The Guinness Partnership Limited (202015280)

REPORT

COMPLAINT 202015280

The Guinness Partnership Limited

2 October 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 the landlord’s:
1. response to the resident’s request for it to renew her windows and external doors.
2. response to the resident’s concerns regarding the cyclical decoration of the exterior of the property.
3. complaints handling.

Background and summary of events

Background

The resident has been the leaseholder of the property since 29 April 1992. The landlord is a registered provider of social housing and is the freeholder of the property. The resident purchased the property through the ‘Right to Buy’ scheme. The property is a ground floor flat.
The resident’s lease states that she is required to “keep the interior of the property and the doors and windows of the property in a good clean decorative condition” whilst the landlord will “keep in repair (including decorative repair) the structure and exterior of the building”.
The landlord operates a 2 stage complaints procedure. It’s complaints policy says it will provide a written response within 10 working days at stage 1, and 20 working days at stage 2. The policy allows for an extension of up to 10 working days at either stage, providing this is explained to the complainant.
The landlord’s complaints policy allows that when an expression of dissatisfaction is made it “may be able to resolve the issue for our customer quickly without it becoming a formal complaint,” but that where a resident “makes it clear they wish to complain, then the matter will be logged as a stage 1 complaint”.

Summary of events

On 28 October 2020, the resident raised a formal complaint with the landlord. She said that she had been informed that , as part of her lease agreement, the landlord was responsible for the replacement of windows and doors. She said that windows and doors on neighbouring properties had been replaced by the landlord but hers had not. She also expressed dissatisfaction that the exterior of the property had not been decorated for 11 years, stating her understanding that this was supposed to be done every 5 years.
On the same date, the landlord advised that it would try to resolve the issues outside of its complaints process. It would subsequently log a complaint if she remained dissatisfied with the outcome.
The landlord wrote to the resident on 8 December 2020. It quoted clause 4(2) of her lease which states that the leaseholder will “keep the interior of the property and the doors and windows of the property in a good clean decorative condition.” It said this evidenced that the responsibility for renewing the doors and windows fell to the resident.
On 10 December 2020, the resident’s legal advisors wrote to the landlord on her behalf. They said that the relevant lease clause referred only to maintaining the decorative condition of the doors and windows, not renewing them. They argued that the replacement of windows and doors was a common landlord responsibility in almost every lease relating to flats, and that the costs should be covered by the sinking fund that the resident paid into as part of her service charge.
The resident chased a response from the landlord on 22 December 2020 and again on 5 January 2021.
On 16 April 2021, the resident submitted a formal complaint using the landlord’s online complaint form. She said that the landlord had misinterpreted her lease, and failed to respond to her legal advisors’ letter. She also complained that the exterior of the property had not been decorated for 11 years, when she had been led to believe it would be done every 5 years. She asked the landlord to replace her windows and doors and paint the exterior of the property.
On 6 May 2021, having received no response to her previous complaint, the resident submitted a second complaint about the same matters using the landlord’s online complaint form.
After being contacted for assistance by the resident, this service wrote to the landlord on 3 August 2021 and requested that it respond to her complaint by 18 August 2021. On 23 August 2021, this service wrote to the landlord again and advised that the resident had still not received a response to her complaint. This service requested it to provide one within 5 working days.
On 24 August 2021, the landlord provided its stage 1 complaint response, which included the following:
1. The resident’s complaint of 16 April 2021 had not been correctly logged as a complaint, for which it apologised.
2. Her complaint of 6 May 2021 had been passed to its legal team, who had failed to contact her. It also apologised for this.
3. It offered her £50 compensation for the delays in responding to her complaint.
4. It noted that the resident paid a “cyclical and capital provision payment” as part of her service charge, which included external decorating. The external decoration of the property was “due for review in the 2022 year.”
5. Its legal team was investigating the matter of renewal of doors and windows, and it was unable to provide a response on this as its complaint policy excluded matters which “has been, or is likely to be, subject to legal proceedings.”
The resident asked to escalate her complaint to stage 2 of the landlord’s complaints process on 2 September 2021. She expressed dissatisfaction that the landlord had failed to explain why the exterior of the property (which she described as “in very bad condition”) had not been decorated for 12 years, when she had been informed it would be done every 5 years. She clarified that she had not instructed legal proceedings against the landlord, but wanted an answer to the letter previously sent by her legal advisors.
On 17 November 2021, this service contacted the landlord on the resident’s behalf, and asked it to provide her with a written response at stage 2 of its complaints process.
The landlord provided its stage 2 complaint response on 9 December 2021, which included the following:
1. It apologised for the delay to its response, and advised this was due to seeking clarity on the terms of her lease. It offered £100 compensation for the delay.
2. It stated that, according to its records, the exterior of the property was last painted in 2009 and was expected to be repainted in March 2022.
3. It advised that it had identified that her lease was “silent” on who was responsible for the renewal of windows and doors in the property, and so its position was that the responsibility would fall to the resident for this.
4. It signposted her to the Leasehold Advisory Service for independent expert advice should she remain dissatisfied.
5. It advised it would “review its policy decision regarding the responsibility for replacement of windows and doors to your home” as “next steps,” but that the complaint had now exhausted its internal complaints procedure.
On 7 September 2023, the landlord updated this service that external decoration of the resident’s property was completed in March 2023.

