Clarion Housing Association Limited (202001459)

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REPORT

COMPLAINT 202001459

Clarion Housing Association Limited

22 July 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 leaseholder complains about:
    1. delays to a window repair from September 2019;
    2. delays to repairs to a door entry system;
    3. service charges for repairs to a door entry system, and;
    4. complaint handling.

Jurisdiction

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the 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.
  2. The resident has complained about being overcharged via service charges for repairs to the door entry system, and is seeking a refund of these charges. The focus of the leaseholder’s complaint to the landlord about this matter has been her belief that leaseholders had been charged for repairs that had not been carried out and/or had not been carried out effectively.
  3. The Scheme sets out at paragraph 39(i) that this Service will not investigate complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.
  4. Matters concerning service charges fall under the remit of the First Tier Tribunal (FTT). The FTT can make determinations on all aspects of the liability to pay a charge. In order to decide liability, it decides whether costs have been reasonably incurred, and if so whether the standard of any services for which the costs were charged were reasonable. This is not something that the Ombudsman can fully determine.
  5. In light of this, the complaint about the reasonableness of the service charges for the door entry system is outside of jurisdiction under paragraph 39(i).

Background

  1. This Service issued a determination on 26 March 2020 in relation to a complaint that the leaseholder had made about the handling of window replacement works, which took in to account the period January 2019 when the damage was first reported to the landlord, up to September 2019. The determination set out that the landlord should pay the leaseholder £150 compensation for the inconvenience of the handling of the works and provide her with an update if the works had still not been completed (it later transpired that the window was replaced the week prior to the determination having been issued, with some minor follow up works in April 2020).

Summary of events

Window issues from September 2019

  1. The landlord’s correspondence indicates that its contractor manufactured a window and offered an installation date on 11 November 2019. The landlord’s contractor attended the leaseholder’s property to install the new window but it transpired that the window was incorrect. The landlord’s internal correspondence indicates that it understood at the time that the contractor would remanufacture the window and that it would be about a 6 week turnaround time.
  2. The landlord’s contractor then made extensive enquiries with several parties to identify and source the original window. Consideration was given to the exact design, specifications, features and dimensions of the window. The contractor believed that an ‘O&M (operations & maintenance) manual’ should have been issued to the landlord on completion of the building, which would have had all the materials suppliers information; however neither the landlord nor the developer were able to provide this.
  3. On 19 December 2019 the landlord’s contractor advised the landlord that it had fabricated a window but noticed on site that it ‘stood out like a sore thumb’ therefore it did not proceed with installation. It advised that it managed to ascertain likely subcontractors used by the developer at the time the property was constructed, and that it was in the process of making enquiries as to whether they could supply and quote for the correct replacement window. One subcontractor had already advised that the profile it machined for its windows would have changed since 2007.
  4. The landlord obtained a design and quote for a window from a window manufacturer used by the developer’s subcontractor. It noted that it was very similar but not exactly the same. On 16 January 2020 it spoke to the leaseholder and emailed her the window for her consideration. On 19 January 2020 the landlord discussed with its contractor the exact specifications of the window, in particular the dimension and finishing of the horizontal glazing bar, and on 20 January 2019 the landlord agreed that the window identified by the contractor should be installed. The window was ordered with a lead in time of 6 weeks.
  5. On 12 February 2020 the contractor advised the landlord that the window manufacturer had stated that the window would be delivered in the week of 16 March 2020. Works to complete the replacement were carried out in March and April 2020.

Door entry system

  1. The repair records available to this Service show that a repair to the trade button to the door entry system was reported in August 2018. It was attended to that day and it was found that the trade button was permanently enabled, meaning that the door could be accessed. A repair was made, and the system left working.
  2. The next repair report is dated 6 February 2019, and was attended to the next day, where it was found the entry buzzers were not working. It was determined that the system needed a new power supply. A further visit was carried out the following month and again it was found that a new power supply was required. A note of another visit in April 2019 reads ‘…the whole system is blown and needs replacing. Power is being supplied to system but system not working due to the whole system being faulty needs replacing.’
  3. The landlord states that the door entry system was replaced in November 2019, whereas the leaseholder says that it was not working at her property until January 2020.

