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Wandle Housing Association Limited (202017622)

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REPORT

COMPLAINT 202017622

Wandle Housing Association Limited

5 November 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 landlord’s handling of the resident’s reports they were missold their property due to the increase and level of service charges they are liable to pay.
  2. The landlord’s response to the resident’s reports that the landlord had violated the section 106 agreement for the property.
  3. The landlord’s response to the resident’s concerns that the landlord should not be able to charge an administration fee.

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.
  2. After carefully considering all the evidence, I have determined that the complaint, as set out above, is not within the Ombudsman’s jurisdiction.

Summary of events

  1. The resident is a shared owner. They purchased a share of their property in 2016.
  2. The resident made a formal complaint to the landlord on 6 November 2020. They raised the following concerns:
    1. Service charges for the year 2019-20 had cost £5812.08, the resident said this was a significant increase from the £1908 advised by the landlord when they purchased the property in November 2016. They said that they believed the landlord had misrepresented the affordability of the property during the sales process.
    2. They believe that the service charges were not reasonable and that the landlord should not be able to charge an administration fee when the charges were being passed to a superior landlord.
    3. The resident explained that the debt to household income ratio was higher than 40%, therefore the landlord was in breach of 40% of the Section 106 agreement for the development of the property.
  3. The landlord provided a service charge dispute response to the resident’s complaint on 17 December 2020. This response addressed the following points:

a.     That the landlord believed it was the resident’s responsibility to seek legal advice when purchasing the property and this should have included advice on the variable nature of service charges.

b.     That it was satisfied that the service charges the resident considered unreasonable were correct.

c.      That the landlord did not believe that it was in breach of the Section 106 Agreement, which it explained applies to applicants for properties, not existing residents.             

  1. On 29 January 2021, the resident escalated their complaint. They advised they understood that charges may fluctuate, but not to the extent they had increased in this case. The resident concluded that the landlord had purposely misled them. The resident further stated that they felt the £250 administration fee is not reasonable. The resident disputed the landlord’s claim that the section 106 agreement had not been broken, advising the affordability criteria had been exceeded in every year since they bought their flat.
  2. The landlord provided two further responses on 13 April 2021 and 30 June 2021. These letters reiterated the information provided in its earlier letters:
    1. The landlord believed that service charges were calculated correctly and were reasonable – it advised the resident may wish to contact the First-tier Tribunal if they wished to dispute this.
    2. They did not accept that the property had been missold to the resident.
    3. They did not consider that the Section 106 agreement had been breached, nor did it apply to the resident at this time.
  3. On 14 July 2021, the resident referred the matter to this Service for formal consideration. The resident explained they disagreed with the landlord’s assertion that the complaint should be referred to the First Tier Tribunal.

Reasons

  1. The Housing Ombudsman Scheme sets out the type of complaints that this Service can and cannot consider.
  2. Paragraphs 36 and 39 (e), (g) and (i) set out the following

(36) The person complaining, or on whose behalf a complaint is made must have been, in the Ombudsman’s opinion, adversely affected by those actions or omissions in respect of their application for, or occupation of, property.

(39) The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion:

(e) were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising;

(g) concern the level of rent or service charge or the amount of the rent or service charge increase;

(i) 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;

The complaint that the resident was mis-sold the property

  1. The resident purchased their property in 2016 and should have sought appropriate legal advice when completing the sales process. The resident complained that the landlord mis-lead them during the sales process. The Ombudsman cannot consider this part of the complaint as it was brought to the landlord in 2020, which was four years after the completion of the sale.
  2. It is important to note that, had the complaint been brought to the landlord in time, this Service would not be the appropriate organisation to consider the matter. A dispute about terms of a sale which have already concluded, or whether the landlord mis-lead the resident, would require expert assessment of evidence and damages, this would therefore be a matter for the Court to consider.

The complaint that the landlord had breached the Section 106 Agreement:

  1. Section 106 Agreements are legal contract between local authorities and the developers of properties. The Ombudsman cannot consider this part of the resident’s complaint as it does not concern the landlord’s management of their property, but it’s compliance with an agreement with the local authority. Compliance with a 106 agreement, would be a matter for the local authority to consider.
  2. This Service understands that the resident’s complaint about the section 106 agreement concerns whether the property was affordable. The affordability assessment would have been carried out during the sales process and, as with the complaint about information provided at the point of sale, would be too old for this Service to consider.

The complaint about service charges

  1. The Ombudsman cannot consider complaints about the level or reasonableness of service charges or service charge increases. The First-tier Tribunal can consider complaints about the level of service charges.