Metropolitan Thames Valley Housing (MTV) (202212022)

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REPORT

COMPLAINT 202212022

Metropolitan Thames Valley Housing

27 April 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 response to the resident and their power of attorney about its decision to implement a meal service.
2. The landlord’s complaint handling, including its resolution of the complaint at each stage of its procedure.

Background

The complainant has lasting power of attorney for the resident. For the purpose of this report, we will refer to the resident and resident’s power of attorney throughout.
The resident has a weekly periodic assured shorthold tenancy for a one-bedroom flat including communal areas. The tenancy agreement which begins on 5 March 2017 is signed by the resident’s power of attorney on 5 March 2018.
In January 2022 the landlord stated a catering company would provide a two-course lunch for every day of the year and the cost for residents claiming Housing Benefit was £19.55 per week. A new clause was to be added to the tenancy and an addendum was attached to the letter for residents to sign.
Subsequently, there was an exchange of correspondence in which the power of attorney asked how the meal service would affect the resident who already had a meal service in place with the same catering company, the cost of the meal service, the increase in service charge and the personal charge. The power of attorney was not happy with the landlord’s responses and was directed to make a complaint. Within the complaint the power of attorney also raised concerns about errors in the landlord’s communication and consultation.
In May 2022 the landlord sent the final complaint response. It apologised for previously providing incorrect information about the cost of the meal service but found that the cost was reasonable, stated it would consider whether the resident had been charged twice for the kitchen, stated that the new meal service began on 4 April 2022 therefore the resident had not been charged twice for 1 ,2 and 3 April 2022, and apologised for errors in the correspondence and for the late complaint response.
In September 2022, the power of attorney referred the complaint to this Service stating that he was unhappy about the landlord’s consultation and provision of information to him, that the meal service was mandatory, and that the landlord did not clearly answer questions about the cost of the meal service including whether the kitchen cost for the new meal service were duplicated.

