Clarion Housing Association Limited (202105519)

REPORT

COMPLAINT 202105519

Clarion Housing Association Limited

19 August 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

This complaint is about the landlord’s handling of the resident’s concerns about charges for use of an electrical vehicle charging point.

Background and summary of events

Background

The resident is a leaseholder who holds a lease dated 11 March 2015. The property is a flat within a low-rise block. The landlord is the freeholder and has advised that it has appointed a managing agent (‘the agent’) to manage the site, including block services, grounds maintenance and collection of service charges.
The lease agreement obliges the resident to pay ground rent and service charges. It includes an exclusive right for the resident to use any parking space edged in green on the lease plan and requires the landlord to give reasonable notice should it alter the location of the parking space; the plan shows two numbered bays edged in green.
The landlord has a ‘Frequently Asked Questions’ document about service charges on its website. This shows that:
1. the landlord will send a certificate of actual expenditure within six months of the end of a financial year (31 March) to set out if there is any difference between what it estimated and what the actual cost has been;
2. a resident should contact it if they have concerns about the service charges and it will offer an explanation as to what the charge covers, after which the resident can make a complaint and then request a review by the First Tier Tribunal (FTT) if they remain dissatisfied.
The landlord has a complaints policy that sets out a two-stage process where it is required to respond within 10 working days (at stage one) and 20 working days (at stage two) respectively.
The landlord has a compensation policy that sets out ranges of compensation that it may award depending on the severity of a service failure and the impact on the resident.

Scope of investigation

It should be noted that whilst this Service can look at what information has been provided by the landlord regarding the service charge, it is not within the jurisdiction of the Ombudsman to consider the level of a charge, including whether it presents good value for money.
This is line with paragraph 39(g) of the Housing Ombudsman Scheme, which states that 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”. Should the resident wish to pursue the level of the service charge amount further, he has the option of making an application to the FTT.
Further, the Ombudsman cannot consider allegations of discrimination or disputes about property ownership, as these would be matters for the courts, and will not investigate matters that have already been determined upon by another Ombudsman.
Although they may be referred to below for context, this investigation will therefore not assess the reasonableness of the charges incurred by the resident for use of an electric vehicle (EV) charging point, allegations that the landlord discriminated against him, a dispute about ownership of the charging point (and related parking bay) and the actions of the managing agent (which was already subject to a determination by the Property Ombudsman in February 2021).

