Lambeth Council (201907909)

REPORT

COMPLAINT 201907909

Lambeth Council

28 September 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 handling of:
   1. Damp in the resident’s property and the length of time taken to complete repairs.
   2. The resident’s enquiries about a service charge bill.

Background

2. The resident is an leaseholder of the landlord, a local authority. The property is a ground floor 2-bedroom flat. The leasehold tenancy commenced on 12 May 2003. This property is part owned by the resident and she owns 33.45%.
3. The Landlord and Tenant Act 1985, section 11 implies repair obligations for landlord tenants. It states, ‘In a lease to which this section applies (as to which, see sections 13 and 14) there is implied a covenant by the lessor to keep in repair the structure and exterior of the dwelling-house’.
4. It is not stated in the landlord’s repairs policy that it is responsible for internal damp and mould. However in the landlord’s repairs policy it is stipulated that it is responsible for maintaining foundations, outside walls and doors. Therefore if damp is a result of disrepair to the external structure, it is the landlord’s responsibility to make repair.
5. The landlords has four main categories for types of repairs. The repairs policy states:
   1. For emergency repairs it aims to respond within 24 hours.
   2. For non-urgent repairs it will make repairs within seven working days unless stated otherwise.
   3. For routine repairs it will take 28 days, unless stated otherwise.
   4. For planned repairs it will respond within 90 working days, unless stated otherwise.
6. The resident’s lease states she is required to pay a proportion of the cost of carrying out repairs to the building on her estate. The agreement states the premises which are transfer to the resident through her lease will include:
   1. The glass in the windows of the flat.
   2. The interior plastered coverings and plaster work tiling and other surfaces of floors ceilings and walls of the flat (excluding window frames).
7. The lease states it does not include:
   1. All structure parts of the flat including the roof space foundations main timbers and joists and concrete floor and window frames.
   2. External parts of the flat (other than the glass in the windows and the entrance door(s) of the flat).
8. Section 4.1 of the lease agreement states: ‘The tenant hereby further covenants with the council subject to paragraph 1 of schedule 6A of the leasehold reform, housing and urban development act 1993 to contribute and pay on demand a rateable proportion of the costs expenses outgoing and matters referred to in clause 3 hereof and any other works or matters affecting the flat and the building of which the flat form part that the council in its discretion considers it reasonable or appropriate to carry out’.

