South Holland District Council (201914962)

REPORT

COMPLAINT 201914962

South Holland District Council

31 January 2022

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:
1. The landlord’s response to the residents’ concerns about the service charge and service delivery.
2. The service charge payable under the tenancy agreement.
3. The landlord’s response to repairs.

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, complaints 1b and c are outside of the Ombudsman’s jurisdiction.
Paragraph 39(g) states that the Ombudsman will no investigate complaints which, in the Ombudsman’s opinion, concern the level of rent or service charge or the amount of the rent or service charge increase. Given paragraph 39(g), the Ombudsman cannot investigate the level of the service charge itself – or whether it is ‘fair’ or ‘reasonable’. If the residents have concerns about the amount that is payable, or how the charge is being applied, they should refer the matter to the First Tier Property Tribunal for further consideration.
While the Ombudsman cannot comment on the amount of the charge – or the charge associated with different elements of the service provided – the Ombudsman has investigated how the landlord responded to the specific concerns that were raised by the residents, including concerns about the delivery of the services covered by the charge.
In correspondence to the Ombudsman, the residents have advised that they have been dissatisfied with the landlord’s response to repairs. The residents say that the landlord has failed to be proactive in carrying out works, and it has been necessary for them to chase repairs. The residents have not provided the Ombudsman with specific examples of any repairs; however, there is no evidence to suggest that the residents raised the issue of delayed repairs with the landlord as part of their formal complaint.
Paragraph 39(a) of the Scheme states that “the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale”. As such, the Ombudsman cannot consider the resident’s concerns about repairs – and the landlord’s response times – as part of this complaint. If the residents remain concerned about how repairs have been handled by the landlord, they should raise the matter as a formal complaint with the landlord now. If the residents remain unhappy after exhausting the landlord’s complaint procedure, they may refer the matter to the Ombudsman for consideration as a new complaint.

Background and summary of events

The residents are tenants of the landlord’s property – a two-bedroom bungalow. The tenancy began in November 2016. Both residents have a number of vulnerabilities, which the landlord is aware of.

The tenancy agreement and the residents’ obligations

The tenancy agreement states at section 7.1 – “you must pay your rent and any other charges on time.”
The Ombudsman has also been provided with a copy of the residents’ tenancy offer letter dated 15 November 2016. This states:

“The weekly inclusive rent for the property is:

