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Westminster City Council (202104954)

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REPORT

COMPLAINT 202104954

Westminster City Council

21 June 2021


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 resident has complained that:
    1. The landlord’s management of parking by the leaseholders’ contractors is unfair in comparison to the landlord’s own contractor’s parking.
    2. The resulting formal complaint was not handled correctly.

Background

  1. This complaint was submitted to the landlord and to the Housing Ombudsman Service as a group complaint. The complainants are all leaseholders with the landlord (which is also the local council).
  2. The landlord operates a parking management scheme at the estate where the resident lives. The estate is in the centre of a city, and the surrounding roads are subject to a separate parking management scheme.
  3. The parking on the estate is part of the housing management as the relevant roads are not adopted by the local highways department. The surrounding (adopted) roads however are part of a wider, separate parking management scheme. The landlord is also the local council therefore the same organisation is ultimately responsible for both schemes. However, in terms of this case, only complaints about the estate’s parking management scheme can be considered. This is because the Housing Ombudsman Service’s jurisdiction only applies to the landlord services of the council. Complaints about the terms and operation of the wider parking management scheme on the local adopted roads would be for a separate department at the landlord and then for the Local Government and Social Care Ombudsman. The resident’s complaint is mostly about the estate parking management scheme, and the wider scheme on neighbouring roads was only discussed as part of possible alternatives during the complaint procedure.
  4. The resident has complained that their contractors must pay for parking. This is managed by the resident providing visitor scratch card permits to their contractors. The resident can buy these scratch cards from the landlord. Meanwhile they have complained that the landlord’s own contractors do not have to pay for parking (they are given a contractor parking permit direct from the landlord and do not use scratch card permits from residents).
  5. The resident has raised several challenges to this approach:
    1. Leaseholders have to pay for their contractors’ parking; while contractors completing the same repairs for tenants (ie working on behalf of the landlord) do not have to pay for parking.
    2. The council allows its contractors to park for free so that they can complete essential repairs; but leaseholders (who have a responsibility for those same repairs in their leasehold agreements) must pay for the parking.
    3. Leaseholders pay for the maintenance and repair of the roads, both through annual service charges and through irregular major works costs. Therefore they believe they have already paid for the provision of the parking spaces. However the parking management scheme was introduced to fund the provision of parking spaces. Therefore the leaseholders believe they have been charged twice.
    4. The resident has separated the works their contractors complete between ‘cosmetic works’ and ‘emergency and essential works.’ They believe while it is reasonable to pay for contractor parking when arranging ‘cosmetic works’, any contractor completing essential repairs for a leaseholder should be exempt from parking charges. Examples of what they consider essential works are gas safety checks, landlord certificates, or repairs to leaks or electrics.
    5. The resident has asked that contractor parking for essential repairs not be subject to the parking permits. If this is not possible they have also asked if a limited annual allocation of free parking permits for contractors can be provided to each leaseholder; or a limited allocation of reduced priced permits for contractor parking.
  6. The resident has also complained about the landlord’s contractor’s use of resident bays (as opposed to the visitor/contractor bay). They explained the landlord has not addressed this issue despite several complaints.
  7. The landlord’s stage 1 (March 2020) and 2 responses (August 2020) explained:
    1. That the Traffic Management Order (TMO) (which brought in the parking arrangements at the estate) was to ensure consistency between all, in part by removing the opportunity for (unspecified) abuse of past arrangements.
    2. That both tenures (leaseholders and tenants) pay for road maintenance whether through leaseholder service charges or tenants’ rent.
    3. That both tenants and leaseholders must make their own arrangements for any contractors that have been engaged privately, and it is only contractors commissioned by the landlord that received the contractor permit.
    4. Visitor scratch card permits are cheaper than on street parking in the surrounding area.
    5. The scratch card and other permits fund the TMO, meanwhile the service charges and tenants’ rent fund the maintenance of the roads. The TMO is in place to monitor and enforce the controlled parking system.
    6. Contractors completing repairs for the council on rented properties do not pay for a permit as this would be the same as the council charging itself for parking.
    7. The charges are the same on all estates covered by the TMO service. The past charges were £1 a day for a visitor permit, and under the TMO they are now £1 for two hours parking.
    8. That leaseholder contractors could park on the neighbouring roads after the wider local authority’s scheme’s restrictions ended (advised to be from 1800 by the landlord).
  8. In addition to the formal complaint correspondence, we have also reviewed:
    1. The January 2018 factsheet explaining why the landlord was considering a TMO. This was a response to changes in legislation and how past enforcement was no longer allowed. The introduction of the TMO allowed the landlord (through the council) to have parking wardens patrol and issue tickets. This was as an alternative to having to rely on legal action through the DVLA which had proven to be time consuming and costly. The governance procedures and policy decisions of the local council are outside the jurisdiction of the Housing Ombudsman Service.
    2. Confirmation that a TMO was approved by the council in March 2019, together with the landlord’s letter to residents explaining that it wanted to revisit and refine the plans based on resident feedback during the consultation.
    3. The exchange of emails between different residents and the Traffic Order department in November 2019 which ultimately led to the formal complaint.
    4. The Councils’ Parking Policy and the resident’s leasehold agreement.

