Metropolitan Thames Valley Housing (MTV) (202204054)

REPORT

COMPLAINT 202204054

Thames Valley Housing Association Limited

31 May 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:
1. the landlord’s administration of the service charge account and its response to the resident’s enquiries.
2. the landlord’s response to the resident’s concerns about fire safety and the EWS1 form.
3. the landlord’s response to the resident’s reports of outstanding defects in the property.
4. the landlord’s complaint handling.

Background and summary of events

Background

The resident is a shared owner of the property, and the lease began on 31 January 2019. The property is a one bedroom flat on the sixth floor of a building made up of ten floors. The lease agreement is between the landlord and the resident. There are no recorded vulnerabilities for the resident.
The landlord holds the head lease with the freeholder of the building. The resident holds an underlease with the landlord. A managing agent (the agent) is understood to be appointed by the freeholder to run the estate. The resident’s lease agreement refers to the freeholder as the “head landlord”. The head landlord’s name is given in schedule 9 of the lease agreement.

Service charges

The lease agreement states that the leaseholder is responsible for paying the rent and the service charge to the landlord.
Complaints concerning the level of a rent or service charge increase fall outside the jurisdiction of this Service. The First Tier Tribunal (Property Chamber) can establish whether service charges are reasonable or payable. The Ombudsman can consider a landlord’s administration of service charges, including its response to requests for information about them.
Section 21 of the Landlord and Tenant Act (1985) gives leaseholders the right to ask their landlord to supply a summary of the relevant costs, which make up their service charges, for the last accounting period. The summary should be compiled by a qualified professional. A resident’s request must be submitted to the landlord in writing.

EWS1

The EWS1 form, which has been created by the Royal Institution of Chartered Surveyors (RICS), is intended to provide assurance to mortgage lenders and valuers that a building’s external wall system meets relevant building regulations and advice notices. This informs their decision on whether to value or lend against a property. For buildings over six storeys, an EWS1 form should be required where:
1. there is cladding or curtain wall glazing on the building, or;
2. there are balconies that stack vertically above each other and either both the balustrades and decking are constructed with combustible materials (e.g. timber), or the decking is constructed with combustible materials and the balconies are directly linked by combustible material.
Where the landlord is not the freeholder for the building, a statement on its website says it will request that inspections on buildings which require an EWS1 are conducted, and its results are shared with them.
Under the landlord’s complaint policy, the complaints process is a two-stage process. The first stage has a response time of 10 working days. The resident has the right to escalate the complaint. The second stage response timescale is 20 working days. It’s policy states issues that occurred over six months ago are excluded from its complaint process.

