Lewes District Council (202222261)

REPORT

COMPLAINT 202222261

Lewes District Council

26 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 concerns the information given by the landlord relating to the administration of the service charge.

Background

2. The resident is a leaseholder of the landlord, which is a local authority. The property is a flat in a communal building.
3. On 27 September 2022, the resident received a letter from the landlord providing the reconciled service charge account for the 2021/22 financial year. The letter explained that, in line with the terms of the lease, the resident was responsible for 22.97% of the block charges. The total reconciliation balance was £240.27, of which £164.58 was for general repairs and maintenance.
4. The resident wrote to the landlord on 2 and 10 November 2022 requesting to raise a formal complaint. She described the elements of the complaint as:
   1. She had been wrongly billed for asbestos work on the service charge. The resident stated that no checks for asbestos were undertaken at her property in the 2021/22 financial year.
   2. She had raised this with the landlord but had been ignored and was only sent a copy of the asbestos survey report. The resident had struggled with the technical language of the report.
   3. The report stated that asbestos checks were completed to the communal areas. However, the only communal areas were the outdoor spaces which were unlikely to contain any asbestos.
   4. She had spoken with some of her neighbours about the issue, who informed her that they had not been charged for an asbestos survey.
   5. As a resolution to the complaint, the resident requested to receive a £240.27 refund of the service charge.
5. The landlord sent a stage one complaint response on 11 November 2022, then a stage two complaint response on 14 December 2022. In its responses, the landlord:
   1. Apologised for its poor service when the resident first raised the issue. It noted that the resident first emailed it on 9 October 2022 and that it would be expected to provide a response within ten working days, but the resident did not receive a response until 4 November 2022. The landlord noted that it had emailed the resident on 10 October 2022 to advise her that due to the current large volume of emails it had received, that there may be a delay in responding.
   2. Explained that the cost of the asbestos check carried out on 10 October 2021 was £85. The resident was billed for 22.97% of the charge, which was £19.52. The landlord explained that this formed part of the £164.48 charged for general repairs and maintenance. The landlord further explained that the remaining costs were for clearing an overflowing gutter in April 2021, for an out-of-hours call for overflowing and blocked drains in July 2021, and for clearing guttering in the front and back of the block in February 2022.
   3. Stated that it was satisfied that the resident had been correctly billed for the work undertaken during the financial year and therefore had declined her request for a refund.
   4. Acknowledged that the asbestos survey report contained industry words and phrasing that could be confusing. It explained that to be in compliance with statutory regulations, it was expected to have an asbestos management plan in place for buildings that may contain asbestos. It noted that different buildings in its stock had different items that may contain asbestos and were therefore treated differently to the resident’s block.
   5. Explained that the resident’s building was surveyed once per year to check for damage and deterioration in order to ensure that it did not pose a risk to occupants. It further explained that the areas that were checked were external, that the resident’s property was not checked and none of its staff or contractors entered the property without her knowledge. The landlord noted that the survey report contained photographs of the areas that were inspected.
6. In referring the case to this Service, the resident described the outstanding issue of the complaint as she was not satisfied with the explanation given by the landlord as to why she was responsible for the cost of the asbestos survey. As a resolution to the complaint, the resident requested to be refunded the £240.27 service charge.

