Lambeth Council (202015645)

REPORT

COMPLAINT 202015645

Lambeth Council

19 May 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

1. The complaint is about the landlord’s handling of:
   1. The resident’s concerns regarding the cleaning service in the communal area.
   2. The associated complaint.

Background

2. The resident is a leaseholder of the landlord, in a block of flats. The resident’s property is managed by a tenancy management organisation (TMO) on behalf of the landlord. The landlord is ultimately responsible for the actions of the TMO and the resident retains the same rights as if the property was managed by the landlord.
3. The resident raised a complaint on 4 October 2020 in which she raised concerns regarding the level of cleaning in the block. She outlined that the walls were unclean, rubbish was stored in the corridor by other residents and the block smelled of urine. She was dissatisfied that she paid a service charge for the block maintenance and it was not cleaned to a reasonable standard. She also said the condition of the block was preventing her from selling the property. The TMO responded to her concerns, but did not formally address the complaint.
4. The resident raised a complaint to the landlord on 10 March 2021 regarding the issues previously raised, as she said the TMO had not responded to her correspondence. The complaint was referred back to the TMO and formally considered under its complaints process. In her complaint escalation, the resident raised additional concerns regarding the block not having signed cleaning sheets or any documentation to prove that cleaning was taking place.
5. The TMO issued three complaint responses in which it stated:
   1. It cleaned the block on a daily basis and had completed further cleaning to remove the “embedded dirt and grime”.
   2. During its weekly inspections, it had found no evidence of urine smells, but it had identified graffiti which it would remove.
   3. A new cleaning and grounds maintenance contractor was appointed on 1 September 2021.
   4. It had contacted the resident’s neighbour regarding leaving rubbish outside the property and they had advised it was only left there temporarily. It had sent letters to all residents regarding the issue and had found no rubbish during its inspection, following the letters being issued.
   5. It hoped its actions would enable the resident to sell her property.
6. Following correspondence with this Service, the landlord issued a final response on 15 March 2022. It reiterated that a review of the cleaning service had been completed, which had resulted in appointing a new contractor. It also said that weekly inspections were completed to identify any other issues raised by the resident.
7. In the resident’s complaint to this Service, she said she remained dissatisfied as she disputed that cleaning was completed regularly, it took over a year to change the cleaning contractor, and the issues with cleaning, rubbish and graffiti remained outstanding. She wanted compensation as she had not received the services paid for by the service charge. She also stated the landlord had not followed its complaints policy.

Assessment and findings

Scope of investigation

8. In accordance with paragraph 42(e) of the Scheme, the Ombudsman will not investigate complaints concerning the level of rent or service charge, or the amount of rent or service charge increase. Therefore it is outside of this Service’s remit to consider the level of service charge or determine whether it is reasonable or payable. This investigation is limited to consideration of the landlord’s administration of the service charge and its response to the resident’s enquiries and complaints.
9. It would be difficult for the Ombudsman to establish the level of the cleaning and maintenance service the resident received and therefore how much reimbursement of the service charge would be due. Nonetheless, consideration has been given to any adverse impact on the resident, including time, trouble, inconvenience and distress.

