Metropolitan Thames Valley Housing (MTV) (202215915)

REPORT

COMPLAINT 202215915

Metropolitan Thames Valley Housing (MTV)

17 June 2024

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s handling of:
1. Cyclical redecoration and maintenance including its communication with the resident.
2. The resident’s complaint.

Background

The resident is the leaseholder of a second floor flat located within a block of 4 similar properties. The landlord is the freeholder of the building.
The resident pays the landlord a service charge for the repair, maintenance, renewal, cleaning and lighting of the common areas of the block and a contribution to a sinking fund.
On 3 October 2022 the resident made a stage 1 complaint to the landlord regarding the cyclical works to the block and communication by the landlord. She said:
1. The issue had been going on since 2019.
2. No cyclical maintenance had been done since 2010.
3. She was paying service charges but receiving no benefit.
4. The gutters were blocked and overflowed when it rained heavily.
5. The windows were single glazed which caused the property to be cold.
6. The external paintwork was peeling.
On 10 November 2022 the landlord served a Section 20 notice on the resident and other leaseholders in the block. It included a statutory notice of estimates and stated that the balance of the sinking fund would not cover the cost of the works.
The landlord provided its stage 1 complaint response on 17 November 2022. It said:
1. It apologised for the delays in its response.
2. A Section 20 notice was issued to residents on 10 November 2022 and outlined the works it intended to complete. This included replacement of windows and doors and redecoration works.
3. The previous Section 20 notice was incorrectly served at an estate level rather than block level so had to be served again.
4. The consultation period would close on 13 December 2022 and a decision would then be made about the contractor which would carry out the works.
5. It acknowledged delays in communication. There had been limited contact with the resident when she had taken the time to report her concerns.
6. The complaint was upheld.
7. The landlord offered £80 compensation comprising:
  1. £50 for time and trouble.
  2. £30 for poor complaint handling.
The resident escalated her complaint to stage 2 of the landlord’s complaint process on 12 December 2022. This Service has not been provided with a copy of her escalation request.
The landlord provided its stage 2 complaint response on 9 February 2023 but the letter was dated 27 January 2023. It said:
1. Delays in completion of the cyclical works:
  1. It had served a notice of intention to complete cyclical works in 2019.
  2. The COVID-19 pandemic caused significant delays and the notice of estimates was served in 2021 but there were issues with the notice.
  3. It had learned from its mistakes and revised its policy. Where there were plans to complete cyclical works every 7 to 8 years it would complete a stock condition survey at the 5-to-6-year mark to determine whether works were required.
  4. It would then carry out a ‘soft consultation’ prior to the Section 20 consultation to ensure residents were involved from the beginning of the process.
2. Delays in the consultation process:
  1. The lease required the leaseholder to contribute to a sinking fund to cover the cost of repairing, maintaining, renewing and managing the common parts.
  2. The common parts referred to in the lease were common areas of the estate such as roads, footpaths and gardens. It did not include common areas of the block such as landings, lifts etc.
  3. This was a “drafting error” as it would not usually collect a sinking fund only for works for the estate and not for maintenance of the buildings.
  4. It had “loosely” interpreted the covenant previously to mean that the estate included buildings. It would continue to use this interpretation unless leaseholders objected.
  5. The lease was drafted in such a way that the apportionment was a global charge for all blocks and leaseholders contributed to all blocks “irrespective of where they live[d] or [had] use/benefit of”.
  6. The estate had a mixture of tenures but when all leaseholders’ apportionments were added together it equaled 100%. This meant that leaseholders would cover the full cost of repairs and maintenance. It would not be contributing for its tenants whose contribution was included in their rent.
  7. It took the view that this was unreasonable and this was why it had reissued the Section 20 notices at block level rather than estate level.
  8. This meant that leaseholders only contributed to the cost of works in the building they lived in.
  9. The lease had a covenant which allowed the landlord to vary the service charge apportionment. It therefore adjusted the apportionment so that it contributed to mixed tenure blocks and estate works. It believed this was a fairer approach and reduced the contribution from leaseholders.
3. Communication:
  1. It was sorry that the resident had had to “continually chase for updates”.
  2. It should have kept her and other leaseholders more up to date.
  3. It understood how frustrating it must have been not knowing if and when works would be carried out.
  4. It should have provided realistic timelines to manage her expectations.
4. The resident’s request for a breakdown of quotes:
  1. This was requested on 15 November 2022 and provided on 21 November 2022.
5. Complaint handling:
  1. It had not complied with its own policy and the complaint had been open for longer than it should have been.
  2. Its communication with the resident should have been “more frequent and offered more conclusive updates”.
  3. It was reviewing the structure and practices of its complaints team to ensure a more effective service.
6. It partially upheld the complaint and increased its offer of compensation to £200 comprising:
  1. £80 offered at stage 1.
  2. £50 for communication delays.
  3. £50 for inconvenience.
  4. £20 for delays in its complaint response.
The resident has told this Service that she feels that the delays in the landlord’s handling of the works has resulted in higher costs which could have been avoided. She also said that the landlord’s communication throughout the process has made the impact of the issues worse.

