Cross Keys Homes Limited (202118626)

REPORT

COMPLAINT 202118626

Cross Keys Homes Limited

10 August 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

The complaint is about the landlord’s response to the leaseholder’s:
1. Concerns about the communal garden.
2. Objection to the replacement of cladding.
3. Related complaint.
4. Objections to charges for the cost of cladding renewal.

Jurisdiction

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.
After carefully considering all the evidence, in accordance with paragraph 42(e) of the Housing Ombudsman Scheme (the Scheme), the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.

Objections to charges for the cost of cladding renewal

Part of the leaseholder’s complaint concerns having to pay for the renewal of cladding which he felt was unnecessary, and specifically that he should not pay following his objection to the work. As this element relates to the payment of service charges, it is outside of the Ombudsman’s jurisdiction. The leaseholder may wish to apply to the First Tier Tribunal (Property Chambers) to have this matter considered. The First Tier Tribunal will consider whether the service charge is payable, and if so, at what level.
Our position is in accordance with paragraph 42(e) of the Housing Ombudsman Scheme (the Scheme) which says that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, concern the level of service charge.

Background

The resident and his wife are leaseholders of the first floor flat in a block of four properties. The freehold of the block is owned by the landlord. The resident will be referred to as the leaseholder as he does not reside at the property, which is let out.
The landlord issued a section 151 notification on 28 June 2019 in relation to the renewal of timber cladding scheduled for autumn 2019 and asked for any formal observations by letter or email by 30 July 2019. The leaseholder requested, in October 2019, that the work should be stopped as he had written to object during the consultation period. The landlord replied that it had received no objections so work would proceed.
The leaseholder submitted a complaint on 6 September 2020 regarding one of the other neighbours installing various sheds and keeping birds, chickens, and dogs in the communal garden. He also reported the neighbour and friends smoking cannabis and drinking and other residents feeling unable to use the garden. The leaseholder stated that he had lost tenants due to the neighbour’s behaviour. The landlord advised all residents that chickens could not be kept in the communal garden and informed the leaseholder that the neighbour had refused to remove the sheds when asked.
The leaseholder submitted a stage two complaint on 14 February 2021 regarding the garden structures and that despite his objection to the cladding, the work had gone ahead. The landlord made some attempts to resolve the garden issue and continued to demand the service charge, saying that no objection had been received.
Following contact from this Service, in November 2021, the landlord arranged for a panel hearing in December 2021. The panel recommended that all garden structures were to be removed (bar the vegetable patch), and the birds to be rehomed. It stated that dogs must be on a lead, and any allegations of drug use should be reported to the police. It decided that the service charge for the cladding would stand. The landlord offered £250 compensation in relation to the leaseholder’s time and inconvenience in pursuing the complaint, to be deducted from the service charge owed. The landlord removed the garden structures soon after the panel hearing.
The leaseholder seeks compensation for loss in rental income and loss in value of his property. He was unhappy at the lack of response regarding the cladding objection and that his complaint was not dealt with for ten months. He said that an uncovered compost heap remains in the garden, contrary to the panel’s recommendations and that dogs were still fouling the area.

Assessment and findings

Scope of investigation

As explained above, the issue of liability and the level of the service charge falls under the remit of the First Tier Tribunal. The Ombudsman can consider how the landlord responded to the leaseholder’s correspondence, however. This includes the landlord’s reaction to the resident’s objection to the cladding, but the Ombudsman will make no finding about whether the leaseholder should pay the service charge itself.
The leaseholder has raised the issue of social media coverage of the matter, and comments by the local MP reported in the press. There is no evidence submitted to suggest that the landlord had any part in this information being published, and the matter was not part of the formal complaints’ procedure, so it is not investigated here.
This assessment had not considered whether there has been a loss of the value of the property or loss of rental income. These are matters which are best decided through legal proceedings and the resident may wish to seek legal advice about his rights in this regard.

