Clarion Housing Association Limited (202106169)

REPORT

COMPLAINT 202106169

Clarion Housing Association Limited

24 February 2022

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 concerns:
1. The length of time scaffolding was erected outside the property.
2. The associated formal complaint into the matter.

Background and summary of events

Background

The resident is an assured tenant of the landlord, which is a housing association. The property is a flat in a communal building; the landlord does not own the freehold of the building but does own the lease for the property which it sublets to the resident. A managing agent is employed by the freeholder of the building, with the responsibility for the upkeep of the fabric of the building and the arrangement of any necessary repairs coming within the managing agents remit.
The landlord’s Managing Agents policy describes its responsibilities relating to service standards and states that it “will be clear about its responsibilities and which organisation is ultimately responsible for the services [its tenant] receive and who to contact if there is a service failure by the managing agent”.
About situations where the landlord is not the freeholder and does not directly contract the managing agent, the policy notes that it has “a duty as landlord to our residents and a duty of care to employees and others even if the lease says that the managing agent is responsible for the maintenance and services to communal areas”.
The landlord operates a two-stage complaints process. When a complaint is received, the landlord will first attempt to resolve the complaint informally. If that is not possible it will provide a formal stage one complaint response. If the complainant is dissatisfied with the response, they can request an escalation of the complaint to the next stage of the landlord’s process. The landlord will then undertake a review of the complaint and provide a stage two response. This will be the landlord’s final response to the complaint.
The complaints policy states that the landlord aims to “put things right within reasonable timescales”. However, the policy does not provide specific timescales for responding to complaints. The Ombudsman’s Complaint Handling Code (published on our website) requires for complaint response timescales in landlords’ complaints procedure to be for the landlord to respond at the first stage of the complaint process within ten working days of receiving a complaint, and to respond at the second and final stage of the complaint process within 20 working days of the complaint being escalated.
The landlord’s compensation policy defines compensation as “a payment of recompense for loss of service or out of pocket expense at a quantifiable rate or amount incurred by a resident as a direct result of [the landlord’s] actions or failure to act.”
The policy also states that the landlord will consider offering discretionary compensation in recognition of the impact or a particular adverse effect the matter has had on a complainant. When calculating the amount of compensation to offer, the policy states that it uses the Ombudsman’s own remedies guidance (which is available on our website) and case studies as guidance. For repeated failures reply to a complainant’s letters, emails or telephone calls. The compensation policy recommends a payment of £50 per quarter per failure.

