One Housing Group Limited (202007494)

REPORT

COMPLAINT 202007494

One Housing Group

9 June 2021

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 level and reasonableness of the service charges paid by the resident.
2. The landlord’s response to the resident’s queries regarding service charges.
3. The landlord’s response to the resident’s request for information concerning cladding on the building which the property is situated in, including the production of form EWS1.
4. The landlord’s complaint handling.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint, or aspects of a complaint, will not be investigated.
Paragraph 39(g) of the Housing Ombudsman Scheme sets out that the Ombudsman will not consider complaints which concern the level of rent or service charge or the amount of the rent of service charge increase.
Paragraph 39(i) of the Housing Ombudsman Scheme sets out that the Ombudsman will not consider complaints which, in the Ombudsman’s opinion, concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.
As part of the resident’s complaint she raised concerns regarding the level and reasonableness of the service charges she pays under the terms of the property’s lease. The resident suggested that the service charges were too high and did not reflect value for money.
The First Tier Tribunal Property Chamber (the FTT) deals with residential leasehold disputes between leaseholders and their landlords. The FTT can make determinations on all aspects of liability to pay a service charge and/ or administration charge, including by whom, to who, how much and when a service charge is payable. In order to decide liability the FTT also decides whether service charge costs have been reasonably incurred and if so whether the standard of any services or works for which the costs are charged is reasonable.
In accordance with paragraphs 39(g) and 39(i) of the Housing Ombudsman Scheme, the Ombudsman will not consider the complaint about the level and reasonableness of the service charges payable under the lease as the Ombudsman considers that this is a matter where it would be more effective to seek a remedy through the FFT, which can issue a binding decision on the level and reasonableness of the charges in dispute. While the Ombudsman cannot determine this aspect of the complaint it will be referred to as it provides context to the matters which the Ombudsman can determine.

Background and summary of events

Background

The resident is the leaseholder of the property (the property) which the complaint concerns.
The property is a flat situated in a purpose-built block (the block).
The landlord is not the freeholder of the building. The freehold of the building is owned by a third-party private company (the freeholder). The landlord holds a tri-partite head-lease with the freeholder and a management company (the company) who are responsible for the repairs and maintenance of the building. The company employs an estate management agent (the agent) to undertake its management functions in line with the terms of the lease.
The landlord holds an under-lease with the resident.

