Clarion Housing Association Limited (202314636)

REPORT

COMPLAINT 202314636

Clarion Housing Association Limited

27 February 2024

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 handling of:
1. a communal bin shed not being secure.
2. reports about fly-tipping.
3. the resident’s enquiries about service charges.
4. the complaint.

Background

The resident has a tenancy with the landlord which began on 6 April 2009. The landlord is a housing association. The property is a 2-bedroom ground-floor flat. Whilst the landlord said it has vulnerabilities recorded for the resident it did not specify what these were.
On 13 February 2023, the resident made a complaint to the landlord via her local MP in which she said:
1. She had received the landlord’s 2023 rent review and it had included new service charges that did not apply to her property.
2. She disagreed with the service charge for “estate caretaking”. The resident explained that the building was on a residential road and not on an estate.
3. There was a “gross overcharge” for “fire protection costs” and the property did not have extinguishers, sprinkler systems or automatic vent opening systems.
4. The communal bin shed cupboard was unlocked and unsecured. The resident explained that non-residents were also putting refuse in the bin.
5. The landlord had never listed the TV aerial servicing contract on a rent review in 14 years and nobody had ever serviced the aerial.
6. There was a previous agreement from the landlord in 2022 regarding an overcharge for pest control services. The resident said the landlord had removed the charge from the rent review, but she had not received a refund for the overcharge.
On 5 April 2023, the landlord provided a response to the resident’s local MP in which it explained:
1. The charge for “estate caretaking” covered caretaking services. The landlord explained that on some sites it had caretakers providing both internal and external services to ensure that the property and wider estate were maintained to a good standard. The charge included costs such as vehicle hire, cleaning materials, a proportion of the caretaker’s staff costs, estate services management costs and equipment.
2. The resident’s property was a ‘stand-alone’ block and had its own charges and these charges were not related to the costs for any other part of the road.
3. The “fire protection” service charges were related to the annual servicing and repair maintenance of 5 smoke alarms (1 annual service), 10 emergency lighting systems (4 quarterly services) and 3 automatic opening vent systems (4 quarterly services). The landlord said it had inspected the systems and completed any identified repairs.
4. It would install a lock to the communal bin shed but it was unable to prove or disprove issues regarding fly tipping.
5. The resident’s property had always had a servicing contract in place for the communal aerial and the service would remain in place. The landlord explained that it had included the costs on previous statements, however they had been listed under a different section of the breakdown. The landlord said it had amended the 2023 rent review to provide a clearer understanding of charges.
6. It had removed the overcharge for the pest control charges and credited the resident’s rent account.
On 13 April 2023, the resident raised a further complaint to the landlord in which she said:
1. She wanted the accounts and invoices for the landlord’s contract for the communal TV aerial.
2. The service charges for caretaking were not reasonably incurred as the caretaker cleaned the bins and communal stairs but did not do any outside maintenance, which was a separate charge under grounds maintenance.
3. She wanted copies of accounts relating to the servicing of costs of the lights and smoke alarms. The resident said that there was 1 opening vent on the top floor not 3. The resident said the service charge was “extortionate” for servicing the fire alarms.
4. She had witnessed fly tipping and non-residents disposing of bulk items into the communal bin shed. The resident provided the landlord with details of a person she saw fly-tipping and gave the address of where they lived. The resident said a neighbour also witnessed the fly-tipping.
5. She wanted a self-closing metal door with a fob installed to secure the bin shed.
On 19 May 2023, the landlord provided its stage 1 response in which it said:
1. It should not have separated the caretaking charges into “block” and “estate caretaking” and the total charge was for “block caretaking” only. The landlord gave an overview of the caretaker’s weekly and monthly cleaning duties.
2. It had only charged the resident for 1 automatic smoke actuator and not 3. The landlord apologised for providing incorrect information about the number of vents in the building. The landlord provided the resident with a spreadsheet detailing the costs and assets installed.
3. It was unable to confirm if non-residents had left refuse in the communal bin shed. The landlord said it had not received any reports from residents about fly-tipping and it would need more information to be able to investigate the issue. The landlord said it would assess whether it could install a further lock to the bin shed.
4. It had noted that the bin shed door was broken and it had raised a repair for an operative to attend and investigate the door. The landlord said it had scheduled an appointment for 16 June 2023.
5. It had offered £50 compensation to the resident for providing incorrect information about the opening vents and a further £50 for delays in responding to the resident’s complaint.
On 22 May 2023, the resident requested the landlord to escalate her complaint. In her escalation request, the resident said:
1. She had received a spreadsheet which showed a £558 charge for repairing/replacing an emergency light. The resident said she had no recollection of the issue and said the landlord had incorrectly charged her for the repair and added it to the “fire protection” service charges for 2023. The resident said she was not a leaseholder, and her tenancy agreement said the landlord was responsible for shared parts.
2. The landlord had moved the “estate caretaking” charge under a different name, rather than removing the charge. The resident said the landlord had exaggerated the caretaker’s duties and she was unhappy with the level of work undertaken for the level of service charge.
3. The bin shed door was broken beyond repair. The resident again asked for the landlord to install a metal door with a key fob.
4. The landlord should remove the service charge for refuse collection due to people fly-tipping. The resident said she had provided details of the person fly-tipping and also provided photographs.
5. She wanted all information regarding the billing of service charges, including invoices.
On 18 July 2023, the landlord provided its stage 2 response in which it explained:
1. The resident is on a fixed service charge agreement.
2. The faulty emergency light was related to fire safety equipment. The landlord said it was its responsibility to instruct a contractor to carry out repairs and that this was rechargeable to residents.
3. It had incorrectly assigned a service charge in the description of “estate caretaking”. The landlord said the total charge of £5.93 per week (£2.90 “block caretaking” and £3.03 “estate caretaking”) should have fallen under the description of “block caretaking”.
4. The refuse service charge was for the cost of removing large objects dumped or disposed of around the estate and/or block when the landlord was unable to identify and prove who was responsible for leaving it there.
5. The bin shed doors would not be replaced with metal bin store doors as the doors were fixable and serviceable. The landlord said the last report of issues was in 2018, which the landlord said did not suggest a reoccurring fault.
6. On 11 May 2023, it replaced the bin shed lock and provided all residents with a key. The landlord said it scheduled follow-up works on 16 June 2023, to replace the wooden doors, not including the frame. The landlord said it had placed the wooden doors on order, and it had scheduled for the doors to be replaced on 25 July 2023.
7. The recorded time remained the same for the caretaker duties, regardless of whether the external works were recorded separately or included with the internal activities, for charging purposes. The landlord provided a spreadsheet of visits and activities carried out by the caretaker. It also provided a copy of inspections to ensure caretaking services were of an acceptable standard. The landlord also offered the resident a joint inspection of the building to discuss any cleaning issues.
8. It had offered a further £50 compensation to the resident for the delay in responding to her complaint.
In referring the complaint to the Ombudsman, the resident said she wanted an independent review into whether she should be liable for paying service charges for the cost of communal repairs and charges related to fly-tipping.