Assessment

Communal Garden

The lease for the property, effective 1989, states in section 3c) that the lessee shall ‘peaceably hold and enjoy the property for the term hereby granted without any interruption’. Section 4 gives the lessee the right to use the area coloured yellow on the plan for the purpose of drying clothes. The third schedule, section 1, states that no building structure is to be erected without written consent of the commission (first party to lease)
The landlord’s Home Ownership policy and procedure, effective June 2020, ‘anti-social behaviour’ section states that the landlord will liaise with the neighbourhood manager or ASB team and, if agreed, reports will be taken on for case management. The ‘breaches of lease’ section states that the landlord will take appropriate action where it becomes aware that a homeowner is acting in breach of the terms of their lease, which may include improper use or ASB. The landlord will serve a notice to remedy the breach and further action may include seeking an injunction or taking action for the forfeiture of the lease.
The landlord’s website states that it does not investigate reports of household noise, disputes between neighbours, or reports relating to drug related activity, which should always be reported to the police.
In this case, the leaseholder first complained about the actions of one of the other residents of the block on 6 September 2020. The landlord promptly directed the leaseholder to the online ASB form and to the police in respect of the drug–related concerns. The leaseholder asked if he should fill the online ASB form in addition to the email and was told that it was not necessary at this stage, but that the landlord was dealing with the issue. There were some correspondences from the landlord in which the leaseholder was told that legal action may be required in relation to the neighbour, which could be a slow process. The landlord told all residents that the chickens could not be kept in communal areas, but there is no evidence of any legal action or any progress to remove the structures until after the panel hearing in December 2021, more than a year later.
During this period, the leaseholder reported that there was a brick-built vegetable patch, an aviary with various birds, a chicken shed, and a ‘beer shed’ in the communal garden, all built by one neighbour who other residents were intimidated by. The neighbour’s dogs were allowed to roam and foul the garden, as were the chickens. The leaseholder said that the neighbour left personal items in the garden, including a canoe, and he supplied photographs to support this. He stated that the situation in the communal garden was the reason his tenants gave notice, and he was unable to get new tenants due to the condition of the garden.
There is no evidence that the landlord followed an ASB process in handling the issue, although it appeared from the first correspondence in September 2020 that it was treating the leaseholder’s concern as a report of ASB. There were scant updates for the leaseholder and no apparent action taken against the neighbour. As noted above, the ASB advice on the landlord’s website states that the use of drugs is a police matter and not covered by the ASB process. However, the extensive use of the communal garden for the neighbour and his friend’s personal use would reasonably fall under antisocial behaviour. These matters should have been addressed by the landlord, and it should have kept the leaseholder informed of the actions taken.
Whilst the lease only mentions the hanging of washing in the space marked on the plan, it is reasonable that the residents would wish to use the space, particularly during the periods of national lockdown. The leaseholder has said that it was not possible to fully access the washing lines due to the brick-built vegetable patch.
The building of garden structures without written permission is against the terms of the lease. It is not clear whether permission was sought and granted to build the number and type of structures which were eventually erected in the communal garden. In February 2021, the landlord said that it was unable to remove the consent for ‘the shed’. In the final response letter dated 15 December 2021, the landlord said that the leaseholder was dissatisfied that it had ‘granted permission for the (neighbour) to erect a shed in the communal garden and install other structures such as an aviary, a vegetable patch and a compost bin’.
The landlord did not confirm in the decision whether it had given specific permission to the neighbour for all the structures. It was, nonetheless, possible for this permission to be withdrawn, as happened after the panel hearing. This Service finds that the inordinate delay in the process would reasonably have caused the leaseholder additional anxiety coupled with the lack of updates during the period.
The lease also provides in section 3 that the lessee must not do, or permit on the property, anything which may become a nuisance or annoyance including in particular the keeping of domestic fowl. From the evidence supplied by the leaseholder, the action of the neighbour and his friends did cause nuisance and annoyance and again. This was significantly exacerbated by the lack of action and communication by the landlord.
There is no evidence that the leaseholder’s tenants left due to the neighbour’s actions, or that this was the cause of any delay in new tenants occupying the property. However, it is reasonable that the presence of the sheds, outside visitors, birds, and dogs would have an effect on the other residents’ ability to enjoy the communal garden and homes ‘peaceably’ as stated in the lease.
The complaint panel’s recommendations in December 2021 included that all garden structures were to be removed by the landlord by 22 December 2021, that the birds were to be rehomed, the allotment garden could remain, but any compost bin must have a lid or would be removed. It also said that all residents should be reminded that pets must be on a lead in the communal garden, and they must clean up after them. It reinforced that any allegation of drug use/dealing should be reported to the police.
The landlord took little action to deal with the reports for over a year and it is fair in all the circumstances that some compensation be paid to the leaseholder. The sum of £500 would reflect the distress and inconvenience of the landlord failing to act on the reports of ASB from the leaseholder over this extended period. This is in the range of remedies the Ombudsman recommends for cases of maladministration for example a complainant having to repeatedly chase responses and failure over a considerable period to act in accordance with policy, as here with ensuring the ASB was addressed, and the terms of the lease enforced.
It appears that, following the panel’s decision, the garden has been in the main returned to its former condition. It is not unreasonable that the landlord did not act in relation to the alleged drug taking as it is not clear that it has been provided with evidence of this occurring. The information provided by the landlord states that it does not investigate drugs use, which should be reported to the police. However, it would be reasonable for a landlord to take some action regarding such activities in communal parts of its properties where there is evidence that its other tenants are being negatively affected by the issues. This could include making report to the Police itself and sending written warnings to perpetrators.
Since the final response letter, the leaseholder has said that the issue is not resolved as the brick-built vegetable patch is still in situ. This issue was considered by the complaint panel, and it was agreed that the vegetable patch could remain. The Ombudsman has no reason to decide that the panel’s decision was made in error or would result in significant inconvenience to the resident. It is understood that the leaseholder would prefer if the vegetable patch was not on the property, but this does not mean that the landlord is obliged to remove it.
The leaseholder has reported that the compost heap is not covered as stipulated in the panel’s report, and that contrary to the panel’s recommendations the neighbour’s dog is not on a lead and is allowed to foul the communal area. It is expected that the landlord would monitor and follow up on this to reassure the residents of the building that the terms of the lease and the recommendation in the panel’s report are being adhered to.