Rent – Basic Restructured £76.52

Sheltered Housing charge £5.99

Community Facilities charge £5.69

Sheltered property charge – Alarm monitoring £2.80

Digital television aerial £0.60

Summary of events

The residents contacted the Ombudsman on 20 February 2020, as they were unhappy about the service charge that was payable as part of their tenancy agreement. Within their correspondence, the residents advised that they moved to the property – which had been described as “sheltered housing” – and that the landlord had deemed it correct for each household to pay a charge for sheltered housing and community facilities – in addition to the ground rent. The residents informed the Ombudsman that the sheltered housing wardens had left, and that the community centre was no longer open; however, they were still required to pay the two charges. The residents raised concerns that this was “overcharging”, and “theft” from residents.
This Service subsequently made enquiries with the landlord to establish if a formal complaint had been made by the residents, and if this had been responded to. On 12 March, the landlord confirmed that it had provided both residents with a response to their complaint on 26 February; however, it would re-send the correspondence in the event that it had not been received. In its letter, the landlord said:
1. On 15 November 2016, it had sent the residents a letter offering them the property through its housing register. The letter advised that the weekly rent for the property would include rent, an alarm monitoring charge, a sheltered housing charge, a charge in respect of communal facilities and a digital TV aerial.
2. The sheltered housing charge includes the provision of a weekly ‘meet and greet’ session, and the quarterly testing of the alarm equipment – which had been contracted out a third party (Lincolnshire Housing Partnership).
3. The frequency of the alarm testing had changed in Autumn 2017 from a part-testing of equipment once a month to a full testing of equipment once a quarter.
4. All sheltered housing properties had the hard–wired alarm monitoring system installed (including pull cords). This was explained to the resident at the point of applying to the Housing Register. Refusal of the service provision would have resulted in the residents not being able to move into any of the sheltered properties.
5. The alarm monitoring system is connected to Lincolnshire Housing Partnership (LHP) and this included the pull cords and smoke detectors within the resident’s property. If the pull cords were to be activated, LHP would respond to the call and if necessary, contact the emergency services. The service provided by LHP was active 24 hours a day, seven days a week.
6. The charge for testing the alarm system had not changed since the residents moved to the property. It was not possible to “opt-out” of the charge or provision of the service as it formed part of the sheltered housing offer. The charge for the alarm equipment itself was £2.80 per week – and this had not changed since the tenancy began. The residents could not “opt out” of this either.
7. All sheltered tenants are charged a “community facilities” charge and this was for the provision of a community centre. The charge supported the maintenance of the facility and surrounding communal areas. The charge had not changed since the tenancy began. All sheltered housing tenants could book the use of the community centre through the facilities team or their housing officer. While staff were not always on site, access was still available as the centre had a key safe and the code was shared with those who wished to have access. Again, it was not possible to opt-out of the charge or provision.
8. The provision of a warden ended before the residents’ tenancy began, and the associated charges were reviewed as part of changes to the service prior to 2016.
9. It had discussed reviewing the sheltered housing “offer” for some years and acknowledged the residents’ frustration surrounding this. It was in discussion with councillors again, and would contact residents once it had some proposals available.
10. It considered the investigation of the complaint at stage one was complete. If the resident was unhappy with the response, he had the option of taking the complaint to stage two of its complaints procedure.
The landlord subsequently discussed the matter with the residents over the telephone, and it was of the opinion that the residents’ concerns had been addressed. However, the residents wrote to the landlord on 11 March and said:
1. While they were thankful to the member of management who had taken the time to discuss the situation with them, they still felt “bullied” and “intimidated” in relation to the charges that they had to pay.
2. They considered that they were being charged but “normal council tenants” were not; and that “normal council tenants” still had access to all the services that they had been paying “extra” for.
3. They were of the opinion that when the sheltered housing system began, it had wardens on site 24 hours, seven days a week – together with a team of sheltered housing managers and an “accelerated” repair system. The residents said that they wished to know why the charges still applied if the wardens and management team were no longer there.
4. They wished to know why the landlord allowed the “mis-use” of the community centre, with non-sheltered housing residents being allowed access without charge.
5. They wished to receive a breakdown of all the charges and what they related to – specifically, an explanation of what services they were in receipt of that non-sheltered housing residents were not. The residents added that the cutting of the trees and the grass should come under council tax, as opposed to community charges.
The landlord’s Housing Services Manager (the manager) responded to the residents via email the next day. Within her email, the manager said that the residents’ concerns had been discussed in full when they spoke earlier in the week. She added that the residents had confirmed that they understood that the charges formed part of the tenancy agreement, and they had also discussed the options available to the residents – such as mutual exchange – if they no longer wished to pay the charges. The manager added that they also discussed the (then) upcoming review during which all service charges would be reviewed. It therefore considered that it had nothing further to add in response to the matter.