Summary of events

On 24 March 2020 the resident wrote to the landlord regarding the service charge. In summary the resident said:
1. She was concerned regarding “yet another astronomical service charge increase for what [was] an extremely poor-quality service”.
2. The service charge had increased for a third year in a row above the rate of inflation.
3. While the recent report on service charges detailed what money was spent on, it raised “serious questions” and provided “no evidence that a legitimate tendering process [was] being carried out”.
4. The cost of estate management was £211,794.55 however no real service was provided. The resident noted that windows were not cleaned, carpet cleaning was sporadic, lights did not work, repair timescales were protracted, and the lift was frequently out of action.
5. The cost to maintain the communal podium was £35,414.27 which was concerning as the podium was “three squares of grass and some concreted areas”.
6. The cost to maintain the heating and hot water system was £39,439.14. The resident noted that the system frequently broke down.
7. Despite raising concerns regarding the service charge “various times” the landlord had not responded.
The resident concluded by requesting that the landlord address her service charge concerns in addition to explaining why form EWS1 had not yet been provided for the building.
On 2 April 2020 the landlord acknowledged the resident’s correspondence and confirmed that it would provide a response by “the end of next week”.
On 15 April 2020 the resident chased the landlord for a response. The landlord acknowledged the chaser on the following day advising that it would make enquiries internally.
On 4 June 2020 the resident wrote to the landlord setting out that it was unsatisfactory that it had not yet replied to her correspondence dated 24 March 2020. In summary the resident said:
1. She “assumed” that the landlord had “absolutely no idea where the service charge money [went]” as it had “absolutely no handle on the management company [it chose] to employ”.
2. She understood that two surveys had been undertaken (January and April 2020) in relation to fire safety and cladding which identified “flammable material”. The resident stated that it was unsatisfactory that no update had been provided to residents.
3. As the building did not have form EWS1 detailing that there were no fire or cladding issues, residents were unable to sell or re-mortgage their properties.
4. She had enclosed a letter from the local authority which indicated that the management company had “fallen [foul] of regulations and [were] refusing to complete compulsory paperwork showing that the building [was] safe” in relation to fire safety.
On 5 June 2020 the landlord wrote to the resident. The landlord apologised that she had not received a response to her correspondence. The landlord requested to speak with the resident prior to providing a response.
On 9 June 2020 following a phone call with the resident the landlord said it would make internal enquiries so that it could address her concerns in relation to service charges and cladding.
Later on 9 June 2020 the landlord wrote to the resident setting out that it had spoken with its cladding team who advised the following:
1. The building was managed by the agent.
2. It was not the freeholder of the building.
3. The freeholder and agent were responsible for the external wall system and would have the relevant information regarding cladding.
Following several further email exchanges on 9 June 2020 the resident stated that it was unsatisfactory that it was the landlord’s position that she must contact the freeholder and agent for an update in respect of the cladding. The resident said she was unclear of the landlord’s “role in [the building]”.
On 11 June 2020 the landlord wrote to the resident to explain its role in the building. In summary the landlord said:
1. It had a headlease with the freeholder.
2. The freeholder had employed the agent to act on its behalf and to complete all “landlord actions” required under its headlease with it.
3. It did “not have a direct contractual relationship with the freeholder* but as they [acted] on behalf of the freeholder, they [would] carry out services and maintenance and [would] bill [it] as per [its] head lease and [it would] in turn pass on [those] costs to [its] tenants and sub-lessees”. [The Ombudsman understands that freeholder* should refer to the agent here].
4. Where the agent did not complete the freeholder’s obligations it could approach the freeholder to ask them to investigate/ take action.
5. As the query for cladding related to form EWS1 contact with freeholder or the agent was required.
On 15 June 2020 the resident responded to the landlord. In summary the resident said:
1. She formally requested that the landlord contact the freeholder and the agent in respect of the following matters:
  1. A full breakdown and justification of all charges relating to the service charge for the past two years.
  2. A justification of the 15% rise in service charges over the past two years.
  3. Evidence that the tendering process was carried out for contracts with all maintenance companies including explanation detailing why a contract was won.
2. As her contract was with the landlord, and she paid her service charge contribution directly to it, it “shared responsibility for how the money [was] spent”. The resident added that the landlord was therefore responsible for ensuring that she received “best value for money”.
3. In respect of cladding the landlord shared responsibility for ensuring that leaseholders’ properties were safe, in addition to re-mortgageable.
The landlord acknowledged the resident’s correspondence on the same day.
On 26 June 2020 the resident wrote to the landlord requesting a response to her queries about “service charges, tendering process and [its] commitment to solving the cladding situation”. The resident stated that she was in possession of an email from the agent which set out that the landlord had “responsibility for servicing the interests of tenants and helping to solve all issues”. The resident said if this was not the case the landlord should respond setting out how it would be holding the agent accountable for “dereliction of duties”. The landlord acknowledged the correspondence on the same day.
On 9 July 2020 the landlord wrote to the resident’s Councillor following an enquiry they had made on the resident’s behalf in relation to compliance with the Government’s guidance on fire safety and cladding. In summary the landlord said:
1. It was “doing all [it] could” to aid leaseholders during this difficult time in relation to building safety which was impacting on their sales and mortgages.
2. It would like to provide clarity regarding ownership of the building and liability for the external wall systems. The landlord set out:
  1. It was not the freeholder of the building. The freeholder took ownership in 2017, following the original freeholder selling the freehold.
  2. It held a tri-partite headlease for the property with the freeholder and the company.
  3. In line with the headlease the freeholder and company were responsible for the repairs and maintenance of the fabric of the building which included the cladding and external walls.
  4. The company had instructed the agent to undertake the management functions on its behalf.
  5. It had no direct relationship with the agent beyond the agent “billing [it] for service charges on behalf of the company”. The landlord stated that “to be clear [it had] not instructed the agent as this [was] done by the other parties to [the headlease] to manage their responsibilities”.
3. It passed the appropriate service charge costs to its sub-leases.
4. Invoices from the agent “probably [did] not” provide the level of detail residents wished to see as they were usually a summary of costs for six months. The landlord noted that its service charge team could request further information from the agent for services that its residents felt were unreasonable. The landlord said that the resident could take up this offer and provided contact details.
5. The service charge accounts were reconciled following the end of each year to ensure that the amounts charged to leaseholders were reflective of the actual services provided.
