Magenta Living (202213660)

REPORT

COMPLAINT 202213660

Magenta Living

6 September 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 the landlord’s handling of:

1. works associated with an upgrade programme being carried out to the resident’s block of flats;
2. the resident’s concerns about her service charges in relation to the upgrade programme;
3. the consultation it carried out prior to the upgrade programme.

2. The Ombudsman has also investigated the landlord’s handling of the resident’s associated complaint.

Jurisdiction

1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (‘the Scheme’). When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
2. After carefully considering all the evidence, this service cannot investigate issues concerning the landlord’s handling of the consultation it carried out prior to the upgrade programme. This is in accordance with paragraph 42(c) of the scheme, which states that the Ombudsman may not consider complaints which “were not brought to the attention of the member [landlord] as a formal complaint within a reasonable period which would normally be within six months of the matters arising”. The consultation period carried out by the landlord started in 2019 and this issue did not form part of the resident’s complaint to the landlord in October 2022.Therefore, this service has not investigated this matter because the evidence suggests it was not raised as a formal complaint within six months.

Background

3. The resident is the leaseholder of her flat, which is located within a block of flats. The landlord owns the freehold of the block of flats.
4. On 22 September 2022, the landlord wrote to the resident and enclosed a certificate of expenditure. The resident’s block of flats had been included in a recent programme designed to upgrade low rise blocks of flats and ensure their compliance with relevant safety standards and regulations. The certificate contained details of any repairs, services, or major works that the resident had received between 1 April 2021 and 31 March 2022. It also set out the resident’s contribution towards these as collected by the landlord through leaseholder service charges. The landlord stated that the resident could contact the homeownership team if she wished to query any of the charges and they would investigate.
5. On 6 October 2022, the resident complained to the landlord about multiple issues, including:
   1. various outstanding works to the internal communal areas that the landlord was charging for, including the replacement of the front door of the resident’s flat;
   2. failure by the landlord to notify the resident in advance of works to remove the canopy above the external front door, which caused noise nuisance and exposed the resident to concrete dust for five days;
   3. certain works carried out by the landlord looking “ugly”, causing an “eyesore”, or being “unhygienic”, such as the works to remove the canopy, the new rotary (washing) lines in the courtyard, and the use of mismatched tiles;
   4. damage caused to external paving blocks by pressure washing.
6. The resident also said that the amount of service charge the landlord wanted to charge her seemed excessive and unfair considering the issues she had outlined. She believed that some of the works should already be covered under the annual maintenance charge. She stated that she had been told she would not be charged for the replacement of the front door to her flat. The resident also queried if the landlord would be responsible for paying for works designed to enable the building to meet relevant health and safety regulations. She asked the landlord to provide her with a “full breakdown of the costings”.
7. The landlord responded to the resident on 12 October 2022 and stated that it had reviewed her concerns, but it was unable to address them via the landlord’s complaints procedure. The landlord explained that its complaints policy states it is “unable to investigate any matters relating to service charges”. It confirmed it had forwarded the resident’s complaint to the homeownership team and asked them to contact the resident.
8. On 13 October 2022, the landlord sent the resident information about her service charges, including the major works breakdown for the resident’s block. The resident replied on the same day to state that the landlord had not provided her with the correct breakdown. The landlord emailed the resident on 14 October 2022 to state that its solicitor had advised it could not meet the resident’s request due to the information she required being commercially sensitive.
9. On 14 December 2022, the landlord called the resident to discuss her concerns and to arrange a date for her flat’s front door to be replaced. Internal communications between the landlord’s staff members in January 2023 indicated that the resident had refused access for the proposed works to replace her front door.
10. The landlord spoke with the resident over the phone on 10 February 2023 to discuss various matters including a further attempt to arrange to replace the front door to her flat. On 24 March 2023, the resident requested a meeting with the landlord. The landlord’s attempts in April 2023 to arrange a meeting with the resident were unsuccessful.
11. The resident asked the Ombudsman to investigate her complaint as she remains unhappy with how the landlord has handled her concerns. She would like this service to consider an award of financial compensation to remedy the stress she has experienced as a result of issues with the upgrade programme and service charge.