It is not clear what transpired following this; however, it is noted that the landlord treated some of the residents’ subsequent queries as a request for information under the Freedom of Information Act 2000, and this was responded to in July 2020. Communication between the residents and the landlord resumed in February 2021; and on 2 February, the residents informed the landlord that they had wished for their complaint to be escalated to stage two of the complaints procedure.
The landlord issued a stage two response to the complaint on 25 February. Within its letter, it summarised the events that had transpired leading up to the stage one response, and added that the majority of the residents’ concerns had already been addressed. However, it wished to add that:
1. The last review of the service charges took place after the warden services were decommissioned. However, this took place prior to the residents’ tenancy commencing; and it would not investigate former levels of service charge prior to the tenancy commencing.
2. It could find no evidence suggesting that the residents were receiving a lessor level of service than that outlined to them when the offer of the property was made and accepted.
3. In calculating the service charges relevant to a scheme, it factored in its ability to purchase goods and services for the entire portfolio with charges being apportioned accordingly. It also had to apportion some operating costs to enable the infrastructure to deliver a sheltered housing service. It did not, however, charge a 15% administration fee – as would be standard practice across service chargeable items.
4. The charges were under review, and all charges had been frozen across sheltered housing sites. As such, inflationary increases together with rising contract prices had not been passed on to customers.
5. Sheltered housing could provide a setting for many to enjoy and sustain an independent home. However, it recognised that its residents’ circumstances may change and that a property or the sheltered housing setting no longer meets their needs. Under the terms of the agreement, a minimum of four weeks’ notice was required to end the tenancy; however, it was prepared to waive this and accept a voluntary surrender with immediate effect. It hoped that this would enable the residents to find alternative accommodation which better suited their needs and requirements.
6. In closing, it did not consider that there had been an injustice suffered by the residents in paying for the services; and it did not believe that there had been any maladministration in the management of their account. It had also provided the residents with advice about different housing options.
7. The Ombudsman’s website states that if residents are unhappy with the amount of a service charge, they may refer the matter to the First Tier Property Tribunal for assessment. If the residents were unhappy with the complaint investigation and response, they could refer the matter to the Ombudsman for further consideration.
The residents referred the matter to the Ombudsman and advised that they were unhappy with the landlord’s response. They said:
1. The “meet and greet” was available for all residents- not just sheltered housing residents.
2. There was no intensive management, and no proactive management to help them during Covid-19 lockdowns.
3. The community centre they were charged for was either closed or rented out.
4. Repairs were not carried out promptly – they had to chase them several times and complain before the landlord took action.
In response to our request for information, the landlord also provided further information about the sheltered scheme, how services were impacted following the outbreak of Covid-19 and what measures were introduced after the pandemic. It said:
1. Both residents met the criteria for sheltered housing at the time of the offer. While the residents were aged 59, and not 60, at the time, they benefitted from the ground floor accommodation, communal environment and the alarm monitoring system due to their health.
2. The warden service was removed in 2014, prior to the residents’ tenancy commencing. The service charges have not changed since the tenancy began.
3. When the tenancy began, the sheltered housing team offered the following service:
  1. Two “meet and greet” sessions per week, whereby a housing officer would be available on site for approximately two hours.
  2. Annual completion of a sheltered housing plan by a housing officer to assess vulnerabilities and to signpost/refer to agencies.
  3. A monthly testing of alarm equipment (with different equipment tested to ensure that all equipment was tested once a quarter).
4. Prior to the outbreak of Covid-19, the meet and greet sessions were reduced to weekly following the lack of uptake from residents. The completion of the housing plan was now carried out by LHP. LHP was also responsible for completing the quarterly alarm testing of the alarm equipment.
5. In response to Covid-19, it had to introduce temporary changes to the services, including:
  1. The temporary closure of community centres from March 2020. In June 2021, these were in the process of having a deep clean, ready for when restrictions were to be lifted. At the end of the summer in 2020 it did trial opening a community centre; however, there was no uptake. In addition, given restrictions at the time it would have been necessary to have someone on site to monitor social distancing. This was at an additional cost, and was therefore considered unreasonable based on the lack of uptake.
  2. There was a temporary suspension of the “meet and greet”; and it was replaced with a “wave from window” session every four weeks. During the session, a housing officer would visit the estate to address any queries directly with tenants.
  3. An adapted approach to alarm testing with residents carrying out the tests (where possible) with LHP on the phone from the office on site. Where a tenant had been unable to do the checks, LHP would enter the property. Equipment had continued to be tested within the timescales.
6. The codes to access the keys for the community centre had been changed following the outbreak of Covid-19 to restrict access. The codes would be distributed again once the centres had opened. Access to the centres would also be reviewed as part of the review of service including options such as swipe cards for access.

