Islington Council (202114943)

REPORT

COMPLAINT 202114943

Islington Council

28 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

The complaint is about:
1. The landlord’s handling of the resident’s request to extend her property into the loft space.
2. The landlord’s complaint handling.

Background and summary of events

Background

The resident is a leaseholder of the landlord. The landlord is the freeholder of the property, which is a 3 bedroom flat on the top floor of a block of flats. The resident purchased the lease to her flat on 25 March 2015. The landlord does not have any recorded vulnerabilities for the resident.
At the time the resident made her request to extend her property into the loft space (August 2020), her property was managed by a managing agent. The landlord took over responsibility for the management of the resident’s property in April 2022. For clarity this report refers to both the managing agent and landlord as “the landlord”, except where a distinction needs to be made.

Summary of events

On 7 August 2020 the resident sent the managing agent evidence of planning permission, as part of her request to extend her property into the loft space. On 17 August 2020 it asked her to provide a “detailed specification” of what she intended to do with the loft space, so it could send the information to its surveyor. It said that, once it had the information, it would contact the landlord (the freeholder) to “request agreement in principle” for her to purchase the loft space. The email gave a list of fees that were payable and said further information was available on its website. It also attached a guidance document about the process.
On 1 September 2020 the resident told the landlord that she owned the “loft space” and provided a drawing from her lease. The landlord responded on the same day and stated “thank you for confirming” and gave a list of fees payable.
The landlord completed a ‘leasehold alterations checklist’ on 6 October 2020 and asked its surveyor to “confirm [the] loft sale can be approved”. It also asked the surveyor to check the general viability of the project. The surveyor inspected the property on 14 October 2020 and told the landlord that there were four loft spaces, and the resident had told him that she owned them all. The surveyor advised the landlord to contact its legal team to check the ownership of the loft space.
The landlord emailed the resident on 27 November 2020 and told her the surveyor had attended but could not do a “full inspection” due to access issues. It gave the resident a “list of requirements” of various proofs and surveys that the resident needed to provide in order to progress the application. It is noted that the email did not discuss ownership of the loft space, and asked the resident to clear the loft space so it could do a further inspection.
On 4 January 2021 the landlord told the resident that it had received the updated planning permission she had sent it, and would tell her if it needed to do a further inspection. On 21 April 2021 the resident sent the landlord confirmation of approval from ‘building control’ saying it had sent “initial notice to the local authority for works at her address” and that works could start “after five working days”. The landlord responded on 23 April 2021 and asked the resident to provide proof of a scaffolding licence and permission from her neighbours to erect scaffolding.
The landlord emailed the resident on 19 May 2021 and told her that it had received a complaint from a neighbour about works at her property. It told her that it had not issued a ‘licence to alter’, it had not given her permission to start works and it needed to inspect the property. It said that it owned the “additional loft space” and that the resident must stop works immediately. The resident responded on the same day and said she had not been told about the ‘licence to alter’ and was of the view that she owned the entire loft space.
A surveyor for the landlord visited the property on 28 May 2021 and advised that the resident should be given permission to complete temporary works to “weatherproof” the building. This was to ensure it was habitable, while the landlord and resident worked to resolve the matter.
The landlord emailed the resident on 15 July 2021 and said:
1. It was willing resolve the matter by giving “retrospective consent” for her to do the works;
2. It explained that, as detailed in her lease, she should not have started works without the “proper consent”;
3. It apologised that the issue of purchasing the loft space was only just being discussed;
4. It said that when the resident first submitted her application she was informed that she “did not own the majority of loft” but it was not properly followed up in later communication;
5. It said the ownership of the loft space was clearly shown in the lease and showed that she only owned “a small box room” at loft level;
6. It provided a copy of the inspection report from October 2020;
The resident made a complaint to the landlord on 29 July 2021 and said:
1. She had been given misleading and conflicting information with regard to the requirements for the proposed loft conversion;
2. She had experienced issues with emails not being acknowledged and phone calls not being returned. When she chased the relevant team, it only returned her calls “when it was convenient for them”;
3. The landlord had questioned the loft ownership in August 2020, but when she told it she was of the view that she owned the whole loft space, it did not question her any further;
4. She had exchanged further emails about the proposed works with the landlord, and it did not query the ownership of the loft space;
5. It was not her intention to do works without permission and she had not been told about the requirement of a ‘licence to alter’;
6. She was dissatisfied that the landlord was only now raising the issue of the ownership of the loft space. She had already spent “close to £50,000”, and would not have started if she had been told the loft space did not belong to her;
