Hyde Housing Association Limited (202115521)

REPORT

COMPLAINT 202115521

Hyde Housing Association Limited

29 September 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:
1. the landlord’s response to repairs to the fences and bin store.
2. the associated complaint.

Background

The resident has a lease of her property dated 12 December 2014. Her landlord has a superior lease with the freeholder of the property for a term of 150 years from 17 October 2008. The resident’s property is on an estate that has flats, fences around it and a communal bin store area.
On 31 July 2021, the resident reported disrepair to the fences and the bin store area to her landlord. She complained that people were leaving rubbish around the bins. The resident asked her landlord if the freeholder was responsible for repairing this area. The landlord contacted the freeholder about these issues in August 2021.
On 27 October 2021, the resident asked her landlord to consider her complaint at stage 1 of its complaint process. In addition to the bin area being insecure, she complained of it not having working lighting. The resident requested new fences and a secure bin area. The resident expressed concern for her personal safety and requested a response within 10 working days.
The landlord chased the freeholder on 24 November 2021 and on 1 December 2021. The freeholder stated it had not found contractors to do the work. It also said that if the work exceeded £250 it would need to consult residents and asked if the landlord wished to bypass this. The landlord responded on 2 December 2021 to say that it was happy with the freeholder proceeding to get the work done as quickly as possible.
The landlord explained to the resident on 2 December 2021 that it was waiting to hear from the freeholder with dates to do the repair work. It promised the resident that it would chase this up and update her. The landlord also agreed to take away the rubbish and to clean the bin store area.
On 9 December 2021, the landlord issued its response at stage 1 of its complaint process. It stated:
1. it should have responded to the complaint more quickly and offered £50 for the delay.
2. it was delayed responding due to staff absences.
3. it was the freeholders’ responsibility to arrange repairs to the bin store area and fence surrounding it.
4. it would ask the freeholder to confirm if it would provide a lock for the bin area and if not, it would obtain the freeholder’s reasons.
5. it directed the resident to its property manager who it explained would be overseeing the commitments it has made.
6. it had been chasing the freeholder to do the repairs but could not do the repairs itself as this would be in breach of its lease with the freeholder.
7. it may take legal action against the freeholder if it does not do the required work.
The landlord explained to the resident in December 2021 that it had been chasing the freeholder to complete the repairs since August 2021. It told the resident that it only started receiving responses from the freeholder during the previous week. It explained that if the repair work was more than £250 then the freeholder would need to start a consultation process with other residents about the work. It said the freeholder had requested the landlord to pay its service charges before the freeholder commenced the works.
The resident requested the landlord escalate her complaint on 13 December 2021. She was unhappy with the landlord just chasing the freeholder because the issue had been ongoing for nearly six months. She requested her landlord take legal action against the freeholder.
In February 2022, the landlord held a review meeting to discuss the issues. It was suggested that a letter be sent to the freeholder threatening legal action if it failed to undertake the repair work required under the lease.
On 11 February 2022, the landlord issued a response at stage 2 stating:
1. the freeholder had arranged for the fence and bin area to be repaired and the options for lighting would be explored.
2. it offered the resident £150 and said it could have done more to chase the freeholder and that it should have obtained legal advice at an earlier stage.
3. it reiterated that it has been chasing the freeholder, but it would be seeking legal advice as the lighting is still an ongoing issue.
4. it would update the resident every two weeks and explained the property manager would be her dedicated point of contact.
The resident remained unhappy with the delay and reported that the fencing was not completely repaired.

