Cottsway Housing Association Limited (202209529)

REPORT

COMPLAINT 202209529

Cottsway Housing Association Limited

3 April 2024

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 the landlord’s:
1. Response to recharges that were raised for major works carried out.
2. Complaint handling.

Background and summary of events

The resident is a leaseholder of a flat in a block which is owned by the landlord. The commencement date of the lease is not clear from the landlord’s records provided to this Service.
On 15 July 2019 the landlord sent the resident a Section 20 notice to advise that it would be carrying out a replacement of the boundary wall with fencing. It outlined that the works were necessary due to the “poor and dangerous condition” of the existing wall. It invited the resident to make written representations on the proposed works and to suggest a contractor to carry out the works, within 30 days. The landlord subsequently extended the consultation period due to an issue with the postal service (it is not clear when it was extended to).
On 28 October 2019 the landlord posted the consultation letter by a “signed for” postal service. This was returned as unsigned on 19 November 2019. The landlord subsequently hand delivered the letter to the resident on 21 November 2019. This correspondence advised as follows:
1. It had not received any written observations in relation to the notice of proposed works during the consultation period, which had ended.
2. It had received tenders for the works, the lowest of these being £5,338.24 per property.
3. It invited the resident to make written representations on the estimated costs within 30 days.
On 27 November 2019 the landlord held a meeting at the block which the resident attended. The resident requested another copy of the notice of intention of major works and queried the previous wall repair from 2010. The landlord hand delivered the requested notice of intention to the resident on 4 December 2019.
In December 2019 the resident advised the landlord that the 2010 works had been carried out via another leaseholder’s insurance policy. He asked the landlord what works had been carried out in 2010. The landlord advised in January 2020 as follows:
1. Wall repairs from 2010 had been carried out via an insurance claim for subsidence. The repair included the damage to the communal wall as it formed part of the claim for the block.
2. Subsequently in 2014, it undertook another repair to the communal wall which was in a different area of wall. This work could not be claimed under the building insurance policy as there was no damage to the block.
On 13 February 2020 the resident contacted the landlord and asked to know as follows:
1. Why the works to the wall needed to be carried out.
2. Where it stated that he was liable for such costs.
3. Why the wall was not covered by the landlord’s insurance.
4. He requested an itemised copy of the quote for the works and asked to provide his own quote from a contractor.
5. He stated he had been misinformed when he signed the leasehold property form (sale form) as it stated that no works were anticipated within a 2 year period.
The landlord responded on 27 February 2020 and stated as follows:
1. It had given the resident the opportunity to make observations within the consultation period. It had also given him the opportunity to make representations on the quotes and to suggest a different contractor.
2. The resident’s lease outlined that he was responsible for proportional costs for “other communal facilities”.
3. On the sale form it had indicated that no major works were anticipated and this was based on the information it had at the time. It was not aware of a fault with the wall at the time of the sale. Although it had carried out previous repairs, this did not mean that the wall would have future issues.
There was a gap in correspondence in respect of this issue until around June 2022 by which time at last some works had been carried out. The resident submitted a complaint in respect of the cost of the works (this Service has not seen this complaint) in June 2022. The landlord stated that it had initially raised this as a “feedback with investigation case” but due to the amount of paperwork to review, it had escalated this to a stage 1 complaint to allow it time to review the case.
The landlord responded at stage 1 on 8 July 2022 and stated as follows:
1. The notice of intention to carry out the works had been sent to the resident on 15 July 2019.
2. A notification of estimates was sent to him by recorded delivery on 28 October 2019. This was returned as unsigned, so on 21 November 2019 it hand delivered this to the resident and extended the consultation period.
3. It had adhered to the required Section 20 process and had given the resident adequate time to dispute the matter.
4. If referred to the resident’s lease which outlined his responsibility for such repairs.
5. It provided advice on an independent leaseholder advisory service, the Third-Teir Tribunal and the Housing Ombudsman. It provided details on how to escalate the complaint to stage 2 within 5 days.
The resident referred his complaint to this Service on 3 August 2022. The landlord subsequently advised this Service that it had responded at stage 1 and had not received an escalation request from the resident.
On 2 November 2022 the resident contacted the landlord and stated as follows:
1. He reiterated his questions about why the wall had been replaced and why the landlord had not anticipated the works.
2. He stated that he had questioned the work within the consultation period (in November and December 2019) but the landlord had not responded until 2 January 2020 and had gone ahead with the works without answering his questions.
3. Items quoted for such as a skip were not used but were charged for.
This Service asked the landlord to respond at stage 2. The landlord advised this Service that the resident’s email (of 2 November 2022) had not made it clear that he wished to escalate his complaint.
The landlord responded at stage 2 on 6 Janaury 2023 and stated as follows:
1. It could not provide the exact date that the decision was made to replace the wall as its housing management system had been upgraded in February 2020.
2. It could not have anticipated the work prior to the resident’s purchase of the property. The damage in 2019 was in a different location to previous repairs and the wall was deemed to be unsafe.
3. It reiterated the steps it had taken during the consultation period and provided a timeline of its actions in respect of this.
4. It apologised for the time taken for it to confirm the 2010 insurance matter.
On 9 January 2023 the resident stated that he thought the works should have been anticipated and could have been completed for less. He noted that he had received a letter asking for payment of the £4810.24 but that he would not be paying this until this Service reviewed his complaint.
The resident referred his complaint to this Service on 14 February 2023 and stated as follows:
1. The landlord had not listened to his concerns.
2. The landlord should have anticipated the works.
3. The work was overpriced and included things which were not used such as a skip.
4. He should not be liable for the cost and would like to come to an arrangement on an amount to be paid to settle the matter.

