Sanctuary Housing Association (201914575)

REPORT

COMPLAINT 201914575

Sanctuary Housing Association

15 February 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 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 repairs to the communal lift at the property;
the landlord’s communication about the completion date;
the landlord’s handling of the associated complaint.

Background and summary of events

Background

The resident was the leaseholder of the property of which the landlord is the freeholder. She is deceased and is represented by a family member in the complaint who will subsequently be referred to as ‘the resident’.
The landlord’s “complaints – housing and support procedure” provides for a two-stage complaint process. At the “front line resolution” or first stage, the complaint should be acknowledged within two working days and it should attempt to resolve the matter within five to ten days; there is no requirement to provide a written response at this stage. At the final, investigation, stage of the process, the complaint should be acknowledged within two working days and a written response is to be provided within 20 working days unless the landlord informs the resident of an extension to this.
The landlord has provided records of its contact with its lift contractor during 2019. However, these records do not comprehensively specify when a repair was reported and when it was completed.
The landlord wrote to the resident on 12 September 2016 to provide the details of the administration fee involved in an assignment of the property and the fee for providing its leasehold information pack in the event of the sale of the property. It further explained that the vendor of the property would be subject to paying a claw-back fee of 1% of the sale price, in accordance with the terms of the lease.
In a conversation between the resident and the landlord on 8 March 2019 he was informed of the service charge arrears on the property. He informed it that the property had now been listed for sale.
The resident advised the landlord on 17 May 2019 that a potential sale of the property had fallen through as “the lift was broken down for a length of time”. He had subsequently reduced the asking price of the property.
On 17 September 2019 the landlord wrote to the resident to request an update on the sale of the property.
The resident wrote to the landlord on 8 October 2019 to advise that the sale of the property had been agreed after the price of the property was reduced from £225,000 to £210,000. He stated that he had initially received an offer of the full asking price which was then reduced due to the buyer observing on three separate viewings that the communal lift was out of order. The resident attributed this reduced offer to a failing on the landlord’s part and requested a reduction of £5,000 from his outstanding service charge debt. He added that this debt had been “unnecessarily increased” in the last six months while the property was on the market.
The landlord replied on 23 October 2019 to state that, while it recognised the inconvenience of the lift not working, it could not guarantee that the lift would be operational all the time, as it was “subject to periodic repairs and maintenance”. It acknowledged that there had been occasions where repairs had been delayed due to waiting for parts; however, it asserted that it had attended reports of faults promptly.
The landlord noted that the resident had reduced the asking price of the property based on the buyer’s observations of the lift and stated that this was his decision as to whether this was a fair price. It asserted that neither this, nor the time that the lift was not operational, were valid reasons for reducing the arrears on his service charge account.
On 16 November 2019 the resident wrote to the landlord to state that it was “unacceptable” that it could not guarantee that the lift would be always available, contending that the single lift available was relied upon by the elderly residents. He asserted that the reduced price that he had sold the property for was a “direct result” of the lift faults. The resident asked for clarification of the reasons why an amount of £2,100 was to be paid to the landlord and also £312 for it to “simply release certain documents”.
The resident raised a stage one complaint with the landlord on 18 December 2019. In this, he referred to his previous letter to which he had not received a response. The resident relayed that he had spoken to the landlord that day and had been informed that it would not be considering a reduction of his service charge liability. He insisted that it should take responsibility for the £15,000 reduction in the sale price for his property as its handling of the lift repairs was “the reason for the price to be substantially reduced”.
The resident additionally asserted that the landlord was delaying the completion of the sale by not processing the necessary documents, resulting in the sale completion date being delayed to the middle-to-end of January 2020. He questioned why it had not processed documents sooner as he had made it aware of the sale in October 2019. The resident added that he had received a letter from his solicitor, dated 16 December 2019, which advised him that the landlord had provided incorrect information about the sale completion date on a telephone call with him that day. He stated that this had led to additional legal costs for him and confusion for his buyer.
The landlord responded to the resident on 19 December 2019 apologising for its delay in responding to his letter of 16 November 2019. It reiterated that it could not guarantee that the lift would be operational all the time but asserted that whenever a repair was required it ensured these were carried out in a timely and efficient manner to reduce disruption. The landlord asked the resident to provide details if he believed that repairs had not been dealt with in a timely manner. It repeated that the appropriateness of the sale price was a matter for him to decide upon.
