London & Quadrant Housing Trust (202000245)

REPORT

COMPLAINT 202000245

London & Quadrant H T

20 July 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

The complaint refers to:
1. The landlord’s introduction of a communal caretaking service and service charge for this.
2. The resident’s concerns about the level of service charge and her request for this to be removed.
3. The resident’s concerns about the frequency and standard of service received.
4. The landlord’s handling of the associated complaint.

Jurisdiction

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.
After carefully considering all the evidence, in accordance with the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.

The resident’s concerns about the level of service charge and her request for this to be removed.

Paragraph 39(g) of the Scheme states:
1. The Ombudsman will not consider complaints which concern the level of rent or service charge or the amount of the rent or service charge increase.
The Ombudsman cannot review complaints about the increase of service charges and determine whether service charges are reasonable or payable. Complaints related to the level, reasonableness, or liability to pay rent or service charges are within the jurisdiction of the First-Tier Tribunal (Property Chamber). The First-Tier Tribunal can look at whether a refund of service charge should be given. As we cannot look at the level of service charge, we would not be able to tell the landlord to refund or remove this charge. However, we can look at the landlord’s communication around the service charge and whether it followed its relevant policies and procedures correctly.

The resident’s concerns about the frequency and standard of service received.

Paragraph 39 (a) of the Scheme states:
1. The Ombudsman will not consider complaints which are made prior to having exhausted a member’s [landlord’s] complaints procedure.
In her correspondence with this Service, the resident has raised concerns about the quality and frequency of the caretaking service provided by the landlord, the visits that went ahead during the Covid-19 pandemic, and pests within the property. She has provided photographs and video evidence which she says demonstrate that the cleaning is not being carried out to a satisfactory standard.
The Ombudsman can only consider matters which have been raised with the landlord as a formal complaint and which the landlord has issued a final response to, under its complaints procedure. This is so the landlord can resolve the complaint itself before the Ombudsman becomes involved. If the resident completes the landlord’s complaint process on these matters and remains dissatisfied once she has received its final response, she could refer the matters as a new complaint to the Ombudsman. In view of this, the current investigation focuses on the issues raised about the landlord’s implementation of the caretaking service and the landlord’s overall handling of the associated complaint.

