Portal Housing Association Limited (202004183)

REPORT

COMPLAINT 202004183

Portal Housing Association Limited

29 April 2021

Our approach

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

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

The complaint

The complaint is about:
1. The level of service charge for the grounds maintenance contract.
2. The landlord’s response to the resident’s concerns regarding the standard of service provided under the grounds maintenance contract.
3. The landlord’s complaint handing.

Jurisdiction

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

Background and summary of events

Background

The resident is the leaseholder of the property (the property) which the complaint concerns. The landlord is the freeholder.
The property is a flat situated on an estate (the estate).

Summary of events

On 24 April 2020 the resident wrote to the landlord to raise concerns regarding the service charge for grounds maintenance. The resident stated that the grounds maintenance provided by the landlord was “appalling” and she therefore disputed the associated service charges as it was therefore not clear what it covered. The resident set out that she had been attending to the communal areas herself, including “cutting, seeding and feeding the gardens, clearing leaves and cleaning the communal bin area”. The resident also noted that the trees at the back of the property had not been maintained and the roots had now reached the property. The resident stated that she had complained “numerous times” about the grounds maintenance however the landlord had not responded. The resident advised that she would refer the matter to the Ombudsman if she did not receive “some clear answers”.
On 14 May 2020 the landlord responded setting out that it had reported the resident’s concerns to the contractor who was responsible for the upkeep of the estate. The landlord explained that the service charge for grounds maintenance was for the upkeep of the open spaces and communal areas on the estate which included grass cutting, sweeping and weeding of communal areas. The landlord confirmed that maintenance of trees was not undertaken by the contractor however it was responsible for this task and therefore it would be happy to visit to look at the trees. The landlord set out that it would complete the visit as soon as the Covid-19 restrictions permitted.
On 18 May 2020 the resident made a request under section 22 of the Landlord and Tenant Act 1985 to inspect the service charge accounts for financial year 2019/2020.
On 26 May 2020 the landlord responded to the resident confirming that it was unable to meet her request as the service charge accounts for 2019/2020 had not yet been finalised. The landlord confirmed they were due to be issued by the end of September 2020. In response the resident requested the service charge accounts for financial year 2018/2019. The landlord provided the resident with the requested information on 4 June 2019.
On 17 July 2020 the resident wrote to the landlord setting out that despite asking it to “explain the accuracy of the [grounds] maintenance fees” it had not provided a satisfactory response. The resident stated that she felt that a “deadlock” situation had been reached and therefore she requested confirmation from the landlord that she may refer the matter to the Ombudsman.
On 24 July 2020 the landlord acknowledged the resident’s correspondence confirming that it had raised a formal complaint and it would reply within 10 working days.
On 28 July 2020 the landlord wrote to the resident to introduce the officer who would be investigating her complaint. The landlord confirmed that it would provide a response within 10 working days.
On 10 August 2020 the resident contacted this Service for assistance as she had not received a complaint response from the landlord. On receipt of the resident’s enquiry the Ombudsman made enquiries with the landlord regarding the status of her complaint on 11 August 2020.
Following further contact from the resident, setting out that she had still not received a complaint response, the Ombudsman contacted the landlord again on 28 August 2020.
On 31 August 2020 the landlord wrote to the resident regarding her complaint. The landlord apolgoised for the delay in providing its response, however it explained that it was waiting to speak with the contractor before issuing its response. The landlord noted that it had previously provided the resident with information on the services completed under the grounds maintenance contract and this was what she was disputing.
On 9 September 2020 the Ombudsman contacted the landlord again to enquire regarding the status of the resident’s complaint as she reported that a formal response had not been received.
On 10 September 2020 the landlord responded to the resident’s complaint. In summary the landlord said:
1. It had reviewed the records following the grounds maintenance visits completed by the contactor. The landlord stated that the records showed that the contractor had attended on “multiple occasions”.
2. During the earlier stages of the Covid-19 pandemic “there was less attendance” by the contractor. The landlord explained that this was because the contractor could only send one operative to attend to the communal areas which slowed the pace in which work could be completed.
3. The cost of the grounds maintenance contract, payable under the service charge, would be met by the end of the financial year. The landlord explained that it would be achieved based on the number of attendances already undertaken by the contractor and their future visits.
4. From July 2020 it had completed estate inspections to ensure that the grounds maintenance contractor was being delivered.
The landlord concluded by confirming that it was satisfied that the grounds maintenance contract was “being provided and [was] frequently being completed to ensure the communal areas [were] maintained as expected”. The landlord stated that the resident should contact it should she feel that any work had not been completed so it could take action to rectify the situation.
On 24 September 2020 the landlord confirmed to the resident, following an enquiry from the Ombudsman, that its response dated 10 September was given under its complaint procedure and was its final position on the matter. The landlord set out that the resident may refer her complaint to the Ombudsman if she was not satisfied with its response.

