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Camden Council (202216066)

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REPORT

COMPLAINT 202216066

Camden Council

22 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

  1. The complaint is regarding:
    1. The landlord’s handling of service charge consultation.
    2. The landlord’s response to the resident’s concerns about estate caretaking service charges.
    3. The landlord’s handling of the complaint.
    4. The level of compensation offered.

Jurisdiction

  1. What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
  2. In his complaint, the resident has raised concerns regarding whether the landlord carried out appropriate consultation regarding increased service charges which followed the redevelopment of a communal garden area. As per paragraph 42(c) of the Housing Ombudsman Scheme, the Ombudsman will not consider matters which, in the Ombudsman’s opinion, were not brought to the attention of a landlord as a formal complaint within a reasonable period (which would normally be within 6 months of the matters arising). As the evidence available shows the consultation took place in 2019 and 2020, over 2 years before the resident made his complaint, this investigation will not consider the following aspect of the resident’s complaint:
    1. The landlord’s handling of service charge consultation.

Background and summary of events

Background

  1. The resident is a leaseholder and the landlord is a local authority. The resident has lived at the property, a split level flat in a purpose built block, since 1995.

Scope of investigation

  1. The crux of the resident’s complaint relates to service charges. As per paragraph 42(d) of the Housing Ombudsman Scheme, the service will not consider complaints which concern the level of rent or service charge or the amount of the rent or service charge increase. Additionally, paragraph 42(f) of the Scheme states the service will not consider matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, other tribunal or procedure. It is noted that the landlord appropriately signposted the resident to the First-Tier Tribunal (Property Chamber) (‘the FTT’) if he wished to pursue his complaint regarding service charges it had levied. The FTT would be the appropriate body to investigate such concerns and as such the Ombudsman will not consider matters relating to the level of service charges themselves in this investigation. What the Ombudsman can consider is how the landlord responded to the concerns the resident raised and whether it do so reasonably and fairly.
  2. Additionally, the resident stated that he did not receive a response when he contacted the landlord in 2018 to first raise concerns about being charged for estate caretaking services. However, as per paragraph 42(c) of the Scheme, this investigation will not consider matters which were not brought to the landlord’s attention as a formal complaint within a reasonable period (this would normally be within 6 months of the matters arising). The Ombudsman will consider events in the 12 months prior to the resident submitting his complaint in 2022, although prior events may be referred to for context.

