London Borough of Harrow (202313094)

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REPORT

COMPLAINT 202313094

London Borough of Harrow

30 September 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

  1. The complaint is about the landlord’s response to the resident’s concerns about service charges.

Background

  1. The resident is a secured tenant of the landlord, a local authority and has lived at the property since 19 July 2021. The property is a one-bedroom ground floor flat contained within an estate. The landlord confirmed it did not have any vulnerabilities recorded for the resident.
  2. The resident emailed the landlord on 4 March 2023. He also copied in his local MP. He explained that he was shocked by the increase in the service charge which was increasing from £2.40 to £8.90 per week. He wanted the landlord to “justify such an outrageous increase” as well as set out the services which he, unlike those who owned their own homes, paid for.
  3. The resident completed an online complaint on 9 March 2023. He explained that most properties on his estate were privately owned. This meant the council tenants who were the minority were “solely burdened” with the cost of caretaking for the estate which he considered was “unfair and discriminatory”. He stated these charges should be part of Council Tax and that, as all households benefitted, all of them should pay the charges.
  4. The landlord emailed its stage 1 response on 31 March 2023. It set out:
    1. The collective service charges were to provide services to the area including caretaking duties which included litter picking, bulk clearance, grounds maintenance and pest control to communal areas. It also included communal lighting and cleaning of communal areas as it stated the resident resided in a block.
    2. Up until the present time the landlord had based the uplift for service charges on a yearly increase in the consumer price index (CPI). However, as costs had increased above the rate of CPI, it had been challenging. Therefore, the actual cost of the service charge levied on residents did not reflect the actual costs of the services. The proposed uplift for the coming year reflected the actual cost of the service. It added it would break down the costs in a more transparent way per block and per estate.
    3. The service charges were not covered by Council Tax revenue which went towards other services including highway maintenance, school and education and policing.
  5. The resident emailed the landlord on 23 April 2023. He explained that the landlord did not know about the property which he resided in. He explained it was a maisonette-style flat which had an independent door which led directly outside. As a result, there was no communal lighting, entrance or bin. He therefore wanted the communal lighting element of the service charge to be removed for him and four other tenants as it was “tantamount to theft to continue charging for a non-provisioned service”.
  6. The resident emailed the landlord’s Housing department on 1 May 2023 to ask whether he could have a meeting with the portfolio holder in relation to the service charge. He added this was as his concerns were something which the housing portfolio holder could only help with. The resident stated he believed there “is a level of mismanagement happening within the housing department”.
  7. The landlord issued its stage 2 response on 2 May 2023. It stated:
    1. The road on which the resident lived was part of a housing estate and it was responsible for providing services to maintain and upkeep property and land which was owned by housing services. It added these services were provided separately to those covered by Council Tax payments.
    2. All properties owned by the landlord regardless of the type of property they were, which formed part of an estate where services were provided, were required to pay a service charge.
    3. Whilst it understood the resident disagreed with paying for communal lighting as he had his own entrance to his home, communal lighting was provided to his block. As his flat was “within the curtilage of block” it added it was fair and reasonable for him to contribute to this service.
  8. The landlord’s Cabinet member for Housing emailed the resident on 9 May 2023 and offered to personally meet the resident, or to arrange an online call for the resident with its Housing director.
  9. The resident emailed the landlord on 13 May 2023. He requested the meeting was not with the Housing director. He added this was as it was something which could need a Cabinet decision.
  10. The Cabinet member for Housing emailed the resident on 15 May 2023 asking him to set out in writing what his concerns were. The resident replied on 21 May 2023 stating he suffered from rheumatoid arthritis which affected his hands, and he was unable to explain it via email. This was why he wanted to meet the individual. In terms of the issues, these were:
    1. He was informed that he and three other properties would be charged as part of the service charge for communal lighting. However, they did not and had never had lighting.
    2. The estate wide service charge for “so-called communal areas”.
  11. The landlord’s internal correspondence on 15 June 2023 noted that there would be an amendment to the resident’s service charge based on the removal of the communal lighting charge. This reduced the service charge to £7.48 per week and this had been backdated to the beginning of the financial year in April.  This change had followed on from a site visit undertaken by the landlord.
  12. The resident emailed the landlord on 20 June 2023. He stated:
    1. He had spoken to his neighbours and had checked with HM Land Registry. He listed a number of properties which had a freehold tenure. He added that he believed this would also apply to all other properties which had been purchased under the right to buy.
    2. Based on this the estate wide service charge was discriminatory and unfair as “owners of ex-council houses are benefiting from estate services for free at the expense of social tenants”.
  13. The landlord emailed the resident on 21 June 2023. It stated that all properties had been levied a charge which was based on the level of service which was provided to a block or an estate and this was regardless of the tenure. It added that it would however check the charges levied to the properties which the resident had provided in his email.
  14. The landlord’s internal correspondence from 29 July 2023 confirmed that the resident’s property was attached to the block but that it did have its own entrance, and it did not use the communal areas. As a result, the property would not get any caretaking from it but would get a litter pick service to the front garden as well as removal of dumped items. The correspondence also provided details of how often the grass had been cut as well as the frequency of the pruning and weed spraying.