Background and summary of events

The resident is an assured tenant of the landlord. The property is a flat within a block of flats.
The landlord has provided communication with the resident from 2018 which suggests that the resident was consulted about the proposed new caretaking service for the 2019-20 period. At this time, it was established that the residents of the block did their own cleaning of communal areas and had objected to the caretaking service. It decided that this service would not go ahead and the resident would not be charged.
The resident emailed the landlord on 4 February 2020 and explained the following:
1. She had received a letter regarding the introduction of a caretaking service at her property. She expressed dissatisfaction that the landlord was attempting to force her to pay a large amount of money each year for a service that had been disputed previously.
2. She was not prepared to pay towards the unnecessary service when she cleaned the communal areas herself and they were well-kept. She said that this charge should only be enforced in areas that were smelly, dusty or a risk, which was not the case at her block.
3. She asked the landlord to reconsider introducing the caretaking service and the extra cost of this. She added that she expected to pay less as she was not renting from a private landlord but instead was faced with increasing rent and service charges.
The resident sent a further email to the landlord on 20 February 2020 as she had not received a response and she was concerned that the new service charge would be introduced soon.
The landlord emailed the resident on 27 February 2020 and apologised for the delay in its response. It confirmed that the non-residential caretaker was a legal obligation that it needed to implement to maintain a risk-free, safe environment. The caretaker was the landlord’s assurance that these requirements were met.
The resident responded on 28 February 2020 and explained that she had tried to call the landlord but had not heard back. She explained that she had been living in the block for many years with no risk issues, and she could not afford to pay the extra costs associated with the caretaker service. She asked why the caretaker would come every week unless they wanted to make money from poorer people. She asked the landlord to consider the unfairness of the proposed charges and find a solution or signpost her to where she could raise a formal complaint.
The landlord wrote to the resident on 3 March 2020 and explained the following:
1. To find a solution to the resident’s concerns, it provided further details about the caretaker service charge.
2. It confirmed that the caretaker’s role was more than just a cleaner and that their duties included:
  1. Maintenance of the internal areas of the building, including cleaning the communal areas, changing lightbulbs, cleaning windows, controlling and monitoring antisocial behaviour by liaising with local community support police officers, repairing damage to the communal areas of the building, reporting any defects, and removing any graffiti or other offending materials.
  2. Maintenance of the external areas, which included maintaining the communal garden areas, paving and bin stores, as well as sweeping, litter-picking, and organising the removal of any fly-tipping.
  3. Administrative duties which included attending training courses for self-development, chasing outstanding repairs, ordering cleaning equipment, meeting new residents, reporting and recording resident complaints, responding to resident phone calls and emails, and issuing special notices.
  4. Health and Safety duties, including recording and reporting all instances of risk to residents, checking and testing smoke and fire appliances including fire detection panels, checking and adjusting security doors, gritting during the winter months, checking meter cupboards, and removing obstacles which could present fire risks.
  5. They would also be responsible for contractors on site by advising them on the repair requirements and monitoring work and performance standards.
The resident sent a follow-up email to the landlord on 3 March 2020 and stated that she had not received a response. She was dissatisfied that the landlord had not responded to her phone calls, texts, and emails and that this matter was taking longer than necessary to resolve.
The landlord responded on 4 March 2020 and said that it hoped that the resident had by now received its letter. It reiterated its position that the caretaker service was a legal obligation and that this would go ahead from April 2020.
The resident emailed the landlord on 4 March 2020 and explained that she had not received the letter yet. She said that regardless of the landlord’s excuse, her position detailed in her email of 28 February 2020 still stood. She asked the landlord to compromise and arrange the visit once a month, given that she kept the communal areas to a professional standard. She also asked the landlord to resolve this matter or provide the details of how she could raise a formal complaint.
The resident sent a further email to the landlord on 5 March 2020 and stated that she had not received an acknowledgement to her query. She said that the enforcement of the service charge had created a large amount of anxiety, and she felt that she had not been given the opportunity to argue her case beforehand.
The landlord’s records show that it called the resident on 6 March 2020 and sent a follow-up email. It confirmed that the resident could raise a complaint directly on its website. It noted that the resident had asked it to raise the complaint on her behalf, but it could not do this as the complaint would need to come from the resident directly.
The resident sent a further email to the landlord on 9 March 2020 and attached her initial email from 4 February 2020. She explained that she wished to raise a formal complaint and expressed dissatisfaction that the previous staff member did not seem to be able to help her.
The landlord responded to the resident’s complaint on 1 April 2020 and explained the following:
1. It apologised that the resident was not happy with the introduction of the caretaking service charge. However, it explained that it would be unable to remove this as it had correctly followed its procedure.
2. It explained that it had identified a need to extend its caretaking service to improve its overall service and comply with health and safety requirements. It had received positive feedback from areas where the service was already in operation and it hoped this would continue.
3. It had considered reducing the frequency of the service in order to resolve the resident’s complaint; however, it could not do this as it had a contractual obligation to meet, which was based on weekly visits.
4. It confirmed that it would be in touch with the resident to discuss any additional support she may need following her reports of financial hardship.
5. It assured the resident that the caretaking team would provide a high-quality service. It confirmed that it would not escalate the complaint further and that the resident had now exhausted its internal complaints process.
The resident emailed the landlord the following day and explained that due to the risks associated with Covid-19, she did not want a cleaner to attend the block by any means. She asked the landlord to hold back the proposal until the pandemic had ceased.
This Service received contact from the resident who explained that she wished for her complaint to be reviewed. Following the Ombudsman’s request for information, the landlord wrote to this Service on 25 November 2020 and explained that it was unable to confirm whether the resident’s complaint had completed its internal complaints process. It said that it would investigate the complaint further so that it could issue a final response.
The landlord provided its final complaint response to the resident on 8 December 2020 and explained the following:
1. It apologised for the delay in responding to the resident’s initial complaint. It explained that the resident’s email in February 2020, addressed to its complaints team, was referred to an incorrect member of staff who had then informed the resident that they could not assist with the complaint. It acknowledged that it had failed to administer the complaint correctly.
2. It advised that it was unable to confirm whether the introduction of the service required a formal consultation with its residents when delivering a service for the improvement of homes it managed and to meet compliance with health and safety.
3. It acknowledged the resident’s concern regarding the costs for this service and explained that it was obliged to provide the service and, where appropriate, pass the cost on to residents. In view of this, it was unable to remove the service or associated costs.
4. It acknowledged the service failure in handling the resident’s initial complaint and offered £20 compensation. In addition, it confirmed that the details of the incorrect referral had been passed to its management team and its staff would receive further training in view of this error.

Assessment and findings

The landlord’s introduction of a communal caretaking service and service charge.

