Aster Group Limited (202309278)

REPORT

COMPLAINT 202309278

Aster Group Limited

19 June 2025

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 handling of the resident’s:

1. Requests for information about certification of the gas boiler.
2. Associated formal complaint.

Background

2.             The property is part of a development owned by the landlord, a housing association. The leaseholder of the property does not live there and her son is the occupant (referred to as the resident). Formally, the resident is acting as the leaseholder’s representative as she has the requisite contractual relationship with the landlord. However, the issues have been raised by him in relation to his occupation of the property. Therefore, for the purposes of this report, unless it is necessary to distinguish between them, all communications from both the resident and the leaseholder are referred to as coming from the resident.

3.             About 10 years ago, the resident asked the landlord if he could install a gas boiler and it agreed without imposing any conditions.

4.             In September 2021 the landlord wrote to the resident and other occupants of the development, saying it had decided to tighten its health and safety requirements. In particular it required all residents with gas boilers to send a yearly gas safety certificate (the certificate). The resident sent the certificate in November 2021.

5.             The landlord requested a further certificate in October 2022 and the resident did not send one. The landlord sent 2 further letters and instructed solicitors to write to him. The solicitors asked him to provide the certificate and said, if he did not do so, it would seek an injunction and recoup its legal costs from him.

6.             The resident provided the certificate on 4 May 2023. He then contacted the landlord to say it had not told him he would have to provide yearly certificates when he had the boiler installed. He asked whether the law had changed and, if not, what right it had to require certificates. In the landlord’s response it said the terms of the lease required residents “to comply with and observe such regulations as the lessor may make”. It said it had made a regulation which required him to provide a certificate.

7.             Following our intervention in September 2023 the landlord spoke to the resident on 20 September 2023 seeking details of his complaint. He said again he wanted to know what law had changed to allow the landlord to require him to provide gas safety certificates. He also said he wanted to see the landlord’s legal advice from its solicitors.

8.             The landlord provided a stage 1 response on 5 October 2023. It said, while the law had not changed, it had decided to increase health and safety monitoring after the Grenfell fire. It was able to do so as the lease gave it the power to create regulations which leaseholders had to observe. Its solicitor had said that, as landlord, it had the power to require residents to keep their properties safe. A gas boiler which was not properly serviced would not be safe. Therefore, it felt it was justifiable to ask residents to provide gas safety certificates.

9.             The resident escalated the complaint and the landlord issued its stage 2 response on 24 November 2023. It maintained its findings from stage 1 but offered £150 compensation for any inconvenience and distress it may have caused by providing a delayed stage 2 response.

10.        In his referral to us, the resident questioned the landlord’s power to require an annual certificate and said it had not shown him its legal advice. He said the stage 2 investigation had been poor. It had not contacted him for a month and issued a stage 2 response without speaking to him.

Assessment and findings

Scope of investigation

11.        The evidence indicates that the resident also has concerns about rising service charges. However, this issue did not form part of the complaint under investigation here. As a result it is not assessed or determined in this report. If the resident wishes to pursue this further he may wish to raise a new complaint with the landlord and/or take legal advice and make an application to the First-tier Tribunal, which can determine the reasonableness of service charges.

Requests for information about certification of the gas boiler

12.        The resident questions the landlord’s right to require him to provide annual certificates. He said there was no requirement for him to have an annual gas safety check when he installed the boiler in about 2015. He said no laws have changed since then so its decision to require them is wrongly made. He was also concerned about the £100 a year cost of obtaining the certificate.

13.        The leaseholder signed a lease agreement for the property in the 1990s in which she agreed to abide by its terms. Paragraph 2(b) of the lease requires the leaseholder, and, by extension, anyone living in the property “to comply with and observe such regulations as the Lessor may make” connected with the management of the building. There is an implicit condition that any regulations it makes should be reasonable and appropriate.

14.        Schedule 8 of the leasehold agreement sets out the landlord’s responsibilities to keep the building, including gas infrastructure, safe. It says that in 2020, because of the 2017 Grenfell Tower tragedy, it reviewed its safety procedures. It decided to require annual gas safety certificates from residents. It wrote to residents in 2021 to explain its decision and to ask for gas safety certificates.

15.        This was a legitimate decision for the landlord to make in support of its duty to maintain and protect the building. While we accept the resident might feel aggrieved that he did not know annual certificates would be required when he installed the boiler, this does not prevent the landlord from taking steps it later considers necessary to meet its obligations.

16.        The resident believed the landlord’s solicitor’s letter to him in March 2023 was threatening. However, the landlord wrote to him 3 times in late 2022 and early 2023 asking him to send the certificate. In the third letter it said, “We hope to hear from you after sending this letter however if we do not receive a response, we will refer this matter to our solicitors.”

17.        Having received no response, the landlord instructed its solicitors to write to the resident, which they did in March 2023. The solicitors said that, if they did not receive a certificate within 14 days, they would apply for an injunction requiring him to get one. They would recover their costs, which would be about £1,500. They said that, if he breached the injunction, this could lead to a prosecution for contempt of court. The maximum penalty for this was 2 years in prison.

18.        We accept that the resident felt threatened by this letter. However, the landlord was pursuing a goal through legal means. He had failed to respond to its previous informal letters, so this was a legitimate action for the landlord to take as a next step.

