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Sovereign Housing Association Limited (201913564)

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REPORT

COMPLAINT 201913564

Sovereign Housing Association Limited

17 December 2020


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 the landlord’s response to the resident’s:
    1. concerns about the gradient of his garden and the need for it to be levelled;
    2. request for a reimbursement of flooring costs;

concerns regarding his internet connection.

Background and summary of events

  1. The resident advised the landlord of his interest in buying a new build property it was offering for sale on a shared lease agreement. On 13 September 2019 the landlord emailed the resident offering the property to him. The email stated, “I confirm this property does not include carpets”. The resident reserved the property, indicating his intention to proceed with the purchase.
  2. In the resident’s email to the landlord of 20 November 2019, he stated that he had reserved the property before the viewing date and when he attended a viewing, the property he saw had carpet. He said that his property did not have any carpet, but it also had no flooring either. He said a landlord staff member had offered him £1,000 towards the costs of flooring which he had accepted (although he noted the payment had to “pass through her manager”). He had been quoted £2,000 for flooring and he could not move in until this was done. The landlord replied the same day to confirm that the sale of the property did not include carpets, there was no evidence of it promising otherwise, and a payment of £1000 had not been agreed. However, it offered £500 towards the flooring cost as a goodwill gesture and asked whether he wanted to proceed with the purchase.
  3. The resident responded that he was already financially committed to the property (with solicitors and mortgage adviser costs) and felt he had no option but to proceed, but he was not happy with the condition of the property. He stated that he had taken legal advice. On 29 November 2019, the purchase completed under the terms of a shared ownership agreement with the landlord.
  4. On 3 December 2019, the landlord emailed the resident acknowledging a complaint he had made about the flooring and the fact that a neighbouring property had had carpeting included. It said it would investigate the situation and respond within five working days.
  5. In the resident’s email of 6 December 2019, he advised that he had been in contact with BT who had not completed their work at the property. He therefore requested the landlord’s assistance in contacting BT on his behalf. He pointed out the landlord had previously told him that the modem was installed and it just needed BT to connect it but this was not the case. Further, he had been told that there was an aerial in the loft for the television and it just needed connecting up. In fact, he understood that there were only three cables in the loft and they were not connected to any aerial. He asked the landlord to resolve the situation. The landlord confirmed that it would add this to the complaint.
  6. In the landlord’s stage one response of 6 December 2019, it stated that there was an aerial connection in the property, but it was the resident’s responsibility to provide and install an aerial. It referred the resident to the home user guide, providing an extract which stated the property was “wired for sky plus and terrestrial television”, and apologising if the position had not been made clear to him. It confirmed that there was a media plate in the living room with an additional TV socket in the bedroom. For new build houses the resident would require the assistance of a qualified professional to install an aerial.
  7. On the question of the internet connection the landlord stated that this was a “site wide issue” which was being dealt with by BT. They were wiring connections throughout the site to enable connections to individual hubs and this was expected to be completed before Christmas 2019. The landlord confirmed that it had no involvement in this process.
  8. With regard to the flooring, the landlord stated that the resident had been told by email at the time he reserved the property that carpets were not included in the sale of this plot, and that there was no other flooring included other than vinyl flooring to wet areas (in the kitchen and bathroom). It had noted the resident’s upset, on viewing the property, and, as a gesture of goodwill, had offered £500 towards the cost of flooring to be paid to the resident following completion. It denied that it had responsibility for the flooring but had offered this payment as the resident was adamant that this had not been made clear to him. It commented that this had taken place before exchange of contracts, and before the resident was committed to buying the property, but he had proceeded anyway. Prior to exchange the landlord had made it clear that the offer would not be increased. It said that the absence of flooring was standard specification for the development the property was situated in and it could not comment on whether the neighbouring properties had been purchased on these terms. 
  9. The resident responded the same day, stating that the landlord had not made all the necessary arrangements ready for his move. He said the show home was fully carpeted and, by the time he found out his property was not, he had already made financial commitments even though contracts had not been exchanged and he would have lost money to withdraw. He complained that an offer of £1,000 had been mentioned initially but this was not approved and it was reduced to £500. He asked the landlord to provide “the initial planning with the developer……where it suggests that the property will not include carpets (or any other type of flooring). He said that he had checked with a neighbour who had been given flooring but for the same price.
  10. On 6 December 2019, the landlord acknowledged the resident’s email as an escalation request and confirmed that a response would be issued within five working days. In its final complaint response of 13 December 2019, the landlord confirmed that it had followed the correct procedures during the sale and that the goodwill gesture had been offered in writing and paid over.
