Peabody Trust (202013965)

REPORT

COMPLAINT 202013965

Peabody Trust

26 April 2022

Our approach

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

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

The complaint

The complaint is about the landlord’s response to the complainant’s request to make alterations to his property and an external wall to the building in order to install an air conditioning unit.

Background and summary of events

The resident occupied a third floor flat in a block as a leaseholder which lease began 12 April 2017.

The legal and policy framework

Under the lease, the resident covenanted not to:
1. Make any alterations or additions to the exterior of the premises (the flat itself).
2. Make any structural alterations or structural additions to the interior of the premises.
3. In any way interfere with the outside of the building that the flat formed part.
4. Not to make any alteration or addition of a non-structural nature to the interior of the flat without the previous written consent of the landlord, such consent not to be unreasonably withheld)
5. To pay the reasonable charges and expense of any solicitor surveyor…who the landlord may from time to time employ… in connection with any application by the leaseholder for any ..consent or approval whether or not any consent or approval is actually granted and in the event of any such work being undertaken by an employee of the landlord then a reasonable allowance for such works.
6. Not to do any act or thing which may ..cause nuisance annoyance or disturbance to the neighbours.
7. The landlord covenanted to enforce the leaseholder’s covenants similar to those contained in this lease which are or may be entered into by the tenants of other flats in the building.
Under the leasehold alteration policy, the landlord gave leaseholders permission to carry out alterations within their homes in line with legal and regulatory guidelines. It would only give permission for alterations which would not adversely affect its properties or those of the resident’s neighbours. All leaseholders would be treated in a fair and equitable way.
The policy defined alterations as:
1. Any addition to, or change in fixtures and fittings.
2. Any change to the layout/floor plan of the property.
All requests for alteration were dependent on the lease of the property. The specific clause within the lease must allow for the type of alteration requested for permission to be granted. The onus was on the leaseholder to provide the relevant clause from the lease permitting the alteration and to seek and provide legal clarification in the case of any ambiguity.
It would not allow any alterations which would negatively impact the building, any other resident, the environment, or the value of the property. Structural alterations were not allowed unless specifically permitted in the lease agreement.
Leaseholders would have to pay a legal and administrative fee to the landlord when submitting an application. It would consider requests in a timely manner and provide its decision, and reason for it, in writing. In some cases, it could require a surveyor to visit the property to discuss the proposed alterations before it granted permission.