Summary of Events

The resident initially raised his concerns about charges for use of the EV charging point with the agent. He wrote to them, copying in the landlord, on 28 June 2020. He described the email as a complaint and highlighted concerns that:
1. the agent had refused to withdraw an invoice and failed to respond to questions outstanding for over a year;
2. he resented the use of wording such as “private use of landlord’s electricity” which he said inferred theft and could cause reputational damage;
3. he had purchased the property together with car parking spaces and an EV charging point (at extra cost) but received no clarity about its use when he bought a new vehicle in early 2019 and asked the agent how the electricity supply would work;
4. he had started using the charging point and advised the agent of the consumption which he assessed to be a charge of around £15 per month but the agent had later billed £445 based on an amount of £80 per month;
5. the agent’s bill lacked any substance or sensible basis and he asked for it to be withdrawn.
The agent responded to the resident’s complaint on 16 July 2020, concluding that:
1. it noted that a proper mechanism for billing the electricity usage would be useful and it would investigate the installation of meters and whether this would be a valid service charge expense;
2. its research showed a “sample variation between 14p/kWh for domestic electricity and 26p/kWh for car chargers” and it would cost approximately £8.40 for a full charge of an electric vehicle;
3. the amount he had been charged was £74 per month which equalled roughly nine full charges per month;
4. the resident had paid £163.06 for the period April 2019 to June 2020 which equalled one full charge per month and said he had paid £116 for October 2019 to June 2020 which was about one and a half full charges per month;
5. it believed that, as custodians of the service charge funds, the recharge it had calculated was fair;
6. it was sorry if the resident had read its previous correspondence as an implied allegation of theft.
The resident said he contested this decision on 16 July 2020 and wrote to the agent further on 20 July 2020, asking for a final viewpoint.
The agent responded to the resident on 24 July 2020, advising that:
1. the £445 charge was an interim bill and it had taken the time to set out the methodology behind the estimate;
2. the resident’s “offerings” equated to one vehicle charge per month which would not be justifiable to other leaseholders;
3. it had read previous correspondence and did not agree that there had been inferences of theft and lying;
4. it invited the resident to increase his payments to the value of two and a half full vehicle charges per month which could be justified by management and would be adjusted (and refunded) if it was found to be too high after a year or two’s use of metered units.
The resident wrote to the agent on 1 October 2020, advising he had paid £35.72 for charging point use in September which he said was based on his estimate of 20p/kwh and included two neighbours using the point (which he said had been requested by the agent in one case). He said he awaited being advised of the actual tariff and would then adjust payments up or down for any underpayment or overpayment since April 2019.
The agent replied to the resident on the same date, stating there was “no reason why you should be involving 4 members of our staff in your trifling payments, other than for the purpose of deliberate irritation” and asking him to just correspond with its ‘reception’ email address in future.
The resident wrote to the agent in early November 2020, advising he had paid £28.85 which he said covered electricity supply for his EV charging point for three cars for October.
The agent wrote to the resident on 11 November 2020, stating it had included a statement of account. The resident replied the following day, advising he had been waiting for 18 months for a tariff, explaining what he had paid and querying entries on the statement such as missing payments (on 3 June 2019, 15 August 2019, 15 October 2019) and what charges were for (of £745 on 18 March 2020 and £445 on 18 June 2020).
The resident wrote to agent on 1 December 2020, advising he had paid £21.89 for use of charging point electricity by three cars. He also chased an answer to the above enquiries. He sent similar emails on 4 January 2021 and 2 February 2021, setting out payments of £10.89 and £18.33, and querying the lack of response to his November 2020 correspondence.
The resident passed his charging enquiries to two other members of agent staff on 3 February 2021. A different member of staff replied to him on 8 February 2021, stating “That’s a mistake you will no doubt have to pay for …. Try and get out of this one”.
The resident wrote to the landlord on 9 February 2021, raising concerns about:
1. a standing charge of £80 per month per vehicle that he said the agent had imposed for the EV charging point;
2. a threatening and unprovoked email sent to him by a member of staff at the agent;
3. he requested appropriate actions and reassurance about this behaviour.
