Clarion Housing Association Limited (202311726)

REPORT

COMPLAINT 202311726

Clarion Housing Association Limited

29 February 2024

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 the landlord’s:
1. Handling of communal cleaning.
2. Response to the resident’s concerns about communal lift maintenance.
3. Response to the resident’s concerns about the maintenance of the communal intercom system and CCTV.
4. Decision to not provide the resident with the construction information for his building.
The Ombudsman has also investigated the landlord’s handling of the associated complaint.

Background

The resident is the leaseholder of the property, which is a 2-bedroomed flat within a purpose-built block. The landlord is the freeholder of the property and employs a managing agent (the agent) to handle repairs and administration for residents of the block.
The resident raised a complaint with the landlord on 19 August 2022. The landlord did not respond to this, and he progressed his complaint with the agent. It provided him with a final response on 17 October 2022. The resident was dissatisfied with this response and the agent passed the complaint to the landlord to consider.
On 14 November 2022, the agent relayed the resident’s complaint to the landlord, which issued its stage 1 response to him on 2 February 2023. This response included an offer of £100 compensation for its delay in issuing the complaint response.
The resident emailed the landlord on 12 February 2023 to set out that he remained dissatisfied with:
1. The standard of communal cleaning. He questioned whether a promised deep clean had been carried out as he had not been provided with evidence of this.
2. Not being able to provide a video of the ongoing fault with the door entry system, and the faulty CCTV. He said that as a security engineer himself, he disagreed with the landlord’s explanation of the reason for the fault. This explanation was that the door entry and CCTV systems were linked and affected by an ongoing defect.
3. The landlord’s refusal to provide lift maintenance documents. He asserted that it was its duty to provide these in line with the Fire Safety (England) Regulations 2022. He added that the lift had been unusable since the new year.
4. The landlord’s refusal to provide him with the health and safety file which was produced when the building was constructed. He said he wanted this to enable him to identify where cables and pipes were in his property.
The landlord issued its final response to the resident on 4 April 2023. In this, it:
1. Asserted that the deep clean of the building was completed on 11 January 2023. It explained that the design of the building made it difficult to keep the communal areas clean. To address this, the landlord said it was bringing its cleaning service in-house and would now be carrying out weekly cleaning.
2. Explained that the CCTV and door entry systems ran off the same cabling. This cabling was longer than it should be, and this had now been raised with the developer as a latent defect.
3. Confirmed that it had carried out major works on the lift, which was reinstated on 23 February 2023. It explained that the lift was not covered by the Fire Safety (England) Regulations 2022 and therefore it was not obliged to carry out monthly checks and provide this information to residents. The landlord offered £50 for the resident’s inconvenience while the lift was not working.
4. Provided installation guidance on how pipes and cables should be installed in his property. It suggested he use appropriate tools and contractors to determine where these installations lay. The landlord offered him £150 compensation for his time and trouble in chasing this information.
5. Offered the resident £50 compensation for providing its final response to him late.
The resident informed the Ombudsman that he remained dissatisfied with the landlord’s response as:
1. He was still unhappy with the standard of communal cleaning.
2. He was unhappy with the landlord’s handling of the repairs to the CCTV and door entry system, which he wanted to submit evidence of.
3. He was unhappy that the landlord refused to give him access to lift maintenance reports and the health and safety file for the building.

Scope of investigation

The resident told the Ombudsman that he remained dissatisfied with the landlord’s response to his concerns about the smoke vents within the building and wanted it to share records of inspections of the smoke vents. Although he raised this issue in his prior complaints, in his email to the landlord on 12 February 2023 to escalate his complaint, he did not specify that he considered this unresolved. Consequently, the landlord did not respond about the smoke vents in its final response to the resident on 4 April 2023.
Paragraph 42(a) of the Scheme states that the Ombudsman may not consider complaints which are made prior to having exhausted the member landlord’s complaints procedure. This is because a landlord must be provided with an opportunity to respond to a resident’s concerns. In line with this, a determination will not be made on the landlord’s response to the resident’s concerns about the smoke vents within his building. This is because it has not yet had a chance to provide its final response on the matter.
However, a landlord has a duty, in line with the Fire Safety (England) Regulations 2022, to carry out monthly checks on essential fire-fighting equipment. Government guidance on this confirms that smoke control systems are essential fire-fighting equipment. This guidance goes on to say that “monthly checks will be recorded in a transparent way that is accessible to residents.” The landlord will therefore be recommended, below, to provide the records of the monthly checks on the smoke vents to the resident.

