Dartford Borough Council (202006740)

REPORT

COMPLAINT 202006740

Dartford Borough Council

28 October 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. This complaint is about:

   a. the level of the landlord’s service charges for items such as building and communal grounds maintenance;

   b. the landlord’s response to the resident’s reports about;

   1. Service charges
   2. a neighbour’s CCTV installation

 

     c. delayed guttering works along with the landlord’s complaint 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:

   a. the level of service charges

4. Paragraph 39 (g) of the Scheme says 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’
5. The resident has disputed the landlord’s grounds maintenance charge on the basis that there are no communal grounds near the property, and she pays council tax separately. She is seeking a refund of £1215.38 for all previous payments made to the landlord in relation to this charge. The resident has also disputed the payable amount of her building maintenance service charge on the grounds that the landlord had not fulfilled its obligations to complete requested repairs.
6. The Ombudsman cannot determine whether service charges are reasonable or payable. Complaints about the level or suitability of service charges are therefore outside the jurisdiction of this service. This is because the First Tier Tribunal (Property Chamber) is better placed to consider them. Whilst we are unable to consider this aspect of the complaint, we can assess the landlord’s response to the resident’s queries concerning the charges.
7. This assessment will therefore focus on the aspects of the resident’s complaint that fall within our jurisdiction to assess.

Background and summary of events

Background

8. The resident is a leaseholder of the property, and the lease began on 9 January 2017. The lease document confirms the property is a first floor flat, but elsewhere the landlord has described it as a maisonette.
9. The lease document confirms the landlord is responsible for the building’s main external walls and that it will maintain them at all times during the lease. It also confirms the resident has agreed not to make structural alterations or additions to the demised premises without the prior written consent of the landlord.
10. The landlord’s ‘Housing Repairs and Maintenance Policy’ is available online. The document is dated May 2020. It shows the landlord prioritises different types of repairs by assigning any required works a category. Each category has a corresponding response timescale.
11. The document shows that loose or broken gutters are assigned the category ‘05’ which is classed as a ‘routine’ repair to be commenced and completed within 20 working days. Replacement gutters and down pipes are assigned the category ‘06’ which is classed as a ‘non-urgent’ repair to be commenced and completed within 40 working days unless an alternative timescale is specified on the order.
12. The landlord’s complaints procedure is available online. It shows the landlord operates a two stage internal complaints process. It sets out the following information in relation to stage two:

    ‘If your complaint is partially upheld (ie: the outcome of the review finds in your favour, in part) you will receive an apology and explanation and where appropriate, be given details of any action that we will take to remedy the situation or at least put things right for the future.’

13. The landlord has given evidence that includes the lease document, links to its complaints and repairs procedures, screen shots and call notes along with relevant correspondence.
14. The resident relied on the revenue generated through renting the property for a significant portion of her income.

Summary of events

15. On 11 February 2020 the resident notified the landlord that a neighbour had attached two CCTV cameras to the external wall of the building. She said the landlord had previously asked her to remove CCTV cameras immediately on the basis they damaged the building. She therefore trusted that the landlord would adopt the same position towards her neighbour’s cameras. The resident later said she called the landlord to report issues with guttering at the front of the building around the same time as her above report.
16. On 13 February 2020 the landlord acknowledged the resident’s correspondence and agreed to make enquiries into the situation.
17. Following a chaser email from the resident, on 10 March 2020 the landlord confirmed it had taken some action against the resident’s neighbour in relation to the CCTV, and it that would follow up in the next 21 days.
18. On 11 April 2020 the resident notified the landlord that 21 days had passed and that the CCTV cameras remained in place on the building.
19. The landlord replied on 16 April 2020 to say it was not undertaking the CCTV issue as essential work given the difficulties imposed by the pandemic. However, once the restrictions had been lifted it would be able to progress the matter further.
20. On 6 July 2020 the resident raised a formal complaint with the landlord. The resident said it was inappropriate for the landlord to invoice its full quarterly service charges between 1 April 2020 and 30 June 2020. This was because the landlord had not responded to her reports of damage caused by the CCTV installation, or her request to address issues with the guttering at the front of the building. Further, that the communal grounds charge was unacceptable given overgrown hedges and footpaths were impeding access to her property.
21. On 8 July 2020 the landlord issued its stage one complaint response. It said:
    1. It would need evidence of the CCTV installation and resulting damage to be able to investigate this issue further.
    2. The landlord had not received any reports of issues in relation to guttering at the front of the building since it was last inspected on 29 October 2019. However, a further inspection had been raised in response to her complaint.
    3. The sale map of the property showed it was the resident’s responsibility to cultivate and maintain the left-hand side of the garden and path. A copy of the map had been enclosed.
    4. The fourth schedule of the lease agreement confirmed the resident’s responsibility for keeping included premises tidy and cultivated.
    5. The landlord would consider any evidence to show the resident was not responsible for the charges but, based on the current evidence, the landlord had followed the correct procedures. As a result, it was unable to uphold any aspect of the resident’s complaint.
    6. The resident’s service charge account was in arears and would need to be paid in the next seven days.
22. On 14 July 2020 the landlord raised a category 05 inspection order for the front gutters to be inspected. The inspection was completed ten working days later on 27 July 2020. A category 06 works order for new guttering and components was raised on the same day following the inspection.
23. On 31 July 2020 the resident emailed the landlord and said it had not properly responded to her formal complaint and that, because the situation was frustrating, she hoped a solution could be reached. No further information was provided.
24. On 5 August 2020 the landlord responded to the above. It said if the resident wished her complaint to be considered under stage two of the landlord’s process, she would need to explain why she was dissatisfied with the outcome at stage one. The resident replied on the same day and said the issues she reported had not still been rectified. Further, evidence had already been provided in relation to the CCTV installation and the landlord was responsible for maintaining the communal garden on the right-hand side of the property.
25. On 9 September 2020 the landlord issued its stage two complaint response. It said:

a.     The landlord had acted in relation to the CCTV but, due to the national lockdown and subsequent Covid restrictions, it had been unable to pursue the matter until recently. Since the matter would be resolved in appropriate timescales, in accordance with legal procedures, it did not uphold this aspect of the complaint.

