Accent Housing Limited (202010148)

REPORT

COMPLAINT 202010148

Accent Housing Limited

1 April 2021

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 provision of services by the landlord during the Covid-19 pandemic, specifically the scheme manager service and access to communal areas;
2. The landlord’s response to the resident’s request for a service charge refund in relation to the scheme manager service and access to communal areas.

Background and summary of events

Background

The resident is the tenant of the property (the property) which the complaint concerns. The landlord owns the property.
The property is a flat within an independent living scheme (the scheme).
On referring his complaint to this Service, the resident stated that the complaint was a group complaint, “made on behalf of all residents”. The resident did not provide any details of the residents or their consent for the complaint. In responding to the complaint, the landlord did not treat the complaint as a group complaint, responding directly to the resident only. The Ombudsman has therefore not treated the complaint as a group complaint and has considered the issues as they affected the resident who brought the complaint to this Service alone.

Summary of events

On 27 April 2020 the resident wrote to the landlord setting out that the Covid-19 pandemic had created a situation whereby the landlord “though willing [could] no longer provide full services that residents [continued] to pay for”, such as the scheme manager service. The resident stated that this had resulted in “ill wind” which blew in the landlord’s favour. The resident requested that the landlord “refund a reasonable repayment for services not given during [the pandemic]”.
On 28 April 2020 the landlord responded. In summary the landlord said:
1. The Covid-19 pandemic had required it to adapt and deliver services through different methods.
2. It had managed to maintain levels of service and it was committed to keeping both its staff and residents safe in accordance with Government guidelines.
3. It had upgraded the communal cleaning specification and its frequency as a direct response to the pandemic to mitigate the spread of the infection within the scheme. The landlord confirmed that the cost of the additional cleaning would not be recharged to residents.
4. Residents had received a daily morning call and it had continued to carry out all safety checks during the pandemic via the scheme manager service.
5. It was delivering the scheme manager service remotely as a result of the pandemic.
6. It had temporarily suspended the grounds maintenance service, but the service was due to be reintroduced later that week, following Government guidelines.
7. It would not be refunding service charges as it had continued to deliver services to residents, and it was anticipated that additional costs would be incurred to recover its position prior to the pandemic’s end.
On 29 April 2020 the resident responded to the landlord setting out that he did not agree the landlord’s position. The resident confirmed that he would revert back to the landlord following discussion with other residents.
Between May 2020 and July 2020 the landlord and resident corresponded regarding the provision of services during the Covid-19 pandemic. In summary:
1. The resident maintained that residents were due a refund for services not provided during the pandemic.
2. The landlord’s position was that it continued to deliver services to residents however some services had been adjusted and adapted due to the pandemic.
3. The scheme manager (the SM) had continued to deliver daily welfare calls and carried out weekly compliance tests to ensure that residents were safe.
4. The landlord provided details of the enhanced cleaning at the scheme.
5. The landlord provided details of the steps it was taking to ensure the grounds maintenance contract was delivered following a period of non-attendance due to the pandemic.
6. In response to the resident’s report that the local authority had refunded service charges to its own residents for services not delivered during the pandemic the landlord stated that it was unable to comment on the local authority’s approach. The landlord explained that its service charges were fixed for a period of 12 months.
7. During the period the landlord also invited the resident to register a formal complaint.
On 31 August 2020 the resident submitted a complaint to the landlord about “suspended services” at the scheme during the Covid-19 pandemic. In summary the resident said:
1. “Compensation” was required in lieu of services not delivered during the pandemic, specifically access to the communal areas (lounge, kitchen, shower and guest room) and reduced attendance of the SM.
2. Denied access to the communal areas during the pandemic could not be made up at a later date and therefore if was unreasonable that residents were required to pay for the service as part of the service charge.
3. Despite informing the landlord that the local authority had reduced the service charge payable by its residents in relation to withdrawn communal facilities during the pandemic, the landlord had refused to do the same.
4. Other communal services such as gardening and non-emergency repairs had been suspended.
5. Since 17 March 2020 the SM had “rarely visited” the scheme apart from completing “safety checks on Monday mornings or delivery of newsletters”.
