Broxtowe Borough Council (202217083)

REPORT

COMPLAINT 202217083

Broxtowe Borough Council

20 December 2023

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:
1. services the landlord provided to the residents, including independent living equipment, staff support, a smoke alarm system, and garden maintenance, and,
2. the allocation of the residents’ current property.
The Ombudsman has also considered the associated complaint handling.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to the Service, the Ombudsman 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 42(j) of the Housing Ombudsman Scheme, the allocation of the resident’s current property is outside of the Ombudsman’s jurisdiction. In accordance with Paragraph 42(j) of the Housing Ombudsman Scheme, the Ombudsman may not investigate complaints which, in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator, or complaint-handling body.
Complaints about how a local authority landlord applies its allocation policy and procedure are a matter for the Local Government and Social Care Ombudsman (LGSCO). The landlord is a local authority; therefore, the residents should refer any concerns they may have about how the landlord applied its allocation policy and procedure to the LGSCO if they wish to do so. The allocation of the residents’ current property has been noted in the background of this report for context only and has not formed part of the Ombudsman’s assessment of the complaint.

Background

The residents hold a secure tenancy with the landlord. The property they live in forms part of an independent living scheme. Independent living properties generally include support such as call and monitoring services, additional staff support and can include grounds maintenance. One of the residents has health conditions which the landlord is aware of.
On 21 March 2022, the landlord responded to a query from the residents about what services were included in their service charge. It said the residents were paying the level one service charge which was the lowest service charge at the scheme. It said the charge was a contribution to the cost of:
1. independent living equipment, servicing, phone connection and 24-hour monitoring service,
2. smoke alarms and the servicing of these,
3. grounds maintenance of communal areas and boundary hedges, and
4. independent living coordinator staff.
The residents responded the same day. They said that none of the above charges were applicable to them as they had no equipment installed in the property and there were no communal areas that would be subject to the ground maintenance charge. They said the landlord was charging for services it was not providing.
On 22 March 2022, the landlord responded. It apologised that the independent living equipment and smoke alarms had not been installed. It said it would investigate this and would arrange for a contractor to install these as soon as possible. It said the charge for grounds maintenance included hedges and that residents were paying the lower level of service charge to reflect the fact there were no communal lawns or gardens.
The residents responded to the landlord the same day. They said they would prefer not to have the independent living equipment installed. They estimated that they had paid around £50 so far for services that they had not received. They accepted that they had opted out of visits by the independent living coordinator (ILC), preferring to contact them as needed. However, they had twice contacted their ILC about a gas bill, but the ILC was not at work on both occasions and the residents were informed they would be contacted on the ILC’s return. The residents said the ILC did not get back to them. They had asked about opting out of the hedge cutting services as they were both keen gardeners and were happy to maintain this themselves but had had no reply. They asked that the landlord refund the service charge they had paid so far and accept their request to opt out of these services.
On 25 March 2022, the landlord said it had raised a works order for a smoke alarm to be installed in the property. It said that the property was an independent living property and that in signing their tenancy agreement, the residents had agreed to pay the service charge.
The residents contacted the landlord on 31 August 2022. They said that their lawn had not been cut and raised concerns about a tree. They said that although they did not need the independent living equipment, if they were paying for it, they wanted this to be installed.
On 31 August 2022, the residents submitted a complaint. They said they were paying £11.05 per week in service charge but were not receiving the services they were paying for. Their lawn and hedges had again not been cut the day before. They said none of their neighbours paid the service charge but did get their lawns cut. They said they would no longer pay their service charge.
The landlord issued it stage one complaint response on 8 September 2022. It said:
1. The residents had previously lived at a property that had been redesignated from an independent living property to a general needs property. The residents had applied for a move and were given high priority as the property they were living in was no longer an independent living property. Although the residents had previously opted out of the independent living equipment, they had now asked that this be installed. It said there had been no fault in how the independent living service had been delivered.
2. The resident’s property had been missed off the garden maintenance list. It apologised for this and said it had now added their property to the list. It accepted it had failed to provide an adequate service with regards to the garden maintenance.
3. Under the residents’ tenancy agreement, they were obliged to pay the service charge and in not paying it, they could jeopardise their right to remain in the property.
4. It partially upheld the residents’ complaint.
The landlord installed the independent living equipment in the property on 9 September 2022.
On 12 September 2022, the residents escalated their complaint. They said:
1. They had been allocated their current property on health grounds.
2. There had been a number of issues including leaks and broken electrical fittings at the start of their tenancy which meant they had not been able to move in until January 2022.
3. They had been happy to pay for the independent living service even though they felt it was not necessary. However, they had not had any garden maintenance and had not received support from their new ILC.
4. They had been paying £11.05p per week for 10 months for services they had not received.
5. They had reported a rat infestation in their neighbour’s garden and a tree which was in a dangerous condition and at risk of falling into their garden. These issues had not been addressed.
6. They would pay the service charge once the landlord addressed the above issues.
The landlord contacted the residents on 12 October 2022. It said its stage 2 response was taking longer than expected and said it would respond by 26 October 2022. It apologised for any inconvenience caused to the residents by this delay.
On 26 October 2022, the landlord issued its stage 2 complaint response. It said:
1. All independent living properties were charged the service charge.
2. The residents had been given the number for the independent living office should they need to speak to an ILC.
3. It apologised again for not initially putting the residents’ garden on its grounds maintenance list.
4. It reiterated that the residents were liable to pay the service charge and were putting their tenancy at risk by not doing so.
The residents complained to the Ombudsman in November 2022. They said they had now agreed to the installation of the independent living equipment, however the landlord had not contacted them to explain how to use the system or ensure it had up-to-date contact details for them. Their independent living coordinator was not contactable. The landlord had missed them off its garden maintenance list for a year. They wanted the landlord to refund them the £11.05 weekly service charge they had been paying.

