Gentoo Group Limited (202122445)

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REPORT

COMPLAINT 202122445

Gentoo Group Limited

30 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

The complaint is about the landlord’s handling of:
1. The installation of solar panels at the resident’s property in 2016.
2. Issuing a lease for the solar panels resulted in the resident suffering a financial loss.
3. Issuing a lease for the solar panels at the resident’s property.
The Ombudsman has also considered the landlord’s complaint handling.

Jurisdiction

What we 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 the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.

The landlord’s handling of the installation of solar panels at the resident’s property in 2016

After carefully considering all the evidence, in accordance with paragraph 42(c) of the Scheme, the landlord’s handling of the installation of solar panels at the resident’s property in 2016 is outside of the Ombudsman’s jurisdiction.
Paragraph 42(c) of the Scheme states that the Ombudsman will not investigate complaints which in the Ombudsman’s opinion: “were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising”.
When the resident raised a stage 1 complaint, on 8 October 2021, he stated representatives of the landlord had attended the property in “late 2015”, while he was at work, and his mother had answered the door. His mother was an assured tenant of the landlord at the time and the resident was a household member. The resident said:
1. The landlord’s representative had said that it was installing solar panels on all of the landlord’s properties;
2. His mother was vulnerable and “felt quite pressurised” at being told she “had to have this done”;
3. The landlord installed solar panels in January 2016.
When the landlord issued its stage 1 complaint response on 25 October 2021, it said that it was unable to investigate that part of the resident’s complaint as the contractor no longer worked for it. There is no evidence that the resident made a complaint about how the landlord handled the installation of the solar panels in 2016, in a reasonable period of time. This Service has not seen evidence that indicates that the resident was unable to make a complaint about the landlord’s handling of the installation of solar panels within a reasonable time.
For this reason, the resident’s complaint is not within the Ombudsman’s jurisdiction to consider. However, the resident’s complaint about the landlord’s handling of issuing a lease for the solar panels when it sold the property to the resident has been considered (complaint 1c above). This is because the issue only became apparent in 2021, when the resident wanted to sell the property. The resident raised a complaint within a reasonable time after he became aware of the issue.

The resident’s concerns that the landlord’s handling of issuing a lease for the solar panels resulted in the resident suffering a financial loss.

After carefully considering all the evidence, in accordance with paragraph 42(g) of the Housing Ombudsman Scheme, the resident’s concerns that the landlord’s handling of issuing a lease for the solar panels resulted in the resident suffering a financial loss, is outside of the Ombudsman’s jurisdiction.
Paragraph 42(g) of the Scheme states that the Ombudsman will not investigate complaints which in the Ombudsman’s opinion: “concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure”.
When the resident asked for his complaint to be considered at stage 2 of the complaint process, on 27 October 2021, he said that the landlord’s handling of the matter, and the issues with the lease, had caused the purchase of his property to fall through. He then had to accept a “much lower” offer at a “loss of £3,000”. When asking this Service to investigate his complaint on 18 January 2022, the resident said that the landlord’s handling of the matter resulted in “considerable amount of monies lost” due to the “devaluation” of his property.
Resolving such a complaint requires a binding decision about whether the landlord’s actions resulted in any liability for the financial loss the resident claims to have suffered. An assessment to quantify the financial loss suffered would also be needed. It has therefore been determined that this aspect of the resident’s complaint is best suited for consideration by a court because a court can make a binding decision on liability and quantity any loss suffered. The resident may wish to seek independent legal advice on making a claim in relation to the financial loss he claims to have suffered.

Background

The resident’s mother was an assured tenant of the landlord up until 10 May 2016, when she purchased the property, jointly with the resident, as part of a ‘preserved right to buy’. The landlord had installed solar panels on the roof of the property shortly before it completed the sale to the resident.
The landlord does not have any recorded vulnerabilities for the resident. The resident’s mother, who he jointly owns the property with, and is a household member, was described by the resident as vulnerable throughout the complaints process.