Assessment and findings

Jurisdiction

Paragraph 42(d) of the Housing Ombudsman Scheme (the Scheme) states:
“42. The Ombudsman may not consider complaints which, in the Ombudsman’s opinion: d. concern the level of rent or service charge or the amount of the rent or service charge increase.”
In the resident’s complaint dated 13 February 2023, she said there was a “gross overcharge” for service charges relating to “fire protection”. She also raised concerns regarding service charges for a communal TV aerial and concerns regarding the level of service charge in relation to refuse collection, which she said was due to fly tipping from “non-residents” in the area. While this service could potentially look at whether a service charge had been calculated correctly, we would not then be able to carry out an investigation into the level of service charge increase, which is a factor that runs through part of the resident’s complaint.
We can assess whether the landlord followed proper procedure, followed good practice, and responded reasonably to the concerns the resident raised, taking account of all the circumstances of the case, which this assessment goes on to do.
In addition, the resident said that there was a previous agreement from the landlord in 2022 regarding an overcharge for pest control services. The resident said the landlord had removed the charge from the rent review, but it had not sent a letter explaining the overcharge error and she had not received a refund for the overcharge. The resident also raised a complaint about the service charges for caretaking, which she said, “were not reasonably incurred”.
Paragraph 42(l) of the Scheme states:
“42. The Ombudsman may not consider complaints which, in the Ombudsman’s opinion: (l) seek to raise again matters which the Housing Ombudsman or any other Ombudsman has already decided upon.”
On 2 September 2021, the landlord issued a stage 2 response to the resident’s complaint concerning service charge amounts for communal items such as cleaning, electricity, and pest control. On 8 December 2021, the Ombudsman determined that in accordance with the then paragraph 39(g) of the Housing Ombudsman Scheme (2020), the complaint did not fall within its jurisdiction to investigate because it concerned the level of service charges.
Insofar as the complaint the resident is now asking the Ombudsman to consider concerns issues about the landlord’s service charges for the same issue, this element of the resident’s complaint is outside the jurisdiction of the Housing Ombudsman and is not one we can investigate. This is because the Ombudsman has already decided this was not a complaint we would investigate on 8 December 2021.
Further, the resident’s complaints dated 13 February and 13 April 2023 concerned the level of service charge increase for caretaking services. As detailed above, it is not within the Ombudsman’s remit to decide on matters such as the level of service charges, including if service charges are value for money.

