Optivo (202007796)

REPORT

COMPLAINT 202007796

Optivo

26 July 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 resident has complained about:
1. The landlord’s response to requests for information supporting the service charges.
2. The landlord’s organisation of resident meetings.
3. The landlord’s handling of parking at the development, and the associated gate repairs.
4. The landlord’s response to concerns about the quality of the communal gardening and cleaning services.
5. The landlord’s response to reports about a roof leak.

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 will not be investigated.
The resident has complained that the services they receive in return for the service charge are not ‘value for money.’ The Housing Ombudsman Service cannot determine whether a service charge is value for money however.
When concluding whether a service charge is value for money, this would include an assessment of the level of the service charge (ie whether it is too high or too low, and whether the charge is supported by appropriate invoices etc.)
Paragraph 39(g) of the Housing Ombudsman Service Scheme states:

“39. The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion: g. concern the level of rent or service charge or the amount of the rent or service charge increase;”

Any complaint about the level of a service charge, including whether a service charge is an appropriate level or value for money, would be for the First Tier Tribunal to determine. The Housing Ombudsman Service explained the limits of this investigation to the resident in May 2021.
This assessment is therefore about whether the landlord’s response to the complaint that services were not provided was reasonable or not (ie sufficiently evidenced, timely and explained).

Background

The resident is a leaseholder (shared owner) of a flat. They made a formal complaint in July 2020 and escalated this in September 2020. They complained that:
1. The landlord had not responded to requests for information to help explain/support past service charge increases.
2. They had concerns about the continual service charge increases and wanted to discuss how they could be ‘regulated and reduced.’ As explained above however, this aspect of the complaint is outside the jurisdiction of the Housing Ombudsman Service.
3. The landlord had not arranged 6-monthly residents’ meetings as agreed and had declined the most recent request.
4. The main gate to the development regularly broke with residents having to contribute to the cost for the repair each time. The resident believed it was due to the regular use of the gate despite the planned expectation of light use in the planning permission and gate design.
5. The communal cleaning and gardening services were too infrequent. The resident also complained that the associated costs were too high, however as above the level of service charge is outside the jurisdiction of the Housing Ombudsman Service.
6. There was an ongoing leak through a roof when it rained that had not been fixed despite previous reports.
The resident has also complained to the Housing Ombudsman that:
1. The roof leak had been ongoing for 5 years.
2. The communal maintenance (assumed to mean the gardening and cleaning) remained irregular despite the complaint.
The landlord’s formal complaint responses were sent 26 August 2020 and 22 October 2020. The landlord explained:
1. That it understood the concerns about service charge increases but that they related to ‘necessary expenditures.’ It explained that when the end of year accounts were sent residents could request a summary of the costs and to inspect the supporting documents. The response did not address the resident’s complaint that past requests for information had not been responded to.
2. There was no agreement for a 6-monthy meeting, and a 2019 meeting had noted that there was no need for an annual meeting. It also described how the recent request for a video meeting had been responded to by offering a telephone meeting, but the other resident that had made the request had not then replied.
3. It understood the resident’s frustration about the gate, and explained it was working with the parking management company to reduce unauthorised use of the gate. It had no plans to remove or change the gate, and confirmed it was only supposed to be used by emergency services and bin collection.
4. That it completed a monthly quality check of the communal cleaning and gardening, and the contractors were asked to provide before and after pictures. The inspections were cancelled in March due to the Covid-19 restrictions, but the communal gardeners had made additional visits to improve the standard at no extra cost to the residents.
5. That it had raised a job with a roofing contractor to survey the roof leak. The response did not address the complaint that previous reports had not been dealt with.
The landlord’s final response was a decision not to escalate the complaint to the second/final review panel stage. It explained:
1. The cleaning and gardening issues had been responded to at the first stage, and the contact details given for any ongoing concerns.
2. It had given information about the year–end accounts process and contact details for who to speak to about specific queries.
3. That the parking management company was funded by the penalties it issued, and not by residents. The landlord agreed to contact all residents to discuss the ongoing parking issues.
4. That it would arrange a video meeting with the property manager as soon as possible.
5. The process for challenging service charge items and costs through the First Tier Tribunal, together with where they could receive independent advice from Lease-Advice.