Chronology

In September 2020, the resident and the landlord corresponded in relation to an enquiry by the resident for alterations in his property so that he could install an air conditioning unit and his request that such an agreement be dealt with by way of an informal agreement, rather than a Deed of Variation.
During the course of the correspondence, the resident made the following points:
1. Consent to alterations would not the same thing as a waiver of a breach as the resident had not yet made any structural adjustments, and if he did so having been given consent, the alterations would not constitute a breach as the act was permitted.
2. He suggested that any Deed of Variation could vary the clause in the lease which restricted alterations, to specifically permit the installation of an air conditioning system and associated work to allow a hose outlet through the external wall and the installation of an extractor fan/condenser unit.
3. He requested a short discussion with the legal team.
4. A solicitor was not required to enter into a Deed of Variation.
5. The landlord had a duty to act reasonably and not impose unnecessary or unreasonable conditions.
6. The landlord should have to consider the request prior to entering into a Deed of Variation. He would not pay £350 for a Deed of Variation until the consent had been agreed in principle, as there was no legal work required until it had been established that the consent would be given.
7. The landlord should consider other issues in the meantime, such as whether the building was listed (it was not), any impact on other tenants or maintaining the appearance of the building, before incurring costs.
8. He would, however, pay for the reasonable costs of a surveyor in order to address whether the work would cause any structural “deficiency” in the building.
9. The landlord’s “User Guide”, issued by the landlord had merged with, stated that if the resident wanted to make alterations, the resident would only need the landlord’s written permission prior to undertaking works. Therefore, it was not necessary to vary the lease. The resident argued that the guide created a “legitimate expectation“ that nothing more was required than written permission.
10. He had not been informed of the leaseholder alterations policy. Change to policies in 2019 without having notified the resident or acceptance on his part was not acceptable.
11. The existence of the policy proved that that, in certain situations, alterations were permitted and he requested examples. He felt that leaseholders were not treated equally.
12. He felt there was an arbitrary, “computer says no”, approach being taken. He challenged the policy document requirement to treat leaseholders in a fair and equitable way in terms of the process and given the “sheer and frankly unbearable” heat that his “property (and other properties) suffered in the warmer months”.
13. The resident asked the landlord to consider this individual request rather than apply a blanket policy.
14. In relation to the landlord’s point that the lease did not contemplate alterations and could not be changed, he stated that the two parties could reach an agreement, verbally or in writing.
15. He stated that the omission of the wording “with the landlord’s prior consent” in the relevant clause that was present in another clause did not mean that the landlord cannot give consent.
16. The resident pointed to a commercial, short-term leaseholder, which occupied a commercial unit on the ground floor and which had installed cooling units on the roof and also an ATM machine at ground level. They were structural changes to the building, which altered the appearance of the building. He felt that was unfair they had had permission and he did not.
17. He also understood that a number of leaseholders had made similar enquiries. The summer had been extremely hot and the insulation and significant floor to ceiling glass doors and windows about the properties had resulted in extreme heat. His room temperature had read above 32 degrees centigrade. The alternative solution would be a ducted system, which would require major alterations, and at an unreasonable cost.
18. In relation to the structural integrity of the building, the aesthetics, and the interests of rights of other residents, he only wanted to make a small hole through an external wall which a surveyor could review in order to confirm that such works would cause no impact to the structural integrity of the building. He stated that the condenser fan unit to be installed on the external wall would sit at the top of the building on the third floor, within his terrace/balcony area set back from the edge of the building, completely hidden from street level view and therefore not interfering with the aesthetics of the building. The installation would not impact on other residents/leaseholders, but suggested the landlord write to leaseholders to enquire. He would be happy for a surveyor to review this and make that determination in due course.
The landlord’s points were that:
1. The landlord would not reach an agreement without a Deed of Variation, as this would mean waiving the clauses of the lease that prohibited structural alterations which would mean the landlord permitting a breach of the resident’s lease and thereby depriving other leaseholders in the block of their rights to take action against this breach.
2. The resident would need to instruct a solicitor before its legal team would discuss the case, and only then discuss it with a solicitor directly. It suggested the resident seek legal advice. It charged from £350 for a Deed of Variation and suggested he seek legal advice before making payment. The parties’ solicitors could discuss the case before payment was made.
3. It stated that the landlord would need to consider the reasons for not permitting structural alterations, for example if the building were listed, other residents and it wished to keep the outside in keeping with other blocks nearby.
4. However, the surveying team would not consider the application without the correct permissions in the lease, which was why the variation was required first. If he were to submit an alterations application for structural alterations, it would be rejected as the lease did not allow it.
5. The landlord had introduced a new policy which had been updated since the merger. It did not permit structural alterations where the lease did not allow this. It would not agree a variation to amend individual lease terms as all leases in the block were uniform. The lease terms should remain as there was a risk that any works could affect the structural integrity of the building and there was therefore a risk that its tenants could be adversely affected.
6. The policy was updated after the merger, in order to provide a clear process in place for residents. There was no requirement for consultation directly with leaseholders on changes to policies or procedures but could report any feedback.
