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Thames Valley Housing Association Limited (202010454)

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REPORT

COMPLAINT 202010454

Thames Valley Housing Association Limited

25 June 2021


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:

  1. response to the resident’s:
    1. reports of problems with the lift and water pressure at the property,
    2. reports of defects at the property,
    3. concerns about the parking,
    4. concerns about the lack of a 24 hour concierge at the property,
    5. reports of problems with the window cleaning at the property,
    6. reports of problems with the conduct of the landlord’s staff,
    7. reports concerning the conduct of the landlord’s staff during the purchase of the property,
    8. concerns about the lending offered during the sales process,
    9. queries relating to the increase in the service charges.
  2. complaints handling

Jurisdiction

2.     What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman 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.

3.     After carefully considering all the evidence, in accordance with paragraph 39 (d) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction: the complaint about the landlord’s response to the resident’s reports concerning the conduct of the landlord’s staff during the purchase of the property.

4.     Paragraph 39 (d) of the Housing Ombudsman Scheme says that: “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion were brought to the Ombudsman’s attention normally more than 12 months after they exhausted the member’s complaints procedure.”

5.     The landlord provided its final response to this aspect of the complaint on 1 October 2019. However, the resident did not contact the Ombudsman concerning the complaint until 14 December 2020, 14 months after the complaint had exhausted the landlord’s complaints procedure. Therefore, this aspect of the complaint is outside of the Ombudsman’s jurisdiction.

6.     After carefully considering all the evidence, in accordance with paragraph 39 (m) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction: the complaint about the landlord’s response to the resident’s concerns about the lending offered during the sales process.

7.     Paragraph 39 (m) of the Housing Ombudsman Scheme says that: “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.”

8.     A complaint about a mortgage provider would be a matter for the Financial Ombudsman Service and this aspect of the complaint is therefore outside of the Housing Ombudsman’s jurisdiction.

9.     After carefully considering all the evidence, in accordance with paragraph 39 (g) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction: the complaint about the landlord’s response to the resident’s queries about the increase in the service charges.

10. Paragraph 39 (g) of the Housing Ombudsman Scheme says that: “The Ombudsman will not investigate complaints which concern the level of rent or service charge or the amount of the rent or service charge increase.”.

11. As the complaint relates to the level of increase in service charge this aspect of the complaint is therefore outside of the Ombudsman’s jurisdiction.

Background and summary of events

12. The resident has been a shared ownership leaseholder of the property since September 2018. The property is a new build three bedroom flat in a building of which the landlord is the freeholder. The defects period on the property ended in January 2019, with a final inspection of the property by the developer being carried out on 16 January 2019.

13. In accordance with the provisions of the lease the landlord has an obligation to maintain and repair the common parts of the building.

14. The premises are defined in the lease as the plot shown as edged red on the Lease Plan.

15. The particulars in the lease say that the allocated parking space is “The parking space which is numbered [ x ] on the Parking Space Plan or such other parking space as shall be allocated to the premises by the landlord from time to time.”.

16. The landlord’s repairs policy classifies repairs to a lift fault, when there is only one lift in the block, as an emergency repair. Emergency repairs are to be carried out within 24 hours.

17. The complaint was dealt with under the landlord’s complaints pilot scheme process. Under this process complaints will be escalated to stage 2 when the 28 calendar day timescale at stage 1 has been breached. Extensions to stage 2 timescales (cases which are not resolved in 28 calendar days) will be submitted to the complaints panel for assessment and approval. Complaints will be closed at this stage where the customer is satisfied that a plan of action is in place to resolve the complaint and a communication detailing this has been sent to the customer. Cases which are not resolved in 28 calendar days will be submitted to the complaints panel for assessment and approval.

18. The landlord’s compensation policy says that the landlord can make time and trouble payments when a resident has been disadvantaged or inconvenienced while pursuing a complaint. The policy says that awards in the range of £50 to £250 will be considered where there has been a period of delay and the resident has had to chase the landlord several times.

19. The landlord’s contact history records show that the resident spoke to the landlord on 22 August 2019 about the lift in the block not working and said that it had broken down four times. The lift was repaired the following morning. On 25 August 2019 the resident spoke to the landlord to report the lift being broken again. The lift was repaired by the afternoon of 26 August 2019. However, the resident reported the lift being out of order again on the evening of 26 August 2019. On 27 August 2019 the resident says that the landlord informed her that the lift would be fixed by that evening. The resident says she called the landlord a number of times over the next few days. The lift was repaired on 3 September 2019.