The landlord emailed the resident on 5 August 2021 and told her that she was in breach of the terms of her lease. It said she had not been given consent to start the works and listed a set of fees that she needed to pay in order to progress the retrospective application.
The landlord issued its stage one complaint response on 19 August 2021 and said:
1. It apologised for its levels of communication and that call back requests were not made. It had reminded the team to call residents back when asked, as “this could have helped avoid things escalating”;
2. It offered £100 in compensation for time and trouble in pursuing the matter;
3. It had given no “final consent” for the works to go ahead. It explained that written consent was called a ‘licence to alter’, and there may have been confusion around the names of documents. It restated that works should not have started without written consent;
4. It was sorry to hear about the costs the resident had incurred, but it was not able to reimburse her, as she had not been given consent to go ahead with the works;
5. The “lease plan […] clearly shows” that the resident only owned part of the loft; when compared to the layout of the rest of the space her property;
6. Works should not have started without the resident purchasing the rest of the loft space, and it would be contacting her to arrange a face to face meeting. This was to discuss the process in detail and to “ensure clarity”;
7. It was awaiting further documents from the resident in order to progress with the application, and said it had partially upheld her complaint;
The resident emailed the landlord on 26 August 2021 and said she was dissatisfied with its complaint response, and the service she had received. She said was unhappy with the “tone” of the landlord’s response, and felt that its poor communication had led her into the situation she was in.
The landlord issued its ‘stage one review’ response on 14 September 2021 and said:
1. It had apologised for its poor communication throughout the process, in a recent meeting with the resident;
2. It agreed it needed to be “clearer on areas of ownership before agreeing anything with residents”;
3. Its offer of £100 in compensation was still available for its admitted failings in relation to the matter;
4. It said it would not apply the higher “retrospective fees” in her case, and would only charge her the lower standard fees;
5. It agreed to the resident’s request, made at the meeting, for a new officer to be allocated to her case.
The resident told the landlord on 21 September 2021 that she was unhappy with its stage one review complaint response. She said that the timing of the investigation into the loft ownership was unfair, and she was incurring significant costs while awaiting a resolution to the matter. She said that it had been three weeks since the face to face meeting with the landlord, and the new officer had not yet been in touch to progress the application.
The resident contacted the landlord on 6 October 2021 to tell it that she had not received a response to her request to escalate her complaint. She contacted the landlord again on 27 October 2021 and told it she had not received a response for “three weeks”. The landlord wrote to the resident on 28 October 2021 and said due to “a substantial backlog of cases” it was unable to start its complaint investigation. It apologised for the delay and said it would write to the resident once it had started its investigation. The landlord contacted the resident again on 5 November 2021 and said, further to its “holding letter dated 6 October 2021”, it had not yet started its investigation.
The resident contacted the Ombudsman on 24 January 2022 and said the landlord had not provided a response to her stage two complaint. This Service wrote to the landlord on 25 January 2022, and asked the landlord to provide a formal complaint response within 10 working days, by 8 February 2022. Following further contact from the resident, this Service wrote to the landlord again on 27 February 2022 and advised the resident had still not had a response to her complaint. The letter said that a response should be sent within 5 working days. The landlord wrote to this Service on 28 February 2022 and told us that it could not open its stage two complaint investigation due to a significant number of cases awaiting investigation, but the resident was sent “holding responses”.
The landlord told the resident on 28 February 2022 that it had been agreed she could purchase the additional loft space, and the sale could now proceed. It said its legal team were preparing the necessary documents for her to purchase the loft.
The resident contacted this Service on 9 March 2022 and said that she had still not received a response to her complaint. This Service sent a ‘final request for action’ to the landlord on 29 March 2022, and asked the landlord to provide a response within 5 working days.
The landlord sent its stage two (“chief executive stage”) complaint response on 27 May 2022 and said:
1. It apologised for the delay in responding to the resident’s complaint and offered £100 in compensation for the delay;
2. It was satisfied with the responses issued at stage one and stage one review and the offer of compensation was still available to the resident;
3. It apologised for the delays due to the “alleged discrepancies” in the lease. It said its inspection on 14 October 2020 highlighted that the resident did not own the entire loft space, and the inspection report said the resident “could purchase the whole area”;
4. The information about alterations was available on its website at the time and was accessible to all residents;
5. The issuing of the ‘licence to alter’ was still outstanding, as it was waiting for supporting evidence from the resident;
6. It apologised that the resident had not been sent the notes from the face to face meeting until a month after it took place, but it was satisfied this did not impact her application.

