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Southwark Council (202007170)

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REPORT

 

COMPLAINT 202007170

Southwark Council

13 January 2021


Our approach

 

What we can and cannot consider is called the Ombudsman’s jurisdiction and is governed by the Housing Ombudsman Scheme. The Ombudsman must determine whether a complaint comes within their jurisdiction. The Ombudsman seeks to resolve disputes wherever possible but cannot investigate complaints that fall outside of this.  

In deciding whether a complaint falls within their jurisdiction, the Ombudsman will carefully consider all the evidence provided by the parties and the circumstances of the case.

 

The complaint

 

  1. The complaint is about the level of a service charge for the installation of a heating system, following a section 20 consultation process.

 

Determination (jurisdictional decision)

 

  1. 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, I have determined that the complaint, as set out above, will not be investigated by the Ombudsman.

 

Summary of events

 

  1. The resident owns a flat in a low rise block under a lease. The landlord proposed an upgrade to the heating system and followed a section 20 procedure for the cost of the same on 19 June 2019. The resident states she did not receive the initial section 20 notice documents.
  2. The resident raised a complaint on 26 February 2020, within which she stated:
    1. She did not receive the initial details of the proposed works;
    2. The cost of the works would be £15,678.48 to her, whereas if the landlord disconnected the property from the district heating system – it would only cost less than £1,000 to upgrade the heating system. The Ombudsman notes no breakdown was provided for changing from a communal heating system to a heating system per household;
    3. The cost would be unreasonably incurred under section 19 of the Landlord and Tenant Act 1985.
  3. The resident asked not to be charged for the works and requested that she upgrade the central heating system herself by being disconnected from the district heating system.
  4. The landlord provided its final response on 19 August 2020, in which it explained:
    1. The section 20 notice had been hand delivered to the property;
    2. The cost was not unreasonable under the Landlord and Tenant Act 1985;
    3. Changing from the district heating system would not be agreed given the cost and impact on all other residents;
    4. Even if consent was given, the lease still permitted the landlord to claim a contribution for repairing the district heating system.
    5. The landlord accepted that there was a delay in responding to the complaint initially from 26 February 2020 to 1 June 2020. It offered subsequent apologies in follow up communication.
  5. In closing, the landlord advised that the dispute over the cost and the section 20 process could be referred to the First-tier Tribunal.
  6. Dissatisfied with the decision, the resident referred her complaint to this Service. She said the cost was unreasonable and wanted to dispute this.

 

Reasons

 

  1. The Housing Ombudsman Scheme sets out when the Ombudsman will, and will not, investigate complaints. The relevant paragraphs in this case are as follows:

Paragraph 39(h) of the Scheme states: The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion: concern matters that are, or have been, the subject of legal proceedings and where a complainant has or had the opportunity to raise the subject matter of the complaint as part of those proceedings;

 

Paragraph 39(i) of the Scheme states: The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure;

 

  1. There are three main points raised by the resident in this case. These are:
    1. Whether the section 20 process was correctly complied with;
    2. The issue of cost; and
    3. Permission to disconnect from the district heating and the cost of the upgrades.
  2. As this complaint essentially centres around the level of service charge due following major works, the Ombudsman will not investigate it. The resident has the right to apply to the First Tier Tribunal to have this matter considered. It would be fairer, more reasonable and more effective for this aspect of the complaint to be dealt with in this way, as the Tribunal would also consider whether the section 20 procedure was also complied with. This all goes to whether the service charge is payable, and if so, at what level.
  3. The tribunal could consider whether the amount charged is reasonable in light of the resident’s request to be disconnected from the district heating system as she proposes.
  4. Lastly, the resident would have to ask the Tribunal if she was still responsible for the charges for the district upgrade if permission were granted to be disconnected from the same.
  5. These issues would be better dealt with by the Tribunal – such that the Ombudsman will not investigate them, pursuant to paragraphs 39(h) and (i) of the Scheme.

 

Conclusion

 

  1. The complaints as set out above will not be investigated as they relate to the level of service charge and the section 20 procedure. The Tribunal is best placed to decide on these issues.