Assessment and findings

Scope of investigation

12. The resident’s issues with the landlord’s proposed works and its handling of its upgrade programme have been ongoing for some years. This service investigated a previous complaint from the resident in relation to this upgrade programme. The Ombudsman’s determination was issued in January 2022 and considered issues of a similar nature to the ones that form part of this complaint. This service is unable to consider issues that the Ombudsman has already issued a determination on.  Therefore, this investigation will focus on the specific issues that led to the resident complaining to the landlord on 6 October 2022 and the landlord’s responses.
13. This service cannot investigate issues concerning the level or increase of service charges or whether the service charges represent good value for money. This is in accordance with paragraph 42(e) of the Housing Ombudsman Scheme, which states that the Ombudsman may not investigate issues that concern the level of service charges or the amount that service charges have been increased by. It would be appropriate for the First Tier Tribunal (Property Chamber) to assess the service charge level set by the landlord at any given time and the Ombudsman can not make findings on the Tribunal’s behalf. However, this service can consider the landlord’s communication about the resident’s service charges and assess whether the landlord acted in accordance with its obligations.

The landlord’s handling of works associated with an upgrade programme being carried out to the resident’s block of flats.

14. The resident listed works to the block’s communal areas that she said the landlord had charged for but had not carried out. These works included applying vinyl covering to internal handrails and bannisters, renewing floor tiles, and internal decoration. The landlord’s contractors reported that they experienced challenges outside of their control when attending to complete works to the communal areas of the building. Contractors had reported to the landlord that the resident obstructed them from reasonably carrying out their work at her block. The resident disputes this and maintains that she did not obstruct the contractors. Where there are conflicting versions of events without supporting evidence to verify either version, it is not possible for the Ombudsman, as an impartial arbiter to confirm what happened with any certainty. As we cannot confirm what happened, we cannot say the landlord was at fault for the delay caused by the contractors not completing the scheduled repairs.
15. However, as the delays affect multiple residents in the block of flats, the landlord should take reasonable steps to ensure the works are completed as soon as possible. It may wish to arrange for a member of the landlord’s staff to also attend the resident’s block with its contractors to ensure they are able to carry out their work. This would also enable it to accurately record the reasons for any difficulties the contractors experience during the course of their work.
16. The evidence shows that the landlord went to significant lengths over a substantial period of time to try and replace the front door to the resident’s flat as part of its upgrade programme. The landlord was required to replace the door to ensure it met the relevant fire safety standards. However, it had been unable to successfully arrange for the required access to the resident’s flat despite multiple attempts. It is understandable that there sometimes may be reasons why it is inconvenient for the resident to give access to her flat for the landlord to carry out works that are likely to be noisy and create mess. This service would not question the reasons the resident has given for denying access to her flat, but we would also not consider such reasons to be within the landlord’s control. As the front door needs to be replaced in order to comply with safety standards, the landlord should consider all options it has available to it to ensure this work is completed as soon as possible.
17. The resident had raised issues with noise nuisance caused by the upgrade works and had also raised these issues previously via the landlord’s internal complaints process. She had also said she previously experienced reactions to a certain chemical the landlord’s contractors used during the course of their work in the building. This service has seen evidence that the landlord had reassured the resident on multiple occasions that it would not continue using a chemical that had previously caused the resident to feel ill. While noise and other general disturbance are likely to occur when works are carried out, such necessary disturbances are temporary and usually short-term. The landlord should, in line with its previous communications with the resident, ensure that it gives her sufficient notice of works that are likely to cause a noise nuisance to her. This would give the resident a reasonable amount of time to make arrangements to limit the impact on her, if she wishes to do so. The landlord should also ensure that it completes works in communal areas in line with any schedule it provides to the resident so it can minimise both the delays to the works being carried out and the impact on the other residents of the block.
18. In her complaint, the resident indicated that she was unhappy with the choice of materials the landlord had used in completing some works, such as mismatched tiles. The landlord should consult with leaseholders on such matters where appropriate. This service has seen evidence that the landlord consulted the resident on its upgrade programme although this investigation will not be considering the consultation in detail, as explained above. As the freeholder of the building, the landlord has the discretion to choose the materials it uses to carry out works to the building, as long as the materials meet relevant safety standards. However, it would have been appropriate for the landlord to acknowledge and respond to the resident’s concerns about the materials used and provide reassurance concerning the quality of the work.
19. The resident stated in her complaint that she considered the “patch up job” following the removal of the canopy from above the front door to the building to be an “eyesore”. She also felt that the newly installed rotary lines in the rear courtyard were “ugly”. Opinions about the appearance of parts of the building or practical installations such as rotary lines are largely subjective and will likely vary from person to person. The landlord carrying out works that resulted in the resident considering areas to look ugly does not represent service failure or maladministration in itself. However, the landlord could have acknowledged and responded to the resident’s concerns, including additional concerns raised about hygiene. It could have considered assessing if there were any reasonable options available that may have resolved the resident’s specific criticisms of the appearance of the building and its surrounding areas. It would have been appropriate for the landlord to inspect the works to confirm if there was anything which needed to be done to improve the appearance. If the landlord disagreed that any “eyesore” had been created, it could have explained its reasons for this to the resident. However, the landlord is entitled as the freeholder of the building to decide on how the building should look.
20. The resident referred to paving blocks outside the property that had been loosened as a result of them being pressure washed and the cement pointing having been washed away. The resident stated that she felt the paving was unsafe as a result. The landlord has not provided this service with any evidence that it investigated the resident’s claim and ensured the relevant pathway was safe. This was a service failure by the landlord as it should have responded within a reasonable timescale to any safety issues that the resident raised. It will be necessary for the landlord to inspect the pathway referred to and take any appropriate action to ensure its safety in order to resolve this issue.

