Irwell Valley Housing Association Limited (202224154)

REPORT

COMPLAINT 202224154

Irwell Valley Housing Association Limited

25 March 2024

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 the landlord’s handling of the resident’s:
1. Concern about the time taken to replace the wooden walkways at the property.
2. Concern about the liability for the works, and the associated increase in service charges.
3. Queries about service charges.
4. Complaint.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 42(f) of the Scheme, the landlord’s handling of the resident’s concern about the liability for the works, and the associated increase in service charges, is outside of the Ombudsman’s jurisdiction.
As part of his complaint, the resident raised a concern that the landlord planned to recover the costs of replacing the wooden walkways through its service charges (including sinking fund contributions). The resident claimed that the residents in the block were not liable for the costs under the Building Safety Act (leaseholder protection) 2022. Whether the landlord was entitled to recover the costs of replacing the walkways, by increasing service charges, is a legal matter. This Service cannot make a binding decision on complaints about the level of or increase to service charges, or determine whether service charges are reasonable or payable.
Complaints related to the level, reasonableness, or liability to pay service charges are within the jurisdiction of the First-Tier Tribunal (Property Chamber). The resident may wish to contact the First Tier Tribunal if he wishes to pursue this aspect of his complaint further. It is noted that, in September 2023, the landlord decided that it would not seek to recover the costs of replacing the walkways from the leaseholders in the block.
This Service has considered the landlord’s communication around the service charges and whether its approach was reasonable in the circumstances.

Background

The resident is a leaseholder of a ground floor flat in a block, and the landlord is the freeholder of the block. The resident purchased the lease in September 2014, and at the time of the complaint he was renting the property out. The landlord does not have any recorded vulnerabilities for the resident.