Assessment and findings

Scope of Investigation.

  1. As part of his complaint, the resident raised issues related to the level of service charges and the reasonableness of those charges in relation to his property Paragraph 42 d of the Scheme says that the Ombudsman may not investigate a complaint that concerns the level of rent or service charge or the amount of the rent or service charge increase. This report will therefore not determine whether the service charges are reasonable, or the amount charged is appropriate.
  2. While this Service is unable to decide on the matters above, the Ombudsman has however considered whether the landlord responded appropriately to the resident’s concerns and complaint about his service charge, and whether it treated him fairly in the circumstances.
  3. Complaints concerning the level of a rent or service charge may be best suited to be considered by the First Tier Tribunal (Property Chamber), who can establish whether variable as opposed to fixed service charges are reasonable or payable. The resident’s tenancy agreement should set out the nature of the service charges which he is liable for. The resident may wish to visit the First Tier Tribunal (Property Chamber) website for further advice of this matter.

Policies

  1. The landlord’s complaint policy operates a two-stage complaint process for formal complaints. At stage 1 it aims to provide a response within 15 working days. At stage 2 a response will be provided within 20 working days. At both stages, if the landlord is unable to provide a response by the deadline, it will contact the resident with details of when it expects to be able to provide its response by.
  2. The landlord’s website provides information on service charges in respect of leaseholders. Whilst it is accepted that the resident is not a leaseholder but rather a tenant, the general information about service charges would also be relevant for tenants. The information sets out that service charges cover maintenance and services provided by the landlord and that they were for the communal areas of the property. The website provided examples of services which included:
    1. Cleaning of the communal windows.
    2. Caretaking services.
    3. Ground maintenance.
    4. Insurance.
    5. Minor estate improvements,
    6. Communal electricity and gas.
  3. Residents are required to pay service charges as set out in their tenancy agreement or lease. Landlords should ensure that information about service charges including how they are calculated and the services they cover is readily available. Landlords should also try to respond promptly and openly to residents’ queries and comments about service charges.

The landlord’s handling of the resident’s concerns about the service charges.