  11. On 19 December 2019, the landlord wrote to all residents on the development site instructing them what actions to take to contact BT and get connected now that the works to wire the site were complete. The landlord has commented to this Service that the “ducting problem” on site needed to be resolved by BT and that the issue had not been apparent on handover of the homes so it had been unable to advise new homeowners of the situation.
  12. The landlord wrote to the resident on 23 December 2019, indicating that a letter had been sent to him advising how to connect his internet. He needed to contact BT with a serial number on his BT box and he was given contact details. The resident replied confirming that he was in touch with BT trying to resolve the issue.
  13. On 30 December 2019, the resident emailed the landlord to report that he had been away from the property from 24 to 28 December 2019 inclusive because of the lack of internet, tv and telephone connection. He felt compelled to move out again over the New Year and into January 2020 until the situation was resolved, and he had cancelled the direct debit for his rent as a result. The landlord responded shortly after, stating that the internet connection was beyond its control and it denied that the lack of it made the property uninhabitable. The situation was being handled by BT which was trying to correct a computer fault and the landlord had chased it about the situation. It stated that the non-payment of rent was a breach of contract and would result in rent arrears.
  14. The landlord wrote to the resident on 16 January 2020, stating that, when he moved in there were further works that BT were required to carry out before an internet connection could be established. It noted that, whilst the absence of such a connection might be frustrating, it was not a statutory service in the same way gas, electricity and water were. It reiterated that the service was not something it had control over. It denied that the problem had made the property uninhabitable and declined to compensate him for any costs caused by him moving out over the Christmas holiday. BT and the developer had now confirmed that all works had been carried out to both the property and the development generally and the connection should now be made. It reiterated that a failure to pay rent would represent a breach of contract and would result in arrears accruing. It stated that it was now closing this complaint.
  15. In the resident’s email of 22 January 2020, he referred to the letter he had received and disagreed that the property was habitable with no internet, television or telephone over the Christmas and New Year period so he had had to find alternative accommodation. He also reported that he had taken a photograph of the front garden which was not level, and he had met with a member of the developer’s staff who said it could not do any work to it without the landlord’s approval.
  16. The landlord responded on 23 January 2020, when it confirmed that it had sent his photograph to its “After Care Team” and requested that defects be reported “through the normal process”. It commented that, whilst it appreciated that the lack of internet/telephone connection was frustrating, it did not accept that it rendered the property uninhabitable. The resident replied, reiterating his position.
  17. In the resident’s further email of 27 January 2020, he stated that a member of the developer’s staff had advised him this his front garden could be raised to ground level “without blocking the brick vent”. He also asked that the back garden be levelled. He reported that “the shade on my side of the back fencing has no roof gutter” and also a broken slab needed fixing. He asked for confirmation as to what stage his complaints had reached.
  18. The landlord replied the same day, noting that the resident had made two separate complaints. The one regarding the flooring had been dealt with and had concluded its internal complaints procedure. The second, about the lack of internet, was being escalated to stage two and he should wait to hear further. With regard to the other issues it confirmed that the back garden had been signed off as acceptable by the developer and the landlord and no further action would be taken. The level of the front garden was “within an acceptable tolerance” and no further action would be taken there either as it did not consider that the level presented a risk. In respect of the resident’s reports of a broken slab and the guttering, this had been notified to the developer to fix. The landlord requested that any further reports of defects should be made to its contact centre.
  19. The resident responded seeking the landlord’s confirmation that it had responded to his MP about the flooring issue. He had still not seen the document between the landlord and the developer which provided for no flooring despite his neighbours having it. On the question of the internet and TV connections he requested a timeframe for a response. With regard to the back garden he it was not acceptable to him as his neighbours had levelled gardens and he did not. He reiterated that the developer had looked at his front garden and suggested a solution and asked the landlord to look at that advice. He suggested the landlord inspect the garden itself and again requested that it be levelled as it was, in his opinion, a flood risk. He provided a picture and pointed out a damp stain on the outside wall.
  20. In the landlord’s email of 29 January 2020, it confirmed that NHBC standards set out that the gradient for his gardens should not exceed 1:6. It confirmed that neither the back nor the front garden exceeded this and that it would not be taking any further action. The green stain on the front exterior wall, it stated, was from where a downpipe had been disconnected and the landlord was arranging for the developer to attend to rectify it. It reiterated that any other defects should be reported via its contact centre.
  21. The resident replied the same day asking where the gradient figures had come from as he was not aware of anyone coming to his property to take measurements. He reiterated that the gardens were a flooding risk and he “insisted” both be levelled. He also emailed the landlord separately that day and asked it to confirm that the property had NHBC cover.