The resident’s concerns about her service charges in relation to the upgrade programme

21. The landlord’s leasehold management and service charge policy states that it “will recover from leaseholders all the monies due from them towards the cost of major works”. It states that the landlord will ensure that the costs of such works that are passed on to the leaseholder will be “fair, proportionate and reasonable”. The policy sets out a procedure for the resident to follow, as a leaseholder, if she wishes to dispute charges that the landlord has set. The resident can contact the homeownership team with her concerns and the policy states that the team will provide the resident with a response within five working days. Where the homeownership team is unable to provide the resident with a response in that timescale, the policy states that the query will be escalated to a complaint to be dealt with in accordance with the landlord’s complaints procedure. There are then various escalation routes if the resident were to remain dissatisfied with the landlord’s formal response(s).
22. In its letter of 22 September 2022, the landlord stated that the resident could contact the homeownership team if she wanted to query any of the charges listed in the provided breakdown, in line with its policy. The landlord said that the team would investigate and make changes to the final service charge adjustment where appropriate. This service has not seen any evidence that the landlord investigated the resident’s queries following her complaint of 6 October 2022. While there is some suggestion from the landlord’s internal communications in December 2022 that it was putting together a response to send to the resident, this service has not seen a response or any evidence that the landlord sent one. The landlord failed to issue the resident a full response to her concerns within five working days in line with its policy.
23. There is also no evidence that the landlord attempted to handle the resident’s concerns in line with its complaints procedure following any decision by the homeownership team that it could not respond to the resident’s concerns. The landlord should have investigated and responded to the resident’s concerns about her service charges in accordance with the procedure as set out in its leaseholder management and service charge policy. This service has seen evidence of attempts by the landlord in April 2023 to arrange a meeting with the resident. However, these attempts should have taken place in October 2022 when the resident complained, rather than six months later. It will be appropriate for the landlord to pay the resident compensation to remedy its failure to investigate and respond to her concerns about the service charge within a reasonable timescale.
24. The resident complained that the landlord had not provided her with the financial information she had requested from it regarding the costs of the works that had been carried out specifically to her block of flats. The landlord had provided information to the resident on multiple occasions, including the breakdown of the costs of the major works. The landlord had sent this information again on 13 October 2022 in response to her complaint. However, the landlord later stated that it was unable to fully meet the resident’s request due to its solicitor advising that some of the requested information was commercially sensitive. The landlord was entitled to take the advice from a qualified legal professional on this matter and this service would not require it to disregard such advice. However, this should not have prevented the landlord from fully considering the resident’s concerns or whether it could appropriately respond to her request for information in a way that took a different format to a breakdown.
25. The resident stated in her complaint that she had been previously told that the landlord would not charge her for the replacement of the front door to her flat. This service has seen an internal email communication from the landlord dated 21 January 2022, which describes a phone call that had taken place between the landlord and the resident. In the email, the landlord stated that the resident’s front door would be replaced “at no cost to her”. The landlord should have responded to the resident on this matter as it appears to have provided her with conflicting information. It will be necessary for the landlord to clarify whether the landlord or the resident is liable to pay for the replacement of the resident’s front door and explain the reasons for this.
26. The resident had queried whether some of the works that were subject to additional charges were not already covered in the annual maintenance charge, such as pressure washing the external pathways. She had also asked if it was the landlord’s responsibility to pay for works that were necessary to bring the building up to relevant safety standards. These were concerns that the landlord should have been able to respond to within a reasonable timeframe. It will be necessary for the landlord to provide appropriate responses to these matters.
27. The Ombudsman’s remedies guidance (published online) sets out the Ombudsman’s approach to putting things right where there has been maladministration by the landlord. The guidance suggests that an award of £250 would adequately remedy maladministration by the landlord, such as providing contradictory information or failing to act in accordance with its policies.  Therefore, the landlord should pay the resident £250 for distress and inconvenience caused by errors in its communication about the resident’s service charges.