20. On 28 August 2019 the resident made a formal complaint by telephone to the landlord about its response to her reports of the lift at the building not working. The landlord spoke to the resident on 30 August 2019 about the complaint. The resident also said that she had found the landlord’s customer services staff were unhelpful when she had called to report repairs.

21. On 12 September 2019 the resident sent a letter to the landlord enclosing a copy of a letter of complaint that she maintained she had sent to the landlord on 26 February 2019 to which she had not received a response. In her 12 September 2019 letter the resident raised complaints about the following:

  1. the landlord’s response to her reports of the lift being broken
  2. that despite being told the contrary by the landlord when purchasing the property there was no 24 hour concierge, visitor parking spaces, disabled parking spaces or regular window cleaning
  3. that she did not own the property’s allocated parking space
  4. the landlord’s response to the resident’s reports of problems with the water pressure at the property
  5. problems with defects at the property. The resident felt that the defects period should be extended.

22. On 3 October 2019 the landlord informed the resident that no response to the complaint would be provided at this stage and the complaint would automatically be escalated to stage 2.

23. On 3 December 2019 the landlord visited property and identified issues with the repair carried out by the developer to the kitchen countertop during the defect period. It also identified that the kitchen sink appeared to not be fitted properly. Although the issue with the sink hadn’t been raised by the resident during the defects period the landlord decided that it was a latent defect and it would ask the develop to repair it.

24. On 11 January 2020 the landlord visited the property with the developer. Between January 2020 and April 2020 there is evidence of the landlord chasing the developer’s contractor to carry out the defects work to the countertop and sink at the property.

25. On 5 March 2020 the landlord informed the resident that it had asked the developer’s contractors to confirm with the resident that it would be carrying out the works on 2 April 2020. On 24 March 2020 the landlord informed the resident that due to the Covid 19 pandemic restrictions the appointment was cancelled, and the contractors would provide an alternative date as soon as possible.

26. On 28 January 2020 and 10 February 2020, the landlord informed the resident that it couldn’t issue the complaint response until all the works were completed.

27. On 8 April 2020, following a request from the resident that she receive a complaint response by 6 April 2020, in order that she could discuss it with her solicitors, the landlord issued its stage 2 response to the complaint.