Cleaning

10. In line with the homeowners’ handbook, the landlord is responsible for cleaning and maintaining the communal area, which is paid for by the resident’s service charge. The TMO’s cleaning charter further outlines the responsibilities which include ensuring that the communal areas are cleaned and kept litter free on a daily basis, and that sweeping, mopping and spot cleaning walls, staircases, corridors and lobbies is completed on a weekly basis. In addition, estate inspections should be completed quarterly and a cleaning timetable should be published in every block on the notice board. The landlord therefore must ensure that the cleaning obligations are fulfilled.
11. In its complaint responses, the TMO maintained that daily cleaning was being completed and, following the easement of COVID-19 lockdown restrictions, it had recommenced weekly inspections. It also said it had completed a review of its cleaning service. However, no contemporaneous evidence has been provided to confirm any details that the cleaning or inspections had been completed. Furthermore, in line with the cleaning charter, the TMO was also expected to provide the resident with a cleaning schedule on the notice board in the block. The resident raised concerns that the information had not been made available on several occasions, but no action was taken to resolve the issue.
12. As there is a disagreement in the accounts regarding the standard of cleaning in the communal areas, the onus is on the landlord to provide documentary evidence to confirm the cleaning had been completed to a satisfactory standard. As it failed to do so, the Ombudsman is unable to confirm whether the landlord has fulfilled its obligations relating to the cleaning service, and this amounts to a service failure.
13. In its stage three response, the TMO advised that it had appointed a new cleaning and grounds maintenance contractor following the service review. It is unclear whether this action was completed in response to the resident’s complaint, as it had not explained the reasons for its decision, or accepted that there were any failings in the service delivery by the original contractor. However, it is evident that the resident thought the contractor had been changed due to a failure to provide a satisfactory cleaning service. By not being transparent regarding the reasons for the change in contractor, the TMO failed to address the resident’s concerns in full, which ultimately meant that the resident was dissatisfied with the resolution.
14. In response to the resident’s complaint, the TMO advised the resident that the general redecoration of the communal area was the landlord’s responsibility; however, this was not a concern raised by the resident. If the TMO had determined it was unable to clean to an acceptable standard due to the condition of the decoration, it should have informed the landlord. It is not completely clear why the TMO referred to the communal decorations.
15. When the issue was referred to the landlord, there is no evidence that it inspected the communal area or assessed whether the redecoration works were required. In correspondence with the resident, the TMO cited insufficient funds as the reason the landlord was unable to redecorate the block. Social landlords have limited budgets and are expected to allocate funding appropriately to provide the best service to all residents. This does not remove their requirement to complete necessary repairs, nonetheless. It may have been reasonable for the landlord to decide an imminent repair was not required, but it should have managed the resident’s expectations regarding any planned redecoration or maintenance works.
16. The resident also raised concerns regarding rubbish left by other residents in the communal areas. The TMO initially responded appropriately as it said it would take further action if the resident could provide details of the perpetrators. The TMO subsequently contacted the neighbour regarding the rubbish, and advised the resident the rubbish was only left temporarily, and not overnight. The homeowners’ handbook outlines that residents are responsible for keeping communal areas clear. It is unclear from the evidence provided whether it took this opportunity to reiterate this to the neighbour, to prevent any future occurrences.
17. The TMO also stated that it had sent letters in March and September 2020 regarding fly-tipping and it would send further letters to remind residents of their obligations. The was a reasonable step to take.
18. The resident reported graffiti on 27 April 2021. The homeowners’ handbook states that the landlord will “remove [graffiti] where possible, particularly if it is obscene or racist”. As a result, the TMO should inspect and remove graffiti within a reasonable timeframe. However, the TMO did not acknowledge her concerns until the stage two response on 17 June 2021, in which it stated it would identify any issues with graffiti, thus indicating that no tangible action had been taken prior to that stage to resolve the issue. In its stage three response on 22 September 2021, the TMO stated it had identified graffiti and would arrange to remove it. While this was an appropriate action, it was unreasonable that it took five months to arrange the required works.
19. In her complaint to this Service, the resident stated that the graffiti issues remained outstanding. As the landlord has not provided repair records to confirm that the graffiti was removed following the stage three response, it is unclear whether the TMO failed to remove the graffiti or whether there has been a recurrence of the issue. Regardless, the landlord should contact the resident to discuss her concerns regarding the graffiti and complete further repairs if required.
20. An overarching concern in the resident’s complaint was that she was dissatisfied with paying a service charge for cleaning, despite the service not being fulfilled. For clarity, as previously referenced, the Ombudsman cannot assess whether the level of service charge was reasonable, but consideration will be given to whether the landlord’s response to the resident’s concerns about the service charge was reasonable or not.
21. The homeowners’ handbook outlines that the landlord is responsible for ensuring the service charges are reasonable and for explaining how they are calculated. As a result, the TMO should have provided clear evidence to the resident to confirm that the cleaning service was being completed to the agreed standards to demonstrate that the service charge was reasonable, or have considered whether a partial service charge refund was warranted. However, the TMO failed to meaningfully engage with the resident’s concerns, and the only time it addressed the issue was when it advised she should continue to pay service charges to avoid any legal action.  
22. The landlord’s compensation policy states that it may offer a refund if the resident “has paid for a poor service, unreasonably delayed service or a service that has not been provided”, specifically noting that if the standard of cleaning was below a reasonable standard the service charge can be refunded. In light of this element of the policy, the landlord should have considered whether a partial refund was due.
23. In relation to the resident’s concerns regarding the difficulty selling the property, there were limited actions the TMO could take. However, as she was concerned that the level of cleaning was impacting the ability to sell the property, which fell under the TMO’s remit of responsibility, it should have ensured the service was being completed to a satisfactory standard. Due to the issues already outlined in this investigation, it is unclear whether it took sufficient action.
24. Overall, the landlord has not demonstrated that it has fulfilled its obligations to clean the communal area, due to the lack of sufficient evidence provided. It also failed to properly address the resident’s concerns regarding the service charge. As a result, compensation is warranted for the distress, inconvenience, time and trouble caused to the resident due to the landlord’s handling of her concerns. In line with this Service’s remedies guidance, compensation of £250 is appropriate in this case, due to the landlord’s failure to acknowledge its failings, recognise the detriment to the resident or make a proportionate offer of redress.

