Camden Council (202101751)

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REPORT

COMPLAINT 202101751

Camden Council

19 July 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. The resident’s complaint is about:
    1. The landlord’s pursuit of service charges to be paid in accordance with the lease;
    2. The landlord’s handling of capital works to the property, including the appointment and management of the contractor; and
    3. The landlord’s handling of its communications with the resident.

Jurisdiction

  1. The Housing Ombudsman Scheme states that:
    1. Under paragraph 39(g), 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.
    2. Under paragraph 39(i), the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.
    3. Under paragraph 39(m), the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.
  2. The aspects of the resident’s complaints which concern the Landlord and Tenant Act 1985 (LTA 1985), will be a matter of law and for consideration by the First Tier Tribunal (Property Chamber – Residential Property) (referred to in this report as the “Property Tribunal”). In this case, and in the Ombudsman’s opinion, the Property Tribunal is better placed to make determinations that require a legal analysis of principles of law and a forensic study of evidence.
  3. Therefore, in this case the Ombudsman will not investigate the following aspects of the resident’s complaint, as the Ombudsman considers that it is more appropriate that they are considered by the Property Tribunal.

Leasehold services  

  1. The resident has disputed the landlord’s pursuit of outstanding service charges, including charges for communal electricity supply. The Ombudsman considers that these fall outside the scope of its jurisdiction because this would require a forensic analysis of the accounts and a determination of the law which is not within the remit of the Ombudsman to carry out. In the view of the Ombudsman this is best suited to the jurisdiction of the Property Tribunal.
  2. However, the Ombudsman is satisfied that it can consider the resident’s complaint about the landlord’s approach to communication about the outstanding service charges – in particular, its reference to “court costs”.

Capital Repairs; Final Accounts/Major Repairs

  1. The resident’s complaint is about handling of capital works to the property, including the appointment and management of the contractor. Her position is that the landlord’s consultation on the appointment of the contractor and ongoing management of the contractor was inadequate, works were poorly done and there are ongoing issues with the property. She is disputing the application of the major works service charge on this basis. Her position is that ongoing problems with water ingress and damp were caused by the major works.
  2. Section 20 of the LTA deals with the consultation requirements for major works. Section 19 of the LTA 1985 (in summary) limits the recovery of service charges to costs reasonably incurred and to the extent the works are carried out to a reasonable standard.
  3. The Ombudsman will often consider whether a landlord has fulfilled its repair obligations. However, in this case the Ombudsman does not consider that it is appropriate for it to do so. The major works were relatively complex. The resident’s position is that the current issues are the result of the major works. The Ombudsman therefore does not consider that the more recent reports of water ingress and damp can be separated from a consideration of the preceding major works. Such an assessment would require a forensic assessment of the evidence which, in the Ombudsman’s opinion,the Property Tribunal is better placed to carry out  . Further, one of the primary means of redress could be a reduction of the major works service charge. As with the other service charges referred to above, this would require a forensic analysis of the accounts and a determination of the law which is not within the remit of the Ombudsman to carry out. This aspect of the resident’s complaint therefore falls within the ambit of the LTA 1985 and again, in the opinion of the Ombudsman, is best suited to the jurisdiction of the Property Tribunal
  4. However, the Ombudsman is satisfied that it can consider those aspects of the resident’s complaint that relate to the landlord’s communication about the major works.

