Network Homes Limited (202120408)

REPORT

COMPLAINT 202120408

Network Homes Limited

28 October 2022

Our approach

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

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

The complaint

The complaint is about the landlord’s response to the resident’s reports about:

Allocation of parking bays.
Its management of the parking area.

The landlord’s complaints handling has also been investigated.

Background and summary of events

The resident has been the landlord’s leaseholder since July 2017. She has been invoiced for and has paid for a specific parking space on the landlord owned premises throughout her occupation at the property. This is a mixed-tenure development owned by the landlord where leaseholders are generally allocated specific parking spaces demised within their leases, while tenants are not, but have a general right to park in unallocated spaces which are also open to residents’ visitors. The resident’s lease says this is subject to a payment of a permit fee of £15 per year, subject to “reasonable variation”; she was in fact billed £227 for year beginning April 2020.
Since at least April 2018, the resident has made repeated reports to the landlord that she could not use what she understood to be her parking bay because others were parking there, or that she could not access it safely because of obstruction caused by others parking in adjacent areas that were not allocated bays. In April 2020, the landlord wrote to all of the residents saying that some were parking in wrong bays, warning them not to, suggesting that this may arise from uncertainty whose bay was which, and therefore confirming allocated bay numbers. The landlord’s letter to the resident at this time confirmed allocation of a specified bay which matched the resident’s own belief, as stated in her earlier correspondence to the landlord.
On 10 November 2020, the resident formalised her complaint, saying the landlord had failed to address earlier communication over apparent duplicate sale of the same bay to more than one resident, or her reports of cars parking in the wrong bays. On 23 November 2020 the landlord replied accepting some duplication, stating solicitors had been consulted, and promising further contact after full investigation, to amend leases and correct allocation.
The resident escalated her complaint to stage 2, saying that the landlord had stated neither next steps nor any timeline in its response. The landlord then issued a stage 2 final response, saying that it must establish “who owns what and if there are any free bays”, repeating it had sought legal advice, and promising it would amend the resident’s lease to clarify parking bay allocation once this process was complete.
In February 2021 the resident, having heard nothing further, again complained about the landlord’s failure to control and regulate parking to enforce existing allocations. The landlord refused to consider a further complaint saying it had already exhausted its internal complaints procedure. The resident replied that it had not, but had only responded in regard to duplicate allocation, which she felt was a separate issue.
In March 2021, the landlord wrote to the resident saying that she did not after all have any allocated parking space. It said that it would refund any parking fee paid, and terminate her “parking account”. In further correspondence, the resident continued complaining about lack of parking enforcement and the landlord promised to take steps to enforce parking restrictions “shortly”, but to date, the allocation question does not appear to have been resolved, and the Ombudsman has seen no indication that any steps to enforce have yet been taken.
The resident has confirmed to this Service that she remains dissatisfied with the landlord’s response to the issues relating to parking bay allocation and parking enforcement. She also confirmed that she was dissatisfied with the landlord’s refusal to progress her further complaints on these issues.