Assessment and findings

The tenancy agreement states the landlord will provide all services listed in Schedule 1 and the resident will pay the service charge for them. Schedule 1 includes services for a communal area, which includes but is not exhaustive to; lighting, power and water, heating, and hot water, refuse disposal and other, with ‘kitchen’ written in.
The tenancy agreement states: ‘we may change the services we provide’. It also states the service charge can be increased and specifically ‘you will be consulted on any significant changes in the service provided’. Section 1.6 under ‘Altering the Agreement’ states where management committee or board of directors agree on a change, a proposed consultation will be carried out with those tenants affected. It also states specifically; ‘the landlord may also vary any of this agreement with the consent of the tenant’.
At the time of the complaint the landlord operated a two stage complaints process. It aimed to acknowledge stage one complaints within 5 working days and fully respond within 10 working days. It aimed to acknowledge stage two complaints within 5 working days and provide a full response within 20 working days. The landlord states it will advise the complainant where it cannot meet these timescales.
The landlord sent a letter to the resident’s post box dated ‘January 2022’. It stated a catering company would provide a two-course lunch for every day of the year and went on to state the cost for residents claiming Housing Benefit was £19.55 per week and official notice would be sent in February 2022. A new clause was to be added to the tenancy and an addendum was attached to the letter for residents to sign. This stated the landlord would provide a daily two course lunchtime meal and the tenant agreed to pay the landlord a service charge in addition to other services provided by the landlord.
The resident’s power of attorney wrote to the landlord on 25 January 2022 about the letter dated ‘January 2022’ asking how the meal service would affect the resident who already had a meal service in place with the same catering company, the cost of the meal service, increase in service charge and personal charge. He asked for further information before agreeing to the change.
The landlord replied on 26 January 2022 confirming the cost for those in receipt of Housing Benefit is £19.55 per week and the cost would be the same for those residents not in receipt of Housing Benefit. It confirmed the new meal service would replace any existing meal service and standing orders should be cancelled to ensure payment was not made twice for the same service. It confirmed the increase to the service charge included upkeep of communal equipment and a regular increase of 4.1%. It confirmed the increase to the personal charge included the cost of the meal charge and the increased cost of heating and hot water.
On 26 January 2022 the resident’s power of attorney thanked the landlord for the reply and said replies should be sent to the resident as lasting power of attorney. He stated the landlord could not make a change without his consent.
The resident’s power of attorney requested further information from the landlord on 1 February 2022 asking what is meant by a 4.1% regular increase and whether the Housing Benefit eligible charge of the service charge has been taken into account.
The landlord addressed the points raised on 1 February 2022 on 7 February 2022, apologising for the delay. It confirmed the cost of the provision and food was covered by the personal charge increase, the cost of the kitchen came under the Housing Benefit eligible part of the service charge. It also confirmed the 4.1% increase related to the landlord’s allowance for 2022/2023 for inflation.
The resident’s power of attorney informed the landlord on 7 February 2022 that it understood the 4.1% regular increase and asked what was meant by provision, what was the total cost to the resident for food, provision and kitchens and how this was made up from the service charge or personal charge. He also asked why kitchen costs were included in the new charges when they were also covered in the current service charge.
The landlord responded on 11 February 2022 providing a response to the questions raised. It confirmed provision was the service that it made available to the resident. It advised the total cost to the resident was £45.74 per week, broken down as:
1. The personal charge at £19.55
2. The Housing Benefit ineligible charge at £19.55
3. The Housing Benefit eligible charge at £26.19
It stated the rent and service charges were reviewed annually and all service charges were based on expenditure. It stated the expenditure for kitchen arrangements and meal service equated to £45.74 per week per property.
On 13 February 2022 the resident’s power of attorney asked the landlord what the ‘cost of provision’ meant and what service other than meal charge was included in the personal charge. He stated the new meal charge was 50% greater than he currently paid for the same service. He queried why the resident was being charged for the cost of kitchen when the resident contributed to this cost in their service charge. The resident’s power of attorney chased a response by email on 23 and 25 February 2022. The landlord asked the resident’s power of attorney to raise a complaint with its customer care team on 28 February 2022.
The resident’s power of attorney made a stage one complaint to the landlord on 3 March 2022 with the following points raised:
1. The letter dated ‘January 2022’ was rude and impersonal was not sent to the resident’s power of attorney, and residents and their families were not consulted.
2. The letter dated ‘January 2022’ presented the meal service as mandatory with no option to opt out.
3. The response by the landlord on 26 January 2022 did not address his questions fully and the landlord had not replied to correspondence sent on 13, 25 and 28 February 2022.
4. The letter received between 16 and 21 February 2022 about rent and service charges was dated 27 January 2022, suggesting a delay in it being sent.
5. A request for an apology, answer to questions, whether residents have a choice on acceptance of meal service and for landlord to provide assurance similar errors were not repeated.
The landlord provided its response to the stage one complaint on 31 March 2022 with the following points addressed:
1. The part of the complaint about the meal service between August 2019 and March 2020 was outside of the complaint review timeline.