Background and summary of events

  1. The resident is a leaseholder and the landlord is the freeholder of the property and entered into the lease on 21 December 1987.
  2. In the later half of 2015 the landlord tendered for capital works which included external works on the property. It received five tenders. In December 2015 the landlord produced a tender report, which recommended a particular contractor be appointed.
  3. On 27 July 2015 the landlord issued a notice estimating the major works charge.
  4. On 1 July 2016 the landlord gave the resident a section 20 notice for external repairs and re-decoration.
  5. On 8 November 2018 the landlord issued a demand for the actual costs. The landlord referred to the availability of different payment options.
  6. On 12 November 2018 the landlord provided an itemised breakdown of the capital works to the resident. This stated that the resident’s contribution would be £11,843.19.
  7. On 12 April 2019 the resident sent a section 22 notice to the landlord and advised it that a counter claim was being prepared for costs/charges in relation to the poor standard of works and damage.
  8. On 19 April 2019 the resident sent an email to the landlord querying the information the landlord had sent on the major works.
  9. On 7 May 2019 the landlord considered internally whether there was a guarantee on the property’s roof and the implications of this for repairs to the roof. On 4 June 2019 the landlord confirmed that there was no guarantee on the roof and a one year defects warranty expired in May 2019.
  10. On 7 May 2019 the landlord emailed the resident. The landlord stated that it had not received any reports of water ingress at the end of the contract or 18 months after the work had been completed. It noted that the leak would be reported and dealt with as a repair.  The landlord also responded to the resident’s queries about the contract and works done, including regarding the charges for it. The landlord offered to arrange an appointment to sit with an officer to go through the documents she had been sent.
  11. On 5 June 2019 and a number of times after the landlord attempted to contact the resident to arrange for an investigation by abseil to remedy the leaking roof and identify if further works were needed. The landlord was unable to contact the resident. In September 2019 the resident’s neighbour declined access to their property to facilitate repairs to the resident’s property.
  12. On 30 July 2019 the landlord wrote to the resident about the outstanding major works charge.
  13. On 14 September 2019 the resident wrote to the landlord responding to the landlord’s response to her complaint. She stated that the response was brief and lacked details and knowledge. She noted that she had been contacted for access to the flat by abseil but stated that this would be inappropriate and likely to cause damage. She reiterated her dissatisfaction with the contractors and the landlord’s handling of the contractors and the reasons for her dispute of the service charges. On 4 October 2019 she wrote to the landlord complaining that she had not had a response to her 14 September 2019 email.
  14. On 4 October 2019 the resident wrote to the landlord attaching, and responding to, previous correspondence. The resident disagreed that the tender process was adequate. She complained that there was no financial or professional penalty for poor works by the contractor. She sought further information.
  15. On 18 October 2019 the landlord wrote to the resident to provide further information in response to her request.
  16. In November 2019 the landlord took steps to arrange access to the property to carry out repair works but was unable to arrange rope access as it was seeking.
  17. On 5 March 2020 the resident wrote to the landlord noting that the landlord had offered to fix the outstanding works but would not use scaffolding. The landlord told her that abseiling was appropriate. However, she noted that scaffolding had been erected on other properties. She referred to damage caused by the contractors and ongoing issues. She stated that the landlord’s responses had been rude, dismissive, ill informed and incompetent.
  18. On 14 May 2020 the landlord wrote to the resident about outstanding service charges due (not the major works charge).
  19. In April 2020 the landlord undertook repairs on the roof by erecting a scaffold.
  20. On 26 May 2020 the resident emailed the landlord. The resident stated that the landlord should pay for repairs for damage caused by its contractors. She stated that she was happy to obtain quotes but the landlord was to address the damage via the contractor or its insurers. She referred to a further claim for damage to her fridge and other damage to the property.
  21. On 3 June 2020 the landlord responded to the resident. The landlord stated that it did not accept that the contractor caused damage.
  22. On 27 August 2020 the resident submitted a formal complaint to the landlord. Her complaint was put into three categories: leasehold services, capital repairs and Final Accounts/Major repairs. The details of these complaints were summarised in the 7 October 2020 landlord response, set out below.
  23. On 29 September 2020 the resident obtained an estimate for “remedial works … due to water ingress” from an independent party. The total estimate was for £6,990.00 plus VAT.
  24. On 7 October 2020 the landlord provided a stage one complaint response to the resident. In this response the landlord summarised the resident’s complaint into three categories:
    1. “Leasehold Services: routinely refer alleged unpaid accounts to Solicitors using incorrect information/ charges; Landlord issue Court Costs, but these are not court costs but legal letters; managing Leasehold accounts via solicitors is threatening, a form of extortion through fear of incurring charges under the premise of Court Costs at a later date; The terms of my lease are explicit in the Third Schedule relating to charges;
    2. Capital Repairs: This contract was not adequately managed, complaints were not responded to; managed the contract without adhering to pre inspections; carried out work which was without notice and due care; used cheap labour throughout the contract which was evident at the end result; there is damage caused during the contract, and following the contract; severe water penetration through rear elevation walls, due to inadequate repointing; despite unblocking the hopper head myself it remained blocked; an abseiler is not appropriate for this property, repeatedly requested scaffolding; it was not until 3/20 that the water penetration was addressed; when scaffold went up on 29 H&S rules were breached by stomping over the roof Date: contractors should be forced to re-attend at their own cost; After the contract my property was never wind and watertight; My roof was literally ripped off with no notice on 5/10/2016; communication problems with operatives, and they never understood the structure of a London roof; severe damage caused to the down lighting system in the bathroom; There was no preparation carried out at all, the paintwork was of poor standard and within 18 months had failed completely;