Summary of events

  1. The resident sent the landlord a complaint via email on 1 June 2022. He stated his complaint regarded the “ongoing detriment suffered by leaseholders” in his block who continued to be charged for estate caretaking services, despite the landlord having agreed in 2017 that the charges would cease. Despite this agreement, estate caretaking were again included on the service charges invoice the landlord provided leaseholders with for financial year 2018/2019. The resident raised the following concerns:
    1. The landlord had failed to “properly record” its June 2017 decision and had failed to ensure that “accurate invoices” were issued. He stated this had caused a “year on year detriment since 2018/2019 to the present”.
    2. He had made the landlord aware of this error in March 2018 but it had not replied or corrected the mistake and the invoice for leasehold/service charges in 2022/2023 had again contained the charges. He contacted the landlord again in March 2022 and was “surprised” that the landlord asked him “to provide evidence of the decision made in June 2017”.
    3. The landlord had failed to provide a resolution to the issue despite him providing it with the evidence of the 2017 decision in April 2022 and chasing it for a response in May 2022. He believed the landlord had failed to respond to him in a timely manner.
    4. While corresponding with the landlord, he had been advised that its Caretaking Service had carried out a review of the resident’s block and determined that 208 hours of caretaking was now required each year, up from 26 hours per year. He believed the review had “failed to properly assess the block”, had failed to acknowledge it was not part of the wider estate and a lack of “appropriate management of the review” meant that the error was not rectified.
  2. As an outcome to his complaint, the resident asked the landlord to:
    1. Reaffirm that his block was not part of an estate and that leaseholders should therefore not be charged for estate caretaking.
    2. Refund leaseholders for estate caretaking charges from 2018/2019 to present.
    3. That the landlord also remove “other elements of leaseholder charges that relate to estates” such as roads, footpaths and security patrols and for refunds to be issued to him and other leaseholders “from when these charges were first levied”.
    4. Pay him compensation to reflect the “time, effort and inconvenience” that the landlord’s failure had caused.
  3. On 11 July 2022, the landlord provided its stage 1 (Local Resolution) complaint response. It apologised for the delay in providing its response and advised this was due to the officer dealing with the complaint having had to take unexpected leave. It outlined the steps it had taken to investigate the complaint, summarised its understanding of the issues he had raised and made the following comments and findings:
    1. It explained the resident’s home was “situated in…a block and the estate is defined as the land where the property is located”. It advised this land included “both front and rear gardens, boundary walls and fences” and “therefore, some charges to (the block) are classified as block costs and estate costs”.
    2. It clarified that following a Councillor’s Enquiry in 2017, it had agreed that grounds maintenance and estate caretaking charges would not be “rechargeable to the estate from period 2011-12 onwards”. It had refunded related charges from 2011 to 2016 to the resident’s service charge account and he was not charged for these costs in year 2016/2017.
    3. It had responded to his March 2018 email, provided an explanation as to why charges related to grounds maintenance and estate caretaking had been included in the estimated charges for 2018-2019 and a resolution.
    4. It had “stopped recharging the grounds maintenance costs from 2017-2018 onwards” but noted the “estate caretaking service charges were not adjusted to zero” and it had continued to charge him for these from 2017-2018 to date. It explained this was “due to a misunderstanding of the instructions provided to the Accounting team” and offered an apology for the “error and any inconvenience caused”.
    5. As a resolution, it would write back the estate caretaking charges to each leaseholder for the period 2017-2018 to 2020-2021. It also advised the estate caretaking charges “will be adjusted to zero in September 2022” and he could therefore withhold the relevant estimated charges of £239.49.
    6. It stated its Green Space team had, via a named consultant, liaised with residents in April and May 2019 regarding garden improvements works and how residents “would like to use the garden in future”. It advised it had also engaged with the Tenant and Resident’s Association (TRA) in March 2020 “to get agreement on the final plans for the garden”. The area was then “redeveloped” and was now a communal garden/seating area for residents. It advised the works were completed and handed back to the landlord for maintenance in April 2022. The landlord’s Grounds Maintenance Team would be “cutting the grass and maintaining any shrubbery” and the “sweeping of the hard standing paths and general litter picking of the area” would be carried out by the Caretaking Services Team. Leaseholders would therefore be recharged for ground maintenance and estate caretaking services from April 2022 “as the garden is now solely for residents of (the resident’s block”.
    7. It explained that he had been charged 0.50 (assumed to be in pence) for estate caretaking plus contractor costs in 2018-2019 and 2019-2020. It advised the service came back in house in 2020-2021 following a review and the caretaking hours were revised to 8 (4 internal and 4 external, although it did not stipulate if this was per week or per month).
    8. It had also brought the estate cleaning contract back in house in 2020-2021. It advised its former contractor had charged “based on area” while its new in house service was based on hours. It acknowledged that swapping from one calculation to another “will mean variances but…the current hours are those deemed as required for the service”.
    9. Although the resident’s block was a street property, it clarified some charges were “classified as estate charges” and charges related to “Estate Roads and Footpaths and Mobile Security Patrol are rechargeable” as he benefitted from these services. It provided the resident with a breakdown of Actual Service Charges for 2020-2021, which showed the schedule of visits from the Mobile Security Patrol, and information regarding estate roads and footpaths charges.
    10. Regarding its correspondence with the resident, it stated that on 7 March 2022 it had replied to an email received on 20 February 2022 regarding the estate caretaking services and on 22 March 2022 it had replied to 3 emails he had sent earlier that month. On 1 April 2022, it had acknowledged an email he sent on 22 March 2022 and advised it would investigate his query regarding estate caretaking charges. It replied to him again on 4 May 2022 to apologise for the delay in completing its investigation. It considered it had responded to all his emails within 10 working days, which it stated was its corporate response timescale. It agreed it should have done more to review its own records rather than ask the resident to submit evidence of the 2017 decision regarding charges himself. It advised that full investigations were necessary when it received service charge disputes and “there may be a considerable delay” in receiving information, which caused the delay in providing him with a full response.
    11. It advised it partly upheld the resident’s complaint as it had omitted to update its records regarding “estate caretaking service costs being non-rechargeable and in terms of your dispute not being investigated in a timely manner”. It awarded the resident £50 for his time and trouble in chasing the matter and advised this would be credited to his service charge account. It did not uphold the complaints about failing to respond to his enquiries in a timely manner or that he should not be charged for costs relating to “Estate Roads and Footpaths and Mobile Security Patrol” and provided details of how he could ask for its decision to be reviewed.
  4. The landlord provided its stage 2 (Review) response on 14 October 2022. The resident had requested his complaint be escalated on 31 July 2022, raising the following concerns:
    1. He believed 8 hours per week of caretaking for his block was excessive.
    2. The resident consultation regarding the garden area had been “flawed” as it had not been made clear that charges would be increased. The landlord should explore whether the TRA could manage the communal area.
    3. The communal garden was not exclusively for tenants and residents of the block and “vacant plots would be offered to members of the gardening club”.
    4. He did not consider the £50 compensation was sufficient and the amount offered had not been credited to his account.
  5. In its complaint response, the landlord made the following findings:
    1. It had carried out a further check of the resident’s block and determined that 4 hours were “needed for internal cleaning, and one hour for external”. It apologised for an error in its stage 1 response when it advised that 4 hours external cleaning was required. It clarified that leaseholders would be charged for these costs from April 2022 onwards.
    2. At the time of the resident consultation, “it was not apparent that the TRA wished to undertake maintenance of the garden” overall. It was also satisfied that “the additional gardening work was discussed at the time and was in one of the resident surveys”.
    3. It clarified that the garden “should only be accessible to residents of (the resident’s block)” and “keys were distributed to each property”.
    4. It was satisfied that its compensation award was reasonable and “reflected the time and trouble” he had taken. It also apologised for the delay in providing its final complaint response, advising that this was due to a “high volume of complaints and enquiries” it was dealing with at the time.
    5. It had credited £50 to the resident’s service charge account on 12 July 2022 and estate caretaking charges were credited to the account on 26 September 2022.
    6. It directed him to the First-Tier Tribunal (Property Chamber) if he remained unhappy with any of the landlord’s decisions regarding service charges.
  6. The landlord sent the resident a further letter on 18 October 2022 regarding service charge recharges, noting that he had been incorrectly recharged for “estate caretaking” between financial years 2017-2018 to 2020-2021. It advised residents had not benefitted from caretaking services during this period and therefore should not have been charged. It clarified it had refunded those charges (totalling £405.39) and adjusted the charges for 2021-2022 to zero but he would be recharged for these services from April 2022 onwards.