Summary of events

The resident emailed the landlord on 3 February 2021, and asked whether he owned the solar panels on the property, or the landlord did. He said that he wanted to put the property on the market so needed to know who owned the solar panels.
The landlord investigated, during February 2021, and found that it owned the solar panels, and had leased them to the resident when he bought the property. The landlord informed the resident of its findings in an email of 24 February 2021 and said that he would receive the “lease document” for his consideration by the end of the week.
The resident emailed the landlord on 24 February 2021 and asked if there would be any charges or fees associated with the lease of the solar panels. The landlord responded on 1 March 2021, and said it had confirmed with its legal team that there would be no charges associated with the lease.
The resident’s solicitor (Mr A) emailed the landlord on 7 September 2021 and said that he had made an application to register the lease with Land Registry, but land registry required further information from the landlord. The landlord provided the relevant information to the resident’s solicitor on 16 September 2021.
The resident emailed the landlord on 4 October 2021 and asked it to confirm:
1. When the landlord received the lease from Mr A for it to sign;
2. When the landlord returned the lease to Mr A;
3. If it had received any further queries from Mr A, after 7 September 2021;
4. When Mr A requested payment from it for the lease;
5. When it made the payment to Mr A to register the lease.
The landlord responded on 5 October 2021 and said that because the resident had a solicitor acting on his behalf in relation to the lease, it would need to correspond with Mr A directly. This was because of “professional conduct rules”. It is unclear, from the evidence available, whether Mr A put the resident’s queries, outlined above, to the landlord.
The resident wrote to the landlord on 8 October 2021 to make a complaint and said:
1. He was dissatisfied with the landlord’s handling of the sale of the property in 2016, as he should have received a lease for the solar panels, as part of the purchase;
2. On receiving a draft copy of the lease on 5 March 2021, he contacted the landlord for advice and was told to seek legal advice;
3. He had later been told by the landlord that it would be quicker for his solicitor to deal with the registration of the lease with the land registry. His solicitor had been “surprised” at this, as it was “the responsibility of the landlord” to register the lease;
4. He was concerned that he had not been provided with the relevant certificates when the solar panels were installed;
5. There was a delay in the landlord making the relevant payments to his solicitor to register the lease. After a conversation with the landlord about this, he was asked to put the request in writing. When he put the query in writing on 4 October 2021, the landlord’s response was to advise him to go through his solicitor. He was dissatisfied with this approach by the landlord;
6. He was concerned that the landlord’s handling of the matter led to delays in completing the lease, and he was unhappy that it had taken until 17 September 2021 to complete. This was 8 months after he had received the draft, and over 5 years after it should have been issued in the first instance;
7. He felt it had not handled the issues with the land registry well;
8. Its handling of the matter had caused him a significant amount of “angst and distress”;
9. The sale of his property was at risk of falling through, due to the delays.
The landlord acknowledged the resident’s complaint on 13 October 2021 and issued its stage 1 complaint response on 25 October 2021, and said:
1. When the solar panels were installed in 2016 it had not informed its legal team, which meant that a lease was not created, it apologised for this;
2. Due to professional conduct rules, the advice it gave about queries being made through the resident’s solicitor was correct, as this was “good practice” when dealing with legal matters;
3. It was satisfied that the relevant certification was sent to the resident’s solicitor in 2016, and it had resent the electrical certificate in May 2021;
4. It had investigated the length of time the resident had to wait for a payment and found it to be unacceptable, and apologised for this failing;
5. It was of the view that the issues with the land registry and the lease were “out of [its] control”;
6. It appreciated and understood that the resident had experienced “angst and distress” over its handling of the matter, and that its “service fell short on this occasion”;
7. It advised how to escalate the complaint, if the resident was dissatisfied with its response.
The resident emailed the landlord on 27 October 2021 and asked the landlord to escalate his complaint to stage 2 and said:
1. He thanked the landlord for its apology, but felt that alone did not make up for its “mistakes and negligence”;
2. He had to chase several members of staff from different departments for information when dealing with the matter of the lease;
3. He disagreed that the issues with the land registry were out of its control, as the requests made by the land registry were straightforward standard requests. He believed the landlord was responsible for registering the lease, and had it taken responsibility, the delays would have been avoided;
4. He asked for £3,000 in compensation to reflect the financial losses and detriment he had experienced.
The landlord sent its stage 2 complaint response on 23 November 2021, and said:
1. As soon as it became aware there was no lease for the solar panels action was taken to resolve the situation;
2. As stated in its stage 1 complaint response, it was the responsibility of [the resident’s legal representative to handle all enquiries during the process;
3. It was satisfied that it had acted appropriately and within a reasonable timescale and was unable to uphold the resident’s complaint;
4. If the resident was not satisfied with its response, it encouraged him to seek independent legal advice.
The resident contacted this Service on 18 January 2021 and asked us to investigate his complaint. He said that he believed the landlord should have offered him compensation to reflect the “stress and angst” caused by its handling of the matter.
The landlord provided this Service with an explanation of its position on 10 March 2022, and said:
1. The fact that it did not issue a lease when the resident purchased the property in 2016 was an “administrative oversight”;
2. It should have suspended improvement works when it received the right to buy application, but due to an “administrative error” it had installed the solar panel during the right to buy application process.