The resident wrote to the agent on 10 February 2021, in response to a service charge demand note. He disputed £143.31 arrears that he said the demand showed.
The Property Ombudsman completed a case review on 22 February 2021 of the dispute between the resident and the agent. It set out that:
1. the resident purchased the lease with two car parking bays and one of these had an electric vehicle charging point which the resident began to use in March 2019;
2. there was correspondence exchanged between the resident and agent during June-October 2019 about the electricity charges for the charging point;
3. the agent had advised that it estimated a charge for electricity usage to the charging point because there was no meter and it had informed the resident on 18 March 2020 that this had been set at £80 per month;
4. “whilst the EV charging points are assigned to individual leaseholders, the cost for the electrical supply to the car park is incorporated within the service charge” and the £455 amount was part of the service charge;
5. the resident would therefore need to raise the issue of reasonableness of charges through the landlord or First Tier Tribunal (FTT);
6. it awarded £500 compensation for the failure of the agent to keep records and respond to the resident’s communications appropriately between June 2019 and June 2020;
7. the agent considered the resident’s complaint between June-July 2020, responding appropriately and explaining how the charges had been calculated;
8. it did not establish that the agent had accused the resident of theft but it had seen inappropriate comments made to the resident (referring to an email in February 2021).
The resident chased the agent on 25-26 February 2021 for confirmation that it would amend his service charge demand to reflect that he was not in ground rent arrears; the agent confirmed that he had no arrears on 26 February 2021.
The resident wrote to the agent, copying in the landlord, on 18 March 2021, advising he had received a 2021/22 service charge account and that this showed arrears due to “payments for direct electricity supply and confusion around a single invoice for a single 6 month period that we are unable to make sense of”.
The landlord issued a stage one complaint response to the resident on 18 March 2021 which:
1. advised that the matter of the threatening and unprovoked email had been sent to its managing agents team for investigation in line with its internal procedures;
2. it could not advise of the outcome of the investigation for data protection reasons;
3. it had however told the agent that the email was unprofessional and that it expects that they are measured and professional at all times in their communications and had received “complete assurance that this will not happen again and all communications will remain professional and respectful going forward”;
4. the issues of the car charging point and invoicing would need to be raised directly with the agent and it asked the resident to only send correspondence to a ‘reception’ email address;
5. it apologised for any inconvenience that the resident may have experienced.
The resident advised the landlord on 18 March 2021 that he would again try to use only the ‘reception’ email address but that he had only written to others when he did not get anywhere with repeated requests.
The Property Ombudsman wrote to the resident on 31 March 2021, following representations it said it had received from him and the agent, concluding that:
1. the resident had a lease with the landlord who instructed the agent;
2. matters relating to service charges (such as payment for communal utilities) were outside its jurisdiction as they related directly to the relationship between the resident and landlord;
3. it had not established that the agent had made accusations of theft or dishonesty and signposted the resident to the FTT for consideration of the accuracy of the electricity charges;
4. “the charge for communal electricity forms part of the service charge for the Development and this is shown within the service charge statement” and whether it was within the service charge or a resale of electricity, this would be a matter for the FTT;
5. it believed that “the responsibility to ensure that appropriate charging for the electricity used is in place is that of the freeholder under the terms of the lease” and not the responsibility of the agent or something that they could act upon without instruction.
The agent wrote to the resident on 6 April 2021. They said that they had created a separate account for the EV charging transactions to keep them separate from the service charge account and provided statements accordingly. They added that a basis for the estimate had been provided in July 2020, noting that the resident disputed this amount and it hoped metered pods would soon be installed (which would allow it to retrospectively adjust the charge if the metered amount turned out to be less than the estimate).
The resident wrote to the landlord on 6 April 2021. He explained the limited use of his vehicle and charging point, advised that he helped a neighbour with their car and queried how the £445 charge period had been amended from September 2019-February 2020 to September 2019-September 2020. He asked the landlord to appoint somebody to resolve the dispute given he had received abusive emails and was happy to install an electricity meter.