Summary of events

The landlord’s records noted that due to the pandemic, end of defect (EOD) inspections were not completed, and residents were asked to email any defects identified in their property. An EOD report for the property was compiled by the resident on 23 November 2020, and highlighted the following issues:
1. issues with the heating not working and losing hot water. The hot water pressure would take up to two minutes to warm up, and the pressure would frequently cut out
2. significant cracks in the bathroom, bedroom, around the balcony doors and in the kitchen
3. the extractor fan was not working
4. the underfloor heating was not working
5. no signal to the television aerial
6. a large ‘bump’ the size of a cricket ball in the dining room floor.
Records show that the resident was in contact with the managing agent and the landlord on at least twelve occasions between 18 December 2020 and 15 February 2021. She asked for several updates with regards to the defects she reported and asked to be contacted in relation to a query she had with her service charge.
A response from the landlord dated 15 February 2021 said that:
1. it was sorry for the delay in responding to the resident
2. the contractor was working through her list of defects and they were “being progressed”. For further updates she could contact its development customer care team
3. the managing agent had noted her service charge query and would be looking into it
4. it had noted that she had raised concerns about security in the building, and it would be working with the managing agent to address these. It would keep her updated.
The resident continued to contact the landlord and the managing agent throughout 2021. She advised that she had been given no time estimate of when her defects could be completed, and nobody had responded to her service charge query.
On 3 September 2021, the resident contacted the landlord and advised that:
1. she wanted an update to outstanding questions she had had for a long time. These included a conclusive response about her defects
2. she had been trying to contact someone about the process of selling. She was particularly concerned about the materials used on her building and had contacted the building safety team several times but had not had a response. She wanted to know how the EWS1 certificate may affect her being able to sell her property
3. there had been a waking watch patrolling the building, however this had been “stop and start” and was causing her concern.
The landlord’s building safety team responded on 8 September 2021 and advised that:
1. as the property was a new build, the landlord’s development team were leading on the site, as it was still within its warranty period
2. it could confirm that an inspection had taken place on the external wall and remediation had been identified, as well as the need for a waking watch. However it was unable to say when the remediation would be completed, and it was unable to provide a timeframe of this
3. with regards to selling, it was the decision of the lender as to whether they would assist on an EWS1. If this was the case, then it would be challenging to sell prior the remediation work being completed
4. the landlord was not in a position to repurchase her property, however support options were available for customers who were at risk of repossession or who needed to urgently move.
On 21 December 2021 the resident wrote to the landlord to make a formal complaint, which she said was “far overdue”. She stated that:
1. The landlord had been slow to resolve issues in her property, and she experienced a number of issues in 2019. These included:
  1. access to a community garden. After completion, she found out that only penthouse tenants had been given access to this
  2. the units below would be restaurants and bars. After completion, she was told they would be used for office space
  3. a deep clean of her property had not been done prior to her moving in. Her hallway carpet was in poor condition
  4. installing new windows and doors, which took eight months to complete
  5. completing the handover of the property, which impacted discussions with energy providers
  6. arranging for a rent refund, which she had to chase on three occasions. She was then sent a cheque which caused a further delay
  7. arranging for replacement key fobs, which took five months to arrive.
2. She experienced further issues with her landlord in 2020, specifically:
  1. that it had not clearly explained to her the re-mortgaging process, and she had to chase for this
  2. the meter in her property did not provide any estimate of heating and electricity usage, resulting in unexpected bills
  3. she had not received an explanation on why her property owners insurance (POI) had increased
  4. issues around crime and security, following theft of parcels. She had been assured that measures would be taken to increase safety, but had heard nothing further.
3. There were defect issues that remained outstanding. These included:
  1. issues with her heating and hot water. These were putting a strain on her physical health, as she had a chronic health condition
  2. issues with her underfloor heating
  3. her extractor fan remained broken
  4. her towel rail didn’t produce heat
  5. a lump in the dining room floor.
4. Other issues that remained outstanding were:
  1. she was told in September 2020 that her service charges had decreased by £101 a month. When she queried it at the time, she received no response, but was sent an invoice on 21 December 2021 for £1200 in underpayments. She emailed the landlord about this recently, but had received no response
  2. once yearly cleaning of the balcony doors/railings, which was included in her service charge payments, had never been cleaned
  3. concerns relating to fire safety. No fire safety point had been established and no one had advised why waking watchmen were needed. She was also awaiting the outcome of EWS1 certification
  4. the landlord had not arranged for an EOD inspection of the property. She had been given one date in February 2021 which she could not attend, and no further visits were offered.