    3. Final Accounts/Major Repairs: S21 and s22 notices procedure had not been followed; breakdowns of alleged costs were inadequate; the property had been surveyed at a cost of 35k to 38k; no itemised works/ timetable or costings received from beginning to end of contract; there’s a legal duty to ensure information is routinely advised during the contract; remarks made relating to queries were not legal or professional; S20B notices had not been followed; the landlord’s expertise and ability to effectively manage a contract means Contractors are never challenged legally or financially; A similar property had works carried out at the same time, all done in 3 weeks”.
  25. The landlord stated that it was satisfied that it was entitled to charge the disputed charges in accordance with the lease. It noted that its use in pre-action letters of the phrase “court costs” sounds like that case had been heard in court. However, it clarified that the pre-action protocol is a legal letter to try and resolve the dispute before court proceedings. It stated that this had previously been made clear to the resident.
  26. It acknowledged that the resident had communicated with the landlord a number of times about the works. It stated that all her questions had been answered following the final account being sent out in November 2018. It noted that going back now to assess the contract management in 2015/16. It noted that the service charge appeared proportionate.
  27. It stated that it had advised the resident on 3 June 2020 that the landlord did not accept that the contractor caused damage to the property or that there was poor workmanship. It stated that the landlord visited the property in March and September 2020 and identified damage, that was not severe, to the lounge and bathroom ceilings, including the recessed bathroom lights because of water ingress from the roof being stripped. It noted that it gave notice of the works and that the resident declined access for a survey of the condition of the flat on 30 June 2016, 27 July 2016 and 1 August 2016.
  28. It noted that the scaffolding was up for 6 months and apologised for the inconvenience but noted that it was alarmed. It noted that there were no defects in the roof noted when it was inspected on 23 May 2018. It noted that it was satisfied that the used of an abseiler at times was appropriate. It noted that it responded to the resident’s queries about the final account for the major works on 18 April 2019, 7 May 2019 and 4 September 2019. The resident did not contact the landlord to arrange a face to face meeting as offered.
  29. It noted it had sent the resident a section 20B notice that covered the final chargeable costs. It noted that it had reviewed the communications between the landlord and the resident and found the tone of them to be “amicable and helpful”. It noted that it had incorrectly calculated the resident’s contribution as being £11,843.19, when in fact it is £14,459.35. It stated that it had advised the resident of the mistake on 6 March 2019 and confirmed that it would honour the amount of £11,843.19 and conducted an internal review to identify how the error was made.
  30. It noted that the resident had refused a number of times offers for the contractor to return to make good any damage, however the resident declined. It had asked the resident to provide two quotes to repair the damage she claimed. It noted that it would remove underperforming contractors and its tender analysis was compliant with its obligations. It partially upheld the customer’s complaint and apologised for communication failings.
  31. On 29 October 2020 the resident responded to the landlord’s stage one complaint response. The resident stated that there was nothing in the lease which allows the landlord to charge court costs or charges for electricity. The works to the roof “were not on s20 consultation” and there was only an estimate sent. The works were not reasonable or proportionate. The landlord did not consult properly. The resident stated that she was not responsible for works which were not of a reasonable standard. She stated that the landlord had maladministered the contract. The landlord’s offer of an abseiler was not appropriate. The resident stated that she did not understand why the landlord was shifting blame to the residents.
  32. On 9 November 2020 the resident requested that the complaint be escalated to stage two.
  33. On 6 April 2021 the resident wrote to the landlord about service charge items she was disputing. She noted that she had not heard further to her request for the complaint to be escalated.
  34. On 20 April 2021 the landlord wrote to the resident stating that her complaint about the service charges had not been upheld so the outstanding amount remained due, therefore she was sent a reminder letter dated 19 January 2021. The landlord stated that it would seek an update from the complaint team and referred her to the complaint team. The landlord further clarified its position on the resident’s service charges.
  35. On 30 April 2021 the resident emailed the landlord and stated that she had paid the charges contained in the Third Schedule. The resident stated that the landlord’s knowledge of the formal complaints handling procedure appeared limited.
  36. On 14 May 2021 the landlord wrote to the resident stating as per the previous two emails sent to her, the invoices for day to day and major work service charges remain due and payable. The landlord stated that “failure to make payment will result in the invoices being escalated accordingly and eventually referred to our solicitors for collection, at which point you may incur additional court fees”. The landlord provided a statement of account.
  37. On 26 May 2021 the landlord provided a final response to the resident. The landlord stated that it was satisfied that the response of 7 October 2020 was detailed and comprehensive. It reiterated the key points if its previous complaint response. It referred the resident to her appeal rights via the First Tier Property Tribunal.
  38. On 12 June 2021 the resident emailed the landlord sending images which she stated showed “severe damage” from the contractors works. She stated that the flat was damp and she was periodically required to stay with family. She noted that since the contract works the downpipe and hopper appeared to be continually blocked.
  39. On 20 July 2021 the resident emailed the landlord advising it that her complaint was with this service. The resident noted that the roof was continuing to suffer from leaks and there was continued internal damage.
  40. On 19 August 2021, the resident emailed the landlord. The resident reiterated her concerns that there was water penetration to the property every time it rained. She submits that the downpipe is blocked and overflows onto the new roof and water cascades down the rear elevation. She states that she is unable to stay in the property when it rains. She stated that she has taken no action herself to deal with the dampness other than obtain one estimate to redecorate the rooms once the issue is resolved. She stated that the problem has only happened since the major works in 2016. She stated that the works should have been under guarantee. She stated that she had asked for a scaffolding tower to be erected.
  41. In November 2021 and December 2021 the landlord attended the property and cleared rainwater pipes.  
  42. On 11 November 2021 the landlord wrote to the resident about outstanding service charges (not the major works charge).