6. The company had recently made “some substantial changes to their board so that [it] could refocus their attention on building safety”. The landlord confirmed that it had enclosed a copy of the company’s update to leaseholders detailing next steps regarding cladding. The landlord noted that the company had requested that it provide “important sign off and build information” to assist in recovering costs for remediation works from companies involved in construction and sign off of the building.
7. It was unable to advise on the potential costs or start date for remediation works in relation to fire safety and cladding however once this information was available it would share it with its leaseholders.
8. It had reviewed the plan from the company detailing its response to the Government’s guidance on fire safety and cladding and it was “confident that the new board of directors [had] a clear grasp on the importance of resolving this matter as quickly as possible and [it would] be supporting them where possible”.
Following receipt of the landlord’s letter to the MP the resident wrote to the landlord, date not known, to “discuss the points raised” (correspondence A). In summary the resident said:
1. She did not feel that the landlord’s response was sufficient in responding to “serious questions with regards to safety and service charges” for the building.
2. She did not believe that the letter demonstrated that the landlord was taking its role as head leaseholder seriously enough including by ensuring that it shared information and updates with its leaseholders from the company or the agent.
3. While the landlord said it was doing all it could to assist leaseholders in respect of the cladding issue the landlord had not provided further details. The resident requested clarification.
4. She was aware that the agent had provided details to the landlord regarding form EWS1 however this had not been shared by it.
5. She believed that the landlord was quick to deny any responsibility for any matters related to the service charge or maintenance of the building.
6. As she paid her service charge portion to the landlord it was responsible for holding the agent to account for services provided.
7. She currently paid £212 service charge a month however the service provided by the agent was unsatisfactory including sporadic cleaning and a poor repairs service.
8. She was not aware that there was a tri-partite headlease.
9. She had “spent two and a half years emailing the general address and phoning the number provided in the letter to ask for a more detailed breakdown of the sky-high service charges and evidence of tendering process for maintenance and repairs” however the landlord did not respond.
10. The service charge “booklet” provided by the landlord was “vague but also extremely alarming in terms of costs”. The resident stated that “costs for pretty much everything [were] extremely high and not providing value for money”. The resident cited the boiler costs as an example. The resident also advised that it was concerning that there was no sinking fund.
11. It was concerning that the landlord had not taken up a place on the company’s board. The resident suggested that a leaseholder should be allowed to take up this position if the landlord was not inclined to do so.
The resident concluded by requesting:
1. Information detailing the steps the landlord was taking to ensure that the building was made safe in respect of fire safety.
2. Confirmation that the landlord would “taken a more determined approach… and [would] actively work with [the agent]”.
3. A copy of the tri-partite head lease.
4. Details on how the landlord responds to “complaints [and] enquiries” from leaseholders.
5. An investigation into service charges for the past two years.
6. Permission for a leaseholder to become part of the company’s board.
On 19 October 2019 the resident wrote to the Ombudsman to complain that the landlord had failed to respond to her concerns in respect of service charges and cladding. The resident said that the landlord had refused to look into, or address her concerns, that the service charges were “extremely high, increasing each year and not providing value for money”. The resident noted that she had been requesting a comprehensive response since May 2018. Within her correspondence the resident referenced her recent undated communication to the landlord – correspondence A.
In response to the resident’s referral the Ombudsman contacted the landlord to make enquiries on 11 November 2020. The Ombudsman asked the landlord to provide the resident with a complaint response under its complaint procedure if it had not already done so.
The resident informed the Ombudsman that the landlord contacted her on 11 November 2020 confirming that it would provide a response within 10 working days.
On 15 December 2020 the landlord responded to the resident’s concerns formally under its complaint procedure following a phone call with her on 11 November 2020. In summary the landlord said:
1. The resident confirmed on 11 November 2020 that her complaint was about:
  1. Lack of engagement with her service charge query over the past two years.
  2. Concerns about the administration of service charges.
  3. Health and safety concerns about cladding.
2. It was sorry that it had failed to engage with the resident to resolve her service charge and “other queries”.
3. In relation to the administration of service charges:
  1. The agent was employed by the freeholder of the building to manage, maintain and provide services.
  2. The agent bills it for its share of costs in delivering these services which it passed onto the resident under the terms of her lease. The landlord explained that its lease with the freeholder had a service charge year that ran from January to December whereas the resident’s lease with it ran from April to March. The landlord stated that this added “some complexities to this process”.
  3. It believed that it had been administering the resident’s service charge in accordance with clause 3.31 of the property’s lease.
  4. For financial year 2019-2020 it had replicated the agent’s estimated charges in its estimates to be transparent.
  5. It had enclosed a copy of the 2019-2020 and 2020-2021 estimated service charge booklet and copies of the agent’s charges which set out what costs the resident had been charged for.
4. In relation to cladding:
  1. In accordance with the tri-partite head-lease the freeholder and company were responsible for the repairs and maintenance of the fabric of the building which included the cladding and eternal walls. The landlord explained that these parties had “undertaken the checks for [the building] and [had] done this via [the agent]”.
  2. The company had recently made some substantial changes to their board so that it could refocus their attention on building safety.
  3. The company had asked it (the landlord) to provide “important sign off and building information… to enable them to make the most of any processes they can pursue to recover costs for the remediation works from third parties that were involved with the construction and sign off of [the building]”.
  4. It was unable to advise on the potential costs or start date for remediation works but would do so when the information was available.
  5. It had reviewed the company’s plan in relation to resolving the cladding issue and was “confident” that it was appropriate to resolve the matter.
The landlord concluded by confirming that it upheld the complaint “in part”. The landlord said that while it “understood the inconvenience and frustration caused to [the resident] by the lack of response from [the company] and [its] lack of engagement with [her], [it believed] that [it was] administrating [her] service charges correctly and [was] doing all [it] could in relation to the cladding”. The landlord confirmed that it would improve its communication with the agent in 2021. The landlord said it would like to offer the resident “£50 as a good will gesture” for its “lack of engagement” and “failure to respond” to the resident’s complaint in the agreed timescales. The landlord explained that the resident may refer her complaint to the Ombudsman if she was not happy with its response.