Assessment

Service charge information

The resident complained that the service charges appeared to be increasing at an unreasonable rate. This was alongside concerns about the quality of the services. As part of this they explained they wanted to see the supporting information for the service charges.
The landlord’s formal response to the complaint in August explained the correct procedure. It highlighted that the service charge account for that year had not been finalised, but that when it was residents could request a summary and to inspect the supporting documents. This is in accordance with Sections 21 and 22 of the Landlord and Tenant Act 1985. The final response also provided the details for Lease-Advice. This independent organisation could have given the resident more information at the time about what documents they were able to request to see and when.
However, while the landlord addressed the overall issue and correctly explained procedure to follow in the future, it did not address the resident’s complaint that they had not had responses to previous requests.
The resident’s complaint did not highlight specific requests that had been ignored. There was a request for a meeting in March 2020 that was accepted and then cancelled due to the developing Covid-19 situation. One of the topics at this meeting was concern about unspecified ‘service charges’ and unspecified ‘contracts.’ The landlord’s internal emails show that the property manager in 2020 had not personally received any request for supporting receipts for the service charges. The same manager did however identify that the resident had requested a breakdown of service charge costs in February 2019 and they could not find the response from the landlord. There is no corresponding letter or email from the landlord to the resident in the information provided for this case. Furthermore the April 2019 resident meeting raised that the service charge information was unclear. The landlord stated it would raise this with the relevant team, but there is no evidence that it was followed up.
The resident’s concerns about the service charges were often general, and did not highlight a specific cost or amount that they considered incorrect, or a specific supporting document that that they wanted to see. Equally the complaints did not highlight specific requests for information that had not been responded to. General complaints about landlord’s overall service (as opposed to specific incidents) are harder to address.
However the landlord failed to respond at all to this issue in its formal response, even if that had been to only say it had no record of unanswered requests for supporting information. This would have allowed the resident to provide specific evidence of such requests as part of the escalated complaint. Equally there does appear to have been requests with no evidence of a response. Therefore while the landlord has put the matter right by giving the correct explanation of the process going forward, it should have considered redress for the inconvenience of not fully answering the complaint at stage 1.

Resident meetings

The resident has complained that the landlord has failed to organise 6-monthly meetings. From the information provided by both parties there is no record of an agreement however to arrange 6-monthly meetings.
The landlord has provided the minutes of the meeting (April 2019) held prior to the formal complaint. There is no reference to the frequency of future meetings. There the landlord was correct to say they was no recorded agreement of 6-monthly meetings. However the landlord had also said yearly meetings had not be deemed necessary, and there is no record of this either.
There is a note that the residents wanted a further meeting about the year-end accounts when available. The landlord agreed but explained the residents would need to request this. The landlord has also provided copies of the letters to show these minutes were sent to all residents in April 2019.
The landlord’s internal email shows a request was received in March 2020 for a follow up meeting. The resident explained they wanted it in April 2020. However before the end of March the landlord notified the resident that all in person meetings had been cancelled due to the introduction of the government’s national lockdown restrictions due to Covid-19.
From the information provided there was no commitment or requirement for a specific frequency of meeting. If the residents believed 6-monthly meetings had been agreed this should have been raised as an accuracy issue with the minutes when they were shared in April 2019.
The correspondence from the time shows the landlord responded appropriately to the request for a meeting in March 2020, and it was then reasonable that this was cancelled due to Covid-19. The landlord then replied to the resident (not the complainant in this case) to ask what specific queries they had about the service charges and to offer a phone call, however they did not reply.
The landlord’s final response agreed that it was reasonable for the landlord to arrange an online video meeting as had been requested in the formal complaint. The property manager had originally declined to offer this and had offered the phone call instead.
Therefore there was some delay in the landlord following up the cancelled meeting between the end of the first lockdown (July 2020) and the offer of a video meeting in the October 2020 final response. However this was also an unprecedented and developing situation for landlords and residents. Therefore it is also expected that normal services would continue to be disrupted and standard procedures would need more referrals to senior management to decide how services could be delivered or re-instated.
The most important function of the complaint procedure is to identify any issues with the landlord’s service, learn from these and put them right. In this case the landlord’s review of the complaint meant it then went on to offer the requested video meeting. While there was some inconvenience in the time took to resolve, the offer to ensure the requested meeting was arranged was reasonable in the wider circumstances.

