Southwark Council (202111918)

REPORT

COMPLAINT 202111918

Southwark Council

8 December 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

1. The complaint is about:
   1. The landlord’s response to the resident’s concerns about the service provided by his Homeownership Officer (HO).
   2. The landlord’s handling of the resident’s queries about his service charge.
   3. The landlord’s response to the resident’s concerns about the handling of his personal information.
   4. The landlord’s complaints handling.

Background

2. The resident is the leaseholder of the property, which is a second floor flat. The landlord is the freeholder.
3. The resident contacted the landlord to raise concerns that he had received a demand for payment of a charge for major works when a repayment agreement was already in place. He also noted that his annual service charge had increased and asked the landlord to provide supporting information in relation to 6 items, which included, communal maintenance, cleaning and energy costs, repairs, buildings insurance and administrative fees. The resident stated he should not have to pay for items where the landlord could not evidence that the works had been completed, or where works were only necessary due to the landlord’s negligence. When he received no response from his HO, the resident asked the landlord to raise a formal complaint.
4. The landlord initially explained that the resident had received a notice requesting payment as it did not hold a signed copy of the repayment agreement, although it acknowledged that he had been making regular payments in line with its terms. The resident stated that he had hand delivered the signed form to his HO at the landlord’s offices and raised further concerns about the landlord’s handling of his personal information. The landlord later informed the resident that the form had been located.
5. The landlord upheld the complaint. It apologised to the resident for the distress caused by misplacing the repayment form and acknowledged that there was a delay in him receiving responses from his HO. The landlord’s initial complaint response provided an explanation and breakdown of the disputed charges. It noted that some of the requested information may not be available. The landlord informed the resident that any dispute as to the level of his service charge should be referred to its leaseholders’ arbitration panel. The landlord noted that concerns about the standard of cleaning should be referred to his local area office. The landlord’s final complaint response did not offer compensation.
6. The resident wants the landlord to provide all requested evidence, or to refund leaseholders for charges where the landlord cannot evidence that works were completed. In particular, the resident asks that the landlord refund him for any items where it has failed to post-inspect the work and where before and after photographs are unavailable.

Assessment and findings

Scope

7. While the resident has expressed dissatisfaction with the overall increase of his service charges and seeks a refund, the reasonableness of this increase is not a matter that this Service will decide on within the investigation. This is as under paragraph 42(e) of the Scheme, the Ombudsman will not consider complaints concerning the level of rent or service charge or the amount of a rent or service charge increase. If a resident wishes to challenge the amount of their service charge, they can do so by making an application to the First Tier Tribunal (Property Chamber) (FTT). Further information about the FTT can be found here:

https://www.gov.uk/courts-tribunals/first-tier-tribunal-property-chamber

8. This Service has, however, considered the resident’s request for information to explain the charges he was faced with. Given that he asserted that the landlord’s charges were unjustified for the service charge year 2019/2020, and sought supporting evidence, the Ombudsman has considered the ways in which the landlord responded to this, whether sufficient information was offered for the resident to understand the reasons for the charges, and whether he was made aware of how he could take things forward if he remained dissatisfied.

Jurisdiction

9. Paragraph 42(k) of the Scheme states that the Ombudsman will not consider complaints that fall properly within the jurisdiction of another Ombudsman, regulator, or complaint-handling body.
10. The resident has complained about the landlord’s handling of his personal information. The Information Commissioner’s Office (ICO) is the body responsible for considering complaints about data protection, therefore this aspect of the resident’s complaint is outside the Ombudsman’s jurisdiction. Further information about the types of complaint the ICO can consider can be found on its website here:

https://ico.org.uk/make-a-complaint/data-protection-complaints/data-protection-complaints/

Service provided by HO

11. The landlord has acknowledged that the resident’s HO failed to respond to his email of 8 September 2020 within its 10–working–day timeframe. The landlord has apologised for the inconvenience caused and informed the resident that this will be addressed with his HO through its performance management processes. This was an appropriate and proportionate response to this aspect of the complaint. No evidence has been provided to this investigation to show that there were other occasions when the resident’s HO failed to respond. It was reasonable for the landlord to refuse to replace the resident’s HO, as this would not have been a practical resolution within the landlord’s limited resources.
12. The resident was understandably frustrated and concerned by his HO’s email of 8 October 2020, which failed to acknowledge that the repayment form had already been provided and suggested he sign and return an additional copy. The form was later located, and the resident was informed of this by email dated 11 November 2020. The landlord’s complaint responses acknowledged the distress caused by the temporary misplacement of the form, and provided an apology, which was reasonable in the circumstances. As stated above, should the resident wish to complain about the landlord’s handling of his personal information, he should contact the ICO.
13. The Ombudsman considers that by apologising to the resident and informing him of the actions it would take to address the failings identified, the landlord has provided satisfactory redress in relation to this aspect of the complaint.