Events after the landlord’s internal complaints procedure

The resident completed the purchase of the additional loft space on 12 July 2022. The landlord contacted her on 3 August 2022 and said it had sent a request for the relevant team to carry out an inspection. It said it would notify her of its decision about her request to extend into the loft space, once it had inspected.
The resident contacted this Service on 1 September 2022 and said that she was unhappy with how the landlord had handled her case and wanted the Ombudsman to investigate. The resident told this Service that the situation had caused her a lot of stress and had left her “emotionally drained”.
Internal emails during September and October 2022 evidence the team responsible for the inspection asking for proof of the sale of the loft space. It said it needed this evidence before it could progress with an inspection. The landlord sent the proof of sale to the team on 7 November 2022. The landlord told this Service that it inspected the property on 14 November 2022 and it would “expedite the licence to alter” once it had received the report.
The landlord told this Service on 4 May 2023 that it had not yet issued the ‘licence to alter’. It said the resident had not yet met “the requirements set by the surveyor before the alterations can start again”.

Assessment and findings

Relevant policies and procedures

The resident’s lease states that the resident is not to allowed to make any structural alterations or additions to the building or premises unless “prior written consent” is obtained from the landlord.
The landlord’s leaseholder alterations procedure states that the resident will be sent an application form when they request to make an alteration and they “should be sent a checklist” to assist them in understanding all of the evidence they will need to supply.
The procedure states that the landlord should write to the resident to confirm receipt of the application form and other documents, and it should check if the initial proposal is within the “demise of the lease”.
For ‘loft conversions’ the procedure states that on receiving a loft conversion application, in most cases additional space will need to be bought. It says it must write to the resident and explain the fees that will be incurred in the process: legal fees, the licence to alter and deed of alteration. It states that at least two inspections are needed for loft conversions. The first is to establish if the proposed area can be sold to the resident, and a post work inspection is also needed to ensure the quality of work is sufficient.
The landlord’s compensation guidance states that the landlord can award between £100 and £300 for “time and trouble” and it can award £25 for each month there is a delay in service.
The landlord’s corporate complaints policy states that it operates a two stage complaints procedure: stage one and stage two (chief executive stage). At the time of the resident’s complaint, it also had a ‘stage one review’ in its complaint procedure.
The complaints policy states that stage one and ‘stage one review’ complaint responses will be sent within 10 working days and stage two complaint responses will be sent within 20 working days.