2. The landlord’s housing officer communicated with the resident’s power of attorney in a timely manner since it received the initial letter from him on 24 January 2022. In this communication it had previously acknowledged the letter dated ‘January 2022’ was unprofessional and the resident’s power of attorney should have been sent a copy.
3. The letter received by the resident and their power of attorney on 15 February 2022 had the wrong date on and apology was offered.
4. The landlord was not able to consult on changes to service provided only and not service charges as per the tenancy agreement. It stated consultation was completed in 2019/2020 and now fell outside the review timeframe.
5. The meal service cost £45.74 per week for residents not in receipt of Housing Benefit and £19.55 per week for residents who were in receipt of Housing Benefit. It suggested service charge disputes should be raised with the Service Charge Team.
6. The meal service would commence on 1 April 2022.
7. An apology was offered for inconvenience caused but the complaint was not upheld and the landlord found that all queries had been addressed in a timely manner or responded to further.
The resident’s power of attorney asked the landlord to escalate the stage one complaint on 10 April 2022 as it was not happy with the response, raising the following points:
1. The complaint response does not address all points of the complaint.
2. The period of the complaint was January to March 2022 and not August 2019 to March 2020 as the landlord stated and therefore it was wrong to state the complaint fell outside of the review timeframe.
3. He had not been contacted by a housing officer and stated correspondence between 26 January 2022 and 11 February 2022 did not address all points he had raised.
The landlord asked the resident’s power of attorney on 21 April 2022 if he wished for the complaint to be escalated.
On 11 May 2022 the landlord provided its stage 2 final response to the resident’s power of attorney with the following points addressed:
1. The letter dated ‘January 2022’ was addressed to all residents which is why it was specifically not addressed to the resident and was sent from a general mailing list, which is why the power of attorney did not receive a copy. It confirmed a note had been added to the resident’s record, so all further correspondence was sent to the power of attorney.
2. The landlord apologised for incorrectly stating consultation took place in 2019/2020 and no consultation was required for the meal service. It stated it could not comment on what the resident may have been informed in 2019/2020 as this was by a member of staff no longer employed by the landlord.
3. The landlord apologised for initially informing the resident of the incorrect cost of the meal service and it had provided guidance to the team responsible. The landlord provided an explanation of the process if the resident became entitled to Housing Benefit in future.
4. The landlord would query concerns about the resident potentially being charged twice for kitchen costs and would contact the resident in the future with the outcome.
5. The meal service was provided 365 days a year as required by the Council. The cost of £19.55 per week for residents claiming Housing Benefit is deemed a reasonable amount for customers.
6. The landlord apologised for the incorrect date being placed on the letter of 15 February 2022 due to a processing error. It stated it was unable to prevent these errors from occurring from time to time.
7. The meal service began on Monday 4 April 2022, and it could not refund the resident for costs on 1, 2 and 3 April 2022 as the resident had not been charged twice. It asked the power of attorney to provide any he had to the contrary.
8. It offered an apology for the stage one complaint not being responded to in complaint timeframe and for misunderstandings. The complaint was partially upheld and £25.00 compensation was awarded for time and trouble.
The resident’s power of attorney replied to the landlord’s stage two response raising concerns about the letter of 24 January 2022, and stating there had been a breach of tenancy and undertakings, misinformation about meal costs, double charge for kitchen costs, failure to explain charges for provision and service and incorrect start date for meal arrangements.
The landlord formally responded to the resident’s power of attorney’s correspondence of 6 June 2022 on 8 July 2022. It apologised that the letter from the contractor was not sent to him, as the contractor did not have access to the landlord’s system in accordance with GDPR. It stated the resident had not been charged twice at the start of April 2022 for the service and it began on 4 April 2022. It stated the charge was an additional £19.95 for the meal service and provided a breakdown. It apologised for the conflicting information and asked if the resident would like the £25.00 compensation to be paid. It advised the complaint could be raised with the Housing Ombudsman Service.
The resident’s power of attorney responded to the landlord’s email of 8 July 2022 on 30 August 2022 stating its response concerning GDPR was incorrect and all correspondence from the landlord and contractors on its behalf should be sent to the power of attorney. He stated the charge for meals was incorrect in law, could not be forced and was not mandated in the tenancy agreement and that the landlord recognised this by having residents sign the addendum. He believed a charge for maintaining the kitchen did not change this.
The resident’s power of attorney raised the complaint to the Housing Ombudsman Service on 2 September 2022 with the following points:
1. The meal service was introduced without consultation, which broke a promise from the landlord to discuss changes with tenants and their families.
2. The landlord breached the tenancy agreement by offering the meal service as mandatory with no choice offered for residents.
3. The landlord gave misleading information about the cost of the meal service and was not clear in answering questions relating to the charges for the meal service.
4. It was not made clear by the landlord if kitchen costs included in the new service costs for the meal service were a duplication of kitchen costs already paid as part of the service charge.
5. The power of attorney for the resident failed to receive information about the introduction of the meal service, despite the landlord being aware of the requirement to do so.