6. The SM was undertaking “morning calls to residents five [days] a week remotely via [the] intercom system”. The resident stated that the loss of “daily face to face interaction” with the SM “over personal and daily matters [was]… quite a serious matter”.
7. The SM was not completing their contractual hours for the scheme, which was 17.5 hours a week, and therefore residents should be reimbursed.
8. In response to his query about the increase in service charge for the SM in the financial year 2020/21 the landlord explained that as the service was “heavily subsidised” by it, it had made the decision to increase the cost.
9. He did not accept the landlord’s position that it continued to maintain levels of service during the pandemic.
10. The Covid-19 pandemic had created a situation between the landlord and residents which could only be “described as a force majeure whereby [the landlord] though willing [could] no longer provide full services that the residents continue to pay for”.
On 16 September 2020 the landlord provided its stage one response, following a phone call with the resident on 11 September 2020. The landlord opened its response by setting out that during the phone call the resident had confirmed that he would like the following matters addressed:
1. The resident did not believe that he was receiving a full service provided by the SM as they were working remotely.
2. The resident was concerned that access to the scheme’s communal areas had been suspended during the pandemic.
3. The resident would like a service charges refund for the modified service provided by the SM and not being able to access the communal areas – backdated to the start of the pandemic.
In response to the complaint the landlord said:
1. In response to the pandemic it decided that its staff would work remotely in line with the Government’s guidance. The landlord confirmed that its staff had access to its IT systems and telephone system from home and were therefore able to work remotely.
2. Its staff would only visit a scheme “when necessary” in order to ensure the safety of its staff and residents.
3. All scheme managers had been contacting residents daily, although it was now reverting to daily calls “where needed”. The landlord confirmed that during the calls the scheme managers were providing support to residents by “discussing support plans and contacting support agencies on their behalf”. The landlord confirmed that it was not able to deliver this service face to face during the pandemic and therefore it was delivering it remotely.
4. Scheme managers were only on site where a service could not be delivered remotely which included carrying out safety checks. The landlord noted that during the visit they would wear full Personal Protective Equipment (PPE).
5. Communal areas were closed so it could “properly follow the guidance for social distancing and stop [residents] from gathering”. The landlord said that it understood the situation was “frustrating”. The landlord noted that it had no plans to re-open the communal areas at that time.
6. In response to the resident’s request for a service charge refund it had carried out a review of the resident’s service charges. The landlord set out:
  1. As the scheme manager service had not been reduced or removed no service charge refund would be given. The landlord noted that it subsidised this service charge.
  2. There was no direct charge for use of the communal areas. The landlord explained that the service charge in relation to the communal areas included “costs for heating and lighting”. The landlord noted that some communal areas were still in use such as the communal entrance and hallway. The landlord stated that “on reflection it was not anticipated that these costs [would] be significantly reduced by some communal areas not being in use”.
  3. It had previously informed the resident during discussions relating to the service charge for 2020/21 that the “the total service charge costs would be capped for the year – excluding the scheme manager costs as they [were] already subsided”. The landlord said that it was therefore “already undercharging service charges at approximately £2.30 per customer per week”.
The landlord concluded by confirming that the resident may request to escalate the complaint for a review if he was not satisfied with its response.
On 17 September 2020 the resident wrote to the landlord confirming that he intended to request a review of its complaint response. Within his correspondence the resident noted that:
1. He was concerned that the landlord’s response “showed little or no regard” to his complaint letter, and only relied on its phone call with him.
2. He “rejected” the landlord’s position that a full service was provided by the SM.
3. The landlord’s response showed “no real knowledge of what [was] happening at [the scheme]”.
4. It was unclear how the landlord had determined that there was no service charge element for use of the communal areas.
On 23 September 2020 the landlord responded to the resident. In summary the landlord said:
1. It was sorry that the resident did not feel that it considered all details of his complaint letter. The landlord note that it had reviewed the complaint letter before drafting its complaint response.
2. From its phone call with the resident it understood that the main issues he wanted addressed were in relation to “the scheme manager service, restricted access to the communal lounge/ kitchen areas”, in addition to a service charge refund.