19.        The resident provided the certificate in May 2023. Thereafter, as he was unhappy that he had been asked to do so, he had a lengthy email exchange with the landlord in May 2023. The landlord explained why it had decided to review gas safety in 2020 and what sections of the lease it relied upon to require residents to produce gas safety certificates. It explained that its solicitors had confirmed that it had the power to make this decision.

20.        The resident said he wanted to see the legal advice the landlord was relying on. The landlord said, in its May 2023 emails, that the resident had no right to see it. The resident says that, as he and other residents had paid for the advice through their service charges, they did have a right to see it. The landlord has said it paid for the advice with its own money but, regardless of the source of the funds, the landlord is the client and the advice would still be protected by legal professional privilege. This protects confidential communications between a solicitor and client from being disclosed to third parties without consent.

21.        In any event, while the landlord did not provide a copy of its solicitors’ written advice, it did disclose the legal basis for its decisions. It said, in an email of 11 May 2023, that it had been advised it was authorised to require certificates by paragraph 2(b) of the lease and 2 paragraphs from Schedule 6 of the lease requiring residents:

1.  “To the satisfaction of the Lessor to keep in good and substantial repair and condition things installed for the purpose of supply gas”.
2. “Not to permit or suffer to be done on the demised premises any act or thing which may be or become a nuisance or inconvenience to the Lessor’.

22.        Further, in its stage 1 response the landlord said “Our solicitors have provided us with the following legal advice” before setting out the advice it received. This advice was, in summary, that it could rely on the lease to require annual safety certificates. It could do so because it was its role to ensure the safety of the building and uncertificated boilers were sometimes dangerous. The landlord did, therefore, provide the resident with the substance of the legal advice it received and explained that it had done so.

23.        It is not our role to determine whether the landlord’s position is legally correct. That would be a matter for the courts. For our purposes, it is sufficient that the landlord took legal advice, acted upon it and provided comprehensive and reasonable explanations to the resident. This was a responsible way for it to behave when making this decision.

24.        The resident says he maintains the boiler in good condition himself as he knows how to do it. This may be the case, but the landlord is within its rights to ask for a certificate to provide certainty that the boiler does not pose a risk to himself or other residents. As a result, we find that there has been no maladministration in this case.

Complaint handling

25.        At the time of these events, the landlord had a 2-stage formal complaint procedure. It undertook to provide a complaint response within 10 working days. In exceptional circumstances it could request an extension no longer than a further 10 working days.

26.        In this case, the landlord asked the resident for the details of his complaint on 20 September 2023 and provided its complaint response on 5 October 2023, 11 working days later. While this was a slight breach of its policy commitment, it was only by 1 day and this caused no detriment to the resident. There was no significant service failure.

27.        It is not clear when the resident escalated his complaint although it seems likely he did so on 5 October 2023, as he spoke to the landlord that day after receiving the stage 1 response. The complaint procedure says it will provide a stage 2 response within 20 working days of an escalation request. In this case, it provided the stage 2 response on 24 November 2023, 36 working days later. It then offered the resident £150 for any distress this delay may have caused.

28.      There were reasons for this delay. The resident wanted to discuss his outstanding concerns with the landlord before the stage 2 response. It emailed him on 25 October 2023 and asked when to phone him. He says it failed to phone him for a month. When he told the landlord he had received no calls, it investigated and found that it had telephoned the leaseholder instead (as it had no authority on file to speak to the resident) and she had not answered.

29.        This lack of authority was not the landlord’s responsibility so its actions here were reasonable. The resident also complained to us that he received unsolicited and marketing calls for a month while he waited for the landlord’s call. However, this was also not the landlord’s fault and we do not hold it responsible for these calls. 

30.        The resident says that, because the landlord failed to call him, it failed to fully address his concerns in the stage 2 response. These were, essentially, that it had failed to provide a legal justification for requiring the certificates or answer his concerns about the legal advice. However, as stated above, we are satisfied that the landlord did provide a satisfactory response to these points.

31.        When deciding whether a landlord has been responsible for maladministration, we consider both the events which initially prompted a complaint and its response to those events. If the landlord recognised and addressed any shortcomings and took appropriate steps to offer redress, this is as relevant as the original failure. We will not make a finding of maladministration where a landlord has fully acknowledged failings and taken reasonable steps to resolve them.

32.        Considering the full circumstances of the case, and in consultation with our remedies guidance, the landlord’s apology and offer of £150 compensation is considered reasonable and proportionate. Therefore, the landlord has offered reasonable redress to the resident for its handling of the formal complaint. A recommendation is made for the landlord to pay the resident the £150 compensation, if it has not done so already. The reasonable redress finding is made on the basis of this sum being paid to the resident, as it recognised genuine elements of service failure by the landlord. 

Determination

33.        In accordance with paragraph 52 of the Scheme, there was no maladministration in the landlord’s handling of the resident’s requests for information about certification of the gas boiler.

34.        In accordance with paragraph 53.b of the Scheme the landlord has offered reasonable redress for its complaint handling failures.

Recommendation

35.        Within 4 weeks of the date of this report, the landlord is recommended to pay the resident the £150 compensation offered in its stage 2 response, if it has not already done so.