Assessment

Scope of investigation

The Ombudsman is not able to consider complaints relating to the level or the liability of residents’ service charges. However, the Service can investigate how the landlord responded to the residents’ complaints to assess whether its responses were reasonable and in line with its obligations.
The residents’ tenancy started on 5 October 2021. The landlord issued its stage 2 complaint response on 26 October 2022. The Ombudsman’s investigation is therefore limited to the period 5 October 2021-26 October 2022. It is recommended that the residents raise any issues that have occurred since the landlord stage 2 complaint response, as a new complaint. This is so that the landlord has the opportunity to consider any further issues before the Ombudsman becomes formally involved. The residents may be able to refer their complaint to the Ombudsman if they remain dissatisfied once it has exhausted the landlord’s complaints process.

Policies and procedures

The residents’ tenancy agreement states that they are liable to pay a fixed service charge. Fixed service charges are charges which are set by the tenancy or lease and are not based on the actual cost of the services provided.
Information provided by the landlord states that residents will have a dedicated independent living coordinator (ILC), who will complete an independent living plan to identify any support needs. The information states that residents can also call the independent living coordinator team if help is needed. The information states that in an emergency, residents will have access to help by using the 24-hour alarm service in their property and throughout the scheme.
The landlord’s garden maintenance calendar states it will cut the grass 9 times a year and hedges twice a year. It states it will make safe any dangerous trees.
The Smoke and Carbon Monoxide Alarm Regulations 2022, state that local authority landlords must ensure at least one smoke alarm is equipped on each storey of homes where there is a room used as living accommodation. However, prior to October 2022, these regulations only applied to private sector landlords.
The landlord’s complaint process has two stages. At stage one, a response will be provided within 10 working days. At stage 2, a response will be provided within 20 working days. If more time is needed at either stage, the procedure states that an extension of time will not exceed 10 working days.
The Ombudsman’s complaint handling code, published on our website, sets out the Ombudsman’s expectations for landlords’ complaint handling. The code states that landlords must address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law, and good practice where appropriate.
The code also states that a complaint must be defined as: ‘an expression of dissatisfaction, however made, about the standard of service, actions, or lack of action by the organisation, its own staff, or those acting on its behalf, affecting an individual resident or group of residents’.

