Paragon Asra Housing Limited (202116451)

REPORT

COMPLAINT 202116451

Paragon Asra Housing Limited

17 February 2023

Our approach

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

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

The complaint

The complaint is about:
1. The landlord’s response to a report of shattered glass at the property.
2. The landlord’s handling of the resident’s complaint.

Background and summary of events

Background

The resident is a shared owner of a one bedroom flat on the first floor of a block of flats.
The resident’s occupancy is covered by a shared ownership underlease agreement which she entered into on 11 January 2014.
The landlord is party to a superior lease agreement with the building’s developer.
The resident’s lease specifies the following:
1. Clause 3.4 Repair: the leaseholder is “to comply with the repairing obligations as detailed in the superior lease.”
2. Clause 3.8 Not to alter: the leaseholder is not to alter “(a)…the exterior of the premises” or “(d) in any way interfere with the outside of the building.”
The superior lease held by the landlord sets out within section 1 – Interpretation, under the heading retained parts, the following definition:

All parts of the Building other than the Property and the Flats and the Commercial Premises including:

the main structure of the Building including the roof and roof structures, the foundations. The external walls and internal load bearing walls. The structural timbers. the joists, the guttering and the structure of the balconies including any balcony railings or walls …
all external decorative surfaces of: the Building; external doors; external door frames; and external window frames …

The superior lease further defines the elements that constitute “the property” to which any underlease would apply. This is set out within schedule 1 and this specifies that “The property shall not include any of the retained parts.”

The flat … including:

the internal plaster, plasterboard and surface finishes of all walls.
the whole of any internal, non-load bearing walls that are entirely within the Property.
the inner half [severed medially] of the non-load bearing walls dividing the Properly from any other parts of the Building.
the floor screed or other floor surfaces above the joists or other structural floor supports supporting them.
the ceiling plaster, plasterboard or other ceiling surface below the joists or other structural ceiling supports supporting them.
the doors and windows and their frames, fittings and glass.
all Service Media exclusively serving the Property
the floor surface only of the balcony [if any]
all Landlord’s fixtures and fittings in the Property;
all additions and improvements to the Property.

Schedule 4, point 10 of the superior lease specifies the lease requirements in relation to repairs and decoration:

“To keep the Property in good repair and condition throughout the term (provided that the Tenant shall not be liable to repair the Property to the extent that any disrepair has been caused by an Insured Risk, unless and to the extent that the policy of insurance of the Properly has been vitiated or any insurance proceeds withheld in consequence of any act or omission of the Tenant, any undertenant or their respective workers, contractors or agents or any person at the Property with the express or implied authority of any of them)”

The landlord’s guide to shared ownership defines the landlord responsibility for “repairing and maintaining the structure and common parts if the property is a flat”. It is also responsible for insuring the building. The leaseholder is responsible for “maintaining and decorating your home”.
The landlord’s maintenance policy defines an emergency repair as “one that immediately affects your health, safety and security and would endanger life.” Repairs meeting this definition are to be attended to and made safe within 4 hours, with the repair completed within 24 hours.
The policy contains a list of examples for an emergency repair which includes broken windows.
Appendix 3 of the maintenance policy sets out repair responsibilities. This states that the landlord is responsible for, amongst other elements:
1. External walls, doors and window frames.
2. Boarding up broken glass externally.
3. Reglazing where a crime reference is provided.
This section also sets out the tenant’s responsibilities to include:

“Replacing broken glass or glazing to any doors, windows or fixed panes where a crime reference number has not been provided by the police.”

The landlord has a complaints policy. This has been revised to reflect The Ombudsman’s complaints handling code. This establishes a two stage complaints process which is managed by the landlord’s customer experience team.
The policy sets out the following response timescales:
1. At stage one the “aim is to agree a solution with the customer within 10 working days.”
2. At stage two “a definitive response will be provided within 15 working days following a thorough investigation of the points raised.”
The compensation policy provided by the landlord to this service states that “this … does not apply to … PA Housing’s shared owners or leaseholders”. The landlord has confirmed to this service that this policy is currently under review.