Scope of the investigation

In the interest of fairness, the scope of this investigation is therefore limited to the issues raised during the resident’s complaint made on 13 February 2023 which completed the landlord’s internal complaints procedure on 18 July 2023. The Ombudsman has referenced events that pre and post-date this period for contextual reasons.

The landlord’s handling of reports about the resident’s communal bin shed not being secure

Clause 3.1 of the resident’s tenancy agreement states that the landlord is responsible for: “3.1 shared parts of the building which the property is part of”. Clause 3.2 states that the landlord is responsible for: “3.2 keeping in good working order the systems for…getting rid of rubbish”. The landlord’s repairs policy states that it will complete communal repairs within 28 days.
The resident reported issues with the communal bin shed on 13 February 2023. The evidence shows that the resident contacted the landlord several times about the security of the bin shed and raised concerns that this was allowing non-residents to fly tip in the area. On 5 April 2023, the landlord agreed to install a lock to the communal bin shed. However, it did not provide a date for when it would complete the work. The landlord said it installed an FB2 lock to the bin shed on 1 June 2023.
However, the landlord’s stage 2 response said that an operative attended on 11 May 2023, replaced the lock and provided all residents with a key. The landlord said it scheduled follow-up works on 16 June 2023 to replace the wooden doors, not including the frame. The wooden doors were on order and were scheduled to be replaced on 25 July 2023.
There was a delay of almost 4 months in the landlord replacing the lock on the communal bin shed. This was in excess of the landlord’s repairs policy for the completion of communal repairs. There was also a further delay in the landlord replacing the bin shed doors. The landlord failed to appropriately acknowledge the delay in its complaint responses or explain a reason for the delay in installing a lock and carrying out repairs to the doors.
While the landlord acknowledged the resident’s concerns about the security of the bin shed and agreed to install a lock, there were delays in the landlord completing the works and subsequent delays in replacing the bin shed doors. This, together with the lack of updates from the landlord, would have likely caused inconvenience to the resident. The Ombudsman has therefore found a service failure in the landlord’s handling of reports about the communal bin shed.

The landlord’s handling of reports about fly–tipping

As previously stated, the Ombudsman is unable to decide on whether the level of service charge for refuse services was reasonable. However, the Ombudsman can consider the landlord’s response to the resident’s reports about fly-tipping.
The resident reported issues of fly-tipping in her complaint on 13 February 2023. Section 5.1 of the landlord’s “neighbourhood management policy” states:
“We will work closely with local authorities to ensure that estates have the appropriate facilities for disposing of rubbish and recycling. We will take action, wherever possible, against those found to be dumping rubbish or fly tipping on our estates, including recharging them for the costs and providing evidence to support prosecution.