Summary of events

The landlord wrote to the resident, on 22 May 2020, and said it was starting a ‘section 20’ consultation about planned works. The works were to replace the wooden walkways with non combustible material. It explained that it wanted to do the work to ensure it complied with the updated government guidance on building safety.
The landlord wrote to the resident on 17 February 2021, and said:
1. It had attached responses to the 73 observations the resident had made at stage 1 of the consultation process.
2. It thanked the resident for his patience while it sought estimates of costs and reviewed materials.
3. There were 2 main reasons for the delay which were:
  1. The Covid-19 lockdown restrictions.
  2. Its desire to ensure it “specified correctly the best materials” for the proposed works.
4. It provided two estimated costs supplied by potential contractors, and asked the resident to make any observations he had within 30 days.
The landlord wrote to the resident on 28 July 2021 and said:
1. It had wanted to provide an update “much earlier”.
2. The “challenging and changing” market meant that it had experienced an unavoidable delay in appointing a contractor.
3. The contractor who provided the lowest estimate failed to respond to the landlord’s approach.
4. It had since approached the contractor with the next lowest price, and it had been awarded the contract. The contractor planned to start works in late September/early October 2021. It would confirm exact dates nearer the time.
5. The works would take approximately 6 to 8 weeks.
6. In anticipation of the walkway replacement works, it had increased the resident’s sinking fund contributions over 2 years to help spread the cost.
7. The sinking fund would cover just over half of the costs. A further estimated £2,276.56 would need to be recovered from each leaseholder.
The evidence indicates that the works did not go ahead, as proposed, in September/October 2021.
The local fire service completed a fire safety inspection at the block on 23 June 2022, and sent its findings to the landlord in a letter that said:
1. The walkways were made out of combustible material, and as such was not compliant with safety regulations. It understood the landlord was already aware of the issue.
2. It understood works to remove the risk of external fire spread (replacing the walkway with non combustible material) were planned.
3. It did not consider it necessary to serve an ‘enforcement notice’ at that stage. But reminded the landlord of the importance of acting on its recommendations.
4. It asked the landlord to keep it informed of when the proposed works would take place.
The resident raised a formal complaint with the landlord on 27 October 2022, and said:
1. It had known about the need to replace the wooden walkways for “several years”.
2. Despite work being due to start in September 2021, no work had yet been done, and the building was left “unsafe” as a result.
3. The delay in progressing with the works was causing “unnecessary stress”, and it was “incredibly difficult” to get responses about the progress of the works.
4. He challenged the level of service charge, as it been increased to cover the costs of the works. He was of the view that the leaseholders were not liable for the costs of the works.
The landlord sent its stage 1 complaint response on 16 November 2022, and said:
1. After the Grenfell Tower tragedy the government issued advice to all landlord’s that all combustible material on the exterior of a building should be replaced. The landlord then issued its ‘section 20 notice’ in May 2020 stating its intention to replace the wooden walkways.
2. In February 2022, the government advice changed and advised landlords to take a “risk based” approach. In May 2022, it sent an update to all residents that stated it was seeking advice from the local fire service. This was to assess the risk posed, and whether the walkway still needed to be replaced.
3. It gave a further update about its risk based approach in a residents meeting in August 2022.
4. It had made no final decision on the walkways.
5. It had found it was not at fault for the delay between its announcement the walkways needed replacing, and the “current situation” of it reassessing due to the updated government guidance.
6. It set out its position in terms of the legality of the increased service charges and sinking fund charges. It advised the resident to contact the FTT if he wanted to challenge the reasonableness of the service charges.
The resident contacted the landlord on 17 November 2022, and asked his complaint to be taken to stage 2, and said:
1. There was an unreasonable delay in the works starting and its assessment, in relation to the government guidance, was taking too long.
2. He asked for a proposed date when it hoped the works would start.
3. He raised a concern there was a contradiction between the landlord’s letter of 28 July 2021 and its stage 1 response. He said the July 2021 letter stated it had increased the sinking fund charges due to proposed fire safety works. But, its stage 1 complaint response said the sinking fund calculation was appropriate based on estimated costs “without costs for fire remedial work”.
4. He asked it to clarify if the service charge was increased with the intention of using the money to cover the fire safety works.
5. He challenged the legality of its approach to the service charges.
The landlord sent its stage 2 complaint response on 13 December 2022, and said:
1. The consultation process for the works to the walkway had taken 5 months, and just before the works were due to start, the chosen contractor ceased operating. It found it could not then progress due to the Covid-19 pandemic restrictions.
2. After restrictions were lifted it decided to get a further assessment of the walkways during “2021, and early 2022”. It could not act on the further assessment, as it was given “conflicting” advice.
3. It then decided to get advice from the local fire service, which could not happen until June 2022, due to fire service availability issues.
4. The fire service agreed that an “underdrawing” of the walkways was the best course of action. Due to the walkways not being assessed as “high risk”, the fire service was happy for the work to be carried out as part of planned works.
5. It acknowledged the issue had been outstanding for some time, which was causing residents concern. But, given the relaxation of the government guidance, if it had followed through with the initial planned work, it would have come at a “significant” cost to leaseholders.
6. It had taken time to come to an appropriate solution due to the need to “flex” its approach based on changing government guidance.
7. It accepted that its stage 1 response advised him “incorrectly” in relation to the increased sinking fund contributions. It set out its position in terms of how the sinking fund was calculated.
8. It went on to explain its understanding of the legal position in relation to section 20 notices, and sinking fund increases. It also outlined its understanding of the Building Safety Act 2022, and how it related to recharge leaseholders for remedial fire safety works.
9. It agreed with the stage 1 response on “all points” and did not uphold any aspect of the resident’s complaint.
The resident contacted this Service on, 31 January 2023, and asked us to investigate his complaint. He said he was unhappy with the fact he had not had a “definite” answer about the proposed works, or when they would go ahead.