In respect of the issues raised by the resident in his complaint, but not addressed in the stage one response the landlord confirmed that other services were suspended during the pandemic, including gardening and non-emergency repairs. The landlord said that it explained the following points to the resident during its phone call with him:
1. Gardening had resumed and no service charge refund would be given as the contractor would need to carry out extra works to ensure the grounds were brought back up to standard.
2. The repairs service had been reinstated and it was working to complete the backlog of repairs which residents had raised during lockdown.
3. It was not able to comment on the local authority’s decision to refund some service charges to its own residents.
4. It was following Government guidelines in arranging for its staff to work remotely.
5. Additional cleaning had been implemented within the scheme.
The landlord concluded by confirming that it would arrange for the complaint to be reviewed on receipt of the resident’s review submissions.
On 25 September 2020 the resident provided his escalation request, following discussion with other residents. In summary the resident said:
1. He did not accept that the landlord’s position that there was no direct charge to residents for use of the communal areas “save for heating and lighting of those areas”. The resident noted that the service charge statement for 2020/21 included a charge for “equipment provision” which had paid for new lounge furniture. The resident said that residents had therefore paid for furniture they could not sit on.
2. It was unreasonable that the landlord continued to take payments from residents in relation to communal areas which could not be used.
3. He did not accept that the SM provided a full service while working remotely. The resident noted that residents had not received any “external telephone calls, welfare assistance or personal calls from [the SM] remotely or otherwise during the continuing pandemic”. The resident stated that contact from the SM was made via the intercom system only and the system was inadequate as it did not provide sufficient speaking time.
The resident concluded by reiterating that it was his belief that the pandemic had caused “a situation of force majeure regarding the services provided by [the landlord]”.
On 13 October 2020 the landlord provided its final response following a telephone conversation with the resident on 7 October 2020. In summary the landlord said:
1. During the call the resident confirmed that he would like the review to consider “access to the communal facilities… the scheme manager not being on site, and the impact on the service charge of these two issues”.
2. It had been clear on what the SM had been doing during the pandemic. The landlord confirmed that in addition to daily calls to residents they had also been supporting individual residents and signposting them to appropriate agencies. The landlord set out that the SM had also visited the scheme to undertake essential health and safety checks. The landlord acknowledged that while at the scheme to complete the safety checks the SM was not available to residents in person, however this did not mean they had not been available to them at other times – “albeit not face to face”.
3. It did not believe that a refund of the service charge for the scheme manger service was warranted as the SM had continued to provide a service. The landlord confirmed that the resident’s tenancy agreement did not specify how the scheme manager service was to be provided. The landlord noted that the SM’s costs were “already being subsidised by [its other] residents” and therefore “the costs [were]not being fully recovered through the service charge”.
4. The decision to close the communal facilities was “difficult” but was made in order to comply with Government guidance and to protect residents. The landlord noted that it was keeping its decision to keep the communal facilities closed under review.
5. The closure of the communal areas had “little impact on the overall service charge” as there was no direct charge for use of the communal facilities. The landlord explained that the resident’s tenancy agreement set out that the service charge was for the “upkeep” of communal areas, not their use. The landlord confirmed that costs had been incurred for heating and lighting the communal areas.
6. Additional cleaning costs had been incurred at the scheme during the pandemic which it was not passing on to residents.
7. The new lounge furniture only accounted for part of the service charge element for equipment provision. The landlord confirmed that equipment provision also included the warden call system lift, TV aerial and fire protection. The landlord noted that the resident could not currently use the new furniture however this was for a short period of its overall lifespan.
8. The SM was able to make remote calls via the intercom system whilst working off-site and remotely.
9. There was no force majeure clause in the tenancy resident’s tenancy agreement. The landlord confirmed that it had tried to minimise the impact of the pandemic where possible by providing the scheme manager service in a different way. The landlord added that residents had also not incurred any additional costs during the pandemic.
The landlord concluded that the resident may refer his complaint to the Ombudsman if he was not satisfied with its response.