Response to service charge queries

14. The Third Schedule to the resident’s lease sets out the obligations of the parties in relation to the annual service charge. This provides that the annual service charge is paid in advance, based on an estimate provided by the landlord. As soon as practicable after the end of the year, the landlord will ascertain the actual amount payable and notify the tenant, providing a summary of costs incurred and notification of any balance due. Section 19 of the Landlord and Tenant Act 1985 states that service charges must be reasonably incurred and incurred on services or works of a reasonable standard. 
15. In response to the resident’s formal complaint of 7 October 2020, the landlord provided its annual service charge leaflet, which gave a more detailed explanation of the categories of charges. The landlord also explained the increase in the charges for buildings insurance and admin costs, as compared with the estimate. The landlord stated that it would investigate the resident’s concerns about recharging works for replacement of a door following a forced entry and provide additional information about individual charges. The landlord provided a breakdown of the actual charges on 11 November 2020.
16. The Ombudsman considers that, in general, the landlord provided an appropriate amount of information and reasonable explanations in response to the resident’s complaint. Should the resident wish to challenge the adequacy of the evidence the landlord has provided about individual works and seek a determination on whether the associated charges should be payable, he would need to contact the Leaseholders’ Arbitration Panel, as advised by the landlord, or refer his concerns to the FTT.
17. The landlord’s stage 1 response failed to advise the resident that he should raise a service charge dispute with its Leaseholder Arbitration Panel. Although this information was provided in the stage 2 response, the resident was then required to repeat much of the information already provided in order to raise a dispute. The landlord could have been more proactive in assisting the resident to progress his concerns via the appropriate channel.
18. In both complaint responses, the resident was told to refer his concerns about the standard of cleaning on the estate to his local area office. This was not an adequate response. As the resident had made a formal complaint about this issue the landlord should have investigated his concerns and provided a response.
19. There is no evidence that the landlord provided a response to the resident’s complaint that leaseholders had been recharged for the cost of replacing a property’s door following a forced entry. The resident raised concerns both that these works were not rechargeable under the terms of the lease, and also that they could have been avoided in this case as the landlord had another means of access. The landlord did not respond on either point.
20. In light of the above, the Ombudsman considers that there was service failure by the landlord in relation to this aspect of the complaint, as contrary to the advice given to landlord’s in this Service’s Complaint Handling Code, the landlord did not address all of the complaint queries raised by the resident.

Complaints handling

21. The landlord operates a 2 stage formal complaints process. It aims to provide a response within 10 working days at stage 1 and within 20 working days at the review stage.
22. There was a short delay of approximately 6 days in responding to the resident’s complaint at stage 1. Following escalation of the complaint on 19 February 2021, the landlord did not provide a review response until 30 April 2021, which was far in excess of its target timeframe. There is no evidence that an update or apology was provided to the resident for the delay. Failure to respond to complaints within the landlord’s target timeframe increases the frustration and inconvenience experienced by residents and may delay escalation of a complaint to this Service.
23. The Ombudsman considers that there was service failure by the landlord in its handling of the resident’s complaint, due to the delay in providing responses at each stage. 

Determination

24. In accordance with paragraph 53(b) of the Scheme, the Ombudsman considers that the landlord has offered redress to the resident that satisfactorily resolves his concerns about the service provided by his HO.
25. In accordance with paragraph 52 of the Scheme, there was service failure in respect of the landlord’s response to the resident’s queries about his service charge.
26. In accordance with paragraph 42(k) of the Scheme, the resident’s complaint about the landlord’s handling of his personal information is outside the Ombudsman’s jurisdiction.
27. In accordance with paragraph 52, there was service failure in respect of the landlord’s complaints handling.

Orders

28. Within four weeks of receiving this determination, the landlord must inform this Service that it has complied with the following Orders to:
    1. Pay the resident £50 compensation in recognition of the service failure identified in its complaints handling.
    2. Pay the resident £100 compensation in recognition of the failure to provide an adequate response to the resident’s concerns about his service charge.
    3. If it has not already done so, provide the resident with an explanation of why the landlord considers that the cost of works to repair a door damaged during a forced entry should be charged to leaseholders via the annual service charge. The response should address the resident’s comments that a forced entry was not required as there was a key-safe present at the property.
    4. If it has not already done so, investigate the resident’s comments about the standard and frequency of cleaning in his block during the disputed period and provide a response to his concerns.