The landlord’s response to the resident and their power of attorney about its decision to implement a meal service

The landlord sent a generic letter to the resident dated January 2022 informing the resident of the meal service. The landlord stated in the stage one complaint an apology was provided for this prior to the stage one complaint but there is no evidence of this.
The letter dated January 2022 was not sent to the resident’s power of attorney despite the landlord being aware of this agreement, from at least 5 March 2018 when he signed the resident’s tenancy agreement.
The letter dated January 2022 offers no option to opt out of the meal service and therefore it infers the proposal is mandatory.
The landlord’s tenancy agreement states residents will be consulted on any significant changes in the service provided and where the landlord agrees a change a proposed consultation will be carried out with the tenants affected. The introduction of the meal service was a significant change, over and above the service previously provided, therefore residents and their families should have been consulted prior to the letter dated January 2022.
Further evidence of the meal service being a significant change was the requirement for residents to sign the addendum to the tenancy agreement to include the clause that the landlord would provide daily two course lunchtime meals and that the resident agreed to pay a service in addition to other services.
The landlord’s correspondence with the resident’s power of attorney between 25 January 2022 and 11 February 2022 addressed the following points:
1. The proposed meal service would replace any existing meal service for residents.
2. The regular increase included in the service charge related to the landlord’s allowance for 2022/2023 for inflation.
However, the landlord’s correspondence with the resident’s power of attorney between 25 January 2022 and 11 February 2022 failed to address the following points:
1. It did not address the cost of the meal service to the resident. The landlord’s final email concerning this stated the resident would be charged £45.74, made up of £19.55 personal charge and £26.19 as they were eligible for Housing Benefit. The resident was not eligible for Housing Benefit. The landlord’s figures are questionable given that residents eligible for housing benefit have to pay a higher amount.
2. It did not address if the service charge already included in the tenancy agreement for the kitchen is duplicated in the service charge or personal charge. The landlord just explained why there was a requirement for the new service charge thereby omitting to provide clarity on this particular point.
The landlord failed to respond to the resident’s power of attorney in its email of 13 February 2022 and emails to chase a response on 23 and 25 February 2022. It instead directed him to make a complaint on 28 February 2022. There was no good reason for the landlord not to have responded to the resident’s emails – landlords should generally seek to resolve issues at the earliest instance. In directing the resident’s power or attorney to make a complaint, the landlord unnecessarily prolonged the issue.

The landlord’s complaint handling, including its resolution of the complaint at each stage of its procedure

