Harlow District Council (202005328)

REPORT

COMPLAINT 202005328

Harlow District Council

10 May 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. The resident has complained that:
   1. They have been charged too much for the cost of major works (a roof replacement) at their building.
   2. The cost is too high because the landlord has not maintained the roof appropriately in previous years.

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 the complaint about the actual cost of the major works is outside the jurisdiction of the Housing Ombudsman Service. Paragraph 39(g) states:

“39. The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion:

g. concern the level of rent or service charge or the amount of the rent or service charge increase;”

4. The February 2020 invoice which led to this complaint is for the service charge account for the property. Major works costs are part of the resident’s service charge. Therefore the actual amount charged for the major works is outside the jurisdiction of the Housing Ombudsman Service. This would also include the tendering processes used by the landlord to secure the consultant and contractor.
5. The landlord’s June 2020 final response to the complaint provided the details of the First Tier Tribunal. This is the correct authority that the resident would need to contact if they wanted to challenge the actual amount they have been charged.
6. Therefore this assessment will only consider the complaint that the roof had not been appropriately repaired / maintained prior to the roof replacement.

Background

7. This complaint followed the landlord issuing the invoice in February 2020 for the major works at the resident’s building. The works had been discussed since 2015 and were completed in 2018/2019.
8. The resident has provided documents for a previous formal complaint in 2013, together with documents relating to the Section 20 consultation, major works and resulting complaint from 2015 onwards.
9. The Housing Ombudsman Service asks that residents complain about an issue within 6 months of the issue occurring, and then bring any concluded complaint to our Service within 12 months of the landlord’s final response. This is set out in the Housing Ombudsman Scheme paragraphs 39(d) and (e). They are in place to encourage the early resolution of any disputes, and to ensure any investigation is focused on current concerns.
10. Therefore, while the older documents have been reviewed as part of the background for this case, the Housing Ombudsman Service cannot reach a determination about the handling of the earlier leak and resulting complaint in 2013/14.
11. The 2013/14 complaint concerned a leak into the property, the response times of the contractor and the time taken to diagnose and repair the leak. The complaint was in part upheld by the landlord.
12. The landlord issued a notice about its intention to carry out major works in November 2015. The resident expressed their concerns about the works during the consultation, including in November 2016. They explained:
    1. The roof only needed replacing due to the landlord’s inadequate maintenance over the years. They highlighted their 2013 complaint (and the associated leak) as evidence of the inadequate maintenance.
    2. That they should only pay a pro rata contribution having only bought the property 4 years previously.
    3. That they believed the landlord’s strategy was to maintain as little as possible and then arrange a full replacement as it could pass the cost of this onto the leaseholders.
13. The landlord issued a further notice about engaging a consultant in relation to the works in January 2017. The First Tier Tribunal determined in February 2017 that the landlord could not forgo the consultation for this notice as the landlord had requested. The landlord also issued a further notice about proposed works under Section 20 in January 2017. These works included the roof replacement works that had been mentioned in the 2015 notice.
14. The resident re-raised their concern about the need for a replacement roof (and the resulting cost) in February and March 2017. The landlord provided a response in March 2017, however it does not appear it was taken through the landlord’s complaint procedure. This response explained:
    1. The roof was considered to be at the end of its life span. A test of the roof dated it to around 1990 and the recognised life span was 25-30 years (with the new roof having a guarantee of 25 years).
    2. That two other buildings with similar construction faced similar issues, demonstrating it was the nature of the construction and not a specific issue of disrepair to this building.
    3. The decision to replace the roof was not based on any current disrepair, but as part of the wider planned works strategy. In particular it was to take advantage of scaffolding that was needed for other works.
15. The various works (including the roof replacement) were then completed from April 2017 until March 2019 (confirmed by the practical completion certificate). Residents were invited to an inspection with the contractor in May 2019.
16. The landlord sent the invoice for the works in February 2020. This resulted in the resident’s complaint about the costs in March 2020.
    1. They asked for the history of the building’s roof replacements.
    2. That the leak in 2013/14 showed the roof was not fit for purpose, and should have been replaced earlier.
    3. That the landlord’s delay in earlier, planned repairs has resulted in a more extensive (and expensive) replacement falling on the leaseholders to fund.
17. The landlord responded at stage 1 in April 2020 and, following a delay, at stage 2 in June 2020.
    1. The stage 1 response repeated the explanation about the condition of the roof given in the March 2017 letter.
    2. The stage 1 response also explained how the repairs service identified required repairs. In particular it explained ‘the council relies on residents of the block to report any issues.’ It explained it was responsible for completing any repairs or maintenance to communal areas, but that any works costing over £250 would have to be consulted on with leaseholders as they in turn would be required to contribute to the cost.
    3. The stage 2 response explained a stock condition survey had recommended the replacement of the roof. It explained the contractor’s involvement was based on a long standing contract that had been ‘procured through competitive tender.’ It also provided the dates of the consultation meetings across 2016/2017 and explained the various repayment options it had for leaseholders now the invoice had been issued.
18. There was some confusion as the landlord referred to a 3 stage process, as did its complaint procedure, however the stage 2 response also stated it was the final response and provided the details of the First Tier Tribunal and the Housing Ombudsman Service. This was then confirmed by the Housing Ombudsman to be the landlord’s final response.
19. The landlord has provided a roof inspection report from June 2016. This notes that every area tested was in ‘poor’ condition. As such the consultant recommended a replacement roof alongside other works.