Assessment and findings

The landlord’s handling of communal cleaning

The lease agreement between the resident and the landlord confirms that it is responsible for the cleaning and maintenance of the communal parts of the property. A landlord would be expected to have records of a regular schedule of cleaning and carry out regular inspections to ensure that cleaning was of a good standard.
The landlord informed the Ombudsman that the managing agent took over the management of the building and surrounding estate on 1 April 2022. There was no evidence of either party inspecting the communal cleaning until the agent’s annual estate inspection on 16 November 2022. This was an unreasonable period of over 7 months before it first noted that the cleaning was inadequate.
The agent’s inspection identified that a deep clean of the building was required and the landlord’s records recorded this as completed by 25 January 2023. This was inconsistent with the landlord’s quoted date of 11 January 2023 in its complaint responses. Nevertheless, there was not a significant interval between these dates, and this was not necessarily a failure in the landlord’s response.
When the resident told the landlord that he remained dissatisfied with the standard of cleaning, it informed him in its final response that it would increase the frequency of cleaning visits. This was a reasonable response from the landlord in response to his concerns. The landlord has provided evidence to the Ombudsman to show that the landlord’s cleaning visits since 3 April 2023 increased to weekly intervals. This showed that it took the resident’s concerns seriously and it improved its service appropriately.
While the agent’s (and by extension, the landlord’s) failure to inspect the estate for several months amounted to maladministration, this is mitigated by the landlord taking reasonable steps to improve the standard of cleaning. Therefore, the Ombudsman finds that service failure has occurred.
Accordingly, the landlord should pay the resident £100 compensation to recognise that he spent time and trouble in raising his complaint and pursuing his concerns with the agent and the landlord. In addition, it should pay him £100 compensation to recognise it failed to provide an adequate service.

The landlord’s response to the resident’s concerns about lift maintenance

The Fire Safety (England) Regulations 2022, as mentioned above, set out that a landlord should make information about monthly checks of essential firefighting equipment accessible to residents. The resident quoted these regulations in his final stage escalation request to the landlord, saying that this obliged the landlord to provide information about the lifts in his building.
The Government’s guidance on the Fire Safety (England) Regulations 2022, confirms that “Responsible persons are not required to report faults in passenger lifts which are not for use by firefighters, do not have a switch control to allow firefighters to take control or cannot be used as evacuation lifts to the fire and rescue service.” The Ombudsman has viewed the landlord’s Lifting Operations and Lifting Equipment Regulations 1998 (LOLER) inspection report, which described the lift as a passenger lift. This report also confirmed that a previous inspection had been carried out on 3 March 2023.
The landlord’s final stage response to the resident, on 4 April 2023, confirmed the lift was not a firefighting lift nor an evacuation lift. This was supported by the LOLER report; however, it is outside the remit of the Ombudsman to verify this. On the basis that the lift is not an evacuation nor firefighting lift, the landlord was reasonable in saying that monthly checks were not required.
The landlord’s repairs log showed that there were regular attendances from its lift contractor. There was no obligation on a landlord to share reports from this work. However, it may have been useful for it to use its discretion to share the information. This would have addressed the substance of the resident’s complaint, which were his concerns about the reliability of the lift.
The resident said, when escalating his complaint on 12 February 2023, that the lift “had not been working from new year”. This was supported by the landlord’s repair log which showed that it raised a lift repair on 3 January 2023. The landlord responded reasonably in explaining that it had carried out major works to refurbish the lift which it completed on 23 February 2023. The Ombudsman would normally expect a routine repair to be completed within 28 days, however, we have seen evidence that the lift drive required refurbishment by a specialist. Therefore, the time taken to repair the lift was reasonable given that specialist work was required.
It was also reasonable for the landlord to offer the resident compensation of £50 to recognise the inconvenience. There was also evidence of it separately offering £50 compensation to residents of the building for the inconvenience of the lift repair. The total offer of £100 compensation was a reasonable amount in the circumstances which proportionately recognised the inconvenience he experienced due to the loss of use of the lift.
The landlord therefore made a reasonable offer of redress for the lift fault and appropriately explained that monthly checks were not required for the lift. It will be recommended to offer maintenance reports to the resident to engage with his concerns.