Where we assess that refuse and recycling facilities are required, or existing facilities require investment to modernise, improve, secure or encourage greater usage we will consider these sites for Estate Improvements/Planned Investment works. Where we identify sites that have acute or long-term issues relating to refuse, recycling, dumped rubbish or fly-tipping and additional services or activities above our usual services are required, we will consider sites for a Local Offer to address the issues.”
In accordance with the landlord’s policy, the Ombudsman would expect the landlord to:
1. liaise with local authorities about reports of fly–tipping
2. assess whether the site needed investment to ensure it was secure
3. consider any historical reports to identify if the site had acute or long-term problems with fly-tipping
4. keep detailed records of any reports raised by residents
5. contact relevant services and agencies, or signpost the resident to such services
6. carry out interviews if/when appropriate with residents
7. issue correspondence to residents if/when appropriate to remind them of their obligations regarding disposal of refuse and how to report issues with fly-tipping
8. discuss the issue internally with staff and the on-site caretaker to monitor the issue
9. communicate with the resident and clearly explain the outcome of any investigations it had undertaken.
The landlord said the caretaker in the first instance would have physically checked whether there was any evidence within the fly–tip to link the items to the perpetrator(s). The landlord said the caretaker, where possible, would speak to any available residents to see if anyone witnessed the dumping of the items. In all these cases, the landlord said there was no evidence found or any intel provided.
From the evidence provided, the landlord failed to carry out the above actions following the resident’s reports of fly–tipping. On 13 April 2023, the resident provided details of an alleged perpetrator who she said had fly–tipped a large amount of bulk items in the communal bin shed. In addition, the resident informed the landlord that a neighbour had also witnessed the incident.
There is no evidence that the landlord carried out investigations into the resident’s report of fly-tipping, or that it interviewed the resident or the neighbour who had witnessed the incident. Further, the landlord did not keep in regular communication with the resident about the fly tipping and failed to explain what steps it had taken to investigate the issue. There is no evidence that the landlord communicated with the caretaker, or that it provided details to the resident of how to correctly report issues with fly-tipping in the area. The landlord failed to keep detailed records of the reports the resident had raised and there is no evidence it communicated with other residents in the building to provide details about refuse disposal.
In the Ombudsman’s opinion, the landlord failed to appropriately investigate the resident’s concerns of fly–tipping and failed to explain the outcome of any actions it had carried out. In addition, the landlord should have treated the complaint individually, not used a generic response, and acknowledged the distress and inconvenience caused to the resident.

The landlord’s response to the resident’s enquiries about service charges

The landlord has provided a copy of the resident’s tenancy agreement dated 31 March 2009 (the tenancy began on 6 April 2009). However, the agreement is not clear on the issue of service charges. Clause 1.3 of the tenancy agreement lists £7.54 for a service charge. Clause 1.2 states “we may charge you a service charge for providing the following services…” However, the box underneath this section is blank. The service charges are listed as part of the overall rent for the property.
The tenancy agreement states that the landlord can change the service charge with at least 1 month’s written notice. The tenancy agreement does not list the services the landlord provides.
The landlord said the resident is on a fixed service charge agreement. However, it said it calculates charges based on previous years’ expenditure. This indicates whilst the charge for the first six months was fixed, as the landlord could collect any previous underpayments, the subsequent charges may have been variable. The Ombudsman expects landlords to be able to provide clear information about a charge that is payable. A landlord should be able to explain its power to claim the charge under the tenancy agreement or the lease. In order to show it could claim for the relevant charges, the landlord was required to show the relevant charge was listed in the tenancy agreement or it was introduced at some later point, following the correct procedure.
The resident said she was unhappy that the landlord included a charge of £558 for repairing a communal emergency light in the 2023 service charge calculations. The Ombudsman understands that the landlord split the charge equally between other residents in the building. Landlords are not permitted to recharge for repairs unless the resident was responsible for causing damage or the tenancy allows a landlord to claim the cost. In this case, the only charges the landlord could claim were those set out in the tenancy agreement and the latest rent notice increase under s.13 of the Housing Act 1998 (fixed service charges). There is no evidence that the landlord introduced a variable charge for repairing the communal light or that the resident caused the damage. Therefore, there is no evidence the landlord was permitted to make this charge.
The resident said she was unhappy with the service level charge and that this did not reflect the fire protection equipment in the building. She stated she was dissatisfied that the landlord charged £4.04 for a yearly check of 5 smoke alarms. As previously stated, the Ombudsman is unable to decide whether the level of service charge for “fire protection” services was reasonable. Once the resident receives a notice to increase the rent, she can refer the matter to the Tribunal for a rent review. This is set out in the information sent with the rent increase. However, the Ombudsman can consider the landlord’s response to the resident’s enquiries.
The evidence shows that the landlord provided the resident with a breakdown of the fire equipment in the building, including details of service inspections and a spreadsheet of the costs incurred. In addition, the landlord offered the resident £50 compensation in its stage 2 response for incorrect information about the number of vents in the building. In the Ombudsman’s opinion, the landlord’s response to the resident was reasonable and in line with best practice.
The resident also raised concerns regarding service charges for a communal TV aerial and requested invoices for the costs incurred. As previously stated, the Ombudsman is unable to decide whether the level of service charge for the TV aerial was reasonable. However, the Ombudsman can consider the landlord’s response to the resident’s enquiries.
While the landlord explained why it had included the TV aerial service charge in the 2023 rent review, it failed to provide invoices or further information about the costs incurred. The Ombudsman expects landlords to be able to provide clear information about a charge that is payable. When queries are raised about service charges, the landlord should be able to respond in a timely way providing the information in a consumer-friendly format.
Where residents request additional information, such as invoices, the Ombudsman expects landlords to comply with sections 21, 22 and 23 of the Landlord and Tenant Act 1985. Even where these provisions do not apply, it may still be appropriate to provide relevant and additional information to a resident to assist them in understanding the charge. As such, in the Ombudsman’s opinion, there was a service failure in the landlord’s response to the resident’s enquiries about the TV aerial service charge.

