Citizen Housing (202104590)

REPORT

COMPLAINT 202104590

Citizen Housing

3 November 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 reports about non-residents gaining access to communal areas in the building her property is located in.
   2. The resident’s repair requests relating to a communal hallway window and the bin storage area.
   3. The resident’s enquiries about service charges claimed for cleaning and caretaking.
   4. The associated formal complaint.

Background

2. The resident is the secure tenant of a flat situated in a building of 18 such properties. The landlord lets just six of them on a general needs basis, although they were built to form part of a shared ownership scheme. The building is part of a larger development and the estate as a whole is overseen by a managing agent. Other landlords/owner occupiers are therefore represented in the building/area.
3. The landlord contacted the resident, in April 2021, about service charge arrears. She stated that she was refusing to pay until matters she raised in 2019 were addressed. These were regarding services charges for caretaking and cleaning of the communal areas which she stated was not taking place and/or was irregular. On 28 May 2021 the landlord confirmed that it had obtained the information from the managing agent and the charges were correct. There was no caretaker as such – the charge was for intermittent attendances by the managing agent to check the building. It added that the cleaning charges were correct, and the standard was good.
4. In the meantime, on 26 May 2021, this Service contacted the landlord on the resident’s behalf as she had reported she was not getting any response to her complaints. She had advised these were that she was dissatisfied with the landlord’s handling of the security of the communal areas, repairs to the communal areas and service charge information.
5. The landlord opened a new complaint on the issues and provided decisions in on 6 August and 18 October 2021. It stated that the first issue was historic – having occurred in 2017 – and resolved; that there had been no reports of repairs to the communal areas for it to handle; and that it had investigated the charges for cleaning/caretaking and was satisfied that appropriate services had been performed and that the amounts charged for them was reasonable. It did not accept that any service failings had taken place.
6. The resident remained dissatisfied with this response and referred all three issues to this Service. By way of a remedy, she is seeking compensation with which she can offset any arrears payments she owes to the landlord.

Assessment and findings

Non-residents gaining access to communal areas.

7. Around early 2017, the resident complained to the landlord about non-residents gaining access to the communal areas of the building. The landlord responded that the resident had attended a site meeting with itself and the managing agent the previous December (2016). At the time, possible works were discussed relating to gate and door locks at the complex to reassure the resident about its security. These had not yet taken place as the managing agent needed to authorise/arrange them, but the landlord was applying pressure to get the job done. Ultimately the managing agent confirmed the works were to take place, but this was not until August 2017. The resident did not escalate her complaint further and the matter petered out.
8. When a complaint is made, an investigation is required. This may involve the interview of staff/witnesses and the examination of documents. As time goes on, memories can fade, and documents may not be stored indefinitely. If too much time has elapsed between a complaint being made and the events it relates to, this may prevent a fair and reasonable investigation taking place.
9. This Service therefore applies time limits for the making of complaints. The Housing Ombudsman Scheme provides that we may not consider complaints which were not brought to the attention of a landlord within a reasonable timescale of the issue arising, which is ordinarily within 6 months (paragraph 42(c)).
10. In this case, the resident’s complaint about the landlord’s handling of her reports about the security of the building and its availability to non-residents dated back to 2017. Whilst a complaint was made about it at the time, it was not escalated, and it never exhausted the landlord’s internal complaints procedure, which also means that this Service may be unable to consider the matter (paragraph 42(a) of the Scheme).
11. The landlord, nevertheless, included it in the fresh complaint in June 2021, having received a referral from this Service. This was significantly in excess of six months after the matter arose. Nevertheless, the landlord made enquiries with its staff member, explained that the locks had been fitted after delays, and reported its conclusion that the matter was historic but resolved.
12. While this Service has not investigated the landlord’s actions at the time the event occurred due to the lapse of time, it has considered the adequacy of the landlord’s response when the resident complained in 2021. This report concludes that the landlord’s actions in addressing the matter and explaining that it was historic was reasonable in the circumstances, as it demonstrated that it took her complaint seriously. Thus, although no assessment has been made on how the matter was handled in 2017, this Service concludes that there was no maladministration in the landlord’s response to the current complaint.