Assessment and findings

Scope of investigation

Paragraph 42 (g) of the Housing Ombudsman Scheme states “The Ombudsman may not investigate complaints which, in the Ombudsman’s opinion: concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure.” Given this, any challenge about the resident’s liability to pay a service charge, including charges made under Section 20 for major works falls outside the jurisdiction of this service. This is a matter for the First-Tier Property Tribunal as any decision made is binding on both parties.
It is noted that the resident questioned the wording of his lease agreement. This service cannot make a determination on the definition, meaning and/or interpretation of lease wording. These are contractual legal matters and as such are best dealt with by the courts.
The Housing Ombudsman complaint handling code (the Code) makes it clear that landlord’s should accept a complaint unless there is a valid reason not to and considering what is fair and reasonable. An example given in the Code (para 1.4) for not accepting a complaint is when the issue giving rise to the complaint occurred over 6 months ago. This timeframe is mirrored in the landlord’s complaints policy. With the passage of time, evidence may be unavailable and personnel involved may have left an organisation, which makes it difficult for a thorough investigation to be carried out and for informed decisions to be made. The matter complained about occurred in 2019, however the resident did not raise a complaint until 2022 (3 years later). Taking this into account and the availability and reliability of evidence, this assessment has focussed on the period prior to the resident’s complaint in 2022 and how the landlord responded to the issues raised by the resident. Reference to events that occurred prior to this are made in this report to provide context.

Response to recharges that were raised for major works carried out

Under Section 20 of the Landlord and Tenant Act 1985 (the Act) a landlord is required to consult with a leaseholder before it undertakes any work which will cost any leaseholder more than £250, including repairs to the building and estate.
The landlord explained at both stages of its complaints procedure how it had followed the Section 20 process in 2019. To supplement this it provided the resident with a timeline of its actions in respect of the Section 20 process. This demonstrated that it had considered the resident’s concerns and had taken the time to provide this supporting evidence. The Section 20 notice invited the resident to make written observations and this consultation period closed by November 2019. The complaint response stated that the resident did not raise queries until November and December 2019, after the consultation period had closed. This was supported by correspondence seen by this Service. Whilst it is appreciated the resident did not feel his concerns had been addressed, the landlord demonstrated in its complaint response that it had considered his concerns despite them not having been submitted during the consultation period.
The landlord was clear in its complaint responses that it could not have anticipated the works and that a different part of the wall had been repaired previously. Whilst the resident’s frustrations are understandable, this Service has not seen any evidence to suggest that the landlord could have known about the major works required prior to the resident purchasing the property.
Whilst the resident has indicated that he would like to come to an agreement on the amount he is liable to pay for the major works, the cost of £5,338.24 per resident has been due since the completion of the major works and remains due. It was fair in all the circumstances of the complaint for the landlord to not agree to reduce the costs for the resident. It is noted that the resident has challenged whether specific items on the schedule of works for which he had been charged actually took place. The landlord’s failure to respond to this aspect of the complaint is addressed below, however, any requirement to re-assess the overall charge would be more suitably handled by the First-Tier Tribunal, should the resident decide to progress the case down that route. The Tribunal would be able to make a binding decision as to whether the overall charge was fair and reasonable.
In summary, the landlord demonstrated that it had followed the Section 20 consultation process in respect of the major works. It considered the resident’s concerns and responded appropriately to them despite it concluding that the concerns had been raised outside of the consultation period. There was no maladministration in the landlord’s response to the complaint about recharges that were raised for major works carried out.

