Clarion Housing Association Limited (202201622)

REPORT

COMPLAINT 202201622

Clarion Housing Association Limited

18 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 response to the resident’s:
   1. Reports of a repair to the adjacent building.
   2. The related complaint handling.
   3. Objections to service charges relating to the repair.

Jurisdiction 

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
3. After carefully considering all the evidence, in accordance with paragraph 42(e) of the Housing Ombudsman Scheme (the Scheme), the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.

Objections to service charges relating to the repair

4. Part of the leaseholder’s complaint concerns having to pay for the scaffolding erected on the adjacent building within his 2020/2021 service charge bill, in order for the landlord to complete the repair. As this element relates to the payment of service charges, it is outside of the Ombudsman’s jurisdiction. The leaseholder has the right to apply to the First Tier Tribunal to have this matter considered. The First Tier Tribunal will consider whether the service charge is payable, and if so, at what level.
5. Our position is in accordance with paragraph 42(e) of the Housing Ombudsman Scheme (the Scheme) which states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, concern the level of service charge.

Background

6. The resident is the shared owner of a leasehold flat on the fifth floor of a block where he has lived since 2013. The freehold of the building is owned by the landlord. The complaint relates to moss growing on an adjacent block of flats, also owned by the landlord.    
7. The resident complained to the landlord in April 2020 that there was unsightly moss growing from the 7th floor of the block opposite. The landlord replied on 10 June 2020 and said when the repair was reported in February 2020, there was no contractor availability, so a job was scheduled two days over the 28-day target and inspected on 6 March 2020. Specialist equipment was required but due to the national Covid lockdown, the repair was not prioritised as it was not critical. Access was necessary via a neighbour’s garden and was booked for 16 June 2020.
8. The resident complained further, and a final response was issued on 12 February 2021. The landlord said that the neighbour denied access for the repair as they were shielding, but this was not followed up after the neighbour’s isolation ended. The job was then inspected on 16 September 2020 and leaks were identified which required high level access. There was then a delay in the scaffolding being booked and work was then planned to start on 16 February 2021.
9. The landlord offered total compensation of £150 to include the delay in the final complaint being responded to. The resident states that the moss residue remained, and he was seeking compensation for all residents for the delays in completing the repair on the adjacent building. 

Assessment and findings

Scope of investigation

10. The resident has said in communication with this Service that he requires compensation for several other named residents in relation to the work involved in trying to resolve the complaint. He also asks for compensation for the unnamed resident on the ground floor of the adjacent block, for the loss of their garden for over a year due to the presence of the scaffolding tower.
11. The resident’s concern for his fellow residents in respect of this issue is appreciated. However, compensation for other residents is not something that can be considered under this investigation, which relates to the resident only, as the party bringing the complaint. The Ombudsman investigates complaints which have exhausted the landlord’s complaint process, and if the other residents have complaints they wish to pursue, subject to the usual time constraints, these would be considered as a separate matter. There is no authority to consider any third parties in this investigation, especially given that the complaint was not raised to or responded to by the landlord as a group complaint. Similarly for a group complaint to be valid, all parties would need to have been affected in the same way and reached an agreement that this was the case.