  22. On 24 February 2020 the landlord emailed the resident and advised him he would find the NHBC cover note in his user guide. In a further email that day, the landlord stated that it had seen other gardens with much greater slopes than his which met NHBC guidelines. It stated that the garden had been “signed off” by its technical advisers, site team and NHBC. In the resident’s response he thanked the landlord for its confirmation that the garden had been “signed off” and asked for documentary proof of the measurement of the garden. He also asked for proof that the property was to be sold without flooring whilst he understood his neighbour’s was sold with it. Also on that day, the resident contacted NHBC which confirmed that it would be happy to assist with issues around the garden if it was not suitable for cultivation or it is was waterlogging within three metres of his home.
  23. In the resident’s email of 25 February 2020, he advised that he had received a rent increase letter and was unhappy that the landlord was taking this action when it had not resolved the following defects with the property: no internet until mid–January 2020; no reimbursement of flooring cost; and the back garden needing levelling. He said he was stopping all payments to the landlord under the lease.
  24. The landlord responded the following day, advising that the rent increase was provided for in the lease which the resident had signed and it would increase every year, normally in February. It reported that it had provided an estimate for the service charge for 20/21 and the actual costs were normally issued in September. It explained that the financial year 19/20 ended on 31 March 2020 so it would not be able to provide accounts until the year had closed. With regard to defects, the landlord highlighted that the back garden had already been signed off by the NHBC and no further action was proposed. It confirmed that the resident’s complaint regarding the flooring had been dealt with in its stage two response and the matter was now closed.
  25. The resident emailed the landlord again that day, when he reported having spoken to NHBC which did not have details of the measurement of his back garden and could not confirm if it met their gradient requirement of 1:6. He was still awaiting proof that his property was agreed to be sold without carpets as he understood that his neighbour had had carpeting included. Referring to the landlord’s letter notifying him of a rent increase, he asked for a written summary of the costs making up the service charges for the years 19/20 and 20/21. 
  26. In the landlord’s response of 2 March 2020, it set out a breakdown of the items that were included in its service charge amounts and stated that, as the property was only 7 months old, it could not provide 12 months of costs. It pointed out that an estimate for 20/21 had been sent to the resident with his rent increase letter. The staff member noted they had not been involved in the resident’s complaint and could not provide any information on documentation relating to flooring or the garden.
  27. The resident emailed the landlord regarding the rent increase again on 11 March 2020, when he said that he could not see how the landlord could calculate the increase without the actual charges for the current year being available. He also stated that he wanted documentary evidence of his gradient measurements. He also reported that the pillars holding the fence had come out of place and needed properly fixing to the brick wall. The landlord responded the following day confirming that the issue with the fence had been raised with the developer as a defect.
  28. On 16 March 2020, the resident contacted his MP asking for help in referring his complaint to the Ombudsman. He stated that the two remaining disputes were about the levelling of the back garden and reimbursement of flooring costs.
  29. Also on16 March 2020 the landlord emailed the resident to confirm that, as previously advised, an estimated service charge statement for 19/20 could not be provided as such estimates were supplied in February and the property had not been built then. The actual charges were produced in September. 
  30. On 24 April 2020, this Service contacted the landlord regarding the resident’s complaint regarding the flooring, the gardens and internet access. It asked that the landlord confirm whether the complaints had completed its internal complaints process. In the landlord’s response of 28 April 2020 it confirmed that the complaint had concluded its internal complaints procedure on 16 March 2020.
  31. However, on 11 May 2020 the landlord emailed the resident noting that he had raised the issue of the gradient of his garden during other correspondence about his complaints and that this had been dealt with as an enquiry. However, it was now aware, from his contact with this Service, that he wanted to raise it as a formal complaint and this was its stage one response. It noted that the property had been inspected by NHBC when it was completed, thus confirming the standards had been met. It noted that the resident had viewed the property before buying it and the issue was not raised at the time. It pointed out that, as a shared owner, the resident was entitled to re-landscape the garden at his own cost.
  32. After further contact with the resident, the landlord emailed him again that day about his gardens. It stated that it had had a number of discussions with the developer regarding the levelling of the garden and it was not something that the developer was willing to change. This decision had been reached on the basis that the back garden met technical regulations and complied with NHBC guidelines on landscaping gradients. It reiterated that both the front and back gardens had been confirmed as safe, including by NHBC throughout the building process, and there was no damp or flooding risk posed to the property by the gardens. It was aware that the resident was not happy with this response and it would be escalating the complaint to stage two.
  33. In the landlord’s final complaint response of 12 May 2020, it confirmed that the landscaping of the gardens met with “tolerances of technical requirements and have been signed off by the NHBC”.