Assessment and findings

The landlord’s response to the resident’s concerns about estate caretaking service charges

  1. From the evidence seen by this investigation, the landlord responded reasonably to the resident’s enquiries regarding estate caretaking service charges. It responded to his enquiries in line with its procedures and, as part of its complaint investigation, acknowledged where errors had been made (in particular failing to stop charging him for caretaking charges after the decision made in 2017) and suggested appropriate steps to resolve matters.
  2. During both its correspondence with him and its complaint responses, it showed itself to be operating transparently by providing information regarding the charges levied and reasonable explanations regarding why some charges had been made in error or been amended following reviews of particular service areas. It appropriately apologised for the fact it continued to charge him for estate caretaker services and that it had asked him to provide evidence of the 2017 agreement himself but demonstrated it wanted to put things right by rectifying the service charge accounts, clearly explaining which charges would be levied and for which financial years and provided compensation.
  3. Overall, while the landlord had incorrectly charged the resident and other leaseholders for some services, evidence seen by this service indicates it did fully investigate the matter after the resident again raised the matter just prior to his complaint, acknowledged errors it had made and tried to “put things right” in accordance with the Housing Ombudsman’s Dispute Resolution Principles. It is considered that the steps it took to correct the resident’s service charge account, its apologies and compensation award constituted reasonable redress in the circumstances.