Assessment

20. The focus of the resident’s complaint is on the cost of the works. As explained above, and as explained by the landlord during the complaint procedure, any complaint about the actual cost would need to be taken to the First Tier Tribunal. This would include any concern about the processes through which any contractors/consultants were engaged.
21. The landlord has explained that the ongoing maintenance of the roof is reliant on the reports it receives from residents. This is a reasonable approach to take. The landlord’s obligation is to respond to any repair reports it receives about any parts of the building it is responsible for.
22. In terms of pro-active maintenance, the landlord has explained this is managed through its planned works strategy and is based on a stock condition survey.
23. Therefore the landlord’s works to the roof will be governed by the reports it receives from residents together with the recommendations it receives as part of preparing its planned works strategy. It is reasonable for a landlord to follow the advice it receives from appropriately qualified contractors. It is also reasonable for the landlord to attempt a repair where it is considered effective and more cost efficient than a wider replacement.
24. The resident has highlighted the time taken to resolve a leak in 2013/14 as evidence that the roof was in poor condition and had not been properly maintained. As explained above if the resident was dissatisfied with the landlord’s handling of the repair in 2013/14 that issue would have needed to come to the Housing Ombudsman in 2014/15.
25. No other evidence has been provided about other leaks closer to the time of the roof replacement. Furthermore no expert advice has been provided by either party to contradict the recommendation in the 2016 survey. This survey considered the roof in every area tested to be of poor quality and recommended the replacement. As landlords are expected to follow an evidence based approach to ensure a fair service, it was appropriate for it to then follow this recommendation.
26. The resident has explained that the landlord has completed minimal repairs so that it can then pass on the cost of the replacement to leaseholders. There is no specific evidence to support this statement. For example there is no expert survey that states some roof repairs were overdue; or that a replacement was unnecessary.
27. Furthermore, leaseholders would have been expected to contribute to the cost of any qualifying repairs prior to a replacement. Therefore, if the landlord had completed more repairs earlier as the resident has suggested, this would have still resulted in some costs to the resident and an eventual replacement cost anyway given the flat roof design. As explained above, the landlord’s obligation is limited to completing repairs where it receives reports from residents and based on appropriate expert advice.

The resident has stated that they should only pay a pro rata cost of the major works due to the time they had owned the property. However the obligations of the leasehold agreement are set out at Schedule G and E, which explicitly state the service charge is payable by the resident to ‘renew roof covering.’ There is no mechanism in the leasehold agreement to calculate service charges based on how long the resident has owned the property. The resident will have been advised of the possible obligations, and costs, they would face when purchasing the property by their conveyancing solicitor. The decision to purchase the property comes with the decision to become liable for all the relevant costs, including service charges.

Determination (decision)

28. Therefore I can confirm in accordance with paragraph 54 of the Housing Ombudsman Service Scheme:
    1. There was no maladministration by the landlord in its response to the complaint that the roof had not been appropriately maintained prior to the roof replacement.
29. I can also confirm that in accordance with paragraph 39(g):
    1. The complaint about the amount charged by the landlord for the major works is outside the jurisdiction of the Housing Ombudsman Service.

Reasons

30. The landlord has reasonable evidence to support its decision that a roof replacement was required. The need for earlier repairs does not prove that the roof required replacement earlier, and there is no expert evidence to say that the roof had not been repaired as required resulting in an unnecessary replacement.