b.     The works to the guttering at the front of the building had been delayed and Covid restrictions had hindered the functioning of the landlord’s repair teams. However, the works were now being carried out along with some improvements. As a result, this aspect of the complaint was partially upheld.

c.      The landlord’s stage one response in relation to charges was correct, and the resident was responsible for the garden areas and access routes indicated on the map attached to its previous response. Further the grounds maintenance charge formed part of the legal contract which the resident agreed when the property was purchased, and the details were outlined clearly in the sale documentation. As a result, this aspect of the complaint was not upheld.

26. On 10 September 2020 the guttering works were completed, this was 34 working days after the works order had been raised, and 43 working days from date the initial inspection was ordered. However, the completion date was 47 working days after the landlord’s stage one response, which confirmed an inspection would be arranged.
27. On 5 October the resident approached this service with the details of her complaint. She said she was seeking a credit to her building maintenance service charge account of £27.82 for uncompleted works, along with a refund of £1215.38 for communal grounds maintenance. This was on the basis any clause in lease relating to communal grounds would be void if there were no communal grounds in the area to maintain.

Assessment and findings

28. In reaching a decision 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.
29. The Ombudsman’s Dispute Resolution Principles are:

    a. Be fair

b. Put things right

c. Learn from outcomes

This service will apply these principles when considering whether any redress is appropriate and proportionate for any maladministration or service failure identified.

30. In relation to the level of service charges, we can assess the landlord’s response to the resident’s concerns. In this case, the landlord was engaged with the resident’s concerns about the charges and provided further information to explain its position. It also signposted the resident to the relevant sections of the lease agreement, which outlines the respective obligations of each party. Following further comments from the resident, her complaint was escalated in accordance with the landlord’s complaints procedure and reviewed again at a higher level. Given the above the landlord acted appropriately in its response to the resident’s concerns around service charges.
31. In respect of the landlord’s response to the resident’s concerns about her neighbour’s CCTV installation, the lease agreement shows the landlord is responsible for the exterior of the property and that prior written consent for alterations must be obtained from the landlord. It is therefore appropriate for the landlord to decide what installations may be attached to its building and how it treats breaches of agreements by its residents. It is noted that the lease agreement suggests, through the process of seeking written permission for alterations, that the landlord has the right to approve amendments and alterations in some circumstances and to decline them in others. This is consistent with the information outlined in the lease agreement.
32. This service has seen evidence that the landlord took appropriate action in response to the resident’s concerns. However, since this evidence relates directly to its interactions with another resident, we are unable to provide details of the information in this assessment for data protection purposes. This assessment can only consider the circumstances surrounding the resident’s individual complaint.
33. It is noted this evidence suggests action on the part of the landlord was ongoing for some time. However, no contrary information has been seen to show the issue should have been resolved within a specified timescale, such as those outlined by the landlord’s repairs policy. Similarly, there is no indication that any damage the installation may have caused presented a significant risk to health or property, which warranted swift and focussed action by the landlord. Given the above there is no evidence to show that the landlord acted inappropriately in respect of its response to the resident’s concerns around her neighbour’s CCTV installation.
34. From the landlord’s call notes and correspondence, no evidence has been seen to show the resident contacted the landlord in relation to issues with guttering around the time she raised concerns over the CCTV. As a result, the above timeline confirms that the landlord’s May 2020 repairs policy is relevant to this assessment. Further, that the date of the landlord’s stage one response is the correct point from which to measure its response to the required works.
35. The above timeline shows the guttering works were completed seven working days outside of the landlord’s relevant timescale. It is recognised that the landlord accepted the works were delayed in its stage two response, which partially upheld this aspect of the resident’s complaint. However, although a brief explanation for the delay was provided, along with an assurance that the works were underway, an apology was not offered in line with the landlord’s complaints procedure. This was inappropriate on the part of the landlord and represents a service failure.
36. The landlord could have demonstrated good practice by providing clear details of the delay and outlining what steps it would take to prevent similar situations going forward. This would have demonstrated to the resident that it had learned from the outcome of her complaint and used it as a tool to improve its service for other residents.
37. From the information we have seen, this assessment finds no evidence that the short delay identified above has adversely impacted either the resident or her tenants. This is because the resident has not highlighted any associated impacts in her complaint to this service or in her correspondence to the landlord. However, it would still have been appropriate for the landlord to apologise for its accepted delay.

Determination (decision)

38. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s concerns about her neighbour’s CCTV installation.
39. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in respect of the landlord’s response to the resident’s request to repair guttering, and its complaint handling.

Reasons 

40. This service is unable to assess the level, or suitability, of the landlord’s service charges as it is not within our jurisdiction to do so.
41. The evidence shows the landlord’s response to the resident’s concerns about service charges was appropriate.
42. The evidence shows the landlord has acted appropriately in response to the resident’s concerns about her neighbour’s CCTV installation.
43. The evidence shows service failure on the part of the landlord in respect of the delayed guttering works and its complaint handling.

Orders and recommendations

Orders

44. The landlord to issue a written apology to the resident, in line with its complaints policy, for the delay in completing guttering works to the front of the building.

Recommendations

45. The landlord to promptly action any tasks it has agreed to resolve complaints. For example, ensure necessary tasks are handed quickly from its complaints team to its repair team.