Berneslai Homes (202204792)

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REPORT

COMPLAINT 202204792

Berneslai Homes

11 April 2023

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:
1. Response to the resident’s requests to have trees cut back.
2. Handling of proposed works to the guttering and downpipe at the block.
3. Use of the Section 20 consultation procedure.
The resident has also complained about the level of the service charge for works to the guttering and downpipe.

Jurisdiction

Level of the service charge

When a complaint is brought to this Service, we must consider all of the circumstances of the case as there are sometimes reasons why a complaint will not be investigated in line with the Housing Ombudsman Scheme.
Paragraph 42(e) of the Scheme sets out that the Ombudsman may not consider complaints which concern the level of rent or service charge, or the amount of the rent or service charge increase.
In his complaint about proposed works to the building’s guttering, the resident disputed the level of his contribution towards the cost of works. A determination on this matter requires a decision on an appropriate level of service charge. The resident’s complaint about the level of the service charge for works to the guttering and downpipe is therefore outside of the Ombudsman’s jurisdiction in line with paragraph 42(e) of the Scheme.
The First Tier Tribunal Property Chamber (FTT) deals with residential leasehold disputes between leaseholders and their landlords. The FTT can make determinations on liability to pay a service charge, including how much should be paid and when a charge is payable. The resident may wish to contact the FTT about the disputed level of charge.
The Ombudsman has, however, considered the resident’s complaints about the landlord’s handling of works to the guttering and its use of the Section 20 consultation process.

Background and summary of events

The resident has been a leaseholder of the property, a flat, since 15 April 2002. The length of the lease is 125 years. The property is owned by Barnsley Council (the Council), and is managed by Berneslai Homes. For the purposes of this investigation report, Berneslai Homes has been referred to as “the landlord”.
The resident’s property is located within a block of flats. The resident is one of two leaseholders in the block. The property has a shared communal garden with tall Sycamore trees at the rear.
On 4 January 2022 the landlord received a report that the guttering was blocked due to the leaf fall. The landlord arranged for the area to be inspected on 13 January. During the inspection it was identified that the existing guttering had been repaired several times. Following the inspection, the landlord discussed plans for renewing the guttering. The landlord acknowledged there were two leaseholders living there and that there was a need for a section 20 consultation under the Landlord and Tenant Act 1985.
On 14 February 2022 the landlord issued a Notice of Intention, as part of the section 20 process. The notice stated that the landlord had an intention of carrying out work ‘under an existing long term agreement’. The notice also indicated that guttering needed to be replaced at the block of properties as it was beyond repair. The notice stated the likely cost of this work would be £3460.19, which included a 10% management fee and VAT. This meant the resident would have to contribute £865.05 (25%), which would be collected via his service charge. The notice invited the resident to make written observations regarding the proposed work by 18 March 2022 (30 days from the service of the notice).
On 24 February 2022 the resident submitted observations in response to the Notice of Intention. He said:
1. He had sought legal advice and had been informed that he could not be billed for work carried out or proposed by the landlord.
2. He wanted to know why a consultation had not been carried out.
3. He disputed the cost of the work, and asked if he could use his own contractor.
4. He believed the trees were the cause of the problem and wanted them cutting back.
5. He wished to know how the landlord expected two pensioners (himself and the other leaseholder) to afford the “sky high bills”.

The resident also raised a formal complaint about the landlord’s handling of the situation on 11 March 2022.
On 15 March 2022 there was an internal discussion held by e-mail between housing management and leasehold departments. The details of these e-mails confirmed the housing office was aware there had been complaints from multiple residents over a number of years regarding the trees specifically blocking out light. The e-mail confirmed it would be too costly to have the trees cut back and the landlord would wait until it could afford for the works to be done.