Assessment and findings

Scope of the investigation

It is acknowledged that the resident has stated that the delays to cyclical works have been ongoing since 2019. The Ombudsman encourages residents to raise complaints with their landlords at the time the events happened. This is because with the passage of time, evidence may be unavailable and personnel involved may have left an organisation, which makes it difficult for a thorough investigation to be carried out and for informed decisions to be made. Taking this into account and the availability and reliability of evidence, this assessment has focused on the period from 2022 onwards. Reference to events that occurred prior to that date is made in this report to provide context.
The resident stated within her complaint that she believed the cost of the cyclical works was unreasonable and that the landlord had not adhered to statutory consultation requirements.
This investigation has not considered whether the service charge level is reasonable or whether the landlord has adhered to statutory consultation requirements. This is because these matters are more reasonably and effectively considered by the First Tier Tribunal (FTT).
The FTT deals with residential leasehold disputes between leaseholders and their landlords. It can make determinations on liability to pay a service charge, including the appropriate level and amount of service charges recoverable by a landlord. The FTT can also decide if the charges were reasonably incurred and statutory consultations requirements met.
The resident should contact the FTT if she wants a binding determination as to whether the charge is reasonable and payable.
This investigation has however considered whether the landlord responded appropriately to the resident’s concerns and complaint about the cyclical works, and whether it treated her fairly in the circumstances.

Handling of cyclical redecoration and maintenance including its communication with the resident.