Repair requests relating to a communal hallway window and the bin storage area.

13. The landlord accepted that it is responsible for repairs to the interior of the resident’s property but stated that it is for the managing agent to maintain the communal areas. Whether that agent owes the resident a direct duty to carry out that function or whether its contractual obligations are with the landlord alone (and for it to enforce) cannot be established from the records that have been produced. In any event, this Service would not be able to provide a legally binding interpretation of the necessary documentation as it does not have the expertise to do so. 
14. This point becomes redundant, however, because there is no trace of the resident reporting any repairs to either landlord or managing agent prior to the complaint being made. The landlord cannot be said to have failed in its handling of a repairs report when it has had no prior knowledge of the fault in question.
15. It is not entirely unusual for residents to report repair issues in this way. Some may take the view that the very existence of a defect means the landlord has failed in its responsibility to provide a safe and secure living environment. Yet all properties require maintenance and repair from time to time and this is so irrespective of whether they are rented or privately owned. The fact a repair is needed does not automatically confirm that the landlord has failed to maintain the property in question.
16. With no report of repairs having been made and no suggestion that they were necessitated by a lack of maintenance, the service offered by the landlord cannot be said to have failed. The landlord acted reasonably in respect of this aspect of the resident’s complaint. Once it was made, the landlord arranged for the managing agent to speak to the resident directly to confirm what was required so that it could take the necessary action. That contact then took place. 

The resident’s enquiries about service charges claimed for cleaning and caretaking.

17. At the beginning of 2019 the landlord contacted the resident as she was in arrears with her service charge payments. She explained that she was withholding payment because charges were being made for a caretaking service which was not taking place; also, there was a weekly charge for cleaning, and it was not being done that regularly or to a satisfactory standard. The landlord agreed to look into her concerns.
18. In a formal complaint, of 19 August 2019, the resident stated that no response had been given to her queries, although she had been told the landlord was awaiting information from the managing agent. In its stage 1 response of 20 September 2019, the landlord confirmed this was still the case; that it was chasing the matter; that the resident should pay her service charge in the meantime; and that the complaint was being closed. No request to escalate the complaint was made.
19. This was the matter which the resident included in her complaint of 2021. By 28 May 2021, the landlord had heard from the managing agent, and it wrote to the resident. It explained that the caretaker charge related to attendances by the agent to check the building (as opposed to a traditional caretaker being situated at the building). It also confirmed that it had reviewed the cleaning charges which covered fortnightly visits and appeared to be correct. It considered the charges were accurate and invited the resident to pay them. The landlord then maintained this stance in its complaint responses.
20. This Service cannot consider complaints about the level of service charges or the amount of any increase in them. Such issues can be referred to the First Tier Tribunal (Property Chamber). However, we can consider the way in which a landlord has administered the resident’s service charge account. This would include looking at the quality of the information provided to the resident, whether the accounts contain errors, and delays in providing information about charges. Indeed, the resident’s complaint is about these latter issues.
21. It is evident from the chronology of events that there was a considerable delay in providing the resident with the information she asked for. This continued from April 2019 to May 2021. Whilst this was unreasonable, notice has been taken of the difficulties encountered by the landlord in dealing with the managing agent. It offered little co-operation, and the set-up of the development meant it was not a straightforward situation. It is reasonable to conclude that this complicated matters, and the landlord may not have had unilateral control/supervision over the agent’s actions. Furthermore, it is not clear to this Service that the resident pursued this matter in the intervening period, until 2021. This eases the landlord’s failings to a degree.
22. The noted complexities notwithstanding, however, the resident is/was reasonably entitled to look to the landlord for clarification of the charges and for her queries to be answered within a reasonable period of time. The landlord failed to do so. This meant the service it offered to the resident was inadequate.
23. Once the landlord had obtained the information it was looking for, it then confirmed to the resident that, in its opinion, the charges were correct. However, it is notable that it did not supply the resident with some of the documentation it relied upon. For example, in its stage 2 complaint response, the landlord stated it had “evidence that inspections were carried out by staff during the period in question”. It also had evidence of a signing in sheet for cleaners attending the premises and it had a tenant certificate confirming overall actual charges.
24. Whilst the landlord may say that the sheet was visible on the notice board in the building, and some of the documents would have been sent to the resident direct, it might reasonably have supplied the resident with the evidence it was relying on. It might have been expected to point out the relevant areas of those documents. For example, it could have highlighted what the yearly charge for cleaning was, how many attendances this amounted to (applying whatever rate was agreed for this activity) and whether this correlated with the signing in sheet. Instead, the landlord simply asked the resident to take its word that it was satisfied. This is not the same as putting the resident in the position where she was satisfied.
25. This Service concludes that the landlord did not fully answer the resident’s enquiries, and this represents a further failing in the service offered to her. A recommendation will be made that the landlord reviews what evidence it relied upon to satisfy itself and sends copies to the resident with any necessary explanatory notes.
26. Whilst the landlord did identify some of the failings noted in this report – predominantly the delay – it offered no remedy to the resident. It might reasonably have been expected to offer some compensation for the distress and inconvenience caused to the resident in being left in the dark and having the chase the position. It is reasonable to conclude, from the records supplied, that the landlord would have dropped the enquiry had the resident paid full charges and not chased the position.
27. This Service’s Remedies Guidance states that an award in the region of £50 – £250 is appropriate where a service failing has resulted in some adverse impact on the resident, but which will have no permanent effect. Taking the length of time this matter went on for but allowing some mitigation due to the managing agent issue, an order for compensation of £150 has been made below.