Assessment and findings

The landlord’s response to the resident’s concerns regarding the standard of service provided under the grounds maintenance contract

The resident states that prior to her correspondence dated April 2020 she had complained numerous times to the landlord about the grounds maintenance contract however it had not responded. The Ombudsman has not had sight of these complaints and the landlord has advised the Ombudsman that it has no record of any previous contact. Therefore, in determining this case the Ombudsman will only consider the landlord’s response from April 2020. In any case, the resident had the opportunity to progress these complaints through the landlord’s complaint procedure and to the Ombudsman at the time and there is no evidence that she did so.
In response to the resident’s correspondence dated April 2020 the landlord raised her concerns with the contractor, detailed the tasks included in the grounds maintenance contract and confirmed that it would inspect the trees when it was safe to do so. In the Ombudsman’s opinion it was appropriate that the landlord:
1. Raised the resident’s concerns with the contactor as a first action to enable it to respond to her allegations and to allow it to take steps to put right any shortfalls in its service delivery. The landlord has provided evidence of its contact with the contractor.
2. Detailed the tasks included in the grounds maintenance contract to manage the resident’s expectations on the extent of the contractor’s duties and what tasks it should be completing.
3. Committed to inspecting the trees as the resident had suggested that it was a maintenance issue and had noted that the roots were encroaching the property. The landlord has confirmed to the Ombudsman that since the complaint it has established that the trees referred to are not on land which it owns and it is in the process of contacting the landowner to obtain a quote to remove them. The Ombudsman cannot see that an update has been provided to the resident in relation to the trees. This is unsatisfactory.
Section 22 of the Landlord and Tenant Act 1985 gives leaseholders a right to request a summary of the service charge account and to inspect receipts, accounts etc. in relation to the last accounting year, or where accounts are not kept by account years, the past 12 months preceding the request. It was therefore appropriate that the landlord responded to the resident’s requests for service charge information made under the Act. The Ombudsman notes at the time of the resident’s request information relating to financial year 2019/2020 was not available as it was being prepared however the landlord was able to provide a breakdown of charges for financial year 2018/2019.
In July 2020 the resident wrote to the landlord setting out that it had failed to explain the accuracy of the service charge for the grounds maintenance contract. While the resident’s position on the information provided by the landlord is noted, the Ombudsman cannot see that the resident challenged or queried the landlord’s responses to her correspondence dated April 2020 and May 2020. As the resident had not followed up the landlord’s responses, in the Ombudsman’s opinion, the landlord could not reasonably have been aware that she remained concerned regarding the grounds maintenance contract and therefore that it needed to provide further clarification. On receipt of the resident’s correspondence the evidence shows that the landlord committed to providing a response to the resident’s outstanding concerns formally under its complaint procedure. This was appropriate. The landlord’s handling of the complaint will be commented on in the following section.
In responding to the complaint the landlord confirmed that, following its investigation, it was its position that the grounds maintenance contract was being delivered by the contractor. While the landlord’s position is noted, and the landlord’s records show that the contractor did attend regularly throughout the period under investigation, the Ombudsman is not satisfied with the landlord’s conclusion. This is because the landlord has not been able to support its conclusion as it has not been able to provide any record of the estate inspections from July 2020 to ensure that the standard of work completed under the contract was acceptable and that the resident’s concerns were unjustified. This is unsatisfactory as the landlord should have systems in place to maintain accurate records of its inspections, so that it can satisfy itself and its residents that there was no shortfall in service delivery. In this case the landlord’s lack of records meant that the landlord could not sufficiently evidence that it had delivered the level of service required. The landlord informed the Ombudsman that no record of the inspections were available as “neighbourhood officers do not file reports for their estate inspections – this is something they would monitor and should there be any issues whilst on their visits works would be arranged appropriately”. The Ombudsman notes that accurate records are important to inform a landlord’s decision making and providing an audit trail after the event.
The landlord accepted that at the start of the pandemic the service that the contractor was able to provide had been impacted. The Ombudsman accepts that as a result of the pandemic some of the normal services a landlord provides will have been significantly and unavoidably disrupted as a result of the need to modify some services in response to new legislation and Government guidance.