The resident’s tenancy agreement states that the resident would pay a variable service charge for communal lighting and heating, equipment repairs, TV aerial maintenance, entry phone maintenance and smoke alarm maintenance. It also confirms that the landlord may, after consulting any tenants affected, increase, add to, remove, reduce, or vary the services provided upon giving 28 days’ notice in writing. In addition, the landlord may charge for services it provides based on reasonable costs incurred during the previous accounting period or estimates for the next accounting period.
The landlord’s service charge policy states that the landlord may also charge residents for the cost of caretaking or a management fee as well as those listed in a resident’s tenancy agreement. It confirms that a resident should be informally consulted when there is a change in services provided that would affect their service charge.
Following the resident’s concerns that she was not consulted or given an adequate opportunity to voice her concerns about the new service for 2020, the landlord explained that it had a legal obligation to implement this service and that it could not confirm whether a formal consultation was required. The Ombudsman cannot issue a binding decision regarding the interpretation of the wording of the tenancy agreement around the consultation process. This is because it would be a legal matter best suited to court. We can look at whether the landlord carried out consultation with residents in line with its policies, but we cannot comment on the exact form which the consultation process should take.
The landlord has indicated that residents were consulted about the proposed caretaking service for 2019. However, the landlord has not provided any documentary evidence of this and has not provided evidence which suggests that the resident was informally consulted about the 2020-21 service. It would have been appropriate for the landlord to carry out a further informal consultation prior to implementing the service in 2020, as the resident had been under the impression that this was not a service which was required in her block, and the landlord had previously agreed with her position.
It should be noted that the landlord is expected to consult residents informally, but it would not necessarily be required to follow residents’ wishes after consulting them. The residents may not want to pay for a caretaking service, but the landlord is still entitled to put this service in place, provided it has legitimate reasons for doing so, such as health and safety concerns. If the resident has further concerns about the legitimacy of the service provided and the associated charge, she may wish to contact the First-tier Tribunal (Property Chamber), as explained above.
The Ombudsman notes the resident’s argument that the caretaking service was unnecessary because she was carrying out the cleaning herself. The landlord has explained that the caretaker would not only be providing cleaning services but would also be responsible for responding to contact from residents, introducing new residents, identifying and recording risks and testing the fire alarms etc.
The resident has said the caretaking service is unaffordable to her. The landlord is entitled to implement the caretaking charge and it would not be obliged to remove it because it was difficult for the resident to afford. The landlord would be expected to offer support to residents experiencing financial difficulties. The landlord has done this as it confirmed in its complaint response that it would contact the resident separately to discuss her financial situation.
There has been service failure by the landlord in respect of its implementation of the caretaking service. It has not provided evidence that it had acted in line with its policies and the conditions of the tenancy agreement by informally consulting the resident before implementing the service in April 2020. This does not mean that the landlord must now remove this service but acknowledges that the failure to consult the resident may have caused her inconvenience. The landlord should offer the resident compensation in recognition of the inconvenience this may have caused. It is also recommended that the landlord reviews its record keeping practices to ensure that it can provide relevant documentary evidence to this service upon request.

The landlord’s handling of the associated complaint

The landlord’s complaint policy states that it operates a two-stage complaints process. At stage one, the complaint should be acknowledged within one working day and a response should be provided within ten working days. If the resident remains dissatisfied, they can escalate their complaint to stage two. In line with its policy, the landlord should accept complaints by phone, by email, in writing, and directly to any of its staff members.
The resident initially sent her complaint directly to the landlord’s complaints email address on 4 February 2020. As such, the landlord would have been expected to treat this as a formal complaint under its complaints procedure and issue a response within ten working days. However, the landlord did not issue a formal complaint response until 1 April 2020. This was 31 working days outside of its published timescales. The landlord stated that this was its final response and that the complaint would not be escalated further which is likely to have caused some inconvenience as it had not acted in line with its two-stage policy. In contrast, following contact from this Service, the landlord confirmed on 25 November 2020 that it wanted to provide a further complaint response. This was provided to the resident on 8 December 2020 and was within the ten-working day timescale.
This further complaint response is likely to have caused some inconvenience as the resident was under the impression that a final response had been issued. Ultimately, it was reasonable for the landlord to take another look at the complaint given that it had previously only issued a stage one response. It acted appropriately by reviewing the complaint and acknowledged its complaint handling service failures. However, there were unreasonable delays in the complaints process and the resident had to contact the Ombudsman in order to progress the complaint with the landlord.
Where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. The landlord acted fairly in acknowledging its mistake and apologising to the resident. It has demonstrated that it learnt from outcomes by passing the details of the complaint to its management team so that further training could be carried out. It was reasonable for the landlord to offer compensation in acknowledgement of the inconvenience caused to the resident. However, the compensation offered by the landlord was not proportionate to the extent of the delays and confusion regarding what stage the complaint was at in the landlord’s internal process. The Ombudsman considers that a compensation award of £100 would be more appropriate, in view of all the circumstances.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of the introduction of a communal caretaking service and service charge and the associated complaint handling.

Reasons

The landlord has not provided any evidence which demonstrates that it followed its policy by consulting the resident before implementing the new caretaking service.
The landlord has acknowledged that there was an initial delay in addressing the resident’s complaint formally and has offered the resident £20 in recognition of the inconvenience caused. It has also taken points of learning from the resident’s complaint and has stated that it would carry out staff training to improve its service in the future. It has offered the resident £20 in recognition of the inconvenience caused. However, this amount is not sufficient to reflect the level of inconvenience the resident would have experienced due to the delays in addressing the complaint and confusion over whether the landlord had issued a final response to her concerns.

Orders

The Ombudsman orders that the following actions are taken within four weeks.
1. The landlord is to pay the resident £200, comprised of:
  1. £20, as previously agreed in recognition of the inconvenience caused by its complaint handling.
  2. A further £80 in respect of its complaint handling, bringing the total to £100 for this issue.
  3. An additional £100 in recognition of the inconvenience caused by the lack of consultation when implementing the caretaking service charge.

Recommendations

It is recommended that the landlord contacts the resident and addresses her concerns related to the quality of the caretaking service provided as she remains dissatisfied and has raised new issues regarding this.
it is also recommended that the landlord reviews its record keeping practices to ensure that it can provide relevant documentary evidence to this service upon request.