Assessment and findings

  1. As set out above, the Ombudsman is satisfied that it falls within the remit of the Housing Ombudsman Scheme to consider the landlord’s handling of its communication with the resident.
  2. The Ombudsman has therefore considered the resident’s complaint that the landlord’s communications with her about outstanding service charges due on her account was unreasonable. The resident’s complaint is that the landlord gave misleading/deceptive information about court costs. In particular, she submits that the landlord indicated that it was seeking payment for court costs. In the Statement of Account at 14 May 2021, for example, there is an itemisation for “Service Charge Court Costs … £80”.
  3. In its complaint response to the customer, dated 7 October 2020, the landlord acknowledged that it understood the resident’s point that the terminology makes it sound like a case had been heard in court. However, it noted that the pre-action protocol letter is a legal document written to try and resolve the dispute before court. The landlord noted that it had previously told the resident this.
  4. The Ombudsman understands why the resident may have found the reference to court costs to be confusing. The Ombudsman is not persuaded that the landlord took sufficient steps to explain to the resident that the charge was in relation to pre-action protocol letters it had sent to her, which were required as part of the process before non payment of service charges is taken to court. In its email to the resident on 14 May 2021, the landlord advises the resident that the matter will be escalated if invoices are not paid “and eventually referred to our solicitors for collection, at which point you may incur additional court fees.” It is not surprising that the resident was unclear about references to court costs in the itemised invoice.
  5. The Ombudsman makes no finding on whether the landlord is entitled to seek payment for the “service charge court costs”. However, the Ombudsman does find that it was a service failure that the landlord did not take reasonable steps to communicate with the resident in a sufficiently clear manner what specifically the costs were for.
  6. The Ombudsman has considered the landlord’s communication with the resident about the adequacy of the major works, the charges for the major works and the damage which the resident submits was done by the contractors.
  7. The landlord has acknowledged that it made an error and initially advised the resident that the major works charge would be £11,843.19 when in fact the charge was £14,459.35. The landlord advised the resident of this on 6 March 2019 and advised the resident that it would not be seeking the difference. It is unfortunate that the landlord made this error. However, the resident has not suffered because of this. The landlord is not seeking the higher amount and any distress caused by the error would have been short lived as it was explained in the letter advising the resident of the error that the landlord would not seek payment. The landlord has indicated that it has undertaken a review of why the error happened. Whilst there was an error made here, the landlord took appropriate steps to put it right and the Ombudsman considers the impact on the resident to have been minor. For these reasons the Ombudsman has not made a finding of service failure on this part of the complaint.
  8. The evidence indicates that when it advised the resident about the roofing works by letter on 22 September 2016 it included full contact details. The landlord has noted that the resident refused access to the landlord for a survey of the property on 30 June 2016, 27 July 2016 and 1 August 2016. The landlord’s position is that it may have been able to answer questions the resident had if a face to face meeting during the survey had been possible. The Ombudsman considers this to be a reasonable position. On 6 March 2019 a full itemised breakdown of the works was sent to the resident. The landlord emailed the resident on 18 April 2019, 7 May 2019 and 4 September 2019 responding to the resident’s queries about the capital works. There were a number of further communications between the parties following this up to this and ultimately the resident made her formal complaint on 27 August 2020, which the landlord provided a response to on 7 October 2020.
  9. The evidence indicates that the landlord visited the property to review the reported damage in March and September 2020. It concluded that there was some damage, but it was not severe. It is not clear if the landlord accepted that the damage was caused by the contractor’s work. The landlord requested two estimates from the resident for work to rectify the damage, which the resident submits was caused by the contractor and caused by water ingress.  It requested these quotes by email dated 3 June 2020 and reiterated this in its stage one complaint response. The Ombudsman has only been provided with one quote and it appears that the resident has not progressed the landlord’s proposal to move forward considering two quotes for repairs. The resident has indicated that her position is that she is not willing to allow representatives of the landlord into the property to repair any damage.
