Hackney Council (202100876)

REPORT

COMPLAINT 202100876

Hackney Council

17 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

1. The complaint is about:
   1. The landlord’s response to the resident’s queries about service charges for the financial year 2019/20, including his request to inspect supporting information and documents.
   2. The landlord’s complaints handling.

Background

2. The resident is the leaseholder of a 1 bedroom flat, of which the landlord is the freeholder. The property is situated in a block forming part of an estate. In accordance with the terms of the lease, the resident pays an annual service charge to the landlord to cover the cost of repairs and maintenance of the building and communal areas, including the surrounding estate.
3. In October 2020 Hackney Council was subjected to a serious cyberattack. The updates published on the landlord’s website following the incident noted the significant impact on its services and asked residents not to contact it unless absolutely necessary.
4. On 27 October 2020 the resident emailed the landlord querying items listed in his service charge summary relating to a ‘column replacement’, paving, tank cleaning and heating/hot water maintenance. The resident followed up with a request to inspect supporting accounts and receipts, in accordance with section 22 of the Landlord and Tenant Act 1985. The landlord responded highlighting the impact of the cyberattack on its services and stating that documentation had been requested and would be provided by email.
5. The resident received no further response and so he made a formal complaint on 3 February 2021. He then contacted the landlord for an update on 2 occasions before a stage 1 complaint response was issued on 7 April 2021. This was not received by the resident at that time and so was resent on 18 May 2021.
6. The landlord noted that the cyberattack had caused a backlog, meaning the resident’s enquiries had not been assigned to the correct team. The landlord advised that information about repairs was not currently ‘readily accessible’ due to the ongoing impact of the cyberattack. The landlord had placed the total amount for the items queried ‘in dispute’ on its systems and adjusted the resident’s service charge account balance accordingly.
7. The resident requested the escalation of his complaint, stating that the stage 1 response was ‘short’ and ‘impersonal’, did not address the landlord’s failings, and failed to apologise or suggest a resolution. The landlord had not evidenced that the stage 1 response was sent to him on 7 April 2021 and the response referred to the wrong date of his complaint. The resident requested a refund of the ‘unsubstantiated’ costs.
8. At stage 2, the landlord upheld the resident’s complaint, apologising for the excessive delay in responding to his concerns. The landlord had obtained legal advice on its statutory duties and its position was that the delay was due to ‘mitigating circumstances outside the Council’s direct control’. Information about repairs had not been available when the resident made his request in October 2020 and there was confusion about whether the issues raised related to a previous complaint. The landlord had since obtained information from its contractors.
9. The landlord concluded that charges for paving and streetlighting were fairly and reasonably incurred, and recoverable from the resident under the terms of his lease. He was referred to the First Tier Tribunal (Property Chamber) (FTT) should he wish to challenge these charges. The landlord confirmed that records showed that the paving works had been completed within the financial year.
10. The resident has since disputed the dates that the landlord says paving works took place, providing additional, photographic evidence. He also noted that the works were to an area marked as ‘private property’ to which he does not have access. The landlord maintains that the paving works referred to in the service charge summary were undertaken to an ‘area … forming part of the estate communal land’. It provided a map and copy of the works order to the resident to support its position.
11. The complaint about charges relating to water tank cleaning was under investigation by the Housing Ombudsman Service and so the landlord would not comment further.
12. The landlord upheld the resident’s complaint about charges relating to heating and hot water, which it stated had been duplicated due to an administrative error. The landlord apologised and applied a credit to the resident’s service charge account.

Assessment and findings

Jurisdiction and Scope of the investigation

13. The Ombudsman has previously investigated a complaint from the resident, under reference 202009616, relating to service charges for tank cleaning. This aspect of the complaint of 3 February 2021 is therefore outside the Ombudsman’s jurisdiction, in accordance with paragraph 39(o) of the Scheme. The Ombudsman will not investigate complaints about matters on which a determination has already been made.
14. The Ombudsman is unable to consider whether the amounts due in respect of the disputed works are owed, or to order any reimbursement or reduction of the resident’s service charge. This is in accordance with paragraph 39(g) of the Scheme, which states that the Ombudsman will not investigate complaints about the level of rent or service charge, or the amount of any increase. As the landlord advised in its stage 2 response, should the resident wish to challenge the level of his service charge he would need to seek independent legal advice and consider bringing a claim via the FTT.
15. The Ombudsman’s investigation of this complaint is limited to consideration of the landlord’s administration of the resident’s service charge, including its communication with him and its response to his enquiries.