The lease obliges the landlord to maintain, repair, redecorate and renew the structure, exterior, and common parts of the building. The lease is silent on the frequency of any works.
The resident stated within her complaint that no cyclical works had been carried out to the block since 2010. While this Service has not seen evidence of the date works were last completed, the landlord has not disputed the resident’s account.
The resident emailed the landlord on 15 November 2022 and asked to see the contractor’s quotes and how the costs to leaseholders were calculated.
The resident requested the information again on 21 November 2022. She said the landlord’s lack of response was preventing her from sending her observations on the Section 20 consultation.
At the time of the resident’s stage 1 complaint no cyclical works had been completed on the block in 12 years. She reported that the condition of elements of the common areas were unsatisfactory.
The resident described that the single-glazed windows caused the property to be cold and that there was paint peeling from the outside of the building.
While we have not seen evidence of the impact of the single glazing this Service considers that single glazing may have caused the property to be colder than if double-glazing was installed and that the cost of heating the property may therefore be increased.
The resident had expressed concern that the conditions within her property were poor as a result of the maintenance that was required. The delays therefore compounded this and the associated distress and inconvenience experienced by the resident.
The landlord’s planned investment policy states that cyclical works will be carried out “every 6 years subject to pre-condition surveys”. That no work had been completed in more than double this timeframe therefore fell far short of adhering to its own policy. No evidence has been provided that during this 12-year period any condition surveys were carried out that would justify such a delay. This was a failing.
On 3 December 2022 the resident emailed the landlord and made several observations on the Section 20 consultation. She said:
1. She questioned how the apparent shortfall between the cost of the works and the sinking fund balance was calculated.
2. The block had received no cyclical works for 12 years so she could not understand why there was not enough in the sinking fund.
3. The quotes provided by the contractors were “extortionate”.
It is recognised that the landlord noted that prior to the events considered by this investigation it had identified issues with the lease and the apportionment of service charges. This clearly caused delays as it had to examine the lease, consider how to respond to the challenges it posed, and then reissue the Section 20 notices.
It is accepted that ideally the lease issues would have been identified by the legal advisors for the landlord or the resident much sooner. It is of concern however that this Service has seen no evidence that the landlord made the resident and other leaseholders aware of the lease issue when it became aware of it. We have not seen evidence that it did so until its stage 2 complaint response in January 2023. This was an unreasonable delay.
The landlord responded to the resident’s Section 20 observations on 3 February 2023. It apologised for the delay in its response and said:
1. Inflation had had an impact on the cost of materials and labour over the 12-year period.
2. The works previously completed were not the same as those it was proposing to complete this time.
3. Further inspections would be carried out prior to the works and the resident was welcome to attend. If it was identified that elements were in good condition and didn’t require works, this would lower the cost.
4. It had had to reissue the Section 20 notice due to issues in its drafting. It outlined the issues which were previously addressed in its stage 2 complaint response.
5. The sinking fund would be used to offset the cost of works. Leaseholders would not be invoiced until 3 to 12 months after completion of the works during which time the sinking fund would increase. This would lower the upfront contribution from leaseholders.
6. If all leaseholders agreed, it could increase the sinking fund contribution so that there was more in the fund to cover future costs.
7. Due to the type of licence it had it could only offer a 12-month repayment plan due to Financial Conduct Authority (FCA) regulations.
8. It was however in the process of changing its licence to include extended payment terms. It hoped that this would be in place before the resident was invoiced.
9. Leaseholders could not replace their own windows as this would be a breach of the terms of the lease. All windows had to be in keeping with the estate.
The landlord’s response to the resident’s Section 20 observations were thorough and reasonable. It was not however reasonable that it took it 2 months to provide the response. This was a further example of communication delays which caused the resident frustration.
It is acknowledged that after the events of this investigation the landlord began sending monthly newsletters to the resident and other leaseholders in the block in relation to the Section 20 works. The contents, however, have not been considered as they were sent after the timeframe of the investigation.
Overall the landlord has not carried out cyclical works in line with the timeframe outlined in its planned investment policy. Nor has it demonstrated that it has carried out any stock condition surveys which justify why it has not done so. It is accepted that the COVID-19 pandemic caused delays and that issues with the lease caused further delays. These issues did not however explain the full extent of the delay and this Service has not seen evidence that the landlord communicated the delays to the resident. The landlord has delayed in responding to the resident’s queries and this has clearly caused additional avoidable time, trouble, distress and inconvenience. Consequently there was maladministration in the landlord’s handling of cyclical redecoration and maintenance including its communication with the resident.

