Clarion Housing Association Limited (202307103)

REPORT

COMPLAINT 202307103

Clarion Housing Association Limited

23 August 2024

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

The complaint is about the landlord’s response to the resident’s concerns about the:
1. Level of service charges for the inspection of the communal emergency installations;
2. Testing of the emergency lighting;
This report will also assess the landlord’s complaint handling.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (the Scheme). When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
On 19 November 2021, the resident asked the landlord for a breakdown of the service charges for the inspections of the communal emergency lighting and smoke alarm in his building. Within his correspondence, he said he did not feel the charge for this service was fair or reasonable. The landlord responded to him on 20 January 2022 and stated that its fire protection arrangements fulfilled its obligations to “maximise efficiencies and achieve greater value” for its residents. The resident raised a formal complaint on 2 February 2022, in which he stated that he would not pay the “incredibly excessive fees for fire protection” unless he was satisfied by its response. He added that the fees were “excessive” and were “not in line with the service charge code”.
In its stage 1 response, the landlord provided the resident with a breakdown of the charges for its safety inspections. In its stage 2 response it stated that it was not involved in the decision to install the emergency lighting in the block and only maintained what was already there. It explained that, irrespective of the number of properties in a building, the service charge was split between the households. It added that, as the costs were split between only 2 flats, they were “deemed expensive”; however, it would not be changing its process.
While the resident’s concerns are noted, paragraph 42.d of the Scheme sets out that the Ombudsman may not consider 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.
The First Tier Tribunal Property Chamber (the FTT) deals with residential leasehold disputes between leaseholders and their landlords. The FTT can make determinations on all aspects of liability to pay a service charge and/ or administration charge, including by whom, to who, how much and when a service charge is payable. In order to decide liability, the FTT also decides whether service charge costs have been reasonably incurred and, if so, whether the standard of any services or works for which the costs are charged is reasonable. As part of that process, the FTT is able to forensically examine service charge accounts in detail. Accordingly, where there is a dispute about such matters, it will be more appropriate for the matter to be considered by the FTT.
Therefore, the complaint about the landlord’s response to the resident’s concerns about level of service charges for the inspection of the communal emergency installations falls outside of our jurisdiction. The resident may wish to refer his concerns to the FTT accordingly.

