Clarion Housing Association Limited (202114416)

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REPORT

COMPLAINT 202114416

Clarion Housing Association Limited

24 October 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 complaint is about the landlord’s response to the resident’s concerns about the management and maintenance of the car parking area.

Background

  1. The resident is a shared ownership leaseholder of a flat and designated parking space. The landlord has leasehold ownership of the block of flats and parking spaces. The landlord’s ‘superior’ lease is with the developer of what is a larger mixed tenure housing estate. The access area around the parking spaces is part of the development but is not owned by the landlord. Estate services covering the communal areas are provided through a managing agent (MA).
  2. In June 2021 the resident complained to the landlord about the management of the parking area. He identified that the security bollard at the entrance to the car park, which should restrict access, had never worked properly. To secure his own parking space he installed a parking protection post, but this had been damaged on numerous occasions by an unknown car, and he had to replace the post each time. He confirmed that he had informed the MA but that it had taken no action and that it was resistant to the idea of installing CCTV. He believed the landlord should be helping to resolve the situation. When he further pursued the complaint in July 2021 he pointed out the landlord was putting no pressure on the MA despite him paying the landlord charges for estate management.
  3. The landlord’s response, confirmed in September 2021, identified that the MA had responsibility for addressing problems in the parking area and that the landlord had limited influence, though it had contacted the agent in an effort to assist. It stated the MA had no control over the damage to the resident’s own parking post. It confirmed to the resident that the MA acknowledged the problems with the existing entrance bollard and that it had repaired it on a number of occasions. Each time the system failed shortly after, which the MA believed was down to vandalism or misuse, so it was now investigating a more robust barrier system. It stated that the MA was also considering CCTV installation but that this would be an improvement and the costs involved would likely result in a formal consultation process as these costs would have to be recharged to residents. The landlord was therefore unable to provide a timescale for this. It awarded compensation of £50 to the resident for the delay in responding to the complaint.
  4. In referring the matter to the Housing Ombudsman, the resident stated that the resolution he was seeking was the installation of CCTV to the parking area, a new parking barrier at the entrance and compensation.

Assessment and findings

  1. It is not clear when the resident’s concerns regarding parking problems were first raised with the landlord. It is noted in the landlord’s stage 1 complaint response that the resident’s concerns included that whenever he raised the matter with the landlord he was referred back to the MA. This is not denied by the landlord in its response, although the evidence provided to the Ombudsman does not include any records showing contact with the landlord on this matter until the formal complaint.
  2. The evidence shows that the resident raised concerns about the car parking area with the MA from August 2020 and the formal complaint was made in June 2021. Thus, it is reasonable to conclude that the landlord had been aware of the resident’s reports for a considerable period preceding the formal complaint. It is a shortcoming in the landlord’s investigation of the complaint that for the length of time it had known about the problems, it did not thoroughly investigate it, as this should have been relevant to the landlord’s response.

Car park entrance security bollard

  1. The superior lease identifies that management and maintenance of the communal areas will be provided by a management company. The management company has the right to appoint a MA to deliver the service. Where the management company does not conduct this role it falls upon the developer to appoint the MA, which is what has happened in this instance. The landlord pays service charges to the MA for the estate costs and the landlord charges a service charge to the resident for these costs. 
  2. The car park entrance security bollard was an original feature of the estate and is part of the estate communal area. This is confirmed by the boundary markings on the plan in the superior lease. The MA therefore had responsibility for maintaining this area in respect of the superior lease agreement. However, in the resident’s lease there is a covenant identifying that where required by the leaseholder, the landlord will enforce the covenants in the superior lease, where they affect the leaseholder’s premises. The resident’s lease does identify his parking space as part of his premises. The lease states that the landlord is required to carry out enforcement, provided that the leaseholder indemnifies the landlord against all costs relating to the enforcement. The landlord should have explained these leasehold relationships in its complaint response. However, it simply identified that the MA was responsible for concerns with parking and that it only had ‘limited influence’ over the actions of the MA.
  3. As the estate services are covered by the superior lease, then failures could be contractually enforced by the landlord or pursued through a first-tier tribunal (and in this instance the MA was a member of the property ombudsman scheme so this was another route the landlord could decide to take). The landlord failed to explain this to the resident. It is vital to clarify that this Service has not required the landlord to make an application to the tribunal as this is not within the Ombudsman’s remit to do. However, it is expected that the landlord would have presented all the options, as provided under the lease, to the resident. This would have enabled the resident to confirm whether he was happy for the landlord to pursue the matter in accordance with any of these options in the knowledge that he would have been responsible for the costs.
  4. As well as looking at the relevant legal obligations, the Ombudsman assesses what it considers is reasonable and fair in the circumstances. The evidence shows that it was accepted by all parties that there had been problems with the entrance bollard for about four years. It also shows that there was consultation by the MA regarding problems with the parking area at least as far back as August 2020. The landlord’s response to the resident did identify factors showing the MA had attempted to resolve the situation by carrying out repairs and planning to consult on upgrading the barrier. However, the significant length of time the problem had continued for should have prompted the landlord to explain to the resident whether it felt the MA had complied with the lease obligation to maintain the parking access area.
  5. In respect of both the planned upgrade of the entrance parking bollard and the request for CCTV, covered further below, a reason given for the delay in making a decision was that the MA wanted to wait until resident directors had been appointed to the management company. The superior lease makes the landlord a member of the management company, though it appears from the lease that a right to apply for membership is assigned to its leaseholders. This would potentially give residents direct influence over the activities of the MA. It is not clear from the evidence why there was a delay in establishing resident appointments to the management company and the company taking on responsibility for estate services and the MA. The landlord should have explained its position on this matter in its response to the resident.