Concerns about cladding

The landlord’s Home Ownership policy and procedure, ‘cost of capital works’ section, says that the landlord will recover from homeowners the monies due towards the cost of capital works. Leaseholders are required to pay this charge in full when costs are incurred. The section on consultation provides that the landlord will consult with homeowners about repair work which will incur costs in excess of £250. The consultation procedure explains the process and states that objections should be replied to in writing.
As covered above, this investigation does not seek to decide if the cost of the cladding should be paid by the resident, but whether the landlord responded appropriately to concerns raised by the leaseholder.
In this case, there is evidence that the landlord wrote to the leaseholders regarding the cost of the cladding in June 2019, but no evidence of the leaseholder’s objection. That is not to say that the Ombudsman doubts what the leaseholder has said, and the examples the leaseholder has given regarding the landlord’s administration are noted. However, it is not possible for this Service to decide whether the objection to the cladding was received by the landlord. We can assess how the landlord responded to the disputed issue, whether it investigated fairly and considered any contradictory evidence.
It is noted that the landlord said that the leaseholder’s wife had advised that she sent the letter objecting to the cladding to the local authority in error, contrary to the instructions in the landlord’s letter. The leaseholder says that this was not the case, and his wife would not have said this. Again, it is not now possible to know where the letter was sent. However, the landlord’s policy says that any objections should be responded to in writing. It does not say that work should be halted, as requested by the leaseholder, or that payment may be withheld while the matter is disputed.
There is no suggestion that any other leaseholders objected to the cladding, and it may be that the outcome would have been the same if the objection letter had been received by the landlord, and an explanation given as described at the panel hearing. There is no evidence to support that the landlord should not have pursued the leaseholder for the service charge or delayed work once it was aware of the leaseholder’s objections.
Outside of the complaint process, the landlord responded promptly to the leaseholder’s emails about the cladding. When he emailed the landlord on 17 October 2019, to state that he had objected during the consultation period, it responded within four working days to say no objection had been received. To the leaseholder’s further communication, of 7 November 2019, it replied on 15 November 2019 and explained why the work was required. This email also recommended that the leaseholder contact the ‘leasehold advisory website’ if he wished to dispute the charge for the new cladding. It is not known if he did this, but this was appropriate advice by the landlord. As discussed below, the final response letter refers to the cladding and says that the leaseholder confirmed that he had received an explanation behind the works being carried out and no longer required further details on this.
It was appropriate that the landlord signposted the leaseholder to the advisory service, and he had the option of the First Tier Tribunal to appeal the service charge. The landlord had acted in line with its obligation in the home ownership policy and consultation procedure; that was to inform and consult with tenants before making such changes, and to provide them with the opportunity to tell it what they thought before deciding on whether to go ahead.
The Ombudsman is satisfied that the landlord took proportionate and appropriate action in relation to investigating the concerns raised by the resident about the cladding charge, and considering them alongside its service standards, and duties and obligations as a landlord. There is no evidence of service failure in respect of this element of the complaint.