On 17 March 2022 the landlord issued a response to the resident’s section 20 observations, stating:
1. An inspection of the guttering was carried out on 13 January 2022 and it was found that the existing guttering was not repairable on an ongoing basis. The decision made was to replace the guttering around the block completely. This would be cost effective in the long term.
2. There was an open request for the trees to be cut back, however, there was a long waiting list as the local authority had over half a million trees in the borough. It denied the Housing Management Officer stated the trees were the cause of the guttering problem.
3. The resident’s portion of the cost (£865.05) was inclusive of VAT. However, the cost included some work (10 meters of downpipe installation) which had not been included in the section 20 notice. The landlord advised this would reduce the cost by an estimated £43.03.
4. The resident had a responsibility, under the terms of the leasehold agreement, to have provision to pay for any necessary repairs. The charge would only apply once the work was completed and payment arrangements could be offered.
The landlord sent a stage one response on 23 March 2022. It advised that there was some overlap with its response to the s20 observations. However, the response did elaborate on the matter by explaining:
1. The price did not have to be reconsidered under section 20 of the Landlord and Tenant Act 1985 because of a pre-existing contract agreement known as Property Repair and Improvement Partnership (PRIP). It also added that the costs for the proposed work were made using existing contract rates. The landlord highlighted that a smaller contractor would not have the relevant level of insurance to work on its stock.
2. The inspection of the guttering was completed on 13 January 2022.
3. The claim that the trees were the cause of the issue was two separate issues:
  1. The guttering was faulty.
  2. The tree cultivation was managed by the local authority. It had over half a million trees in its borough to look after. This meant there was a long waiting list for works such as this to be completed. It did state that the Housing Officer requested ad-hoc jobs for trees to be cut down when required.
4. It had consulted the Council’s finance department regarding the VAT.
The resident requested the escalation of his complaint on 24 March 2022, because he:
1. Believed the quote for the work was too high and he could get the work done by someone cheaper, who was insured. He believed he should be given the opportunity to use his own contractor. He advised his own contractor had not inspected the guttering by using a ladder.
2. Believed the cost he was going to incur included the Council tenants’ portion.
3. Disagreed with the administration and VAT fees.
4. Believed the landlord overcharged on every job that was completed.
5. Believed the trees caused the damage to the guttering, stating he had reported the issue for a number of years. He also did not believe the inspectors inspected the guttering by ladder.
6. Understood the s20 consultation was meant to last 30 days and believed it ended prematurely because of limited opinions.
7. Disputed his leaseholder agreement said he must pay for improvements.
8. Advised he had sought legal advice and was told under section 11 of the landlord and tenant act 1985 leaseholders and tenants were responsible for roof and guttering.
9. Wanted a breakdown of costs (including VAT, labour etc) and a copy of the independent report that made the decision.
The landlord issued a stage two response on 25 April 2022. The response addressed most of the same points raised in stage one, plus specific reference to the section 20 consultation. It said:
1. The prices were non-negotiable and agreed under the PRIP.
2. The external parts of the block were its responsibility to maintain, therefore, the resident would not be able to use his own contractor to carry out the work.
3. The inspection on 13 January 2021 found disrepair of the guttering, and “only light debris”’ in reference to the leaves said to be causing the blockage. The resident had advised that he wished for a further inspection to take place – so that there was a second opinion on the condition of the gutters. It would agree to this as a resolution of the complaint.
4. The work to cut back the trees had been ordered but the relevant department had a backlog of jobs to work through. It prioritised dangerous trees but did not believe the resident’s tree complaint to be dangerous. This was on the basis that it had seen only light debris in the guttering.
5. The VAT was only charged once on the cost.
6. The section 20 consultation would only have been considered to end early if the work had commenced prior to the end date of the consultation.
A second inspection took place on 17 May 2022. Following this, the landlord wrote to the resident on 6 June 2022. It said:
1. The purpose of the inspection was to get a second opinion on the need to renew the guttering around the block.
2. The resident could not instruct his own contractors due to the PRIP and the s20 consultation.
3. The inspection found the work was still required, but there was less risk to the front of the property than the back. This meant it was in the position to hold back on some of the renewal, and reduce the cost by around 50%. However, the remainder would need to be repaired in the future.
4. The gutter guards would be required, but it would not pass this cost on to the resident.
5. Two jobs had been raised in 2021 for the ad hoc trimming of the trees. However, it had been informed by the Council’s Neighbourhood Services team that it was prioritising dangerous trees. The trees in question were not deemed to be dangerous.
The resident wrote an undated letter indicating that he had been told by the surveyor that the work to replace the guttering did not need to be done. Additionally, the resident said that the surveyor told him that he could use his own contractor. The landlord queried this with the surveyor. In response he denied making such remarks.
The resident remained unhappy with the landlord’s response to the matter, and to his formal complaint. He therefore referred the matter to this Service for further consideration.
During a conversation with this Service on 1 August 2022, the resident advised that the trees had since been cut back. The resident said that while they had been cut, the landlord confirmed that it would not be chopping the trees down.
To investigate the resident’s concerns, we asked the landlord for information relating to the complaint. This included records relating to what the landlord had done to address leaf fall. The landlord provided records of two jobs that were completed in July and October 2021 that related specifically to ‘trees inspected and pruned/crown lifted’. Both of these jobs related to cutting back the trees.
The landlord sought further clarity on this by contacting a former employee involved at the time of the report(s). It established that there were two previous orders to cut back overgrown trees. However, the officer commented the trees would only have been considered under health & safety. He referred to the Council’s Tree Management Framework stating “the pruning of trees for non-safety issues such as the control of falling leaves”. He advised the Tree Management Framework precluded the pruning of trees for non-safety issues such as controlling the fall of leaves. The officer recalled a consultation with residents was necessary due to the type of work that was being requested.