The landlord’s response to the resident’s concerns about the maintenance of the communal door entry system and CCTV

The landlord’s repairs and maintenance policy confirms that any repair which presents an immediate danger to people or the property should be treated as an emergency repair and these should be attended and made safe within 24 hours. When repairs are not immediate hazards, these should be completed within 28 calendar days as routine repairs. These timeframes also apply to communal repairs.
The Ombudsman accepts that, when repairs are complex and may require deeper investigation, standard timeframes may not apply. In such cases, it is reasonable for a landlord to exceed its normal timeframes. However, the landlord would be expected to keep residents informed about the progress of the work and offer completion timeframes where possible.
There was no record of the resident reporting a fault with the CCTV, however, there should be no need for a resident to report communal repairs. As the landlord is responsible for the communal areas, it should have procedures in place to identify these.
There was no evidence of inspections by the landlord which identified the faults with the CCTV or the door entry system prior to the resident reporting the fault with the door entry system on 22 August 2022. In line with its policy, the landlord should have completed these repairs within 28 days of becoming aware of them.
The landlord’s repairs log showed that it attended the door entry system on 5 September 2022, and then again on 19 October, when it attended to investigate all the door entry systems. A report from the landlord’s contractor on 13 October 2022 showed that it was in the process of investigating the cause of the door entry system faults. This report said that further testing was required to identify the cause of the problem.
The agent’s response at stage 2 of its procedure, on 17 October 2022, stated that it was aware of historical issues with the CCTV and intercom systems. It also said that it would update all residents once it had “identified a definitive way forward for these interlinked systems”. This was a reasonable response based on the information it had at the time. However, it was unreasonable that there was subsequently no evidence of the agent or the landlord providing any updates to the resident.
The landlord’s response to the resident at stage 1 of its procedure, on 2 February 2023, provided updates on work it had undertaken on 10 November 2022 and then at the end of January 2023. It did not explain why there was a period of approximately 10 weeks where there was no evidence of progress in repairing the CCTV and intercom systems. Nor did the landlord acknowledge that it had failed to keep the resident updated on the progress of the works; this was unreasonable.
This lack of information and lack of progress undoubtedly led to the resident escalating his complaint on 12 February 2023. In this request, he expressed his frustration with not being able to submit video evidence to aid the diagnosis of the intercom fault. The resident also questioned the landlord’s explanation of the systems sharing one underlying fault.
A landlord would be expected to satisfy itself, through its appropriately qualified staff and contractors, of the cause of any faults within its property. However, this should not prevent it from accepting any evidence from residents to support it in resolving these faults. It would have been reasonable for the landlord to accept the resident’s video evidence, and his professional opinions, as part of a repair report. By not doing so, the landlord acted dismissively, and it missed an opportunity to engage positively with the resident.
If the landlord had provided regular updates, and explained the situation more clearly, to the resident, this may have prevented his complaint escalation. In any event, the lack of information from the landlord evidently led to frustration, distress, and inconvenience for him.
In its final response to the resident, the landlord explained that a latent defect was responsible for the difficulties in repairing the intercom and connected CCTV. It was, however, unreasonable that it again did not acknowledge its poor communication with the resident during the time it was investigating the repair issue.
In summary, while the landlord provided reasonable information to the resident in its complaint responses on the steps it was taking to resolve the faults, it did not communicate effectively with him overall. It did not provide regular updates to help manage his expectations and missed opportunities to engage with him. This amounted to maladministration, and led to distress and inconvenience for the resident while he awaited the outcome of the repair.
The landlord should pay the resident £250 compensation to recognise the detriment experienced by the resident caused by the landlord’s poor communication, over the 8 months between 19 August 2022 and 4 April 2023. This award considers that the resident was required to expend time and trouble in pursuing his complaint over an extended period to prompt answers to his concerns. He also did not receive the service he should have received for his payment of the service charge over this period.