Summary of events

In November 2019 the managing agent’s maintenance contractor erected scaffolding to locate, and then repair, a leak from the roof of the building. The landlord wrote to the managing agent on 30 April 2020 to enquire when the scaffolding would be removed and explained that several of its tenants in the building had complained that the scaffolding blocked sunlight into their properties.
The managing agent replied to the landlord on 30 April 2020 and stated that the work had been delayed by the Covid-19 pandemic and that it hoped to re-book the work in the coming weeks. It also explained that it would be beneficial for residents of the building for the scaffolding to remain in place rather than accrue additional costs by having to remove and then erect it again.
The landlord wrote to the management agent again on 5 May 2020. It noted that the scaffolding was erected in November 2019, which was well before the national lockdown went into effect in March 2020, and expressed its concerns that the outstanding work had yet to be rebooked. It requested that the managing agent consider removing the scaffolding until the work was rebooked or considered offering compensation to its tenants for the loss of the use of their balconies during the period of the national lockdown.
The managing agent replied on 13 May 2020. It explained that a repair was undertaken in January 2020, however a further leak was reported, and additional investigations were required. Due to the national lockdown, this investigation was unable to be completed and it was currently in contact with the contractor in order to return as soon as possible.
In response to the landlord’s request for the scaffolding to be removed or compensation considered, the managing agent stated that “we have a duty to maintain the building as well as protect the service charge funds and as such no compensation will be made. I assure you we are working with the contractor to have works carried out as soon as possible so that the scaffolding can be removed.”
On 28 May 2020 the resident wrote to the landlord about the scaffolding. He explained that he was unable to use his balcony, which had been increasingly frustrating as a result of the national lockdown, and he was concerned that the balcony would continue to remain out of use during the summer months. The resident requested information on when the scaffolding was likely to be removed.
The landlord replied to the resident on 10 June 2020 and passed on the information provided to it by the managing agent on 13 May 2020.
The resident has informed this Service that he wrote to the landlord on 2 August 2020 requesting to raise a complaint into the matter. He then wrote again on 12 August 2020 asking for an update. The landlord replied on 1 September 2020 and stated that it had no record of a complaint being made. The resident resent his complaint on 3 September 2020 and received an acknowledgement on 7 September 2020. The landlord wrote again on 12 October 2020 apologising for the delay. This period of correspondence between the landlord and resident has not been provided to this Service.
The landlord’s system notes state that a formal complaint was opened on 21 October 2020. The landlord’s notes describe the elements of the resident’s complaint as:
1. There had been scaffolding in place since November 2019 preventing access to the balcony.
2. During this period the resident had observed very little work being undertaken.
3. He had sent several emails to the landlord requesting updates on the progress of the work but had received no information other than the landlord was chasing the contactor.
4. The work had left satellite TV cables exposed, which were damaged by the weather. This had been repaired; however, the cables remained exposed, and they were likely to be damaged again.
The landlord called the resident on 11 November 2020 to discuss the complaint. The landlord then wrote to the managing agent on 9 December 2020 requesting an update and informed it that it required the information to respond to a formal complaint.
The landlord wrote to the managing agent again on 11 December 2020. It asked for an update, informed it that tenants did not have full use of their balconies and provided it with photographs. The landlord then wrote further emails on 16 and 21 December 2020 requesting an update
The managing agent replied on 21 December 2020. It informed the landlord that it had called the scaffolding company that day and would provide an update when it heard back.
The landlord wrote to the managing agent on 4 January 2021 requesting an update. It wrote a further email on 7 January 2021 to inform the manging agent that it had been notified by tenants in the building that people had been observed climbing on the scaffolding attempting to gain access to properties. The landlord wrote further emails on 11 and 13 January 2021 to inform it that it urgently required an update on the scaffolding in order to respond to a complaint.
The stage one complaint response was sent to the resident on 14 January 2021. The landlord first apologised for the delay in providing the response and the inconvenience that this had caused. It then informed the resident that:
1. The building was owned by a third party, who employed a managing agent. The scaffolding was erected to carry out essential repairs to leaks from the roof of the building. However, this work was delayed due to the Covid-19 pandemic and work restrictions put in place during the national lockdown.
2. A senior manager was now in contact with the managing agent regarding the removal of the scaffolding. The manager would also liaise with the resident and contact him when dates for the removal of the scaffolding had been confirmed.
3. It apologised for the inconvenience that the delay in removing the scaffolding had caused. It also offered the resident £50 compensation in recognition of the delay in providing the complaint response.
The resident wrote to the landlord on 2 February 2021 and requested an escalation of the complaint on the grounds that the work to the building’s roof remained unfinished and that the satellite TV cables had been damaged again, which had resulted in him not having a television signal for the previous three weeks.
The landlord wrote to the managing agent on 18, 24 and 25 February 2021. It described the issues its tenants had experienced as a result of the scaffolding and expressed its dissatisfaction that its recent emails and telephone calls to the managing agent had not been responded to.
The landlord wrote to the resident on 2 March 2021. It apologised for the delay in responding to his escalation request. It then confirmed that the complaint had been escalated and that it aimed to provide a response within 20 working days.
The resident acknowledged the landlord’s email and requested that as part of its complaint review, that it consider the length of time he had been without access to the balcony while paying full rent for the property.
The scaffolding was taken down on 5 March 2021 and the stage two complaint response was sent to the resident on 17 March 2021. It informed the resident that:
1. The freeholder was responsible for the maintenance of the structure and communal areas of the building and had appointed a managing agent to manage these obligations on their behalf.
2. From its communication with the managing agent, it understood that following delays due to Covid-19 the work to roof was completed in December 2020. However, the managing agent had some difficulty in reaching the scaffolding company and the scaffolding was not removed until 5 March 2021.
3. It shared the resident’s frustration as to the length of time the scaffolding was in place and assured him that it had vigorously pursued the issue with the managing agent.
4. It had investigated the issue of television reception from the communal satellite dish. It spoke to other residents in the building who used the dish and no issues with reception were reported. The landlord advised the resident to contact his television provider.
5. It then apologised for the length of time the scaffolding had been in place and the inconvenience that this had caused. It informed the resident that it had sought assurances from the managing agent that there would not be a repeat of a similar issue in the future.
The landlord concluded the response by informing the resident that he had exhausted its internal complaints process and advised him on the steps to take to bring his case to this Service should he remain dissatisfied.
The resident contacted this Service on 14 June 2021. He described the outstanding issue to the complaint as the landlord had not addressed the length of time he was without the use of his balcony. As a resolution to the complaint, the resident requested a portion of his rent was refund for the period the balcony was put out of use.