5. She felt that she was not getting a value for money service when the management and communication of the property had been so poor. Having to regularly contact the landlord about issues had taken its toll on her mental and physical health.
On 23 December 2021 the landlord acknowledged the resident’s complaint. It said that she could expect to receive a response within ten working days. The resident chased the landlord for this on two occasions in January 2022.
On 31 January 2022, the landlord apologised for the delay in keeping the resident updated, and said it was because of staff absence. She could expect to receive a “full and final” response by 4 February 2022.
On 26 January 2022 the landlord wrote to the developer, copying in the managing agent, and explained that the resident had complained about outstanding defects in the property. It asked that if works were still outstanding, that they were addressed urgently.
The landlord’s records show that it contacted the agent who managed the defect rectification period on 2 February 2022, and asked it for an update to the outstanding issues the resident had highlighted. It recognised that the reason the EOD had been missed was because the property had been omitted from the tracker list.
On 4 February 2022, the landlord wrote to the resident at stage one of its complaint process. The letter was entitled “stage one complaint, final response” and informed the resident that:
1. it was sorry that she felt dissatisfied with the level of service she had received following the purchase of her new home. It apologised that there had been a delay in the handling of her complaint, and for the distress and inconvenience caused
2. it considered that due to the length of the time that had passed, it would not investigate the following elements of the complaint:
  1. promises made upon the sale of the property, including the access to the garden, the intention of use for the units below and a deep clean being provided
  2. carpet condition upon completion
  3. issues with the window installation
  4. handover delays
  5. delays to a request for a refund in 2019
  6. delays in obtaining a key fob replacement
3. her property benefitted from a 24 month defect warranty period which ended on 8 January 2021. It could see that the EOD report dated 20 November 2020 reflected the issues that she had referenced
4. it had contacted the agent who managed the defect rectification period with the developer, and had asked for clarification on the heating and hot water system
5. cracks in the walls and skirtings were not usually covered in the defect period as they were usually considered to be attributed to settlement of the property during the drying process
6. with regard to her service charge queries, it had contacted the relevant team and they would be in contact directly within ten days
7. with reference to fire safety, it could confirm that the remedial works had been completed, but still required inspection. The block was split into three, but it was the leaseholder for only one. Therefore it may be that until all three blocks were deemed passable, the EWS1 would not be provided. It would continue to contact the freeholder about this and hoped to progress this as soon as possible
8. it could not provide a timeframe for a response from the freeholder, but wanted to reassure her that in meantime a waking watch would continue. The cost of the waking watch would not be passed to leaseholders
9. overall, it upheld her complaint as service failures had been identified which were not to the standard it would hope to deliver. As a result it would offer her £125 in compensation, broken down as:
  1. £25 for poor complaints handling
  2. £50 for service failures identified
  3. £50 for time and trouble
10. it considered the complaint to be closed, and a member of staff would be in touch to obtain feedback.
The resident responded to the landlord on 7 February 2022. She said that:
1. a number of issues in her original complaint had not been addressed, and whilst the landlord said it was waiting to hear back from various teams, she did not consider it to be a complete and final response
2. it was unacceptable the amount of time the landlord had taken to resolve issues. She had to spend a considerable amount of time chasing it for responses for the issues she had listed in 2019 and 2020
3. with regards to the ongoing defects:
  1. she was not satisfied with the response at all. She had submitted her list of defects on the deadline she was given, and a number of issues on the list had still not been addressed. This included issues with the towel rail and uneven flooring
  2. the cracks she had in her property exceeded the width of a pound coin and therefore met the threshold for an inspection and needed resolving
  3. she was still waiting to be contacted about her heating and hot water issues, which had been going on for three years
4. With regards to her service charges:
  1. she never received a response to her query in September 2020
  2. there was lack of value for money where management and communication had been so poor, and multiple services had not been delivered. In addition, she remained dissatisfied with the condition of the lift. She questioned whether full services were provided during the pandemic, as she saw no evidence of delivery
5. With regards to fire safety:
  1. she was aware the remedial works were completed to her property on 9 December 2021 and she had been informed she would get an EWS1 certification
  2. whilst she waited for this, the landlord had not acknowledged that the fire safety point for the building had never been clarified. There had also been no communication about the implementation of a waking watch, causing her “unquantifiable” amounts of stress and anxiety
6. As a resolution she wanted:
  1. an escalation to stage two of the complaint process, responded to within the appropriate timeframe
  2. updates on all the points she had mentioned above