Request for CCTV to cover parking area

  1. As CCTV was not part of the estate services when the leases were signed, this would represent an addition to the estate services, and therefore was not something that the MA or the landlord was required to install. There was therefore no breach of the superior lease in the MA not progressing the matter.
  2. It is reasonable to expect that a responsible social landlord would seek to represent the interests of its residents even where it has no direct control over the actions of a MA. However, it should be noted that in this instance the MA had committed to consulting on the matter. It was therefore understandable that the landlord accepted this as the way forward as the costs would need to be passed onto all residents and there may be different views on the priorities for CCTV locations. As mentioned above though, the delay in decision making on this matter was linked to the appointment of resident directors to the management company which is an issue on which the landlord should have provided further explanation.          

Damage to resident’s parking post    

  1. It was reasonable for the landlord to confirm to the resident that the MA could not be held responsible for damage to the personal parking post he installed. The leases show that the resident’s parking space is not part of the communal area and therefore the MA did not have any responsibility for the parking space. Similarly, as the resident installed the parking post the landlord would not have responsibility for covering the cost of repairs or compensating for the damage. It is understandable that the resident was frustrated about this, as he had reported the damage to the Police, and an improved entrance bollard and CCTV may have helped resolve the matter.
  2. The resident chose to install a parking post to secure his parking space, thus, it was his responsibility to maintain the post. The landlord would reasonably be expected to ensure that the MA, which was responsible for ensuring managing the parking area, was maintaining the barrier which was in place to restrict access to the unauthorised users. The evidence does not indicate that the landlord’s responsibility extends to barriers put up by its individual leaseholders. The landlord is, therefore, not responsible for the damage to the parking posts. Any matters of criminal damage should be reported to the Police for investigation as the resident had done on these occasions.

Conclusion

  1. Overall, there were failings in the landlord’s response to the resident’s complaint. The landlord did not fully explain the leasehold relationships governing the management of the parking area and the options for enforcement, it also did not properly assess the resident’s concerns against the responsibilities in the leases. There is also no evidence that the landlord contacted the developer for a quicker resolution of the matter when it became apparent, as stated in the complaint response, that the developer did not intend to take action towards seeking a long term solution to the issue of the access barriers. This was identified as a cause of delay in progressing some issues.  
  2. The landlord’s offer of compensation to the resident was in acknowledgement of the delay in responding to the formal complaint. It has however not acknowledged the shortcomings summarised in the preceding paragraph, for which this Service finds that compensation is warranted.  
  3. It is noted in the resident’s correspondence with the Ombudsman that he had additional concerns following the completion of the complaints process. The Ombudsman is unable to formally investigate issues that have not progressed through a landlord’s complaints process and, as such, these issues have not been referenced in this investigation.

Determination

  1. In accordance with paragraph 52 of the Scheme, there was service failure by the landlord in its response to the resident’s concerns about the management and maintenance of the parking area.

Orders

  1. That the landlord pays the resident £150 compensation for the service failure in responding to his concerns about parking problems. This is in addition to previously awarded compensation.
  2. That the landlord writes to the resident explaining the leasehold relationships between the parties involved and its approach to enforcement of lease covenants. It should also explain its position on the management company and whether it can have any influence on progressing this. 
  3. Compliance with the above orders should be confirmed to the Housing Ombudsman within four weeks of the date of this determination.

Recommendation

  1. The landlord should strongly consider contacting the MA to seek its commitment to complete action on consultation with respect to the CCTV installation.