Wealden District Council (202108306)

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REPORT

COMPLAINT 202108306

Wealden District Council

29 March 2022


Our approach

What we can and cannot consider is called the Ombudsman’s jurisdiction and is governed by the Housing Ombudsman Scheme. The Ombudsman must determine whether a complaint comes within their jurisdiction. The Ombudsman seeks to resolve disputes wherever possible but cannot investigate complaints that fall outside of this. 

In deciding whether a complaint falls within their jurisdiction, the Ombudsman will carefully consider all the evidence provided by the parties and the circumstances of the case.

The complaint

  1. The complaint is about the landlord’s response to the resident’s reports of differences in the level of service charges between residents and leaseholders.

Determination (jurisdictional decision)

  1. 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.
  2. After carefully considering all the evidence, I have determined that the complaint, as set out above, is not within the Ombudsman’s jurisdiction.

Summary of events

  1. The resident’s property is a first floor, one bedroom retirement living flat. The resident is a leaseholder as confirmed by the occupancy agreement (lease). The landlord is the local authority (arms length management organisation ‘ALMO’). The lease commenced in February 2008. The block has residents with varied tenures (leaseholders and tenants).
  2. The resident contacted the landlord about the difference between the service charges for residents who were leaseholders as compared to residents who were tenants (October 2020). The resident cited a tenant who was paying less per week in service charges than the resident.
  3. The resident’s query was logged as a complaint and the landlord said that it could not comment on individual resident’s service charges and provided a broad explanation of the difference between the charges to leaseholders and tenants. The resident was also signposted to the First Tier Tribunal (March 2021).
  4. In its final response to the resident the landlord explained that the resident had not provided the relevant information for the matter to be escalated and therefore considered that it responded fully to his complaint and signposted the resident to the Ombudsman.
  5. The resident’s communication with the landlord has been lengthy and the landlord subsequently logged and responded to the matter under multiple complaints. Both parties are aware of the correspondence and their respective positions. The resident referred to historic charges in his communication to the landlord to show the apparent discrepancies in the service charges. The landlord referred to its service charge policy; it stated that this set out the exclusions for certain items under the service charges (ie repairs and maintenance of the communal areas) for tenants.
  6. In his escalation to the Ombudsman, the resident disputed the landlord’s decision not to confirm or deny his complaint due to its responsibilities under GDPR. He explained that the refusal was unsound because the GDPR 2016 appears to allow leeway in the provision of third party information as set out under the terms of ‘legitimate interest’. The resident told the Ombudsman that he advised the landlord of information from the ICO that confirmed that he should be given the information, but this was denied by the landlord.
  7. The resident said that the disparity of the basic service charge was the subject of his original complaint to the landlord. He stated that this was not addressed even though there appeared to be no justification for the difference in charges (between residents and leaseholders).

Reasons

  1. 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.
  2. 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.
  3. When considering a complaint the Ombudsman has to consider what is fair and appropriate in all the circumstances of the case. Looking at the substantive complaint, the resident’s dissatisfaction is with the landlord’s decision to withhold information about the charges paid by other residents and the apparent disparity in the service charges paid by the resident compared to others.
  4. Complaints about the fairness or level of service charges are not within the Ombudsman’s jurisdiction to consider. The resident may seek independent advice about his options to escalate this concern with the First Tier Tribunal (Property Chamber).
  5. Disputes about the landlord’s compliance with the relevant data legislation, including disputes about the provision of information for legitimate interests or non-compliance with the GDPR is not within the Ombudsman’s jurisdiction to consider. The resident may seek independent advice about his options to escalate the concerns with the Information Commissioner’s Office (ICO).