The landlord’s handling of the resident’s request to extend her property into the loft space

The resident made her initial request to extend her property into the loft space, in August 2020. The landlord told her it would seek the relevant “agreement in principle” for her to purchase the loft space. It also provided a list of payable fees and attached a document that explained the process. This was the correct application of its leaseholder alterations procedure in the initial stages of the process. It sought to provide the relevant information and manage the resident’s expectations, including that she would need to purchase some of the loft space.
The resident told the landlord on 1 September 2020 that she owned the entire loft space, and it responded “thank you for confirming”. The evidence available suggests that the landlord did not conduct any further enquires, at that stage, to establish why the resident considered that she owned the whole loft space. It is clear, from the evidence available, that it was of the view that the resident did not own the entire loft space. The form it completed on 6 October 2020 asked the surveyor to “confirm loft sale can be approved”. This was a failure to manage the resident’s expectations at this early stage of the process. Given there was a difference of opinion on the ownership of the loft space, it is reasonable to expect the landlord to have made its position clear to the resident from the outset.
The inspection report from 14 October 2020 advised the landlord to investigate the ownership of the loft space. The resident had told the surveyor that she owned the entire space, and the surveyor was of the view that she did not. However, the landlord’s email to the resident, after the inspection, does not make any reference to the ownership of the loft space. The email only detailed a list of requirements and proofs the resident needed to provide. This was a further failure to communicate effectively with the resident and manage her expectations about the loft space. It would have been reasonable for the landlord to have been more proactive in engaging with the resident about the ownership. Its communications with the resident were silent on the matter, which was a failure to communicate effectively and manage the resident’s expectations.
It is not clear from the evidence provided whether the full inspection report, which noted the concern about ownership, was sent to the resident at that time. Even if it was, it is reasonable to expect the landlord to have included the need for further investigations into the ownership of the loft space, within its communication with the resident. Particularly considering it had included a list of other requirements critical to the progress of the application.
The landlord failed to apply its leaseholder alterations procedure correctly and write to the resident to explain the fees she would need to pay for the ‘licence to alter’. The failure to formally write to the resident in line with its procedure is further evidence of poor communication in relation to the matter. The resident’s communications stated that she was unaware of the need for a “licence to alter”. Had the landlord followed its own procedure and set this out, it is reasonable to expect it would have made the process clearer for the resident. This failure resulted in a detriment to the resident, as she was subject to poor communication from the landlord which led to a lack of clarity about the process.
The landlord and resident exchanged numerous emails between August 2020 and May 2021 (when it asked her to stop the works). None of the correspondence, available for this investigation, evidences the landlord seeking to manage the resident’s expectations about the ownership of the loft space. Neither did it seek to manage her expectations that she should not start works until it gave its written permission.
The landlord was aware of the resident’s view that she owned the entire loft space, and the emails suggest that the works would soon start. It would have been reasonable for the landlord, during this time, to make it clear to the resident that she should not start works until it gave its written permission. This was a further failure to manage the resident’s expectations and communicate effectively with her about the process. However, it is also noted that such information is contained within the terms of the resident’s lease, and it is the responsibility of the leaseholder to check the terms of the lease before entering into such significant works.
