Wealden District Council (202010105)

REPORT

COMPLAINT 202010105

Wealden District Council

18 May 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. This complaint is about the landlord’s response to the resident’s queries about his electricity service charge.

Background and summary of events

Background.

2. The resident is the leaseholder of the property, which is within a ‘retirement housing’ development of which the landlord is freeholder. The lease commenced on 18 February 2008.
3. This investigation focuses on the response the landlord gave the resident with regards to his queries about his electricity service charges. This investigation has not considered whether those charges are fair and reasonable, the appointment of the charges, the resident’s liability to pay those charges nor whether the electricity contract should have been subject to Section 20 consultation as these are matters for the First Tier Tribunal (Property Services) to consider and therefore are outside of the remit of this service
4. On 30 September 2020, the landlord wrote to the resident regarding his persistent and vexatious status. The landlord noted that it had received 104 letters from the resident since the beginning of January 2020, 89 of which had been sent since the start of April 2020, and 30 since the beginning of September 2020. The landlord reminded him of the arrangements that had been put in place in September 2019, that:
   1. All contact must be in writing.
   2. It would not acknowledge receipt of any correspondence from the resident.
   3. It would respond to any requests in strict order of receipt.
   4. It would allocate 30 minutes of officer time per month to his queries.

Summary of events.

5. On 25 October 2020, the resident wrote to the landlord following receipt of his service charge account for 1 April to 30 September 2020. The letter from the resident is stamped as received on 29 October 2020. The resident queried the six electricity invoices, dated between 2 April and 27 August 2020.
6. On 14 December 2020, the resident wrote to the landlord to chase its response.
7. On 16 December 2020, the landlord wrote to the resident separately regarding his status as a vexatious complainant and referred to the over 80 letters he had sent during the course of October and November 2020. The landlord noted that it was very difficult to manage that volume of correspondence. In this letter the landlord also explained the difference between estimated and actual service charge expenditure and apologised if this had not previously been made clear.
8. On 20 January 2021, the landlord noted that the resident had contacted it to complain that he had not had a response to his enquiries regarding the electricity costs quoted in his six-monthly service charge account for 1 April to 30 September 2020.
9. On 9 February 2021, the resident wrote to the landlord again noting that he had not received a response to his complaint.
10. The landlord issued its stage one response on 10 February 2021 and acknowledged that the resident’s original letter had not been acknowledged in line with his vexatious status. The landlord advised that two of the amounts shown (£507.97 and £553.08) were paid in 2019/20 and accrued back and that an amount of £563.54 could not be found. The landlord went on to confirm that the estimate for electricity costs in 2020/21 was £6,500 and that if by the end of the financial year the total cost of the electricity exceeded that estimate the difference would be carried forward to the following year, or if it was less, the following year’s charge would be reduced. The landlord also referred the resident back to previous correspondence regarding estimated and actual costs, and over and under recovery.
11. On 12 February 2021, the resident wrote to the landlord. The letter is stamped as being received by the landlord on 18 February 2021. The resident said that he wished to raise a stage two complaint as there appeared to be two differing methods of calculating any under or over recovery costs for electricity referring to the landlord’s service charge policy which stated that communal electricity costs were divided equally between the properties in the building and the electricity is an annual contract.
12. The landlord acknowledged the resident’s escalation request on 24 February 2021. The landlord said that its aim was to provide the resident with a full reply within 20 working days, by 18 March 2021, but that as it was experiencing a large volume of contact there may be a delay in its response.
13. 25 March 2021, the landlord responded to the resident’s letter of 12 February 2021 advising that it would not be escalating the complaint to stage two. The landlord said that the reasons for this were that:
    1. In its stage one response it had acknowledged its failure to inform him about how it intended to deal with his original and subsequent letters regarding this matter and therefore considered this matter to have been fully addressed.
    2. The stage one letter adequately addressed his enquiry.
    3. The resident had not provided any relevant new information.
    4. It had to differentiate between whether there remained a complaint which had not been adequately investigated or responded to and the complainant not liking the answer they received.

Assessment and findings

Relevant agreements, policies and procedures.