  10. Without making any findings on whether the landlord complied with its specific obligations regarding the tendering and management of the major works contractor, the Ombudsman is satisfied that, on the whole, the landlord communicated in a reasonable manner with the resident about the matter. The landlord, on the whole, responded to the resident within reasonable timeframes and, on the whole, addressed the key issues which she raised.
  11. For example, whilst the Ombudsman appreciates that the resident was not satisfied with the position the landlord took, the Ombudsman is satisfied that the landlord provided sufficient information to the resident in its emails to her. The Ombudsman notes that the landlord offered a face to face meeting with the resident which she did not pursue. The Ombudsman is satisfied that in the first stage complaint response the landlord took sufficient steps to address the key issues raised by the resident and set out its position in sufficient detail. The landlord’s offer to consider two quotes was a reasonable position.
  12. The Ombudsman understands that the resident is dissatisfied with the manner in which the landlord communicated with her. However, the Ombudsman has not found the communications from the landlord to have used an inappropriate tone or indicate that the landlord was being obstructive.
  13. However, the Ombudsman does find that there were some failings regarding the resident’s request to escalate her complaint. The resident requested the complaint be escalated on 9 November 2020. The landlord did not provide a response until 26 May 2021, and it is not clear why the response took so long. The landlord does not appear to have communicated with the resident about the escalation until 5 April 2021, which was in response to the resident proactively seeking an update. The Ombudsman considers the time taken to provide a final response was a service failure. The Ombudsman also has some concerns about the landlord’s statement in its email to the resident of 30 April 2021 that “our internal complaints team have reviewed the correspondence to date and they have advised … that they cannot take this matter any further.” This was clearly incorrect with respect to the complaint escalation process.
  14. As the Ombudsman has identified that there were some service failings, appropriate redress has been considered.
  15. In assessing an appropriate level of compensation, the Ombudsman takes into account a range of factors including any distress and inconvenience caused by the issues, the amount of time and effort expended on pursuing the matter with the landlord, and the level of detriment caused by the landlord’s acts and/or omissions. It considers whether any redress is proportionate to the severity of the failing by the landlord and the impact on the resident. The Ombudsman also takes into account the evidence that has been provided. Ultimately the Ombudsman considers what would be fair and proportionate. The aim of compensation is not to be punitive but to provide redress for the impact of any failings by the landlord on the resident. In the case of compensation for distress and inconvenience, we are not able to quantify a definitive loss and the intention of such an award is to recognise the overall distress and inconvenience suffered by the resident.
  16. In this case it is important to distinguish between the resident’s distress and inconvenience in relation to the works and the condition of the property and the distress and inconvenience in relation to the landlord’s communication failings. The Ombudsman considers that the service failures identified, in particular the delay in providing the final complaint response, had a notable impact on the resident over a relatively significant time frame but not a permanent one. The Ombudsman has referred to this service’s Remedies Guidance. This sets out that awards between £250 and £750 may be appropriate where there has been “considerable” failings by the landlord but no permanent impact on the resident. The Ombudsman considers that the landlord’s failings in this case are at the lower level of this band and requires that the landlord pay the resident £250 compensation within four weeks of the date of this decision.
  17. The Ombudsman also recommends that the landlord review its approach to communicating to residents the application of costs for pre-action protocol communications.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there have been service failure by the landlord with respect to its handling of its communication with the resident.

Reasons

  1. There were some failings in the landlord’s communications with the resident. The Ombudsman understands why the resident may have found the reference to court costs in the itemised account to be confusing. The landlord took an unreasonable amount of time to provide a final response after the resident asked that the complaint be escalated after the landlord’s stage one complaint response.

 Orders and recommendations

  1. The Ombudsman requires that the landlord pay the resident £250 compensation within four weeks of the date of this decision.
  2. The Ombudsman recommends that the landlord review its approach to communicating to residents the application of costs for pre-action protocol communications.