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Lambeth Council (202012855)

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REPORT

COMPLAINT 202012855

Lambeth Council

11 November 2021


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 leaseholder complains about the landlord’s handling of the section 20 consultation process, and the level, reasonableness, and increase of charges invoiced for these works.
  2. As a resolution to the matter, the leaseholder would like her contribution to the works to be capped at £250, and compensation for the landlord’s poor handling of the matter. 

Determination (jurisdictional decision)

  1. When a complaint is brought to the Ombudsman, we must consider all of the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated, in line with the Scheme.
  2. Paragraph 39(g) of the 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 or service charge increase.
  3. Paragraph 39(i) 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.
  4. The leaseholder’s complaint is focused on the alleged failure of the landlord to correctly carry out the statutory section 20 consultation process. She has also complained about the reasonableness, level, and increase in the associated charges. For example, she has said that the charges invoiced by the landlord for works in the communal area of the building were not necessary as they had already been completed previously. She is concerned about the overall rising costs for the section 20 works.
  5. 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. 
  6. 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 addition, the FTT is also the appropriate body to consider an alleged failure of statutory requirements, such as the section 20 consultation process. The Ombudsman cannot make a binding decision to cap the costs to the leaseholder at £250, whereas the FTT can.
  7. In light of the above and after carefully considering all the evidence, this Service concludes that the complaints about the level and increase in charges are outside of the Ombudsman’s jurisdiction in accordance with paragraph 39(g) of the Scheme.
  8. The complaints about the alleged failure to follow the statutory section 20 consultation process, and the concerns about the reasonableness of the charges are outside of this Service’s jurisdiction under paragraph 39(i) of the Scheme.

Summary of events

  1. The leaseholder lives abroad and rents out the property. In September 2019 the landlord sent a section 20 notice to the property (and states that it also sent a copy to the leaseholder’s home address, although she says this was not received). The leaseholder was forwarded the section 20 notice by a ‘third party’, and both she and her daughter (the joint leaseholder) emailed the landlord on 27 September 2019 with identical observations and requests for information. There were various exchanges between the leaseholder, her daughter and the landlord over the following months regarding concerns about the proposed works, the cost of these, the need for some of the works detailed, and an alleged failure to follow the section 20 consultation process.
  2. On 2 October 2020 the leaseholder made a formal complaint to the landlord, in which she referenced her ‘initial dispute’ of 27 September 2019, and asked the landlord to respond to the issues she had raised. She also raised concerns that the estimated costs for the works kept rising, and said in any case, the landlord had failed to serve her with the section 20 notice as per statutory requirements and had not responded to her observations.
  3. The landlord provided a stage one formal complaint response on 4 January 2021. It summarised the complaint as being about the leaseholder’s contention that the section 20 notice was not served correctly, that her observations were not responded to, and concerns about increasing costs. The landlord noted that the leaseholder had not specified why she thought the section 20 notice had been incorrectly served and asked for clarity on this. It said that the observations made on 27 September 2019 had been responded to on 7 October 2019 and provided a copy of the email (addressed to the leaseholder’s daughter). In relation to the concerns about rising costs, the landlord said that the figures were subject to change and the final account would be prepared when full costs were confirmed.
  4. The leaseholder replied that same day, saying that she had explained in her 27 September 2019 email why the section 20 notice had not been properly served. She felt that in line with statutory requirements, the landlord could not collect more than £250 from her for the works. Regarding the landlord’s comment that it had replied to her 27 September 2019 observations, the leaseholder said that this was incorrect as the reply was sent to her daughter. She asked it to look at all her previous correspondence and address her complaint in full.
  5. The landlord sent a response soon after. It provided a copy of the section 20 notice sent to the leaseholder’s home address, said that all observations had been responded to, and the responses were sent to whoever the sender was.
  6. The leaseholder replied on 23 January 2021. She said the section 20 notices were addressed incorrectly and so would not have arrived. She said that this proved that it had not served the notice correctly and legally could not charge her more than £250. She disagreed with the landlord’s statement that her observations had been replied to, saying that she emailed her own observations and did not receive a response. She referred the landlord to an email of 22 April 2020, in which she had raised multiple concerns about double charges for works, unnecessary works, and charges for works not carried out. She asked the landlord for its final response so that she could refer the matter to the Ombudsman.
  7. The landlord responded on 27 January 2021 saying that there were several emails on file which contained observations regarding the works, all of which were responded to. The landlord attached the leaseholder’s 22 April 2020 email with her observations and questions about the works, and its subsequent response. The landlord concluded ‘…we are satisfied that we have discharged our dues under Section 20 of the Landlord and Tenant Act therefore please accept this email as our full and final response on the matter.’ It signposted the leaseholder to the FTT should she remain dissatisfied.
  8. The resident submitted her complaint to this Service on 28 January 2021. She said that the landlord had failed to serve the section 20 notice to her home address and respond to her observations dated 27 September 2019. She said ‘Other disputes were also raised in my complaint from charges for unnecessary or not applicable works; charges for decoration works that were charged and paid for in the service charge bill for year before; excessive charges for Preliminaries, Overheads and Profits and Consultant’s Fees; etc.’ She wanted the landlord to respond to all disputes. 
  9. This Service emailed the landlord on 24 March 2021 asking it to provide a ‘final response’ to the complaint. It did so on 23 April 2021, reiterating the previous information given. On 27 April 2021 this Service wrote to the resident about the matter, and in this letter noted that the Ombudsman had limited jurisdiction regarding the level, amount, or reasonableness of service charges and could not make a binding decision on these matters. The letter set out that complaints relating to this were usually considered by the FFT which was the appropriate body to make a binding decision.
  10. In response the leaseholder said that her complaint was not so much about the level of charges but about the landlord’s administration of the section 20 process, the unfairness of the major works process and the landlord forcing her to pay for works that were never carried out. She said that the landlord had failed to address issues such as charging for common area repairs /decoration that the leaseholder had been charged for in the previous year or two, including light changes and wall painting. 

Reasons

  1. Ultimately, the leaseholder is looking for an assessment of and binding decision on the charge amount, whether these costs have been reasonably incurred, and whether the statutory process has been correctly followed. This is something that the FTT is best placed to assess.