Harlow District Council (202003552)

REPORT

COMPLAINT 202003552

Harlow District Council

6 April 2021

Our approach

1. 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.
2. 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

3. The complaint is about the cost of removing and reinstalling a satellite dish from the outside of the property, which was required as part of major works.

Jurisdiction

4. 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.
5. The resident is dissatisfied with the landlord charging him for the removal and replacement of a satellite dish attached to the outside of the property by his tenant.  The resident does not believe he should have had to pay for this and either his tenant or the landlord should pay as he says he was unaware that the satellite was installed and states that as he is not the freeholder, he is unable to grant permission for an installation to the outside of the building and so it is the landlord’s responsibility. 
6. Additionally, the resident has stated his dissatisfaction with the cost, feeling this to be unreasonable; he has said that he would be willing to pay the landlord’s initial estimation of £22.28 but not the later £330 it charged.
7. Arguments put forward for not paying at all or not paying the full £330 also include reference to the damage the landlord caused to the satellite dish on one or two occasions.
8. After carefully considering all the evidence, in accordance with paragraph 39(g) of the Housing Ombudsman Scheme, the aspect of the complaint concerning the level of service charge is outside of the Ombudsman’s jurisdiction.
9. Paragraph 39(d) states that “The Ombudsman will not investigate complaints, which, in its opinion, concern the level of rent or service charge or the amount of the rent or service charge increase”.
10. This aspect of the complaint is one that is best placed with the First Tier Tribunal (Property Chamber) who are able to provide an expert opinion on the reasonableness of the service charge. It has the power, unlike this Service, to make a binding decision as to whether a leaseholder is liable to pay a service charge, and if so, the level of the charge. The resident is able to take the matter there if he wishes.
11. What this investigation can consider is the landlord’s handling of the situation concerning the removal and reinstallation of the satellite dish and its subsequent handling of the complaint.

Background and summary of events

12. The resident has been a leaseholder of the landlord, at the property, from 23 May 1997.  The resident was letting the property out to a tenant at the time in question.
13. The lease specifies that the resident is liable for service charges which includes services to maintain the structure and exterior of the property.
14. The landlord has a three-stage complaints procedure whereby the landlord aims to respond within 10 working days at stages one and two and within 15 working days at stage three.
15. In January 2018 works to the structure and exterior of the building took place and in order to do so, the removal and reinstatement of a satellite dish fitted to the outside of the building, was required.
16. In a complaint response (to the resident’s tenant) dated 29 January 2018, the landlord acknowledged that it had damaged the satellite dish in doing so and agreed to replace it.
17. Two years later, following receipt of the service charge bill, on 15 February 2020 the resident contacted the landlord expressing his dissatisfaction about the £330 cost he was charged for removing and reinstalling the satellite dish on the outside of the property, stating that his tenant should be responsible for this and not him. He stated that he was unaware that a satellite dish had been installed and gave no permission for this to happen.  He noted that as a leaseholder he was unable to grant permission for a satellite dish to be installed and would refer any application to the landlord.  He believed that that had the landlord authorised it, it should charge his former tenant for the costs rather than him.
18. The resident was also dissatisfied that the removal of the satellite dish was shown on the statement of costs he received but there was no budget amount shown against it.
19. Correspondence between the landlord and resident ensured, with the landlord explaining that the resident was responsible for the costs, not his tenant, as this was a condition of his lease and its relationship was with him and not his tenant.
20. Two months later, around 17 April 2020, the resident made a formal complaint about the situation, reiterating his concerns.
21. On 24 April 2020 the landlord responded to the complaint at stage one of its complaints procedure. The complaint was not upheld. The landlord stated that the lease agreement was with the resident and not with the tenant and that as such, he was required to adhere to the terms of the lease and was responsible for the cost and it would not be invoicing his tenant separately.
22. It did not dispute that the resident’s tenant installed and removed the satellite dish at the start and end of the tenancy, which the resident had asserted but stated that irrespective, the satellite dish needed to be removed and reinstalled as part of the works to the building.
23. It explained that the cost for removal and reinstallation of the satellite dish was included in the overall scaffolding works but that £22.28 was omitted, which was the initial estimation of the cost but as the dish was specialised, the actual work required was far greater.
24. On 1 and 11 May 2020 the resident contacted the landlord, expressing his dissatisfaction with the outcome of his complaint and requesting that it be escalated.  The resident maintained that it was not his responsibility and as resolution to his complaint he wanted the £300 removed from his bill or to be invoiced the £22.28 which was the original estimated cost.
25. On 26 May 2020 the landlord issued its stage two response to the complaint. The complaint was not upheld.  The landlord reiterated that its relationship is with the resident and not his tenant and that he is responsible for paying a proportion of any major works to the property under the terms of his lease, which includes the removal and reinstatement of satellite dishes to enable the progress of the works. 
26. In terms of the difference in estimated and actual cost (the estimated cost of which it noted it had corresponded with the resident’s tenant about), the landlord explained that without closer inspection it was not possible to notice that the satellite dish was actually a specialised motorized dish, which had significantly increased the cost because of the complexities of the work involved. The landlord suggested the resident may wish to pass the cost onto his tenant, depending on the agreement made.
27. On 8 June 2020 the resident requested his complaint to be escalated to stage three of the landlord’s complaints procedure for the reasons previously stated and his ongoing dissatisfaction with the landlord charging him the £330.
28. On an unknown date in June 2020 (incorrectly dated June 2019), the landlord responded to the complaint at stage three of its complaints procedure. The complaint was not upheld with the landlord reiterating its previous reasons for this, although on this occasion acknowledged that the satellite dish was damaged and the tenant was reimbursed for this, with the tenant installing a “less complicated” dish thereafter.  It had no records as to damage on a second occasion but advised that its contractor liaised with the tenant directly and the satellite dish was left in working order.