Summary of events

On 29 August 2021 a double glazed window at the resident’s home shattered with no apparent cause. The resident called the landlord’s emergency repairs team to attend and secure the glass. She explained that the window was located on the first floor above a cash point machine, part of the commercial premises underneath her flat.
The resident raised follow on calls with the landlord on 2 September 2021, 6 September 2021 and 7 September 2021. On each occasion she was advised that a contractor would attend within four hours.
The landlord has confirmed that it instructed its contractors to attend her property on 29 August 2021, 31 August 2021 and 3 September 2021. However, they were unable to gain access.
The landlord’s case notes show that its contractor requested a works order on 6 September 2021 to replace and measure the glass. It was noted that the contractor had initially been called to an emergency on 31 August 2021 when it was unable to gain access to the property. It attended again on 3 September 2021 but was again unable to gain access. The contractor did, however, speak directly to the resident and advised that it would require a tower to gain access to the window and would request a works order for this.
On 13 September 2021 the resident raised a stage one complaint with the landlord as the window had neither been repaired nor the glass made safe. Her complaint was acknowledged on 14 September 2021. This acknowledgement advised that a full response would be provided within 10 working days. In reply the resident expressed her dissatisfaction with the prescribed timescale for providing a response, stressing that she was seeking the window to be fixed.
As part of the complaint investigation carried out internally by the landlord, the works order was chased by the customer experience team with the repairs team by email on 15 September 2021. A follow up email was sent to the repairs team on 20 September 2021 stressing the urgency of the matter and expressing the need to communicate with the resident.
The resident has provided a record of a conversation that she had with the landlord via Twitter on or around 22 September 2021. Within this she was advised that the matter sat with the management company and that it was being chased with them.
The landlord has informed this Service that it did contact the managing agent for the block to confirm whether or not the window repair was its responsibility. It has provided no date for this contact, but it is assumed that this was on or after 22 September 2021, in line with the Twitter conversation outlined above. The landlord was informed by the managing agent that the responsibility sat with the resident.
In written evidence to this Service on 7 February 2022, the landlord has confirmed that it initially instructed its contractor to attend the resident’s property on 29 August 2021, 31 August 2021 and 3 September 2021. However, it was unable to gain access. It has said that on 22 September 2021 the resident’s father, calling on her behalf, was advised that a crime reference number was required for the smashed glass. This was disputed by the resident’s father who claimed that the windows were part of the structure of the building. The landlord’s repairs service manager stated that only the frames were deemed to be part of the structure.
On 1 October 2021 the resident instructed a local glazing firm to replace the window at her own cost. On the same date she made contact with her local MP requesting that they intervene on her behalf. She explained that the shattered glass had now fallen onto the pavement below and that despite raising a formal complaint on 13 September 2021 she was still awaiting a response.
On 20 October 2021 the landlord provided a written response to the resident’s stage one complaint. It said:
1. It acknowledged that the resident had been in contact on a number of occasions in regard to this issue but that no one had undertaken the repair.
2. That during investigations into the complaint, it had identified that the resident was a shared owner. As such the replacement of the glass was her responsibility.
3. It noted that she had been in contact on numerous occasions and had not been advised that she was responsible for the glass.
4. It confirmed that team managers in the repairs team had been made aware of the case to ensure that correct advice was provided in the future.
5. It apologised for the delay in providing the response.
The resident escalated her complaint the same day, 20 October 2021. In her stage two complaint she raised the following issues:
1. Her tenancy/lease agreement states that the exterior of the building is the responsibility of the landlord.
2. She had been advised that responsibility sat with the management company, as evidenced through her contact over Twitter.
3. There had been a delay in providing the stage one response.
The landlord acknowledged the resident’s stage two complaint on 23 October 2021. It advised that a response would be provided within 15 working days.
The MP shared the response that they had received from the landlord with the resident on 22 October 2021. This letter contained the same information as that provided to the resident in response to her stage one complaint.
On 2 November 2021 the repairs service manager sent an email to the customer experience team advising as follows: “I can confirm that the exterior of the building is ours to maintain, this means the frame to the windows not the glass.”
On 16 November 2021 the landlord provided a stage two response. Within this it said:
1. As a shared owner the shattered glass was her responsibility to address.
2. That numerous members of staff had advised differently.
3. It apologised for inconvenience and misunderstanding.
4. It acknowledged that she was not informed that the glass was her responsibility, delaying the repair. An offer of £50 compensation was made for the inconvenience caused.
The resident rejected the outcome of the landlord’s complaints process. She believed that the landlord was responsible for the exterior of the building. She did not accept that only the window frame, and not the glass, was considered part of the exterior of the building.

