Wandsworth Council (202110642)

REPORT

COMPLAINT 202110642

Wandsworth Council

18 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 the landlord’s response to the resident’s concerns about:

a) The standard of works carried out in 2017.

b) The level and reasonableness of service charge invoices for major works.

c) The communication about the charges.

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, in accordance with paragraph 39(e) of the Housing Ombudsman Scheme (the Scheme), the Ombudsman will not consider issues which were not raised with the landlord as a formal complaint within a reasonable period, which would normally be within six months of the matters arising. Therefore, this investigation will not consider the landlord’s response to any resident reports about the standard of works completed in 2017.
In addition, Paragraph 39(g) of the Scheme provides that ‘The Ombudsman will not 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.’ This means that we cannot assess the level and reasonableness of the service charge invoiced for the 2017 works. This would be more reasonably dealt with by a First Tier Tribunal property chamber. The resident may wish to obtain legal advice on this aspect of his complaint.

Background and summary of events

The lease

The resident is a leaseholder of a flat in a tower block. The lease for the property is dated 28 January 1985 between previous lessees and landlord. Section 3(a) refers to the lessee paying all charges which may be imposed on the flat. Section 3(b) gives the percentage of the total charge due for the property in relation to the block and estate for communal charges.
The notice of transfer dated 30 August 2016 shows the resident as the sole lessee effective 28 July 2016.

The service charge booklet (online)

The landlord’s service charge booklet relates to the year 2021. Page seven says that ahead of major works, leaseholders will be sent an estimated cost, followed by an audited final account once work is completed.

The leaseholders guide (online)

The leaseholders’ guide at page 17 covers major works, including consultation and estimates. Page 26 covers the ‘First Tier Tribunal Property Chamber’ which deals with applications to determine whether the level of charges is reasonable, which includes repairs and maintenance to a block or estate. Contact details are provided.

The complaints policy (online)

The landlord’s complaints policy states that complaints will be responded to within 20 working days at stage one, and 15 working days at stage two of the landlord’s complaints process.

Background

In 2017, the landlord undertook external works on the resident’s block of flats. An undated questionnaire from the resident regarding the finished works gave detailed feedback on various aspects of the work which were a concern. The resident asked for a detailed breakdown of the works.
On 1 October 2017, an invoice was issued by the landlord to the resident for £7,296, relating to 2016/17 major works (estimated). The reverse of the invoice offered payment options including ten equal payments for leaseholders residing in the property. A summary of estimated costs shows the resident to be responsible for 2.39% of block major works and 0.03.% of the estate.
The landlord’s final response on the complaint under investigation confirmed that, during 2018, it received and responded to reports from the resident about the standard of works that had been completed in 2017. This included arranging remedial works by alternative contractors.

