Lewisham Council (202201598)

REPORT

COMPLAINT 202201598

Lewisham Council

30 June 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 regarding the landlord’s handling of the queries the resident had made regarding a Section 20 consultation.

Background

2. The resident occupies the property as a leaseholder. The property is a one bedroom flat. The property is managed by a managing agent, on behalf of the landlord.
3. On 16 March 2022 the landlord issued the resident with a Section 20 Notice for “External Repairs and Decorations”.
4. On 18 March 2022 the resident contacted their local Member of Parliament (MP) regarding concerns about the section 20 notice. The resident stated they were having issues with their freehold and had just received a bill for unnecessary redecoration works. The resident stated they had received poor communication and “abysmal” customer service along with poor workmanship, unresolved repairs, “extortionate” overheads and additional charges. The resident stated these issues were making them ill and stressed.
5. On 10 April 2022 the resident responded to the section 20 notice making a number of observations. The resident expressed:
   1. the works were unnecessary
   2. the term “availability standard” was undefined
   3. the works listed had been completed recently
   4. the works should have been covered by insurance
   5. the list of works lacked detail
   6. concerns over the contractor used
   7. concerns over inspections being carried out
   8. that there had been a lack of any surveys to assess the need for works; and
   9. ongoing repair works and queries over the charges quoted.
6. The landlord issued its stage one response on 26 April 2022. It set out:
   1. the schedule of work had been completed from a ground level survey and was informed by the properties repairs history.
   2. A full detailed survey would take place once scaffolding had been erected. It stated if other works were found after the detailed survey it would be able to proceed without the requirement for another section 20 notice and 30 day consultation period.
   3. Due to the wide scope of work involved, contingencies and provisional sums were included in the section 20 notice but final costs could be lower.
   4. The contractor proposed had undergone a “vigorous” pre-qualification questionnaire and signed up for approved national schedules for rates of maintenance contracting.
   5. A clear explanation of “availability standard”.
   6. The building insurance did not cover the proposed works.
   7. The estimated cost in the section 20 notice was just an estimate and an actual cost invoice would be provided once works were completed.
   8. An opportunity would be made for the resident to meet with the Site Manager once a full list of works had been identified and provided contact details for the Site Manager and a Resident Liaison Officer. 
7. On 28 April 2022 the resident’s MP contacted the landlord regarding the contact received in March 2022, as detailed above. The landlord raised this as a stage two complaint.
8. The landlord issued its stage two response on 16 May 2022. It stated the estimated bill was part of a section 20 notice for external repairs and maintenance and high-level lifecycle works. It advised that the notice was for a ground level survey only and the estimated cost of works included any unforeseen works to the fabric of the building at high-level. It stated once the scaffolding had been erected and an asbestos test carried out and inspection of the fabric of the building would take place and the estimated bill would be adjusted accordingly. It advised that lifecycle works were not related to internal communal repairs and as such it does not agree that the works had been raised to the detriment of internal repairs. It advised that the section 20 process had been followed correctly.
9. The resident requested the complaint be escalated to stage three on 7 June 2022. As such, the landlord issued its stage 3 response on 15 June 2022. The independent adjudicator stated it was not best placed to consider the complaint and, as such, it would not be looking at it any further. It sign posted the resident to the First-Tier Tribunal as it was a better fit to resolve the complaint.
10. The resident remains unhappy with the outcome of the complaint. As a resolution the resident would like the landlord to respond to all concerns raised during the complaints process.

Assessment and findings

Scope of Investigation

11. Under the lease, the resident covenants with the landlord to pay service charges. The Landlord and Tenant Act 1985, The Commonhold and Leasehold Reform Act 2002 and The Service Charges (Consultation Requirements) (England) Regulations 2003 set out consultation requirements for major works. If leaseholders wish to challenge service charges, they are able to apply to the First-Tier Tribunal to decide the reasonableness of the charges.
12. In accordance with paragraph 42(e) of the Housing Ombudsman Scheme, this Service 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”. As such, this Service will not consider whether the costs the resident queried were reasonable nor the resident’s liability to pay them.  However, this Service will investigate whether the landlord responded to all queries raised by the resident and engaged the resident in consultation.

