanation or logging the resident’s letter as a complaint. However, it did not distinguish between its complaint handling and the substantive complaint. It would have been clearer for the landlord to state what aspect of the complaint or complaint handing it was upholding. The landlord did not offer any redress for its acknowledged failures or provide a reasonable explanation why it did not do so.
The Ombudsman appreciates that the landlord was facing a challenge in keeping track of a number of similar complaints but it is all the more important that the correspondence trail is very clear. It would also be helpful for clarity to refer to the date of the resident’s correspondence, in addition to the date of receipt, which he would not be aware of automatically, to ensure consistency of headings and complaint references and that all correspondence is headed by reference to the resident’s own correspondence headings.
The resident’s complaints were similar in nature and varied in terms of the periods they related to. The landlord is entitled to consider what are and what are not, in essence, duplicate complaints, as long as it provides a clear rationale for rejecting a complaint as duplicate. However, it chose to address each complaint as a new one.
Each of the respective decisions not to escalate the complaints was reasonable and appropriate and each decision complied with the landlord’s policy. Moreover, in any event, the landlord was reasonable in providing some additional clarification of its position in each case.
There were some minor issues as set out in this report, such as not always being consistent with reference numbers, responding twice to the same complaint, not heading its acknowledging letters with the title of the complaint. There were also some additional delays of no longer than a week in providing its response to the resident’s requests to escalate his complaints. While a source of frustration for the resident, the Ombudsman does not consider however, that there was a significant impact on the resident as a result.

Determination (decision)

In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s response to the resident’s reports of financial errors in its service charge calculations in the period 2017-2020.
In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s response to the resident’s reports of inadequate works by the grounds maintenance contractor in 2020-2021 and therefore the costs of those services should be limited accordingly.
In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s response to the resident’s request for inspection of invoices pursuant to Section 22 of the Landlord and Tenant Act 1985.
In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s response to the resident’s request to participate in a consultation on a draft service charge policy.
In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s response to the resident’s report of the landlord’s inaccurate report to the local authority cabinet.
In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s complaint handling.

Reasons

The landlord provided a reasonable degree of detail and clarification before referring the resident to the Property Tribunal in relation to his queries regarding service charges.
While the landlord could have provided reassurance to the resident sooner, the evidence showed that the resident did take part in the consultation on the proposed service charge policy, as he had requested.
The landlord’s explanation for its statistics and the content of its self-assessment form was reasonable.
The landlord acknowledged its failures in relation to its complaint handling as regards either logging the resident’s correspondence as a complaint or providing an explanation that it did not deem the correspondence to be a complaint. It demonstrated that it had rectified its approach. While there were defects in its approach, which the landlord should ensure it improves, they were not substantive and the Ombudsman does not consider the impact on the resident to be significant.

Recommendations

The landlord should ensure that it keeps track of the resident’s complaints to ensure that it allocates headings and references consistently, it ensures even its acknowledgment letters clearly reflect the subject of the complaint and addresses the issues set out in this report.
The landlord should, if it has not already done so, provide a realistic timescale for response, rather than refer to how much time it will allocate for response.