Saxon Weald (202122081)

REPORT

COMPLAINT 202122081

Saxon Weald

30 March 2023

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s response to the resident’s reports about the parking scheme it introduced.

Background

The resident part-owns and part-rents a two-bedroom flat under a shared ownership scheme which commenced on 18 December 2020. The whole property consists of eight flats which share common areas including a car park.
The landlord received multiple complaints about residents being inconvenienced by visitors and non-residents using the allocated parking spaces for the building and sent a letter reminding residents of the parking rules in January 2021, but complaints of this nature continued.
The landlord initiated a parking consultation on 26 April 2021 with residents asked to choose between two options:
1. Signage to be placed in the car park but no additional enforcement.
2. Full patrol’ resident permit system with non-compliance penalties and a time limit on visitor parking which would be maintained by a contractor.
The consultation letter stated that the landlord would institute the majority decision of the consultation responses received.
The resident did not respond to the consultation. The landlord received a total of six responses by the deadline of 15 May 2021, two respondents voted for signage and four respondents voted for the parking permit system option.
As a result of the consultation outcome, the landlord took steps to institute a parking permit scheme for the property’s car park which began on 28 June 2021, after parking permits were issued to all residents on 11 June 2021.
On 24 June 2021, the resident submitted a complaint to the landlord via email:
1. Disputing the landlord’s right to make this change as she believed she had an unrestricted right to a parking space.
2. Questioning the restrictions on visitor bay parking.
3. Expressing concerns about the contractor chosen to maintain the permit scheme as she had been unable to contact them directly.
4. Querying the permit replacement process and timescales in the event of loss.
5. Raising unrelated safety concerns about the building.
The resident’s requested outcome of her complaint was that the landlord would prove it had the legal right to implement the parking permit scheme against her wishes, for her own parking space to be excluded from the scheme, and for the landlord to agree to take ownership of any fines the resident received in the future.
The landlord provided a response to the resident’s Stage One complaint on 30 June 2021. The landlord addressed the complaint by:
1. Identifying the terms of the lease which permitted the landlord to make the change – namely the Power to alter Common Parts, and confirming that it believed the flat was sold with the “use of” an allocated parking space rather than ownership of a space under point 6 of the lease agreement
2. Confirming the restrictions on visitor bay parking was a maximum stay of 24 hours and no return for 24 hours, and advising that signage would be added.
3. Offering reassurance about the contractor who the landlord had engaged with to implement the parking scheme, advising the resident about the independent appeals service of which the contractor was a member.
4. Explaining the lost permit process – a temporary code was issued for the resident to display until receiving a replacement permit, preventing penalties.
5. Addressing the unrelated safety concerns and advising this matter had been escalated to its development team.
The landlord’s position was that the scheme was implemented appropriately following a consultation with all residents, and that it was within the terms of their lease agreement that the landlord could take this action.
On 7 June 2021 the landlord acknowledged the resident’s Stage Two complaint by voicemail and email, requesting further information and a desired outcome.
The resident responded to this query on 12 July 2021:
1. Her position was still that the alteration met the “substantially less convenient” term outlined in the lease agreement as, if she forgot to display her permit, lost it or it faded in the sun she would be fined and/or would be unable to park in her allocated space if she wished to avoid the fine.
2. Explaining issues that she had had on 21 and 25 June 2021 in contacting the contractor the landlord had engaged with to implement the parking scheme.
3. Querying why the consultation on this issue was handled differently to another consultation on window cleaning (where a 100% consent vote was required).
4. Identifying that her desired resolution was for her parking space to be excluded from the scheme, or for the landlord to agree to pay for all related costs incurred by the resident or her visitors (fines or replacement permit charges).
The landlord acknowledged the clarification of the Stage Two complaint on 13 July 2021 and provided a full response on 20 July 2021, including an apology for a delayed response. In its response the landlord:
1. Identified the terms of the lease agreement which permitted the landlord to take this action – point 6 of the lease agreement, and the Power to alter Common Parts, and again explained that the decision to consult residents was due to repeated complaints about parking issues.
2. Apologised for the resident’s difficulties in contacting the car parking contractor, and set out the results of the landlord’s investigation into this – namely that the contractor had been replacing their phone system, and confirmed that the new service was in place from 28 June 2021.
3. Explained that the window cleaning consultation had been handled differently as it represented a material cost to residents (a service chargeable item) and so required 100% consent, whist the parking scheme was a non-chargeable arrangement.
4. Advised that the resident’s proposed solution of excluding her parking space from the scheme was not practical.
The resolutions offered by the landlord were to:
1. Offer the resident a second additional parking permit free of charge, which would allow the resident to offer this to her visitors when needed.
2. Agree to review the parking permit system and its effectiveness after one year.
The landlord advised the resident of the next stage of the complaints process, escalating to this Service.
There were further communications between the resident and the landlord on 27 July 2021, with the resident acknowledging the final response to her complaint and accepting the offer of the additional parking permit.
The resident registered her complaint with the Service by email on 5 January 2022, which was acknowledged on 23 January 2022.

Assessment and findings

Under the terms of the lease agreement, the resident has “the right to use the Parking Space (if any) or such alternative Parking Space as may be allocated by the Landlord”, while the landlord reserves the right to “reallocate any or all of the parking spaces previously allocated to the Premises”. The landlord also has the Power to alter Common Parts – “The Landlord shall have power at its discretion to alter the arrangement of the Common Parts provided that after such alteration the access to and amenities of the Premises are not substantially less convenient than before”. Therefore the landlord has the right to institute a parking permit scheme if it wishes to do so.
The landlord carried out the consultation regarding the parking at the property in response to complaints received from residents about access to their allocated parking spaces. The landlord acted reasonably in doing so, to ensure that it was continuing to offer accessible parking to those who had the right to it under the lease.
The consultation itself was handled reasonably by the landlord, with residents clearly notified of the consultation process and possible outcomes. The resident did not contact the landlord during the consultation period and chose not to vote in the consultation.
The landlord’s explanation for the differences between the parking scheme consultation and the window cleaning consultation was also fair, as the parking scheme did not involve guaranteed financial costs for residents – the covering letter for the consultation clearly identified the scheme as self-funding.
The landlord’s response to the resident’s complaint about being unable to contact the contractor managing the parking scheme was reasonable as it contacted the contractor directly to understand the lack of availability and communicated this to the resident. It also advised the resident of the contractor’s participation in the independent appeals process, and further promised to conduct a review of the parking permit scheme after one year.
The landlord’s explanation of the contractor’s policy of issuing a temporary code in the event of a lost permit was sufficient to mitigate the resident’s concerns regarding potential fines until a replacement permit was received. The landlord’s offer of an additional parking permit was also reasonable as a resolution to the resident’s concerns about her permitting someone else to park in her space.
The landlord followed its own complaints process in asking the resident to identify the outcome she wished to see. The landlord also provided a reasonable explanation for being unable to solely exclude the resident and her parking space from the permit scheme as it would not be practical for the contractor to manage this.

Determination

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its decision to implement a parking permit scheme at the property following a consultation with all residents.

Recommendation

If they have not done so already, it is recommended that the landlord ensures that it has a system in place to monitor the effectiveness of the controlled parking scheme.