Assessment and findings

Allocation of bays

An email exchange between the landlord and its solicitor from 13 to 23 October 2020, shows that the solicitor was asked to review lease and tenancy provisions, and specific parking bay allocation records, in order to advise the landlord on discovery that some bays may have been allocated twice. The solicitor confirmed to the landlord that a number of bays were indeed allocated twice, but that the one in use by the resident was not one of these. However, the solicitor added: ‘we have only had sight of the lease signed by Network Homes which has a blank space where a car parking space number would appear. Therefore, legally, a car parking space has not been allocated. We have tried to obtain a copy of the counterpart lease signed by the other party, however this is not available to view.’
It is reasonable to assume that the solicitor would not have made a point in this context, of seeking sight of the resident’s counterpart, nor have stressed that it had not seen it, unless of the opinion that it may differ from the landlord’s copy and that this may affect the advice given. Yet there is no evidence that the landlord took any step to gain sight of the resident’s copy for its solicitor to review the question further. The Ombudsman has also not had sight of the resident’s copy of the lease and is unable to speculate on what this document might state, including whether or not it confirms a demised parking space.
In any case, the Ombudsman does not have the authority to make binding decisions as to the interpretation of the wording of a lease agreement between a landlord and leaseholder, something which is more appropriately handled by a court of law. It is of relevance to this complaint however, that the history of the case shows a prolonged period, dating back to the beginning of the resident’s occupation, where she understood that she had a specific designated parking space, for which she paid any monies due for said space.
In an exchange of emails on 10 April 2018, the first of which is not provided to the Ombudsman, the resident requested a change of parking bay. The context suggests that in the missing initial email, the resident had identified the bay she considered her own. In any event, she clearly identified it in the next email by reference to the numbers of those either side of it. The landlord refused her request because ‘the bays have been allocated and I could not now change the allocation’. There is no suggestion from the landlord, of any dispute that the resident did in fact have an allocated parking space, and that it was the one she had identified.
On 30 March 2020, the landlord sent the resident a statement of her parking bay charges for the forthcoming year from 1 April 2020. It confirmed that no balance was carried forward unpaid, implying that payment had previously been made as required. It added: ‘If you are not the property owner please ensure that you pass this letter to the current owner’. This clearly demonstrated the landlord’s knowledge that the present occupant may not necessarily always be the leaseholder, but belief that where this was the case, the allocated parking bay was linked to the lease, and not to any resident who may be a sub-lessee or sub-tenant, to whom it could have been allocated on any separate later request.
On 1 April 2020, the landlord wrote to the resident expressly confirming that a specified numbered bay, matching that she herself had previously stated, was indeed allocated to her. On 22 October 2020 the resident emailed the landlord, confirming her agreement with the same parking bay allocation.
On 10 November 2020 the resident formalised her complaint, referring to the bay assigned to her “when the property was completed”. No part of the landlord’s stage 1 response cast any doubt whatsoever on this assertion. Its preliminary acknowledgment dated 11 November made no comment on it. Its substantive stage 1 response twelve days later (and, notably, more than 6 weeks after receipt of its solicitor’s opinion that no bay was allocated to the resident) expressly referred to the resident’s dissatisfaction ‘because it seems that your parking space has been sold twice’, and in no way challenged the premise of the complaint, instead confirming ’some duplications on the allocation of the parking spaces that were sold.’
The history of the case between April 2018 and November 2020, as detailed in the above paragraphs clearly indicates that both parties viewed the parking space to have been designated to the resident. However, we also know the landlord had obtained legal advice in October 2020 that indicated that the resident had no legal right to this space under the terms of the lease (albeit with the qualification that the resident’s actual lease agreement had not been seen). It is expected then that, having received the resident’s formal complaint on this issue in November 2020, the landlord would make reasonable provision for the fact that it had not disputed the resident’s right to have a designated space on the premises in its response to her.
The landlord’s stage 1 response confirmed that it had requested its solicitor’s to review all relevant leases to check whether any further duplicate allocated spaces had taken place. Following this, the landlord agreed that to contact all affected parties and prepare amendments to leases confirming allocation of parking bays. It is clear then, that the landlord did not seek to question the resident’s entitlement to a parking bay, nor that the entitlement arose from the lease itself. Rather, the landlord believed it had inadvertently allocated – or sold – some bays twice, and it undertook to resolve that error.
The resident immediately escalated her complaint to stage 2 of the landlord’s internal complaints process, stating that the landlord had admitted to what she called ‘double-selling’ bays but had offered no clarity on next steps to be taken, and no timeline for resolution.
The landlord’s stage 2 and final response, dated 10 December 2020, again made no suggestion that there was any doubt whether the resident in fact owned a parking bay. Instead, expressly using the word “own”, it said that it needed to ‘establish who owns what and if there are any free bays… we have sought legal advice and are going through the lengthy process of reviewing all leases… Once we have completed our investigation, we will contact you, prepare amendments to your lease and advise on the parking bay that will be allocated you’. Yet again, then, the landlord accepted the principle that the resident was entitled to a specific allocated parking bay, and again stated that if it proved necessary after further investigation, it would amend her lease to allocate another.
The landlord’s overall response to this issue confirms some significant concerns with its record keeping. It confirmed an allocated space to the resident and billed her for it, then suggested that some spaces may be double-allocated but that it did not know which, then instructed solicitors to review allocation and then – after solicitors confirmed that some were indeed double-allocated – told the resident she did not have one at all. This clearly shows very serious shortcomings in the landlord’s administration and record-keeping.
That said, the landlord’s response, as confirmed through its complaint response, presented as resolution focused. The landlord agreed to reimburse costs already paid by the resident for her space. This was appropriate as no basis for charging any sum had been evidenced. In addition, it is reasonable to conclude from its final response that it intended, or intends, to ensure that the resident (and any other residents similarly affected) is designated a parking space, with a new lease (or amended lease) drawn up to confirm this. Given that the resident had herself requested a different parking space previously, it is evident that she had flexibility on the actual designation of the space and that, in fact, an alternative space may be preferable for her.
It is not known however, whether this process has reached a conclusion. If this is the case, the landlord is expected to provide evidence of this to both the resident (if it has not already done so) and to this Service. If the landlord has not yet completed this process, it is now ordered to do so within the timeframe detailed below.
In addition, though the landlord’s response is considered largely reasonable, it cannot be ignored that the resident has clearly gone through a distressing period in pursuing this issue. For that reason, together with the record keeping and administration issues identified here, an overall finding of maladministration has been identified here, with further orders to pay the resident compensation to reflect her experience and for the landlord to review the case so that other such issues can be identified and addressed across its property portfolio.