The resident again wrote to the landlord on 11 April 2021, asking it to appoint someone who could resolve the dispute. The landlord replied on 12 April 2021, advising that the issues needed to be resolved with the agent but that the resident had the option of raising a complaint.
The agent and resident exchanged emails between 12-13 April 2021 regarding the practical arrangements of installing a meter to ensure that he paid only for electricity used by his charging point. The agent offered on 14 April 2021 for its EV charging consultant to attend on 22 April 2021 and the resident agreed to speak to him but stated his request was for a licence to install an electricity meter to the charging point.
The resident wrote to the agent on 16 April 2021, asking for confirmation that his licence application had been passed to the landlord. He also queried aspects of the agent’s recent accounting, including the lack of payments he made in 2019, its illogical estimate of £74 per month per vehicle and a 20% VAT charge from the core supply. He offered some alternative calculations for the electricity charge and asked for an opportunity to review and agree the figures with the agent so he could make any balancing payment. The resident forwarded the email to the landlord on the same day, asking that it take charge of the issues.
The agent replied to the resident on 23 April 2021. They set out that:
1. the resident’s licence application would only be passed on once the EV consultant had reported;
2. they were happy to amend their wording from ‘admitted’ to ‘advised’;
3. an EV statement was attached and this showed that the resident’s payments had been posted to an EV account.
The resident wrote to the agent on 27 April 2021. He set out his response to the agent’s communication, advising that:
1. his payments were designed to cover use of the charging point up to March 2021 for him (over 24 months), a neighbour (over 10 months) and a third party (over three months);
2. the payment was made based on a 20p/kWh charge;
3. he was still seeking for the agent and landlord to withdrawn the £445 invoice (which he understood was only supposed to cover him for six months’ use).
The resident wrote to the landlord on 5 May 2021. He expressed dissatisfaction on the grounds that:
1. it had not advised which officer had been directing the agent to harass, victimise and bully him and his wife;
2. it was fully aware that the agent had charged an “unsubstantiated invoice tantamount to extortion” for a period of six months (and they should presumably expect a further invoice to cover the additional months);
3. he had been told by the agent that they could not withdraw the invoice and received unhelpful and nonsensical replies through the agent’s complaint process;
4. the Property Ombudsman had decided that the issue of charges was a matter for the landlord and not the agent;
5. the landlord had been included in various correspondence but failed to resolve the matter;
6. he had even proposed to install a meter to resolve this matter but the agent had not passed his application to the landlord.
The resident reiterated his complaint concerns to the landlord on 11-13 May 2021, noting that he had now felt compelled to stop using the charging point and its instruction that he should only contact the agent’s ‘reception’ was not working.
The landlord issued its final complaint response to the resident on 21 May 2021. It concluded that:
1. it believed that the stage one complaint response was fair, reasonable and accurate;
2. the email received by the resident from a member of the agent’s staff was sent in error and it had taken this up with the agent who had offered reassurance that this would not happen again;
3. the agent dealt with all issues of estate management so it could not look into the invoicing for use of the charging point but it would be the party responsible for giving any permission to change the charging point to a metered one;
4. it had a single point of contact for communication for the resident to ensure enquiries were handled efficiently and it did not agree that this was an act of discrimination against him;
5. it did not instruct the agent’s actions regarding the invoice for use of the electrical charging point but it had jointly reviewed the resident’s concerns;
6. small payments had been received by the agent but the £455 invoice had not been paid;
7. the agent had agreed to rescind the invoice and accept the payments received as full and final settlement for any electrical charges up to a point six weeks from the date of the final complaint response;
8. it agreed for the charge point to be changed to a metered point and permission would be confirmed in a separate letter so there would be no further charge for use of the current charging point if the meter was fitted within the following six weeks;
9. it did not agree it had affected the resident’s ‘quiet enjoyment’ or that compensation was warranted;
10. it asked that the resident only email it once per week unless there was an emergency situation.