Assessment and findings

Relevant policies and procedures

7. Part 1 of the Housing Act 2004 relates to housing conditions. This states that landlords have a duty to review housing conditions and identify any hazards that might exist. The Housing Health and Safety Rating System (HHSRS) assesses 29 different types of housing hazards and the effect that each may have on the health and safety of occupants.
8. Asbestos is one of the 29 hazards set out in the HHSRS. Under the HHSRS, a landlord needs to identify the location of any asbestos in its building, assess how vulnerable it is to damage and identify any current damage or potential fibre release. Where a hazard is identified, it is classified as Category 1 (being a serious and immediate risk to health or safety) or 2 (a less serious or urgent risk). The landlord must take enforcement action in relation to any Category 1 hazards.
9. Section 1(c) of the leasehold agreement describes “the building” as the block of flats and curtilage including the resident’s property. Section 1(d) of the leasehold agreement describes “the demised premises” (the resident’s property) as the property and premises described in the First Schedule of the lease. The First schedule of the lease defines the demised premises as the “flat numbered X and situated on the X floor of the building including (a) the external windows and door and the glass therein (b) the ceilings and floors thereof (c) the internal walls of such flat up to the same level (d) the garden area (if any) but excluding the ceilings of the flat below it and the floor of the flat above it (if any) and the roof space and foundations of the building”.
10. The Fourth Schedule of the lease sets out the leaseholder’s covenants (what the leaseholder agrees to abide by on signing the lease). This, in part, states that the leaseholder agrees “to pay the interim service charge and the service charge at the time and in the manner provided in the Fifth Schedule”. The Fifth Schedule of the lease states that the service charge is paid to the landlord in equal payments in advance from the first day of April to the first day of October each year. The Sixth Schedule of the lease sets out the expenses that the leaseholder agrees to contribute to. This includes “all expenses (if any) incurred by the [landlord] in and about the repair renewal maintenance and proper and convenient management and running of the building including the cultivation of any part thereof not covered by buildings”.
11. The landlord’s asbestos management plan states, in part, that the landlord will:
    1. “Take reasonable steps to determine the location of materials likely to contain asbestos and presume materials contain asbestos unless there is strong evidence that they do not.
    2. Undertake an assessment of the risk of any identified asbestos and record this assessment.
    3. Ensure that the condition of any material containing or presumed to contain asbestos is periodically assessed in accordance with the risk it poses, and that the outcome of this assessment is recorded.
    4. Ensure that no intrusive works take place without a suitable asbestos survey being undertaken and the results communicated and understood.”
12. In regard to surveys, the asbestos management plan states that “periodic checks will be carried out to ensure that the processes and procedures detailed within this plan are working and being adhered to. This will include spot checks on individual processes and a full annual review”.

Scope of investigation

13. Paragraph 42(e) of the Housing Ombudsman Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, “concern the level of rent or service charge or the amount of the rent or service charge increase”. Should the resident wish to pursue the matter of the level or the increase of the service charge amount, she has the option of making an application to the First-Tier Tribunal (Property Chambers) (the FTT).  The FTT can make determinations on all aspects of the liability to pay a service charge, including by whom, to who, how much and when a service charge is payable. In order to decide liability a tribunal 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.
14. This Service can however assess whether the information provided by the landlord about the service charge was correct, whether it was in line with its legal and policy obligations, and whether its response was fair in all the circumstances of the case.

The information given by the landlord relating to the administration of the service charge.

15. Once it had received the resident’s concerns about being billed for the asbestos survey, the landlord had a duty to respond to the matter in line with its obligations set out in the occupancy agreement and its published policies and procedures.
16. The asbestos reinspection survey undertaken on 24 August 2021 noted that there were two areas of the building that contained low-risk ACM (asbestos-containing material). These were in the cement in the external pipework and in the bitumen products which were part of the building’s damp proof course. The survey found the risk category of these areas to be “very low” and gave advice to the landlord on how to handle any repairs to these areas should they be required.
17. Overall, the landlord has acted appropriately. In line with the relevant clauses of the leasehold agreement detailed above, it is the landlord’s responsibility to maintain the fabric of the building. As there are two areas of the fabric of the building that contain ACM, the landlord would be expected to monitor these areas in line with its obligations set out in the HHSRS. It is therefore appropriate for the landlord to arrange an annual survey of these areas of the building by a specialist contractor to ensure they are safe and to act on any of the recommendations (if any) made in the survey report.  As set out in the Sixth Schedule of the lease, the resident has agreed to pay a proportion of the building’s maintenance and management costs when taking on the lease and is therefore obligated to pay a proportion of the annual survey’s costs.
18. Therefore, there is no evidence of service failure by the landlord. On receipt of the resident’s complaint, the landlord provided a copy of the asbestos survey, explained why it was necessary and why the resident was responsible for a proportion of the costs. The resident has disputed that there could be any communal areas that could contain asbestos. However, the survey report clearly shows (including photographs), which two areas of the fabric of the building contain ACM and why they need annual inspections to ensure their safety. In line with the relevant clauses of the lease, the resident is obligated to pay a proportion of the cost of the survey. The landlord has correctly explained the £19.52 charge billed to the resident and why it was necessary. As previously stated, it is not within the remit of this Service to consider the level of the service charge and the resident is advised to contact the FTT if she wishes to pursue this aspect of the complaint further.

Determination

19. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of the information given by the landlord relating to the administration of the service charge.