Clarion Housing Association Limited (201916107)

REPORT

COMPLAINT 201916107

Clarion Housing Association Limited

07 September 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 is about:
1. The landlord’s handling of repairs to the guttering and downpipes at the resident’s property and the compensation offered for delay.
2. The landlord’s response to the concerns raised about internal damage to the resident’s property.
3. The landlord’s administration of the resident’s service charge.
4. The landlord’s complaints handling.

Background

The resident is the leaseholder of the property. The landlord is the freeholder. The resident has engaged the assistance of a legal representative.
The resident states that they first reported repairs to the property’s guttering and downpipe in October 2016. The resident complained about the landlord’s failure to complete the repairs and associated “loss and damage” on 27 April 2017. A formal complaint was opened but subsequently closed as works were completed in May 2017.
In January 2018, the resident’s Local Councillor contacted the landlord to report that some works to the guttering were outstanding. The landlord apologised that it had failed to respond to correspondence from the resident and their representative in April, June, and August 2017, and that it had not provided a complaint response before closing the complaint in May 2017. It confirmed it believed all works had been completed, attaching photos, but stated that it would arrange for any outstanding works that it was responsible for to be addressed.
In July 2018, the resident’s representative wrote to the landlord on receipt of the annual service charge demand. They confirmed that the resident had withheld their service charge payment due to the landlord’s failure to repair the guttering in a timely manner, which had resulted in damage to their property and possessions. The resident reported that further works had been completed on 7 March 2018, but the contractor had indicated that this was only a temporary repair. The resident asked that works be completed, or the service charge waived, and for compensation for the damage to their property, distress, and delay.
A stage 1 complaint was opened on 18 July 2018 and closed on 3 August 2018 when a contractor appointment was booked. Further works were completed in October 2018 and the landlord wrote to the resident offering £150 compensation for the delay. The resident responded that they would like to resolve the service charge issue before considering whether to accept the offer of compensation. On 5 November 2018 the landlord asked for clarification on the service charge dispute and asked the resident to confirm whether they would accept the compensation offer. The resident’s representative has referred to further correspondence between the parties on 14 and 22 November 2018, and in February 2019, copies of which have not been provided to this investigation.
On receipt of a service charge demand in July 2019, the resident wrote to the landlord stating that it had failed to provide a resolution to the concerns raised in 2018. The resident’s representative submitted evidence of purported internal damage to the property, which they stated was caused by the landlord’s failure to repair the guttering within a reasonable time. The landlord refused to write off the service charge arrears and noted that it had offered compensation for the delay in completing repairs to the guttering. The resident was advised to submit a claim to the landlord’s insurers if they believed it was liable for any internal damage to their property. The resident stated that they intended to refer their complaint to this Service.
Following contact from this Service the landlord raised a new formal complaint. The resident stated that they did not object to the matter being reconsidered via the landlord’s formal complaints process but noted that they had already received a final complaint response in 2018. The landlord confirmed to the resident that it would not reconsider matters that it had already responded to in 2018. It did, however, note that it had failed to arrange payment of the £150 compensation, and so this was increased to £200 to reflect this.
The resident has indicated to this Service that they want the landlord to increase the offer of compensation made in 2018 and to waive the disputed service charge.

Assessment and findings

Jurisdiction and Scope of Investigation

Paragraph 39(g) of the Scheme states that the Ombudsman will not consider complaints concerning the level of rent or service charge, or the amount of a rent or service charge increase. The Ombudsman cannot provide a determination as to whether the resident should be required to pay the disputed service charge, and so this aspect of the complaint is outside the Ombudsman’s jurisdiction. Challenges to a resident’s service charge should be made via an application to the First Tier Tribunal (Property Chamber) (FTT). Further information can be found on its website here:

https://www.gov.uk/courts-tribunals/first-tier-tribunal-property-chamber

The Ombudsman can, however, consider complaints about the landlord’s administration of the resident’s service charge, including how it responded to enquiries. The Ombudsman has therefore assessed the landlord’s response to the resident’s request to write-off their service charge due to the delay in completing the repairs.
In accordance with paragraph 39(d) of the Scheme, the Ombudsman will not consider complaints that were not brought to this Service’s attention within a reasonable time. This will normally be within 12 months of the complaint exhausting the landlord’s internal complaints process.
Multiple complaints have been raised in relation to the guttering repairs since 2017 and there is some confusion as to the status of each complaint. However, the landlord states, and the resident’s representative accepts, that it provided a final response to the formal complaint about a delay in addressing the repairs to the guttering and downpipe in November 2018, when it offered £150 compensation. The complaint about the landlord’s handling of repairs to the resident’s guttering and downpipes between 27 April 2017 and 5 November 2018 is therefore outside the Ombudsman’s jurisdiction.
There was further correspondence between the parties in 2019 about the adequacy of the repairs, the landlord’s liability for damage to the resident’s property and payment of the service charge, and the amount of compensation offered for the stress, inconvenience, and the delay in completing a permanent repair. A new complaint was opened on 8 October 2020 and the landlord declined to provide a further response, stating that the complaint had already exhausted its internal complaints process in 2018.
For the purposes of this investigation, the Ombudsman has considered the landlord’s handling of the repairs to the guttering and downpipes after 5 November 2018, which the landlord had the opportunity to comment on in response to the formal complaint raised in October 2020. As the landlord failed to provide a complaint response addressing the resident’s concerns about damage to property and possessions, and the administration of their service charge, the Ombudsman has considered these issues from the time the complaint was first made in April 2017.