7. It explained that most leases allowed non-structural works with the landlord’s prior consent, such as a boiler replacement. Examples of structural works included knocking down walls, or anything that affected the exterior of the building. The fan would be on the exterior of the building. It referred to the clauses of the lease, cited above. The landlord “needed to” maintain the aesthetics of the exterior of the building and therefore did not allow any changes to the exterior. It would consider any unit that could be set up internally under another clause.
8. In his email of 3 November 2020, the resident asked to “escalate” his complaint. The landlord replied the same day that it would request a manager to review the decision.
The resident made a formal complaint on 22 November 2020 as follows:
1. The landlord’s leasehold team did not have the knowledge, experience or capability to deal with leaseholders’ requests, and was also slow.
2. His request received an arbitrary rejection without due consideration, based on “incorrect” legal advice and the application of an arbitrary “policy”, which was not fairly and equitably applied across residential and commercial leaseholders. It had been three weeks since he had last received any correspondence. He wanted a second stage complaint handler to review the correspondence and his request considered fairly by an appropriately skilled and experienced member of staff and, if any concerns of the landlord could be satisfied, ultimately provide consent to his request .
The landlord replied on 24 November 2020 to state it had raised a complaint “to the relevant team”.
There was a gap in the correspondence. In February 2021, there was further email correspondence between the parties. The resident set out the sequence of events in relation to his complaint. The landlord established that there had been some confusion regarding the complaint reference numbers provided by the landlord. The landlord also accepted the matter had taken too long. It suggested that the resident awaited a manager’s review of the landlord’s decision, which should have happened in November 2020. The resident agreed and said he would wait two weeks, failing which he would make a formal complaint.
On 4 March 2021, the resident wrote to the landlord stating he had not received a response and raising a formal complaint as follows:
1. The substantive issue in terms of the request for a simple consent in relation to air conditioning.
2. The landlord’s failings in dealing with this matter, including the relevant team manager not addressing the issue since it was raised at the beginning of November 2020, and the subsequent failure of the complaints to raise this complaint since the end of November 2020.
The landlord wrote to the resident on 23 March 2021 with its first-stage response as follows:
1. It apologised for the frustration caused by the drawn-out exchange of emails over a lengthy period of time. It was not its intention to do anything other than work with its leaseholders in a helpful and constructive way. It was sorry that the resident felt that leaseholders were treated with a degree of contempt.
2. It had many thousands of leaseholders and as such the department did have to work within the confines and framework of formal leases, particularly with regards to alterations.
3. It considered that the decision made in November 2020 was a fair and reasonable decision based on the terms of the resident’s lease and its policy.
4. While the installation of one air conditioning unit may be relatively unobtrusive and minor, it could lead to further alteration requests from other leaseholders which the landlord would then have to approve in order to be fair. If this happened, it could lead to more alterations potentially with different types of air conditioning units being installed. This could affect the aesthetics of the building and perhaps even the value of individual properties. It was for this reason, along with the terms of the lease, that it declined the request.
5. It considered the delay in the landlord not responding since November 2020 was a serious service failure. It would be monitoring the personnel concerned.
6. It invited the resident to contact the landlord by 8 April 2021 to discuss the complaint further to discuss anything that may remain outstanding and informed him of his rights to escalate the complaint.
The resident asked to escalate the complaint on 26 March 2021 for the following reasons:
1. The landlord’s failings were not limited to the leasehold compliance team but extended to the customer service team, which failed to properly raise this complaint since November 2020. He paid service charges and the fact it had so many leaseholders was not an excuse. They should increase their resources.
2. The landlord did not address the complaint individually or discuss the complaint with him.
3. The decision in October 2020 was not fair or reasonable. The alteration request was not given due consideration.
4. In terms of contract law, it was legally incorrect in determining whether or not consent may be given and this was not a sound basis for refusal.
5. A request should be considered and not rejected based on a blanket policy approach, particularly given the value of the lease.
6. Its point about consenting to the resident’s request leading to other leaseholders submitting similar requests was hypothetical. Each decision should be made on its own merits.
7. The landlord’s point that consent to one leaseholder could lead to others, should apply to his own request, given the commercial unit had been given permission.
8. The commercial unit was permitted alterations, therefore the landlord had been inconsistent in its decision making.
9. He offered to work with the landlord to make the unit as unobtrusive as possible.
10. The complaint response did not address the resident’s points regarding the commercial unit or the temperature.
The landlord initially promised a response for 28 April 2021. There followed a number of emails between the parties, with the resident chasing the response.
There was also some internal correspondence between the landlord’s complaint team and its legal department.
The landlord provided its second-stage response to the resident’s complaint on 11 June 2021 as follows:
1. It accepted that the complaint raised in November 2020 was not logged as a complaint, nor were the resident’s “chasers” picked up as they should have been. It explained that the landlord received substantial amount of incoming calls on a daily basis from all tenants and leaseholders. There was a further confusion with reference numbers. It would feedback to ensure staff were reminded of the correct processes to follow. It apologised and recognised that the exchange of correspondence had protracted the matter.
2. In relation to the alteration request, its legal team had advised that whilst the lease might state the landlord did not consent to any alterations, this would not necessarily impede a discussion between the parties involved to review this.
3. Any such communication would need to be documented as a variation to the lease and all costs involved in any variation clause implemented would be borne by the leaseholder.