Assessment and findings

Report of shattered glass at the property

The superior lease and the under lease need to be read together to provide a definition of the property and the related repair responsibilities. With the superior lease defining those elements that are retained by the landlord and for which it retains a maintenance responsibility.
There does, however, appear to be some crossover within these two definitions. The retained elements references “…external doors; external door frames; and external window frames”, whilst the property includes “the doors and windows and their frames, fittings and glass.”
The repairing obligation set out within the superior lease, and implied through the under lease, is for the resident to keep the property in good repair. As the property definition includes window glass it is understood that the lease places responsibility for repairs to a broken window with the resident.
The landlord’s maintenance policy provides a clearer definition of responsibility. It states that the landlord is responsible for boarding up externally broken glass and that the tenant has responsibility for replacing broken glass or glazing to a window. This is unless a crime reference number is provided by the police.
This places the responsibility for reglazing the broken window in this case with the resident. The landlord has a responsibility only to board up and make the window safe.
From the evidence that is available, the landlord appropriately raised a job for its contractor to attend the property following the initial emergency call from the resident. The landlord has advised that its contractor attended but was unable to gain access on three separate occasions – 29 August, 31 August and 3 September 2021. The contractor fed back to the landlord that it spoke to the resident on 3 September 2021. It identified that an access tower would be required to reach the first floor window in order to secure the glass and measure for a replacement. The landlord failed to follow up this request and it appears from the evidence that no further action was taken to ensure that the glass was made safe in line with its maintenance policy as detailed above.
In addition, correspondence from the contractor to the landlord suggests that there was confusion surrounding the job. The contractor believed that it was to reglaze the window once it had been made safe. It therefore requested a works order to cover making safe the outer double glazed window and measuring for a replacement to be made, alongside the provision of an access tower. As the landlord failed to issue a works order to its contractor to follow up its initial visit, no works to make the window safe were carried out. The resident reported that the shattered glass eventually fell to the pavement below.
The landlord should have followed up with its contractor to ensure that the work to make the window safe was carried out. In failing to do so it failed to meet its obligations and the timescales set out in the repairs policy.
As detailed above, the resident subsequently raised a complaint as the glass had not been made safe, and the repair of the window was outstanding. From the evidence that is available, the resident was not informed of her responsibility to reglaze the window until her father’s call to the landlord on 22 September 2021, when a crime reference number was requested. This was 17 working days after the resident’s initial report. On the basis of the evidence that is available, there had been numerous opportunities where the landlord could reasonably have provided the resident with this information.
In its communication with this service on 7 February 2022 the landlord itself has acknowledged that “it should have advised the resident on the very first call that this was her responsibility to repair”.
The landlord’s communication with the resident was poor. There is no evidence that it followed up on the contractor’s attendance at the property or that it spoke directly with the resident about its approach to the managing agent. As a result, the resident had to make several phone calls to chase for updates and was provided with information through a Twitter conversation that was incorrect. This was the cause of inconvenience to the resident, which reasonably could have been avoided.
The landlord failed to correctly communicate the responsibilities of both parties as set out within the respective leases and those set out within its maintenance policy. This led to an incorrect expectation on the part of the resident that the landlord would undertake the repair and replace the broken glass in the window.
From the internal correspondence provided to this Service, it appears that the landlord lacked clarity around its own responsibilities and those of its managing agent. It also appears to have accepted the managing agent’s advice that the responsibility sat with the resident rather than confirming this with its own policies and the lease agreement, or by seeking legal advice on the matter.
When the landlord responded to the complaint, it acknowledged that its handling of the situation had delayed the repair. In recognition of this, it offered the resident £50 compensation for the inconvenience caused. The landlord’s compensation policy allows a maximum payment of £500. This should account for the severity of impact on the resident, with a scale of low, medium and high. This Service’s Guidance on Remedies is based on the principle of fairness. This sets out that the level of compensation should reflect the detriment caused to the resident as a result of the landlord’s actions or inaction.
Whilst the landlord has acknowledged its failure and the delay caused to the repair, it has not acknowledged the level of inconvenience and distress this caused to the resident. Due to the lack of clarity around the repair obligations, the window area was not made safe and the repair was left outstanding for 33 days. In view of the adverse effect caused to the resident, the landlord’s offer was not proportionate in the circumstances.
As detailed above, the resident was unhappy with the landlord’s response to her complaint, and that she had to arrange for the window to be repaired at her own cost. The resident expressed her belief, in her reply to the stage two outcome letter, that she or the landlord should have been able to make a claim against the buildings insurance. It would have been reasonable to expect the landlord to have responded to this comment by providing advice to her around making such a claim. No evidence has been presented that this was done.
It is also noted that the resident advised this Service that when she purchased her home she was informed that she did not need to take out her own buildings insurance. This was the responsibility of the landlord, who was also responsible for repairs to the exterior of the building.
Under the terms of the lease the landlord is responsible for insuring the building. Whilst this Service cannot speculate as to the possible outcome of an insurance claim, and it is not known whether the glass in the windows is covered under the buildings insurance, the resident was not given the opportunity to make a claim. This was a failing in the landlord’s handling of the matter, and this Service has made an order aimed at putting things right.

