Peabody Trust (202105170)

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REPORT

COMPLAINT 202105170

Peabody Trust

7 January 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 concerns:
1. How the landlord handled the resident’s concerns relating to grounds maintenance and cleaning.
2. The information provided to the resident by the landlord relating to grounds maintenance and cleaning.
3. The increase in the resident’s service charge.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (the 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. After carefully considering all the evidence. the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.

The information provided to the resident by the landlord relating to grounds maintenance and cleaning

When raising a complaint and in requesting an escalation, the resident has disputed that the landlord has provided all the information he requested relating to the landlord’s policies for grounds maintenance and cleaning, and estate inspection reports.
The landlord’s position, as set out in its complaint responses, is that it had provided all the information requested, in compliance with the Freedom of Information Act 2000.
Paragraph 39(m) of the Scheme states that “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body”.
The Housing Ombudsman is unable to consider complaints about landlords’ responses to requests for information under the Data Protection and Freedom of Information Acts. Matters relating to requests for information under the Data Protection and Freedom of Information acts fall properly within the jurisdiction of the Information Commissioner’s Office (ICO) and it is recommended the resident contact the ICO if he wishes to pursue this aspect of his complaint further.

The increase in the resident’s service charge

As part of the complaint, the resident has stated that he considers the level of the service charge is too high and that the portion of the increase in the service charge for 2021/22 relating to grounds maintenance and cleaning should be refunded.
Paragraph 39(g) of the Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, “concern the level of rent or service charge or the amount of the rent or service charge increase”. Should the resident wish to pursue the matter of the increase of the service charge amount, he has the option of making an application to the First-Tier Tribunal (Property Chambers) (“FTT”).
The FTT can make determinations on all aspects of the liability to pay a service charge, including by whom, to who, how much and when a service charge is payable. In order to decide liability a tribunal also decides whether service charge costs have been reasonably incurred and if so whether the standard of any services or works for which the costs are charged is reasonable. The FTT can also determine cases where the complainant has alleged that there has been a failure of statutory requirements and where the determination of the complaint would be reliant on determination of a contested legal issue.

Background and summary of events

Background

The resident is an assured tenant of the landlord, which is a housing association. The property is a flat in a communal building. The tenancy agreement signed by the resident states that he must pay a weekly rent for the property and a weekly fixed service charge for the services provided by the landlord.
The landlord operates a two-stage complaints process. When a complaint is received, the landlord will investigate the matter and provide a full complaint response at stage one. If the complainant is dissatisfied with the response, they can request an escalation of the complaint to the next stage. The landlord will then undertake a review of the complaint and provide a stage two response This will be the landlord’s final response to the complaint.
The complaints policy does not provide specific timescales for responding to complaints. In line with the Ombudsman’s Complaint Handling Code (published on our website), landlords are expected to respond at the first stage of its internal complaint process within ten to 20 working days of receiving the complaint, and to respond at the second stage of the complaint process within 20 working days of the resident asking for the complaint to be escalated.