Gate repairs and parking

The resident has complained that they have had to contribute too often to gate repairs. They believe the gate design is inappropriate given its use.
The landlord explained that the gate was part of the planning permission. The design (and planning permission) were based on the scheme having no parking.
Any dispute over whether the gate’s design was appropriate would have needed to be raised as part of the planning process. Once the permission was granted, the landlord’s obligations are to adhere to the planning permission and to keep the gate repaired. The landlord does not have an obligation to complete improvements (which would include a replacement gate) to the property. Therefore it was reasonable for the landlord to explain that it did not have any plans to remove or replace the gate.
The landlord has focused this issue on parking at the scheme, in that the gate should not be used in the way that it is. Therefore if the inappropriate parking is stopped the gate repairs should reduce. The resident had also raised concerns about the parking. There is no inspection/survey report on file however that confirms the cause of the gate repairs however.
The landlord has consistently explained that only emergency services and bin collection were allowed to access the development. It has provided the details of the 3 different parking management contractors used to enforce the parking. The resident has questioned in an email (as opposed to the formal complaint) that they have not seen parking patrols. The landlord’s information for this case includes summaries from the contractor at the time in 2017/18 for the penalties it had issued. However there are no similar details for the 2020 period of this complaint.
The resident specifically highlighted a local retailer and its customers in March 2020 as a contributor to the parking. As a result the landlord wrote to that retailer. The landlord also arranged new signs for the development from the most recent parking enforcement contractor. Furthermore there are internal emails where a department of the landlord sought to use the parking space available for the gardening and cleaning contractors, due to the concerns raise by residents (discussed below). However the landlord’s internal correspondence shows that it enforced the parking restrictions internally, both for its staff and its contractors and did not allow any such parking.
The landlord’s internal correspondence states there were no reports or evidence of deliberate vandalism of the gates. However there also emails with a resident in June 2019 about alleged damage to the gate and the need to check CCTV. Therefore the internal correspondence at the landlord is not consistent.
The landlord has provided copies of letters to all residents that explain the parking restrictions, and give details of the parking management contractor for residents to report any violations to in May 2018 and September 2019.
In terms of actual repairs, the landlord has not provided the repair records showing repairs to the gate. The resident’s complaint did not specify the repairs that they felt were excessive. There is an email to the resident explaining the gate would be fixed on 26 June 2020, and an earlier email about a separate gate welding repair in May 2019.
In terms of the complaint that the residents have to contribute to the cost of the repairs, this will be governed by their lease agreement. As explained above, any dispute about the level of service charges (including for communal repair costs) is outside the jurisdiction of the Housing Ombudsman Service. As the landlord advised in its final response, the resident would need to contact the First Tier Tribunal if they feel they the service charges are excessive.
The gate itself is governed by the planning permission, and there is no dispute that the landlord has mishandled or been late in completing any repairs. In terms of the number of specific repairs highlighted by either party, there do not appear to have been an excessive number given the landlord’s obligation to use that gate design, its obligation to complete any required repairs, and given the period of examples runs across 2019 and 2020.
The landlord has also tried to address the cause (the parking) as well as responding to the complaint about the repercussions (the gate). The landlord has shown how it has contacted all relevant parties, repeatedly advised residents how to report any inappropriate parking, and employed the parking management options it can. Ultimately the landlord cannot control how people choose to park if they choose to do so inappropriately. It might help if the landlord provided a regular, specific update on the actual enforcement action taken by the parking management company.