Response to request for information

16. At the time the request was made the landlord was experiencing challenges to its service due to a serious incident that had a significant impact on its services. The landlord provided updates on its website and contacted the resident directly to inform him of the cyberattack and the likely delays in providing information. This was appropriate in the circumstances. The landlord’s update of 13 November 2020 informed residents that some services ‘may be unavailable or disrupted for months’.
17. The landlord told the resident on 23 December 2020 that it had requested information to answer his enquiries, although no evidence has been provided to this Service to demonstrate that it had done so. Internal emails provided by the landlord show that information about the nature of the ‘column replacement’ job was sought from the relevant team on 19 January 2021, although there is no indication that a response was forwarded to the resident at that time.
18. Although it would have been helpful to manage the resident’s expectations about when information was likely to be provided, the landlord had made clear the extent of the service disruption and confirmed that it was focussing its resources on delivering essential services. It was, therefore, reasonable that it did not prioritise the resident’s request for information. The landlord’s access to repairs information was limited and its resources had been reallocated, meaning some enquires were missed or delayed.
19. The landlord did take some proactive steps to minimise the impact on the resident of any potential overcharge by placing a note on its systems that the charges were disputed and adjusting the resident’s service charge account balance. This was a good way of protecting the resident from further stress and inconvenience, until the landlord was able to respond substantively to his concerns.
20. The resident has highlighted that it took 8 months for the landlord to respond. He also noted that the request was made pursuant to the landlord’s duty to provide information under section 22 of the Landlord and Tenant Act 1985. The landlord obtained legal advice on the application of its statutory duty to provide information in the circumstances and communicated its position to the resident. The Ombudsman cannot make findings on whether the landlord breached its statutory duties, or whether the cyberattack would be considered a mitigating circumstance. Should the resident wish to pursue this aspect of his complaint, he would need to seek independent legal advice.
21. In its final complaint response, the landlord answered the resident’s queries and explained the disputed charges. It demonstrated that it had conducted a thorough investigation into the resident’s concerns, as is evidenced in its internal emails. The landlord signposted the resident to the FTT should he wish to dispute the charges and answered his follow up queries about the paving works. The landlord identified where an overcharge had occurred, apologising and crediting the resident’s account. It explained that this was an administrative oversight. The landlord’s response here was proportionate and reasonable, it identified the service failure that the resident had brought to its attention through his complaint, then put the matter right by apologising and refunding the overpaid monies.
22. If the resident remains concerned about the nature of the paving works, or the landlord’s right to charge for works to an area he does not have access to, he should seek legal advice. The Ombudsman is satisfied that, on the basis of the information provided, the landlord responded in good faith and to the best of its knowledge.
23. The Ombudsman acknowledges that the resident does not feel that an apology is adequate compensation for the significant delay. He also notes that the Ombudsman found service failure in his previous complaint due to the landlord’s poor communication.
24. The delay in providing the information was considerable, however, the Ombudsman will not make a finding of service failure given that the landlord was dealing with unprecedented challenges to the provision of services. It was reasonable and in line with the policy put in place at that time that the resident’s request was not prioritised. The landlord did take steps to minimise the impact of the delay on the resident, provided some updates and ultimately conducted a thorough investigation and provided a clear response.
25. The impact of the cyberattack was still ongoing as of 5 November 2021, when the landlord reported on its website that non-urgent services were ‘available, but not back to normal’.

Complaints handling

26. The landlord’s acknowledgment of the resident’s formal complaint indicated that a response would be provided within 10 working days. It did not suggest that its response times had been impacted by the cyberattack. A complaint response was not provided until 9 weeks later, following further communication from the resident. The failure to update the resident about the reason for the delay was unreasonable. There were inaccuracies in the stage 1 response and the landlord did not respond to the resident’s concerns or manage his expectations about what solution it could provide. This understandably increased his frustration.
27. The landlord’s communication at stage 1 of the complaints process was poor. Contact was made by a member of staff who did not explain their role, appeared to have misunderstood the nature of the resident’s complaint, and did not have knowledge of the information provided to him previously. The landlord also repeatedly offered telephone contact when the resident had stated that he preferred to communicate by email.
28. Although the landlord has apologised for the delay in its complaints handling, the Ombudsman considers that an award of compensation is appropriate, in line with this Service’s remedies guidance, to recognise the time and trouble taken by the resident to pursue his complaint.

Determination

29. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration in the landlord’s response to the resident’s request for information about his service charge.
30. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure in respect of the landlord’s complaints handling.

Orders and recommendations

31. Within 4 weeks of the date of this report the landlord is ordered to:
    1. Pay the resident £100 compensation in recognition of the failings identified in its complaints handling.