Summary of events

The landlord issued the resident with a reminder in relation to the October 2017 invoice on 19 February 2021. It referred to the sum of £7,296.00 invoice issued before 31 December 2017. It said court proceedings may be issued if immediate payment was not received and asked for payment in seven days, ways to pay were detailed. An email and postal address were provided for contact.
The resident submitted a complaint on 26 February 2021 about the service charge demand and problems he had experienced with contractors. He also asked for a breakdown of the costs.
The landlord issued a stage one complaint response on 24 March 2021:
1. It apologised for not notifying the resident of the arrears sooner, the tone of the letter, and for his concerns around the renovation work undertaken.
2. A copy of original invoice was enclosed.
3. It said that due to a change in finance systems, there were no reminders sent and reminder letters were then paused due to the Covid-19 pandemic.
4. It said it reviewed the account to check if there might be other ways the invoice could be paid and whether the resident was vulnerable before a ‘letter before action’ is sent regarding outstanding costs.
5. It apologised that the original contractor did not complete some snagging works before they went into liquidation and said that it had already apologised for this inconvenience. Any further repair issues should now be reported to the area housing team.
6. A further copy of the breakdown of works sent in March 2018 was attached.
7. It apologised again for the problems with the original contractor which it said were beyond its control.
8. It said that as a result of the complaint, it had changed the wording on its debt reminder letters. Escalation rights to stage two of the landlord’s complaint process were given.
The resident replied the same day and asked that the complaint be escalated to stage two of the complaint process:
1. He said he had not received an invoice before the reminder on 19 February 2021 and ‘categorically never received’ the letter dated 1 October 2017.
2. He was upset and shocked to get the letter he finally received.
3. He did not misunderstand, and this was the landlord’s error and was to the detriment of his mental health.
4. There were issues with the renovation, and he had not had the apology the landlord mentioned.
5. He was not surprised the builder went into liquidation and he and other residents had raised complaints about the work which was not satisfactory, and it was unethical that the firm was paid.
6. He asked for evidence of the work done on the roof of the block.
7. The landlord said the inconvenience was beyond its control, but it had engaged the contractors.
8. He complained many times about the work, but nothing was done and on five occasions he cancelled his own work to allow builders access, including to inspect after complaints were made.
The landlord acknowledged the complaint on 29 March 2021 and said the response should be sent by 16 April 2021, but it would contact the resident again if this was not possible.
The response was sent on 29 April 2021:
1. It said that the demand for major works was issued on 1 October 2017 and was deemed as delivered.
2. The landlord’s standard practice of prompt reminders was not followed which would have highlighted the issue sooner, further apologies were given.
3. The complaint about the workmanship in 2017 was now out of time.
4. Complaints had already been made by the resident and responded to in 2018 and were not included in the review.
5. Several options for clearing the debt were offered.
6. It felt that the complaint had been dealt with properly but acknowledged the resident would have been shocked to receive such a large invoice and reminders should have been sent earlier. The complaint was therefore partially upheld, and the process would be reviewed to avoid a repeat of what had happened.
7. Appeal rights to the Local Government and Social Care Ombudsman (LGSCO) were given, and a loan form was enclosed.

Following the completion of the landlord’s complaints process

On 18 May 2021 the LGSCO referred the resident to this Service and the resident informed the landlord that it referred to the wrong Ombudsman. The landlord apologised for its error which was noted.
The resident advised this Service that he presumed he was not being sent a bill because of legal ‘wrangling’ with the contractor.
The landlord confirmed the invoice was sent by 2nd class post on 27 September 2017, it had no record of a reminder prior to the invoice dated 19 February 2021. It said that apart from two complaints from the resident, nothing further had been received from him.