Assessment and findings

The landlord’s response to the resident’s queries regarding service charges

It is noted that the resident reports that she has been raising queries regarding the service charges payable under the property’s lease since May 2018, however the landlord has not responded. The Ombudsman cannot see that the resident made a complaint to the landlord at that time.
Paragraph 39(e) of the Housing Ombudsman Scheme states that the Ombudsman will not consider complaints which, in the Ombudsman’s opinion, were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within six months of the matters arising.
As the substantive issues become historic it is increasingly difficult for an independent body, such as the Ombudsman, to conduct an effective review of the actions taken to address them. In view of the time periods involved in this case, taking into account the availability and reliability of evidence and the Ombudsman’s jurisdiction, this assessment will therefore only look at the landlord’s response to the resident’s queries regarding service charges from March 2020. This is because the resident’s correspondence dated 24 March 2020 prompted the complaint.
As the resident’s contract for the property, the lease, is with the landlord and not the freeholder or the company, the landlord is responsible for addressing and responding to any concerns which the resident may have regarding service charges. In order to respond to her concerns, intervention may be required by the landlord with the freeholder and/ or the company.
The Ombudsman understands that the resident’s correspondence dated 24 March 2020, in which she raised queries and concerns regarding the service charges payable under the property’s lease, was in response to the Annual Service Charge Review Booklet (the Booklet) for 1 April 2020 to 31 March 2021. The Ombudsman notes that the Booklet included the resident’s service charge demand, property budget, information on service charges and detailed a leaseholders’ rights and obligations in relation to service charges.
The landlord’s website sets out that where a resident has a query about the service charges payable under the property’s lease or is not satisfied with the services they receive, they may contact it by phone or email and it will then look into the query.
The landlord’s website also sets out that it will respond to correspondence which requires a response from one of its specialist teams within 10 working days, and if more time is needed the resident will be notified.
The first response which the Ombudsman has identified from the landlord which sought to address the resident’s service charge queries is dated 9 July 2020 and was following intervention from her Councillor. In the Ombudsman’s opinion it was not reasonable for the resident to have to wait approximately four months for a response to her concerns and that she was required to request assistance from her Councillor to generate a response. The Ombudsman notes that during the period March to July 2020 the resident chased the landlord on multiple occasions for a response, however it only acknowledged her correspondence. This is unsatisfactory and highlights a lack of ownership of the resident’s enquiry on receipt.
The Ombudsman has considered the response given by the landlord on 9 July 2020 to address the resident’s concerns relating to service charges. In the Ombudsman’s opinion the landlord’s response was unsatisfactory as it was vague and did not comprehensively address the concerns which the resident had raised. For example the landlord stated that it passed the appropriate service costs to its leaseholders however then did not go on to explain why this was true. Further the landlord’s response was not proactive. Rather than offering to meet with the resident to discuss the specific concerns which she had raised since March 2020, such as inadequate services provided, it placed the onus on the resident to contact it for further intervention. This is unsatisfactory as the resident had been requesting assistance from the landlord in respect of the matter since March 2020. The landlord’s response therefore did not offer the resident resolution to her concerns or take into account the length of time that she had been raising these queries.
In responding to the resident’s service charge concerns on 9 July 2020 about the level and reasonableness of the charges, the landlord did not provide information detailing the resident’s right to refer her concerns to the FTT for consideration. While this information was available in the Booklet, which the resident had received, in the Ombudsman’s opinion it would have been appropriate for the landlord to have highlighted it again as part of its response, including to demonstrate fairness to the resident. The Ombudsman notes that it would also have been appropriate for the landlord to have highlighted the resident’s rights to request information on service charges under Section 21 of the Landlord and Tenant Act 1985 (the Act) within its response so that she was aware of all the options available to her.
The resident challenged the landlord’s response dated 9 July 2020 in correspondence A, stating that its response was inconclusive and failed to address her concerns. The Ombudsman cannot see that the landlord acknowledged correspondence A. This is unsatisfactory and was a missed opportunity by the landlord to address the resident’s outstanding concerns. The evidence shows that it was not until the resident requested intervention from the Ombudsman that the landlord committed to providing a response to the resident under its complaint procedure.
The Ombudsman has considered the answers provided by the landlord within its complaint response to address the resident’s outstanding concerns relating to service charges. In the Ombudsman’s opinion the landlord’s response was again unsatisfactory. This is because the landlord did not provide any detail to support its statements that it was appropriately administering the service charges payable under the resident’s lease and it did not address or commit to investigating the resident’s concerns relating to shortfalls in the provision of services provided. The Ombudsman notes that the response did not also reference the FTT or the resident’s rights under the Act. The resident was once again left without resolution to her concerns.