  3. more compensation, reflective of the stress she had felt over the past three years. She wanted the landlord to consider “writing off” the service charge invoice dated 21 December 2021 and award her an additional £250.
On 11 February 2022 the landlord acknowledged the resident’s request for an escalation of her complaint. It advised that she would receive a response by 10 March 2022, but if there was likely to be any delay to this, she would be kept informed.
Records show that the landlord contacted the developer on four occasions throughout February 2022, and sent a list of outstanding defects and photographs for action. It asked that it reported back the progress and confirm when the resident could expect an inspection.
A quantity surveyor for the developer responded on 18 February 2022 and advised that he had attended the property that day. He said that:
1. the resident could not locate the lump in the dining floor during the visit
2. the towel rail and issue with the extractor fans had never been reported, but it had raised both issues
3. the resident had agreed to give further access to repair the cracks, and an appointment had been booked for the following week
4. a repair to the mastic peeling in the bathroom had been raised.
On 28 February the landlord asked the developer for an update on the items the resident said were outstanding. It relisted each item that was missing on the EOD report. The developer responded the same day and advised of the following:
1. remedial works to the cracks identified in the property had been completed
2. the extractor fan had been fixed
3. mastic to the bathroom tiles had been completed
4. it was still waiting for an update on the towel rail.
The resident contacted the landlord on 13 March 2022 and asked for an update on her complaint. She said that:
1. “yet again” her landlord had failed to communicate within a reasonable timeframe. Nobody had been in touch to advise they required an extension for a response
2. she had received a letter advising that her service charge for 2022/23 had increased to £23.32 per month. Rises in the cost of living and errors relating to the 2020/2021 service charge led her to believe that new figure was also a mistake
3. she was feeling “incredibly angry” and asked that the landlord check the service charge payments for any errors before 1 April 2022, as she was unwilling to accept a demand for a lump sum at a later date.
On 14 March 2022, the landlord wrote to the resident to inform them it would need to extend her complaint response by a further ten days to allow it to collect further information. The same day, it contacted the developer and asked for an update on the towel rail. The developer responded and advised that on attendance, it was found that there was no issue with it, and it had not been working as the resident had not turned it on.
On 18 March 2022 the landlord wrote to the resident at stage two of its complaint process. It advised that:
1. it had already informed her that some of the issues she had raised were outside of the review timeframe and would not be investigated further
2. in relation to the service charge element of her complaint, it said that it was only responsible for the rent collection. The service charge and scheme agreement was managed by another agency. Therefore it advised that she communicated directly with the agent to raise any further concerns she had
3. with regards to the fire safety and EWS1 form it said that the building was owned and operated by the management agent, and therefore the managing agent was responsible for communicating fire safety points for the building. It would continue to communicate with the freeholder on her behalf, however regular updates would not be provided as their response was not within its control
4. in relation to the outstanding defects, its development team had been actively working with the management agent, and a visit had been completed on 18 February 2022. It could provide updates on the defects as follows:
  1. the extractor fan had never been reported, however was completed on 24 February 2022
  2. the towel rail had been reported however awaits the electrical contractors to confirm their attendance
  3. cracks throughout the home had been addressed during the visit on 24 February 2022
  4. mastic peeling to the bathroom tiles was completed
  5. issues with the heating were not reported as an issue during the visit
  6. no signal to the TV aerial was confirmed as no longer being an issue
  7. the large bump in the flooring in the dining area could not be located during the visit
5. with regards to the handling of her complaint, it could see that its staff had contacted the relevant stakeholders responsible for her concerns, and followed the correct procedure
6. it recognised that there were outstanding concerns following the stage one response and so was partially upholding her stage two review
7. the £125 it had offered at stage one still stood. To receive the payment, she needed to confirm her acceptance. If she remained dissatisfied she could contact the Ombudsman.
On 21 March 2022 the resident wrote to the landlord and advised that:
1. she found it unacceptable that because the landlord had failed to respond to previous issues within a reasonable time, they fell outside of its complaint review timeframe
2. it had failed to address the same issues she highlighted in her request for an escalation of her complaint, and had not acknowledged the amount of time and effort she had spent reporting defects. She had evidence to show that, contrary to the landlord’s stage two response, she had reported defects to her extractor fan and issues with her heating
3. the mastic peeling that the landlord mentioned had been completed, had been finished to a poor standard and required another visit
4. her service charge query remained outstanding, and it remained confusing as to who was responsible for the management of the building
5. the landlord had been “misleading and obscure” with regards to fire safety, causing her stress and anxiety. The last three years had taken its toll on her mental and physical health and the amount of compensation offered did not reflect this.