Events after the first complaints process

The resident raised a further stage 1 complaint on 24 March 2023, and said:
1. That the remedial fire safety works to the walkways were not yet done was “appalling”.
2. He was unhappy that it took “weeks of chasing” for it to respond to emails about the remedial works, or the emails just were ignored
3. He asked the landlord to clarify:
  1. What works were included in its 30 year plan.
  2. The costs of the works.
  3. How much the service charge would be increased to cover the works.
The landlord sent the resident an email on 12 April 2023, and said:
1. It said it had “raised” the resident’s “frustrations”, about the works to the walkways, internally. It was planning to give more information at its upcoming meeting with residents in May 2023.
2. It set out its position in relation to the queries about its 30 year plan, and the associated service charges.
3. It apologised that it had not responded to the requests for information as quickly as it “should”.
The resident emailed the landlord on 27 April 2023 and asked his complaint to be taken to stage 2. The landlord emailed the resident on 11 May 2023 and said it should have logged the resident’s email of the 24 March 2023, as a complaint and provided a formal response. It apologised that it had not done so, and for its delayed response. The resident responded on 12 May 2023 and asked it to raise a formal complaint investigation.
The landlord sent its stage 1 complaint response on 31 May 2023, and said:
1. It should have sent the resident’s email of 24 March 2023 on to its complaint team to investigate as a formal complaint, and it apologised for the “error”.
2. It had raised it with the relevant manager and the issue was addressed at a team meeting to prevent it reoccurring.
3. It offered £50 in compensation for its handling of the complaint.
4. It apologised for the “considerable delays” in providing responses to his email about service charges, and planned works. It offered £50 in compensation.
5. It wanted to “reassure” the resident that the fire service had assessed the walkways as “low risk”, and it had several measures in place to reduce risk. These were:
  1. Weekly visual fire inspections.
  2. Annual front door checks.
  3. Annual fire safety risk assessments.
6. It had committed to starting the works in the financial year 2023-24.
The resident contacted the landlord on 9 June 2023, and asked his complaint to be taken to stage 2. He said that the landlord had supplied the “bare minimum” of information about the issue, and he had only managed to get information by raising complaints. The resident also raised a question around the legal position of the landlord’s ability to recharge leaseholders for remedial works.
The landlord sent the resident its stage 2 complaint response on 10 July 2023 and said:
1. It restated its legal position in relation to remedial works, and explained it had sought legal advice to confirm its position.
2. The government guidance on remedial fire safety works had changed over time, and the government had put in measures to prevent leaseholders being charged in “most cases”.
3. It sought to recoup costs “via other routes”, and would only pass costs on to leaseholders as a “last resort”.
4. It appreciated the delay was “frustrating”. It was of the view it was taking a “considered and measured approach” to ensure a fair result for leaseholders, while adhering to fire safety regulations.
The landlord met with residents in the block, on 27 September 2023, and explained that the works to the walkway would commence by the end of the year. It said that it had identified works that would satisfy the fire safety requirements, and it would not pass on the cost of the works to the leaseholders.
The resident told this Service, on 18 March 2024, that the landlord had started works before the end of 2023, but the works were not yet completed. The landlord did not respond to our request for information on its latest position.

Assessment and findings

Relevant obligations, policies, and procedures

The landlord’s asset management policy states that it will adopt a “reactive” approach to deal with issues that pose an “immediate risk”. For issues that do not pose an immediate risk, the works will be done as part of “planned future works”.
The landlord’s leasehold management policy states that service charges will be set within advance of the “service charge year”, and it will finalise the account within 6 months of the “service charge year” ending. The policy states that it where proposed works are to cost more that £250 for each leaseholder, it will do a ‘section 20’ consultation. The policy states that leaseholders are expected to pay a separate amount into a sinking funds to offset future repairs costs.
The landlord’s compensation policy states it can offer compensation in the following bands:
1. Partial landlord responsibility: £50 (minor impact); £100 (moderate impact); £150 (severe impact).
2. Full landlord responsibility: £100 (minor impact); £250 (moderate impact); £500 (severe impact).
The landlord’s complaint policy states it operates a 2 stage complaints procedure. Stage 1 complaints will be acknowledged within 5 working days, and a response sent within 10 working days. At stage 2, it will send responses within 20 working days.