The landlord’s decision not to provide the resident with construction information

The resident’s complaint on 14 November 2022, and subsequent escalation request on 12 February 2023, confirmed that he wanted access to the health and safety file which was completed during the construction of the building. This health and safety file is a requirement under the Construction (Design and Management) Regulations 2015. He said this was so he could confirm the location of pipes and cables if he needed to carry out work in his property. The landlord would be expected to answer reasonable requests for information from a leaseholder about their property.
In its stage 1 response, the landlord said that it could not confirm that the health and safety document, which contained technical information about the building, would be accurate. It explained that the location of pipes and cables could change during the construction process. The landlord also said that the document would include technical information relating to other properties and therefore it could not provide this.
The landlord’s internal correspondence on 9 March 2023 stated that it had not been involved in the development of the building. It would follow then, that it had not compiled the health and safety file itself. The Ombudsman would expect a landlord to satisfy itself of the accuracy of any information it held about a property it managed. It was evident that the landlord was not confident that the information held in the health and safety file was accurate and therefore, it was reasonable for it to decline to share this document.
The landlord’s final response to the resident, on 4 April 2023, provided installation guidance from the National House-Building Council (NHBC) on where the location of pipes and cables within his walls were likely to be located. It also suggested that he use appropriate tools and contractors to satisfy himself of the location of these installations before starting any work. Since the substance of the resident’s concerns was that he wanted to know where the pipes and cables were within his property, this was a reasonable response from the landlord. This showed that it had engaged with the resident’s concerns and attempted to provide advice to address these.
The landlord offered the resident £150 compensation in its final response to recognise the inconvenience and delay in pursuing the agent and the landlord for the health and safety file. While there was no obligation on the landlord to provide this, it could have provided a definitive answer to his concerns sooner. There was evidence from at least 27 October 2022 that showed that he had been seeking an answer to this request. The Ombudsman considers that the £150 compensation was reasonable to recognise the inconvenience he experienced in chasing this information.