4. The legal team advised further that landlord relationship with the commercial unit was a commercial one and based on a commercial lease for the unit. The landlord would need to explore whether its freehold title was bound by any covenants and restrictions which had been reflected in the leases granted to leaseholders. It had made enquiries whether there was any technical reason related to the installation of an air conditioning unit why the landlord could not permit consent. Clarification would be needed before any discussion to consider a variation could be made. The landlord was going to review its leases and then respond.
5. The legal team worked on the landlord’s behalf and as such usually communicated with residents where they had sought their own legal counsel.
6. It acknowledged this had been a frustrating experience and apologised that the service had “not been at a standard (one) would expect”. It acknowledged the delays but stated that the pandemic restrictions would have contributed to the impact of the service he had received.
7. It noted the lessons learnt and would recommend that processes were reviewed to ensure staff undertook the correct procedures when contacted by residents.
8. It offered compensation in respect of its complaint handling as follows:
  1. £100 Complaint handling – incorrect procedures and delayed responses.
  2. £75 time and trouble taken to pursue this matter.
The resident wrote on 15 June 2021 with his response.
1. He felt a leaseholder had a greater claim than a commercial unit because of the length of his lease and the rights of a residential leaseholder.
2. He was of the view if leaseholders had the right to fairness, as referred to by the landlord, then so did he in relation to the commercial unit.
3. The landlord’s reply indicated to him that as the arrangements with the commercial unit were in the interests of profit. He referred to the value of his property.
4. He had lost faith in the leasehold team because it had made errors and he found it unhelpful.
5. The landlord had not addressed the temperature in the property which impacted on him, particularly working from home.
6. He wished to leave the complaint regarding the alterations open and for the parties to agree a timescale for the landlord’s response.
There followed further correspondence, with the resident chasing a response and whether the complaint was closed. There also followed some further internal discussion. The resident stated that that there had been no progress since his initial request in August/September 2020. The landlord was making enquires that should have occurred 10 months previously. Given the delay and lost time, he suggested that the landlord waived its “fixed admin” costs and the parties share any professional and legal costs. He felt this was a simple matter rather than complex, or a legal matter.
The internal discussions involved:
1. The landlord sought to investigate regarding whether the air conditioning unit be installed without affecting the structure of the building (i.e noise, vibration or potentially causing water leaks or fire safety issues?)
2. It also expressed an intention to investigate whether the building reached excessive temperatures and may need the view of a surveyor.
3. The legal advice was that the addition of an aircon unit on the roof would almost certainly be a structural alteration and there was an outright prohibition on this. Therefore, the decision was not whether the landlord was unreasonably withholding consent but whether it would allow a breach of the lease.
4. In relation to the commercial unit being permitted alterations, this depended on the terms of its lease and what works were carried out. Even if the lease did not permit something the landlord had agreed to, the remedy would not be permitting the resident to do the same.
5. It referred to the relevant case law where a leaseholder in a building applied for permission from the landlord to carry out works to her flat. There was an intention to remove a load-bearing wall. Within the lease there was an absolute covenant against structural alterations. One of the other leaseholders in the building objected to the landlord providing permission and ultimately issued proceedings against the landlord for a declaration that the landlord was not permitted to give consent to the works. The decision in the Supreme Court held that where a lease contained a covenant by the landlord with leaseholder A to enforce the covenants of a lease against leaseholder B, and the landlord gave consent to leaseholder B to carry out works in breach of an absolute covenant, the landlord itself would be in breach of its lease with leaseholder A.
6. If the installation of an aircon unit could be damaging to or destructive of the building then a surveyor would need to be involved.
The landlord wrote again on 6 August 2021.
1. The legal advice was that the landlord could use some discretion to vary the lease and if doing so, all costs would be borne by the resident.
2. However, the landlord’s decision was that the terms of the lease would not be varied to allow any alterations to the property for the following reasons:
  1. While there may be the option of discretion to consider a variation, the landlord must also consider the structural change that would be made.
  2. From a fire safety perspective, the landlord would have to consider the issue of compartmentalisation of the property and what effect any alteration may or would have.
  3. Allowing any variation of the lease concerned would put the landlord in a position where they may be in breach with other leaseholders. As the lease stated no alterations were allowed, the landlord would not deviate from this clause for the above reasons.
3. The compensation offered remained the same.
The resident replied on 9 August 2021 as follows:
1. He considered the issues of structural changes to be hypothetical concerns. He asked what were the structural concerns, together with the details of any survey conducted. He did not believe that the landlord had considered any structural changes.
2. In relation to the fire safety perspective, he felt this was speculation given he had not been asked what system he was proposing. He said it was an electrical appliance like another and no different to any other electrical appliance in the property. He offered to consider the fire safety aspects.
3. He asked what provisions in any leasehold agreements it was referring to when referring to a breach. How could the landlord be breaching the lease? Why could they not obtain leaseholder consent to waive any such breach.
4. He asked for clarification regarding the position on the commercial unit that it had been allowed to make alterations.
5. He referred back to issues that he considered had not been addressed, including fair treatment of the leaseholder, the issue of the commercial unit, the temperature in the property.
6. He felt the response and failure to engage with his suggestions demonstrated contempt for the leaseholder.
The landlord replied on 12 August 2021 as follows:
1. The request from the commercial unit was different as they were subject to legislation in respect of temperature for use of the shop and to store food so this was a legal requirement as a commercial property. While it would seek to help their residents, it also had to consider all aspects of requests.
According to the landlord’s internal email, the landlord had explained to the resident that the substantive decision itself was outside the complaints process.