On 2 May 2022 the resident contacted the landlord and advised that:
1. she had been waiting a month for a call back from a member of staff who could answer her queries about her service charge
2. during the complaint process she was told to contact the managing agent to discuss her issues with the management of the scheme, and her service charge. Upon contacting them, she was informed they no longer managed the property and it had been handed over to another company. She had received no communication from the landlord about the change and had tried to find their contact details but was unsuccessful. She contacted the landlord to ask for assistance but did not get a response
3. since then, the managing agent had been in contact with her and said they would investigate the historic issues. No one had been able to answer why, if the managing agent managed the service charges, she was paying a service charge to the landlord. She asked for clarification of what her payments were for, or she would be withholding payment of her rent.
On 3 May 2022 the landlord advised the resident it was unable to provide the details for the managing agent as it did not hold them on its database. Any service charge queries will be responded to by the service charge team.
On 29 May 2022, the resident contacted the landlord and advised she still had not received any response with regards to what the service charge attached to her rent was. As a result, she had cancelled her direct debit.
On 1 June 2022, the landlord wrote to the resident and advised that it had reviewed her account and adjusted the expenditure for the period 2020/2021. An overpayment of rent had been identified and credited back to her account.
On 22 June 2022 the resident advised the landlord that she had concerns with regards to a “fire event” that happened the previous week. She said that:
1. she had been woken up by banging on the door by the waking watch team. There was no fire in the vicinity, but there was smoke so she could not understand why the smoke alarms had not gone off
2. she was not sure she was directed to the correct fire point as she did not see any of her neighbours at the front of the hotel, and no one registered that they had been evacuated
On 4 July 2022 the landlord responded to the resident and advised that:
1. the waking watch was in place to act as a “human fire alarm”. The building would only revert to a stay put policy once the building had been remediated. The waking watch would notify the need to evacuate by knocking on doors or using air horns, as there were no flat alarms linked to the communal system
2. the waking watch team would not know the full occupancy of the building and could only note which flats did not respond before handing over to the fire brigade. The fire brigade attended the incident and confirmed after 30 minutes that residents could return to their property
3. if she required further information she could contact the managing agent.
The resident responded and advised that she had to wait two hours to get back into her property, not 30 minutes, and the situation had been managed poorly. She wanted to know what the situation was with smoke detectors, as there was no alarm sounding in the west tower.
On 13 July 2022 the landlord forwarded the resident a response to her concerns, which it had obtained from the waking watch team. It said that:
1. the managing agent was responsible for the fire risk assessments and alarms, and they should be doing more to communicate this to residents
2. it was up to the fire brigade to confirm whether residents could re-enter the building
3. the managing agent could provide more information on the incident that the resident referred to.
On 14 September 2022, the landlord contacted the freeholder and asked that it provide the resident with regular updates with regards to the EWS1 form.
In contact with the Ombudsman on 22 September 2022, the landlord advised that it had completed a review of the resident’s complaint. It advised that:
1. it had identified that the resident did not receive clear answers to her queries about the service charges and the EWS1 form
2. there were failures in the handling of the complaint which it recognised had caused additional detriment to the resident
3. as a result, it wanted to increase the compensation award to £450, broken down as:
  1. £100 in recognition of poor complaint handling
  2. £150 in recognition of the service failures that occurred
  3. £200 to address the time and trouble the customer experienced in progressing her complaint
4. an update on the EWS1 had been sent to the resident, and the fire safety team would continue to keep her updated of its status.
During recent contact with the Ombudsman, the resident advised that:
1. she remained unhappy that the landlord had said it would not address elements of the complaint that were outside of its review timeframe. It was important to her that it was recognised that she had a poor experience since completing on her flat, and that the landlord had failed to address issues within an appropriate timeframe
2. nobody ever responded to her about her query about the original underpayment made on her account in 2020. She had decided that she would not pursue this further. She continues to pay a service charge direct to the managing agent
3. crime and security remained a concern for her. Recently someone had tried to break into her flat. She had reported this to security, but not to the managing agent or the police, as she did not have any evidence or sight of who had done it
4. the issue with regards to balcony cleaning was resolved, as her new managing agent explained that it would only clean the outside glass, and not her individual balcony
5. the defects were resolved, however the lump in her dining room had returned. She had been informed this was due to the temperature in the flat and the expansion and contraction within the building
6. she was now being kept updated with regards to the EWS1.

