Aster Group Limited (202216842)

REPORT

COMPLAINT 202216842

Aster Group Limited

6 December 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:
1. The landlord’s introduction of a service charge for the maintenance of a fall arrest system on the roof of the resident’s property.
2. The landlord’s handling of maintenance to the ‘living roof’ at the resident’s property.
3. The landlord’s handling of requests for repairs to the ‘living roof’.

Background

The resident has an assured tenancy with the landlord for a 2 bed house. Her tenancy commenced in 2012. The property is in a coastal location and has a ‘living roof’ which is comprised of vegetation and a growing medium planted over a waterproof membrane.
The resident’s tenancy agreement requires her to pay a service charge. The service charge can be varied after consultation with the tenant.
In August 2021, the landlord sent a service charge statement for 2020 to 2021 to the resident which introduced a new charge for maintaining a wire installed on the roof of the resident’s property. This wire is part of a fall arrest system which is designed to allow operatives to maintain and repair the living roof while working at height. The resident contacted the landlord to ask why she had been charged for maintaining the wire when she had not been charged previously.
In September 2021, after the resident chased the landlord for a response, the landlord told the resident that it was essential to maintain the wire but that it acknowledged no consultation was carried out prior to the introduction of the service charge. It agreed to cap the charge at £100 per year.
On 21 February 2022, the resident told the landlord that part of the roof had been damaged in a storm and that she was concerned that loose parts would blow off in high winds. The resident contacted the landlord on 22 February 2022 to get an update on repairs, explaining that the damage had got worse and loose parts of the roof were now making a lot of noise by flapping in the high winds, and expressing frustration that the target for carrying out repairs within 20 days seemed like a long time to leave a repair of this nature. An external contractor was appointed on the following day by the landlord to repair the roof.
The landlord made several attempts to contact the contractor between February to May 2022 to discuss the progress of repairs. The Ombudsman has not been provided with evidence that the contractor responded to the landlord.
On 30 March 2022, the resident expressed frustration to the landlord about the introduction of the service charge for the wire. She explained to the landlord that she believed the wire was part of the structure and exterior of her property, that her tenancy agreement stated the landlord had an obligation to keep the structure and exterior of her property in good repair, that it was not fair to be charged for maintenance as it was the landlord’s responsibility to keep it in repair, and that she had not been charged for maintaining the wire at any point until the service charge was introduced in 2021.
On 7 April 2022, the landlord told the resident it did have a responsibility to maintain the wire but it could pass on the reasonable costs incurred by this to the resident, although as no consultation had taken place about the introduction of the charge it would be capped at £100 per year for the time being.
On 13 April 2022, the resident warned the landlord that she intended on approaching this Service regarding the service charge as she believed the wire was part of the roof, structure and exterior of her property and that she should not be held responsible for paying a charge for maintenance. The landlord responded by accepting a formal complaint from the resident and let the resident know of its approach on 21 April 2022.
The landlord provided a stage 1 response to the resident’s complaint on 6 May 2022. It agreed that there had been failings in the introduction of the service charge and informed the resident that the charge would be capped at £100 per year until a new contractor was sourced in 2027/2028 with no backdated charges. It stated that the wire did not form part of the roof but that it was a separate system required to gain safe access for repairs and maintenance, and that the system required checking and testing every 12 months in accordance with health and safety legislation. It did not believe that maintenance of the wire fell under the landlord’s obligation to keep the structure and exterior of the property in good repair and insisted that the maintenance charge was recoverable from the resident. A revised service charge statement was sent to the resident a few days later.
On 27 June 2022, the resident chased the landlord for an update on repairs to the roof. She explained that the condition of the roof had got much worse over time and she now believed it was a health and safety issue. Photos of the condition of the roof were sent to the landlord to show the extent of the issue.
On 8 July 2022, the resident requested escalation of her complaint. The landlord accepted and acknowledged the request, asking for reasons why she was not happy with the stage 1 response and for clarification on what outcome she wanted.
On 13 July 2022, the resident asked for escalation of the complaint again and explained that she was not happy as she believed the wire was part of the living roof, it was clear roofs of this type required regular maintenance, and the system was installed at the same time as the living roof. She reiterated that no maintenance had been done on the roof since the properties were built around 10 years ago and the roof continued to be in a poor condition with no repairs done since at least February 2022. She explained to the landlord that she wanted the repairs completed and the service charge removed. The landlord acknowledged the request for escalation on 19 July 2022 and told the resident that a stage 2 response would be provided by 10 August 2022.
On 22 July 2022, the landlord arranged an inspection of the roof with a different contractor for 28 July 2022 and made the resident aware of this.
On 10 August 2022, the landlord asked the resident for an extension to the deadline for its stage 2 response and promised to respond by 24 August 2022. The landlord eventually sent the stage 2 response to the resident on 5 September 2022. In the response, the landlord stated that it did not agree that the fall arrest system formed part of the roof and that it believed it could recharge the resident for maintenance of the system. However, it agreed to cap the service charge at £100 per year until the end of the current maintenance contract in 2027-2028. It did not address the resident’s complaint about a lack of maintenance to the living roof, but it did state that repairs were underway and asked the resident to discuss the progress of works with the landlord’s principal surveyor.
On 1 November 2022, the resident contacted this Service to request an investigation into the final complaint response. She explained that she was not happy with the outcome of the stage 2 response as she wanted the service charge removed entirely. She also explained that no maintenance had been done to the living roof for the last 10 years, and no repairs had been carried out to the roof despite storm damage in February 2022 and the landlord promising to carry out repairs.
On 9 and 10 November 2022, the landlord noted in internal correspondence that the roof was failing ‘badly’ and that it believed the original installer of the living roof should have been maintaining the roof. It also noted that the landlord had an obligation to provide general maintenance to the living roof and that the roof was not covered by the original warranty if it had not been maintained.
There are no records of further action until 4 July 2023, when the landlord obtained legal advice. The advice stated that it should not be charging the resident for maintenance of the wire as it formed part of the main structure of the building and was therefore covered by the landlord’s general repairing obligations under section 11 of Landlord and Tenant Act 1985. Internal landlord correspondence on 7 July 2023 stated it was going to remove the service charge and write to the resident to let her know about this decision.
On 10 July 2023, the landlord’s surveyor noted the following in internal correspondence:
1. The resident’s property was built fairly recently in a very exposed coastal location in a development where all properties have living roofs.
2. All residents in the development had reported issues with the living roofs and the defects have been passed around various departments with no resolution reached.
3. Guidance and instructions from the roof’s operational manual, particularly the need for annual inspection and maintenance of the wire as well as the steps required to maintain the roof, had not been shared internally.
4. There was poor knowledge within the organisation on living roof construction and maintenance.
5. The roof had failed due to a lack of maintenance and poor design. Steps had been taken to address this and a new contractor found to effectively re-install the roof, but the next available date to plant and establish a living roof was in September 2023 due to poor weather conditions.
6. Routine maintenance to the roof should have been carried out every 6 months and that specialist training and equipment was needed to do this effectively.
On 14 July 2023, the landlord agreed to replace the roof in the current financial year.
On 2 November 2023, the landlord confirmed to this Service that the roof had not been replaced in September 2023 on the advice of the contractor. The contractor had informed the landlord that installing a new living roof on a pitched roof on an exposed location with high winds and inclement weather would result in it blowing off, stressing that going ahead with the installation in September ‘could prove to be a nightmare scenario’. A new installation date in February 2024 had been proposed and the resident had been updated about this. Steps had also been taken to weigh down the sections of the roof which were flapping in the wind.
On 20 November 2023, the resident told this Service that she had not had any formal correspondence with the landlord about the service charge being removed and refunded.