Lease agreement

The lease agreement states under Clause 4 (xi) that the tenant covenants with the Council “to pay a proportionate part of the cost incurred by the Council in (a) keeping the common areas coloured brown green and yellow on the said plan properly maintained and repaired and (b) carrying out repairs in accordance with Clause 5(1) here of provided that no charge shall be made against the tenant in respect of structural repairs in the first ten years of the term here of…”.
Clause 5(1) states “The Council hereby covenant with the Tenant as follows:- during the said term to keep in good and substantial repair the roof and outside walls and other outside parts of the block and the main Timbers and structure thereof (but excluding the windows and doors) and all the drains and water pipes and sanitary and water apparatus thereof (except those used solely in connexion with the demised premises) (accept as regards damage caused by or resulting from any act or default or negligence of the tenant his servants or licensees)…”.

Policies and procedures

The Repairs Clarification Document (RDC) forms the basis of how the landlord will order repairs and advise its customers, tenants and their representatives. Its purpose is to set out how repairs should be dealt with.
Under the ‘Leaseholders’ section of RDC it states: “leaseholders are responsible for all of their own internal maintenance. However, the external (walls/roof etc), and communal/shared areas (stairwell, roof spaces etc) of the buildings are our responsibility for maintenance. In a complex of four flats each leaseholder would be responsible for 25% of the full cost of external and communal repairs. Leaseholders are charged for these repairs on an annual basis via service charge”.
The Service Protocol sets out the agreement between local authority and the landlord as to how it manages grounds maintenance. Tree services falls under this protocol and sets out that the Council prioritises tree management where there is a risk to public safety.
The Tree Risk Management Framework determines what classifies a tree as causing a risk. Under 4.2 of its guidance it states how it assesses and manages the risk of tress and includes – “Maintain – undertake safety work which can range from minor pruning to full tree removal in line with remedial time scales informed by the severity of risk (see section 6 )”.
Section 6 of the Tree Risk Management Framework sets out how it prioritises work to trees, and classifies the resident’s issues as the lowest risk. It adds provision for completing minor jobs where resources are available.
The Section 20 Consultation document states what the landlord should do when it identifies a need for ‘major works’. It also states the leaseholder will need to enter into a ‘long-term agreement’. The document:
1. Defines ‘major works’ as any work over the value of £250. In such instances, the landlord must carry out a statutory consultation before the work commences.
2. Defines ‘long-term agreement’ as a contract over 12 months in length and that which will cost a leaseholder more than £100.
3. Identifies five types of consultation in particular ‘Major works within a long term agreement’.
4. States the leaseholder will be invoiced separately to the service charge for major works and this will not be sent until the works are completed and signed off.
The landlord’s complaints policy details that formal complaints will be responded to within 10 working days at stage one; and 20 working days at stage two.

Assessment and findings

Response to the resident’s requests to have trees cut back

The resident perceived the leaf fall to have affected the condition of the guttering and believed the landlord should prioritise cutting back the trees. The resident also suggested the trees should be removed altogether because they had been blocking out light. The landlord conducted two separate inspections at the property, both of which determined the guttering needed replacement. The inspections found only ‘light debris’ present in the guttering. There has been no evidence of note presented that suggests the leaf fall is the cause of the damage.
The Council is responsible for cutting back, pruning and inspecting trees because it owns the land. The landlord manages the property and buildings. The Service protocol states the Council has an Arbor team responsible for arboricultural work. It is responsible for approximately half a million trees in the borough which the Council has to manage. It has confirmed that work to these trees is prioritised by the Council to address the most dangerous. The service protocol will consider ‘unforeseen circumstances’ where a tree has become damaged or unsafe due to adverse weather or accidents. Further to this, the protocol does state that trees which are not at risk can be considered and evaluated on an individual basis. The Tree Management Framework does not list issues such as leaf fall causing blockages to guttering/drainage as a priority or risk.
There is no suggestion by either the landlord’s or resident’s comments, nor the landlord’s handling of the request that suggests the trees are a risk. Neither are there any circumstances presented that the council had to consider the trees under ‘unforeseen circumstances’. This is in line with the service protocols and Tree Management framework. The landlord fulfilled its duty by reporting this matter to the council for it to assess the situation and complete any works.
The landlord clearly communicated its position regarding the trees to the resident by information their understanding of the categorisation of risk the trees posed and underlined that responsibility of the work sat with the Council.
The resident confirmed the trees had been cut back on 1 August 2022.