Summary of Events after landlord complaint process

The landlord wrote to the resident on 2 June 2021. It advised that it granted him permission for installing an electric meter to the charging point on certain conditions regarding the specification of the meter and manner of its installation. It added that it expected the resident to provide monthly readings to the managing agent concierge during the first week of each month and that the agent would agree, log and periodically validate these readings.
The landlord wrote to the resident on 4 June 2021, advising that it would be the resident’s responsibility to pay for the costs of installing the charge point meter.
The landlord responded further to the resident on 11 June 2021. It said that this was in reply to further emails from him of 7 and 9 June 2021 and set out that:
1. its overall position remained the same and it reiterated that the resident should bring his complaint to the Ombudsman if he remained dissatisfied;
2. it acknowledged it could have done more to manage the resident’s expectations in its earlier communications;
3. the agent had agreed to rescind its payment plan;
4. it believed it had handled these matters in a reasonable manner and noted that the Property Ombudsman had awarded £500 compensation due to the agent taking too long to resolve the resident’s concerns;
5. there was no need to stop use of the charging point as the agent would not be charging a cost for this until 12 August 2021;
6. it acknowledged charging suggestions made by the resident and noted the resident would be on a meter and should liaise with the agent about which suggestion he preferred.
The resident replied to the landlord on 13 June 2021, noting it had not altered its final decision and advising he felt he could not use the charging point. The landlord responded on 21 June 2021, reiterating that there was no need to stop using the charging point as there would be no agent charges until 12 August 2021.
The resident wrote to the landlord on 25 June 2021, advising he had made no payment that month because he had stopped using the charging point and complaining that no apology or compensation had been offered.
The resident wrote to the landlord on 1 July 2021, copying this Service into the correspondence. This included concerns from him about:
1. why the agent had agreed to rescind their payment plan;
2. what would happen with the charging after 12 August 2021 and if “vindictive and unsubstantiated charges” would again be incurred;
3. the £500 compensation awarded by the Property Ombudsman was due to lack of communications on the part of the agent over 12 months and the issues were unresolved;
4. it was impossible for him to continue using the charging point as other tenants would be paying for its use.
There was further correspondence between the landlord, resident, resident’s solicitor and agent during July-October 2021 that show that:
1. the landlord queried why the resident believed he had exclusive use of the charging point and advised that a consultant would visit in early July 2021 to recommend a means of achieving the necessary metering and billing objectives;
2. the outcome of the EV consultant visit was communicated to the resident, showing that there were four charging points which were ‘first generation’ and it was proposed, as an interim measure, that meters be installed to each to definitively record output and usage;
3. the agent received a quote in mid-July 2021 for works to retrofit new smart chargers with a user billing platform;
4. the resident raised concerns from mid-July 2021 about why the landlord was disputing his ownership of the parking bay and charging point and provided evidence that he said demonstrated he was the owner;
5. the landlord continued to advise from early August 2021 that it did not believe the resident had demonstrated ownership of the charging point so it would have final say over any improvements or amendments to charging points;
6. the resident’s solicitor made a request in early September 2021 for confirmation that the residents had exclusive access to the charging point and pointed to documentation exchanged between the landlord and resident during his purchase of the property;
7. correspondence during October 2021 showed that the resident had begun to use the charging point again, the landlord had installed a check meter two months earlier and there was still some dispute as to whether the resident owned, or had exclusive rights to, the charging point.
The resident advised this Service in August 2021 that he was dissatisfied that the agent was charging a fixed fee for the electrical charging point for his car rather than charging for the actual mileage. He confirmed in September 2021 that his continued concerns were that:
1. the landlord had now advised that he did not have exclusive rights to use the parking bay and charging point which was contrary to what he purchased, the memorandum of sale and information exchanged between solicitors;
2. the landlord should have ensured it could provide means of measuring electricity consumed and set an appropriate tariff;
3. he had paid in full for his electricity used and had even inflated his actual cost by around 25% above their usual domestic tariff to avoid being accused of not having paid for his full usage;
4. he sought full reimbursement of all legal costs involved in him trying to establish his exclusive right to the parking bay and charging point (with an appropriate tariff), compensation for distress caused to him and his wife (who had been very unwell), compensation for loss of ‘quiet enjoyment’ and confirmation of his exclusive use of the parking bay and charging point.
The landlord advised this Service in September-October 2021 that it was waiting for, and then obtained, authorisation to upgrade the charging points to enable individual usage to be charged for. It subsequently informed this Service that it had told residents that the points would be free to use until ‘second generation pods’ were installed in November 2021.

Assessment and findings

The Ombudsman’s Dispute Resolution Principles are:

Be fair
Put things right
Learn from outcomes

This Service will apply these principles when considering whether any redress is appropriate and proportionate for any maladministration or service failure identified.