Assessment and findings

The length of time scaffolding was erected outside the property

It is not in dispute that the roof of the building required repairs. The responsibility in completing the repairs lies with the freeholder of the building, and the managing agent who acts on their behalf. It was therefore appropriate that the scaffolding was erected in November 2019 and an investigation commenced to identify the locations of the leaks from the roof and to complete repairs.
As a result of the national lockdown, the repair was delayed. Further delays occurred following the completion of the work as the managing agent experienced difficulty in contacting the scaffolding company in order to have the scaffolding removed.
Throughout this period, the landlord corresponded with the managing agent. It informed the managing agent of the difficulties its tenants faced due to the scaffolding being in place and chased them for a timescale as to when it would be removed. When the resident raised a complaint, the landlord informed the managing agent that it required the information to allow it to respond. The landlord also assigned a senior manager to act as its point-of-contact between it and the managing agent and the resident to keep him updated on the progress of its attempts to have the scaffolding removed.
Clause 5 of the leasehold agreement describes the contractual arrangements the landlord has with the managing agent, who is paid a quarterly fee by the landlord. Clause 6 of the leasehold agreement describes the services provided by the managing agent to the landlord on behalf of the freeholder. This, in part, states that:
1. “The Management Company shall not be liable to [the landlord] nor shall [the landlord] have any claim against [the freeholder] in respect of:- any failure on the part of the Management company to provide any of the Services or discharge any of its obligations hereunder unless and until [the landlord] shall have notified the Management Company in writing of the facts giving rise to the failure and the Management Company shall thereafter have failed within a reasonable length of time to remedy the same and then in such a case the Management Company shall be liable to compensate [the landlord] only for loss or damage sustained by [the landlord] after such a reasonable time has elapsed”.
The landlord has provided its correspondence with the managing agent in which it explained in writing on several occasions why it thought the decision to leave the scaffolding in place was unreasonable and described the effect it had on the tenants in the building. However, no evidence has been provided that the landlord contacted the freeholder to inform them of the matter.
Therefore, there has been service failure by the landlord as it did not pursue all the powers available to it as described in clause 6 of the leasehold agreement. It also did not adhere to its Managing Agents policy as it failed follow its duty of care to the resident as, despite the clear difficulties it encountered when writing to and calling the managing agent, it made no effort to contact the freeholder.
In order to fully resolve this aspect of the complaint, compensation is warranted that recognises the delay and inconvenience caused to the resident by the landlord’s service failure. the Ombudsman’s remedies guidance suggests a payment of £250 to £750 in instances of considerable service failure or maladministration, but there may be no permanent impact on the complainant. As examples for when this level of redress should be considered, the guidance suggests:
1. Misdirection – giving contradictory, inadequate or incorrect information about a complainant’s rights.
2. A complainant being repeatedly passed between staff and/or teams, with no one officer or department taking overall responsibility, or a landlord not taking responsibility for sub-contracted services.
3. Failure over a considerable period of time to act in accordance with policy.
While the landlord correctly explained the freeholder’s and managing agent’s responsibilities for repairs to the building’s roof during the complaint process; it did not explain what rights it had under the terms of the leasehold agreement when the managing agent did not properly follow these responsibilities, nor did it make any effort to contact the freeholder during the significant period of time when the repairs remained outstanding, and the scaffolding remained in place.
It would therefore be appropriate for the landlord to pay the resident compensation in the amount of £250.

The formal complaint into the matter

The landlord recognised that there had been a delay opening a formal complaint and providing a stage one response. It apologised to the resident and offered £50 compensation in line with its compensation policy.
The landlord has stated that it uses the Ombudsman’s remedies guidance when calculating compensation payments. The guidance suggests a payment of £50 to £250 in instances of service failure resulting in some impact on the complainant. As examples for when this level of redress should be considered, the guidance suggests:
1. Repeated failures to reply to letters or return phone calls.
2. Failure to meet service standards for actions and responses but where the failure had no significant impact.
In this case, it took several weeks and several emails from the resident before a formal complaint was opened. It also took three months for a stage one response to be provided. It is accepted that the lack of responses from the managing agent to the landlord’s requests for information caused the delay in the stage one response being sent. However, there is no evidence that the resident was informed of this delay or the reasons for it. Moreover, it took one month for the landlord to acknowledge the resident’s request to escalate the complaint.
The landlord’s compensation payment was at the lowest end of the suggested scale and was not adequate in light of the length of the delays, the lack of information provided to the resident about the delays and the inconvenience that this caused. This was a service failure by the landlord and further compensation is warranted in order to fully resolve this aspect of the complaint. It is therefore ordered that the landlord pay the resident an additional £100 to bring the total compensation award for the delays during its complaint process to £150.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of:
1. The length of time scaffolding was erected outside the property.
2. The associated formal complaint into the matter.

Reasons

The landlord correctly described its responsibilities as the owner of the lease for the resident’s property, but not of the freehold for the building. However, it did not properly follow the clauses of the lease by informing the freeholder about its dissatisfaction with the managing agent’s handling of the repairs to the roof.
The landlord’s compensation award of £50 for delays in providing stage one complaint response did not properly reflect the length of time it took for the resident to have a formal complaint opened and the stage one response provided. Nor did it take into account the length of time it took for the landlord to acknowledge the resident’s request to escalate the complaint.

Orders

The landlord to pay the resident, within four weeks, a total amount of £350 in compensation, comprised of:
1. £250 for the poor handling of the issue with the scaffolding.
2. £100 for its handling of the associated formal complaint.
The compensation award includes the £50 compensation already awarded by the landlord in its complaint process.