Cheltenham Borough Homes Limited (202216212)

REPORT

COMPLAINT 202216212

Cheltenham Borough Homes Limited

9 August 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

1. The complaint is about the landlord’s handling of:
   1. a request for retrospective consent for building works; and
   2. the associated complaint.

Background

2. The resident was a leaseholder and lived in a two-bedroom ground-floor flat.
3. The resident purchased her property in 2016. A previous owner had undertaken works to the property to remove an interior wall, without obtaining the correct building regulation consent. This was not known to either the resident or the landlord at the time of the sale in 2016. When the resident came to sell her property in 2020, the landlord identified that works had been carried out and requested the resident request retrospective consent to ensure that the works complied with building regulations and were safe for the resident and other leaseholders in the block.
4. The resident states that communication delays by the landlord delayed this process, causing her sale to complete the sale in July 2021. This was after the Stamp Duty Land Tax (commonly known as ‘stamp duty’) ‘holiday’ had expired, which she states cost her an additional £6500 she would not have had to pay had the sale been completed pre-July 2021. Additionally, the resident stated that these delays caused one prospective buyer to withdraw from the purchase, further delaying the sale.
5. The resident complained to the landlord on 20 June 2021, however, this was not recognised as a complaint by the landlord until 21 September 2021. The landlord’s complaint response did not uphold the complaint, as it felt that the fault lay with the resident’s solicitor. The landlord did acknowledge a four-month delay in responding to correspondence, however it did not feel that this would have impacted the outcome, nor did it feel that the sale would have been completed prior to the end of the stamp duty holiday. Incidentally, the landlord incorrectly stated this ended in March 2021.
6. The resident escalated her complaint to stage 2 of the landlord’s complaint procedure on 9 November 2021, as she felt that the landlord’s delays amounted to unreasonably withholding consent. Additionally, the resident felt that the landlord had not provided clear instructions about the information it required from the survey and therefore this caused further delays as an additional level of survey was required. The landlord’s stage 2 response did not uphold the complaint, instead stating that the resident’s own solicitor should have provided the advice that she had been seeking from the landlord. The landlord did acknowledge the delay in responding from one member of staff but offered no redress for this beyond an apology.
7. The resident remained dissatisfied and escalated her complaint to the Ombudsman. She is seeking an acknowledgement of the errors and delays, clarification of the status of the landlord’s surveyor as well as compensation.

Assessment and findings

The landlord’s handling of its request for retrospective consent for building works

8. During the resident’s sale of her property in 2020, the landlord noted that an interior wall had been removed without its permission. The resident stated in correspondence that she believed this work was completed by a previous owner in the early 2000s. Due to the upcoming sale, the landlord requested that a survey be undertaken to obtain retrospective permission for this work, to avoid this showing as a dispute on the conveyancing pack.
9. The resident employed her own surveyor who undertook a visual survey, which did not note any issues or recommend any further actions. The resident sent this survey to the landlord and to the building control department of the local authority. The local authority granted a certificate of regularisation and gave retrospective planning permission; however, the landlord did not feel that a visual survey was sufficient and requested further surveys before it would grant its own retrospective permission. These additional surveys included calculations which could only be completed by exposing the area and examining the supporting beam, including from above and below, which required access into another flat in the block. The resident’s own surveyor advised against this level of survey, noting the additional cost, disruption and need for redecoration works.
10. These additional requirements were compounded further as the landlord’s surveyor, who made these stipulations, did not respond to requests for contact from the resident for over four months, despite at least three requests. The resident stated that she wanted to clarify the requirements directly with the surveyor prior to undertaking potentially expensive, timely and disruptive work.
11. The resident stated that the lack of response from the landlord’s surveyor led her to believe that the matter was resolved, and she proceeded with the sale. When the landlord issued its leaseholder pack as part of the sale, it noted an ongoing dispute regarding the wall, which the resident felt had the potential to impact her sale overall.
12. The landlord did not provide the information related to the survey in a clear or prompt way. The landlord’s initial emails requesting the survey did not stipulate the standards or particular tests that would be required, namely that the beam would need to be exposed. There was also no explicit mention of requiring retrospective building regulation approval until much later in the exchange. When the resident queried this and asked to speak to the landlord’s surveyor, this was delayed by over four months. It is important to note that the resident’s own surveyor would not proceed with works, or provide a quote, until clarification has been received from the landlord’s surveyor, to avoid further confusion or insufficient work.
13. Further to this, during the course of her complaint, the resident queried the qualification and role of the landlord’s surveyor. In early correspondence, the landlord’s staff explicitly refer to information being passed to their surveyor. The resident later noted that the individual was not a member of the Royal Institute of Chartered Surveyors (RICS) and was instead a Member of the Chartered Institute of Builders (MCIOB). The resident, therefore, requested assurance that the individual was a surveyor. The term ‘surveyor’ is not a protected title in the United Kingdom, and no accreditation or qualification is required to use the term, unlike ‘chartered surveyor’ which does require accreditation. It is unclear from the evidence presented whether the individual in question is employed or qualified as a surveyor or not.
14. Another factor in this case was the resident’s potential financial losses, due to the sale completing outside the stamp duty holiday. Between 8 July 2020 and 30 September 2021, the Stamp Duty Land Tax relief scheme (‘holiday’) was in place across the UK. There were two schemes in force during this period, one running 8 July 2020 – 30 June 2021 and another running 1 July 2021 – 30 September 2021. The first scheme reduced stamp duty to zero for all properties bought and sold under £500,000, whilst the second scheme did this for properties under £250,000 in value. The exception to this was for second properties which incurred a 3% stamp duty rate under both schemes.
15. As the resident’s property was valued at around £170,000, she would have been eligible for relief under either of these schemes until it ended in September 2021. There was some confusion within the complaint responses from the landlord, which referred to these schemes ending in March 2021. This was later corrected by the resident, however this was not acknowledged or corrected by the landlord in any correspondence seen by this service.
16. Overall, the landlord’s lack of clarity and delays in responding to the resident’s contacts caused her unnecessary inconvenience and did cause a delay in the progress of the sale of her property. Both parties acknowledge that sales can be delayed or fall through for a wide variety of reasons and therefore it is not possible to say with any certainty that the resident would have purchased her property during the stamp duty holiday had the landlord not caused these delays. On this basis, whilst the landlord’s actions do constitute maladministration, the orders made (and in particular the order for compensation) are awarded on the basis of the distress and inconvenience caused to the resident as a result of the landlord’s delays, rather than to recover any of the potential tangible losses incurred, such as stamp duty.