Agreements, policies and procedures

Shared Ownership Lease

  1. The resident entered into a shared ownership lease with the landlord, which sets out the legal relationship between them. It states that the leaseholder makes the following covenants to the landlord:
    1. To keep the Premises in good and substantial repair decorative order and condition…..and to keep any garden area included with the Premises tidy and properly cultivated…
    2. To provide carpets or such other suitable floor coverings to the floors of the Premises.

Assessment and findings

Flooring

  1. The resident was buying a share in a newly built property. The evidence shows that, before contracts were exchanged for the purchase and before he was legally committed to the transaction, he discovered that the property would have “no flooring”. The evidence demonstrates that the landlord had made it clear, in writing, that carpets were not included in the purchase at the time the resident reserved the property. He states that he did not realise this meant there would be “no flooring at all”. There were floorboards, and/or concrete floors and there was to be vinyl flooring in the kitchen and bathroom. The resident has not set out what his precise expectation was in the absence of carpets, be it extended vinyl flooring, laminated flooring or something else.
  2. When the resident’s misreading of the situation became apparent, and he was upset at the prospect of the expense of carpeting the property, the landlord volunteered a payment to help him. Initially the sum of £1,000 was mentioned but this was not agreed by the landlord and ultimately £500 was offered. The resident considers that this was not fair as he understands a neighbour had their carpets included in the purchase price.
  3. It is the role of this Service to consider whether the landlord acted reasonably in light of its legal obligations and its own policies and procedures. The resident was aware of the situation before he committed, legally, to the purchase and after he had taken legal advice on the issue. He was given the opportunity to withdraw from the transaction, but he chose not to. He submits that this was because he had already spent money on the process, but the fact remains that he was not legally bound at that point and entered into the transaction with full knowledge of the terms.
  4. Further, as set out above, the lease agreement itself, provides for the resident to provide floor coverings/carpet at the property and not the landlord. The landlord was, therefore, not obliged to provide carpets or floor coverings and the resident made a positive promise to attend to this (and pay for it). The landlord might, therefore, have reasonably refused to offer any payment towards the flooring. In fact, it offered £500, the resident accepted this, and the transaction went through. It would not then be reasonable to expect the landlord to increase that amount once the agreement had been made. 
  5. The resident has questioned what the landlord’s agreement with the developer was on this issue (i.e. whether the developer was obliged to fit carpets). It is reasonable to conclude that it was not, for the following reasons:
    1. If the developer was obliged to fit carpets it is reasonable to conclude that the landlord would have enforced this requirement, particularly in the context of the resident’s complaint;
    2. If the developer was obliged to fit carpets and had done so, it is not reasonable to conclude that the landlord might have removed them and then offered the property to the resident without them. There is no incentive to the landlord to do this;
    3. Given that the lease agreement provides for the resident to install the carpets, it is not reasonable to conclude that the landlord would have entered into an agreement with the developer for the latter to do it too.
  6. The resident has raised the issue of neighbouring properties and the landlord has not provide documentation on its dealings with the neighbours due to data protection and confidentiality reasons. It has acted appropriately in this regard. The fact that a neighbour may or may not have agreed upon alternative terms for their purchase does not alter the fact that the resident’s legal agreement with the landlord provided for him to provide the flooring. Any agreement entered into by a neighbour is not enforceable by the resident against the landlord and is not relevant to his situation. The landlord acted in accordance with the lease agreement which was negotiated with, and signed by, the resident, and upon which he received legal advice. It therefore acted reasonably and appropriately on this issue.