Background and summary of events

The resident is the leaseholder of a first floor flat, situated in a building comprising of 2 separate properties. He pays a service charge to the landlord, which includes a fee for the regular inspection of the communal smoke alarm and emergency lighting.f
On 1 December 2021, the resident wrote to the landlord and stated that:
1. He had received a part breakdown of the service charges but was still unhappy with the information provided.
2. He had read the British standard for the emergency lighting of premises (BS 5266), which stated that servicing needed to be done annually rather than 4 times a year.
3. It was “unacceptable for the landlord to carry out “unnecessary” work.
4. He wanted a breakdown to show how it could cost £144 to test one fire alarm and an emergency light.
5. He wanted the landlord to remove the annual service charge for testing the emergency lighting, which he said did not need to be performed.
The landlord responded to the resident on 20 January 2022 and stated that:
1. It had attached a copy of his latest service charge letter, which listed the services he had paid for.
2. It had a statutory duty to ensure the safety of its buildings.
3. It was committed to following a risk based approach and completed inspections and servicing that satisfied both regulation and wider building safety guidance.
4. The fire equipment contracts started in 2019 after going through “a stringent procurement process, which involved tenant consultation”.
5. Its fire protection arrangements fulfilled its obligations to “maximise efficiencies and achieve greater value” for its residents.
On 2 February 2022, the resident responded and stated that:
1. Its response had not addressed his concerns or issues.
2. £489.60 per year for 1 emergency light and 1 smoke alarm “could not be further from efficient and good value”.
3. He expected the landlord to provide a more detailed response to his email of 1 December 2021 and wanted to see a breakdown and invoices for the works that had taken place.
On 10 February 2022, the landlord acknowledged the issues the resident raised in his emails as a stage 1 complaint and discussed these with him via telephone on 15 February 2022. It sent him its stage 1 response on 22 February 2022. This stated that, as per its safety compliance policy, it tested its emergency lighting systems quarterly. It added that this had been its policy for a number of years and attached a full breakdown of his service charge invoice. This showed the individual costs for the quarterly service and maintenance of the emergency lighting.
The resident responded to the landlord on 24 February 2022. He stated that:
1. He had requested the invoices and breakdowns for the works undertaken but had yet to received them.
2. The tables the landlord had provided in its letter were not breakdowns or invoices, and he wanted to know what the costs were based on.
3. As part of his job, he had witnessed smoke alarm tests. The testing of the smoke alarm and emergency light were “at most” 2 minute procedures.
4. There was one emergency light in the building, which needed to be tested annually rather than 4 times per year.
5. It would be “more efficient and economical” for the contractor to test several properties at once.
6. He “refused” to accept the landlord’s response and wanted his complaint to be reviewed by a senior manager.
On 20 May 2022, the resident wrote again to the landlord to say that, following his escalation request, he was still waiting for a response, 3 months later. He added that, as he had previously stated, he would not pay for the “unnecessary tests” until he received a satisfactory response. The landlord acknowledged his escalation request on 31 May 2022 and, on 22 July 2022 it sent him its stage 2 response. This stated that:
1. It was sorry for the delay in providing a response, which was the result of a cyber security incident.
2. As per its health and safety compliance policy, and for operational purposes, it carried out 25% tests per visit, which was why there were 4 visits pet year.
3. This had been its policy for a number of years and it would not be changing it.
4. It had not been involved in the decision to install the emergency light in the building and only maintained what was already there.
5. The costs were split between the 2 properties and the contract was for a fixed price, a breakdown for which it included as part of its response.
6. It offered £50 compensation for the delay in responding to his stage 2 complaint.
On 1 September 2022, the resident wrote to the landlord to say that, despite chasing it on multiple occasions, he had still not received a breakdown of costs or invoices that he had previously requested. On 20 February 2023, he wrote to say that he would be withholding payment of the service charge for the emergency lighting tests. Furthermore, he would do this until the landlord clarified why the light was installed in the communal hallway and why tests were being performed 4 times per year.
The resident approached the Ombudsman on 26 May 2023 for assistance. He said that he believed that the emergency lighting was installed for vulnerable residents and that he should therefore not be expected to pay for it. He also reiterated the concerns he had raised with the landlord and expressed his view that the service charge for the tests was “excessive”.
On 21 June 2023, the resident sent the landlord a further email stating that he had repeatedly asked for additional information, which it had not provided. On 11 July 2023, the landlord sent the resident what it referred to as an “addendum” to the “peer review final response”. It stated that:
1. It had reviewed his query following the conclusion of the stage 2 complaint and apologised for the delay in providing him with a response to his further concerns.
2. The installation of emergency lighting was required in order to keep the residents safe and the area lit in the event it was needed.
3. The lighting was fitted by its building safety team following recommendations from a fire risk assessment carried out in line with legislation.
4. The lighting had not been recommended as a result of another resident or disability.
5. It was “duty bound” to service and maintain the lighting in accordance with statutory guidelines. This included a full 3 hour annual service, where batteries were drained down and the system brought back up to full working order. In addition, quarterly “flick tests” were carried out by its appointed fire safety equipment contractors.
6. The contract was on a fixed price, irrespective of the number of properties in a building and the service charge was split between the households.
7. As a gesture of goodwill, it offered a refund of £240 for the fire safety equipment service charges.
8. It would be reprocuring its contracts the following year and would ensure smaller sites were accounted for.
9. It offered a further £50 compensation for the delay in responding to the further concerns the resident raised following receipt of his stage 2 response.