Summary of events

On 29 May 2021 the resident wrote to the landlord to complain about the condition of the communal lawn outside his property. He provided photographs and noted there was very little grass visible due to the amount of weeds and moss. The resident informed the landlord that he had seen a year-on-year deterioration of the quality of estate management. He also requested an update from the landlord on a previous request he had made to receive copies of the estate inspection reports.
On 3 June 2021 the resident called this Service to state his dissatisfaction which how his complaint was being handled by the landlord. This Service passed on the resident’s concerns to the landlord and described the elements of the complaint as:
1. Poor communication from the landlord when the resident requested a review of his service charge.
2. The quality of work from the landlord’s contractors maintaining the communal areas of the building were not up to standard.
3. The landlord did not respond to his complaint made on 29 May 2021.
The landlord opened a formal complaint into the matter on 24 June 2021. On 26 June 2021, the resident contacted the landlord and requested to raise an additional complaint for not providing him with its estate management policies and estate inspection reports, which he had previously requested.
The landlord sent a stage one complaint response to the resident on 5 July 2021. It informed the resident that:
1. It was satisfied that the communal areas were being properly maintained and monthly inspections were undertaken to ensure all work was up to standard.
2. It had previously carried out improvements to the lawn and it would be undertaking a review of the condition of the lawn during the winter to assess if further work was needed.
3. It had emailed the resident on 16 June 2021 and provided him with its tree policy, cleaning contract specification and relevant work task descriptions. It was satisfied that it had provided the requested information and its response was in compliance with the Freedom of Information Act 2000.
4. It had found no evidence that the staff member handling the resident’s document request had acted in a “dishonest, deceitful and manipulative” manner, which had been suggested by the resident. It requested that the resident conduct his correspondence with the landlord in a respectful manner going forward.
On 6 July 2021, the resident wrote to the landlord and requested an escalation of the complaint to stage two of the landlord’s process. The resident then wrote several additional emails where he described his grounds for requesting an escalation as:
1. The grounds maintenance and cleaning services were of a poor standard.
2. The increase in the service charge for 2021/22 was not acceptable due to the poor service received.
The landlord acknowledged the request on 12 July 2021 and wrote again on 16 July 2021 to conform that the complaint had been escalated. The stage two complaint response was then sent to the resident on 6 August 2021. The landlord informed the resident that:
1. It had reviewed its system notes and its records confirm that two emails were sent to the resident on 16 June 2021 providing the documents the resident had requested.
2. It acknowledged the photographs sent by the resident of the condition of the lawn showed the presence of weeds and moss. It then informed the resident that following discussions with its contractor it had agreed to re–turf the lawn in the autumn, which it explained was the best time of the year for the work to be undertaken. The landlord also advised the resident that the new lawn may not guarantee that weeds would not develop in the future, but that its contractor would continue weekly visits to the building to undertake maintenance which would include upkeep of the lawn.
3. It confirmed that it could find no evidence of its staff member being “dishonest, deceitful and manipulative” during their correspondence with the resident. It requested that it the resident had evidence which disputed this position, that he provide it with the details and the landlord would then investigate the matter further.
A further stage two complaint response was sent to the resident on 6 August 2021. This response addressed elements of the resident’s complaint relating to the service charge and estate inspections. This response informed the resident that:
1. Estate inspections were undertaken approximately every six weeks. The landlord had previously provided a copy of the report of the inspection taken on 19 November 2019 when requested by the resident.
2. The landlord had received the photographs taken by the resident of the communal areas of the building. It noted that since the photographs were taken in June 2021 that the areas highlighted by the resident had been cleaned. It explained that the photographs had been passed on to its cleaning contractor. The landlord advised the resident to pass on any other photographs he had taken where cleaning had not been up to standard and that these would also be passed on to the contractor.
3. It would not reduce or refund the service charge paid by the resident for cleaning and explained that as the service charge was fixed it could not be varied.
4. It then addressed why two stage two responses had been provided to the resident. It explained that the resident’s complaint raised on 26 June 2021 had been incorrectly categorised as a service request rather than a formal complaint. The landlord had therefore provided an informal response to the resident on 6 July 2021 rather than a full stage one response.
5. The landlord apologised to the resident for the confusion and inconvenience this had caused and offered £50 compensation for not properly following its internal complaint process.
On 6 August 2021 the resident wrote to the landlord and noted that it had not addressed the increase to the service charge for grounds maintenance and cleaning services. He also stated that the £50 compensation offer was insufficient and requested that it be increased to £150. The resident wrote again on 8 August 2021 and disputed that the landlord had provided all the requested documents.
On 12 August 2021 the resident wrote to the landlord and requested an update. The landlord replied on 13 August 2021 and stated that it was considering the issues he had raised and would provide a follow-up to its stage two response by 20 August 2021.
The resident wrote to the landlord again on 20 August 2021 to request an update. He also informed it that an estate inspection was scheduled to be undertaken at 11am that day, but it had not gone ahead.
The landlord sent its follow-up response to the resident on 27 August 2021. It informed him that:
1. The estate inspection was undertaken on 23 August 2021, and it was satisfied that communal areas were being maintained within the contract specification.
2. The service charge element of the resident’s rent is fixed and cannot be varied as requested by the resident. The landlord would therefore not be providing a refund of the service charge.
3. It had considered the resident’s request to increase the compensation award to £150, but as there were no major failings in how the communal areas had been maintained it could not agree to his request. However, the landlord increased its original compensation offer to £60 in recognition of the delay in providing the follow-on response to his complaint.
During a telephone conversation with this Service on 13 September 2021, the resident described the outstanding issues of the complaint as that the level of the service charge was too high for the quality of service provided, and that the poor condition of the lawn had caused him to suffer a medical issue which the landlord did not address.
The resident described his desired outcome of the complaint as:
1. To be provided with copies of all grounds maintenance and cleaning policies.
2. To be provided with copies of all invoices between the landlord and its contractors for the last three years.
3. An increase in the amount of compensation.