Handling of proposed works to the guttering and downpipe at the block

The lease agreement confirms the landlord is responsible for external works to the block, including guttering and pipework. Under the terms of the agreement the landlord was entitled to make a decision to replace the guttering and downpipes. The PRIP determines the contractors to be used and the amounts they can charge by way of statutory public consultation and cabinet approval.
The inspection determined the condition of the guttering on two occasions and determined that a replacement was needed as opposed to continued repair, which was no longer cost effective to the organisation. The landlord demonstrated it acted reasonably by investigating the issue, identifying the required work and following the s20 consultation process (which will be addressed later in this report).
The landlord communicated in a reasonable and timely manner with the resident in its stage one and two complaint responses, and its response to s20 observations. Furthermore, the landlord demonstrated reasonableness by offering a second inspection, with the resident present. It also took a pragmatic approach to the cost impact on the resident by offering to complete half of the work (the worst affected) and the remainder in the future.
In response to the resident’s concerns about ongoing blockages, the landlord explained the gutter guards that would be installed. This was also a reasonable way of trying to resolve the problems which had been reported, and to allay the resident’s concerns.
The landlord advised the resident that the PRIP determines the costs of a job from a contractor and an equal proportion will be collected from the resident by way of a service charge. In its responses the landlord confirmed to the resident the following:
1. The costs were determined using rates under the existing contract.
2. Clarified it alone was responsible for the external works to the block; one of the reasons why the resident could not use his own contractor.
3. Stated that smaller contractors would not have the insurance cover to carry out the work on its stock; the other reason why the resident could not use his own contractor.
4. The landlord commented to the resident that it had not included the downpipe in the notice of intent and therefore these costs would not be included in the charge to the resident. Later it added that gutter guards were required but this cost would also not be passed on to the resident.
5. Confirmed the cost would be amended in view of its mistake with the downpipe.
6. Advised the resident that payment options would be available when the charge was applied.
The landlord clearly confirmed to the resident the terms of the agreement and its own policies regarding the approach to the works. The landlord demonstrated a pragmatic approach to reducing the costs when it considered part of the guttering could be postponed to a later date and by offering the resident the option of a payment agreement. Furthermore, the landlord, in its stage one and two responses and its letter dated 6 June 2023, reasonably advised the resident that he could not use his own contractor because a contractor had been agreed by consultation under section 20 of the Landlord and Tenant Act 1985.

Use of the Section 20 consultation procedure

The landlord dutifully carried out a section 20 consultation due to the cost of the work and charge to the resident. Terms of the section 20 consultation must allow any affected resident to make written observations, which it did, and stipulates the work must not begin until 30 days has expired, in this case 18 March 2022. The resident said that he was told, prior to the expiry of the notice, that the work would likely commence in April 2022. However, the landlord acknowledged its responsibility to respond to written observations within 21 days, as per the terms of the consultation and did so on 17 March 2022.
The landlord reasonably explained in its stage two response that the work had not begun prior to the expiry of the notice and therefore this did not constitute a premature end of the notice period. The landlord also explained in its complaint responses the impact of the PRIP on the section 20 consultation.
In summary the landlord consistently advised the resident of the correct procedures it must follow in considering the replacement of the guttering and its intention to collect costs from the resident in line with the terms of the leasehold agreement. It also discussed the possibility of a payment agreement in relation to the charges demonstrating a fair approach to the resident’s circumstances. Furthermore, the landlord acted openly in communicating its own error in omitting the downpipe work from the section 20 notice and the gutter guards, following the second inspection. The landlord offered pre-emptive and reasonable redress in advising the resident that these additional costs would not be passed on to him.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration in the landlord’s handling of the resident’s requests to have the trees cut back.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration in the landlord’s handling of proposed works to the guttering and downpipe at the block.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration in the landlord’s use of the section 20 consultation procedure.
In accordance with paragraph 42(e) of the Housing Ombudsman Scheme, the resident’s complaint about the level of the service charge for works to the guttering and downpipe is not within the Ombudsman’s jurisdiction to investigate.