Handling of repairs to the guttering and downpipes

Under clause 5(5)(a) of the resident’s lease, the landlord is required to “maintain and keep in good and substantial repair and condition” the structure of the building, which expressly includes the “main drains gutters and rainwater pipes”.
The resident’s representative has provided details of an email sent to the landlord on 8 April 2019, confirming that although the downpipe had been replaced and was no longer leaking, it did not appear to be of adequate strength to support the metal sections above. There is no evidence that they received a response to this email.
Following further contact on 25 July 2019, the landlord responded on 29 July 2019 confirming that it had made enquiries as to whether an operative should attend to assess the downpipe. On 9 August 2019, the landlord confirmed to the resident’s representative that it would not undertake further works, as the pipe remained in situ and was operating correctly.
The landlord has not supplied any evidence to this investigation showing that it investigated the resident’s concerns about the adequacy of the repair with its repairs team or contractor, as stated in the email of 29 July 2019. The Ombudsman cannot therefore conclude that the landlord took appropriate steps to investigate the resident’s concerns, or that its response was reasonable.
When a formal complaint was opened in October 2020 following contact from this Service, the landlord completed an internal review of its complaints handling. The landlord’s notes highlighted the need to investigate whether a permanent repair was required. There is no evidence that this was actioned.
The Ombudsman considers that there was maladministration in respect of the landlord’s handling of the repairs to the resident’s guttering and downpipes due to its failure to adequately investigate the resident’s concerns. To put this issue right, a payment of compensation has been ordered, together with an order to arrange an inspection of the property to assess this issue, with any identified works to then be completed within a reasonable timeframe.

Handling of concerns about internal damage to property

In the initial complaint of 27 April 2017, the resident reported that the landlord’s failure to address the leak had resulted in damage to their property and possessions. This issue was raised again by the resident’s representative in the letters to the landlord of 9 July 2018 and 25 July 2019.
The landlord’s Compensation Policy does not refer to the circumstances in which it will compensate a resident for damage to their property or possessions. It will usually be reasonable for a landlord to direct a resident to make a claim on their home contents insurance where a repairs issue has caused damage to their personal belongings. However, where a resident suggests that the damage was due to the landlord’s negligence, the landlord should consider whether it is liable, which may involve a referral to its legal team or insurers. In addition, as the landlord is responsible for insuring the building under the terms of the resident’s lease, it should investigate whether a claim can be made for internal damage under the buildings insurance policy.
There is no evidence that the landlord provided a response about the damage to the resident’s property and possessions until 29 July 2019, when it stated that a claim should be pursued via its insurers. The delay in providing a response to this issue was unreasonable and the Ombudsman finds that there was therefore maladministration in respect of the landlord’s handling of this aspect of the complaint.
To put this matter right, an amount of compensation has been ordered. In addition, the landlord has been ordered to make further contact with the resident to discuss the alleged damage to the property, with support to be provided if he decides to progress an insurance claim.

Administration of the resident’s service charge

Under clause 4(4) of the resident’s lease, they covenant to pay a service charge to the landlord in respect of its repair and maintenance obligations and other costs.
In the initial complaint of 27 April 2017, the resident indicated that they intended to withhold payment of their service charge until the repairs had been completed. The resident confirmed on 9 July 2018 that payment of the service charge had been withheld as the landlord had failed to complete the repairs. The landlord was asked to explain what services benefitted the resident, as there were no communal areas at the property.
In its response of 5 November 2018, the landlord explained that it was struggling to understand the resident’s service charge dispute. It requested clarification of the “specific repair items” that the resident was referring to. There is no evidence that the resident, or their representative, responded to this request. The chronology supplied by the resident’s representative states that a further email was sent on 14 November 2018, but a copy has not been provided to this investigation. It is understood that the parties discussed the complaint by phone in February 2019 and the landlord committed to review the service charge breakdown. There is no record of this phone call in the landlord’s system notes and no evidence that any further action was taken at that time.
A service charge demand was issued in July 2019 and the resident’s representative again indicated that the service charge would be withheld as the landlord had failed to engage to resolve the outstanding repairs issues and associated complaint about damage to property and compensation. The landlord stated on 29 July 2019 that it had been awaiting further information from the resident’s representative before providing a response. As there is no contemporaneous record of what was discussed during the phone call in February 2019, the Ombudsman concludes that a miscommunication between the parties prevented further discussion of the issue.
In its email of 29 July 2019, the landlord again stated that it was unclear why it was being asked to write off the service charge. The resident’s representative explained that this was due to its failure to carry out the repair in a timely manner. The landlord then confirmed that a challenge to the service charge would need to be considered separately to the resident’s complaint about a delay in completing repairs and associated damage.
The landlord was not required to consider writing off the service charge as a resolution to the complaint. However, it should have advised the resident of the appropriate process for challenging the service charge, and of the consequences of non-payment, when they first indicated their intention to withhold payment. As the landlord did make efforts to obtain further information about the disputed charges, the Ombudsman will not make a finding of service failure.
Throughout the course of the correspondence the resident’s representative also asked the landlord to review the service charge process as a whole and to clarify what charges in respect of communal areas related to. Although this did not form part of the initial complaint, it is recommended that the landlord contact the resident or their representative to establish the nature of their more general concerns and provide a written response.