28. In its stage two response dated 8 April 2020 the landlord:

  1. Acknowledged that the lift had broken down a number of times and although the repairs were delayed on some occasions the landlord’s contractors had attended the property on each occasion. The landlord apologised for the delays in carrying out repairs that had been caused by rearranged appointments and parts not being available. The landlord said that it had fed back to its contractors to ensure “the standard of service we offer our customers is constantly reviewed and improved to the benefit of all.”.
  2. Noted that the resident had said that there were three occasions on which the water pressure at the property had been lost. On one of these occasions the resident had been unable to use the shower and the landlord apologised for this. The landlord said that there had been a fault with the water pump which resulted in low water pressure and that a text message had been sent to all residents informing them of the fault and explaining that one water pump was still working. The landlord understood that the resident maintained that she had been without water for up to 36 hours, for which it apologised and offered compensation for time and trouble (see paragraph 28(j) below). The landlord also reassured the resident that it had raised the issue with its contractor to “ensure they do their best to restore the pressure as soon as possible should this occur again”.
  3. Explained that the defects period had ended in January 2019 and it was unable to extend it. The developer had inspected the property at the end of the defects period, and it confirmed that all works had been completed and it had received no further contact from the resident regarding any problems. However, in order to resolve any outstanding works, the landlord had inspected the property in December 2019.The landlord then referred the issues concerning the kitchen counter tops and sink back to the developer to repair. The landlord was aware that there were significant delays as the kitchen contractor had not responded to the landlord or the developer, for which the landlord apologised. The contractors had arranged to carry out the works on 2 April 2020, however this appointment was postponed because of the Covid 19 pandemic restrictions. The landlord assured the resident that the contractor would be in contact as soon as it was able, and the landlord would continue to monitor the situation.
  4. Explained that every resident had one allocated parking space which the landlord owned. The lease set out the landlord’s right to reallocate the parking space allocated to the property.
  5. Explained that there was no provision for visitors’ parking at the time of the development. The landlord said that having listened to residents’ concerns in December 2019 it had agreed to offer some visitors parking which was on a first come first served basis. The landlord said that it was currently working with the newly formed residents association concerning how the correct use of the visitors spaces could be managed.
  6. Explained whilst there was no disabled parking provision, but those displaying a blue badge could park outside of a marked bay.
  7. Acknowledged that in the sales brochure for the property it had said that there would be a 24 hour concierge service. However, the concierge service provided operated between 11 am and 7 pm. The landlord referred to a discussion at a residents’ meeting in July 2018 and a follow up letter that had been sent to all residents in November 2018 in which the landlord had apologised for any confusion caused and said “in the original sales brochure in relation to the 24 hour concierge service on offer .. there is no intention of offering this level of service. Please refer to the disclaimer outlined on page 56 of the sales brochure.”
  8. Confirmed that the cleaners had not been able to access windows on the resident’s property. The landlord acknowledged that the window cleaning had not been provided to the property and applied a refund on her service charge account for the amount charged for cleaning the windows.
  9. Acknowledged that the resident had informed the landlord during a telephone conversation that she was unhappy with the conduct of its customer service staff (see paragraph 20 above). The landlord said it was concerned to hear that the service she had received had not met her expectations and it apologised for any inconvenience caused. The landlord’s management team had raised the concerns with its customer services staff to “ensure they are providing helpful assistance with issues raised to prevent a repeat occurrence.”
  10. Apologised for the distress and inconvenience caused to the resident by the delays taken to repair the lift, water pressure and to arrange for the developer to carry out the defect repairs and awarded her £100 for her time and trouble.

29. On 21 April 2020 the resident sent an email to the landlord saying that she felt the stage two response had been inadequate and asking to escalate the complaint. The landlord replied the same day and explained that the stage two response dated 8 April 2020 had been its final response and had set out details of how the resident could refer the complaint to this Service.

30. The resident then raised concerns about the amount of service charge refund concerning the window cleaning charges and requested an update on when the outstanding works the kitchen would be carried out. The resident also expressed dissatisfaction that, despite asking for the stage two response to be sent by 6 April 2020 it was sent on 8 April 2020.

31. On 1 June 2020 the landlord issued a revised stage 2 complaint response which included an award of £20 compensation for poor complaints handling.

32. The developer’s contractors carried out the works to the kitchen at the property on 10 June 2020.

33. The landlord’s revised stage two response dated 1 June 2020 was its final response to the complaint, confirming that the complaint had exhausted its complaints process.

Assessment and findings

Complaint about the lift and water pressure

34. In responding to the complaint about the landlord’s response to the resident’s reports about repairs required to the lift and problems with the water pressure at the property the landlord:

  1. Acknowledged that there had been a number of times that the lift had broken down and apologised for the delays in completing the repairs.
  2. Fed back to its contractor concerns about delays to repairing the lift to ensure the standard of service was reviewed and improved.
  3. Apologised that the resident had been without water for up to 36 hours.
  4. Reassured the resident that it had raised the issue with its contractor to ensure that it did its best to restore the pressure as soon as possible should the problem occur again.
  5. Offered the resident compensation of £100 for her time and trouble (this amount also included compensation for the delay in completing the outstanding defects).

35. When there are failings by a landlord, as is the case here, the Ombudsman considers whether the redress offered by the landlord (acknowledgment of failings, apologies, feeding back to contractors and compensation) 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 in line with the Ombudsman’s Dispute Resolution Principles; be fair, put things right and learn from outcomes.

36. In this case , the landlord acted fairly by acknowledging its failings and apologising to the resident.

37. The landlord also demonstrated that it had learnt from outcomes by feeding back to its contractors to ensure similar failings didn’t happen again.

38. The compensation offered by the landlord was within the range set out in the landlord’s compensation policy for time and trouble payments when there had been some delay and the resident had chased the landlord a number of times. The amount was also within the range set out in the Ombudsman’s guidance on remedies for instances of service failure resulting in some impact on the complainant.  Examples could include failure to meet service standards for actions and responses but where the failure had no significant impact. The impact experienced by the complainant could include time and trouble and delays in getting matters resolved.