  1. The resident’s initial contact with the landlord on 4 March 2023 was for it to explain the increase to the service charge which was being applied to the property. He then followed this up with an online complaint which was made on 9 March 2023. The landlord’s stage 1 response set out what services the service charge had covered. Whilst the resident had said that he believed that Council Tax was paying for the services received, such as the grass cutting, the landlord’s response explained the services which Council Tax covered as opposed to those provided by the use of a service charge which was applied to the whole estate. The landlord’s response was appropriate as it offered an explanation of the queries the resident had raised.
  2. In terms of timescales the landlord’s stage 1 response was received a day outside the timescales as set out in its complaints policy. Whilst the landlord did not send any update to the resident to explain the slight delay, there was no material impact caused as a result of its response being late.
  3. In addition to the individual response provided to the resident to his queries the landlord has also referred to the monthly magazine provided for its tenants and leaseholders dated March 2023 as well as the frequently asked questions (FAQ) from February 2023. The monthly magazine contained a section on service charges and the FAQs were about the rent and service charge changes for the year 2023/24. Both of these documents provided some context as to the reasons for the increase in the service charges which were based on the landlord using a different measure to calculate this, as it had explained the previous measurement used by it meant it would not be able to continue to deliver the current level of service.
  4. The resident had replied back to the landlord on 23 April 2023 following receiving the stage 1 response to dispute one of the services the landlord explained was covered by the service charge. He had explained that his property, along with some others, did not benefit from communal lighting so he considered it unreasonable that the landlord was charging him for this. This communication was taken by the landlord as the resident’s request to escalate his complaint. It provided its response in accordance with the timescales contained with its policy.
  5. Whilst the landlord maintained in its stage 2 response the reasons why the service charge was payable by the resident and reiterated why it was not covered by Council Tax, the landlord did continue to interact with the resident following the end of its internal complaints process. The resident had, whilst awaiting its stage 2 response, requested a meeting with the cabinet member for the landlord’s Housing department to raise the issue of the service charge. The Housing department asked the resident to expand on his reasons to request a meeting and, based on his response, it arranged a site visit to the block containing the resident’s property. This was a reasonable approach for it to take as the resident had provided conflicting information to that which it held in regard to the use of communal lighting and other communal services.
  6. As a consequence of the site visit and confirmation of the services which the resident was entitled to, the landlord informed the resident of a reduction of the service charge from £8.90 per week to £7.48 per week which was backdated to the beginning of the financial year. This was an appropriate response from the landlord as it recalculated the amounts once it had investigated the resident’s concerns and noted that he was not receiving some services he had been charged for.
  7. Following the site visit the resident raised further questions concerning the service charge. This related to whether freeholders on the same estate (who had purchased their properties under Right to Buy) were under any obligation to also pay the service charge. The resident explained that he had spoken to a number of his neighbours who fell into this category and were therefore not leaseholders but freeholders. Based on their responses he had come to the conclusion that only leaseholders and tenants were actually paying the service charge despite the other occupants also benefitting from the services covered by the charge.
  8. Whilst the landlord stated it would check on the matter there is no indication that it had done this. This was failing by it, and it has not provided any explanation as to why it had not followed up by checking the status of the properties which the resident had provided to it and replying back to him. Whilst the status of the properties in question may not have affected the resident’s contractual obligations to pay his own service charges, responding to his queries about this could have given him an assurance that the landlord was open and willing to explain its position to him.
  9. The landlord therefore did not demonstrate that it had appropriately investigated the resident’s concerns about whether the properties he had informed it about had paid the service charges or not. This had caused the resident inconvenience and time and trouble. There was service failure in the landlord’s response. As a result, an order has been made for compensation of £100. This award is in line with the remedies guidance of this Service for circumstances which have adversely impacted a resident.
  10. Whilst the landlord had not responded to the resident over his concerns despite saying it would do so, the primary issue over whether or not the policy concerning the service charges is unfair and discriminatory due to those who do and those who do not pay it is intrinsically linked to the level of service charge which the landlord sets. As the Ombudsman has explained complaints about the levels of variable service charge may be best suited to the First Tier Tribunal. As a result, the Ombudsman has not considered this aspect of the resident’s complaint any further.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s response to the resident’s concerns about service charges.

Orders

  1. Within four weeks of the date of this report the Ombudsman orders the landlord to:
    1. Pay the resident £100 compensation in recognition for its failure in not responding back to his concerns about the properties which he had alerted it to in his communication of 20 June 2023.
    2. Provide the resident with a response to his concerns from 20 June 2023.