Harlow District Council (202100139)

REPORT

COMPLAINT 202100139

Harlow District Council

4 January 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 the landlord’s response to the resident’s reports and queries about major works to his property, block and estate.

Background and summary of events

Background

The resident is a leaseholder of the landlord, a local authority. The property is a one bedroom flat on the first floor of a low rise block.
The lease sets out that the landlord is obliged to maintain and keep in repair the structure and exterior of the property and the block and to make good any defects affecting the structure.
Schedule G of the lease sets out that the resident is responsible for paying a service charge that is payable for:
1. Repairs (not amounting to structural defects) carried out to the property by the landlord in pursuance of its obligations under the lease
2. Maintenance (not amounting to repair) by the landlord of the structure and exterior of the block, including the property and the common parts
3. Insurance against risks
The definition of section 20 qualifying works is major works of maintenance, repair or improvement to a building that a freeholder is responsible for and towards which the relevant leaseholders are required to contribute under the terms of the lease. Under section 20 of the Landlord & Tenant Act 1985 (‘the Act’), freeholders are obliged to consult with leaseholders if the works are set to cost any one leaseholder more than £250.
The landlord’s complaint policy sets out that it will respond to stage one, two and three complaints within ten, ten and 15 working days respectively.

Summary of events

On 6 March 2019 the landlord issued the resident with a notice of intention to carry out major works to the block including the replacement of the roof and rainwater goods, structural repairs, renewal of windows, works to the balconies, external decoration and landscaping.
On 24 August 2020, the landlord issued a notice of estimates for the refurbishment of the block that set out a summary of the works and the resident’s estimated contribution of £36,013.87.
On 14 September 2020, the resident responded to the notice of estimate, saying that he considered the proposed works demonstrated that the landlord had failed in its repairing obligations and that the landlord should cover the costs. He included a list of items that he considered should be excluded from the resulting charges including:
1. Providing additional parking
2. Electrical substation renovation
3. New boundary wall and fence
4. Landscaping & trees
5. Subsidence caused by trees
6. Lack of maintenance to the block (i.e hole in wall by black pipe)

He also asked the following questions:

What age was the flat roof covering?
Why were brick balustrades being replaced? The landlord had previously covered the cost of similar works
Why was the landlord not applying for a grant for the insulated render system?

On 25 September 2020, the landlord responded and confirmed that the resident would not be charged for the parking, electrical substation, boundary wall, fence, landscaping and trees. It also said that:
1. The resident should contact the buildings insurance provider to put it on notice of a possible claim for subsidence
2. The resident would be charged for repairs to the block walls as this was in accordance with the lease
3. The roof was over 20 years old, and the resident would be charged for these works
4. The balustrades were in poor condition, were not stable, required replacing and would be chargeable
5. No funding was available for the insulated render system at the notice of intention stage, but it would explore if any was available once the contract was awarded. The resident would not be charged for these works as it was an improvement.
The resident and landlord continued to exchange correspondence about the subsidence, black supply pipe, roof replacement and balustrades throughout October 2020. On 12 October 2020, the landlord explained that:
1. It was unable to claim on the leaseholder’s buildings insurance so the subsidence claim needs to be made by the leaseholder.
2. Once on notice of a claim, a loss adjustor could assess the damage and consider any possible negligence. A decision about costs would then be made and confirmed to leaseholders.
3. It was not able to find out who organised the repair of the black supply pipe that was carried out by its contractor and why it was not inspected.
4. It did not have a record of when the roof was last replaced but it was over 20 years old. It would undertake a full intrusive survey when the contractor was on site and if a full replacement was not required it would amend the works and costs accordingly
5. The other block referred to where the landlord did pay for replacement of the balustrades was ‘very different’ and was ‘not treated the same when re-charging major works’ so the cost of the balustrade works would not be omitted.
6. The balustrade system was particularly fragile, and replacement was not an improvement but was required to maintain the structure of the block
On 12 November 2020, the landlord raised a stage one complaint about the roof, balustrade and subsidence works that remained outstanding and in dispute with the resident.
On 23 November 2020, the landlord issued a stage one complaint response to the resident and said that:
1. Its records only went back to 2005 and there had not been any roof refurbishment works since then
2. The balustrades were in a poor condition and made of single brick construction that was not stable
3. It disputed it was negligent by allowing trees to grow near the building
4. As a leaseholder, the resident was required to pay for the balustrade works and the costs divided between the number of properties within the block, regardless of the number of leaseholders
5. The complaint was not upheld
On 27 November 2020 the resident escalated his complaint, saying that he wanted the landlord to reconsider the charges and also saying that:
1. It was unacceptable that there were no records relating to the maintenance of the roof
2. The contractors had said that the roof was in a ‘poor state, not maintained’
3. The landlord said that the works were to meet decent homes targets and ensure its stock was well maintained but this was ‘at odds’ with the contractors report that said that the roof was in a poor state of disrepair
4. The landlord said that the balustrade replacement increased longevity by 20 years and reduced maintenance, but the contractors report said that the use of modern paints on the original balustrade would require a ten–year maintenance cycle
5. The leaseholders’ buildings insurance policy had an excess of £1000 so they were paying for the landlord’s ‘negligence’ in failing to deal with the trees that caused the damage
6. The Council was ‘negligent’ in not keeping the property in good repair, leading to higher bills.
On 17 December 2020, the landlord issued its stage two complaint response to the resident and said that:
1. It was required to hold records in relation to major works for at least 12 years
2. Any historic repairs to the roof would have been noted on the actuals making up the service charge for repairs and maintenance
3. It did not have a programme to inspect roofs on an annual basis as this was not a requirement
4. Its asset management plans identified when stock components needed replacement and any roof that required replacement would have an inspection and survey carried out
5. Although modern paints could increase the longevity of the balustrades, they would need to be in a good condition prior to painting
6. In this case, the balustrades were unstable and in poor condition so maintenance would no longer be effective and replacement was necessary
7. It did not agree that it had been negligent in its work to the block
8. It would not undertake any works unless justified to minimise the overall expense to leaseholders
9. It was satisfied that all statutory processes had been followed and the works were justified
10. The complaint was not upheld.
On 22 December 4 January 2021, the resident requested his complaint be escalated, saying that there appeared to be a contradiction in the landlord’s position which was: ‘the landlord has said that no building component will be replaced unless it has deteriorated beyond repair but also that maintenance is undertaken as and when required to ensure the stock is in good condition.’
On 26 January 2021, the landlord issued its final stage three complaint response and said that:
1. It apologised for the delay in responding, which was due to the pandemic
2. Its contractor had carried out repairs to the roof as and when a repair has been reported to ensure the block was maintained to a good standard
3. The planned roof replacement would be subject to a further inspection and survey using industry standard processes
4. The painting of the balustrades would not ensure longevity as they were in poor condition and the single brick construction is not considered stable
5. It only carried out replacement works when repairing was not feasible or would not provide value for money or fails to meet current health and safety standards
6. The complaint was not upheld.
In subsequent correspondence during April 2021, the resident explained the following additional issues in relation to the works:
1. Large trees were cut down that caused subsidence – these trees were too close to the block (within 5m) and would invalidate any claim
2. The landlord had accepted that it can’t charge for improvements, but the contractor stated that the insulated roof, insulated rendering, replacement double glazing and doors would improve the energy rating from D to A and the balustrades would improve the appearance and security
3. All related charges should be cancelled
4. The six leaseholders in the block were to be charged over £40,000.00 each for the works
5. After obtaining a copy of the surveyor’s report under the Freedom of Information Act, the council have not complied with the lease and therefore cannot charge for the works
On 8 April 2021, this Service explained to the resident that in regard to the service charge being cancelled, the First Tier Tribunal (Property Chamber) is able to provide an expert opinion on the reasonableness of the service charges and can make a legally binding decision on the resident’s liability to pay.