The landlord’s handling of the resident’s associated complaint

28. The landlord has a two-stage procedure for handling complaints from residents. It aims to issuecomplaint responses at stage one within 10 working days and at stage twowithin 20 working days. This is in line with the Ombudsman’s Complaint Handling Code (‘the Code), which sets out the Ombudsman’s approach to handling and resolving complaints. The landlord, as a member of the Housing Ombudsman Scheme, is expected to act in accordance with the code unless it has good reason to vary its approach to complaints handling. The landlord’s complaints policy also states that there “may be occasions when a complaint will not be dealt with in line with [the] policy”. It states that one of these exclusions is “service charge disputes”, which are handled directly by its policy and homeownership team. The landlord’s leaseholder management and service charge policy states that where the homeownership team are unable to deal with a query, it will be escalated to a complaint to be dealt with via the landlord’s normal complaints procedure. It also says that “to dispute any part of the service charge, leaseholders must go through each stage of the complaints procedure”.
29. While the resident’s service charges concerns were something the homeownership team needed to investigate, the resident also raised concerns that some works had not yet been completed in the communal areas of the block of flats she lives in. She raised concerns about the landlord’s handling of the impact on the resident of the works being carried out. The resident also raised some health and safety concerns, such as the loosened paving blocks. These were all concerns that the landlord should have investigated and responded to in accordance with its complaints procedure. The landlord’s complaints team could have considered working with the homeownership team to issue a joint response to the resident’s service charge queries and her general concerns about the works associated with the upgrade programme. The landlord had decided that everything the resident raised was within the remit of the homeownership team and so her complaint was forwarded internally to a different team and a letter declining to handle her complaint was sent to the resident as its formal response. This was maladministration by the landlord as it had failed to act in accordance with its policies. This would have caused inconvenience to the resident because she was unable to have her concerns considered as a formal complaint and receive a clear response to these concerns.
30. It will be appropriate for the landlord to pay the resident an additional amount of compensation in order to remedy this failing. The remedies guidance suggests that an additional award of £250 would adequately remedy maladministration by the landlord, which may include a failure to meaningfully engage with the resident’s complaint in accordance with its complaints procedure. Therefore the landlord should pay the resident £250 for its failings in complaint handling.

Determination

31. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of works associated with an upgrade programme being carried out to the resident’s block of flats.
32. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s concerns about her service charges in relation to the upgrade programme.
33. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s associated complaint.

Orders

34. The landlord must pay the resident a total of £500 compensation, made up of:
    1. £250 to recognise the distress and inconvenience caused by the landlord’s maladministration in handling the resident’s concerns about her service charges;
    2. £250 to recognise the distress and inconvenience caused by the landlord’s maladministration in handling the resident’s complaint.
35.  The landlord must pay this sum directly to the resident within 28 days of the date of this determination.
36. The landlord must respond to the resident’s concerns about her service charges in writing and provide the Ombudsman with a copy of the correspondence within 28 days of the date of this determination. The landlord’s response should address the following:
    1. the resident’s concern that there are additional charges for works that she believes are already covered by the annual maintenance service charge;
    2. the resident’s query over whether the landlord or the resident are liable to pay for the replacement of the front door to the resident’s flat;
    3. the resident’s concerns that the charges for the upgrade programme are unfair and excessive;
    4. the resident’s query about whether it is the landlord’s responsibility to pay for works that are necessary for health and safety reasons.
37. The landlord must go to reasonable lengths to arrange for an inspection to take place with the resident at her block within 28 days of the date of this determination. The inspection should aim to identify any outstanding issues or works relating to the upgrade programme. The landlord should resolve these issues where it is appropriate and reasonable to do so, in line with the timescales in its repairs policy.
38. Should the resident remain unsatisfied with the outcome of the inspection and wish to complain, the landlord mustassess a new complaint from the resident. It should ensure it handles any complaintin accordance with the relevantpolicies and procedures.

Recommendations

39. The landlord should consider identifying a suitable member of staff to act as a single point of contact for the resident, if it has not already done so. This should be with a view to aiding both the resident and the landlord in appropriately managing their contractual relationship.