Assessment and findings

The role of the Housing Ombudsman in this case is to consider a landlord’s response to the resident’s request for alterations, the landlord’s statutory and regulatory obligations and any management issues, including issues arising from building and block management, such as health and safety. The Ombudsman also considers whether a landlord’s response is in line with its own policies and with good practice and whether a landlord’s responses were fair, appropriate, reasonable and proportionate in the circumstances of the case.
In the circumstances, this investigation has considered not only the substantive decision itself, but also including its decision-making process, including how the landlord responded, and how it communicated with the resident.
While the landlord’s second-stage response was provided on 11 June 2021, the Ombudsman has considered the landlord’s subsequent response to the resident’s request. This was because a) the landlord offered to keep the complaint process open as a “generic” case, b) it addressed some of the resident’s outstanding issues in his complaint after its letter of 11 June 2021 and c) the final decision was so close in time and dealt with the same substantive issue as the complaint itself. It would not be fair to require the resident to make a further complaint in the circumstances.
It was reasonable and appropriate for the landlord to insist that any consent would be entered into as a deed of variation rather than a written or verbal agreement. It was also in line with the landlord’s policies. A consent would have legal implications and would need to be specific and carefully worded. It was also reasonable and in line with the lease that the leaseholder would have to meet the costs of any agreement to allow alterations would be at the resident’s expense. The lease specified that where the work was undertaken by an employee then a reasonable allowance be made for such work. That is reasonable, given such work would be for the benefit of the resident and not the landlord. The landlord was entitled to consider and protect its resources. The sum referred to did not appear to the Ombudsman to be excessive. However, the landlord should consider having a scale of standard charges within the relevant policy so as to be transparent and ensure consistency.
While the resident may not have envisaged the need for an air conditioning unit at the time, the resident entered into the lease with the knowledge there was an absolute prohibition on structural alterations. That was the starting point. However, the landlord reasonably considered the matter beyond the letter of the lease.
In terms of the final decision itself, the landlord was entitled to consider the various implications of granting permission, including the legal implications, the practical, structural implications, the aesthetics, and the effect on other residents, given the resident’s own covenant not to cause nuisance. This was good practice and in accordance with its alterations policy. A note regarding the policy itself: it defined alterations as affecting the internal part of the property, yet the content of the policy also referred to external works and the landlord cited the policy in its correspondence as applying to the resident’s request, which was treated as a structural change.
Much of the rationale for the landlord’s final decision was set out in the landlord’s internal emails. The landlord’s internal emails showed that the landlord had considered the relevant caselaw. The case in question was that of Duval v 11-13 Randolph Crescent Ltd [2020] UKSC 18. The issue in the case was whether the landlord of a block of flats was entitled to grant a licence to a leaseholder to carry out work which, but, for a licence, would breach a covenant in the lease of his or her flat, in circumstances where the leases of the other flats required the landlord to enforce such covenants at the request of any one of the other lessees. The Supreme Court decided that the landlord, if it granted a licence for works that would be otherwise in breach of its lease, would bring itself in breach of its enforcement covenants with the other leaseholders. Given there was an absolute prohibition in the resident’s lease to any structural works and given the landlord had covenanted in the lease to enforce covenants against other leaseholders, the argument was that the landlord could not risk undermining its own lease and the leaseholder’s rights by giving consent to the resident. This was a reasonable point. The landlord was entitled not to engage in an act which was potentially unlawful and would leave it open to litigation. The case itself also pointed to the impracticalities of a leaseholder consultation. In addition, a consultation would be an administrative burden for the landlord that was disproportionate to its main functions and would not be fair or proportionate to ask of it.
However, how that case may specifically apply to the resident’ case would be a matter of judicial argument, and it is not the role of the Ombudsman to interpret leases and caselaw and make definitive decisions on these as a court would. It is open for the resident to seek legal advice on this point.
The resident made a number of points, as follows:
1. The resident’s stated that if there were an agreement in place, he would not be breaching the lease. The landlord’s final position was a variation would be a breach of the landlord’s lease.
2. The landlord’s explanation was reasonable that there was a reason for one clause of the lease allowing alterations of a non-structural nature to the interior but there being an absolute prohibition on making alterations to the exterior.
3. It was not fair that the commercial unit was granted permission to make alterations which included an air conditioning unit, but not the resident. The evidence showed that the landlord did consider the issue of fairness, albeit it was not in the forefront of the landlord’s mind. The landlord’s position was that the commercial unit had a different lease and so it was a matter for the detail of the lease itself was reasonable. The landlord’s position that if the unit had been given permission incorrectly, giving the resident permission as well would not be the solution. The Ombudsman saw no evidence that the landlord was motivated by profit but by the terms of the respective leases. The landlord was entitled to grant a lease which allowed the unit to abide by its statutory requirements. While the Ombudsman would expect the landlord to act fairly, the landlord was also required to abide by its legal obligations.