The resident’s concern about the time taken to replace the wooden walkways at the property

When the landlord became aware that remedial works to the wooden walkways were needed it, started the ‘Section 20’ consultation process with residents. This was in line with its policy, and obligations, in relation to major works. The landlord clearly communicated why it needed to do the works, and what they were likely to entail.
Following the resident raising a number of queries during the consultation period, the landlord provide a response and its position in relation to each query/observation. This was reasonable in the circumstances and in line obligations in regard to the ‘Section 20’ process. As outlined above, it is not within the scope of this investigation to assess whether the landlord’s explanation about its legal position was correct, as this would be a matter for the courts.
This Service has seen no evidence to suggest the landlord provided any updates between the end of the consultation period in March 2021, and its update of July 2021. This was unreasonable and, while it appropriately apologised, its comment that it wanted to provide an update “much earlier” was inappropriate. The resident was evidently concerned about the fire safety issue. If the landlord had been more proactive in giving updates, regardless of whether progress was made, it would have helped reassure the resident that it was taking the matter seriously.
Despite the landlord stating in July 2021 that it planned to start works in September/October 2021, the works did not go ahead. The evidence indicates that this delay was somewhat outside of the landlord’s control. However, this Service has seen no evidence to indicate that the landlord explained the delay to the resident, or what its next steps were. This was a failing in its handling of the matter. The resident experienced a disappointment of the works not going ahead when the landlord said they would. The resident was evidently distressed by the issue, which was increased by the fact he found it “incredibly difficult” to get responses from the landlord.
The landlord’s stage 1 response, of November 2022, was silent on the fact works did not go ahead in September 2021, as it had planned. The resident expressed a concern, as part of his complaint, that the works were delayed. That the landlord did not address this matter in any detail in its complaint response was unreasonable.
It is noted that the government guidance changed in the intervening period, so it was reasonable for the landlord to modify its position. But, it would also have been appropriate to provide an assessment of its actions up to that point. Particularly, as the resident had expressed concern about its handling of the matter, and the delays. The resident inconvenience by the fact the landlord did not provide an appropriate assessment of its actions in relation to the concerns he had raised.
The landlord’s stage 1 complaint response, of November 2022, was also silent on the resident’s concerns about its lack of communication. The resident had explicitly stated that he found it “incredibly difficult” to get updates about the substantive issue. That the landlord did not respond to this aspect of his complaint in any detail was inappropriate, and caused a further inconvenience.
The evidence shows that the landlord was not proactive in providing updates about its latest position. A thorough assessment of its own actions, and the resident’s concern about communication, would have enabled it to try and put this right and prevent similar failing happening again. The lack of learning shown about its own actions was inappropriate.
The landlord’s stage 2 complaint response, of December 2022, gave a more detailed explanation about the delays and the difficulties it experienced. This went some way to putting right the failings in this regard, from stage 1. The landlord gave a detailed explanation of how the government guidance had changed, and outlined its latest position on the works. This was reasonable in circumstances. However, it failed to reflect on the fact this was the first instance the resident had received an appropriate explanation about the delays, which shows a lack of learning.
The evidence shows the stage 1 response, of May 2023, was the first instance the landlord outlined what safety measures it put in place to reduce the risk around the walkways. The resident had expressed concern and distress throughout about the safety of the building. That it took nearly 3 years to outline its position on safety measures, was inappropriate. This further supports the conclusion that the landlord’s communication about the issue was poor.
The resident raised a concern, as part of his stage 2 escalation of June 2023, that he only got information about the issue when he made a complaint. While the evidence shows he had some updates outside the complaints process, it also shows the landlord was not proactive in providing regular updates. This caused the resident an inconvenience of needing to repeatedly chase the landlord for updates, as well as needing to go through the complaint process twice to get an explanation about safety measures.
The landlord used its final stage 2 complaint response, of July 2023, to set out its position in relation to the works. It is clear that the government guidance changed throughout the period of the resident’s complaint, and the landlord needed to adapt its approach. It used its final response to explain that it sought to balance the need to adhere to the latest safety guidance, and keep costs down for residents. This was reasonable in the circumstances and its explanation provided clarity to the resident.
It is not disputed that there were delays in progressing with the works, and the evidence shows that the delays were somewhat outside of the landlord’s control. The Covid-19 lockdowns, changing government guidance on remedial works, and issues with contractors, evidently impacted on the landlord’s ability to respond. However, the evidence also shows that when its position changed, or there were delays, the landlord was not proactive in providing updates to the resident. The resident was evidently distressed and worried about the safety of the building. The lack of proactive communication from the landlord shows it did little to seek to alleviate the resident’s concern, and he was inconvenienced by the need to chase it for responses.
In its stage 1 response, of May 2023, the landlord offered £50 in compensation for the delay in responding to specific queries about the issue, made in March 2023. While it was appropriate to apologise and offer redress for this specific failing, it did not consider its earlier poor communication. Its compensation policy outlines it can offer £50 when it deems it has “partial” responsibility for a detriment. To offer this for a failing in its communication was an unreasonable application of its compensation policy, as such a failing is the “full” responsibility of the landlord.
There were delays outside of the landlord’s control, and its position on the works appropriately adapted to the changing government guidance. It evidently sought to keep costs down for the resident, and ultimately decided not to pass on the costs, which was reasonable in the circumstances. There was a lack of learning about its poor communication. While it accepted a failing for an instance of poor communication, it failed to reflect that its communication about the issue was poor throughout. As such, the £50 it offered for its handling of the matter did not fully put things right for the resident, and an appropriate series of orders are made below.