Assessment and findings

Legal and policy framework

The lease states that the landlord is responsible for keeping clean and reasonably lighted the common parts of the building, including the main entrances, passages, landings and staircases. The lease also allows the landlord to recoup the costs of complying with its obligations with regard to the provision of communal lighting.
The landlord’s website states that the service charge for fire protection is for the cost of service and maintenance of fire protection measures such as emergency lighting and alarms. The landlord has a statutory duty to ensure the safety of its blocks and is “committed to following a risk based approach”. It will “complete inspections and servicing that satisfies both regulation and wider building safety guidance”.
The landlord’s fire safety equipment policy states that it will ensure fire detection, alarm equipment and emergency lighting are fit for purpose, and kept in good working order in accordance with BS 5839. It will ensure that an appointed competent contractor routinely services the emergency lighting on a quarterly and annual basis.
At the time of the resident’s complaint the landlord was operating what it referred to as its “interim” complaints policy. This was a 2-stage process and was operational during the time the landlord was experiencing the impacts of the cyber incident. The procedure states that both stage 1 and 2 complaints must be acknowledged and logged at within 10 working days of receipt. It aims to respond to new complaints received since 17 June 2022 within 20 working days of the complaint being logged. It refers to the stage 2 as a “peer review”, which it will aim to conclude within 40 working days.
Its complaints policy goes on to state that, if it is unable to resolve the peer review within this time, it will:
1. Contact the resident and explain why it is unable to resolve the peer review.
2. Provide a timescale of what is involved in order to resolve the peer review and, if possible, approximately how long it will take.
3. Agree with the resident the frequency of keeping them updated and their preferred method of communication.
The landlord’s Compensation Policy allows it to award discretionary compensation:
1. Awards of £50 to £250:
  1. Remedies in the range of these amounts may be used for instances of service failure resulting in some impact on the resident.
2. Awards of £250 to £700:
  1. Remedies in the range of these amounts may be for cases where the landlord finds considerable failure but there may be no permanent impact on the resident.
3. Awards of £700 and above:
  1. Remedies in this range will be appropriate when there has been a significant and serious long-term effect on the resident, including physical or emotional impact, or both.

Testing of the emergency lighting

The evidence shows that in its stage 1 response the landlord gave the resident a breakdown for the costs it charged for inspection of the communal emergency lighting. It then provided a further and more detailed breakdown of individual costs as part of its stage 2 response, which was appropriate. There is nothing in the records to indicate that the landlord had sent the resident copies of invoices for the inspection work, as he had requested. The landlord may have had its reasons for not providing this information. However, it should have explained to the resident why it was unable to do so and made a record of this.
Furthermore, in its response to the resident’s initial enquiries dated 20 January 2022, it stated that the fire equipment contracts started in 2019 after going through a “stringent procurement process”, which involved tenant consultation. It is unclear whether the resident was involved in the consultation process. The landlord could reasonably have offered to provide the resident with details of the procurement process. This may have helped provide some clarification around the reason for the frequency of safety inspections. That the landlord did not do so was a shortcoming in its response and a missed opportunity to try to resolve the resident’s concerns.
The resident queried why the landlord tested the emergency lighting 4 times per year contrary to the British standard recommendation, which was reasonable. In its stage 1 response, the landlord stated that this had been its policy for a number of years. In its stage 2 response, it went on further to state that, as per its health and safety compliance policy, it explained that it carried out 25% tests per visit, which was why there were 4 visits per year. It repeated that this had been its policy for a number of years and added that it would not be changing its process.
It was appropriate that the landlord was following its fire safety equipment policy. However, it could reasonably have given the resident a more comprehensive response. It could have explained what was meant by carrying out 25% tests, why this was necessary on a single emergency light and it could have also provided an explanation of why it could not carry out the full test in one single annual inspection. This would have helped clear the ongoing confusion around why the landlord was going above the British standards requirements, which meant the resident was paying more towards his service charge than he expected.
The landlord has not provided a copy of its health and safety compliance policy. It would have been reasonable for it to have made this available to the resident as this may have helped better explain why 4 visits per year were necessary. However, the records show that the landlord reviewed its fire safety equipment policy every year, which was appropriate. Given the resident’s concerns about the costs of the inspections for the size of his building, and the fact the landlord acknowledged that it was deemed expensive, it could have offered to reconsider this part of its policy during its annual review, and explore whether it could take smaller blocks into consideration. Its assertion that it would not be changing its process because it has followed it for a number of years would have come across to the resident as dismissive and inflexible. This demonstrates that the landlord failed to take a customer focused approach or to properly manage his expectation, and would have led to further frustration and worsening of the landlord resident relationship.
While the landlord’s obligations to ensure the safety of its residents are acknowledged, the landlord could have done more to reassure the resident about the necessity for its testing programme. The evidence shows that it was only after conclusion of the complaints process, and involvement by the Ombudsman that the landlord provided the resident with a fuller and more comprehensive response. It explained that it carried out a full annual service in addition to 4 “flicks tests” per year, that the contract was on a fixed price, irrespective of the number of properties, and that it would ensure smaller blocks were accounted for during its forthcoming procurement process. It also offered the resident a refund of his service charge as a “goodwill gesture”.
It would have been reasonable for the landlord to have provided the resident with this information at the outset, or earlier during its complaints process. The lack of sufficient efforts to conduct a proper complaint investigation meant the resident was put to unnecessary additional time and trouble to get the answers he wanted. Had the landlord addressed the resident’s concerns at an earlier stage, this could have avoided the inconvenience of him having to repeatedly contact it for more information. The landlord’s poor communication meant the resident had to go through avoidable effort to get a detailed response, which was a failing. It was also inappropriate that the landlord failed to explain what its £240 refund was in recognition for. This could have further served to reinforce the resident’s perception that the frequency of safety testing was unnecessary.
Although the Ombudsman will not order any additional compensation above the £240 service charge refund the landlord had offered, we have made a finding of maladministration. This is because, as the landlord had offered the refund following conclusion of the complaints process, and after the resident approached the Ombudsman, this cannot be considered reasonable redress. Furthermore, it did not provide the resident with an explanation of why it was offering him the refund. It should also be noted that the landlord could reasonably have provided more information and a better explanation of the tests at various points before and during the complaints process.

