Clarion Housing Association Limited (202128461)

REPORT

COMPLAINT 202128461

Clarion Housing Association Limited

29 June 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

1. The complaint is about how the landlord handled the resident’s concerns about a security gate installation. The Ombudsman has also considered the landlord’s complaint handling.

Background

2. In this case the resident lives in a development. The development is owned by a freeholder. The landlord is a leaseholder of the flat with the freeholder. The freeholder has also appointed a managing agent to manage the development. In turn the landlord lets the flat to the resident under a shared equity lease.
3. In the centre of the development, there is a large podium area. The residents at the development asked the management agent to secure the podium area for their private enjoyment by installing gates at various entrances to exclude the public for increased security. In 2017 the management agent developed plans for the installation of gates at the top of some steps leading to the podium area. The management agent started a consultation exercise with the residents.
4. In November 2019, the managing agent’s surveyor reported that the installation of the gates at the top of the steps could interfere with drainage. The surveyor suggested that the gates, if adapted at extra cost, could be situated at the bottom of the steps at street level. However, the managing agent decided not to adopt this approach.
5. In May 2021, the resident asked the landlord to halt work on the gates and asked the landlord to liaise with the management agents on his behalf. The resident wanted the installation of the gates at the bottom of the steps and asked that the landlord provide him with the site inspection reports. He expressed concerns that the location of the gates at the top of the steps may compromise security at the development.
6. The management agent considered the resident’s request to move the gates but refused this. It concluded this was not possible to do as in their opinion situating the gates at the bottom of the steps would interfere with public rights of way and be a potential hazard to passers-by.
7. In September 2021, the resident called his landlord to complain about the positioning of the gates. The landlord responded at stage one of the complaint process on 6 December 2021. It stated that the resident should direct any issues with the works and consultation to the management agent as it had responsibility for these areas. It offered £50 for not responding to the complaint within its published timescales.
8. The resident requested an escalation of the complaint on 8 December 2021 because he was unhappy with the consultation process and the decision to locate the gates at the top of the steps. On 26 May 2022, the landlord responded explaining that it had not responded earlier as it was unaware of what issues were outstanding or what the resident was seeking. It provided a response from the management agent on the reasons why the gates were situated at the top of the stairs. This explained that although it looked at situating the gates at the bottom of the steps, this was not possible because they would open outwards and affect public rights of way. The management agent added that the resident could raise any issues with the onsite security team if there were any members of the public causing issues.
9. The landlord acknowledged that it should have done more to help the resident with his complaint and offered £200, made up of £150 to reflect its lack of action, and £50 for failing to respond to the complaint at stage two within its published timescales. It mentioned that it would meet with the managing agent and would report back to the resident with their findings to enable them to support the resident with their complaint.
10. The resident referred the complaint to the Ombudsman as he remained unhappy with the landlord’s handling of his concerns. He would like the gates relocated to the bottom of the stairs.