The landlord clarified the amounts payable highlighted by the resident in his letter on 16 November 2019. One fee was a “clawback (or licence fee)” which was calculated in accordance with the lease and was not payable to it but to the sinking fund for the housing scheme. The other amount was an admin fee that it stated was explained to him previously by its conveyancing team which it advised would contact him separately in response to his concerns about delays in the sale. The landlord confirmed that his service charge liability was not negotiable and would not be reduced, and this remained payable until the property was sold or transferred.
On 20 December 2019 the landlord’s conveyancing team emailed the resident to assert that there had been no delays on its part in progressing the sale of the property. It advised that it had been liaising with his and the buyer’s solicitors and was awaiting the “formal licence to assign”.
The landlord stated that it would not start work on the legal transaction until it had received the “appropriate legal undertakings” from the resident’s solicitor. It relayed that it had received an initial undertaking on 5 November 2019 from his solicitor but had required an amended undertaking which it received on 14 November 2019. The landlord stated it had issued engrossments on 3 December 2019 which were not returned to it until 18 December 2019 which had left insufficient time to agree a completion date before Christmas.
The resident wrote to the landlord on 3 January 2020 to raise a formal complaint, highlighting that the lift “failed… for various periods from 15 August to 18 October” and the unavailability of the lift had contributed to his losing a sale on the property in April 2019. He attributed the subsequent reduction in the property’s sale price to the landlord’s “reluctance” to replace the lift. The resident disputed the landlord’s assertion that the subsequent reduction of the sale price was his decision, contending that he was being “pushed for a sale as soon as possible” due to the increasing service charge debt.
The resident added that the landlord’s communication had been unsatisfactory. He highlighted that on 16 December 2019 he been given a completion date which was subsequently found to be an error. The resident rejected the landlord’s assertion that there had been no delays on its part in the sale process, pointing out that it had been aware of the need to draw up paperwork since October 2019. To resolve his complaint, he believed that a reasonable level of redress in recognition of his losses would in the region of £5,000.
The sale of the property completed on 10 January 2020.
The landlord issued a final stage complaint response to the resident on 30 January 2020 in which it acknowledged that the lift being out of order may have caused frustration for the resident, but asserted that any decision on the sale of the property remained his decision. It confirmed that lift-related charges included in his service charge were for maintenance and insurance of the lift, not specifically for the provision of the lift.
The landlord noted that there had been several reports of the lift breaking down between March 2019 and January 2020 and apologised for the inconvenience caused. In particular it noted two extended periods between 21 March 2019 and 24 April 2019, and 28 June 2019 and 24 July 2019 when the lift was out of service due to the replacement of parts.
The landlord clarified that its lift contractor was required to attend the lift within four hours if a person was stuck inside, and within 24 hours if a breakdown was reported. It stated, however, that there were “inevitable” instances where the repairs could not be completed on the first visit. The landlord acknowledged the resident’s point that the lift should be replaced and advised that it instructed a different lift contractor to provide it with a condition survey, the results of which would be relayed to the residents.
The landlord noted that the resident agreed the sale in September 2019 but clarified that it was unable to commence the legal process until it received legal undertakings from him. It noted that it did not receive legal undertakings from his solicitor until 5 November 2019, which needed to be returned to seek an amended undertaking, which was then received on 14 November 2019. The landlord asserted that it had completed all actions with its timescales and advised the resident to discuss the matter of delays with his own solicitor.
The landlord recognised that it did not provide a timely response to the resident’s letter of 16 November 2019, and further contact was required of him on 16 December 2019 before it responded. It stated that the telephone call on 16 December 2019 on which he stated that he had been given erroneous information was not recorded and therefore it could not evidence that incorrect information had been given. The landlord apologised, however, if this had been the case.
The landlord advised that it was unable to negotiate the amount of the outstanding service charge and confirmed that it could offer a maximum of £25 compensation for cases of “serious inconvenience”. It therefore offered £75 compensation comprised of £25 for the two extended periods where the lift had broken down and £25 for its “poor communication”.
The resident wrote to the landlord on 3 February 2020 to assert that the offer of compensation was “derisory” and disputed that the reduction in sale price of the property was his prerogative. He also rejected that it could not confirm that it had provided an incorrect completion date to him, highlighting that he had a solicitor’s letter stating this. The resident also highlighted that the landlord had not addressed the time off work he had taken to complete the sale.
On 4 February 2020, the landlord confirmed to the resident that his complaint was closed, and his next step would be to bring the matter to this Service.
The landlord advised this Service on 4 August 2020 that “any repairs or maintenance to the lifts were verbally communicated to all residents” and therefore no record of contact with residents about the lift was available.
The resident confirmed to this Service on 14 January 2021 that he observed the lift to be out of order on two occasions, a week apart, in April 2019 and then in the summer and autumn of that year. He added that reports of repairs to lift were made verbally to the landlord’s manager at the housing scheme.