The landlord’s complaint handling

The landlord’s complaint policy (the policy) sets out that a complaint is “an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by [it, its] staff or those acting on [its] behalf…”
In accordance with the policy, and in the Ombudsman’s opinion, the resident’s correspondence dated April 2020, was a complaint as the resident clearly expressed dissatisfaction with the grounds maintenance contract. Despite its policy the landlord did not respond to the resident’s dissatisfaction under its complaint procedure on receipt. In the Ombudsman’s opinion this was unsatisfactory. This is because the purpose of the complaint procedure is to address complaints at the earliest stage to ensure that things are put right as soon as possible where it is found that something has gone wrong.
Following contact from the Ombudsman in August 2020 the landlord agreed to respond to the resident’s concerns under its complaint procedure. While it was appropriate that the landlord agreed to respond to the complaint under its complaint procedure there were a number of shortcomings in respect of its handling of the complaint.
Firstly, the landlord failed to provide its stage one response in accordance with its service standard of 10 working days. The landlord delayed in providing its response by approximately two months, and only did so following intervention from this Service. This is unsatisfactory as a complaint process exists in order to ensure a complainant’s concerns are addressed within a specified timeframe and that this timeframe assures the complainant that its complaint will be addressed without undue delay. The Ombudsman has recently introduced the Complaint Handling Code (effective January 2021) which includes a requirement that all member landlord’s keep to prescribed timescales within their complaints procedures. The intention behind this mandatory change is that resident’s complaints will be progressed in a timely manner, even if the substantive issue remains ongoing.
Secondly, the landlord failed to clearly identify that its response was given at stage one of its complaint procedure and further did not set out the resident’s right to request a review of the decision. This is unsatisfactory and contrary to the landlord’s complaint procedure which sets out that a resident has the right to ask for a review.
Lastly, it was only following an enquiry from the Ombudsman regarding the status of the resident’s complaint that the landlord confirmed that its stage one response was its final response and therefore informed the resident of her right to refer her complaint to this Service. This is unsatisfactory. In line with the Ombudsman’s Complaint Handling Code, a landlord should make it clear when a complaint has exhausted its complaint procedure and signpost to this Service.
The Ombudsman has also identified a shortfall in respect of the content of the landlord’s complaint response. Namely, the landlord did not address the resident’s claim that she had previously raised concerns about the grounds maintenance contract which it had not addressed. This is unsatisfactory as it denied the resident a comprehensive response to all of the issues which she had raised.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was:
1. Service failure by the landlord in respect of its response to the resident’s concerns regarding the standard of service under the grounds maintenance contract.
2. Service failure in respect of the landlord’s complaint handling.

Reasons

The landlord has been unable to provide evidence of the estate inspections from July 2020 to demonstrate that its conclusion that the grounds maintenance contract was being delivered was reasonable, and therefore that the resident’s concerns were unjustified. Further there is no evidence to demonstrate that the landlord updated the resident on the steps it was taking to investigate her concerns regarding the trees at the back of the property.
The landlord’s handling of the complaint was unsatisfactory as it:
1. Failed to respond to the resident’s initial correspondence dated April 2020 under its complaint procedure despite the resident clearly expressing dissatisfaction about the grounds maintenance contract.
2. Significantly delayed in responding to the resident’s complaint under its complaint procedure once it had committed to investigating her concerns formally.
3. Failed to identify that its complaint response dated 10 September 2020 was given at stage one of its complaint procedure and did not set out the resident’s right to request a review.
4. Failed to make clear that the resident had exhausted its complaint procedure and signpost to this Service.
5. Failed to respond to the resident’s claim that it had ignored her previous contacts raising concerns regarding the ground maintenance contract.

Orders and recommendations

Orders

The landlord should pay the resident the following compensation:
1. £150 for not demonstrating that its conclusion that the grounds maintenance contract was being delivered was reasonable.
2. £50 for not providing the resident with an update in relation to the trees.
3. £100 in respect of its complaint handling.
The landlord should carry out an inspection of the estate to determine if there are shortfalls in the delivery of the grounds maintenance contract. The landlord should write to the resident following the inspection detailing its findings and set out how any shortfalls will be addressed, including timescales.
The landlord should write to the resident to provide an update on the steps it is taking/ has taken to investigate her concerns regarding the trees to the rear of the property.
The landlord should comply with the orders within four weeks of the date of this determination.

Recommendations

The landlord should ensure that it keeps records of all estate inspections so that it can satisfy itself, and its residents, that there are no shortfalls in the delivery of its services and to demonstrate that it is meeting its landlord obligations.
The landlord should review the Ombudsman’s Complaint Handling Code to ensure that it responds to all complaints in line with best practice.