The landlord’s handling of the resident’s complaint

The landlord’s interim complaints policy provides for a 2-stage internal complaints procedure. At stage 1 of this, the landlord should provide its response to the resident within 20 working days of logging the complaint. At the final stage it should log the resident’s escalation request within 10 working days and respond to them within another 40 working days. The policy is silent on any responsibility for a managing agent to respond to residents’ complaints.
As mentioned above, the resident remained dissatisfied with the landlord’s response to his concerns about the smoke vents in his building. He did not specifically raise this in his complaint escalation email. Despite this, a landlord would be expected to clarify with the resident the details of their complaint. This is specified in the Ombudsman’s Complaint Handling Code (the Code), which sets out best practice in complaint handling. There was no evidence the landlord clarified the details of the complaint with the resident when it received his escalation request. It will therefore be recommended that it does so in future, in accordance with the Code.
In its communication with the Ombudsman, the landlord said that the resident made a complaint directly to it on 19 August 2022, but it did not acknowledge this. He raised his complaint to the agent in September 2022 and the agent responded to this at the first and final stages through its own complaint procedure. The agent issued its final response to the resident on 17 October 2022. The agent and the landlord then discussed whether the complaint should then be referred to the Property Ombudsman or be considered through the landlord’s complaints procedure.
The landlord then progressed the complaint through both stages of its own procedure. It issued its stage 1 complaint response 56 working days after receiving the complaint from its agent. The landlord issued its final response to the resident on 4 April 2023. This was approximately 7 and a half months after the resident first raised his complaint on 19 August 2022. This was an excessively long period and was a failure by the landlord to handle the complaint in a timely manner.
In the first instance, the landlord should have acknowledged the complaint that the resident made on 19 August 2022 and decided on whether it or its agent should respond. If the resident then escalated his complaint, the landlord, or its agent, should have provided a final response. It should then have provided him with his referral rights to the Housing Ombudsman Service if he remained dissatisfied. The Housing Ombudsman Service considers complaints concerning member landlords where there is a landlord-tenant relationship, and the complaint is about the management of housing services.
The landlord, as mentioned above, failed to log and acknowledge the initial complaint. Furthermore, it failed to recognise that, once the resident’s complaint had been considered at both stages of the agent’s procedure, that it was unfair to consider the complaint again. The agent was acting on behalf of the landlord in discharging the landlord’s obligations and are considered to be the same entity.
The Code sets out that a landlord’s complaints procedure should not have more than 3 steps without good reason. In this case, the resident effectively went through a 4-stage complaints procedure, causing undue delay to the resolution of his complaint. This also delayed his access to the Ombudsman by taking excess time to exhaust the complaints procedure. This was not compatible with the spirit of the Code.
The new statutory Complaint Handling Code has been published, and landlords will be required to adhere to this from 1 April 2024. The new Code explicitly states that complaints procedures should be made up of only 2 stages. Also, when a complaint has been answered at either stage by a party acting on the landlord’s behalf, this response should form part of the 2-stage complaints procedure.
The landlord offered £100 compensation for responding late to the complaint at stage 1. At the final stage it offered £50 for its delayed final response. This offer was not proportionate to the excessive delay, and time and trouble, experienced by the resident in pursuing his complaint. Had the landlord considered the complaint in accordance with its own complaints policy, it should have exhausted its complaints procedure within 3 months, instead of 7 and a half months. The £150 compensation offered was not enough to recognise the extra 4 and half month’s delay in dealing with the complaint. For the landlord’s failures in the handling of the complaint, it should pay £200 compensation to the resident in addition to the £150 it previously offered. This is a total of £350 compensation for its failures in the handling of the resident’s complaint.

Determination

In accordance with paragraph 52 of the Scheme, there was:
1. Service failure by the landlord in its handling of communal cleaning.
2. Maladministration by the landlord in its response to the resident’s concerns about the maintenance of the communal door entry system and CCTV.
3. Maladministration by the landlord in its handling of the complaint.
In accordance with paragraph 53(b) of the Scheme, the landlord offered redress to the resident which, in the Ombudsman’s opinion, resolves the complaints satisfactorily about:
1. Its response to the resident’s concerns about lift maintenance.
2. Its decision not to provide the resident with construction information about his building.

Orders and recommendations

Orders

Within 4 weeks, the landlord is ordered to:
1. Pay the resident compensation totalling £800. This is made up of:
  1. £200 for its failures in the handling of communal cleaning
  2. £250 for its failures in its response to the resident’s concerns about the communal door entry and CCTV systems.
  3. £350 for its failures in the handling of the complaint. This is inclusive of the £150 it already offered the resident in its stage 1 and final complaint responses.
2. Write to the resident to provide an update on its progress in resolving the repairs to the communal door entry and CCTV systems. This should include details of its efforts to pursue the matter with the developer and an expected timeframe for completion.
The landlord should provide evidence to the Ombudsman within 4 weeks that it has complied with the above orders.

Recommendations

The landlord is recommended to:
1. Pay the resident £250 compensation made up of:
  1. £50 it offered the resident in its final response for the lift repair.
  2. £50 it separately offered residents of the building for the lift repair.
  3. £150 it offered the resident for its response to his request for construction information.
2. Provide the resident with inspection reports on the smoke vents in the building, as part of its obligation under the Fire Safety (England) Regulations 2022.
3. Consider providing the resident with inspection reports from its maintenance of the lifts.