Assessment and findings

The landlord’s handling of repairs to the communal lift at the property

The resident has maintained that the landlord directly influenced the subsequent reduced sale price of the property. It is beyond the remit of the Ombudsman to make such a finding and the resident may wish to seek legal advice if he considers that he has been financially disadvantaged by the landlord’s actions or lack of action.
The landlord was correct to say any sale price is at the discretion of the seller, ie the resident. Any claim for disputed damages would need to be made as part of legal action by the resident against the landlord through the courts.
This assessment will therefore focus on whether the landlord handled the lift repairs reasonably and in accordance with its obligations.
The Ombudsman would expect a landlord to keep a robust record of contacts and repairs, yet the evidence has not been comprehensive in this case. It is vital that landlords keep clear, accurate and easily accessible records to provide an audit trail. If we investigate a complaint, we will ask for the landlord’s records. If there is disputed evidence and no audit trail, we may not be able to conclude that an action took place or that the landlord followed its own policies and procedures.
By both the landlord’s account, on 4 August 2020, and the resident’s account on 14 January 2021, reports of repairs to the lift were handled verbally by its staff at the housing scheme and no records were kept of these. Whilst there is evidence that works were carried out to the lift at various times throughout 2019, it is not possible to determine exactly at which times the lift was not available.
The onus would be on the landlord to provide documentary evidence showing how it satisfied itself that the repair work had been completed to a satisfactory standard and in accordance with its obligations. Therefore, due to this lack of clarity, there has been a failure in its record keeping.
Furthermore if there is an ongoing issue with the repair (which the repeated failure might suggest) records are then a vital part of the investigation into the cause of the faults. By not keeping records the landlord may have contributed to further delays.
In addition to this the resident ha suggested there were further lift delays in Autumn. The landlord’s complaint responses only specified two repairs due to the longer time the lift was out of order. However the lack of records makes it impossible to determine how many other outages there were. In turn it is also impossible for the landlord or Housing Ombudsman to assess how the landlord handled the possible other, unspecified, lift outages.
The landlords policy of a maximum of £25 for ‘substantial inconvenience’ are not proportionate to the inconvenience that may be caused by repeated repair delays. The Housing Ombudsman Service remedy guide states:

“Awards of £50 to £250 – Remedies in the range of these amounts may be used for instances of service failure resulting in some impact on the complainant. We recognise that there has been service failure which had an impact on the complainant but was of short duration and may not have significantly affected the overall outcome for the complainant

Awards of £250 to £700 – Remedies in the range of these amounts may be for cases where the Ombudsman has found considerable service failure or maladministration, but there may be no permanent impact on the complainant.”