Assessment and findings

How the landlord handled the resident’s concerns relating to grounds maintenance and cleaning.

In its complaint responses, the landlord acknowledged the lawn was in a poor condition, that some communal areas had not been cleaned properly and it had not properly followed its complaint policy correctly. The landlord apologised, arranged to have the lawn returfed, ensured that the areas highlighted by the resident were cleaned and offered £60 compensation for the delay and inconvenience caused by its poor complaint handling.
Where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: be fair, put things right and learn from outcomes.
The landlord acted fairly in acknowledging its mistakes and explaining what it did wrong in each of the incidents. It put things right by apologising to the resident, arranging for the lawn to be replaced and the missed areas cleaned, and in awarding appropriate compensation.
It looked to learn from its errors by providing the resident’s photographs to its cleaning contractor to ensure that the missed areas were cleaned in the future. Internal correspondence provided by the landlord also showed that it raised the miss-categorisation of the resident’s complaint as a service request with the relevant staff to encourage learning in an effort to avoid similar errors occurring in the future.
The compensation payment offered by the landlord was in line with the Ombudsman’s own remedies guidance (which is available on our website). This suggests a payment of £50 to £250 in cases of service failure resulting in some impact on a complainant but was of short duration and may not have significantly affected the overall outcome: Examples given of when this level of redress should be considered include:
1. Failure to meet service standards for actions and responses but where the failure had no significant impact.
2. Incorrectly addressing correspondence (so as to cause offence/upset, but not a breach of data protection requirements).
In this case, while the landlord incorrectly treated some elements of the complaint as a service request and did not address them in a stage one complaint response; it recognised its’s mistake, provided an extra stage two response and then reviewed its decision on these elements in its follow-up response. Therefore, while its mistake clearly caused confusion and inconvenience to the resident, the landlord addressed all the elements of the complaint raised by the resident in at least two full complaint responses in line with its complaint policy.
The resident has also highlighted his dissatisfaction with how the landlord responded to his report that the condition of the lawn had caused medical problems for him. As this element was not raised by the resident during the formal complaint, the landlord would first need to be given a chance to respond to this matter and the resident exhaust its complaint process before it could be considered by this Service.
It is also important to be aware that this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Matters of personal injury or damage to health, their investigation and compensation, are not part of the complaints process, and are more appropriately addressed by way of the courts as a personal injury claim. The resident may wish to seek independent legal advice if he wishes to pursue this aspect of his complaint. The Ombudsman is unable to give legal advice and therefore we cannot comment on this matter any further.
This is in line with paragraph 39(i) of the Housing Ombudsman Scheme, which states that “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure”.
As previously stated in the jurisdiction section above, it is not in the remit of this Service to be able to consider the documents given by the landlord to the resident, whether any information has been withheld and the level of the service charge.
Therefore, for the reasons set out above, the landlord has made an offer of redress to the resident which, in the Ombudsman’s opinion, resolves the complaint satisfactorily. The measures taken by the landlord to address what went wrong were proportionate to the impact that its failures had on the resident.

Determination (decision)

In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress to the resident in respect of how it handled the resident’s concerns relating to grounds maintenance and cleaning which, in the Ombudsman’s opinion, satisfactorily resolves the complaint.

Reasons

The landlord acted on the information and photographs provided by the resident by arranging for new turf to be laid and to ensure the communal areas were properly cleaned.
The landlord recognised the delay, confusion and inconvenience caused to the resident by initially treating some elements of the complaint as a service request. The landlord apologised and awarded compensation proportionate to the effect of these failures on the resident.

Recommendations

40. It is recommended that the landlord should pay the resident the £60 compensation which it offered previously, unless this has already been paid.

41. In recent correspondence with the Ombudsman, the resident has advised that the lawn has not been returfed as previously agreed by the landlord. If this work has not yet been carried out, the landlord should arrange for it to be done within 28 days. If this is not possible, the landlord should write to the resident explaining why this is not possible and advising when the returfing will be carried out. The Ombudsman’s finding that there had been reasonable redress by the landlord in respect of this complaint was based on this work being carried out.