Assessment and findings

The Ombudsman accepts that Covid-19 has had a major impact on the services a landlord is able to provide, and therefore that some normal services will have been significantly and unavoidably disrupted during the pandemic and going forwards. In considering complaints related to Covid-19 the Ombudsman will consider the impact of the pandemic on the decisions and actions that a landlord has had to undertake during the period and take this into account when investigating complaints from residents.

The provision of services by the landlord during the Covid-19 pandemic, specifically the scheme manager service and access to communal areas

New legislation and Government guidance was issued in response to Covid-19 setting out how a landlord should deliver its services during the pandemic. In respect of the resident’s complaint the Ombudsman notes the following Government guidance:
1. 16 March 2020:
  1. Advised that people should work from home and avoid contact with others.
2. 28 March 2020:
  1. Recommended that access to a property is only proposed for serious and urgent issues.
  2. Visits could still be made for urgent health and safety issues.
  3. Encouraged landlords and tenants to take a pragmatic, common-sense approach to non-urgent issues such as repairs.
3. 11 May 2020:
  1. Recommendations to ensure the safety of residents and works, including when it is safe to work in someone’s home.
  2. Finding digital or remote alternative to physical, in-home work where possible such as video or phone consultations.
In response to Covid-19 and the Government’s guidance the evidence shows that the landlord modified the way it delivered some of the services it provided at the scheme. This included modifying the scheme manager service, closing the communal areas and suspending some services such as grounds maintenance.
The landlord has provided its “Covid-19 decision log” demonstrating the steps it took to determine that it should modify the way it delivered these services. This involved completing risk assessments from March 2020 to decide what modifications were required to mitigate the threat of the virus. This was appropriate as the landlord is responsible for ensuring the health and safety of its residents and should not expose them to any unnecessary risks.
During the period under investigation the landlord has provided evidence to demonstrate that it communicated with its residents regarding the delivery of its services during the pandemic. This was appropriate to ensure that residents were appropriately informed of the changes and knew what to expect. For example:
1. On 20 March 2020 the landlord issued residents with its “position statement” in response to Covid-19. In relation to its Independent Living Schemes and Extra Care Schemes the landlord set out that in response to the pandemic it had:
  1. Moved to a phone–based service, limiting any face-to-face interactions. The landlord stated that it would be carrying out daily calls for all residents so it could quickly identify potential issues.
  2. Closed guest rooms.
  3. Stopped all communal gatherings and social activities.
2. In March, April, May, June, July and August 2020 the landlord issued scheme newsletters which set out:
  1. The SM would carry out their duties remotely, including morning calls to residents, however would visit sites weekly to cover compliance testing and health and safety checks.
  2. The repairs service had been modified.
  3. The communal areas were closed due to social distancing however would reopen as soon as possible.
  4. Grounds maintenance would commence from spring 2020.
As part of his complaint the resident disagreed with the landlord’s position that the SM was providing a full scheme manager service during the pandemic as face-to-face contact was suspended. While the Ombudsman notes the resident’s concerns, the landlord has provided records to this Service demonstrating that during the period under investigation the SM continued to carry out their duties, albeit in a different way. This included daily contact with residents via the intercom and by phone, in addition to attending the scheme to carry out the weekly health and safety checks.
The Ombudsman notes that the resident stated that the loss of face to face contact with the SM over “personal and daily matters” was “quite a serious matter”. While the resident’s concerns are noted, the Ombudsman cannot see that during the period under investigation the resident provided the landlord with a personal request for face to face contact with the SM based on extenuating circumstances, such as medical need, which required due consideration by the landlord.
As the Government’s guidance in response to Covid-19 initially required people to stay at home, to practice social distancing and to not gather in groups of more than two people in public, the Ombudsman considers that the landlord’s decision to close the communal areas was reasonable. This is because it was a step it could take to ensure that contact between residents was minimised and to discourage gathering by the residents. The Ombudsman can see that in summer 2020 the landlord consulted with residents across all of its schemes regarding the re-opening of communal areas in response to the changing circumstances of the pandemic. In the Ombudsman’s opinion this was a reasonable action to gauge residents’ opinion to inform the landlord’s future decisions.
In response to the pandemic the landlord initially suspended its non-emergency repair service and grounds maintenance service. In the Ombudsman’s opinion the landlord’s decision was in line with the Government’s guidance as set out above. The Ombudsman can see that the landlord reinstated the repairs service and grounds maintenance service in spring/ summer 2020 following the evolving circumstances of the pandemic.