Assessment and findings

29. The resident was responsible for service charges for the maintenance of the structure and exterior of the building in accordance with the terms of the lease.  The landlord was correct in stating that the relationship and the lease is between it and the resident and not his tenant; this is the case even where it is the resident’s tenant and not the resident himself, who has installed a satellite dish. 
30. Similarly, irrespective of permission granted by the resident, or landlord, or in fact, where no permission has been granted at all, the resident retains the responsibility for the services charges in accordance with his obligations under the lease.  Likewise, regardless of damage caused or not caused to the satellite dish, by the landlord or whether the damage was caused once or twice, the resident is responsible for the service charges as described.
31. Where a resident is a leaseholder and decides to rent out their property to a tenant, it is the responsibility of the resident to ensure that the tenancy agreement encompasses all relevant terms.  Had the resident included a clause whereby the tenant was unable to install a satellite dish to the outside of the building and/or request permission and be reliable thereafter for any associated costs, the resident would have been able to pass on the cost to the tenant.  It is unfortunate that this was not the case, with the resident understandably seeing the charge as unfair, however, it remains the case that the resident remains legally responsible for the service charges on his property.
32. The law does require the landlord to be reasonable, however, in its levying of service charges and the reasonableness of the charge in this case is one that can be determined by the First Tier Tribunal, as discussed above. 
33. In terms of notice of the amount, service charges are estimated costs and the actual amount payable may vary, ultimately being more or less than estimated at the start of the financial year. Notwithstanding this and the fact that service charges can and do change and increase, in dealing with the situation, the landlord missed the opportunity to inform the resident – its tenant – that it would be removing and reinstating the satellite dish at the property in order to carry out works, when it could have done so. 
34. It did not make him aware that there would be an associated cost regarding the satellite dish and provide him with the estimation of what that would be (even though it ended up being substantially more), which undoubtedly would have better managed the situation. It is unsurprisingly that having not done this, the bill was received as a shock and invoked a sense of injustice and anger at the situation which was not well managed by the landlord in terms of communication and expectation management.
35. The subsequent complaint was responded to the landlord within a timely manner, with it replying at stage one, in accordance with the timeframe set out in its complaints policy and procedural guidance and at stage two, very minimally outside of timeframe.  Its stage three response, although undated, also appears to have been issued within a reasonable period of time from the resident’s escalation request.
36. In its response, the landlord explained its position and why, reiterating this through the three stages of its complaints procedure, although it could have done more, earlier on, for reasons of transparency and completeness, to explain what had happened in terms of its conversation with the tenant about the situation and the breakage.
37. In terms of it missing out the detailed charge on the service charge statement, the landlord recognised it had done this in error and explained the original figure was omitted.  The landlord did not apologise for this, however, which would have been appropriate in the circumstances where it was recognising an error it had made.
38. Part of resolving a complaint is often importantly about not only recognition of mistakes made but a sincere apology and an explanation of why things went wrong and actions the landlord has taken to help prevent a recurrence.  The landlord missed a further opportunity here, in not doing this. 

Determination

39. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord, in respect of the complaint.

Reasons

40. There was no maladministration by the landlord insofar as it notified the resident of a charge for maintenance of the structure and exterior of the building, for which he was responsible in accordance with the terms of his lease. 
41. Although the landlord missed opportunities in communicating the situation with the satellite dish earlier on, while this would have demonstrated better customer service, it was not obliged to do this and consequently, does not amount to service failure.