The landlord’s handling of the queries the resident has made regarding a Section 20 consultation

13. The resident made contact with their MP on 18 March 2022 raising concerns over the Section 20 Notice that had been issued for external repairs and decorations. The resident raised a number of concerns including, receiving a bill for unnecessary redecoration works, receiving poor communication and “abysmal” customer service along with poor workmanship, unresolved repairs, “extortionate” overheads and additional charges. The resident stated these issues were making them ill and stressed.
14. The resident then made a complaint directly to the landlord on 10 April 2022 again relating to observations made regarding the same Section 20 Notice. The resident, again, raised a number of concerns as listed above and which the landlord responded to at stage one. The landlord then provided a stage two response following the MP enquiry on 28 April 2022 and provided further clarity on the concerns raised.
15. The Ombudsman’s Complaint Handling Code (CHC) is a guidance document which sets out the Ombudsman’s expectations for how landlords should handle complaints. The CHC states “Landlords must address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law and good practice where appropriate”.
16. The landlord did not provide a response to the residents observation that within the lease, there was no obligation to pay management fees or towards profit. The landlord has not responded to all aspects of the complaint this is a service failure.
17. This Service acknowledges that under a section 20 consultation the landlord may not completely change its approach based on the comments of a resident. However, this Service would expect a landlord to engage with a resident and to consider any observations put forward in good faith. As this was supposed to be a consultation, by the very nature of the situation the landlord should have engaged with the resident and responded to all queries. 
18. It is clear that the resident requested further clarity and a greater level of detail. This Service acknowledges that the landlord did respond to most of the residents concerns in some way during its stage one and two responses, however, the landlord failed to expand on any details of the proposed works and was generally vague on what repairs may or may not be carried out following inspection.
19. By immediately escalating the resident’s observations to a stage one complaint the landlord changed the nature of the communication from an open consultation to a more formal complaint and response.
20. This Service acknowledges that the landlord did provide contact information for both the Site Manager and the Resident Liaison Officer in its stage one response. This did go some way in opening a line of communication for the resident to allow them to discuss any ongoing concerns. However, it should be noted that other consultation methods, such as an in person, open forum, may have been more beneficial to the resident – landlord relationship and allowed for the residents concerns to be resolved sooner.
21. The landlord’s stage two response was issued in response to the historic complaint sent to the MP on 18 March 2022. This meant the landlord was unable to provide a full response to all of the resident’s queries at stage two. It is understandable that at this time, some of the resident’s queries were subsequently not responded to.
22. On requesting that matters be escalated to stage three, however, the landlord was given an opportunity to address any outstanding questions the resident had. Instead, the landlord signposted the resident to the First-Tier Tribunal and stated “the Tribunal can provide a more effective resolution to your complaint than I can. For this reason, I will not consider your complaint further”.
23. This Service acknowledges the resident would have been provided with a more specialised response had they applied to the First-tier Tribunal, however in the Ombudsman’s opinion, the landlord missed an opportunity here to potentially resolve the issue for the resident.
24. This Service expects the landlord to undertake a sufficient investigation and review all circumstances of the case at each stage. The stage three response provided an opportunity for the residents observations to be responded to in full, with any previous responses being reiterated to ensure no observations were missed. This was especially important given the stage two response being to a historic complaint.
25. By failing to acknowledge or answer some of the observations made, the landlord contributed to the residents uncertainty about whether they were being listened to and taken seriously. This was contrary to the very purpose of the consultation and has resulted in the resident having to pursue answers via other means. This was a failure in service.

Determination

26. In accordance with paragraph 52 of the Housing Ombudsman scheme, there was service failure in the landlord’s handling of the queries the resident has made regarding a Section 20 consultation.

Orders and recommendations

Orders

27. The landlord is order to:
    1. Pay the resident £100 for failing to properly engage in consultation with the resident.
    2. To provide the resident with formal communication addressing the outstanding queries, including a response to the residents observation of having no obligation to pay towards profit and management fees.
    3. To provide the resident with a written, formal apology for failing to address all aspects of their complaint.
28. The landlord should provide this Service with evidence of compliance with the above orders within four weeks of receiving this report.