Handling of the resident’s complaint

The landlord operates a 2-stage complaints process. It states it will respond to stage 1 complaints within 10 working days and stage 2 complaints within 20 working days.
The policy states that it will only complete a stage 2 investigation when:
1. The response received at stage 1 was factually incorrect.
2. The response received did not address the initial complaint.
3. Important information provided in the initial complaint was not considered.
4. Actions agreed at stage 1 had not been completed.
It is noted that in accordance with the Ombudsman’s Complaint Handling Code (the Code) we would expect the landlord to escalate the complaint unless there is a valid reason not to do so. The reasons for declining to escalate the complaint should be specific to the circumstances. We do not consider it fair or reasonable that a threshold should have to be met for a resident’s complaint to be escalated.
Under powers introduced by the Social Housing (Regulation) Act 2023 compliance with the Code is now a statutory requirement and all member landlord’s will be completing a self-assessment against the Code 2024, which came into force on 1 April 2024. For this reason, no additional order has been made for the landlord to review its policy. However, when carrying out its self-assessment the landlord is encouraged to review this particular part of its policy and ensure that it is Code compliant.
In January 2024 this Service identified similar issues in another case involving the landlord (202011109). In that case the landlord failed to deal with all aspects of the resident’s complaint declining to investigate the complaint due to the thresholds referred to within its complaint policy. This Service made a wider order in that case under paragraph 54.g of the Scheme.
We ordered the landlord to review its processes and procedures in relation to its complaint handling. It was ordered to explain how it would ensure that it responded to complaints within an appropriate timeframe and ensured that its complaint responses deal with all complaint points raised.
The landlord has provided this Service with a report outlining how it will improve its complaint handling. A further wider order has therefore not been made but this Service will monitor the landlord’s performance in future investigations.
It took the landlord 33 working days to provide its stage 1 complaint response. This is a considerable deviation from its policy, and it is unclear why there was a delay. This was unreasonable and a complaint handling failing.
While the stage 1 complaint response acknowledged that there had been delays in its cyclical maintenance, it failed to acknowledge the full extent of the delays.
The response explained that the Section 20 notice in 2021 had been incorrectly served and so had had to be served again in 2022. It did not however explain at this time why the notice had been served incorrectly or disclose the issues identified with the lease. Nor did it provide a reasonable explanation as to why no works had been completed between 2010 and 2022. That it did not do so wan unreasonable.
The landlord accepted that there had been communication delays in its stage 1 response but did not acknowledge the impact that the delays had had or explain what it would do to prevent the issue happening again.
The landlord offered the resident £80 compensation for communication and complaint handling failures. It did not offer any compensation for any failures in its handling of the cyclical works. This Service does not consider that the compensation offered by the landlord was proportionate or provided sufficient redress. The landlord therefore failed to act in line with the Ombudsman’s dispute resolution principles as it did not demonstrate that it had put things right.
The landlord has not provided this Service with a copy of the resident’s stage 2 complaint escalation request or contemporaneous notes relating to a verbal request. This Service would expect the landlord to keep thorough records of all contact with a resident, particularly that in relation to a complaint.
The resident emailed the landlord on 25 January 2023 and said she had not received a stage 2 complaint response within the indicated timeframe. The landlord replied on the same day and apologised for the delay. It said it was waiting for an update from the maintenance team and aimed to respond that week but would let her know if it would be unable to.
The resident emailed the landlord again on 31 January 2023 and asked it to provide a timeline for an update on her stage 2 complaint.
It took the landlord 32 working days to provide its stage 2 complaint response. It is accepted that it told the resident on 25 January 2022 that the response would be delayed. However, it only did so after the resident chased for an update.
The extension request was not in line with the Code 2022, which was in place at the time of the complaint. This states an extension request should “provide an explanation to the resident containing a clear timeframe for when the response will be received”. That it did not do so was a further failing.
The landlord’s stage 2 complaint response was very thorough. It is noted that it explained clearly the issues with the lease and the apportionment of the service charges. This was positive.
The response also acknowledged several failings in its handling of the process and its communication. It did not however explain why no cyclical works had been carried out since 2010 and so failed to fully acknowledge the extent and impact of the delays.
It is however noted that within its stage 2 complaint response the landlord did outline several specific changes to its policies and practices that it had made in response to the resident’s experiences. This is encouraging and this Service expects that the changes will improve resident experience going forward.
Overall the landlord’s complaint handling was slow and not in line with the landlord’s own policy or the Code. While the landlord accepted some failings it did not acknowledge the full timeframe of the issue and therefore did not demonstrate that it understood the full impact of the failings. The compensation offered by the landlord was not proportionate and failed to put things right. Therefore there was maladministration in the landlord’s handling of the complaint.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
1. Maladministration in the landlord’s handling of cyclical redecoration and maintenance of the block including its communication with the resident.
2. Maladministration in the landlord’s handling of the resident’s complaint.

Orders and recommendations

Orders

Within 4 weeks of the date of the report a senior officer of the landlord to apologise to the resident for the failings identified in this report in line with the Ombudsman’s remedies guidance.
Within 4 weeks of the date of this report the landlord to pay the resident £800 compensation comprising:
1. £500 for time and trouble, distress and inconvenience in relation to the landlord’s handling of cyclical redecoration and maintenance of the block including its communication with the resident.
2. £300 for time and trouble in relation to its handling of the resident’s complaint.
3. This is in addition to the compensation offered to the resident in the landlord’s stage 2 complaint response.
Within 8 weeks of the date of this report the landlord to complete a review of this case in relation to the failings identified in this report. The review should consider:
1. The reasons for the delays in completing cyclical works between 2010 and 2020.
2. How the landlord’s policies and practices impacted the delays.
3. Whether the changes in policy and practice implemented by the landlord following the events in this case have improved resident experience.
4. Whether further changes to policy and practice are required.