Assessment and findings

Introduction of the service charge for maintenance of the fall arrest system on the roof of the resident’s property

Evidence provided by the landlord shows that the service charge was introduced with no warning or statutory consultation. The resident only became aware of the new charge when she received the service charge statement for 2020 to 2021. As no explanation or warning was provided to the resident prior to the introduction of the service charge and no explanation of the charge was contained in the statement itself, the resident had no choice but to chase the landlord for the reasons behind the charge. This would have been an unpleasant surprise for the resident and distressing and time consuming to address.
The resident made it clear to the landlord on several occasions that she believed it had the overall responsibility to maintain the fall arrest system as it formed part of the structure and exterior of her property, and that she could not be charged for this. The landlord considered this point before and during the complaints process, but it failed to obtain specialist legal advice on whether the cost of maintenance could be recharged to the resident until after the complaint was referred to this Service. The landlord’s response to this point was unhelpful throughout the complaints process, merely stating that it cannot agree with the resident regarding the service charge and failing to give a detailed explanation of why it believed it could recharge the resident for maintenance of the fall arrest system. This was a failure of the landlord to identify a legal issue in good time, obtain appropriate legal advice, and a missed opportunity to put things right using its complaints procedure.
The landlord did not adequately consider the resident’s argument about the fall arrest system being part of the structure of the property, and therefore falling under the landlord’s obligation to keep it in repair as per section 11 Landlord and Tenant Act 1985, during the complaints process. In its stage 1 and stage 2 responses, the landlord simply stated that it did not agree that the fall arrest system formed part of the roof and failed to consider whether the system formed part of the structure and exterior of the property. It is the Ombudsman’s opinion that this dispute could have been resolved at an earlier stage if the landlord had fully considered whether the fall arrest system was part of the structure of the property. The landlord’s failure to consider whether it was liable for the cost of maintaining the fall arrest system would have been distressing for the resident, contributing to a breakdown in the relationship between both parties.
Although the landlord has since obtained legal advice and has agreed that it cannot charge the resident for maintenance of the fall arrest system, it has not acted on this or given the resident a realistic timescale for when the charge will be removed and refunded. This is a failure to apply the Ombudsman’s dispute resolution principles to be fair, put things right, and learn from mistakes.
Due to the service charge being introduced without warning and leaving the resident to chase for an explanation, the landlord’s failure to adequately consider whether it could recharge the resident, and the landlord’s failure to put things right after getting legal advice, this Service has found maladministration and ordered the landlord to take steps to address the issues identified in this report.