Complaint handling

25. In accordance with the TMO’s complaint handling process, it should respond to stage one and two complaints within 15 working days. If the resident remains dissatisfied, they can refer the complaint to the landlord to independently investigate and a final response will be issued within 20 working days. In this case, the policy was not correctly followed. The resident initially raised her complaint in October 2020 and the final response was issued in March 2022. As a result, the issue was ongoing for a prolonged period of time, and the resident spent significant time and effort pursuing the complaint.
26. Over the course of the complaint process, four complaint responses were issued, with the complaint correspondence as follows:
    1. The resident initially raised a complaint on 4 October 2020, which although the TMO addressed her concerns, it did not handle it as a complaint, thus causing delays in progressing the complaint.
    2. The resident then referred the complaint to the landlord on 10 March 2021 as the TMO failed to handle the complaint in line with its policy. The landlord referred the complaint back to the TMO, which was reasonable and in line with the complaint process. However, it would have been helpful for the landlord to have informed the resident of its reasons for doing so, in order to manage her expectations and prevent any confusion regarding the process. The TMO then issued a response in line with its response timeframes.
    3. The resident escalated her complaint on 1 April 2021 and the TMO failed to issue its stage two response until 17 June 2021, exceeding the response timeframe by 37 working days, which was an unreasonable delay.
    4. The resident asked how to progress the complaint on 17 June 2021, but there is no evidence the TMO responded, thus further delaying the completion of the complaints process.
    5. The resident chased the complaint on 6 September 2021 and the TMO issued a stage three response on 22 September 2021. This was not in line with the complaints process, as the complaint should have been referred to the landlord.
    6. The resident contacted this Service on 14 October 2021 and following correspondence with the landlord, it acknowledged the complaint on 8 February 2022. The landlord issued its final response on 15 March 2022.
27. This Service’s complaint handling code (published on the Housing Ombudsman Service website) states that “the person considering the complaint at stage two, must not be the same person that considered the complaint at stage one”. It was therefore inappropriate that the same staff member issued all the complaint responses from the TMO, particularly as the resident had raised such concerns on several occasions, with no action being taken to rectify the issue. The Ombudsman encourages landlords to ensure that stage two investigations are conducted by someone who has no prior knowledge of the complaint, as it helps ensure impartiality and bring a wider perspective to the issues being considered, which can prevent elements of the complaint being overlooked.
28. When the complaint was escalated to the landlord, the final response was based on the information provided by the staff member that handled all the previous stages of the complaint. There is no evidence to suggest that the landlord completed any further investigation by requesting evidence such as cleaning records, communication records and the service review. Again, this is problematic as there was a missed opportunity for a thorough, independent review, which may have helped to resolve the complaint.
29. Due to the numerous, compounding failings, the complaint took a significant amount of time to complete the complaints process, as it failed to follow the procedure and there were lengthy delays in identifying and responding to the various complaint stages. There is also clear evidence that the complaint process necessitated excessive involvement from the resident in order to progress the complaint, as she had to pursue responses at every stage and request information regarding the process due to the poor communication. This resulted in substantial time and effort required from the resident to progress the complaint. Furthermore, the complaint lacked thorough and independent investigation and failed to fully address all aspects of the complaint raised by the resident. As a result, there was maladministration in the handling of the complaint, for which this Service believes compensation is warranted.

Determination

30. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in the way it handled:
    1. The resident’s concerns regarding the cleaning service in the communal area.
    2. The associated complaint.

Orders and recommendations

Orders

31. The landlord is ordered to pay the resident:
    1. £250 due to its failings in handling the resident’s concerns regarding the communal cleaning.
    2. £200 for its complaint handling failures.
32. The landlord must provide evidence that it has complied with the orders to this Service within four weeks of the date of this report.

Recommendations

33. The landlord should inspect the communal areas and assess whether redecoration is required and share its findings with the resident.
34. The landlord should consider whether a partial refund for the service charge is appropriate due to the cleaning service provided.
35. It is recommended that the landlord reviews the TMO’s complaints process, to ensure it is in line with this Service’s complaint handling code.
36. It is recommended that the landlord reviews its record keeping practices to ensure it maintains sufficient records regarding the communal cleaning and maintenance services.