Assessment

Repair

12. The lease for the resident’s property says at section 5.3 that the landlord shall repair such works that are required to (a) all structural parts of the building  including external walls of the building. Section 7 covers service charge provisions. Schedule one section one describes the premises, including balconies. Schedule nine refers to common parts which it defines as being parts of the building to be used in common by the leaseholder and other tenants. 
13. The repairs and maintenance policy effective December 2021 says at section 5.1 that non-emergency repairs will be offered the next available appointment and will be offered within 28 days of the repair being reported. Communal repairs should be appointed dependent upon the nature of the work but must be completed within 28 days.  
14. In this instance, the landlord had no availability for the repair when reported in February 2020, so the first job was booked 2 days outside of the 28-day time limit. The landlord offered £50 compensation to the resident for this initial delay. There was then a hold on all non-critical repairs due to the national lockdown, and a further delay accessing the affected area via a neighbour’s property.  Once access was possible, there was a delay in the scaffolding being booked, for which a further £50 was awarded to the resident.
15. The resident had requested that the walls be jet washed, and the landlord explained why this would not be done at a high level due to the possibility of damage to the brickwork. Evidence submitted by the landlord dated January 2023 noted that moss was wire brushed off brickwork in February 2021 but appreciated this would not clean the brickwork completely, so it was stained, but there were limitations without power washing which could lead to more repair issues.
16. The landlord noted it attended the site in November 2022 and found further moss growing on the brickwork due to a likely blockage. The landlord had arranged for a contractor and scaffolding to complete unrelated brick work repairs, which would allow an inspection of the guttering related to the complaint and to clean the affected brickwork and moss build up. The landlord advised it would install a guard over the gutter outlet to prevent further blockages, and that this was scheduled for February 2023.
17. The reasons for the delays in resolving the repair in early 2020 are reasonable given the circumstances. The landlord offered £50 for the delay in assigning the repair initially, due to a lack of contractor availability, and a further £50 for the delay in the scaffolding being erected once access was possible. This was a reasonable remedy for such a delay.
18. This Service has a very specific role in considering whether a landlord has met its obligations to the resident, in line with any relevant policies and procedures, and taken reasonable steps to resolve the complaint. It is not the role of this Service to decide whether the guttering on the adjacent wall  required repair, but rather to determine whether the landlord responded to the resident’s reports of problems in a reasonable and competent manner.
19. In this instance, there is no evidence of any responsibility on the landlord to respond to repairs reported by the resident outside of his own building. Occupants in the affected building (providing they are subject to the same repair policy) would be entitled to have reported communal repairs completed within 28 days, and the resident is entitled to the same in his own building, in accordance with his lease and the repair policy. There is nothing in the information submitted to the Ombudsman to indicate that the landlord has an obligation towards the resident who has brought the complaint in this instance regarding a separate building to that which he resides in.
20. The landlord has considered the resident’s complaint in accordance with its repair policies up to the final response, albeit the resident feels that the problem has returned, and the landlord has explained that further work was planned. The impact on the resident of the outstanding repair would not  reasonably affect the day-to-day use of his property or quality of life, albeit the visual effect is appreciated. Ultimately, the landlord has offered £100 in respect of service failure relating to the repair, although there was no obligation on it to so. 
21. Accordingly, this investigation finds no grounds for the landlord to pay further compensation to the resident in respect of its repair to the adjacent block of flats. The Ombudsman notes that the resident has reported being stressed by the issue, and this is appreciated. However, there are no grounds under which the Ombudsman can request further action be taken in accordance with the policies and lease relating to the resident’s property. The landlord has therefore made ‘reasonable redress’ in respect of this aspect of the complaint, prior to the matter being escalated to this Service.
22. Having engaged with the resident in respect of the repairs on the adjacent block, it would be reasonable that the landlord advises the resident what action has been taken in relation to the gutters, further to the evidence that additional repairs were due to be made in February 2023. 

Complaint handling

23. The complaints policy effective December 2020 says that stage one complaints should be resolved within 10 working days, and at ‘peer review’ stage it aims to resolve the issue in 20 working days.
24. In this instance, the first complaint was submitted by the resident on 22 April 2020 and the response issued on 10 June 2020, 22 days outside of its published response time for first stage complaints. No offer of a remedy was made for this. Although it is understood that this was in the early stages of the national lockdown, there was no update given to the resident and moreover, there was no acknowledgement of the delay in the final response.
25. The first complaint response did not explain the complaint process. Although the Housing Ombudsman’s Complaint Handling Code was not in effect at the time of the first response, it is good practice that the response should clearly offer the resident details of how to escalate the matter to stage two if they are not satisfied with the answer.
26. The landlord did make an offer of compensation in respect of the delay in the final response being issued. It has not been shown what date the complaint was escalated, but it is noted that on 3 January and 25 January 2021, the resident advised he remained dissatisfied, if the Ombudsman accepts that the escalation was on 3 January 2021, this would make the landlord’s stage two response of 12 February 2021 nine working days late, which is not excessive in itself, but would have caused an inconvenience, for which the landlord offered £50.
27. It is reasonable in all the circumstances that a further payment be made to reflect the delay in the first stage complaint response and lack of clear escalation rights. The sum of £50 would fall into the Ombudsman’s range of remedies for instances of service failure resulting in some impact but which may not have significantly affected the overall outcome, such as in the instance of the stage one response delay.

Determination

28. In accordance with paragraph 53 (b) of the Housing Ombudsman Scheme the member has offered redress to the complainant prior to investigation which, in the Ombudsman’s opinion, resolves the complaint about the repair satisfactorily.
29. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure in respect of the landlord’s response to the resident’s complaint.
30. In accordance with paragraph 42 (e) of the Housing Ombudsman Scheme, the complaint about the payment of service charge is outside the Ombudsman’s jurisdiction.

Orders

31. Within four weeks of the date of this determination, the landlord should:
    1. Pay the resident £100 in respect of the complaint handling failures. This is inclusive of the landlord’s previous £50 offer, which can be deducted if it has already been paid.
32. The landlord should provide evidence to this Service that the above order has been complied with, within four weeks of this determination.

Recommendations

33. It is recommended that the landlord pay the £100 it offered for the delay in the repairs if it has not done so already, as this is the basis on which reasonable redress was found.
34. It is also recommended that the landlord take steps to resolve the issue on the adjacent building and report back to the resident, as it has done previously, to provide a conclusion on the matter.