14. Under Paragraph 5.1a of the terms of the lease, the resident is obliged to pay the landlord a service charge monthly in advance on the first day of each month.
15. The Fourth and Fifth Schedule of the lease agreement lay out how the service charge is calculated. The lease states that the landlord may estimate the costs of the services provided for a given financial year, which will run from 1 April to 31 March (‘the Accounting Period) If the actual costs exceed the annual contribution, once the accounts have been served on the leaseholder, the leaseholder is to pay the amount due within 28 days. If the annual cost is less than the annual contribution the difference will be applied to the annual cost in future years.
16. The landlord’s service charge policy states that:
    1. Each year, normally in February or March, the landlord will write to residents to notify them how much service charges they will have to pay for the year, April to March.
    2. Service charges will be calculated based on what the landlord knows or estimates it will cost to provide services to a block of flats or other group of properties. Normally the charge will be based on what has been spent in previous years but the landlord may also consider how inflation or other costs such as prices from contractors may affect the charge.
    3. In almost all circumstances, the service charges are variable meaning that they reflect the actual cost incurred, or where this is not known, they are estimated and adjusted when the costs are known.
    4. Each block of flats has a communal meter for electricity usage in shared areas. The cost is divided equally among the properties in a building or group. For communal electricity, the landlord is a member of a consortium that ensures it obtains a competitive rate for these charges. This is an annual contract.
17. The landlord has a three stage complaints policy. The third stage being referral to the relevant Ombudsman. The Policy states at the landlord should issue its stage one response within 15 working days of the date of receipt and within 20 working days at stage two. The Policy goes on to state that a complaint will only be escalated to Stage 2 if the customer can demonstrate sufficient grounds, i.e. there was a fault with the way their complaint was handled initially rather than that they just remain dissatisfied with the answer.

Assessment

18. On 25 October 2020 the resident wrote to the landlord to ask about the electricity charges on his six-monthly service charge account. The resident wrote to the landlord chasing its response on 14 December 2020 and on 20 January 2021 to complain that he had still not received any response.
19. The landlord appropriately recognised the resident’s correspondence of 20 January 2021 as a formal complaint rather than an enquiry and its stage one response was issued on 10 February 2021, 15 working days later and in accordance with the timescale set out in its complaints policy.
20. In its stage one response the landlord provided a reasonable explanation for the delay in its response to the resident’s initial enquiry on 25 October 2020, this being due to the restrictions put in place due to him being considered a vexatious complainant, and acknowledged that, whilst it had put restrictions in place in order to limit the time spent responding to the resident’s significant contact, it had failed to acknowledge the resident’s enquiry in line with these arrangements.
21. The landlord also provided the resident with a response to his concerns about the calculation of the estimated and actual charges that was in accordance with both the lease and its Service Charge policy. The landlord explained that the estimate for electricity costs in 2020/21 was £6,500 and that if by the end of the financial year the total cost of the electricity exceeded that estimate the difference would be carried forward to the following year, or if it was less, the following year’s charge would be reduced.
22. The resident requested that his complaint be escalated on 12 February 2021. The resident raised new queries about the apportionment of the electricity costs and that there appeared to be two differing methods of calculating any under or over recovery costs for electricity.
23. The landlord responded to the resident’s escalation request on 25 March 2021. It is noted that this was five working days outside of the 20 working day timescale given in the landlord’s complaints policy. However, as the landlord had advised the resident when it acknowledged his escalation request that it was experiencing delays in responding, this was not an unreasonable delay.
24. Given that the resident had not provided the landlord with any new evidence or identified a fault with the way their complaint had been handled, had raised a new issue about the apportionment of the electricity charges and remained dissatisfied with the answer provided by the landlord with regards to how it calculated under and over spends, it was reasonable and in accordance with its complaints policy for the landlord to refuse to consider his complaint at stage two.
25. This is because, the landlord had already provided the resident with a response about how it calculated any under or over recovery costs that was in accordance with both the lease and its Service Charge policy. It is also evident that separate to the resident’s formal complaint, the landlord had also provided the resident with the same explanation, again in line with both the lease and its service charge policy. Correspondence from the resident would also indicate that he had read the landlord’s service charge policy, which confirms both the information provided by the landlord as well as information regarding the new issue he raised about the apportionment of communal electricity costs.

Determination (decision)

26. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration in how the landlord responded to the resident’s queries about his electricity service charge.

Reasons

27. There were delays in the landlord responding to the resident’s initial queries, however, these were reasonably explained by the landlord in its stage one response as being related to the controls it had put in place as a result of the resident’s vexatious status. The landlord provided the resident with a response to his queries at stage one that were in line with the lease and its Service Charge Policy. It was reasonable for the landlord to decline the resident’s request to escalate his complaint on the basis that it had already provided the resident with a response about how it calculated under or over recovery cost, that was in line with both the lease and its service charge policy, and that the issue of the apportionment of the electricity charges relating to a new matter that had not been raised in his original complaint.