The landlord’s response to the resident’s request for information concerning cladding on the building which the property is situated in, including the production of form EWS1

Advice Note 14 was issued by the Government in December 2018 as part of its Building Safety Programme. In summary the advice was for owners of high-rise leaseholder buildings where the external wall system of the building did not incorporate Aluminium Composite Material (ACM). The advice set out checks which owners could carry out to satisfy themselves, and their leaseholders, that their building was safe. This guidance was consolidated in ‘Building Safety Advice for Building Owners’, issued in January 2020. Paragraph 1.4 of this guidance states “for the avoidance of doubt, building owners should follow the steps in this advice as soon as possible to ensure the safety of residents and not await further advice or information to act”.
In January 2020 form EWS1 was introduced to prove that a building had been assessed by an expert and was compliant with Advice Note 14.
As the landlord is the not the freeholder of the building it is unable to obtain certification pursuant to Advice Note 14 itself (form EWS1). Under the terms of the lease the Ombudsman understands that the agent is responsible for doing so, following delegation by the company. While the landlord cannot obtain evidence of compliance itself, the Ombudsman does consider that the landlord has a responsibility in respect of the guidance. As the resident’s contract for the property is with the landlord, the Ombudsman would expect to see pro-active engagement by the landlord with the agent regarding its response to the guidance in order to provide the resident (and its other leaseholders) with updates.
Throughout the period under investigation the Ombudsman has not identified evidence which shows that the landlord was pro-active in obtaining regular updates from the agent regarding compliance with Advice Note 14, or that it provided updates to the resident (and other leaseholders) on the guidance. Rather the evidence shows that the landlord signposted the resident to the agent to obtain updates from it directly. This is unsatisfactory. As Advice Note 14 impacted on the resident’s ownership of the property and highlighted fire safety concerns the landlord should been proactive in keeping its leaseholders updated on the agent’s response to the guidance and to provide reassurances that the situation was being managed by the responsible parties.
The landlord has provided evidence of a tenant’s portal set up by the agent. The landlord has advised that the portal contained updates regarding the freeholder’s and company’s response to Advice Note 14. It is not clear from the evidence if the resident had access to the portal during the period under investigation or what updates were provided during this time. In the Ombudsman’s opinion access to the portal would not have negated the need for direct correspondence by the landlord with the resident (and other leaseholders). This is because not all leaseholders may proactively check the portal for updates, and some may not have readily available internet access. As the resident’s contract was with the landlord, it was responsible for ensuring that appropriate updates and communication was provided to her, and it was not appropriate for it to rely on the agent’s portal.
In its correspondence to the Councillor and within its complaint response the landlord said that it had reviewed the agent’s plan in relation to resolving the cladding issue and was confident that it was appropriate to resolve the matter. The landlord did not go on to provide further details. In the Ombudsman’s opinion this is unsatisfactory and was a missed opportunity. The landlord should have taken the time to set out why it considered the agent’s response was appropriate to provide reassurance to the resident, particularly given the nature of her queries which related to the safety of the building which she owned and occupied.
The evidence shows that the agent is committed to achieving compliance with Advice Note 14. In an update to “leaseholders” in March 2021 the agent set out that it was in the process of securing funds from the Building Safety Fund for the remedial works which were identified following the intrusive inspection undertaken in spring/ summer 2020. The agent added that the works were likely to take 18 months to complete and although the Ministry of Housing Communities and Local Government would like a start date of 30 September 2021 this was likely to be delayed. The agent stated that regular updates regarding the works would be provided through the portal and letters would be issued to “each leaseholder and resident” when “milestones” were reached. It is not clear from the evidence how the landlord will ensure that the agent’s updates are communicated to the residents without relying on the portal.