Handling of maintenance to the living roof

Based on the evidence provided, it appears that the living roof was not maintained prior to the introduction of the service charge for the fall arrest system. The landlord’s repairs and maintenance log shows annual maintenance checks to the fall arrest system were carried out from 2021, but there are no records for any maintenance checks before this. No evidence has been provided that the roof has had any maintenance at all, other than spot repairs. As the landlord has insisted that maintenance of the fall arrest system is critical to comply with health and safety legislation, the landlord would not have been able to carry out any maintenance to the roof while the fall arrest system remained unchecked as this would have put its contractors or operatives at risk. Internal correspondence on 9 and 10 November 2022 which noted the failure of the roof and that it believed the original contractor should have been carrying out maintenance also indicates that no maintenance had been carried out.
The fact that the service charge for the fall arrest system was introduced a considerable amount of time after the property was built indicates that the landlord became aware of the lack of maintenance on the living roof around 2021, as maintaining the fall arrest system would have been an essential aspect of maintaining the roof as a whole. Although it is positive that the issue with maintaining the fall arrest system was identified and addressed, this did not lead to any maintenance of the living roof itself. This is a failure of the landlord to take adequate steps to put things right after it identified issues with maintenance.
The landlord has acknowledged that living roofs require regular maintenance to become established and resilient, and that inadequate maintenance to the resident’s roof has led it to fail. This has been compounded by design issues and the fact that the property is in an exposed coastal location which frequently experiences high winds. It has also identified that it has a poor understanding of the construction and requirements of living roofs and that this must be addressed when a fresh living roof is installed. It is positive that the landlord has accepted that a lack of maintenance and understanding of living roofs are significant contributing factors to the issues found within this investigation, and that it has agreed to reinstall the living roof to ‘start again’, but it must take robust steps to ensure it learns from its mistakes in this case and that the same issues do not arise with the new living roof.
Due to the failure of the landlord to provide routine maintenance to the living roof, this Service has found maladministration and ordered the landlord to address these points.

Handling of request for repairs to the living roof

The landlord’s repairs policy states the following:
1. Emergency repairs are where there is a risk of harm to the health, safety or security of a resident or another affected party. Repairs should be completed within 24 hours, or the issue at least made safe within this period.
2. Urgent repairs are less severe than emergency repairs but still require attention as further issues could arise if not dealt with promptly. Repairs should be completed within 5 working days.
3. Routine repairs are where there is no serious discomfort, inconvenience or nuisance caused to a resident or affected third party by the need for repairs. Repairs should be completed within 20 working days.
The resident reported that the roof was damaged and needed repairing on 21 February 2022. Evidence from the landlord indicates that this was recorded as a routine repair. It is this Service’s opinion that the repair should have been categorised as an urgent repair as it would have been clear that further issues would arise if the living roof was not repaired promptly.
There is evidence that the landlord appointed a contractor to carry out repairs promptly and that it contacted the contractor on a regular basis to chase the progress of repairs, although there no evidence that the contractor responded to the landlord’s requests for updates until much later. Evidence shows that little was done to make sure that repairs were completed within the timescales set in the landlord’s repairs policy or within a reasonable period of time as per its legal obligations under section 11 Landlord and Tenant Act 1985. It is positive that an alternative contractor was eventually appointed after a lack of response from the original contractor, but this should have been done at a much earlier stage to fulfil the landlord’s legal obligation to carry out repairs in a timely manner. The landlord must be mindful that it is ultimately responsible for these kinds of repairs, that repairs must carried out within a reasonable period of time to fulfil its legal obligations, and that it can still be found at fault if there are delays with a contractor.
It is concerning that the resident had to chase the landlord on several occasions for an update on the progress of repairs, and that the landlord did not consider upgrading the repair to ‘emergency’ after the resident told the landlord on 27 June 2022 that the disrepair now may pose a risk to health and safety. Although there is evidence that the landlord attended promptly after this, there is no evidence that spot repairs to make the roof safe were done despite the job being marked ‘complete’ in the repairs log. Subsequent entries in the repairs log and in the landlord’s correspondence show that temporary repairs were completed at a later date.
The landlord’s repair records show that there was considerable confusion on the best way to approach repairs to the living roof and that a lack of internal expertise and knowledge contributed to avoidable delays in this case. Delays in appointing specialist contractors who were willing to do the necessary works, as well as a lack of appreciation that effective repairs to living roofs can only be undertaken at specific times of year to give a chance for planted vegetation to establish itself and become resilient to adverse weather, have also contributed to avoidable delays to repairs to the resident’s roof.
For these reasons, this Service has found maladministration in the landlord’s handling of repairs to the living roof and made an order for compensation to address the delays to repairs, as well as the distress and inconvenience caused to the resident and the time involved in chasing repairs.