Summary of events

9. In 2018 the resident contacted the landlord to inform it that she was experiencing issues with damp in the property. In response the landlord stated it had passed this onto the repairs team, and someone should be in touch to discuss this further with her.
10. Following this, in 2019 the resident raised further concerns about damp in the property. In an email to the landlord she had stated that it had been several months since she first reported the issues and no one had been in touch to arrange a further inspection, she was waiting for a survey to be carried in order to identify the cause of the damp.
11. On 27 February 2020 an inspection was carried out in respect to dampness to the hallway and bathroom. It was concluded that walls were suffering from rising dampness due to lack of an effective damp proof course and porous plaster absorbing moisture from within the brickwork. The surveyor recommended that the condensation issue was monitored during the colder months and ventilation improved or upgrades to the mechanical extraction system applied if condensation persists.
12. The covid-19 pandemic commenced from March 2020 which resulted in delays in rectifying the issue.
13. The resident emailed the landlord on 6 October 2020 to report concerns about service charges and repairs. She expressed that her service charge had incorrectly been calculated and said she is not liable for 50% of the block costs, but 33.5%. She explained this had happened in the past and asked the landlord to correct the figure.  The resident also explained that, despite the recommendations made in the previous survey, the landlord had failed to remedy the damp issue. The landlord failed to respond to this email, therefore the resident sent a further email on 19 October 2020, asking for a response within seven days.
14. The resident raised a complaint to the landlord on 24 January 2021. The resident expressed upset that each year she was overcharged by the landlord for repairs, as a result of it not doing the correct calculations. She also complained about being charged for window frames for the upstairs property and believed she should be exempt. Lastly she was unhappy about the damp in the property and the landlord’s delays in resolving the matter. 
15. In response, the landlord upheld the complaint in part. The landlord provided a stage one response and apologised for the delays responding. It  explained that it was only in a position to provide a part response regarding the service charges as it was still waiting for information from the repairs team. The landlord explained the delay was due to staff absences.
16. The landlord explained to the resident that as a rent to mortgage owner the repairs element of her service charge should be apportioned accordingly, however this did not happen in the financial year 2019/20, the landlord also noted errors were also made during 2018/19. To resolve the matter an adjustment was made to the resident’s account and the landlord proceeded to provide a refund. In regards to repairs the landlord said it was hoping to be able to provide the resident with a response by 5 March 2021.
17. During March 2021,the landlord raised a work order to have damp proof course (DPC) injected into the walls to resolve the issue. The target date set was for the work to be completed by 11 May 2021. However this work was not carried out.
18. The resident contacted this service on 17 May 2021 to express that despite the landlord upholding the complaint, the agreed resolution had not been actioned.
19. Following this on 8 July 2021, the resident emailed the landlord stating that the service charge issues had mostly been resolved except for her recently being sent a letter about arrears despite being on a payment plan. The resident stated the main outstanding issue was damp in the property and the charge for window frames.
20. Subsequently on 5 August 2021 the landlord issued its stage two response and apologised for any distress or inconvenience caused. It confirmed that the resident’s service charge account had been corrected as of 4 June 2021. In regards to the window frames, the landlord referred back to the resident’s lease explaining that window frames are classed as rechargeable. The landlord proceeded to update the resident on her service charge arrears, explaining that as per her arrangement plan she was not up to date with payments.
21. The landlord also addressed the issues concerning damp in the property. It reviewed the history of reported damp and the survey report. The landlord acknowledged the delays in having work completed, and said a further work order was raised to be completed by 25 August 2021. It could not confirm if this had been done, as it was awaiting confirmation from contractors. The landlord acknowledged that as the damp is caused by exterior problems, the landlord was responsible for resolving the matter.
22. In recognition of delays in carrying out repairs the landlord awarded the resident £150 compensation for the inconvenience caused.
23. On 9 August 2021, the resident stated that payments were discussed with the service charge team and were set up from June, therefore there were no arrears. As the resident remained unsatisfied with the landlord’s response, the complaint was sent to this service for adjudication.
24. The resident has stated that she is seeking:
    1. Assurance that the landlord will correctly apply the charges in accordance to the percentages she is required to pay.
    2. To know if she is liable for charges to the neighbours’ window frames.
    3. Further compensation for delays to the repair issues.

Assessment and findings

25. This Service understands the resident feels the landlord had failed to properly address issues concerning damp in the property and disputes service charges.
26. It is not the Ombudsman’s role to make a determination on the level or reasonableness of service charges as this are not within our jurisdiction.  If a resident wishes to dispute the level of service charge which they are expected to pay, they can refer this to the first tier tribunal to review the reasonableness. The FTTP can consider the level of service charges and issue a decision which is binding on the parties.
27. The Ombudsman can assess whether, when considering issues, the landlord followed proper procedure, followed good practice, and responded reasonably, considering all the circumstances of the case – which this investigation goes on to do.

The resident’s reports of damp in the property and the length of time taken to complete repairs.