Assessment and findings

Relevant obligations, policies and procedures

The landlord’s compensation policy states that compensation will be considered when a complaint is upheld. Compensation “will only be paid if the resident has been substantially inconvenienced[…] as a result of action or inaction” by the landlord.
Section 6.2 of the ‘code of conduct for solicitors’ states that a solicitor should not “act in relation to a matter or particular aspect of it if you have a conflict of interest or a significant risk of such a conflict”.
The landlord’s complaints policy states that it will acknowledge stage 1 complaints within 1 working day of receipt, and aims to issue responses within 10 working days. It will acknowledge stage 2 complaints within 1 working day and issue a response within 20 working days. Stage 2 complaint responses should advise the resident that it is the final stage in its procedure and how to take their complaint to the Ombudsman, if they are dissatisfied with its response.

The landlord’s handling of issuing a lease for solar panels at the resident’s property

The landlord’s ‘preserved right to buy’ policy is silent on the matter of solar panels, but it is reasonable to expect that solar panels would either be sold, or leased to the buyer. The landlord has accepted that it should have issued a lease for the solar panels when it sold the property to the resident in 2016. Its failings in this regard are undisputed, and the landlord has cited an “administrative error” which led to the issue. It is evident that this matter caused confusion and distress for the resident when he came to sell the property.
Where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this, the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s dispute resolution principles: be fair, put things right and learn from outcomes.
The landlord decided to lease the solar panels to the resident for no charge, and also paid the associated land registry fees, through the resident’s solicitor. This was a reasonable approach in the circumstances, given its admitted failings in relation to the matter. The landlord sought to minimise the impact on the resident by reducing any cost implications for him, which was appropriate in the circumstances.
When the resident raised a query about the draft lease with the landlord, he was advised that he should seek his own independent legal advice. The resident raised a concern about this advice from the landlord in his stage 1 complaint. The officer who gave this advice, on behalf of the landlord, was from its legal department which was overseeing the lease process. As the officer was acting on behalf of the landlord in a legal capacity, it would have been inappropriate for them to give the resident advice about the lease.
It was reasonable for the landlord to advise the resident to seek his own legal advice, in line with the code of conduct for solicitors. Giving the resident legal advice about the lease may have presented a ‘conflict of interest’. It is evident that the resident felt the landlord was being obstructive by not discussing the lease with him. The landlord used its complaint responses to manage the resident’s expectations about this matter, which was appropriate in the circumstances.
The resident’s complaint letter, of 8 October 2021, expressed a concern that after the issue of the lease was identified, it took a further 8 months for the matter to be resolved. The landlord issued the resident with a draft lease in March 2021, and the matter remained unresolved until September 2021. It is noted that matters in conveyancing are often protracted, due to a number of factors. However, it is evident that failings on the part of the landlord contributed to the delay in completing the lease. It is clear from the evidence that the landlord put the onus on the resident, and his solicitor, to progress the matter. Given its admitted failing in not issuing the lease in the first instance, it would have been reasonable to expect the landlord to have taken a greater level of ownership. A more proactive approach from the landlord may have sped up the process.
The landlord’s stage 1 complaint response admitted a failing by not issuing a lease for the solar panels when it sold the property to the resident in 2016. The landlord apologised for this, which was appropriate in the circumstances. It is unclear why the landlord did not offer the resident any redress in the form of compensation. The landlord’s compensation policy states that compensation will be considered when a complaint is upheld. Compensation “will only be paid if the resident has been substantially inconvenienced[…] as a result of action or inaction” by the landlord. The landlord acknowledged the “angst and distress” the resident experienced and accepted its “service fell short”. It is therefore reasonable to expect the landlord to have offered the resident compensation for its admitted failing. Or, in line with its compensation policy, explain to the resident its considerations about offering compensation, and a clear explanation of why it had decided not to.
The landlord’s stage 1 complaint response also identified a failing in its handling of a payment to the resident’s solicitor. It accepted that the payment to the resident’s solicitor took longer than was reasonable. Again, the landlord appropriately apologised for this failing, but failed to offer redress to the resident.