Assessment and findings

Scope of the investigation

Paragraph 42(g) of the Scheme states that the Ombudsman may not consider “matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure.”
In the Ombudsman’s experience, it is common practice in the industry for external windows and doors to be the responsibility of the landlord for leasehold properties. This approach is shared by the resident and her legal representatives. The landlord, however, has made its position clear that it does not consider it is responsible for the external windows and doors.
Given that there is a dispute over the interpretation of the contractual terms in the lease, a determination as to the correct the interpretation is more appropriate for the courts. This investigation will not, therefore, make a determination on this point. The resident should consider further legal advice if she wishes to pursue this concern.
The Ombudsman has, however, identified that the landlord’s communication surrounding this complaint requires investigation, on which a determination has been made below.

Windows and external doors

The landlord initially relied on clause 4(2) of the lease in order to assert it was the resident’s responsibility to renew the doors and windows in the property. This was reasonably challenged by the resident’s legal advisors on the basis that the clause referred only to maintaining doors and windows, and made no mention of renewal.
The landlord’s internal emails show that, following the letter from the resident’s legal advisors, it appropriately referred the matter to its legal department which gave the view that the lease was “badly drafted and is open to interpretation both ways.” It also carried out a check of another lease within the same block and established that it contained identical terms – and therefore any policy decision on the matter would have wider implications than just the resident’s case.
Despite making relevant enquiries, the landlord failed to respond to the letter from the resident’s legal advisors, or update the resident directly about its findings. This was despite the resident chasing it for a response on 2 separate occasions. It was this lack of communication which led her to submit her formal complaint on the matter in April 2021.
In its stage 1 complaint response, the landlord stated that it was unable to comment on the renewal of the doors and windows, as this was excluded from its complaints policy due to being a matter that “has been, or is likely to be subject to legal proceedings.” The Ombudsman’s Complaint Handling Code, as in force at the time of complaint, states that exclusions from a landlord’s complaints procedure should be fair and reasonable. It gives a specific example of a reasonable exclusion as matters where “legal proceedings have been started.”
The landlord’s stage 1 response was issued in August 2021, some 8 months after the resident’s legal advisors had written to it on the matter. The legal advisors’ letter made no mention of legal proceedings, or an intention to enter into them. It made no further communications in the intervening period. It was therefore unreasonable for the landlord to exclude the matter from its complaints process and served only to further delay and frustrate the resident in her pursuit of its response. The Ombudsman notes that the current version of the landlord’s complaints policy has been amended appropriately to exclude only matters “where legal proceedings have started.”
Despite the stage 1 response advising the resident that the matter was being looked into separately by its legal team, the landlord failed to give a timeframe for its legal team to provide and update, and no update was communicated prior to its stage 2 complaint response some months later. This denied her the opportunity to challenge its position as part of her escalation request and meant that the landlord simply repeated its stage 1 position in its stage 2 response.
Internal correspondence also shows that this interpretation was previously applied to holders of identical leases across the wider scheme – many of whom it claimed had previously replaced windows and doors at their own expense. The neighbours whom the resident referred to as having had their windows and doors replaced were tenants of the landlord. As such the terms of their occupancy agreement would be expected to differ significantly from that of a leaseholder, particularly in regards to repairs and maintenance. The landlord therefore cannot be said to have treated the resident unfavourably compared to those in an equivalent position.
The landlord’s stage 2 response anticipated that the resident would remain dissatisfied with its response and appropriately signposted her to the Leasehold Advisory Group to obtain free independent advice on the matter. The Ombudsman notes the resident still has the option to seek further advice from the Leasehold Advisory Group if she has not done so already.
In summary, there was maladministration in the landlord’s communication with the resident about the renewal of the doors and windows. It failed to appropriately respond to the letter from her legal, causing her time and trouble in chasing the matter up, and later logging her complaint. It then inappropriately excluded the matter from its complaints process at stage 1, stating that its legal team was dealing with the matter, and failed to provide any update on this until its stage 2 response – denying the resident the opportunity to challenge its position within the complaints process.