28. On reviewing correspondence between the resident and landlord, it is clear that issues concerning damp have been ongoing since 2018. Following this, in 2019, evidence shows that the resident had further chased for repairs to be done in relation to damp in the front hall, however there is no information to suggest repairs or inspection were undertaken. This service has not seen information to suggest the resident raised a complaint about this, or that it had previously been investigated, therefore this information is noted for context to show the damp issues have been ongoing.
29. The evidence shows when the surveyor investigated concerns on 27 February 2020 for the hallway and bathroom, it was found that the damp had been caused as a result of rising damp. As rising damp is in relation to the exterior and foundations of the property, under the landlord and tenant act 1985, the landlord is responsible for resolving the issue.
30. This service understands that in March 2020, just after this survey was completed, the Covid- 9 pandemic occurred which affected the landlord and contractors. This resulted in it having to put a hold on any work orders being actioned for a period of time.
31. This service understands the landlord’s repairs policy states that for planned repairs it will respond within 90 working days. However in this instance, considering the circumstances of repeat lockdowns and employees being furloughed, it is not unreasonable that delays were caused to this service during 2020.
32. Whilst this service acknowledges circumstances outside of the landlord’s control, it recognises that service failings occurred in relations to delay as a result of its contractors in 2021.
33. The evidence shows the landlord had acknowledged its obligations to resolve the issues, and raised a work order during March 2021 to have a DCP chemical injected into the walls by a target date of 11 May 2021. However, this work was then not undertaken by its contractors.  After the resident raised further concerns, the landlord re-raised this work order with different contractors to have the work completed by 25 August 2021. This service has not seen any evidence to suggest the works required took place. The landlord has been unable to confirm this and the resident has recently stated the work has not been carried out.   
34. On reviewing the information, it is the Ombudsman’s view that there were service failings by the landlord. It was unreasonable for the resident to have to chase on several occasions to have the work completed. Whilst this service acknowledges there was a period of inactivity due to covid-19, the resident had made repeat reports prior and after this for the landlord to act on.  Whilst this service recognises that the landlord explained that it was unaware its previous contractors had not carried out the initial scheduled work, it is the landlord’s responsibility to ensure that it is communicating effectively with contractors to ensure work is being carried out as scheduled.
35. In its formal response dated 5 August 2021, the landlord was proactive in apologising to the resident, acknowledging its service failings, ensuring a new work order had been placed and awarded the resident £150 compensation.
36. In the Ombudsman’s opinion and taking all circumstances into account, as this service has seen evidence of further delays in the landlord carrying out its actions of repairs stated in its formal response, this service will be ordering further compensation to the resident.

The resident’s enquiries about a service charge bill.

37. The resident has confirmed that the majority of issues relating to service charges have been resolved, however she seeks answers about charges made to her in relation to the neighbours’ window frames. Therefore this service has only looked into the resident’s outstanding concerns. The resident is of the belief that the new window frames installed to the neighbours’ property should be exempt from block costs. 
38. The responsibilities of the resident and landlord are stipulated in the lease agreement. As the resident partly owns the property within a building, the leaseholder agreement states what her obligations are under the lease.
39. When the resident raised concerns to the landlord about service charges, it proceeded to look into the matter and found that it was correct in charging the resident for the windows under block costs. The landlord explained that, as per her lease, agreement window frames are rechargeable. 
40. The disputed service charge in question is for year 2020/2021. The evidence shows that the estimated annual service charge for repairs and maintenance for the block was £442.40, and the property charge was £71.18.
41. This service has reviewed the resident’s lease and confirms that the first schedule states what is being transferred through this lease to the resident. It states that the glass in the window of the flat is the resident’s responsibility. The agreement states that this transfer does not include all structural parts of the flat including the window frames. 
42. This means that residents are not individually responsible for window frames, regardless if they partly own a property. Therefore, this does mean that it is a service payable under the service charge for the upkeep of the property. 
43. Under the tenancy agreement, the landlord is able to charge residents a service charge to maintain the building. As the resident is expected to pay service charges despite owning the property the landlord has acted in accordance with its terms. It is our view that the landlord explained its position on the window frames to the resident appropriately when she enquired about the charges.

Determination (decision)

44. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failing by the landlord in respect of its handling of the resident’s reports of damp in the property, and the length of time taken to complete repairs.
45. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s enquiries about her service charge bill.

Reasons

46. The landlord acknowledged its service failings, apologised to the resident and compensated her. However it failed to carry out repairs stated in its formal response, and a significant amount of time has passed which is considered unreasonable.  
47. There was no service failure in the landlord charging the resident for window frames of the building. This is a general cost which is considered under service charges for the upkeep of the building. The landlord offered a reasonable explanation of its position.

Orders and recommendations

Orders

48. The landlord to pay the resident a further £200 compensation for the delays.

Recommendations

49. The landlord to ensure there is no outstanding work in relation to damp.
50. The landlord to ensure it has a good communication channels with contractors in respect of work orders. This will ensure it is able to manage work orders and prevent delays or work being missed.
51. If not already done so, the landlord should ensure the previous offer of £150 compensation is paid to the resident.
52. The landlord to ensure the correct formula when calculating service charges in accordance to the resident’s lease is used going forward.