Assessment and findings

As detailed above, the actual work undertaken by contractors on behalf of the landlord has not been investigated as it is outside of the timeframes allowed for in the Ombudsman’s scheme. Similarly, the matter of earlier complaints which the resident states he sent about the contractors, and the landlord said it did not receive, are not included in this investigation. It is noted however, that in its response dated 29 April 2021, the landlord said that it had previously replied to the resident’s concerns in 2018, so there was some confusion on this issue.
This investigation concerns the communication from the landlord in February 2021 about the outstanding service charge, coming more than three years after the original invoice and without a reminder having been issued. The Ombudsman recognises that the landlord would have no way of knowing if the invoice dated October 2017 had not arrived if it had no returned mail. That said, the resident has stated that he was aware that there would be a bill to pay, but he had presumed that it was subject to a dispute between the landlord and the contractor. Whilst the Ombudsman appreciates the resident’s view that there might be some debate about the cost of the works, there is no evidence to suggest that this was in fact the case.
Therefore, it is reasonable that the resident pays an invoice charged under the terms of his lease, which he was aware that he was liable for and was due. However, the time and manner in which the invoice reminder was presented in February 2021 was not reasonable, given all the circumstances of the case.
Specifically, there was no explanation or apology for the delay with the February 2021 invoice. This letter would reasonably have come as a shock to resident, particularly after the previous year of lockdown due to the pandemic. In its response of 24 March 2021, the landlord said it would have reviewed the ways invoices could be paid and whether residents were vulnerable before a letter before action would be sent. But the February 2021 letter said ‘please note court proceedings may be issued if immediate and full settlement is not received. Any legal action will include legal costs and interest being added to the balance of this account. Please forward your remittance within 7 days of the date shown on this letter’.
The resident would not have been aware that immediate action would not be taken. Regardless of whether the October 2017 invoice had been received, the invoice that arrived more than three years later was not considerate or appropriate in all the circumstances. This has been acknowledged by the landlord and it changed the wording of its reminders as a result of the complaint.
Whilst this Service cannot assess the impact on an individual’s mental health, the resident has mentioned this aspect and it is not unreasonable to conclude that an invoice of this size demanding payment within seven days would be distressing.
The reasons given by the landlord for the inordinate delay in the invoice being pursued was that its finance systems changed and that reminders were then paused due to the pandemic. While it is accepted that the landlord will have experienced challenges in delivering its services during the coronavirus pandemic, it would still be expected to maintain communication with residents, and it is not clear on the reason that the reminders were paused. The policies provided are silent on the subject of reminders, but it is reasonable that the resident be sent a reminder during this period. Given that the landlord was fully aware that it had changed finance systems during this time and that this had impacted upon its standard payment recovery processes, there would have been a reasonable expectation that it would have approached its debt recovery processes with both empathy and caution.
It is noted that the landlord’s stage one and two responses did apologise for the delay, however it made no offer of compensation to reflect this lack of customer support for its resident, which would have been reasonable given its acknowledged service failure and the extent of the detriment outlined by the resident. No compensation policy has been provided by the landlord or found online. The Ombudsman’s remedies guidance, available to view at housing-ombudsman.org.uk/wp-content/uploads/2020/11/Remedies-Guidance.pdf provides for compensation of between £50 and £250 for instances of service failure resulting in some impact on the complainant. In this case, it is appropriate that the landlord pay compensation of £150 to the resident to acknowledge its lack of consideration in issuing a threat of legal action, for a debt it had not itself efficiently managed.
The landlord does not appear to have responded to the resident’s request for evidence of the work done on the roof of the block. This was, however, raised in his escalation request and did not form part of the original complaint. It is not clear to this Service whether this was part of the issues raised by the resident in his previous complaints, in which case it would be out of time for consideration. Nonetheless, if he has any concerns about the current condition of the roof, he will need to raise this with the landlord and may consider making a formal complaint if he is not satisfied with its response.
It is also noted that the stage two response was late. Although there was a warning given in the acknowledgement that this might occur due to the pandemic, it also said that the resident would be kept updated, and there is no evidence this happened, or that an apology was given for the delay in the response. In addition, the resident was wrongly referred to the LGSCO, when this matter was for the Housing Ombudsman to investigate. The resident in this case was quickly redirected to HOS, and staff have apologised for the error, but it was clearly frustrating for the resident. While these issues are not of a level to warrant a further finding of service failure by the landlord, recommendations have been made below for good practice by the landlord.

Determination (decision)

In accordance with paragraph 54 of the Scheme there was service failure in respect of the landlord’s communication about the charges.
In accordance with paragraph 39 e of the Scheme, the complaint about the standard of works dated 2017 is outside the Ombudsman’s jurisdiction.
In accordance with paragraph 39 g of the Scheme, the complaint about the level and reasonableness of the service charge is outside the Ombudsman’s jurisdiction.

Reasons

The landlord was entitled to pursue the outstanding charges on the resident’s service charge account, however, its communication was inappropriate and unreasonable given the acknowledged delay in the invoice reminder being issued.

Orders and Recommendations

Order

Within four weeks of the date of this determination, the landlord should pay the resident £150 in respect of its poor communication with the resident.

Recommendation

The landlord to remind its complaints team to include an apology when responses are late and to refer residents to the correct Ombudsman for the issue being complained about.