The landlord’s complaint handling

The resident raised a complaint to the landlord on 13 February 2023 via her local MP. While the landlord responded on 5 April 2023, this was not a stage 1 response in line with its complaints policy and did not contain details of how to escalate the matter to stage 2. In accordance with paragraph 1.3 of the Complaint Handling Code (the Code), the resident does not have to use the word ‘complaint’ for it to be treated as such. A complaint that is submitted via a third party or representative must still be handled in line with the landlord’s complaints policy. It is therefore not clear why the landlord did not provide a stage 1 response to the resident following her complaint on 13 February 2023.
There were inappropriate delays in the landlord’s response to the resident’s complaint on 13 April 2023. This complaint related to the same issues raised in the resident’s complaint on 13 February 2023. However, the landlord did not provide a stage 1 response until 24 working days later. This was 14 days in excess of the requirements set out in the Code.
The landlord did not respond to the resident’s escalation request of 22 May 2023 until 40 working days later. This was 20 working days over the landlord’s complaints policy which states it will respond to stage 2 requests within 20 working days. While the landlord did update the resident on 12 June, 11 and 17 July 2023, it did so only after the resident had chased for a response. The Ombudsman expects landlords to keep residents regularly updated about the progress of the investigation.
The landlord’s failure to respond to the resident’s complaint in line with its complaint procedure meant it missed an opportunity to address her concerns sooner and left the resident waiting for a resolution. The landlord should have conducted a timely and appropriate investigation and response to the resident’s concerns.
Overall, there were failings in the landlord’s management of the resident’s complaint. It failed to effectively communicate with the resident at the earliest opportunity. While the landlord has offered compensation for the delays, this service has found the landlord’s offer of compensation not appropriate to the identified failings.

Determination

In accordance with paragraph 42(d) of the Scheme, the Ombudsman has not investigated the resident’s complaints about the level of rent or service charge.
In accordance with paragraph 42(I) of the Scheme, the Ombudsman has not investigated the complaint about the service charges from September 2021, as the Ombudsman previously issued a determination on them on 8 December 2021.
In accordance with paragraph 52 of the Housing Ombudsman Scheme:
1. there was service failure in the landlord’s handling of reports about the resident’s communal bin shed not being secure.
2. there was maladministration in the landlord’s handling of reports about fly-tipping.
3. there was service failure in the landlord’s response to the resident’s enquiries about service charges.
4. there was maladministration in the landlord’s complaint handling.

Orders and recommendations

The landlord must, within 28 days of the date of this determination:
1. Provide a full apology to the resident for the errors identified in this report.
2. Refund the £558 charge unless the landlord can demonstrate it is payable under the tenancy or is rechargeable because of damage caused by the resident.
3. Pay the resident £550 in addition to that offered via the complaint procedure (£150) (£700 in total). The additional compensation is broken down as follows:
  1. £100 for the distress and inconvenience caused by the delays in repairing the communal bin shed.
  2. £200 for the distress and inconvenience caused by the landlord’s handling of reports of fly-tipping.
  3. £150 for the distress and inconvenience caused by the landlord’s handling of the resident’s enquiries about the service charges.
  4. £150 for the distress and inconvenience caused by the failures identified in the landlord’s complaint handling.

The landlord must pay the compensation directly to the resident. The landlord can reduce the total compensation by any amount already paid to the resident.

Provide relevant and additional information to the resident regarding the service charge for the communal TV aerial to assist her in understanding the charge.
Provide evidence of compliance with the above orders.

Recommendations

The landlord should carry out a review of its procedures regarding fly-tipping to ensure that any reports of fly-tipping are appropriately investigated and actioned. The landlord should report any service improvements or process changes back to the Ombudsman within 56 days.