The landlord’s complaint handling

The evidence shows that it was not until the Ombudsman contacted the landlord that it agreed to respond to the resident’s concerns formally under its complaint procedure. In the Ombudsman’s opinion the landlord should have registered the resident’s concerns as a formal complaint at a much earlier time. This is because the resident was repeatedly raising her concerns from March 2020 and expressing dissatisfaction about its lack of engagement with her. This would have been appropriate as the landlord’s complaint policy defines a complaint as “an expression of dissatisfaction with a service received or a service failure by [it]”.
The Ombudsman can see that the landlord’s response dated 5 June 2020 was from its Resolution Team, who are responsible for facilitating “the timely effective and early resolution of all concerns”. The Ombudsman is concerned that the landlord’s Resolution Team did not pick up that its handling of the resident’s concerns up until that point had been unsatisfactory and therefore took steps to coordinate a response to the resident. This was a missed opportunity by the landlord.
At the time of the complaint the landlord operated a two-stage complaint procedure. At stage one the landlord would contact the resident to discuss the concerns and work with them to agree a satisfactory outcome. If the resident was not happy following the resolution offered at stage one the landlord would investigate the issues raised and provided a formal written response. The landlord confirms that the written response would be provided within 15 working days, and where more time is needed the resident would be updated. The Ombudsman is aware that since this case the landlord has updated its complaint policy to reflect the Ombudsman’s Complaint Handling Code. This is appropriate as it sets out best practice in responding to complaints and ensures that the resident is provided with the opportunity to request a review of the formal response.
In the resident’s case the landlord responded to the complaint at stage two and carried out a formal investigation. In the Ombudsman’s opinion this was a reasonable approach as the resident’s concerns were outstanding since March 2020 and to establish if there had been a service failure which required remedying. The Ombudsman notes that the landlord then failed to provide its response within its service standard of 15 working days. This is unsatisfactory.
In responding to the complaint the landlord acknowledged that there had been lack of engagement by itself and a failure to respond to the complaint in the agreed timescales and therefore awarded £50 compensation. As the landlord acknowledged a service failure it was appropriate that it awarded compensation. However, in the Ombudsman’s opinion the level of compensation was not proportionate to the circumstances of the case, specifically to reflect the time during which the resident’s concerns were outstanding and the time and trouble she spent in pursing the matter.
In responding to the complaint the landlord did not address all of the resident’s concerns. Namely:
1. That she was not aware that the head lease for the property was a tri-partite lease. In the Ombudsman’s opinion the landlord should have highlighted the relevant provisions within the lease which demonstrated that the landlord was not the freeholder of the building and that the freeholder and company were the responsible parties. It would also have been appropriate in relation to the complaint in order to provide clarity regarding responsibility for fire safety and cladding. The Ombudsman has been provided with a copy of the headlease for the property and can see that it involves the landlord, the freeholder and the company.
2. That the landlord had not taken up a position on the company’s board. In the Ombudsman’s opinion the landlord should have addressed the resident’s concern and provided explanation on its decision.
The landlord’s complaint handling was therefore unsatisfactory as it denied the resident a comprehensive response to all the concerns which she had raised and was a missed opportunity.