Complaint

  1. On 11 November 2019 the leaseholder emailed the landlord’s service charge team, noting that her service charge for the 2018/2019 period contained an amount for the repair of the door entry system. She noted that the landlord had been advised of the breakdown in February 2019, and subsequently advised on 11 April 2019 that it was beyond repair and required replacement. The resident concluded that the door entry system had not been repaired before the end of the 2019 financial year, and in fact was still not working. She therefore felt it unreasonable that she was being charged for its repair. She also complained that the broken window at her property had still not been replaced although had been reported in early 2019 and said that due to this she was unable to let or sell the property. She stated ‘In terms of the above, I would like you to cancel the invoice of overspend of £229.78.’
  2. The leaseholder sent an email to the complaint inbox on 18 December 2019 noting that the window had still not been replaced, and asked that the matter be investigated urgently. The landlord responded on 3 January 2020 acknowledging the complaint and saying that a response would be provided within 10 working days.
  3. As no response was forthcoming, the leaseholder chased up the matter on several occasions over the coming weeks. On 28 February 2020 she emailed again asking for a response to her November 2019 request to waive service charge due to the delay in the window replacement, and because of the ‘…disputed invoice of overspend 229.78 on the entry system for financial year 2018/2019.’ She said that the door entry system had not been working since late 2018 and was only repaired in January 2020.
  4. The landlord emailed a reply on 3 March 2020 stating that a formal complaint had been logged. It then provided a response dated 20 April 2020. In this it noted that the Regional Service Charge & Section 20 Manager had previously responded to the leaseholder’s request that service charges be waived due to a delay in fitting a new window, and had explained that if any recompense for a failure in performance was due it would not be dealt with through service charges. The window had been replaced on 20 March 2020.
  5. Regarding the door entry system, the landlord explained that the list of repairs that were included in the re-charges for the year 2018/2019 were correct to recover. It stated that it was not for the Service Charge Team to write off or waive costs without instruction from the team that incurred the costs. The sum of £229.78 related to the difference between the estimate and the actual spend of various charges over 2018/2019, and was not made up of just costs for door entry works. The leaseholder had been issued with a full breakdown in a letter of 4 November 2019. No adjustments would be made to the leaseholder’s service charge account as the figures were correct. The landlord also noted that the window had been repaired.
  6. The landlord acknowledged some errors in logging the original November 2019 query, which had meant it had not become aware of this until the formal complaint was logged on 3 March 2019.
  7. The leaseholder replied on 25 April 2020 stating that she did not accept the response. She said that the landlord had charged all residents £168 for repairing the entry system in March 2019, when in reality it had not worked at all from late 2018 until January 2020.  She concluded that in light of this the service charge should be reduced or waived for the inconvenience.
  8. In relation to the window, the leaseholder said that she had been unable to let or sell the property due to the delay in replacing the window. She explained that the rental income lost was around £12,000 ‘However I chose not to ask for compensation for the rent loss but am only asking for waiving the service charge since March 2019 till window replacement was completed on 9/04/2020.’ She asked the landlord to escalate the case to the next stage of the complaint procedure.
  9. The landlord replied on 22 May 2020, noting that the complaint concerned the charge for the replacement window, and the charges for repairs to the door entry system. In relation to the window repair, the landlord noted that the £150 compensation ordered by the Ombudsman in its March 2020 determination was being processed, and stated that if there were arrears on the account, this figure would be offset against them.
  10. In relation to the door entry system, the landlord said that the service charge deficit was not purely based on door entry costs. It explained that the leaseholder paid a contribution as per her lease of 1/28. The landlord had reviewed the repair costs and found that the total cost of repairs relating just to the door entry system was £234.39 plus a 15% administration charge. This meant that the total cost the leaseholder paid for the repairs was £9.62. The landlord said that the door entry system was upgraded in November 2019, which would be included in the leaseholder’s 2019/2020 account, billed in September 2020.
  11. The landlord had also reviewed the call outs to the block and found that prior to the system upgrade, the faults reported were responded to by engineers. This ranged from an issue with the trades clock, to faulty handsets and power supply issues. A new power supply had to be ordered and fitted to test the system so that the engineer could establish if there were any further faults. The landlord explained that it would not waive service charges every time there was a repair issue, and there was no indication of a failing on its part. It explained ‘Works can take time to investigate as there may be multiple faults that take time to discover. Time is then required to plan in and complete any replacement.’
  12. In response the leaseholder stated that the landlord had misunderstood the situation and explained that the Ombudsman had previously considered her complaint about the window up until September 2019, and ordered the landlord to pay her compensation of £150. She said that she had not received this as yet and did not accept the landlord’s proposal to offset the amount against arrears on her accounts. She stated ‘My current complaint is requiring the service charge to be waived as compensation and it is separate issue from the 150 pounds…This complaint is requesting compensation for inconvenience due to excessive delay in window repair from September 2019 to 9 April 2020.’ She said that the landlord had failed to respond to the substance of her complaint she would refer the matter to the Ombudsman.