After the landlord became aware the resident had started works without its permission, it asked her to stop works immediately and promptly inspected the property. It gave permission for the resident to conduct further works to make the building “weatherproof”. This was reasonable in the circumstances, as it appropriately confirmed that it had not consented to the works, but understood the need for the property to be made safe and ensure it was habitable.
In its email to the resident on 15 July 2021, the landlord made its position clear that it was of the view she had breached the conditions of her lease. This was due to starting works without its permission. It also gave a clear explanation of its interpretation of the lease plan, and how it indicated she did not own the entire loft space. This was a reasonable approach in the circumstances, as it sought to rectify the lack of clarity it had given up to that point.
The landlord allowed the resident to apply for retrospective permission to do the works, and agreed to sell her the remainder of the loft space. It also agreed to charge the resident the standard fees, rather than the higher retrospective fees. This was a fair and pragmatic approach in the circumstances. The landlord decided not to take any punitive action for the perceived breach of the lease, and took a flexible approach to find an appropriate solution. It acknowledged that it did not communicate effectively during the process and the decision to charge a lower fee was a fair acknowledgement of its contribution to the situation.
The resident’s lease agreement states that she is not allowed to make any structural alterations or additions to the building or premises without “prior written consent” from the landlord. This Service has not been provided with any evidence to suggest that the landlord gave its written consent prior to the works commencing in May 2021. It is not clear, from the evidence available, why the resident believed she had permission to start the works.
The landlord’s complaint responses accepted that its communication at the start of the process was poor, and that it should have explained the process more clearly to the resident. It also accepted that it should have communicated more clearly about the ownership of the loft space. The resident has suffered a detriment, as a result of the landlord’s poor communication during the process. However, the landlord cannot reasonably be held responsible for the entire detriment suffered by the resident, as it had not given permission for the works to start. The significant costs incurred by the resident, while she purchased the loft space and obtained proper permission from her landlord, were not caused by the landlord’s failings.
After it completed the sale of the loft space to the resident on 22 July 2022 there was a delay in passing the relevant information on to the appropriate team. The information was not sent until 7 November 2022, and was an unnecessary delay. This is further evidence of poor communication by the landlord in relation to this matter. It would have been reasonable for the landlord to have been more proactive in passing information on to the relevant teams, given it had already accepted its communication had been poor. This failing led to a delay in the process and increased distress to the resident of having to wait even longer for a resolution to the situation.
The Ombudsman’s dispute resolution principles are to be fair (follow fair processes and recognise what went wrong), put things right, and learn from outcomes. Where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was proportionate and reasonable.
The landlord evidenced that it had learnt from the outcomes of the case in its complaint responses, and told the resident it had instructed its staff to be more thorough in respect of ownership queries. The landlord offered £100 and an apology in recognition of the “time and trouble” the resident experienced in its handling of the matter. However, the landlord failed to properly manage the resident’s expectations about the ownership of the loft space and permission to start works. It also failed to set out a clear explanation of its position until late in the process and its offer of compensation did not fully acknowledge the distress, time and trouble experienced by the resident, as a result of its failings. There was maladministration in its handling of the resident’s request to extend her property into the loft space.