39. Therefore, for the reasons set out in paragraphs 36 to 38 the Ombudsman considers that the landlord’s response was proportionate, and that the landlord has made redress to the resident which, in the Ombudsman’s opinion, resolves this aspect of the complaint satisfactorily.

Complaint about the defects at the property

40. A leaseholder purchases a lease subject to the condition of the property at the time. It is the leaseholder’s responsibility to inspect the property and its condition to their own satisfaction. This is in accordance with the principle of ‘caveat lessee’ (let the leaseholder beware). Unless there is an express provision in the lease agreement, the landlord is not under any obligation to disclose, or take any future responsibility for latent or inherent defects that may be discovered subsequently.

41. However, contracts for new buildings have defect liability periods within which the landlord can ask developers to repair any inherent defects that are discovered. The defects liability period of the property expired in January 2019 and the developer caried out a final inspection of the property on 16 January 2019. The resident did not raise any concerns with the developer after the end of the defects period.

42. The landlord inspected the property in December 2019 and, having decided that the problem with the sink was a latent defect and that the developer’s remedial work to the kitchen countertop needed repair, raised these issues with the landlord. The landlord continued to chase the developer and the contractor to carry out the works.

43. In its complaint response the landlord apologised for the delays in the works to the kitchen being carried out. The £100 compensation offered by the landlord included compensation for the time and trouble experienced by the resident in relation to the delays in arranging the appointment for the developer’s contractors to carry out the works in the kitchen.

44. The landlord’s actions set out in the previous two paragraphs were appropriate as it was under no obligation under the provisions of the lease to carry out repair work to any latent defects itself. The landlord acted reasonably and demonstrated a resolution focused approach by contacting the developer to carry out the works, continuing to chase the developer and its contractor, apologising for the delays and offering compensation.

45. There is therefore no evidence of any service failure by the landlord in response to this aspect of the complaint.

Complaint about the parking at the property

46. In its response to this aspect of the complaint the landlord explained that every resident was allocated one parking space which the landlord owned. This was an appropriate response as the lease clearly shows that the demised premised outlined red on the Lease Plan do not include the parking space allocated to the resident by the landlord.

47. The landlord also explained that the at the time of the development there was no provision for visitors parking or disabled parking. The resident maintains that she was told during the sales process that there would be visitors and disabled parking provision. The Ombudsman has not seen any evidence of what the resident was told by the landlord concerning the parking provision during the sales process. However, it is noted that the landlord had agreed to offer some visitors parking and was working with the residents’ association concerning managing the visitors’ spaces. The landlord also explained that whilst there was no disabled parking provision, those displaying a blue badge could park outside of a marked bay.

48. Accordingly, there is no evidence of service failure by the landlord in relation to this aspect of the complaint.

Complaint about the lack of a 24 hour concierge at the property

49. The landlord has acknowledged that its sales brochure said that there would be a 24 hour concierge service at the property. Following a discussion at the residents’ meeting in July 2018 the landlord sent a letter to all residents in November 2018 in which it apologised for any confusion caused. The landlord also referred to a disclaimer in the sales brochure.

50. In relation to the information provided by the landlord during the sales process, the Ombudsman’s role is to establish whether this information was accurate and the steps taken by the landlord to inform the resident of any changes so that she could make an informed choice in regard to proceeding with the sale. Claims for breach of contract and/or misrepresentation in relation to property sales can arise under The Misrepresentation Act 1967. The Ombudsman is unable to make a ruling under this Act as only the courts are able to do so and the resident would need to seek legal advice should she wish to pursue such a claim further.

51. There is no evidence the landlord informed the resident prior to the property purchase completing that the services it intended to provide had changed, despite it informing the residents who had already moved to the block that there would be no 24 hour concierge. Given this, it is understandable that the resident expected the property to have the advertised 24 hour concierge features and was aggrieved when she discovered after moving in that it did not.

52.  It is acknowledged that services relating to new builds may be subject to changes. However, it is reasonable to expect the landlord to inform a prospective buyer that the services to be provided had changed as soon as it became aware of this to enable the prospective buyer to make an informed choice in relation to how they wish to proceed i.e. whether to continue with the purchase or not.