It is evident that the resident suffered distress, and the landlord accepted that the resident had suffered distress as a result of its handling of the matter. However, its acknowledgment of the resident’s distress, and the apology for its admitted failings did not fully put things right for the resident. The landlord’s complaint responses also failed to identify any learning it had done about its handling of the matter, which was a further failing. As such, relevant orders have been made below.

The landlord’s complaint handling

The landlord acknowledged the resident’s stage 1 complaint on 13 October 2021, 5 days after it was made. This was outside the timeframe set out in its complaint policy, which states that complaints will be acknowledged within 1 working day. The landlord failed to adhere to the timeframe set out in its own policy, but was in line with the timeframe set out in the Housing Ombudsman’s Complaint Handling Code (the Code).
The Code states that complaints “must be acknowledged and logged at stage one of the complaints procedure within five days of receipt”. Setting a target timeframe of 1 working day to acknowledge a complaint can reasonably be expected to unfairly raise a resident’s expectations. A 1 working day timeframe is significantly shorter than set out in the Code, and may be challenging for the landlord to adhere to, as it was in this case. The landlord may wish to consider amending its complaints policy to reflect the timeframes set out in the Code.
The landlord’s decision not to offer compensation, or explain why it had not, in its stage 1 complaint response was a failure to try and put things right. In line with the Ombudsman’s dispute resolution principles, where there are admitted failings, it is reasonable to expect a landlord to offer redress when it acknowledges failings in its handling of a matter. This was a failing in its complaint handling.
It would have been reasonable, given the numerous admitted failings, for the landlord to use its stage 1 complaint response to explain what learning it had done. Its failure to issue a lease on the sale of the property was a significant oversight. In line with the Ombudsman’s dispute resolution principle of learning from outcomes, it is reasonable to expect the landlord to have reflected on its handling of the matter. It could then have identified what had caused the “administrative oversight” and sought to ensure a failing such as this did not happen again.
As part of his complaint, the resident questioned the landlord’s decision not to register the lease with the land registry itself. The resident also cited the time and trouble he was cost in chasing the landlord for responses, and questioned its comment that the delay was out of its control. The landlord’s response to these concerns was cursory. Neither of the landlord’s complaint responses gave an explanation of why it had not taken the responsibility of registering the lease with the land registry. It is reasonable to expect it to have done so, when the resident had specifically raised the matter in his complaint, and claimed it contributed to the delays.
The landlord’s response to the resident’s concerns that there was a delay, after the issue became apparent, was also cursory simply citing factors out of its control. Its stage 2 response stated that it had “acted appropriately and within a reasonable timescale”, but gave no explanation of how it had reached that conclusion. This was a further failure to address specific concerns raised by the resident in any detail. The result was an unfair complaints process for the resident and he experienced an inconvenience of not having matters, that he believed amounted to failings, addressed by the landlord.
The overall tone of the landlord’s complaint response was cursory and did not engage with the resident’s concerns in a meaningful way. This was particularly true of the landlord’s stage 2 complaint response. The resident raised further concerns in his escalation request of 27 October 2021, but the landlord did little to address these. The stage 2 complaint response was brief, lacked detail and did not show what learning it had done about its handling of the substantive issue.
The landlord’s stage 2 complaint response appears to disregard the failings it admitted in its stage 1 complaint response. The landlord may have changed its position in relation to the previously admitted failings. However, if it had done so, it did not give any explanation of why it had changed its position. The result for the resident was confusion about the landlord’s position, as it had previously acknowledged and apologised for failings. The resident was evidently grateful for its apology, but said he felt he should have been offered compensation. The landlord did not address this concern in its complaint response, and simply said it had acted appropriately and was “unable to uphold” the resident’s complaint.
The landlord’s stage 2 complaint response advised the resident to seek independent legal advice, if he was dissatisfied with the its response. Considering the resident claimed the landlord was liable for financial losses he had incurred, this advice was appropriate. However, the landlord failed to explain to the resident that he had now exhausted its complaint procedure, and to tell him that he could raise his complaint with the Ombudsman. This was a failure to adhere to its own complaints policy and the Code, and was a further failing in its complaint handling.