Assessment and findings

The landlord provided clear information about the service charge – and the elements covered by the charge – within the offer letter and accompanying documentation that was sent to the residents prior to the tenancy beginning.
When the landlord responded to the complaint, it detailed the terms of the tenancy agreement and that the charges had been agreed out the outset. The tenancy agreement clearly details that the charge is payable as part of the rent for the property, and therefore it was appropriate for the landlord to inform the residents that they could not opt-out of paying the charge when responding to their formal complaint.
Within the complaint correspondence, the landlord provided further detail about the services which were provided, and that they were due to be reviewed. In addition, the landlord advised that the warden service was removed two years prior to the residents’ tenancy beginning. The Ombudsman has not been provided with any evidence to the contrary; and as such, there is nothing to suggest that the residents have paid for a service that is not being provided.
The residents’ comments in relation to the community centre being used by non-residents have been noted. While the residents’ concerns in relation to this are acknowledged, there is nothing within the tenancy agreement or otherwise which states that use of the community centre is limited to sheltered housing residents. In addition, when responding to the complaint, the landlord had advised that it would be reviewing access to the community centre as part of its wider review of the service charges. The residents’ concerns about the centre being frequently closed have also been acknowledged. As detailed above, the landlord advised that owing to the outbreak of the Covid-19 pandemic, it had been necessary to close the centre. This was not inappropriate given Government guidance at the time.
It is also noted that the landlord also responded to the residents’ request for information under the Freedom of Information Act 2000. As the residents’ request for data is separate to the formal complaint, the Ombudsman cannot comment on the information that was shared as part of this process. However, the landlord’s response to the residents’ requests for information and clarification about the charges through the complaints process demonstrates transparency and a willingness to assist the residents with their queries and concerns.
During the complaints process, the landlord also informed the residents of their options if they felt that the charges associated with sheltered housing were not acceptable – or if the provision of the services was something they no longer required. The evidence suggests that the majority of the information was relayed during a telephone call between the manager and the resident; however, the written complaint response did remind the resident of the option to move to a new property via mutual exchange. The landlord also appropriately signposted the resident to the First Tier Property Tribunal if they wished to complaint about the charge amounts.
After the complaint exhausted the landlord’s complaints procedure, the residents raised further concerns with the Ombudsman in relation to intensive management and landlord support – as detailed above. Although the resident did not raise these concerns with the landlord directly, we asked the landlord if it could provide a response when we requested information to assist with our investigation. This has been detailed above; however, in addition, the landlord provided further information about the charges applicable to the residents. It said:
1. The “SHCHARGE” – or sheltered housing charge – is for the intensive housing management service where it provides a landlord service at a higher level than supplied to its General Needs tenants. This includes, but is not limited to:
  1. Advice and assistance for tenants to understand and comply with the tenancy conditions.
  2. Quarterly personalised housing assessment (within the home) to identify housing risks, complete welfare assessments and to make referrals to other agencies if necessary.
  3. Advice and assistance with securing extra equipment for hearing and sight impaired residents.
  4. Support in reporting and following-up repairs.
  5. Daily welfare calls during point of crisis.
  6. Provision of training of the internet and provision of tablets in community centres.
  7. Facilitation of activities in community centres.
  8. Facilitation and assistance with garden maintenance.
  9. Personal response and home visits in cases such as emergencies.
It is not clear if the residents were aware of the range of services available under the SHCHARGE – or where they could find information about the services available to them. Given their concerns, the Ombudsman has made a recommendation for the landlord to take action aimed and increasing awareness about the services available to sheltered housing residents, and how the services may be accessed. However, the Ombudsman has not seen evidence of any failing on behalf of the landlord and as such, there was no maladministration by the landlord in its response to the residents’ concerns about the service charge payable under the tenancy agreement.

Determination (decision)

In accordance with paragraph 54 of the Scheme, there was no maladministration by the landlord in its response to the residents’ concerns about service charges and service delivery.

Reasons

In response to the residents’ concerns, the landlord provided information about the service charge, and the services provided. The landlord also appropriately explained that the charges had been agreed at the beginning of the tenancy, and that the residents could not opt-out of paying them. In addition, the landlord provided the residents with clear advice about what they could do if they felt that the property – and the sheltered housing scheme – no longer met their needs.
After the complaint was referred to the Ombudsman, the residents queried the intensive management charge and raised concerns about the lack of support provided by the landlord. These concerns were put to the landlord, and it provided the Ombudsman with a list of services, including support, that were available under the intensive management charge. This was appropriate. The Ombudsman has not found any evidence of a failing on behalf of the landlord. However, given that the residents were unaware of the range of services available, the Ombudsman has made a recommendation aimed at ensuring that the residents – and other sheltered housing residents – are aware of the support and services that are available and how to access them.

Recommendations

Within six weeks of the date of this determination, the landlord should review its literature relating to the services, and consider what methods it can use to ensure that sheltered housing residents are aware of the full range of services available under the service charge. The landlord should also consider how it can ensure that residents are aware of how to access the services. The landlord should share the outcome of its review with the Ombudsman.