53. In its response to the complaint the landlord has relied on a disclaimer in the sales brochure. In the Ombudsman’s opinion the landlord’s reliance on the disclaimer was not reasonable as it could have taken steps to inform the resident of the changes in the proposed services but failed to do so. The landlord failed to acknowledge this oversight and the impact this had on the resident.

Complaint about problems with the window cleaning at the property

54. In its complaint responses the landlord acknowledged that the windows had not been cleaned and applied a refund on her service charge account for the amount of the service charge that related to the cleaning of the windows in the property.

55. The Ombudsman considers that the landlord’s response (acknowledgment that the windows had not been cleaned and a refund of the service charge payment relating to the cleaning of the windows at the property) to have been proportionate, and that the landlord has made redress to the resident which, in the Ombudsman’s opinion, resolves this aspect of the complaint satisfactorily.

Complaint about the conduct of the landlord’s staff

56. During her telephone conversation with the landlord on 30 August 2019 the resident had said that she had found the landlord’s customer services staff unhelpful when she had called to report repairs. In response to this complaint the landlord expressed concern that the service did not meet the resident’s expectations, apologised for any inconvenience caused, confirmed that its management team had raised the matter with the customer services staff to “ensure they are providing helpful assistance with issues to prevent a repeat occurrence.”

57. The landlord acted fairly and put things right by apologising to the resident. It also demonstrated that it had learnt from outcomes by confirming that the management team had raised the matter with the customer services staff.

58. Therefore, the Ombudsman considers that the landlord’s response to this aspect of the complaint to have been proportionate, and that the landlord has made redress to the resident which, in the Ombudsman’s opinion, resolves this aspect of the complaint satisfactorily.

Complaints handling

59. The complaint was escalated to stage two of the landlord’s pilot complaint process on 3 October 2019 as the landlord had not provided a stage one response within 28 days. The stage two final response was issued on 8 April 2020, 224 days after the resident made the complaint and 168 days after the 28 days response times for stage one and stage two set out it the pilot complaints process.

60. Whilst the landlord kept the resident informed about its handling of the complaint it was not appropriate to keep the complaint open indefinitely awaiting completion of the repair work to the property.

 

Determination (decision)

61. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of the complaints about:

  1. the landlord’s response to the resident’s concerns about the lack of a 24 hour concierge
  2. the landlord’s complaints handling.

62. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the complaints about the landlord’s response to the resident’s reports of defects at the property and concerns about the parking,

63. In accordance with paragraph 55 (b) of the Housing Ombudsman Scheme, the Ombudsman considers that the landlord has made redress to the resident which, in the Ombudsman’s opinion, resolves the following complaints satisfactorily: the complaints about the landlord’s response to the resident’s:

  1. reports of problems with the lift and water pressure at the property
  2. reports of problems with the window cleaning at the property
  3. reports of problems with the conduct of the landlord’s staff.

Reasons

64. The landlord acted unreasonably in not informing the resident prior to purchasing the property that, despite the information set out in its sales brochure, there would be no 24 hour concierge at the property. The landlord also acted inappropriately in delaying in issuing a stage two response to the complaint.

65. The landlord was under no obligation under the provisions of the lease to carry out repair work to any latent defects itself. The landlord acted reasonably by contacting the developer to carry out the works. The landlord acted appropriately, and in accordance with the provisions of the lease in allocating the resident’s parking space. The landlord acted reasonably in providing visitors’ and disabled parking.

66. The measures taken by the landlord to redress what went wrong in relation to the resident’s reports of problems with the lift, water pressure, window cleaning and conduct of the landlord’s staff were proportionate to the impact that its failures had on the resident.

Orders

67. The landlord is ordered within four weeks of the date of the determination to pay the resident a total of £250 compensation, made up as follows:

  1. £150 for the distress and inconvenience incurred by the resident as a result of the landlord’s failure to inform her prior to the purchase of the property that it would not be providing the 24 hour concierge set out in the sales brochure
  2. £100 for the distress and inconvenience incurred by the resident as a result of the landlord’s delay in issuing a response to the resident’s formal complaint.

Recommendation

68. Within four weeks of the date of the determination it is recommended that the landlord pay the resident the £120 previously offered if it has not already done so.