Assessment and findings

Tenure

  1. A key consideration in this case is the different tenure that the resident has compared to the landlord or some other residents.
  2. The landlord is the freeholder of the estate, the resident is a leaseholder and other residents are likely secure tenants. Each of these different tenures comes with different rights and responsibilities. Therefore it is reasonable to expect that there will be differences in the fees and other charges paid.
  3. The resident has complained that they have an obligation to complete some of the same essential repairs that the landlord does to the rented properties. As such they believe leaseholders should be allowed to complete these repairs without a parking fee (given the landlord’s contractor’s do not pay a fee when completing similar works).
  4. The resident is correct that leaseholders are responsible for privately arranging repairs that tenants can arrange directly with the landlord. Leaseholders are responsible for most of the repairs inside their property. The landlord is then responsible for repairs to the exterior of the building and communal areas.
  5. However the leasehold agreement with the landlord provides no mechanism for the leaseholder to arrange free parking for contractors. Equally there is no mechanism in the TMO. When buying the property the resident will have received advice about the responsibilities they were taking on. This includes having to arrange any repairs they are responsible for, taking into account any local regulations. This might be restrictions on what works are allowed, when works are allowed, or, as in this case, around parking.
  6. It is not appropriate to compare how the repairs to a tenant’s property are managed with those of a leaseholder. The occupancy agreements set out different responsibilities and procedures for completing repairs. This means there will be differences in how they are completed.
  7. It would not make sense for the landlord to charge itself for its contractor’s parking. Equally, the leaseholders accepted that they would have to pay for parking (whether that be for visitors or contractors) when they accepted the various obligations of the leasehold agreement.
  8. The resident has suggested that the parking fee may discourage some leaseholders from completing essential repairs, and that this would lead to a health and safety risk. As explained above, any leaseholder will have been made aware of the obligations they were taking on when buying the property. Therefore any failure to complete relevant repairs would be a breach of their lease agreement and could lead to enforcement action.
  9. The resident’s suggestion that the works leaseholders complete be separated into ‘emergency’ and ‘cosmetic’ is not reflected in the leasehold agreement. The only categories of repairs are those that the landlord is required to complete, and those that the resident is required to complete. These are the obligations the resident agreed to when signing the leasehold agreement, and they are the only categories that the landlord has an obligation to consider when designing its policies and procedures.

Road maintenance

  1. The resident has explained how they believe they pay for parking twice: once through the service charges and then again through the parking permits.
  2. However these two charges are funding two different services. The repair and maintenance of the roads is funded through the service charge. The resident has an obligation to pay the service charge as set out in the leasehold agreement. If they believe the service charge is incorrect they can ultimately challenge it through the First Tier Tribunal.
  3. The parking permits do not pay for the repair and maintenance of the roads and parking spaces. The landlord has explained how they pay for the parking management. Although not specified, this is taken to mean services associated with permits, patrols and ticketing. The permits (and associated charges) may also act as a deterrent to inappropriate parking.
  4. Therefore the residents are not paying twice for the parking provision. One charge is for the parking spaces, and the other is for the management of the use of those spaces.

Use of parking bays

  1. The resident has complained that the landlord’s contractors incorrectly use resident bays (instead of using the allocated visitor / contractor bays).
  2. This concern was raised in the resident’s email to the Housing Ombudsman Service in October 2020. However the issue was not raised in the formal complaints to the landlord alongside the other parking concerns above.
  3. Therefore this particular issue is not one the Housing Ombudsman can investigate at this time. Our role is to assess the landlord’s response to a formal complaint. Therefore any concerns first need to be raised with the landlord through that process. If the landlord’s contractor’s choice of parking space continues to be an issue this should be reported to the landlord for it to manage. If it is not resolved the resident can then make a formal complaint about the issue to the landlord.

Complaint handling

  1. The resident’s escalated complaint prior to the stage 2 response highlighted how there were 3 unanswered emails in January 2020.
  2. The landlord’s stage 2 response upheld that it had not responded to the emails correctly, or handled the escalated complaint correctly. It apologised, explained the reasons for the service failures and offered £100.
  3. The failures in the complaint handling did not affect any other services due to the resident. Therefore the landlord’s offer of redress is in line with the Housing Ombudsman Service Guidance on Remedies as a way to acknowledge the inconvenience of the communication delays.

Determination (decision)

  1. I can confirm in accordance with paragraph 54 of the Housing Ombudsman Service there was no maladministration in the landlord’s response to the complaint that the leaseholders’ contractors’ parking is unfair in comparison to the landlord’s own contractor’s parking.
  2. I can confirm in accordance with paragraph 55(b) the landlord has made a reasonable offer of redress in response to the complaint about the complaint handling.

Reasons

  1. Leaseholders and tenants have different repairing obligations. This means there may be different factors to consider when arranging the same repair. A tenant can request a repair from the landlord that the leaseholder will have to arrange themselves. As the freeholder the way the landlord arranges the repair will again differ from how a leaseholder can arrange the repair. These differences in roles and responsibilities should have been considered when any resident signed any of their occupancy agreements.
  2. The delay in the complaint procedure did not affect the landlord’s other services to the resident. It has acknowledged the error, explained the cause and offered a reasonable amount of compensation for the inconvenience.