Westminster City Council (202220310)

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REPORT

COMPLAINT 202220310

Westminster City Council

7 August 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

  1. The complaint is about the landlord’s response to the resident’s concerns about communal cleaning and the associated charges.

Background

  1. The resident is a leaseholder of the landlord’s property. She acquired the leasehold title on 5 June 2017. The property is a lower ground floor flat created by the landlord from a void area of the property.
  2. The cleaning contract for the property prior to the void redevelopment included an external stairway leading from the pavement down to what is now the front door of the property. When the lease was granted the stairway and area at the bottom of the stairs was demised to the resident. The gate access to the stairs is kept locked by the resident.
  3. On 24 June 2022 the resident complained to the landlord about the cleaning of the communal areas of the building (Complaint 1). She did not believe the service she was paying for was being delivered. The stage 1 response was issued on 14 July 2022. The landlord did not uphold the complaint. It said that while cleaning requirements differed from block to block the agreement for the resident’s building was that the stairs were cleaned once a week. In line with the terms of the lease, leaseholders were charged for this service through their estimated yearly service charges.
  4. The resident sent an email to the landlord on 14 July 2022 which was treated as a stage 2 escalation request. Within her correspondence she said that she had initially thought the service charge had been for internal cleaning but had become aware it was only for external stairways. She pointed out that when she purchased the lease for her flat the deed for the property was varied to make the staircase leading down to her property her responsibility. She believed the responsibility for the staircase did not belong to the landlord and it was not responsible for cleaning it. She further pointed out that she kept the gate at the top of the staircase locked, and as such neither the landlord nor its staff could access it. As a result, she believed it was wrong for the landlord to be charging cleaning for an area it would not responsible for or have access to. The resident therefore requested a refund of the charges.
  5. The landlord issued its stage 2 complaint response on 12 August 2022. It acknowledged it did not have access to the stairway leading to the flat and that this area had been demised to the leaseholder. As a result, it agreed it did not have the responsibility to clean or maintain it. As a result it said it had reviewed the charges and reduced them by 50% and that the resident would receive 28% of this reduction. The 28% was a reflection of the percentage of the block service charge that the leaseholder was responsible for as the bed space in her flat was 28% of the block’s total bedspace. The landlord apologised and awarded the leaseholder £50 compensation on top of the refund.
  6. The resident referred her concerns to this Service on 16 June 2023. She advised that the landlord was still charging for cleaning and contract supervision but had never provided the service. She said the landlord had acknowledged that the charge was incorrect, but she had never received a refund. The resident also expressed her concern that the charges were “invalid and fraudulent.”

Assessment and findings

Scope of investigation

  1. It is noted that the resident raised a second complaint (Complaint 2) with the landlord in July 2023. The resident remained unhappy as she said she was still being charged for the cleaning and contract supervision. She also expressed concern that the landlord had not learnt from her previous complaint. The landlord issued a stage 1 response on 21 July. It did not uphold the resident’s complaint and provided a response to her concerns. We have not been provided with any evidence that shows that the resident responded to the stage 1 letter, or that she sought to escalate her complaint. As such, while we note that the resident remained dissatisfied with the landlord’s handling of matters, we have not assessed Complaint 2 as part of this investigation. If the resident remains unhappy with how the landlord responded to her concerns, she should let it know accordingly so that it may consider her concerns at stage 2 of its complaints process. If the resident remains unhappy after exhausting the complaints procedure, she may refer her concerns to this Service as a new complaint.
  2. The resident’s concerns about the level of service charge itself have not been investigated as part of this complaint. This is because complaints that relate to the level, reasonableness, or liability to pay rent or service charges are within the jurisdiction of the First-Tier Tribunal (Property Chamber). The resident may therefore wish to raise her concerns about the level of the charge with the FTT. We have, however, considered how the landlord responded to the resident’s concerns about the charge itself and whether its response was fair and reasonable in all of the circumstances.

The landlord’s response to the resident’s concerns about the communal cleaning

  1. The resident is obliged under the lease agreement to pay service charges to the landlord that are estimated just before the start of the financial year. At the end of the financial year the actual costs are calculated, and these are communicated to the resident the following September. For example, estimated service charges are calculated just before April 2024 for the period of 1 April 2024 to 31 March 2025. Once this period has passed the actual costs for that period will be calculated and communicated to the leaseholder in September 2025. Where the estimate did not fully cover the actual costs the resident will be required to cover the extra charges. Where the estimate is greater than the actual costs the landlord will be required to refund the additional costs. The lease states that refunds will be paid into the resident’s account which effectively reduces the monthly payments for the next years estimated costs.
  2. Service charges are calculated for the entire block and then shared amongst the properties. The percentage share required to be paid by each property is based on a percentage of bed space in the block.
  3. In response to the resident’s concerns, the landlord advised that it had a duty to clean communal areas and to guarantee this was done it provided a cleaning service. It said cleaning was done on a weekly basis. It also confirmed how the charges were estimated in advance and that they had gone up due to the landlord paying London living wage. It was reasonable for the landlord to provide this explanation. However, it did not refer to the cleaning of the stairway leading to the resident’s property, or recognise that it was not responsible for it. It therefore failed to address the resident’s specific concerns and this was a shortcoming in its handling of the matter.
  4. As a result, the resident escalated her complaint. She stressed that the landlord did not have access or responsibility for the staircase or basement area. As such, she wished for a proportion of the cleaning charge to be refunded to her. When the landlord issued its stage 2 response, it appropriately apologised to the resident and upheld her complaint. It recognised that it:
    1. did not have responsibility or access to the stairway;
    2. had demised area to the resident; and
    3. had been charging for service it was not supplying.
  5. As a result it said it had reviewed the charges for the previous 4 years and applied a 50% reduction of the block’s charges and calculated the resident’s 28% share of the refund was £202.92. It had also estimated the charges for 2021 to 2023 would be reduced by £182.19 but added that this would be confirmed when the final charges were calculated. It suggested the resident withhold this last amount from the service charge balance until it was able to produce the actual service charge adjustments. To recognise the time and trouble the resident had been caused, the landlord offered £50 compensation.
  6. Therefore, based on the evidence that is available the landlord has taken appropriate steps to ensure that the resident is not charged for services that she is not receiving. The landlord has also offered a sum of compensation that is proportionate in the circumstances. Based on the evidence, the landlord has therefore dealt with the resident’s complaint satisfactorily and offered reasonable redress.

Determination

  1. In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, the member has offered redress to the complainant prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Recommendation

  1. Within 4 weeks of the date of this determination, the landlord should take steps to ensure that it has processed the resident’s refund as advised within its stage 2 response.