The landlord’s handing of the complaint

  1. In the Ombudsman’s opinion, the landlord’s responses to the resident’s complaint were detailed and indicated it had thoroughly investigated his concerns. The evidence seen by this investigation demonstrate it made appropriate enquiries and it acted reasonably by acknowledging where errors had been made, both in its management of the service charge account and when asking the resident to provide further supporting evidence which it should have already had readily available on file.
  2. However, the landlord could have considered making a further small award of compensation to reflect the delay in issuing its stage 2 complaint response. The resident requested his complaint be escalated on 31 July 2022 but the final response was not provided until 14 October 2022, 60 working days later. While the landlord did apologise for the delay and appropriately explained its response had taken longer due to the complexity of its investigation, in the Ombudsman’s opinion this does not adequately explain such a significant delay. As such, the landlord should have considered making a further offer of redress. In the Ombudsman’s opinion, a similar offer of compensation would have been appropriate and better recognised the further distress and inconvenience caused. This amounted to service failure and an order has therefore been made at the end of the report for the landlord to make a further offer of compensation to reflect this.

The level of compensation offered

  1. In its stage 1 complaint response, the landlord offered the resident £50 compensation to reflect his time and trouble in chasing a response to his enquiries. While the resident has advised he considers the amount offered to be insufficient, he has not stated what level of compensation he would have considered appropriate. In the Ombudsman’s opinion, the landlord’s offer was reasonable and in line with the Ombudsman’s guidance on compensation, which suggests awards of between £50 and £100 for minor failings. While it is recognised that the resident was charged incorrectly for a number of years, the landlord rectified this and there was no permanent detriment caused. The landlord had considered the effect its mistake had on the resident and, when taking into account the other steps it took to rectify the situation, the amount of compensation it awarded was reasonable.

Determination (decision)

  1. In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, there was an offer of reasonable redress made by the landlord regarding its response to the resident’s concerns about estate caretaking service charges.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was:
    1. Service failure regarding the landlord’s handling of the resident’s complaint.
    2. No maladministration regarding the level of compensation offered.
  3. In accordance with paragraph 42(c) of the Housing Ombudsman Scheme, the complaint about the landlord’s handling of service charge consultation is outside of the Ombudsman’s jurisdiction.

Reasons

  1. The landlord acknowledged that it had erred in continuing to charge the resident for estate caretaking services after it had already confirmed that it would not do so. It apologised for its mistake and took appropriate steps to rectify its mistake and ensure the resident was not left worse off. It sought to provide relevant information regarding what had gone wrong and what leaseholders would, and would not be, charged for. Its offer of an apology and compensation in recognition of the resident’s time and trouble in chasing a resolution to his enquiry was reasonable and proportionate.
  2. Its stage 2 complaint response was provided significantly outside its target time of 25 working days. While the landlord appropriately apologised for this and reasonably explained that it had been a complex investigation, given the extent of the delay it still should have considered whether further redress was appropriate in the circumstances.
  3. The compensation the landlord offered to reflect the identified error in charging the resident for estate caretaking services after 2017 was, in conjunction with the apology and other steps it took to resolve the issue, reasonable and in line with its own policies and the Ombudsman’s guidance.

Orders

  1. The landlord should, within 5 weeks of this determination (extended by 1 week due to the intervening holiday period), pay the resident an additional £50 compensation to reflect the delay in issuing its stage 2 complaint response.