Assessment and findings

11. In this case, the Ombudsman is only able to investigate the actions of the landlord. We cannot consider the role of the managing agent or the freeholder.
12. When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles, which are to be fair- treat people fairly and follow fair process; put things right and learn from outcomes.
13. The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse effect, the investigation will then consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes.
14. The Landlord and Tenant Act 1985, the Commonhold and Leasehold Reform Act 2002, and the Service Charges (Consultation Requirements) (England) Regulations 2003 set out the consultation requirements for major works which exceed £250. The freeholder (including the managing agent acting on its behalf) is required to allow both the landlord and the resident to respond to the consultation (see: The leaseholders of O’Donnell Court v London Borough of Camden and Allied London [2016]).
15. The landlord had no power to decide on the installation of the gates as it does not own the communal areas where the gates were installed. The management agent was responsible for consulting the resident on the installation of the gates at the development and the overall decision.
16. The evidence shows that on 3 November 2017, the managing agent served residents with a notice of intention to do works, describing the works and informing residents how they could view a copy of the description of the works. They had until 7 December 2017 to comment on the proposed works.
17. On 14 March 2018, the managing agent served a second notice with three estimates for the proposed works and invited comments by 2 May 2018. The management agent indicated that it had not received, within the first consultation period ending 7 December 2019, any written observations of their intended works. There is no evidence that the management agent received any written objections to the gate installation at the top of the steps within the consultation period ending 2 May 2018 either.
18. On 29 March 2018, the managing agent produced a notice of tendering process with a summary of the tenders received for the works. On 15 April 2019, it produced further notice of the estimated cost of the work by the nominated contractor. It explained the period of consultation ended on 2 May 2018 and notified the company awarded the contract to do the work.
19. The resident was aware of the works and there is no evidence they had not received the notices or that they objected in writing within the consultation period. This means ultimately both the landlord and the resident had a chance to be consulted on the works.
20. The resident sent an email to his landlord on 14 May 2021, after the end of the consultation period, asking to suspend the gate installation and for his landlord to liaise with the managing agent on his behalf. There is no evidence that the landlord acted upon this at the time which was a service failure. It should have passed the resident’s request to the management agent and monitored it. Had the landlord been proactive it could have avoided the resident feeling frustrated and disappointed by its inaction. There is no evidence that the landlord could have effectively challenged the managing agent’s decision and so he is likely to have still felt disappointed.
21. In June 2022, the landlord considered the management agent’s proposals and agreed with them. There is no evidence that had the landlord done more to raise the resident’s concerns with the managing agent or provided the site reports he requested this would have made any difference to the outcome as the resident had the right to object in his own right. The landlord was not responsible for the gate installation and the consultation process. The notices served on the resident explained how he could object or make representations. The management agent did not have to adopt the recommendations in the 2019 surveyor’s report or meet the resident’s request. This was a decision that the landlord could not interfere with unless it was legally defective and there is no evidence that it was. If the decision was legally defective, the resident also had the right to challenge the decision.
22. There were delays in the landlord responding during the complaint procedure, as follows:
    1. The resident raised a stage one complaint on 24 September 2021. The landlord did not respond to this until 6 December 2021. This was an unreasonable delay.
    2. The resident requested escalation on 8 December 2021, the landlord did not provide a final response until 26 May 2022. That was not appropriate.
23. The landlord in its stage two response attempted to put things right and explained its limited remit and that it could not address his concerns about the works or consultation process. It was appropriate for it to acknowledge that it should have done more to help the resident and offer to assist the resident in his complaint going forward. It was also appropriate for the landlord to have offered compensation to reflect the frustration and disappointment that it caused the resident. This demonstrated a willingness to put things right. The landlord offered the resident £250 for the considerable delays in responding to his complaint and its inaction which caused him frustration and disappointment.
24. The Ombudsman’s approach to compensation is set out in our Remedies Guidance published on our website. Where the Ombudsman has found considerable service failure or maladministration by the landlord, but there may be no permanent impact on the complainant it can award a payment of between £250 and £700. The situation has been distressing for the resident however the compensation offered is in line with the Ombudsman’s remedies guidance and therefore this is a fair offer in view of all the circumstances.

Determination

25. I have determined that:
    1. In accordance with paragraph 52 of the Scheme, there was no maladministration by the landlord in its handling of the resident’s concerns about the security gate installation. This is primarily because the resident was allowed the opportunity to object during the consultation. There is no evidence to suggest the managing agent’s decision could be challenged as defective or the landlord’s actions would have changed the outcome.
    2. In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to investigation which, in the Ombudsman’s opinion, satisfactorily addresses the landlord’s complaint handling.

Recommendations

26. It is recommended within eight weeks of the date of this report that the landlord review its arrangements for recording, overseeing, responding to, and monitoring complaints regarding a management agent appointed by a third party.
27. It is recommended within four weeks of the date of this report that the landlord pay the resident the £250 offered in its responses to the resident’s complaint.