Landlord’s complaint handling

There were delays in providing responses at both stages of the complaints process. The stage one response was provided 28 working days after the complaint was raised, with the stage two provided 19 working days after the complaint was escalated. This was inappropriate. Furthermore, within its responses the landlord failed to acknowledge that it had departed from the timescales detailed in its own policy.
It is also noted that both stages of the complaint were dealt with by the same officer within the customer experience team. The landlord’s complaints policy does not specify who should handle complaints other than they sit within the remit of the customer experience team. However, the Ombudsman’s Complaint Handling Code (the Code) specifies at point 5.12 that “the person considering the complaint at stage two, must not be the same person that considered the complaint at stage one.” By allowing the process to sit with a single officer, an opportunity has been missed to provide an independent review of the complaint on its escalation to the next stage. The landlord should now consider its complaint handling practices further, in light of the Code.
The landlord acknowledged within the stage one and two responses that the resident had been given incorrect advice by numerous members of staff. The stage one advised that “team managers in our repairs team are aware of this case to ensure in future we give the correct information to tenants when they contact us.” While this was appropriate, it was not picked up at stage two and there is no further indication as to how this learning has been taken forward to improve the landlord’s service.
Furthermore, the landlord has conceded, in communication with this Service, that it failed to advise the resident correctly in regard to her repairing responsibilities. It also offered £50 compensation at stage two in recognition of the delay caused to the repair.
The Ombudsman encourages landlords to consider the key principles of dispute resolution set out by this Service: Be fair, put things right and learn from outcomes. Through its review of the resident’s complaint, the landlord could reasonably have gone further to put things right. This includes providing greater clarity to the resident and recognising the miscommunication throughout this process. It could also have further established the action it would take to ensure correct advice was provided in the future, as referenced within its stage one response.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman scheme there was maladministration in the landlord’s handling of reports of shattered glass at the resident’s property.
In accordance with paragraph 52 of the Housing Ombudsman scheme there was maladministration in the landlord’s handling of the resident’s complaint.

Reasons

The landlord failed through its communication with the resident to correctly advise her as to her responsibilities in regard to the repair of the broken glass in the window. The offer of compensation failed to account for the resident’s time and trouble in pursuing the landlord, together with the distress and inconvenience caused by the outstanding repair.
When the landlord did communicate that the responsibility sat with the resident, it failed to provide a basis for its decision other than to say that the glass did not form part of the structure of the building. It gave no explanation based on its legal arrangements or the policies it had in place. It also failed to set out the role of the managing agent. This resulted in confusion and a lack of clarity about the landlord’s repair obligations under the lease, and was the cause of inconvenience to the resident.
The complaint handling was poor and whilst recognising that there had been a failing, the landlord gave no clear plan for addressing this in the future. In addition, the landlord failed to take proportionate steps in order to put things right with the resident.

Orders

Within four weeks of the date of this decision, the landlord should:
1. Pay the resident a total of £550, comprised of:
  1. The £50 offered by the landlord at stage two of its complaints process.
  2. £350 in recognition of the inconvenience and distress caused to the resident by the provision of incorrect advice around the repair to her window, giving rise to a false expectation that the landlord would complete this repair.
  3. £150 for the delays and failings identified in its complaints handling.
2. Write to the resident to explain what the buildings insurance covers, setting out whether or not this covers the glass in windows. This communication should include advice on the process of claiming on its building insurance if the window glass is covered. A copy of this correspondence should be provided to the Ombudsman.
3. Review its complaints policy and procedure to establish a clear process for escalation of complaints and introduce senior officer overview. The outcome of this review should be shared with this Service.

Recommendations

Within eight weeks of the date of this decision, the landlord should:
1. Undertake a review of its shared ownership leases and the advice given to prospective shared owners and leaseholders to provide clarity around areas of responsibility for repair.
2. Provide training to all staff dealing directly with repair requests to provide clear guidance as to the repairing responsibilities of the landlord and the leaseholder.