Complaints handling

The landlord has not provided a copy of the Complaints Policy in use at the time the initial complaint was made. However, the policy in operation since August 2017 states that it operates a 2–stage–complaints process. It does not provide timescales for responses at each stage, but it does state that the landlord will “fully and accurately record details, actions and investigations of the complaint at all stages”.
The landlord’s complaints handling has been unclear and inconsistent since a complaint was first raised in April 2017. This has created confusion as to the status of the resident’s complaints and caused a delay in escalating the complaint to this Service.
The landlord accepted in its response to the Councillor enquiry that it should not have prematurely closed the complaint in May 2017, but this was then repeated when a new complaint was opened and closed without response in August 2018. The landlord did offer compensation in November 2018 once the works were completed, but it did not provide a written response to the substantive issues. The parties appear to agree that the landlord’s email of 5 November 2018 constituted a final complaint response, although this was not made clear, and the landlord failed to inform the resident of their right to escalate the complaint to this Service at that time.
During further discussions with the resident’s representative in 2019, it was apparent that the resident did not consider the complaint resolved. The landlord should have made clear how the resident’s concerns were being considered and what the appropriate route of escalation would be at that stage. In its complaint response of 24 November 2020, the landlord referred to complaint responses that were sent in 2019. The Ombudsman is unable to identify the responses the landlord was referring to. The landlord also advised that the complaints about repairs and compensation were being handled by its legal team, although there is no evidence that a referral to the legal team was made or that it provided a response.
The Ombudsman’s view is that a matter does not become “legal” until proceedings have been issued. In cases where legal proceedings are being considered, the Ombudsman encourages the parties to continue to engage with each other to try to achieve a resolution via the landlord’s internal complaints process (ICP). Although the landlord was corresponding with the resident’s legal representative, no legal proceedings had been issued and it was clear that the resident was hoping to resolve the dispute outside of the courts. The landlord’s approach was unhelpful, as it failed to clearly explain how the correspondence was being handled.
The landlord also missed an opportunity to review its complaints handling when a new complaint was raised in October 2020. Had it done so, it would have identified that the initial complaint investigation was inadequate and that it had failed to provide a response to the resident’s concerns about damage to their property and the service charge issues. The complaint response of 24 November 2020 referred to “service charges” in the complaint definition, but the body of the response did not comment on this issue.
Overall, the landlord’s complaints handling was very poor, and the Ombudsman considers that there was maladministration by the landlord in respect of its complaints handling. To reflect this service failure, an order of compensation gas been made.

Determination

In accordance with paragraph 54 of the Scheme, there was maladministration in respect of the landlord’s handling of repairs to the resident’s guttering and downpipes.
In accordance with paragraph 54 of the Scheme, there was maladministration in respect of the landlord’s handling of the resident’s concerns about damage to their property and possessions.
In accordance with paragraph 54 of the Scheme, there was no maladministration in the landlord’s administration of the resident’s service charge.
In accordance with paragraph 54 of the Scheme, there was maladministration in respect of the landlord’s complaints handling.

Orders

Within 28 days of the date of this report the landlord must confirm to the Ombudsman that it has complied with the following Orders to:
1. Pay the resident £200 compensation in recognition of its failure to investigate the adequacy of the repairs to the property’s guttering and downpipes.
2. Pay the resident £100 compensation in recognition of the unreasonable delay in responding to their concerns about damage to their property and personal belongings.
3. Pay the resident £150 compensation in recognition of the failings identified in respect of the landlord’s complaints handling.
4. Arrange an inspection of the guttering and downpipes at the resident’s property, to assess whether any further works are required. If any additional works are identified, these should be completed within 28 days of the inspection.
5. Contact the resident to discuss the internal damage to their property and possessions and provide assistance with making a claim via the landlord’s insurers should the resident wish to do so.

Recommendations

It is recommended that the landlord:
1. Contact the resident to understand their general concerns about the service charge process, to explain the service charges relating to the communal areas, and to provide assistance with raising a service charge dispute if the resident still wishes to do so.
2. The landlord makes payment of the £200 compensation already offered in its complaint response of 24 November 2020, if it has not already done so. This sum is in addition to the compensation order detailed above.