The resident’s initial concerns about charges he incurred for use of the EV charging point were taken up with the managing agent between mid-2019 and late 2020. The agent’s handling of these concerns has already been considered by the Property Ombudsman.
When the resident raised his concerns with the landlord in February 2021, it was on the basis that the agent had used inappropriate language in correspondence that month and that the charges he was being asked to pay were ‘punitive’. His complaint was initially focused on the professionalism of the agent but by the time the landlord responded to it, it was clear that there was still a dispute about an invoice he had received for the EV charging point electricity use.
The resident’s concerns about the agent’s conduct related to comments made to him by a member of staff in February 2021. The language used by the agent in an email of 8 February 2021 (and in an earlier email of 1 October 2020) was inappropriate and disrespectful and will inevitably have left the resident uncertain as to whether the agent was dealing with his dispute in an objective and even-handed way. Although the landlord did not make these comments itself, it was responsible for ensuring that the agent delivered services to the resident in a professional manner.
Through the complaints process, the landlord apologised for the agent’s comments and told the resident that it had sought, and obtained, reassurance from the agent on its future communications. The landlord’s actions showed that it took the resident’s concerns seriously, acknowledged there had been a failing, made it clear to the agent that this type of language was unacceptable and obtained reassurance that this would not recur in future. In accordance with the Ombudsman’s Dispute Resolution Principles, the landlord was therefore fair in its assessment of the service failure, took steps to put things right and demonstrated it had addressed the learning points.
However, on the substantive matter of the alleged unreasonable charges, the landlord failed to take ownership in the same manner. Through the initial complaint response in March 2021, the only outcome offered by the landlord was that the resident should revert to the agent about the level of charges. Given the landlord was aware that the resident had been raising these concerns with the agent since mid-2019 and had already exhausted the agent’s complaints process and that the agent had recently made inappropriate comments to him, it was unreasonable that the landlord did not positively respond to his request for it to intervene in the dispute. The agent was billing and collecting service charges on behalf of the landlord and these service charges were part of the lease agreement between the landlord and resident so it was inappropriate for the landlord to refuse to involve itself in the dispute.
In mitigation, some uncertainty over charges was inevitable given the EV charging points were not installed in a way that allowed accurate billing for usage. However, the landlord’s service charge procedures obliged it to offer explanations of service charges, consider service charge disputes through its complaints process and provide reconciled figures within six months of the end of the accounting year. The landlord’s initial approach to simply re-direct the resident back to the agent was therefore inappropriate and it was unreasonable that it did not assess information about his limited use of the charging points that he offered it at least as early as April 2021.
When the resident escalated his complaint in early May 2021, he asked for a £445 invoice to be waived and for him to be permitted a licence to install meters so accurate billing could be introduced. The landlord’s final complaint response in June 2021 confirmed that it had been accepted that the resident’s payments to date would be recognised as settlement of any charging point electricity liability up to mid-August 2021 and meters were also installed during this period (which meant the resident felt able to reinstate his use of the charging points). These actions on the part of the landlord were reasonable as it demonstrated that it was willing to use its discretion to upgrade the charging points (at no cost to the resident) and work with the agent to waive the outstanding invoice in an effort to resolve the dispute over the amounts paid for electricity usage.
In summary, although the landlord offered reasonable redress to the service failure with its agent’s unprofessional communications and implemented a resolution to the charging issue from mid-2021, its earlier unwillingness to intervene was unreasonable and it failed to identify this when it reviewed the matter through the complaints process. It was inappropriate that the landlord took no steps to assess whether it was satisfied with the level of charges the agent had invoiced the resident for between mid-2019 and mid-2021 and attempt to resolve what had become a long-standing despite between its agent and the resident.

Determination

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the resident’s concerns about charges for use of an electrical vehicle charging point.

Reasons

The landlord delayed unreasonably in giving appropriate consideration to the resident’s concerns about charges for his use of the electrical vehicle charging point.

Orders

The landlord to write to the resident to apologise for the service failure identified in this report.
The landlord to pay the resident compensation of £150 in recognition of the distress and time and trouble caused to him by the service failure in its handling of his concerns about charges for use of an electrical vehicle charging point.

The landlord should confirm compliance with these orders to this Service within four weeks of the date of this report.

Recommendations

The landlord to review its handling of this case, with reference to the Ombudsman’s March 2022 Spotlight Report on landlords and managing agents, and ensure that its staff are “regularly and transparently communicating with their residents with respect to service charges, delays in providing them and the method of calculation” even where an agent is involved.

The landlord should confirm its intentions in regard to this recommendation to this Service within four weeks of the date of this report.