Complaint handling

Given the passage of time from the Section 20 consultation and the major works (2019) to the complaint (2022), the landlord was not obliged to consider the complaint. It however demonstrated a customer focused approach in accepting the complaint and in responding to the resident’s concerns.
The Code states that landlords should respond at stage 1 within 10 working days and at stage 2 within 20 working days. The landlord’s complaints procedure has shorter timeframes for complaint responses than recommended by the Code (8 working days at stage 1 and 5 working days at stage 2). Whilst landlords can have shorter timescales, an order has been made for the landlord to consider whether holding itself to such timescales is workable going forward. In this case the landlord did not respond to the resident’s complaints in line with the timeframes in its complaints policy. It took around 1 month to respond at stage 1 (June to 8 July 2022) and over 2 months to respond at stage 2 (2 November 2022 to 6 January 2023). These delays were not reasonable and there is no evidence that the landlord considered the impact of these delays on the resident or offered redress in respect of its failings.
The landlord initially categorised the resident’s complaint a as “feedback with investigation case”. The landlord’s customer feedback and complaints policy states that these are cases that require further input and investigation. If the resident is not satisfied with the outcome of such an investigation, they can refer the matter to stage 1 of the complaints procedure. The Code makes it clear that having an informal stage 0 is not appropriate as this delays the completion of the complaints procedure and causes unnecessary confusion for the resident
The landlord’s complaints procedure states residents must escalate their complaint to stage 2 within 5 days. The Code states that landlords must include in its complaints policy the timescales for a resident to request an escalation of a complaint. However it must not unreasonably refuse to escalate a complaint. The reasons for declining to escalate a complaint must be clearly set out in its policy and be the same as the reasons for not accepting a complaint. In this respect the landlord’s timeframe of 5 days for residents to escalate a complaint was not reasonable and was not in line with the Code.
It is noted that the landlord only considered the complaint at stage 2 following the involvement of this Service. It is of concern that the resident had made his concerns about the stage 1 response clear on 2 November 2022 but the landlord did not consider this to be an escalation request. This was not reasonable and should not have needed the involvement of this Service for this to be responded to at stage 2.
Within his complaint, the resident queried why a skip had been included in the quote. The landlord did not address this aspect within its complaint responses. Whilst it should have addressed each aspect of complaint, it is understandable that given the significant passage of time, an investigation into this could not take place. The landlord should however have made this clear to the resident in its complaint response.
In conclusion there was service failure in the landlord’s complaint handling. To acknowledge the impact these failings had on the resident, the frustration caused an time taken, compensation of £150 has been ordered. This is in line with the Housing Ombudsman remedies guidance for a service failure which adversely affected a resident.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman scheme there was no maladministration in respect of the landlord’s response to recharges that were raised for major works carried out.
In accordance with paragraph 52 of the Housing Ombudsman scheme there was service failure in respect of the landlord’s complaint handling.

Reasons

The landlord responded appropriately to the resident’s concerns in respect of the Section 20 consultation process. It outlined how it had considered the resident’s representations despite these having been submitted after the consultation period had ended.
The landlord did not respond to the resident’s complaint in line with its complaints policy. It did not address each aspect of complaint and unreasonable declined to escalate the matter to stage 2. No consideration was given to the impact the delays had on the resident and no redress was offered.

Orders and recommendations

Orders

The landlord is ordered to take the following action within 4 weeks of this report and provide evidence of compliance to this Service:
1. Pay £150 compensation to the resident to acknowledge the impact of the complaint handling failures on him.
2. Ensure that its published complaints policy accords with the requirements of the Housing Ombudsman’s complaint handling code.