4. The Ombudsman would not expect the landlord to consult with its residents on its policies. In any event, any alterations were the subject of the landlord’s permission even under the previous policy the resident referred to. The Ombudsman would expect its policies to be accessible on its website and to ensure that its residents were aware that its polices would change from time to time.
5. The Ombudsman would not expect the landlord to take into account the price the resident paid for the property as there was no indication it was over market value, and no evidence that a leaseholder had a greater right than the commercial unit, given both parties had the benefit of lease agreements.
The Ombudsman would expect the landlord to have considered the resident’s request and for its decision to be reasonable and appropriate. The evidence showed that, eventually, it had considered the resident’s request and its rationale for refusal (based on the caselaw) was reasonable. There was no evidence that the landlord was in a position to exercise its discretion which is what the resident was effectively asking it to do.
However, the Ombudsman would also expect the process of the landlord’s decision-making process to be timely, reasonable, and appropriate and for the landlord to communicate its decisions clearly, accurately, and in a transparent manner. While the matter was indeed complex, as it involved a number of considerations and involved a number of teams, it took nearly a year for the landlord to consider the matter.
It was reasonable of the landlord to consider the matter, despite the policy stating that leaseholders would have to pay a legal and administrative fee to the landlord when submitting an application. However, the landlord having agreed to consider it without a formal application, and invited the resident to discuss the case before payment was made, the Ombudsman would expect the landlord to address the request and in a timely manner.
The landlord’s initial explanation made early in the process in October 2020 for not amending the lease came close to the final decision, whether intentionally or not, but it was not expressed as clearly as it might have been. This led to a discussion as to whether parties to a lease could, in theory, amend a lease. Prior to reaching the decision that this particular lease could not be amended, the landlord eventually acknowledged that a lease, in theory, was capable of amendment. However, in this instance, the question became academic. The initial discussion caused frustration to the resident and caused him to lose faith in the landlord’s response.
While the landlord was entitled not to agree to the resident speaking directly to the legal team, in order to protect its resources, this was also frustrating for the resident. The landlord needs to consider how a resident may engage in a discussion about legal issues without having to instruct a solicitor and provide an explanation why its legal department will not directly engage with residents as well as consider when it is appropriate to do so, as there may be occasions when it is not fair to insist on a resident engaging a solicitor. As the complaints team of the landlord did eventually, the landlord should ensure it works closely with its legal department when discussing legal issues to ensure it provides clear and accurate responses.
It was inappropriate for the landlord to, initially, apply the lease alterations policy without further considering whether there were exceptional circumstances. Its explanation that there was a risk the alterations could affect the structural integrity was not satisfactory on the face of it, as it did not address the resident’s specific request and gave the resident the impression the landlord was dealing with the matter hypothetically.
It was unreasonable that the landlord only began to properly address the resident’s request once the complaint process was initiated in February 2021 and then, only in part. Even once the request was property investigated, the landlord did not fully explain its decision to the resident. The Ombudsman would have expected the landlord to have explained its position in relation to the freehold and commercial leases as it had promised to do so. The landlord also stated it would make enquiries of its surveying team. While it referred to advice regarding fire compartmentalisation, the landlord did not make clear the outcome, or provide an explanation why it did not pursue the enquiries, if that was the case (potentially because it found it could not amend the lease in any event).
The Ombudsman has sympathy for the resident that he felt that it was a case that the “computer said no” and that, initially, he felt the landlord was not engaging with him. As a result, he felt he had been treated with contempt. It also led to misunderstandings, including the point the landlord made concerning the commercial lease, which the landlord did not clarify. However, the evidence showed that the landlord eventually did reasonably consider the various facets of the resident’s request. The final decision did not reflect the careful consideration and analysis the landlord gave to the issue, which explanation may have been of benefit to the resident.
It was reasonable and appropriate of the landlord to consider the resident’s request. However, the landlord’s decision was made in accordance with the lease the resident had entered into and there were good reasons not to depart from it. While the landlord’s full consideration of the resident’s request was delayed, as was the complaint response, and this caused frustration to the resident, the impact on the resident was limited. In the circumstances, the compensation offered by the landlord represented, in the Ombudsman’s view, reasonable redress.
Finally, while the evidence showed an intention to address the high temperature the resident reported in his flat, the landlord did not address this with the resident, which was inappropriate.
In relation to the landlord’s complaint handling, the resident accepted the decision by the landlord in relation to its complaint handling and the amount of compensation offered. It is noted that the landlord accepted its failings and stated its intentions to avoid similar failings in the future. The Ombudsman will however make a recommendation in that regard.