The landlord’s response to the resident’s request for a service charge refund in relation to the scheme manager service and access to communal areas.

The tenancy agreement for the property sets out the landlord shall provide the following services for which the tenant shall pay a service charge:
1. Non-resident scheme manager, warden call, mobile warden.
2. Communal upkeep, grounds maintenance, heating and hot water to dwellings.
In accordance with the tenancy agreement the resident is required to contribute towards the scheme manager service and upkeep of the communal areas.
In response to the resident’s request for a service charge refund in respect of the scheme manager service and loss of access to communal areas the landlord refused the resident’s request. The landlord explained that it could not accede to the resident’s request as it continued to deliver the scheme manager service, albeit in an adapted way, and there was little impact on the service charge by the closure of the communal areas as there was no direct charge for use of the facilities.
In the Ombudsman’s opinion, as the landlord demonstrated that it continued to provide the scheme manager service remotely, and it explained that the closure of the communal areas did not impact on the service charge it was reasonable for the landlord to deny the resident’s request for a refund. This takes into account that the tenancy agreement does not specify the way the scheme manager service must be delivered, and the service charge is for upkeep of the communal areas rather than their use.
In the Ombudsman’s opinion it was also reasonable for the landlord to decline to refund the service charge portion for the furniture purchased for the lounge as it explained that the resident would benefit from it once the lounge reopened.
If the resident remains concerned regarding the reasonableness of the service charges it would be open for him to refer the matter to the First Tier Tribunal Property Chamber (the FTT). The FTT can make determinations on all aspects of liability to pay a service charge and/ or administration charge, including by whom, to who how much and when a service charge is payable. In order to decide liability, the FTT also decides whether service charges costs have been reasonably incurred and whether a charge is reasonable.
In the Ombudsman’s opinion it was also reasonable for the landlord to decline to comment on the local authority’s decision to refund its residents an element of their service charge in relation to use of communal areas. This is because the local authority is a separate organisation to the landlord which has different operating methods and procedures.

Determination (decision)

In the accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration in respect of the following matters:
1. The provision of services by the landlord during the Covid-19 pandemic, specifically the scheme manager service and access to communal areas;
2. The landlord’s response to the resident’s request for a service charge refund in relation to the scheme manager service and access to communal areas.

Reasons

The landlord’s decision to provide a modified service manager scheme and close communal areas was reasonable. This is because the decision was made following risk assessments which took into account the Government’s guidance on Covid-19.
The evidence shows that the landlord communicated with the resident regarding the modified service manager scheme from March 2020. This was appropriate so that he was aware of the changes and knew what to expect.

The landlord’s records demonstrate that during the period under investigation the SM continued to carry out their duties, albeit in a different way. This included daily contact with residents via the intercom and by phone in addition to attending the scheme to carry out the weekly health and safety checks.
The landlord’s decision to close the communal areas was reasonable as it was a step it could take to ensure that contact between residents was minimised and to discourage gathering by the residents in line with social distancing guidance.
The landlord’s decision to suspend its non-emergency repair service and grounds maintenance service at the start of the pandemic was in line with the Government’s guidance; to take a pragmatic approach to non-urgent issues.
As the landlord demonstrated that it continued to provide the scheme manager service remotely, and it explained that the closure of the communal areas did not impact on the service charge it was reasonable for the landlord to deny the resident’s request for a refund. It was also reasonable for the landlord to decline to refund the service charge portion for the furniture purchased for the lounge as it explained that the resident would benefit from it once the lounge reopened.