Assessment and findings

The landlord’s administration of the service charge account and its response to the resident’s enquiries

The landlord has a legal obligation under the terms of the lease where it is responsible for the collation of the rent and service charge from the leaseholder. It has stated that there is a managing agent that recovers all service charges except the rent element, but no copy of this agreement was seen.
Whether or not the landlord or the head landlord has made arrangements for the service charge to be collated by a managing agent, it is important to note that under section 21 of the Landlord and Tenant Act 1985, the resident had the right to ask the landlord to supply a summary of the relevant costs which make up her service charge. In this case, she did not make a formal section 21 request, but the principle remains the same that the landlord should be well equipped to address any service charge queries appropriately.
The Housing Ombudsman’s Spotlight Report on Managing Agents recommends that landlords should ensure that they are proactive in pursuing managing agents and freeholders for meaningful account information in relation to service charges in a timely manner. In this case, it was not explained until 61 working days after the resident made her complaint that it that it was only responsible for the collation of the rent element of her service charge.
The landlord put the onus on the resident to make contact with the managing agent to obtain full information about her service charge, and failed to be proactive in obtaining answers on her behalf. It is of concern that in its email dated 3 May 2022, it advised that it held no details for the managing agent on its database. This was not appropriate, as the landlord should maintain a good working relationship with managing agents to provide an effective service to its residents, particularly where the managing agent is carrying out a legal obligation on its behalf. Where the landlord did not hold the contact details for the managing agent, no attempts contact the head landlord to obtain this key information was seen.
The landlord did not take a solution orientated approach to the resident’s service charge queries. This is evidenced in its complaint responses, and in evidence seen where she had to chase it a number of times for contact from its own service charge team. The delay in getting clear answers was unreasonable, and contributed to the resident’s frustrations. Whilst the resident has informed this Service that she has stopped pursuing the landlord for an answer to her query relating to her service charge underpayment in 2020, it is not acceptable that the landlord has not addressed this key element of her complaint.
Overall there was maladministration by the landlord with respect to providing the resident clear information about her service charge account. It failed to recognise its legal obligation within the lease relating to the collation of service charges. The resident experienced time and inconvenience pursuing the matter, and never obtained a response to her query on the element of the underpayment. The landlord failed to recognise that more could have been done to engage with the managing agent on the matter.

The landlord’s response to the resident’s concerns about fire safety and the EWS1 form.

The resident reported that the lack of response she received about fire safety caused her distress and anxiety where she did not understand the requirement of the waking watchmen, or where the fire safety meeting point was. Whilst the landlord is not responsible for the fire management of the building, it still had a responsibility to communicate effectively with the resident. It was unreasonable that it did not take clear enough steps to clarify the roles and responsibilities between itself and the managing agent. Where the landlord recognised that there were failures in the managing agent’s communication about fire safety, no evidence was seen that it raised these concerns on the resident’s behalf or brought it to the attention of the head landlord.
Where the landlord was not the freeholder for the building, it was not responsible for obtaining the EWS1 form. Its website makes clear, that in this scenario it will request that inspections on buildings which require an EWS1 are conducted, and its results are shared with them. The Ombudsman therefore would expect that it follow up on its assurances to liaise regularly with the freeholder about this.
In this case, it should not have taken a complaint by the resident for it to be clear on the status of the EWS1. The Housing Ombudsman’s Spotlight Report on Dealing with Cladding Complaints makes it clear that effective communication is vital, and landlords need to assure themselves that their strategy for this is robust, well-resourced and proactive. Although it is the freeholder who is responsible for acting on the Government’s guidance, it is the landlord who owns the relationship with the resident.
The landlord’s fire safety policy states that it will ensure that its cross directorate working group will be clear on its individual and collective responsibilities, and will be understood at all levels across the business. It was not appropriate therefore for the landlord to have informed the resident that it could not guarantee further updates on the EWS1, leaving the resident feeling anxious and distressed about the status of her building, when it should have identified it could been more robust in its communication with the freeholder.
It was not until September 2022, and upon notification that the Ombudsman was investigating the resident’s complaint, that the landlord identified that it had not given her clear enough response to her concerns. Although the resident has since confirmed she is satisfied that she is now provided with regular updates, the additional delay in resolving the matter was unreasonable. As a result, further compensation has been ordered which better reflects the distress and inconvenience this caused the resident.