Determination (decision)

In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, there was reasonable redress in relation to the landlord’s response to the complainant’s request to make alterations to his property and an external wall to the building in order to install an air conditioning unit.

Reasons

The final decision was made in accordance with the lease the resident had entered into and any departure was in the discretion of the landlord. The landlord had taken steps to engage with the resident and consider the resident’s request. The landlord did not identify reasons to depart from the lease and, if anything, identified good reasons not to. Its final decision was in accordance with the lease and policy, and the evidence showed a reasonable rationale for its final decision. While there was a delay in the landlord considering the resident’s request, the compensation that the landlord offered constituted, in the Ombudsman’s view, reasonable redress for the failings identified in this investigation. While frustrating for him, there was no evidence that the failings caused a lasting impact on the resident.

Recommendations

The Ombudsman recommends that the landlord considers taking following steps:
1. Pay the resident the compensation it offered, if it has not already done so.
2. Write to the resident with a more detailed explanation for its decision, with reference to the case law referred to, if the resident requires it.
3. If the landlord has made enquiries with its commercial lease team and its surveying team, the landlord should consider sharing with the resident any further reasons why the commercial unit was treated as a different case and the reasons why an air-conditioning unit was not be suitable on a practical basis.
4. Contact the resident with a view to arranging an investigation of the resident’s report of high temperatures in his flat.
5. Ensure it implements the lessons learned it noted in its complaints process including improving its processes so that it does not miss addressing complaints.
6. Review how it responds to similar requests by leaseholders, in particular when they become complex and ensures it provides clearer explanations of its position, including working closely with its legal department from the outset when discussing legal issues, in order to ensure it is providing clear and accurate responses.
7. Review its leasehold alterations policy so that it a) reconsiders the definition of alterations so that the document is comprehensive and consistent and b) sets out a fee structure for its charges.
8. Consider a fair and transparent approach to its residents, while protecting its own resources, in relation to charging fees for an application for a lease amendment. This could be a staggered charge.
9. Ensure that its policies are readily accessible on its website and there is notification that they could be amended from time to time.