The lack of appropriate records is not only a failure in itself, but it also means that the landlord is unable to evidence that it has handled the repairs issues appropriately as well.
Therefore while it was reasonable for the landlord to not contribute to the reduced sale price, which was the focus of the resident’s complaint, its response to the lift repairs was inadequate.
The extent of the failure is tempered to some extent as the resident did not have a series of specific repair requests that the landlord had failed or delayed in handling. This is because the resident was not living at the scheme and so would not have had day to day updates about the condition of the lift.

The landlord’s communication about the sale completion date

The resident has maintained that that he was misinformed about the completion date of the sale by the landlord on his telephone call with it on 16 December 2019. It has not provided any evidence, such as call recordings or contact logs to prove or disprove this assertion. This again highlights the landlord’s failure to keep adequate records to enable it to resolve any disputes which may arise.
The resident has also expressed dissatisfaction with delays in the conveyancing process which he attributed to the landlord. It is not disputed that the resident agreed a sale in September 2019 and the sale was completed on 10 January 2020. There is no evidence of an excessive delay in this process. Individual property sales are unique and therefore timeframes for completion will differ upon various factors involved. In this instance the time taken to complete the sale is reasonable and in line with the timescales sometimes seen. More importantly the landlord has provided a step by step explanation of the exchange of documents in October-December that show regardless of whether it had prepared any documents, there was more than one instance where it was waiting for the resident’s solicitor.
The landlord recognised in its final stage complaint response on 30 January 2020 that there had been “poor communication” and awarded £25 compensation for this. This is a reasonable offer as it largely relates to the phone call where the resident states the incorrect date was stated.

The landlord’s handling of the associated complaint

The landlord’s response on 19 December 2019 appears to be its stage one, or “front line resolution” response to the resident; however, it was not titled as such. If this was not its front-line resolution response, then it failed to respond to his request to raise a formal complaint. In any event, there is no evidence that the complaint was acknowledged at the first or final stages, the requirement for which is specified in the landlord’s “complaints – housing and support procedure”.
It is important that a landlord ensures that residents complaints are handled in accordance with its complaints procedure and it makes clear at which stage of the process the resident’s complaint has reached. This is specified in the Housing Ombudsman’s Complaint Handling Code “At the completion of each stage of the complaints process the landlord should write to the resident advising them of… the complaint stage.”
There has therefore been a failing on the landlord’s part in implementing its “complaints – housing and support procedure”.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of repairs to the communal lift at the property.

In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, the landlord has offered redress to the resident prior to investigation which, in the Ombudsman’s opinion, resolves the complaint concerning its communication about the completion date satisfactorily.

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the associated complaint.

Reasons

The landlord failed to maintain comprehensive and clear records to evidence that it had handled the repairs to the lift satisfactorily.

The landlord offered an award of compensation to the resident which recognised its failure to communicate effectively with the resident and maintain records of all communication.

The landlord did not demonstrate that it progressed the complaint in accordance with its complaints procedure.

Orders

The landlord is to pay a further amount of £250 compensation to the resident, comprised of:

£200 for its failure to maintain records of lift repair reports; and
£50 for its failure to follow its “complaints – housing and support procedure”

The landlord is to contact this Service within 28 days to confirm it has complied with the above orders.

Recommendations

The landlord should:

Pay the £75 compensation it previously offered to the resident, in addition to the £250 awarded above.

Ensure that complaints handling refresher training is provided to its staff to ensure that they are equipped to handle complaints in accordance with its procedure.

Assess its complaints handling procedures against the Housing Ombudsman’s Complaint Handling Code and publish the results. Further information can be found at https://www.housing-ombudsman.org.uk/landlords-info/complaint-handling-code/.

Review its repairs record keeping and ensure that an audit trail can always be provided to evidence that repairs have been carried out in accordance with policy and procedure.