The landlord’s complaint handling

The landlord issued its stage one complaint response 22 working days after the complaint was made. This was outside of the timeframes set out in its own complaints procedure and the Ombudsman’s Complaint Handling Code (the Code). The result was inconvenience to the resident, as there was a delay in getting a response from the landlord in answer to her concerns. However, it is noted that the landlord was communicating with the resident about the substantive issues in her complaint throughout this time, and sought to explain its position in relation to the matter to her.
At the time of the resident’s complaint the landlord operated a three stage complaints procedure, that included a ‘stage one complaint review’. On 26 August 2021 the resident told the landlord that she was unhappy with its stage one complaint response and wanted to escalate her complaint to the next stage. The landlord opened a ‘stage one complaint review’, which was the correct application of its procedure at the time. However, the procedure itself was not in line with the Code, which states a landlord should ideally have a two stage complaints procedure to ensure it is not “unduly long”. It is noted that the landlord has since changed its complaint procedure and it now only has two stages.
The landlord’s ‘stage one review’ response was sent on 14 September 2021, 13 working days after the resident asked for her complaint to be escalated. This was outside of the timeframes set out in its complaints procedure. It was not a lengthy delay, but was a further delay in what was already a protracted process.
After receiving the landlord’s ‘stage one review’ response, on 21 September 2021, the resident asked for her complaint to be escalated to stage two. The resident contacted it on 6 October 2021 and again on 27 October to ask it to provide a response to her complaint. The landlord responded on 28 October 2021 and told her it could not start its investigation due to a backlog. It is noted that the landlord told her it sent a “holding” response on 6 October 2021, but no such letter was provided for this investigation. This was a failing on the part of the landlord, as the resident was cost time and trouble in asking her landlord to formally respond to a complaint, only to be told that it was not going to investigate it yet.
The landlord’s complaints procedure and the Code say that stage two complaints must be responded to within 20 working days. The Code goes further and states that “if an extension beyond 10 working days is required[…]this should be agreed by both parties”. The landlord failed to manage the resident’s expectations by giving a timeframe on when it hoped to start investigating. It would have been reasonable, and in line with the Code, to agree an extension with the resident. This would have helped manage the resident’s expectations. There was poor complaint handling by the landlord. It failed to apply the Code and its own complaints procedure, which led to a prolonged complaints process. The resident suffered an inconvenience, as she did not know when or if the landlord would respond to her complaint.
The resident experienced further inconvenience, time and trouble in seeking assistance from the Ombudsman to ask the landlord to respond to her complaint. The resident contacted this Service in January, February and March 2022. This was further time and trouble in an already protracted process. Had the landlord been proactive in responding to the resident’s complaint, she may not have needed to seek assistance from the Ombudsman to ask for help in getting a response.
The landlord issued its final complaint response on 27 May 2022, 173 working days after she asked it to escalate her complaint to stage two. This was well outside of the timeframes set out in its own complaints procedure and the Code and was a failing.
The landlord’s complaint responses were consistent and sought to clearly outline its position in relation to the substantive issue. It explained what the resident needed to do in order to progress with her application and arranged to meet her face to face to further explain the process. This was evidence of good practice by the landlord, as it sought to learn from the outcomes of its earlier poor communication.
The landlord’s compensation guidance states that it can offer £25 for each month for a delay in service. The resident told the landlord that she wanted to escalate her complaint to stage two on 21 September 2021, and it should have therefore issued its final response by 19 October 2021. It issued its stage two complaint response 7 months later than required by its procedure, on 27 May 2022. The landlord offered the resident £100 in compensation for its delay. This is equivalent to recognising only a four month delay when applying the landlord’s compensation guidance. The landlord therefore failed to appropriately acknowledge the delay experienced by the resident and to reasonably apply its compensation guidance. Its complaint response also failed to acknowledge the time and trouble the resident experienced in sending the landlord and this Service requests for a response. The £100 it offered did not fully put things right for the resident.
The landlord’s final complaint response failed to identify what learning it had taken from the complaint, in line with the Ombudsman’s dispute resolution principles. The wording it used to offer compensation and to explain the delay in its final response was identical to other complaint responses it issued around this time. It is noted that the landlord also offered £100 in compensation in other complaints considered around this time, where there were delays in providing a stage two response. It is noted that this sum was offered for differing periods of delay. This indicates that, rather than giving due consideration to its compensation guidance and the individual circumstances of the complaint, the landlord may have fettered its discretion. It used a standard wording and applied a set level of compensation for delays at stage two in several complaints.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s handling of the resident’s request to extend her property into the loft space.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s complaint handling.

Reasons

The landlord’s communication at the start of the process was poor. At points, it failed to correctly apply its leaseholder alterations procedure. The result was time, trouble and distress for the resident. The landlord acted reasonably in its decision to retrospectively agree the works and the sale of the loft space to the resident. However, the compensation it offered did not fully put things right for the resident.
There were lengthy delays in responding to the resident’s complaint. The landlord’s “holding” responses failed to manage the resident’s expectations and the delay in providing a response led to an unduly long process. The compensation offered for its complaint handling did not fully put things right for the resident.

Orders

Within four weeks of the date of this report, the landlord is ordered to:
1. Apologise for the failings identified within it;
2. Pay the resident £650 in compensation, made up of:
  1. The £100 it has already offered in recognition of its handling of the resident’s request to extend her property into the loft space(if it has not already done so);
  2. A further £250 in recognition of the time, trouble and distress caused by the failures in its handling of the resident’s request to extend her property into the loft space;
  3. The £100 it has already offered in recognition of its complaint handling (if it has not already done so);
  4. A further £200 in recognition of the time, trouble and distress caused by the failures in its complaint handling.
Within eight weeks of the date of this report, the landlord is ordered to undertake training with its staff who deal with leaseholder alteration requests. This is to assist them in effectively applying its procedure, thoroughly and appropriately explaining the process to residents, and managing residents’ expectations throughout the process. Details of the training, including dates for delivery, should be shared with this Service, also within eight weeks.