Services provided by the landlord

Whilst it was understandable that the residents asked to opt out of paying for services which they did not need or use, it was reasonable for the landlord to explain that they were liable for the service charge under their tenancy agreement. The landlord was entitled to charge for services it provides, and in signing their tenancy agreement, the residents had agreed to pay for these, regardless of whether they needed these services or not. However, the landlord had an obligation to ensure that these services were being provided.
On 31 August 2022, the residents asked the landlord to install the independent living equipment and the landlord acted appropriately in doing so on 9 September 2022. However, the residents told the Service that as of November 2022, the landlord had not contacted them to explain how to use the system nor to check whether it had the correct health or contact details for them on file. The landlord acted unreasonably in not doing so, as it should have ensured that the residents knew how the equipment worked and that it had up-to-date details for them, in case of an emergency.
The residents told the landlord on 21 March 2022, that there was no independent living equipment installed at the property. On 22 March 2022, the landlord said it would investigate why there was no smoke alarm. The landlord told the residents on 25 March 2022, that it had raised a works order to install a smoke alarm at the property. The landlord has since informed the Ombudsman that the property would have had stand-alone smoke alarms installed at the start of the tenancy. Where there is a dispute over the facts without supporting evidence to confirm what happened, it is not possible for the Ombudsman to determine what was and what was not the case. The landlord has said smoke alarms in the property were connected to the independent living equipment when this was installed on 9 September 2022. As noted above, from October 2022, local authority landlords have a legal duty to ensure there is at least one smoke alarm on each storey of homes where there is a room used as living accommodation. The landlord has therefore complied with its obligations in this respect and need not do anything further.
The residents told the landlord that they had not received garden maintenance services since the start of their tenancy. In its stage one complaint response, the landlord acknowledged and apologised for this and said it had now added the residents’ property to the grounds maintenance list. The residents have informed the Service that the landlord told them that the date their property was put on the list was 9 October 2022, a year after the start date of their tenancy. As noted above, the service charge is a contribution to, rather than the actual cost of, the services provided. It is accepted that it is therefore not possible to breakdown the charge into component parts. However, the Ombudsman considers it fair and reasonable that the landlord should refund the residents 25% of the service charge for the period it failed to provide garden maintenance. This is based on the fact that the service charge is made up of a number of different services with the garden maintenance accounting for part but not the majority of the total service charge. The landlord is ordered to refund the resident 25% of their service charge from 5 October 2021-9 October 2022 as follows: 25% of £11.05 x 52 weeks = £143.65.
The information about the independent living coordinator service states that residents will have a dedicated staff member allocated to them to help with any support needs they have. The residents said that they would call the team as and when they needed support. However, on the occasion they did need support, they did not receive a response which resulted in them calling their previous ILC. In its stage 2 complaint response, the landlord told the residents they could call the ILC team. However, it has not shown that it has fully investigated why the residents did not receive a response from their ILC as they had been told they would. This was a failing on the landlord’s part that will have caused the residents time, trouble, and inconvenience and may have caused them to worry that help would not be available when they needed it. It is recommended that the landlord arrange a meeting for the residents with one of its ILC staff so that the residents have a named person to contact when they need staff support going forward. The landlord should also ensure it has up-to-date contact and health details for the residents.
The Ombudsman’s remedies guidance, published on our website, sets out our approach to compensation. It states that where maladministration has been identified which adversely affected the residents £100-£600 compensation should be considered. The landlord is ordered to pay the residents £200 compensation for its failures to provide services it charged for.

Complaint handling

The residents contacted the landlord on 22 March 2022 to say they had not been receiving services they were paying for and that their ILC had not responded to them. The Ombudsman’s complaint handling code, set out above, states that any expression of dissatisfaction should be treated as a complaint. It would have been reasonable therefore, for the landlord to treat the residents contact of 22 March 2022, as a complaint. Its failure to do so, will have caused the residents time, trouble, and inconvenience as they had to raise the same issues in their complaint of 31 August 2022.
The landlord responded to the residents’ stage one complaint in line with its complaint procedure. It adhered to its complaint procedure in writing to the residents on 12 October 2022, to say it needed more time to consider their stage 2 complaint and would respond by 26 October 2022. It acted appropriately in doing so as this kept the residents updated as to the progress of their stage 2 complaint and gave them a date when they could expect to receive a response.
The residents mentioned in their stage 2 complaint of 12 September 2022, that they had not been able to move into their property until January 2022 due to repair issues. In their stage 2 complaint, the resident also raised concerns about a tree in the next-door garden as well as a rat infestation. The Ombudsman’s complaint handling code, set out above, states that landlords must address all points raised in a complaint. It is accepted that the resident had not raised these issues in their stage one complaint. However, it would have been reasonable for the landlord to respond to these complaint points, either in its stage 2 response or by opening a separate complaint about these issues if appropriate. The fact that the landlord did not respond to these concerns was a failing which will have caused the residents frustration and inconvenience and may have given them the impression that the landlord was not taking their concerns seriously.
The Ombudsman’s remedies guidance, as referenced above, states where maladministration has been identified, £100-£600 compensation should be considered. The landlord is ordered to pay the residents £200 for its failures in its handling of the associated complaint.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its failure to provide services it charged for.
In accordance with paragraph 42(j) of the Housing Ombudsman Scheme, the allocation of the residents’ current property is outside of the Service’s jurisdiction.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of the associated complaint.

Orders and recommendations

Orders

The landlord is ordered to pay the residents the following within 5 weeks of the date of this report, ensuring that the Service is provided with evidence of compliance by the same date:
1. £143.65 refund of service charge, as set out in paragraph 32.
2. £200 for its failures to provide services.
3. £200 for its failures in its handling of the associated complaint.

Recommendations

It is recommended that the landlord arrange a meeting for the residents with one of its ILC staff, so that the residents have a named person they can contact when they need help. The landlord should also ensure that it has up-to-date contact and health details for the residents.