Queries about service charges

As outlined above, it is not within scope of this investigation to determine the liability, legality, or reasonableness of the resident’s service charges, as this is a matter better suited to the FTT. However, this investigation has considered the landlord’s response to the resident’s queries about service charges, and whether its approach was reasonable in all the circumstances.
As part of his complaint, of October 2022, the resident queried the increase in service charge, and whether leaseholders were liable to pay for the proposed works. The landlord’s response, of November 2022, gave a detailed explanation of its position, which was reasonable. It also signposted the resident to the FTT if he wanted to challenge the levied charged. This was appropriate in the circumstances.
The landlord’s stage 2 complaint response, of December 2022, admitted failing that the resident was advised “incorrectly”, at stage 1, about sinking fund contributions and whether they were to cover the remedial works. The resident was inconvenienced by being given incorrect advice. Its stage 2 response went some way to putting right its admitted failing, by providing a detailed explanation of its position, and how the relevant legislation applied. However, that it did not apologise, or offer appropriate redress, for the admitted failing was unreasonable.
The landlord’s stage 2 complaint response, of December 2022, gave a detailed explanation of how the remedial fire safety works to the walkways fitted into the relevant government guidance and legislation. As outlined above, it is not for this Service to determine if its position was correct from a legal perspective. But, its approach was transparent, detailed and sought to manage the resident’s expectations by outlining its position. It is noted that its position did change throughout, but as it explained to the resident, this was due to government guidance changing.
When the resident made a later complaint, in March 2023, he raised several queries about service charges, the sinking fund, and its 30 year plan. The landlord gave a detailed explanation of its position in relation to each of the queries raised, and where relevant, an explanation of its interpretation of legislation/guidance. That its response was delayed and outside of the complaint process is assessed in detail below. In terms of the substantive issue, it sought to give thorough and transparent answers to the resident’s queries, which was appropriate. It appropriately apologised for the delay in issuing its response, which went some way to putting right its admitted failing.
The landlord used its final stage 2 complaint response, of July 2023, to outline its latest position in relation to the remedial works, and impact on service charges. The evidence shows that it sought legal advice, as part of its complaint investigation, to satisfy itself it had adopted the correct position. Given the changing nature of government guidance, and relatively new legislation that had come into force, this was an appropriate approach. However, aside from its first complaint response, it did not remind the resident that he had the right to challenge its position on services charges through the FTT. That it did not do so was a shortcoming in its handling of the matter.
The landlord sought to provide a detailed and transparent explanation about its position in relation to service charges throughout. It appropriately set out its legal position in relation to relevant legislation and guidance, and sought legal advice. The matter was complicated by the fact the government guidance changed throughout, and new pieces of legislation came into force.
It admitted a failing, that it gave incorrect advice at stage 1, but failed to apologise or offer appropriate redress. The incorrect advice caused an inconvenience, but the detriment is somewhat mitigated by the fact it was a complex issue about which the guidance was changing, and evolving. The landlord failed to remind the resident of the avenue of redress (the FTT) throughout the process, which would have been appropriate. As such, this Service has determined there was service failure in the landlord’s handling this matter.