The Garden

  1. The resident has provided photographs of both of his gardens. The back garden has a gradient and the front garden is very limited, so it is difficult to ascertain the resident’s issue with it from the photographic evidence supplied. The resident says the slope is too steep and wants the back garden “levelled”. The evidence shows that he viewed the property before he proceeded with the purchase and did not raise any issue with the garden. Once he entered into the lease agreement, and was bound by its terms, the garden became his responsibility, as set out above. The landlord does not hold ongoing responsibility for the garden and the resident is able to landscape it as he wishes.
  2. The landlord has reasonably highlighted that the resident did not question the garden before the transaction went through, and that he is responsible for it now the purchase is complete. It has pointed out that the garden was “signed off” by itself, the developer and the NHBC and complied with regulations generally and specifically in terms of the gradient not exceeding 1:6.
  3. The resident has taken the reference to the garden being “signed off” in literal terms, questioning when the NHBC measured the garden and worked out the gradient. The NHBC denies it has a record of the measurements of the garden, but it has provided cover for the property. The resident considers the lack of any measurements to be significant to proving the property was “signed off” incorrectly.
  4. It is reasonable to conclude that the NHBC scheme, which covers new build properties, has large numbers of developments, countrywide, to inspect and provide cover for each year. When inspecting a development to satisfy itself that cover should be granted, this Service would not anticipate the scheme measuring and recording the measurements for every garden on every development. Instead, it is reasonable to conclude that for substantial numbers of those properties it would be obvious to the naked eye that the garden did not exceed the gradient requirement and taking precise measurements, under those circumstances, would be time consuming and an unnecessary expense.
  5. It is reasonable to conclude that the occasions on which the gradient of a garden needed to be checked, would be the occasions on which it was reasonably apparent to the naked eye that the garden in question might breach the 1:6 requirement. Rather than suggesting that the lack of a measurement meant the garden was signed off incorrectly, it suggests to this Service that the slope in the garden was not so obvious or steep as to raise concern when the site was inspected and the policy cover agreed.
  6. In any event, the resident inspected the garden before he was legally committed, and after completion, the lease agreement set out that the garden was his responsibility. The landlord acted reasonably in pointing these issues out to the resident and in declining to level the garden. As set out above, the resident is entitled to do this if he wishes.

Internet connection

  1. When the resident moved into the property, in late November 2019, BT were still working on the internet connection for the estate and this was beyond the landlord’s control. The evidence demonstrates that the landlord liaised with BT and the developer to apply pressure to get this resolved. It also wrote to the residents on the development to update them and provided information to the resident on how to resolve the issue. It acted reasonably in this regard.
  2. The resident has stated that the lack of an internet connection rendered his home uninhabitable. The landlord disputed that this was the case and the Ombudsman considers that it acted reasonably in taking that view.

Determination (decision)

  1. In accordance with paragraph 54 of the Scheme there was no maladministration by the landlord in respect of its handling of the resident’s:
    1. request for reimbursement of flooring costs;
    2. concerns about the gradient of his garden and the need for it to be levelled;
    3. concerns regarding his internet connection.

Reasons

  1. The resident entered into a legally binding agreement with the landlord in the knowledge that there would be no carpeting and/or floor coverings in the property. That agreement provided for him to attend to this and bear the cost of it. The landlord volunteered to pay an allowance towards the cost, which it was not obliged to do.
  2. Having already inspected the property and the garden, the resident entered into a legally binding agreement with the landlord which provided for him to maintain the garden himself. In terms of its landscaping on completion of his purchase, the plot was accepted for NHBC cover without any issue being raised under that scheme about the gradient of the garden.
  3. The internet connection was the responsibility of an outside service provider and was outside of the landlord’s control. The landlord applied what pressure it could to get the situation resolved and provided information to the resident to offer assistance.