Parking management

It is not clear that the landlord has any general duty to enforce parking restrictions, but insofar as the request to do so is a request to enforce the resident’s rights against other residents, the lease makes clear that it must assist with such requests. However, the lease also makes clear that the landlord is entitled to charge the resident the full cost of doing so. It has now agreed to do so, but has not yet taken any action beyond writing to leaseholders to remind them which bay is theirs.
The landlord’s letter did not specify any action to be taken against leaseholders who parked in other people’s spaces. It is not clear whether the landlord sent any similar letter to tenants, who are not allocated a parking space but are free to park in visitor spaces. Nor is there any evidence that the landlord has taken any step to erect signage or otherwise inform tenants and visitors, which spaces are available to them and which are privately owned by leaseholders.
On 8 March 2021 the landlord wrote to the resident that it had ““just completed allocation of [parking bays, and would] shortly introduce parking control [taking] appropriate action… against owners of [offending] vehicles…[although] unable to confirm… [a] time scale”. There is no evidence it has yet done so, or confirmed any allocation to the resident.
Given the recharging implications of enforcing on the resident’s behalf, it is presumed that the landlord would need to consult with all residents before doing so, and to form a view on what if any enforcement was appropriate, based on the result of that consultation. There is no evidence that the landlord has undertaken any such exercise despite its promise to start enforcement action.
For the landlord’s failure in progressing this issue, a finding of service failure has been identified here, with an order that the landlord clarify to the resident the steps it will now take to provide reassurance that it has taken this issue seriously and explored all possible options for improving the situation. In addition, a further amount of compensation has been ordered to reflect the detriment experienced by the resident on account of the landlord’s delay in progressing this issue.

Complaint handling

The landlord has sent the resident two complaint responses, at both stage 1 and stage 2, without ever stating whether or not her complaint was upheld. It has declined to accept and consider a further complaint about enforcement on the basis that it says the resident has exhausted its complaints procedure, while she rightly points out that, even if that was indeed part of her initial complaint, it is not a part the landlord has ever responded to, as it only responded on questions of allocation.
It is essential that landlords progress and respond to issues raised through its complaints process. It is good practice for a landlord to look to find reasons to bring complaints within such a process rather than seeking to rule issues as outside the scope of the complaints process. This fosters a stronger landlord/tenant relationship and allows for areas of potential service failure to be identified and addressed.
On account of the failure to follow a fair complaints process here, a finding of service failure has been identified, with an order to pay further compensation to the resident to reflect this.

Determination (decision)

In accordance with paragraph 52 of the Scheme, there was maladministration with respect to the landlord’s response to the resident’s reports about the allocation of a parking space.
In accordance with paragraph 52 of the Scheme, there was service failure with respect to the landlord’s response to the resident’s reports about parking management.
In accordance with paragraph 52 of the Scheme, there was service failure with respect to the landlord’s complaints handling.

Orders and recommendations

Orders:

The landlord to pay the resident compensation of £400, broken down as follows:

£200 for the failures identified relating to the allocation of a parking space.
£150 for the failures identified relating to parking management.
£50 for the failures identified relating to complaints handling.

The landlord to confirm to both the resident and this Service that it has completed its review of the allocation of parking spaces on the premises, including confirmation of which space has been allocated to the resident.
The landlord to review the case and put in place a process that ensures that similar issues relating to the allocation of parking spaces have not occurred elsewhere across its portfolio.
The landlord to write to the resident (providing a copy to this Service) outlining the steps it will take to improve the parking issues on the premises. This written response will outline the consultation process and any expected costs of putting in place an enforcement system, together with any other actions it will take.
Evidence of compliance with the above orders to be provided to this Service within 28 days of this report.