Complaint

The landlord’s complaints policy says at section 6.1 that a service manager will aim to respond to stage one complaints within 5 working days. Section 6.2 says that stage two complaints are dealt with via a panel. The Chief Executive’s office will confirm the date of the appeal panel within 10 working days of the escalation, and the landlord will not unreasonably deny a request for a complaint to be reviewed or escalated.
In this case, the leaseholder’s initial complaint email was dated 6 September 2020 and clearly headed ‘complaint URGENT’. It concerned only the issues regarding the communal garden. The landlord did respond the next day to direct the leaseholder to the ASB online form and to the police in respect of the alleged drugs and said it would visit the property the following day. On 16 September 2020 the landlord advised the leaseholder that it was dealing with the issues.
No resolution or formal complaint response was issued by the landlord, so the leaseholder sent a letter described as a formal stage two complaint letter, on 14 February 2021, which included the issue of the leaseholder’s objection to the cladding. The landlord replied a few days later and said that it would revert the next week. During the next few months, discussions took place between the landlord and leaseholder concerning options to the garden issue, including a three-month period when the leaseholder’s mother was unwell, so he had not responded to the landlord’s offer of a possible solution. The rest of the period the leaseholder was waiting for a response to his complaint.
It is understood that a resident may submit a ‘complaint’ when it may legitimately be treated as an ASB report (or a repair request), and that the leaseholder’s initial complaint may have been considered as such. However, once the resident submitted his stage two complaint in February 2021, which included the cladding issue, there should have been no doubt that the complaint process should be followed.
Although the landlord said in June 2021 that it was treating the complaint as being at stage one, no response was issued prior to the leaseholder approaching this Service and the Ombudsman contacting the landlord in November 2021. On 17 November 2021, the landlord said that the complaint would be escalated to stage two, and on 23 November 2021, the leaseholder was informed of the panel being convened on 13 December 2021. The final response letter was issued two days later.
The landlord explained that there had been a turnover of staff in the department which meant the complaint had slipped through the net. The landlord had apologised for this, and this apology was repeated in the panel’s letter. The final response evidenced that the communal garden issue was discussed, although it was noted that the leaseholder had confirmed that he “had received an explanation as to the reason behind the works being carried out and …no longer required further details on this.”
The delay in any formal complaint response being issued between September 2020 and the panel in December 2021 could be said to have delayed the substantive issue of the communal garden being resolved. Had the stage one complaint been answered within five working days, and the panel arranged within 10 days of any escalation, it would seem likely that the various structures would have been removed, and the birds relocated far earlier than they were. The delay in the complaint process likely affected the duration of the stress and inconvenience suffered by the resident. The landlord has acknowledged the significant delay and offered £250 compensation in relation to the delay in the complaint being progressed.
The final response does not resolve the issue of the cladding element of the complaint as it merely said that the leaseholder no longer required details about the cladding as he had received an explanation. It is not known if this was in relation to the necessity of the work or relating to the objection the leaseholder submitted. In his later correspondence with this Service, the leaseholder said that he did not agree he should pay for the cladding, and work should have been paused when he objected. Whilst the liability for the charge is not for this Service to decide, it would have been useful if the final response had detailed what it was the leaseholder had been satisfied with in relation to the cladding, to avoid any later disagreement.
Overall, the sum of £250 for this element of the complaint is fair in all the circumstances. This would be the lower end of the Ombudsman’s range of remedies where there has been considerable service failure for example significant failures to follow the complaint procedure, as has happened here.
It is noted that the final response said that the £250 would be offset against the sum owed by the leaseholder for service charges. However, the sum of compensation already offered by the landlord should be paid to the leaseholder directly, and not offset against service charge owing. Further information can be found at Remedies: Offsetting and the Ombudsman’s approach – Housing Ombudsman (housing-ombudsman.org.uk) which explains that it is the Ombudsman’s position that compensation awarded by this Service should be treated separately from any existing financial arrangements between the landlord and resident/leaseholder and should not be offset against arrears.

Determination

In accordance with paragraph 52 of the Scheme there was maladministration by the landlord in respect of its handling of the leaseholder’s concern about the communal garden.
In accordance with paragraph 52 of the Scheme, there was no maladministration by the landlord in respect of its handling of the cladding objection.
In accordance with paragraph 53(b) of the Scheme, the member has offered redress to the complainant prior to investigation which, in the Ombudsman’s opinion, resolves the complaint handling element satisfactorily.
In accordance with paragraph 42(e) of the Scheme, the complaint about the leaseholder’s objections to charges for the cost of cladding renewal is outside the Ombudsman’s jurisdiction to consider.

Orders

Within four weeks of the date of this determination, the landlord should:
1. Pay the leaseholder the total sum of £750 in compensation, comprising:
  1. £250 which was offered during the complaints process, if not done already.
  2. £500 in respect of the complaint about the communal garden.
2. Contact the leaseholder to discuss its plans for the removal of the compost bin, in accordance with the final response letter.
3. Inform the leaseholder about what action it is taking in respect of dogs fouling in the garden, in accordance with the final response letter.
4. Remind salient complaints staff of the correct procedure to ensure the landlord’s complaint process is always followed, with appropriate appeal rights at each stage.
The landlord should provide evidence to this Service that the above orders have been complied with, within four weeks of this determination.

Recommendations

It is recommended that the landlord consider including in its final response an outline of any matters which have been agreed between the leaseholder/resident and landlord as not requiring investigation at that stage, to avoid any future disagreement over what matters are outstanding.