External decoration

The resident said in her complaint that she had been informed that the exterior of the property would be decorated every 5 years. While the Ombudsman does not doubt that she may have been told this, there is no clause within the lease, or the landlord’s policies or procedures, which commits to this.
While clause 2 of the fourth schedule of the lease states that the landlord will “keep in repair (including decorative repair) the structure and exterior of the building,” it makes no mention of how regularly such decoration should be completed. External decoration is not a component of the government’s ‘Decent Homes Standard’ and so does not have an associated ‘lifetime’ set out in the relevant guidance.
In the absence of any clear obligation as to the frequency of external decoration, it is appropriate instead to consider reasonableness in the landlord’s actions and response.
The landlord’s stage 2 complaint response established that the property had last been externally decorated in 2009, and was due to be completed in March 2022. This would have seen the issue resolved within 12 months of the resident bringing it to its attention as a formal complaint – a reasonable amount of time considering the scale of works required and their non-urgent nature.
The landlord later informed this service that the work was not actually completed until March 2023. Its records indicate this was “due to various delays and parts of the scheme requiring new porches.” Despite a request from this service, the landlord failed to provide any evidence that the resident was informed of this delay. It is the Ombudsman’s expectation that landlord’s should track outstanding actions from complaints, even once a response has been provided, and provide regular updates to the resident.
In summary, although the landlord was not required to redecorate the exterior of the property sooner than it did, it provided a date by which this would be done to the resident as part of its complaint responses, and failed to appropriately update her about lengthy delays beyond this. This amounts to service failure, for which a level of redress would be appropriate.

Complaints handling

When contacting the landlord on 28 October 2020, the resident expressly requested that a formal complaint be logged. Although the landlord’s complaints policy allows that when an expression of dissatisfaction is made it “may be able to resolve the issue for our customer quickly without it becoming a formal complaint,” it also states that where a resident “makes it clear they wish to complain, then the matter will be logged as a stage one complaint.”
Although the landlord agreed with the resident not to log a complaint at that time, to see if the issue could be resolved outside of the complaints process, it did not write to the resident until 8 December 2020, some 6 weeks later, and only partly addressed her concerns. This could not be said to have “resolved the issue quickly,” nor did the landlord progress the complaint to stage 1 of its complaints process when she expressed continued dissatisfaction at this response.
The landlord’s stage 1 complaint response acknowledged and apologised that it failed to appropriately log and respond to the resident’s further online complaints submitted on 16 April 2021 and 6 May 2021, which led to the intervention of this service. It said that internal feedback had been provided regarding this and it appropriately offered the resident £50 compensation for the failings.
It is noted that the landlord’s internal notes in relation to the complaint of May 2021 remark of a “need to discuss further with customer and determine whether she still wants a complaint logging, or if we can avoid.” This phrasing indicates a concerning attitude of deflection and avoidance towards complaints which risks denying residents their entitlement to access both the landlord’s internal complaints procedure, and subsequently this service. This is contrary to the positive complaint handling culture encouraged by the Ombudsman which helps landlords to learn and improve, provide quality services and build good relationships with residents.
After the resident asked to escalate her complaint, on 2 September 2021, the landlord failed to appropriately action her request and she was forced to seek assistance from this service for a second time to progress her complaint. This delay was acknowledged and apologised for within the stage 2 response, and the landlord explained this was due to it seeking clarity on the terms of the lease. It offered a further £100 compensation in recognition of the impact this had caused.
This brought the total offer of compensation made for its complaints handling failures to £150. In the Ombudsman’s opinion, this was a reasonable offer of redress, considering the failures had unreasonably delayed the resident’s complaint journey, and caused her time and trouble in approaching this service.
In summary, whilst failings in the landlord’s complaints handling adversely affected the resident, and significantly delayed her complaint in completing its internal complaints procedure, the redress offered by the landlord for this was of an appropriate level, in keeping with the Ombudsman’s remedies guidance.

Determination (decision)

In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord in respect of its response to the resident’s request for it to renew her windows and external doors.
In accordance with paragraph 52 of the Scheme, there was service failure by the landlord in respect of its response to the resident’s concerns regarding the cyclical decoration of the exterior of the property.
In accordance with paragraph 53(b) of the Scheme, and in the Ombudsman’s opinion, there was reasonable redress offered by the landlord for its service failure in respect of its complaints handling.

Reasons

The landlord failed to appropriately respond to the communication from the resident’s legal advisor which caused the resident to have to chase updates. In its stage 1 complaint response, the landlord then unreasonably excluded the matter from the complaints process, denying the resident the opportunity to challenge its position when escalating her complaint.
The landlord’s complaints responses both referred to the external decorations being completed by March 2022. It failed to complete the works until 12 months after this date, and has not provided evidence that it appropriately communicated with the resident regarding the delays.
The landlord’s offer of £150 compensation represented reasonable redress for the failures in its complaint handling which, whilst delaying the resident’s complaint journey and causing her additional time and trouble, did not impact the substantive complaint or affect the outcome.

Orders and recommendations

Orders

The Ombudsman orders the landlord to pay compensation of £300, comprising:
1. £200 for any distress and inconvenience caused to the resident by its poor communication in relation to the windows and external doors.
2. £100 for any distress and inconvenience caused to the resident by its poor communication in relation to the external decoration works.
This amount must be paid within four weeks of the date of this determination.
Within four weeks of the date of this determination, the landlord is to write to the resident and include the following:
1. Apologise for the poor communication in its handling of her request to renew the windows and external doors, and the delays to the cyclical decoration following its final complaint response.
2. Clarify the frequency with which it will be carrying out external decoration to the property going forwards, and the financial year within which it is next scheduled.

Recommendations

The landlord is to reiterate its offer of £150 compensation for the delays in its complaints handling, if this is yet to have been accepted by the resident.