Review of policies and procedures

The Ombudsman has seen evidence that other properties within the resident’s estate which also have living roofs have similar issues to those brought to the attention of this Service. For this reason, we have issued a wider order under paragraph 54(f) of the Scheme for the landlord to review its policies and practices in connection to the issues which this Service has highlighted in our report. We have set out the scope of the review in paragraphs 42 to 46 of this report.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was:
1. Maladministration in the landlord’s introduction of the service charge for maintenance of the fall arrest system.
2. Maladministration in its maintenance of the resident’s living roof.
3. Maladministration in its handling of requests for repairs to the resident’s living roof.

Orders and recommendations

Orders

Within 4 weeks of the date of this report, the landlord must:
1. Provide a written apology from a head of service to the resident for the failings identified in this report. A copy of this apology should be provided to this Service.
2. Review the legal advice it has obtained regarding the service charge for the fall arrest system and act on the recommendations of the solicitor.
3. Arrange a clear timescale for refunding the resident for any service charge paid relating to maintenance of the fall arrest system on the roof of the resident’s property. This Service must be provided with confirmation of the refund.
4. Provide the resident with written confirmation of its previous commitment to replace the living roof, including the provisional date for when works will be carried out, and what steps it will take if there are further delays. A copy of this letter must be shared with this Service.
5. Pay the resident £1,270 comprising of:
  1. £820 for inconvenience and distress caused by the landlord’s handling of repairs. This calculation is based on an award of £10 per week from the date that the landlord was informed of the need for repairs until the date that the landlord confirmed that temporary repairs had been carried out.
  2. £150 for the time and trouble caused to the resident by poor handling of the implementation of the service charge.
  3. £300 for inconvenience and distress caused to the resident by failing to maintain the living roof.
In accordance with paragraph 54(f) of the Scheme, within 12 weeks of the date of this report, the landlord must carry out a review of its practice in relation to maintenance and repairs of living roofs within its housing stock. The review should be conducted by a team independent of the service area responsible for the failings identified by this investigation, and use the experience and knowledge the landlord has gained over the last 10 years as well as its property records. The review should cover, as a minimum, the following:
1. an exploration of why the failings identified in this investigation occurred;
2. a review of staff training to ensure that relevant staff are aware of living roofs within its housing stock and are able to respond to requests for repairs appropriately;
3. identification of all other residents who may have been affected by similar issues but who have not necessarily engaged with the landlord’s complaints procedure. This Service has seen evidence that other properties located within the resident’s estate have experienced similar issues with their living roofs as has been identified in this investigation, so any review must consider the properties in this estate;
4. identify all properties with living roofs in its housing stock and ensure that appropriate maintenance has been arranged;
5. the availability of specialist contractors for maintenance and repairs for living roofs, identifying any gaps in service coverage and creating an action plan to address any gaps in service provision;
6. pay close attention to the location of properties with living roofs and how they are affected by weather as well as any other relevant factors identified by the landlord. This will help the landlord to plan for routine maintenance of living roofs, and assist in any assessments of the viability of any current living roofs and whether they may benefit from being replaced with conventional roofing.
Within 16 weeks of the date of this report, the landlord must, following the review, produce a report setting out:
1. the findings and learnings from the review;
2. recommendations on how it intends to prevent similar failings from occurring in the future;
3. the number of other residents who have experienced similar issues and what steps the landlord is taking to put things right;
4. the steps it proposes to take to put things right at the earliest opportunity for residents who have been by similar issues to those identified in this investigation. This should include consideration of proportionate compensation payable to residents affected by the landlord’s failings;
5. a policy for the repairs and maintenance of living roofs.
The landlord should embed the recommendations in its report within its wider transformation programme, to inform practice in other areas of service delivery, where relevant, with appropriate oversight.
The landlord should provide a copy of the final report to its governing body and member responsible for complaints, if appointed, for scrutiny. The governing body should agree how it will provide oversight of the implementation of any recommendations made following the review. The landlord must also provide a copy of the report to the Ombudsman.
The landlord should commit to revisiting the issues 6 months after the report has been finalised to check whether changes in practice have been embedded.