The landlord’s response to the resident’s reports of outstanding defects in the property.

It is appreciated that due to the pandemic, it was not possible for non-urgent defect inspections to take place. However it is clear that the resident’s outstanding concerns were noted in the EOD report, and that it that was produced within an appropriate timeframe of the warranty period. Records demonstrate that the resident made several attempts to contact both the managing agent and the landlord to address the defects she had raised in the months following the report by phone, email and through the landlord’s repair portal.
The landlord reassured the resident in February 2021 that her defects were “being progressed” and that she could receive updates from its development customer care team. However, these were not forthcoming and the resident experienced further time and trouble in obtaining a conclusive update to her defect issues for a further nine months, which led her to make the formal complaint.
Only once the resident made the complaint, did the landlord recognise that owing to an administration error, the property was missed from a tracker which enabled it to effectively monitor outstanding defects. Once this was realised, evidence was seen that the landlord made several enquiries and engaged with the developer’s defect agent, and repeatedly requested that it attended “as a matter of urgency”. Further, evidence shows that the landlord followed up the outcome of the visit, to ensure all the elements which the resident felt were outstanding were addressed.
The landlord acted appropriately and in line with its procedures in engaging with the developer to rectify the outstanding defect issues, after the point the resident made the complaint. However it should not have taken the resident to complain for it to have identified that the property had been missed off the tracker, and it was not timely in updating the resident on what steps it had taken to put things right. The resident was not informed of the actions the landlord had taken throughout February 2022, until it responded to her as part of her stage two complaint in mid-March 2022, causing an additional delay.
The resident has updated this Service that she is satisfied with all remedial defect works that had taken place following the landlord’s interventions. However, the lump has since reappeared in her dining room floor. Where it was not visible at the time of the inspection in 2022, it could not have reasonably been addressed by the agent at the time and therefore no failure of the landlord is considered on this point.
The Ombudsman considers that whilst the landlord recognised that there was as service failure in the handling of the resident’s defects, the £150 compensation it offered did not go far enough to put matters right for the resident. Its stage two response review does not mention or recognise the prolonged period of time the resident experienced trouble in chasing updates to her defect issues in the time leading up to her complaint. As a result, further compensation has been ordered which better reflects the inconvenience this caused the resident over a prolonged period of time.

The landlord’s complaint handling

The landlord initial response to the resident’s complaint was sent after 31 working days, considerably outside the timescales expected in accordance with its complaint policy. It was unreasonable that the resident had to chase the landlord on several occasions for a response, causing her inconvenience and adding to her frustrations. However it apologised and offered appropriate compensation which reflected the delay.
Though the landlord explained it would not be considering the resident’s historic issues as part of the complaint, it did not explain to her why this was the case. Had the landlord made reference to its complaint policy, it could have better managed the resident’s expectations as to why it could not consider complaints for issues that occurred more than six months ago.
It was not appropriate that the landlord entitled the stage one response as its “final response”, closing it without providing the resident of details of how she could escalate the matter to stage two of its process, in accordance with its complaint policy. This was unreasonable and did not demonstrate that it was open to conducting a further review into the resident’s concerns.
Whilst the stage one complaint sought to address all that the resident was dissatisfied with, it failed to reassure the resident that it would see all the matters it said it could action through to conclusion, advising only that it had passed on her concerns with regards to the service charges, the defects and the EWS1. The resident made it clear in her request for an escalation of her complaint, that she was not satisfied on this point, and that its lack of reassurance around fire safety caused her distress and anxiety.
The landlord’s stage two response was an opportunity to revisit these issues and put matters right for the resident. However, in delivering the stage two response late again, it demonstrated that it had not learnt from the outcome of its previous response. It offered no further apology or increase in compensation for the further delay she had experienced in escalating her complaint.
The stage two response put the onus back on the resident to contact the managing agent about her service charges and fire safety concerns. It took no responsibility for being proactive in addressing her concerns with the agent on her behalf, and left her with little reassurance that it would contact her again about the progress of the EWS1. The response did not go far enough to take ownership of the resident’s complaint and did not provide her with assurance that it would see any of her concerns through to conclusion.
Upon contact from this Service, the landlord reviewed its stage two response, and has since acknowledged that there were failures in the handling of the resident’s complaint. It should not have taken the intervention of this Service for the landlord to have recognised this. However, in doing so, it was able to reconsider the amount of compensation that is offered the resident, which was more appropriate and better reflected the time and trouble she experienced during the landlord’s complaint process.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration with regards to the landlord’s administration of the service charge account and its response to the resident’s enquiries.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure with regards to the landlord’s response to the resident’s concerns about fire safety and the EWS1 form.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure with regards to the landlord’s response to the resident’s reports of outstanding defects in the property.
In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress in relation to the handling of the resident’s complaint prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Reasons