Assessment and findings

Window replacement

  1. The Ombudsman’s previous investigation recognised that although the damaged window could not be repaired and a bespoke replacement needed to be fabricated and installed, overall there were failings in the landlord carrying out these works from January 2019 when the damage was first reported, until September 2019, the period which the investigation was able to consider.
  2. It is clear from the information available that there were further delays in these works being carried out due to errors after September 2019. For example, the installation planned in November 2019 was aborted as the window that had been manufactured was incorrect. Another window was made in December 2019 but was also found to be inappropriate and the installation did not proceed as planned.
  3. While it is apparent that efforts were made to obtain the correct specification window, given that the issue had been ongoing for nearly a year by this point the landlord should have been able to source and fit the replacement before the end of 2019. The Ombudsman finds that the errors and delays in doing so represent a service failure on the part of the landlord. It was then another three months after these aborted attempts that the window was finally replaced.
  4. While the Ombudsman does find that a payment of compensation is warranted to recognise the time, trouble and frustration experienced by the leaseholder, there is no basis on which to link this to the service charge as she has requested, and notes that the matter did not form part of the services that these charges relate to. Further, as set out in the previous determination, there is no obligation within the landlord/tenant relationship for the landlord to compensate the leaseholder for notional lost rental income arising from her decision to rent out the property. The courts can make a binding decision as to whether the landlord is liable for lost rental income.
  5. Instead, the Ombudsman takes into account things such as the time and trouble taken in pursuing an issue and looks to its own compensation guidance. This sets out that for cases where there have been failings of short duration with no significant impact on overall outcome, amounts of £50 to £250 can be considered. In cases where there have been significant failings but no permanent impact on the complainant, amounts of £250 to £700 can be considered. This case falls between these two criteria, with no significant impact on the overall outcome, but a long duration of the issues and evidence that the leaseholder did experience time and trouble chasing up the repair for a protracted period, and twice referring the matter to this Service. This was no doubt very frustrating for her.