Assessment and findings

The landlord’s response to the bin store and fence disrepair

Schedule 6(2) and Schedule 6(8)(e) of the superior lease required the freeholder, upon payment of a service charge, to repair the shared facilities like the bin store area and fences.
The landlord was not responsible for repairing the fences around the estate, the bin area, or lighting the bin store area. Clause 3(1) of the tenant’s covenants in the superior lease only required the landlord to keep the flats and shared entrance halls, landings, passages, and stairways in repair.
This is confirmed in the sublease between the landlord and the resident. Clause 5.3 allows for the landlord to maintain and repair common parts provided the resident pays her rent and service charges. The common parts are defined by schedule 9 of the resident’s lease and do not include the fences around the resident’s estate and bin store.
It was therefore reasonable for the landlord to contact the freeholder on 4 August 2021. This was prompt and appropriate action to take given that the resident reported the issues at the end of July 2021
The initial delay with the freeholder agreeing to do any repairs was because the landlord had not paid its insurance premium. However, as this was then paid by the landlord on 6 August 2021, this should have allowed the freeholder to proceed. Despite this, there is no evidence that the freeholder progressed the works or that the landlord chased the freeholder until 21 October 2021. This was an unreasonable delay.
The landlord acknowledged that the fencing had worsened and became hazardous. The landlord also reported, in October 2021, that there was non-existent lighting at the bin store which was a hazard and safety risk. It was appropriate and reasonable for the landlord to inform the freeholder about the broken lights as soon as it was aware as this was required by its lease with the freeholder.
The landlord was aware that the freeholder was unresponsive and therefore should have considered at an earlier stage what options it had available to it. In its stage 1 response, it suggested it may need to act against the freeholder. It was appropriate for the landlord to hold a review meeting on 22 December 2021 and for it to have obtained some legal advice on 7 February 2022. However, there is no evidence to suggest the landlord investigated the legal position further until 29 July 2022 which was unreasonable.
The resident was entitled to expect her landlord to have sought legal advice earlier rather than to keep chasing an unresponsive freeholder. This is because it had been doing this since August 2021 and it would have been clear that this was ineffective. When the landlord responded at stage 2, it stated that the freeholder had arranged for the fences to be repaired and for the bin store area to be made secure, however, there was still no lighting.
Despite this, the landlord only committed to chase the freeholder again and said it would keep the resident updated and seek legal advice. This is no different from its position in December 2021 when it responded to the resident at stage 1. It was unreasonable for the landlord not to consider other options available to it. It could have considered doing the work itself or obtained a court order to make the freeholder do them.
This service has seen evidence from photographs taken on 21 June 2022 showing that the gate to access the bin store from a village hall shed and from the high street was still in disrepair (at that time). The photographs also show the fencing around the resident’s property had still not been repaired. The landlord said it did the work themselves and recharged the freeholder in July 2022. The resident disputes the work was done.
The resident experienced anxiety and frustration by the landlord’s inaction. This service accepts that the initial position of the landlord to report the disrepair and chase the freeholder was reasonable. This is because the freeholder was responsible for the repairs the resident requested. This service also accepts that the freeholder was responsible for the delay in doing the repair work and that this was an issue largely outside the landlord’s control. However, the landlord could have done more to get the work done. The resident explained that the delay in having secure access and lighting was detrimental to her personal safety. This service accepts that poor lighting and an insecure bin storage area are undesirable. However, the Ombudsman has seen no evidence that this resulted in any risk that the resident could not mitigate against by depositing her rubbish during daylight hours.

Complaint handling

The landlord was responsible for responding to complaints at stage 1 within 20 working days and to complaints at stage 2 within 20 working days of the complaint being escalated. It took the landlord 31 working days to respond at stage 1. It took it 41 working days to respond at stage 2. This was an unreasonable delay however the landlord acknowledged its delay and offered £150 to cover its poor complaint handling and not doing more to get the freeholder to do the repairs.

Determination

In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s response to the resident’s request to repair the fences and bin store.
In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s handling of the associated complaint.

Orders and recommendations

The landlord must within 28 days of the date of this determination:
1. inspect the resident’s estate and provide this service and the resident with a schedule of any outstanding repairs (with photographs) and a timeframe for completion. Once it has compiled a report, it must seek legal advice about the prospects of successfully obtaining an injunction against the freeholder to do the outstanding work it is responsible for. It must provide a summary to the resident and this service within 28 days of obtaining the report for the estate.
2. pay the resident the sum of £250 for the distress and anxiety caused by its delay in considering options against the freeholder.
3. provide evidence of compliance with these orders.
It is recommended that the landlord:
1. review its systems for paying invoices provided by freeholders when they fall due.
2. consider a process for internally escalating outstanding repairs, with defined timescales, that are the responsibility of the freeholder.