The landlord failed to take ownership of the resident’s queries in relation to her service charges, or recognise its obligations in terms of the lease. It was unable to evidence that it was proactive in pursuing the managing agent for meaningful account information, to relay back to the resident. Its complaint responses failed to address all of her concerns, and her initial query about the 2020/2021 underpayment of service charge remains outstanding.
Although it is recognised that the freeholder is responsible for acting on the Government’s guidance with regards to the EWS1, and the responsibility of the managing agent to ensure that an effective fire safety management is in place, the landlord failed to recognise it played a key part in communicating effectively with the resident. It did not provide reassurance to the resident that she could receive regular communications and updates, which could have reduced the distress and inconvenience she experienced.
It was not until the resident made a formal complaint did the landlord recognise that there was error in marking the property on the relevant tracker at the end of the defect period. This caused the resident time and trouble in chasing repeatedly for outstanding defects. Once the landlord realised this, it was in regular communication with the agent who managed the defect rectification period, and was able to facilitate a remedy for the outstanding items listed on the resident’s EOD report. Though it took steps to put this right, its compensation did not go far enough to reflect the inconvenience the resident experienced in concluding her defect issues over a prolonged period of time.
There were failures in the landlord’s complaint process in terms of delays in responses, and managing the resident’s expectations. The landlord’s stage two response did not provide reassurance that it would see the resident’s concerns through to conclusion and placed the onus back on her to engage with the managing agent. On review, the landlord has accepted these failures and increased its offer of compensation, which in the Ombudsman’s view is sufficient to put matters right.

Orders and recommendations

Orders

The landlord write to the resident for the failures identified within this report, within four weeks.
The landlord is ordered to pay the resident compensation of £850 comprising:
1. £200 for the time, trouble and inconvenience the resident experienced in obtaining an answer to her service charge queries
2. £100 for the distress and inconvenience the resident experienced in the handling of her fire safety concerns
3. £100 for the time, trouble and inconvenience the resident experienced in the handling of her outstanding defects
4. the landlord’s previous offer of £450.
If the landlord has already paid the resident the £450, it should be deducted from the amount ordered and the landlord should directly pay the resident the remaining £400. The landlord should provide evidence of compliance with the above to this Service within four weeks of the date of this report.
The landlord conduct a review of this case within four weeks which ensures that:
1. it fully understands its responsibilities with regards to the underlease, and what the agreement is between itself and the managing agent
2. it has the correct contact details for the managing agent held on its database to ensure effective communication
3. it reviews how information relating to the managing agent will be kept up to date
4. it raises the resident’s recent concerns about security to the managing agent, and provides her with a written update of its discussions
5. it responds fully in writing to the resident, the explanation of the 2020/2021 service charge underpayment as highlighted as outstanding in this report.
The landlord report back on its intentions with regards to the recommendations below, within four weeks.

Recommendations

If the landlord is experiencing difficulties obtaining the service charge information from the managing agent, it may want to consider obtaining legal advice in relation to the enforcement of the terms of the head lease.
The landlord should take steps to consider a review of other properties where managing agents are in place to ensure that it has the appropriate details on its database in terms of both contact details and responsibilities.