Complaint handling

17. The landlord operates a two-stage formal complaint procedure. The landlord’s complaints policy states that responses will be issued to residents within 10 working days at stage one and within 20 working days at stage two.
18. The resident complained to the landlord on 20 June 2021, however this was not acknowledged as a complaint for 13 weeks on 21 September 2021. The landlord responded on 13 October 2021 and therefore this response was 72 working days (around 15 working weeks) over the landlord’s policy timescales in total and 6 days over timescales from the point that the landlord acknowledged the complaint.
19. The landlord’s stage 2 complaint response was also issued nine working days over its policy timescales. Taking these two stages together, these are unreasonable delays which caused additional time, trouble and distress to the resident and delayed her being able to progress her concerns to the Ombudsman.
20. There has been no evidence presented to this service that the landlord apologised for or acknowledged these delays within its complaint responses, nor has the landlord made any redress for this, such as compensation. This amounts to maladministration. The landlord is ordered to pay the resident £150 compensation to reflect her time and trouble in pursuing this complaint in line with the Ombudsman’s remedies guidance, which is available on our website.
21. Additionally, there were occasions throughout the complaints process where the landlord did not address the elements that the resident was complaining about, as it had misinterpreted her complaint. Whilst there is no evidence that this was willful or intentional, the landlord should ensure that it has suitable processes in place going forward to clarify complaint points, particularly in complex and protracted matters such as this one.

Determination

22. In accordance with paragraph 52 of the Housing Ombudsman Scheme:
    1. there has been maladministration in the landlord’s handling of its request for retrospective consent for building works; and
    2. there has been maladministration in the landlord’s handling of the associated complaint.

Orders and recommendations

Orders

23. Within 28 days of the date of this determination, the landlord must:
    1. apologise to the resident for its lack of clarity and the delays that these caused in the sale process.
    2. pay the resident £950 compensation, comprised of:
       1. £150 for the complaint handling delays;
       2. £400 for the resident’s distress and inconvenience of these issues; and
       3. £400 for the resident’s time and trouble in pursuing this complaint.
    3. provide the Ombudsman with evidence of compliance with these orders.

Recommendations

24. The landlord should:
    1. Review its processes for handling complaints to ensure that residents receive timely responses, in line with the landlord’s complaint policy and the Complaint Handling Code.
    2. Review its internal communication channels and ‘single point of contact’ policy to ensure that residents receive timely responses to their enquiries, particularly in time-sensitive situations, such as property sales.
    3. Review its processes for seeking clarification around complaint points, to ensure that all resident concerns are addressed fully.