Clarion Housing Association Limited (202001457)

REPORT

COMPLAINT 202001457

Clarion Housing Association Limited

10 September 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

1. The complaint is about:
   1. The level and reasonableness of the service charge.
   2. The landlord’s response to the resident’s enquiries about repairs to a dormer window at the building.
   3. The landlord’s response to the resident’s enquiries about repairs to a communal tap, pipe and guttering at the building.
   4. The landlord’s complaints handling.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
3. After carefully considering all the evidence, in accordance with paragraph 39(g) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction: the complaint about the level and reasonableness of the service charge.
4. On 25 September 2019 the landlord sent the resident a notification of the actual service charge expenditure for the financial year 2018-19. The notification letter said that the estimated service charge had been £825.93 and the actual expenditure £1130.30 and there was therefore an overspend of £304.37 which had been added to the service charge. Sometime following receipt of this notification, the resident asked the landlord for an explanation of the additional charge.
5. The landlord replied to the resident on 13 January 2020 and provided details of the repairs it had carried out in 2018–19 and a breakdown detailing the £304.37 overspend.
6. The resident replied to the landlord on 5 February 2020 saying that he wished to make a formal complaint about the level and reasonableness of the service charge.
7. Paragraph 39 (g) of the Housing Ombudsman Scheme says that “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion: concern the level of rent or service charge or the amount of the rent or service charge increase.” Therefore, this aspect of the complaint is outside of the Ombudsman’s jurisdiction.
8. After carefully considering all the evidence, in accordance with paragraph 39(e) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction: the complaint about the landlord’s response to the resident’s enquiries about repairs to a dormer window at the building.
9. A charge for renewing lead cover on a dormer window was included in the 2017-18 service charge. On 5 February 2020 the resident informed the landlord that he wished to make a formal complaint about various matters arising concerning the 2018-19 service charge. The resident also said that he wanted to complain about the landlord’s charge in the 2017-18 service charge concerning the dormer window as he maintained that the works he had been charged for had not been carried out.
10. The resident would have been informed of the actual service charge for 2017-18 in September 2018. However, the resident did not raise this issue as a formal complaint until February 2020, some 17 months later.
11. Paragraph 39 (e) of the Housing Ombudsman Scheme says that “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion: were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising.”
12. Therefore, this aspect of the complaint is outside of the Ombudsman’s jurisdiction.
13. The remaining two complaints about the landlord’s response to the resident’s enquiries about repairs to a communal tap, pipe and guttering and its complaints handling are assessed below.    

Background and summary of events

14. The resident is a shared ownership leaseholder of the property, a two bedroom flat. The landlord is the freeholder of the building.
15. The lease of the property says that the landlord is responsible for repairing and maintaining the main structure of the building including windows, pipes, water apparatus upon the building and communal parts.
16. The landlord’s “frequently asked questions” document about service charges says that “Major works costs are for planned or cyclical maintenance such as roof replacements, new lifts, external redecoration and redecoration of communal areas inside a building. Before any major works are started, we will consult with shared owners and leaseholders in accordance with Section 20 legislation and advise how much the work is estimated to cost.”
17. Section 20 of the Landlord and Tenant Act says that a landlord is required to consult with tenants before carrying out works where the cost will exceed the sum of £250 for any one leaseholder.
18. The landlord has a two stage complaints procedure. At stage one the landlord aims to response to the complaint within ten working days. At stage two the landlord aims to resolve complaints within 20 working days.
19. As set out in paragraph 5 above on 13 January 2020 the landlord sent the resident a breakdown of the repairs it had carried out in 2018-19. The breakdown included £475.62 for leasehold general repairs and showed that no one repair had cost the resident more than £250.
20. On 5 February 2020 the resident sent an email to the landlord saying that he wished to make a formal complaint about the level and reasonableness of the service charges for 2018-19 and the landlord’s handling of repairs to a communal tap and guttering at the property. The cost of the repairs had formed part of the service charge. 
21. On 12 February 2020 the landlord replied to the resident explaining what work had been carried out to the communal tap and advising the resident that if the tap was currently leaking to report it to its repairs team.
22. The resident replied to the landlord on 13 February 2020 setting out further details of his complaint, specifically:
    1. The handling of the repairs to the communal tap.
    2. The landlord had not informed the resident when it was carrying out work to the building.
23. Following requests for updates from the resident the landlord sent him emails on 24 February 2020, 4 March 2020 and 13 March 2020 explaining that his compliant was being looked into. In the 13 March 2020 email the landlord thanked the resident for his patience and apologised “for any inconvenience caused to you.”
24. The landlord sent the resident its stage one response to the formal complaint on 17 March 2020. In its response the landlord:
    1. Informed the resident that if the tap was currently leaking he should report it to the landlord’s repairs team.
    2. Said that there was no requirement under section 20 of the Landlord and Tenant Act for the landlord to communicate with the resident prior to carrying out the repair works as all the repairs were communal.
25. On 14 July 2020 following contact from the resident the landlord emailed the resident with details of how to escalate his complaint. Sometime in October 2020 the resident spoke to the landlord about his complaint and on 4 November 2020 the resident sent the landlord an email asking for it to provide the final response to his complaint. The resident said that he remained unhappy with the landlord’s response to his complaint for the following reasons:
    1. The communal tap was never repaired.
    2. The landlord was in breach of Article 8 of the Human Rights Act for not notifying him about the work being carried out to the window.
26. On 18 November 2020 and 26 November 2020, the resident sent emails to the landlord asking for an update on his complaint.
27. On 15 January 2021 the landlord provided its stage two response to the formal complaint. In its response the landlord:
    1. Confirmed that all the works for which the resident had been charged had been carried out and detailed the job numbers and dates for the works carried out. It explained that repairs to the communal tap and pipe had been carried out on 15 November 2018, 16 January 2019 and 14 February 2019. On the 14 February 2019 the landlord had replaced the tap and had not charged the resident for this as the previous repair had not been effective.
    2. Confirmed that guttering repairs had been carried out in August 2018 using an ‘easy dec scaffolding alternative’.
    3. Explained that as a social housing charity the landlord was not a public authority subject to the requirements of the Human Rights Act. The landlord also said that the Human Rights Act did not overrule its repair responsibilities and that for communal works such as cleaning out guttering, it did not necessarily advise residents as access was not required to complete such works. The landlord confirmed that it followed the Landlord and Tenant Act “as its overarching legislative mandate.” 
28. The landlord’s letter dated 15 January 2021 was its final response to the resident’s formal complaint, confirming that its internal complaints procedure had been exhausted.