The resident’s complaint.

28. The resident complained in 2017 and 2019. However, the landlord opened a fresh complaint on 1 June 2021 when this Service contacted it. It was appropriate that the landlord treated the matter in this way as the previous complaints had lapsed without any escalation requests and were no longer ‘live’.
29. This new complaint then needed to be handled by the landlord in accordance with its Complaints Procedure which sets out a timescale for resolution. In that document, the landlord commits to acknowledging complaints within three days, and offering a stage 1 formal response in ten working days. If the resident remains dissatisfied, they can escalate the complaint to a second, review stage. They should give reasons. The landlord then commits to a stage 2 response in a further ten days. The procedure does envisage extensions to these time limits if there is a valid reason for the delay.
30. The stage 1 response was due on 17 June 2021 but on 15 June 2021 the landlord asked for an extension as it was still trying to liaise with the managing agent. It discussed this with the resident directly. It stated it would provide a response by 29 June 2021. However, it did not then provide the resident with that response until 6 August 2021, 28 working days late.
31. On 16 September 2021, this Service then asked the landlord to look into the complaint further having been contacted by the resident again. The landlord reasonably took this as an escalation request and acknowledged that on 20 September 2021 which was appropriate. However, it did not then provide its review response until 18 October 2021, 22 working days later. Whilst the landlord had told the resident a reply would take 20 working days and this was only marginally over that limit, its complaints procedure actually sets out a timespan of ten working days and so the reply was 12 working days late.
32. The delays in responding to the resident’s complaint were inappropriate and represented a failing in the service it offered to the resident. She was left unclear as to what was happening, and she enlisted the help of this Service. There was, however, no permanent impact upon the resident and the delays were relatively short lived. An order for compensation of £50 has been made below to reflect this failing.

Determination

33. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
    1. No maladministration by the landlord in respect of its handling of the resident’s reports about non-residents gaining access to communal areas in the building her property is located in.
    2. No maladministration by the landlord in respect of its handling of the resident’s repair requests relating to a communal hallway window and the bin storage area.
    3. Service failure by the landlord in respect of its handling of the resident’s enquiries about service charges claimed for cleaning and caretaking.
    4. Service failure by the landlord in respect of its handling of the associated formal complaint.

Orders and recommendations

Orders

34. The landlord should pay the resident compensation the total sum of £200 representing £150 for the service charges matter and £50 for its complaint handling.     
35. It should confirm with this Service that it has complied with the Order within four weeks of receiving this determination.

Recommendation

36. The landlord should consider reviewing what evidence it relied upon to satisfy itself about the accuracy of the service charges and send copies to the resident with any necessary explanatory notes.