Determination (decision)

In accordance with paragraph 55 of the Housing Ombudsman Scheme there was:
1. Maladministration by the landlord in respect of its response to the resident’s queries regarding service charges.
2. Maladministration by the landlord in respect of its response to her request for information concerning cladding on the building which the property is situated in, including the production of form EWS1.
3. Service failure by the landlord in respect of its complaint handling.

Reasons

The landlord’s response to her queries regarding service charges

The landlord’s response to the resident’s queries regarding service charges was unsatisfactory as it delayed in responding to her queries, and only did so following multiple chasers and intervention from this Service, and when it did eventually respond its responses were not comprehensive and did not address the queries which she raised.

The landlord’s response to the resident’s request for information concerning cladding on the building which the property is situated in, including the production of form EWS1

The landlord was not pro-active in obtaining regular updates from the agent regarding compliance with Advice Note 14 or providing updates to the resident (and other leaseholders) on the guidance. As Advice Note 14 impacted on the resident’s ownership of the property and highlighted fire safety concerns the landlord should been proactive in keeping its leaseholders updated on the agent’s response to the guidance and to provide reassurances that the situation was being managed by the responsible parties, which it did not do. It was unsatisfactory that the landlord signposted the resident to the agent to make enquiries with it directly as her contract for the property was with the landlord.
Despite having reviewed the agent’s plans in relation to resolving the cladding issue the landlord failed to share details with the resident. This was a missed opportunity and would have added to the resident’s frustrations that she was not able to get answers to her queries.

The landlord’s complaint handling

While the landlord acknowledged that its handling of the resident’s complaint had been unsatisfactory due to the time taken to provide a formal response and awarded compensation in recognition of this, the level of compensation was not proportionate to the circumstances of the case. Specifically, to reflect the time during which the resident’s concerns were outstanding and the time and trouble she spent in pursing the matter. Further the landlord’s response did not address the resident’s concerns that she was not informed that the headlease for the property was a tri-partite lease and the landlord’s decision regarding a position on the company’s board.

Orders and recommendations

Orders

The landlord should pay the resident the following compensation:
1. £150 for the delay in responding to her service charge queries.
2. £150 for not providing a comprehensive response to her service charge queries and therefore not appropriately addressing her concerns.
3. £300 in respect of its communication with the resident in relation to Advice Note 14 and the production of form EWS1.
4. £150 in respect of its complaint handling.
The landlord should contact the resident to discuss her outstanding concerns regarding the service charges. The landlord should then write to the resident detailing the outcome of the discussion and any action points.
The landlord should write to the resident (and other leaseholders) to provide a comprehensive update detailing the steps which the agent is taking to achieve compliance with Advice Note 14 and to produce form EWS1 for the building.
The landlord should write to the resident to provide clarification regarding the headlease for the property and parties involved. The landlord should refer to the relevant provisions within the headlease and underlease for the property to support its explanation.
The landlord should write to the resident to confirm its decision regarding a position on the company’s board.
The landlord should comply with the orders within four weeks of the date of this determination.

Recommendations

The landlord should seek to provide leaseholders with a regular update (at least every quarter) regarding compliance with Advice Note 14, if it is not already doing so. The Ombudsman does not consider that it is reasonable for the landlord to rely on updates provided by the agent through its portal. The landlord should however seek to distribute any updates published on the portal to its leaseholders so that it can satisfy itself that its leaseholders are kept appropriately informed of developments.
The landlord should review its stock records to identify other buildings where it is not the freeholder, and which falls within the scope of Advice Note 14. Once it has identified all such buildings the landlord should review what information has been provided to leaseholders about compliance with the guidance and take action as needed. The landlord may find it helpful to refer to chapter two in the Ombudsman’s recent Spotlight Report on Dealing with Cladding Complaints when considering its communication plan for leaseholders affected by this issue.
The landlord should share the Ombudsman’s Spotlight Report of Dealing with Cladding Complaints with staff members who are responding to enquiries and complaints about this issue, and encourage them to taken this into consideration when responding to leaseholders.
The landlord should share the Ombudsman’s Complaint Handling Code with staff members who deal with complaints to ensure that they respond to complaints in accordance with best practice.