Door entry system

  1. The leaseholder’s complaint about this issue centred on her belief that there had been an ‘overcharge’ and that the charges for repairs were unreasonable. The landlord’s response to the complaint, perhaps not wholly unreasonably, then focused on the service charges. However, it is clear that the basis of the complaint was that the door entry system had been non-operational for a long period, and that the leaseholder felt she should be compensated for this inconvenience. In light of this, the landlord should also have addressed the repair issue and considered whether compensation was appropriate.
  2. To some extent it did look at the repair issues in its 22 May 2020 response stating that there had been a range of repairs, with a new power supply ordered and fitted, and saying that works could take time to investigate and plan. However, it did not address the leaseholder’s claim that the door entry system had been out of order for over a year (nor indeed refute this).
  3. The repair records available to this Service show that a repair was made to the door entry system in August 2018, which was left in full working order. There are no further repairs logged after this until February 2019, and no other evidence that suggests that it was not working during this period.
  4. However, evidence from February 2019 onwards suggests that the door was not in full working order from this time, as the repair records set out that a new power supply was needed but there is no indication that this was installed, and two months later the records state that the ‘whole system is blown and needs replacing’. There is no note in the repair records on when this work was completed. The landlord has said it was November 2019, but the resident states it was not until January 2020 that the door entry system was fully operational in her property.
  5. It seems more certain that the door entry system was out of order for at least a period of between seven and nine months if taken from the April 2019 callout, which determined the system needed replacing, until somewhere between November 2019 and January 2020 when this occurred. It is noted that the landlord’s repairs policy specifically excludes works such as the replacement of door entry systems, and so it is not clear to this Service what time frame the landlord might usually expect to complete such work. However, while more complicated works such as this can take time, overall, the Ombudsman finds that there was an unreasonable delay in the works being carried out, which the leaseholder has stated caused her inconvenience.
  6. The Ombudsman therefore does find that a compensation payment is warranted, but as the leaseholder does not live at the property, and by her own account had no tenants for the period in question, the level of day-to-day inconvenience experienced from the non-operational door entry system would have been minimal. Neither is there evidence of the leaseholder experiencing time and trouble chasing up the repair with the landlord during the period in question, and she does not make any reference to this. As the ‘adverse affect’ experienced from the service failure was minimal, this is reflected in the amount of compensation ordered.

Complaint handling

  1. The information available shows that the landlord did not provide a response to the leaseholder’s 11 November 2019 email in a timely manner. While it then acknowledged her 18 December 2018 complaint, it failed to provide a response to this. The leaseholder chased up the matter on several occasions over the coming weeks.
  2. The landlord did then provide responses at stage one and two of its complaint process once it had logged a complaint on 3 March 2020. The leaseholder has complained that the landlord failed to address the substance of her complaint about the windows, which she has said was about compensation for inconvenience due to excessive delay in window repair from September 2019 to 9 April 2020. However, this is not the complaint that she had put to the landlord: In her 25 April 2020 escalation request, the leaseholder said that she was asking for the service charge to be waived for the period March 2019 until window replacement was completed. Given that the leaseholder was asking for compensation for a period that had been included in the Ombudsman’s previous determination, it was reasonable for the landlord to refer back to this and the compensation of £150 ordered in its 22 May 2020 response.
  3. As addressed above, this Service considers that while the leaseholder may have related her complaint about the door entry system to the service charge, it was clear that at the heart of the matter was a delayed repair. Given that the record indicates that there was a delay, it would have been appropriate for the landlord to address this and consider compensation.

 

Determination (decision)

  1. In line with Section 54 of the Scheme, the Ombudsman finds that there was:
    1. service failure in the window repair from September 2019;
    2. service failure with repairs to the door entry system, and;
    3. service failure with the complaint handling.

Reasons

  1. There was a long delay in the window replacement, with the leaseholder chasing this up for an extended period and referring two separate complaints to the Ombudsman. This Service is satisfied that the time and trouble taken by the leaseholder in pursuing the matter, and the frustration experienced, warrants a remedy in the form of a compensation payment.
  2. There was also a service failure in relation to the door entry system, although the information available shows that this would have had a minimal ‘adverse affect’ on the leaseholder.
  3. Finally, there was a delay in responding to the leaseholder’s concerns about these issues.

Orders

  1. Within one month of the date of this report, the landlord should pay the resident a total of £375, as follows:
    1. £250 for the delay in replacing the window between September 2019 and March/April 2020.
    2. £50 for the delay in repairing the door entry system.
    3. £75 for the delays in complaint handling.