Communal gardening and cleaning

The resident has complained about the quality and frequency of the communal cleaning and gardening.
These issues were discussed at the April 2019 resident meeting, prior to the 2020 formal complaint. The landlord asked residents to provide pictures with dates and time of any unsatisfactory cleaning or gardening. It also explained that areas outside rented properties were the tenants responsibility. It confirmed a new inspection service would begin in summer 2019.
There is also an email with photos from another resident in August 2019 complaining about the quality of the cleaning. The landlord addressed this internally by asking the relevant team to follow up with the contractor about the buildings and standard they were responsible for.
The August 2020 formal response explained how the issue could be handled going forward. It confirmed that inspections were carried out and how resident could report and unsatisfactory service. However the response failed to provide any supporting information to the resident. For example it did not provide details of any of the recent inspections it referred to.
The landlord has provided inspection visit summaries for March, April, and May 2021, however these are not relevant to this case as it only covers the time up to the final response in October 2020.
The landlord has also provided visit summaries from June and July 2020. These record the quality of cleaning as ‘3’ with ‘4’ the best score and ‘1’ the worst. The reports do include photographs and notes for attention by cleaners, such as window ledges needing cleaning. They also note reports the landlord has received from residents prior to the inspection that need addressing / inspecting Therefore the reports do include specific and timely information about the cleaning quality.
The landlord’s internal emails preparing for the October 2020 final response stated that cleaning was fortnightly, had been completed at the start of the month but pictures were not available. They also stated that gardening was every 10-12 days, had been completed that month but again no pictures were available. This summary, albeit in an email from the time, is not supported by an inspection report or similar from the time in the documents provided for this case.
There has been a long term and ongoing concern about the quality of the cleaning and the gardening service. It appears a significant part of this is about the value for money that the resident believes they are receiving. Any assessment of the value for money includes an assessment of the amount charged. As explained above the actual level of the service charge (and how are services are tendered for) is outside the jurisdiction of the Housing Ombudsman Service.
Therefore this is an assessment of whether the landlord’s response to the complaint about the service (as opposed to the charge) was reasonable. The main consideration is whether the landlord is sufficiently monitoring whether the contractor is keeping to the required schedule.
In terms of specific concerns about the actual service that were raised at the time and have been provided for this case by either party:
1. The landlord explained the new inspection process at the April 2019 meeting and invited residents to send pictures of concerns. It then followed up the other issue raised in 2019 with the relevant team.
2. The landlord responded within 2 days in June 2020 to a concern about faeces in the communal area to arrange an extra clean by the cleaning service.
3. The landlord has shown how it was inspecting the property at the time of the formal complaint (June, July 2020).
The same inspection reports about the cleaning assess the grounds maintenance. The quality of each of the criteria was scored as ‘3’ for June and July 2020. The landlord’s reference to increased gardening after the Covid-19 suspension suggests it was being managed, and this was not challenged. Plus there are ad hoc internal emails about the service over the approximately 18 month period for which documents have been provided.
Therefore it does appear that the landlord is managing the cleaning and gardening services. It has a specific schedule that the contractors must complete, and a detailed inspection pro forma. The supporting information is not consistent, however there are examples from across the period complained about. Furthermore there are no examples of repeated emails from residents raising cleaning or gardening issues that are unresolved. The unresolved issues is more about the quality, as opposed to whether the service is delivered.
It is likely that there is a need to manage the expectations of the residents in terms of the service that will be provided. If the landlord is regularly monitoring the service and scoring it as 3 out of 4, then the criteria for the service monitoring should be discussed with the residents. This might include estate ‘walkabouts’ with residents to show how the service quality is scored, and to then identify where the differing standards arise.

Roof leak

The resident has complained that there is an intermittent roof leak when it rains. The landlord has provided limited information about its response to this issue.
The property manager explained internally in August 2020 that they had not had a report for a long time, however they also said that the repairs and aftersales teams were aware of the matter. From this it appears the landlord considered the matter historic and not ongoing, however it has not provided the details of when it believed the leak was originally resolved.
The April 2019 resident meeting minutes do not record any discussion about an ongoing roof leak. Therefore it doesn’t not appear to be an ongoing resident concern. Equally neither party has provided phone notes or emails where residents have reported the need for a repair, or chased repair requests.
The August 2020 response stated that it would arrange for a roof inspection.
This was a reasonable response to the complaint by the landlord. Prior to the formal complaint there is no evidence that the roof leak was an ongoing issue. Landlords can only respond to repairs when they receive repair requests. It would have helped if the landlord had summarised its past response to this issue in its response to the complaint, to show the resident how it had been managed. For example it could have given the details of the repairs when it believed the issue resolved and when it last received repairs requests from residents. Regardless of this however, having received a specific repair report in the formal complaint the landlord took appropriate action in arranging the scaffolding for the survey.

Determination (decision)

I can confirm in accordance with paragraph 54 of the Housing Ombudsman Scheme:
1. There was service failure in the landlord’s response to requests for information supporting the service charges.
2. There was no maladministration in the landlord’s organisation of resident meetings.
3. There was no maladministration in the landlord’s handling of parking at the development, and the associated gate repairs.
4. There was no maladministration in the landlord’s response to concerns about the quality of the communal gardening and cleaning services.
5. There was no maladministration in the landlord’s response to reports about a roof leak.

Orders and recommendations

As a result of the determination above I have ordered that within 4 weeks the landlord will:
1. Pay the resident £100 to acknowledge the inconvenience of not replying to the complaint about past requests for service charge information.
I would also like to recommend that:
1. The landlord confirms how often resident meetings will be, in writing, for its staff and for the residents.
2. The landlord provides summary updates about the actual parking enforcement action it takes.
3. The landlord arranges a discussion (for example at a resident meeting or estate walkabout) to clarify the cleaning and gardening schedule to explain how the quality is scored.