Complaint

It is noted that the landlord acknowledged the resident’s stage 1 complaint within 10 working days, and responded within 20 working days. This was appropriate and in line with its interim complaints policy.
However, when the resident escalated his complaint on 24 February 2022, it was not until 31 May 2022, and after the resident chased it for a response on 20 May 2022, that it sent him an acknowledgement. This was excessively outside its timescale of 10 working days to acknowledge and log complaints.
Despite informing the resident in its stage 2 acknowledgement that it would respond to him within 20 working days, it did not issue its response until 22 July 2022, 37 working days later. It is unclear why the landlord did not advise the resident of the 40 working day timescale for peer reviews it was operating at the time. In providing misleading information in its acknowledgement, the landlord failed to manage the resident’s expectations about when he would receive a response. This would have caused confusion and meant the resident had to chase for an update and approach the Service for assistance. This could have been avoided had the landlord provided the correct information at the outset.
The delay in issuing its peer review outcome letter was excessively delayed beyond its 40 working days timescale. Furthermore, there is no evidence that the landlord sent the resident any updates to explain why the response was delayed or to provide revised timescales. This was a significant departure from its policy. The landlord has stated that the cyber security incident had partially contributed to delays during the process. Notwithstanding the cyber incident and its obvious impacts, the landlord should have had sufficiently robust systems in place to ensure residents were kept up to date. That the landlord provided the resident with misleading information about its response times and failed to contact him to inform him its response would be delayed amounts to maladministration. It also sought to extend the complaints process by issuing what appeared to be a second stage 2 response. This was a further departure from its policy. Such actions are also not in keeping with the Ombudsman’s Complaint Handling Code. The landlord offered the resident £50 compensation for the delay issuing its stage 2 response. However, this does not go far enough to recognise the delay of over 3 months outside its timescale, and the inconvenience this would have caused.

Determination (decision)

In accordance with paragraph 42.d of the Housing Ombudsman Scheme, the complaint about the landlord’s response to the resident’s concerns about the level of service charges for the inspection of the communal emergency installations is outside the Ombudsman’s jurisdiction.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s response to the resident’s concerns about the testing of the emergency lighting.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s complaint handling.

Orders

Within 4 weeks of the date of this report the landlord must:
1. If it has not done so already, arrange for the resident to receive the service charge refund of £240, as per its addendum to the peer review final response letter of 11 July 2023.
2. Pay the resident compensation of £200 in recognition of its poor complaint handling. This is in addition to the landlord’s offer of £50, which it should also pay if has not already done so.

It is the Ombudsman’s position that compensation awarded by the Service should be treated separately from any existing financial arrangements between the landlord and resident and should not be offset against arrears, where they exist.

Provide a written apology to the resident from a senior member of staff for the failures identified in this report, in line with the Ombudsman’s remedies guidance.

Recommendation

The landlord to ensure the resident is involved in any future consultation regarding the procurement of safety testing in his building. It should also invite him and any other residents in his block to be involved in the next review of the landlord’s fire safety equipment policy to ensure their views are taken into account when considering any changes.