Assessment and findings

This service does not have sufficient authority to make a decision on the resident’s liability to pay (or the reasonableness) of any charges related to the proposed major works. This includes whether any particular works should be considered to be an improvement rather than repair or maintenance work that the resident is obliged to pay a contribution towards under the lease. These issues are usually best determined by the First Tier Tribunal (Property chamber) which is able to make legally binding decisions on the liability to pay and reasonableness of service charges and this route is available to the resident if he still has such concerns.
The focus of this investigation has been whether the LL responded fairly, openly and in accordance with its obligations to the resident’s queries, concerns and complaints about the proposed major works.
It is not disputed that the lease sets out the resident’s obligation to pay a proportion of the landlord’s costs in carrying out its repair and maintenance obligations and in this case the cost to the resident of his share of the major works is in the region of £40,000. It is acknowledged that this a very significant financial obligation for the resident that has caused him worry and distress and accordingly the resident’s pursual of the issues of his complaint to try and ensure that all the charges are fully explained and fair is understandable.
Having issued a notice of estimate in August 2020, the landlord responded to the resident’s initial comments throughout September and October 2020 within the framework of the section 20 consultation process. This was appropriate and in accordance with the landlord’s obligations under Section 20 of the Act. During this time the landlord exchanged frequent communications with the resident, providing responses to all the issues raised and, in the process, reduced the number of outstanding or disputed issues from nine to three (roof, balustrade and subsidence works)
As it was evident in early November 2020 that the above three issues remained in dispute, it was appropriate for the landlord to respond to the resident’s ongoing dissatisfaction as a formal complaint. This was resolution focussed, allowed the escalation of the issues to different and more senior officers and also ultimately allowed the resident the opportunity to bring his complaint to this Service if not resolved.
In terms of the landlord’s subsequent complaint investigation and responses to the roof, balustrade and subsidence issues, it is evident from internal documents that in each case the landlord sought guidance and information from a variety of suitably qualified officers and contractors involved in the major works project. Accordingly, it is evident that the landlord fully and fairly investigated all the issues raised and based its responses on information provided by suitably qualified professionals.
Whilst it is not for this Service to make a decision as to whether the landlord’s responses were sufficient to support the resident’s liability to pay the resulting service charge for the works, the responses and explanations it provided were reasonable and based on an appropriate consideration of the key disputed issues being raised by the resident.
In regard to the resident’s suggestion from his complaint that the requirement for the landlord to carry out such significant and expensive major works is itself evidence that it has not appropriately maintained the block – this is not necessarily the case. This is because many building components (for example roofs) have an effective working lifespan and it is not possible to indefinitely maintain and repair such components to prevent replacement at some point once the effective lifespan has been reached.
Furthermore, it is often the case that the cost of ongoing maintenance and repairing of building components that are at or near to their effective lifespans increases significantly as more frequent repairs are required and for this reason, at some point replacement often becomes the best economic option. Although it is accepted that, as in this case, the financial burden on leaseholders of such a large programme of works can be extremely significant and challenging.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the resident’s complaint about its response to his reports and queries about major works to his property, block and estate.

Reasons

Although the resident continues to dispute his liability to pay his proportion of the charges for major works, the landlord responded to his concerns and queries fairly and appropriately both during the initial section 20 consultation process and then through its internal complaints procedure. It is evident that it fully investigated and responded to all issues raised and that its responses were reasonable and based on information provided by appropriately qualified officers.