Determination (decision)

In accordance with paragraph 42(c) of the Housing Ombudsman Scheme the landlord’s handling of the installation of solar panels at the resident’s property in 2016 is not within the Ombudsman’s jurisdiction to consider.
In accordance with paragraph 42(g) of the Housing Ombudsman Scheme the landlord’s handling of issuing a lease for the solar panels resulted in the resident suffering a financial loss is not within the Ombudsman’s jurisdiction to consider.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s handling of issuing a lease for the solar panels at the resident’s property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s complaint handling.

Reasons

The landlord failed to issue the resident with a lease for the solar panel when it sold him the property, a failing it accepted. When it became aware of the issue it took a further 8 months to resolve the matter, which was an unreasonable delay. The landlord admitted failings in its handling of the matter, but failed to offer the resident appropriate redress, or identify what learning it had done.
The landlord’s complaint responses were cursory and failed to offer redress to the resident, when it had admitted failings. Specific concerns raised by the resident were not addressed in the landlord’s complaint responses. The landlord’s position appeared to change when it issued its stage 2 complaint response, but it did not provide an explanation of why. The landlord failed to advise the resident that he had exhausted its complaints procedure, and how to access this Service.

Orders

Within 4 weeks of the date of this report, the landlord is ordered to:
1. Apologise for the failings identified within it;
2. Pay the resident £650 in compensation, made up of:
  1. £400 for the distress, inconvenience, time and trouble caused by its handling of issuing a lease for the solar panels at the resident’s property.
  2. £250 for the inconvenience and distress caused by its complaint handling.
Within 8 weeks of the date of this report, the landlord is ordered to complete training with its complaint handling staff with a focus on:
1. Appropriate consideration of compensation, as a form of redress when there are admitted failings;
2. The importance of providing complaint responses that address specific concerns raised as part of a complaint;
3. The importance of signposting resident’s to this Service when they have exhausted its complaints procedure;
4. Provide the dates and content of the training to this Service.

Recommendations

The landlord may wish to consider reviewing its complaints policy to bring its complaint acknowledgment timeframes in line with the Code.