Complaint handling

The landlord’s first stage 1 complaint response, of November 2022, failed to address specific issues raised by the resident in his complaint (the reason for not progressing with the works). This was a failing in its complaint handling, and the evidence shows it failed to adhere to the complaint handling principles set out in our Complaint Handling Code (the Code). The Code states that landlords complaint responses must “consider all information and evidence carefully”. That it did not consider and address all aspects of the resident’s complaint in its response caused an inconvenience.
When the resident tried to raise a later formal complaint, in March 2023, the landlord did not open a complaint investigation, or acknowledge that it was a complaint. This was a failing in its complaint handling, which created an unfair and hard to access complaints process for the resident. It is noted that it responded to the queries he raised, albeit with a delay. However, it did not seek to learn from its handling of the issues raised by opening a complaint investigation, which was unreasonable.
The resident received a response to his March 2023 complaint 44 working days after it was made. This was an unreasonable delay, and well outside of the timeframes set out in the landlord’s policy, and the Code. Its failure to progress with the complaint when it was made created a protracted and unfair complaints process for the resident. That it apologised and offered redress for its complaint handling failing was appropriate. It is also noted that the landlord showed appropriate learning about its admitted failing. That it reminded its staff, at a team meeting, about the importance of progressing with complaints when they are made, was appropriate in the circumstances.
The £50 the landlord offered for its complaint handling did not fully put things right for the resident. As with its other offer of compensation, it inappropriately applied its compensation policy, which says it can award £50 for “minor impact” when it is partially at fault. That it did not progress with the complaint within a reasonable timeframe is solely down to its own inaction on the complaint. As such, it is unclear why it did not seek to offer an appropriate level of redress for this failing, in line with its compensation policy.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s handling of the resident’s concern about the time taken to replace the wooden walkways at the property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure in the landlord’s handling of the resident’s queries about service charges.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s handling of the resident’s complaint.

Reasons

There were delays outside of the landlord’s control, and its position on the works appropriately adapted to the changing government guidance. It evidently sought to keep costs down for the resident, and ultimately decided not to pass on the costs, which was reasonable in the circumstances. There was a lack of learning about its poor communications. While it accepted a failing for an instance of poor communication, it failed to reflect that its communication about the issue was poor throughout.
The landlord sought to provide detailed and transparent explanations about its position in relation to service charges throughout, and sought legal advice. The matter was complicated by the fact the government guidance changed throughout, and new pieces of legislation came into force. It admitted a failing that it gave incorrect advice at stage 1, but failed to apologise or offer appropriate redress. The incorrect advice caused an inconvenience, but the detriment is somewhat mitigated by the fact it was a complex area where the guidance was changing and evolving. The landlord failed to remind the resident of the avenue of redress (the FTT) throughout the process, which would have been appropriate.
The landlord’s first stage 1 complaint response failed to address specific issues raised by the resident in his complaint. When the resident tried to raise a later complaint, the landlord did not open a complaint investigation, or acknowledge that it was a complaint. The landlord showed appropriate learning about its admitted failing, but the redress it offered did not fully put things right.

Orders

Within 4 weeks, the landlord is ordered to:
1. Apologise for the failings identified in this report.
2. Pay the resident £550 in compensation, made up of:
  1. The £50 its offered for its poor communication about the walkways issue (if it has not already done so).
  2. A further £250 in recognition of the distress and inconvenience caused by its handling of the walkways issue.
  3. £75 in recognition of the inconvenience caused by its handling of the resident’s queries about service charges.
  4. The £50 it offered for its complaint handling (if it has not already done so).
  5. A further £125 in recognition of the inconvenience caused by its complaint handling.
3. Remind its staff responsible for overseeing remedial and planned works of the importance of providing regular updates to residents about its progress, even when there is limited progress.