The stage one complaint was made on 3 March 2022 and acknowledged within the landlord’s 5 working days timescale. The full response was provided by the landlord on 31 March 2022. This was 10 days outside of the landlord’s timescale of responding within 10 working days.
The stage one complaint response correctly addressed the following points:
1. The landlord had communicated with the resident’s power of attorney in a timely manner.
2. It acknowledged and apologised that the letter received by the resident’s power of attorney on 15 February 2022 had the wrong date on it.
The stage one complaint response incorrectly addressed the following points:
1. The landlord incorrectly referred to the complaint being between August 2019 and March 2020, which it said was outside of the complaint timeframe. The complaint period was in fact January to March 2021.
2. The landlord had previously acknowledged the letter dated ‘January 2022’ was unprofessional and the resident’s power of attorney should have been sent a copy. There is no evidence the landlord previously stated either of these things.
3. The landlord stated it was only able to consult on changes to service provided and not on service charges. The landlord did not adequately explain why the introduction of the meal plan was not a change to the service and not just a change to the service charge. The fact that the landlord asked the resident to sign a new tenancy agreement underlines that the landlord’s explanation was not sufficiently detailed.
4. The landlord stated that the meal service costs £45.74 for residents not in receipt of Housing Benefit. This contradicted the landlord’s email of 11 February 2022.
5. The landlord stated that the meal service would commence on 1 April 2022, when in fact the service would commence on 4 April 2022.
6. The complaint was marked as not upheld despite there being parts of the complaint that were upheld and apology issued.
The stage two complaint was made on 10 April 2022 and acknowledged two days outside of the landlord’s five working days timescale. The full response was provided by the landlord on 11 May 2022. This was one day outside of the landlord’s timescale of responding within 20 working days.
The stage two complaint response reasonably addressed the following points:
1. The landlord explained why the letter dated ‘January 2022’ was sent and why the resident’s power of attorney did not receive a copy. Affirmative action taken to add a note to the resident’s record to send all further correspondence to the power of attorney.
2. The landlord acknowledged and sent an apology for the error in the stage one response regarding the complaint period.
3. The landlord acknowledged and sent an apology for the misinformation about the cost of the meal service
4. The landlord acknowledged and apologised for the incorrect date being added to the letter received on 15 February 2022.
5. The landlord confirmed that the meal service would begin on Monday 4 April 2022 and the resident had not been charged for 1, 2 and 3 April 2022.
6. The landlord acknowledged and apologised that the landlord failed to respond to the stage one complaint in its complaint timeframe.
7. The landlord offered compensation of £25.00 for the delay in replying to the stage one complaint, which was in accordance with its complaints policy.
However, the stage two complaint failed to reasonably address the following points:
1. Although a welcome step was taken to add a note to the resident’s record this should have been added sooner as the landlord was aware a power of attorney was in place. An explanation should have been provided why this was not done until this point.
2. There was no apology given about the stage one complaint which incorrectly stated the landlord had previously apologised for the letter of ‘January 2022’ and that it was not sent to the resident’s power of attorney.
3. There was a lack of clarity from the landlord whether the meal service was mandatory and if residents could opt out. The landlord stated this was required by the Council but it also stated a clause was required for the tenancy agreement. This was ambiguous and needed to be clarified. This point was not addressed at stage one or stage two.
4. The meal service charge was £19.55 per week, which seems to be confusing when the landlord has previously stated the cost to the resident is £45.74 per week.
As of the time of the complaint being referred to the Housing Ombudsman Service the resident’s power of attorney had not received the information from the landlord about costs being duplicated on the service charge for the cost of the kitchen.

Determination

In accordance with paragraph 52 of the HOS there was maladministration in respect of the landlord’s response to the resident and their power of attorney about its decision to implement a meal service.
In accordance with paragraph 52 of the HOS there was maladministration in respect of the landlord’s complaint handling, including its resolution of the complaint at each stage of its procedure.

Orders

The Ombudsman orders that within the next four weeks:
1. The landlord must take steps to ensure any correspondence required for the resident is sent to their power of attorney. This includes any third party working on behalf of the landlord. An explanation should be offered why this was not done until the stage two complaint.
2. If not already done so, the landlord must ensure information is provided to the resident’s power of attorney about whether the costs for the premises’ kitchen has been duplicated in the service charge. If this has been duplicated in error, the calculations must be shown and the resident must be reimbursed with the actual overpayment amount.
3. The landlord must provide an apology for incorrectly saying in its stage one complaint that an apology had previously been provided about the tone of its letter dated ‘January 2022’.
4. The landlord must provide clarification the resident and power of attorney on whether the meal service is mandatory due to being imposed by the Council or required by the landlord or whether residents have the opportunity to opt out of the service. An apology should be offered for failing to explain clearly this in previous correspondence.
5. The landlord provides final clarification on the meal service cost for the resident if this has not already been provided.
6. The landlord pays the resident compensation of
  1. £75 in respect of the distress and inconvenience and time and trouble experienced by the resident due to the failings by the landlord in respect of its response to the resident and their power of attorney about its decision to implement a meal service.
  2. £75.00 in respect of the distress and inconvenience and time and trouble experienced by the resident in due to the failings by the landlord in respect of its complaint handling.
  3. If the landlord has already paid the £25.00 previously awarded within the complaints procedure it should pay £125.00.