Assessment and findings

The landlord’s response to the resident’s enquiries about repairs to a communal tap, pipe and guttering at the building.

29. In reaching a decision about the resident’s complaint we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case.
30. In responding to the resident’s complaint that the works to the communal tap and pipe for which he had been charged in the 2018-19 service charge hadn’t been carried out the landlord provided details of the works that had been carried out, together with the relevant job numbers and dates. There is evidence from the landlord’s repair records that the works to the communal tap and pipe set out in paragraph 27 (a) above were completed. Therefore, the landlord’s response to the resident’s enquiries about repairs to the communal tap and pipe was fair and reasonable.
31. Following the landlord’s final response to the complaint the resident informed it that he was disputing whether the landlord had used an “easy dec scaffolding alternative” to repair the guttering as he thought a ladder had been used. A question about what method of access had been used and charged for would be a question concerning the reasonableness of the service charge and as set out in paragraph 7 above would be outside of the Ombudsman’s jurisdiction. However, there is evidence from the landlord’s repair records that works to repair the guttering, for which the resident was charged in the 2018-19 service charge were carried out in August 2018. Therefore, the landlord’s response to the resident’s enquiries about repairs to the guttering was fair and reasonable.
32. The landlord’s obligations concerning notifying residents about works it will be carrying out are set out in section 20 of the Landlord and Tenant Act (see paragraph 17 above). The landlord is required to notify a tenant about works it will be carrying out if the cost to an individual leaseholder of the works is more than £250. As none of the works carried out and charged for in the 2018–19 service charge amounted to more than £250 per leaseholder the landlord was not required to notify the resident before carrying out the works.
33. For the reasons set out in paragraphs 30 to 32 above there is no evidence of service failure by the landlord in its response to the resident’s enquiries about repairs required to the communal tap, pipe and guttering at the property.

The landlord’s complaint handling

34. The landlord provided its stage one complaint response on 17 March 2020, 29 working days after the resident made a formal complaint and 19 working days later than the 10 working day timescale set out in its complaints procedure (see paragraph 18 above).
35. The landlord provided its stage two complaint response on 15 January 2021, 49 working days after the resident’s request to escalate the complaint and 29 working days later than the 20 working day timescale set out in the landlord’s complaints procedure (see paragraph 18 above).
36. The landlord apologised for the delay in providing its stage one complaint response in its email to the resident dated 13 March 2020. However, the delays at both stages were significant and there is no evidence that the landlord updated the resident whilst dealing with the complaint at stage two. The landlord’s delays in handling the resident’s formal complaint were not appropriate or in accordance with the provisions of its complaints procedure and represent a service failure.

Determination (decision)

37. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s enquiries about repairs to the communal tap, pipe and guttering at the property.
38. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of the complaint about the landlord’s complaints handling.

Reasons

39. The landlord’s response to the resident’s enquiries about repairs to the communal tap, pipe and guttering at the property was fair and reasonable.
40. The landlord’s complaints handling demonstrated inappropriate delays.

Orders and recommendations

41. The landlord is ordered within four weeks of the date of the determination to pay the resident a £100 compensation for the distress and inconvenience incurred by the resident as a result of the landlord’s delays in responding to the formal complaint.