Camden Council (202218901)

REPORT

COMPLAINT 202218901

Camden Council

30 April 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 resident’s complaint is about:
1. The landlord instructed solicitors in relation to recovering service charges.
2. The landlord’s response to the resident’s reports about staff conduct.
3. The landlord’s complaint handling.

Background and summary of events

The resident is the leaseholder of the landlord. The landlord granted a lease for 125 years to the resident on 30 March 2015. The landlord carried out major works in relation to which it issued service charge demands that the resident disputed. The complaint is about how the landlord handled recovering those charges.

Legal and policy framework

The Commonhold and Leasehold Reform Act 2002 defines administrative charges as an amount payable by a tenant as part of or in addition to rent, which is payable directly or indirectly for:
1. Costs arising from non-payment of a sum due to the landlord.
2. Costs arising in connection with a breach (or alleged breach) of the lease.
A determination as to a resident’s liability to pay an administration charge can be sought from the First Tier Tribunal Property Chamber (Residential Property).(“FTT”).
The service charge invoices set out its procedure for taking legal action.
The landlord operated a two-stage complaints procedure. It was to acknowledge complaints within 2 days and respond within 10 working days at Stage 1 and 25 working days at Stage 2 of the process.

Scope of this investigation

The resident has requested that an invoice to him for the landlord’s legal costs in relation to the recovery of service charges from the resident be cancelled. It is not within this Service’s jurisdiction to determine whether the landlord was entitled to pass on those costs, as determining liability requires a binding decision for the First Tier Tribunal Property Chamber (Residential Property). The resident did not dispute the principle in any event. However, the Ombudsman has considered whether it was fair of the landlord to pass on the charges, in the circumstances of the case.

Chronology

In October 2021, the resident raised a dispute about charges for major works. On 20 October 2021, the landlord put the charges on hold. On 11 November 2021, the landlord set out its explanation of the charges. Its letter ended stating that the charges were payable under the terms of the lease.
On 12 February 2022, the resident wrote that he was still disputing the charges. The landlord wrote on 23 February 2022 with a further explanation of the charges.
On 2 March 2022, the landlord’s solicitors wrote to the resident, referring to the landlord’s email of 23 February 2022 as follows:
1. The landlord had not heard further regarding the payment of £1,242.62 (a 2020 invoice).
2. It gave the resident 7 days to make full payment.
3. If payment was not received, it was the landlord’s intention to proceed with legal action to recover the sums due, which would incur the resident in additional legal costs that would be recovered under the terms of the lease.
On 10 March 2022, the resident responded to the landlord’s email of 23 February 2022 with further points. He also referred to the solicitors’ letter of 2 March 2022. He described the letter as “ruthless and unreasonable hounding from a public body”. He stated that if he received a further letter while the invoices were in dispute, he would make a formal complaint.
According to the complaint correspondence, on 9 March 2022, the landlord instructed its solicitors to pursue the legal action. On 11 March 2022, the solicitors wrote to the resident with a “pre action protocol” letter demanding payment of outstanding invoices for works. The letter will be referred to in this as the “PAP” letter.
On 22 March 2022, the landlord replied as follows:
1. It explained further the works the charges related to.
2. It explained its process of “chasing” service charge payments. It said it had sent “several “reminders before instructing solicitors. It was initiated by his “leasehold officer”. The invoices were “legitimate” and the resident was “contracted to pay”. The solicitors would therefore proceed to recover the debt in full.
On 5 April 2023, the resident wrote as follows:
1. He disputed that the landlord had provided substantive responses.
2. The email of 22 March 2022 was sent after the solicitor’s letter dated 11 March 2022.
3. He had decided to pay the charges as had other leaseholders, despite “expressing reservations”.
4. The resident wished to raise a “personal complaint” against the harassment with regards to the landlord’s solicitor’s letter. He asked for the name of the person who instructed the solicitors.
The leasehold officer wrote on 11 April 2022 as follows:
1. There was “no single person involved in referring an overdue invoice to its solicitors”, it was “a formal (landlord) procedure”.
2. It set out the landlord’s debt collection procedure.
He wrote again on 11 April 2022 as follows:
1. He did not accept the landlord’s explanation (of 22 March 2022).
2. The “fourth step” in the procedure should not have been “triggered in the first place” as the invoices had been in dispute since May 2021 and he did not receive a “proper” response until November 2021.
3. His complaint was about the landlord’s solicitor’s letter of 11 March 2022 which came after his email of 10 March 2022, to which the landlord “only” replied on 22 March 2022.
4. He had stated that he would “not tolerate any further harassment or intimidation from (the landlord’s) solicitors”. This was “ignored”.
5. He asked the identity of the individual who gave the instruction.
6. “Harassment and intimidation” were “not acceptable”.
7. He required a “formal investigation” and “accountability” on this matter.
According to the corresponded, the landlord issued an invoice for £110, which consisted of £10 for the warning letter and £100 for the PAP letter.
The landlord replied on 29 April 2022 that there was no further information it could give about the works. The resident replied on the same day. He queried why the solicitors had written to him on 11 March 2022 before the landlord had responded to him on 22 March 2022. He was still disputing the charges.
Again on the same day, the landlord replied that there was no single person involved in referring an overdue invoice to its solicitors, it was a “formal procedure”. It set out its procedure for recovering charges. The name that the resident was “probably seeking” was of the head of leasehold services.
On 6 May 2022, the resident wrote again as follows:
1. He asked whether it was the head of leasehold services who authorised the solicitor to “harass” him by the letter dated 11 March 2022 despite “his explicit warning” of 10 March 2022 that he would not tolerate further harassment, when the invoice in question was still in dispute. The landlord had not responded to his email of 10 March 2022 until 22 March 2022.
2. He had received an invoice dated 26 April 2022. The invoice in question was described as “service charge court costs”. There were no court costs. He asked the landlord to cancel the invoice.
3. He considered the invoice was raised for “punitive and vindictive reasons”.
4. He had decided to pay the service charges as he was “getting nowhere” with challenging them but they remained in dispute.
5. Leaseholder services had not answered his queries.
6. There was a “perceived lack of respect and even arrogance” in the actions of the landlord.
The landlord replied on 13 May 2022 as follows:
1. It was the “patch officer” who instructed the solicitors and he first instructed them to send a final demand letter following its letter reply dated 23 February 2022. The letter advised that if the resident did not make contact within 7 days, then it may start legal proceedings which would incur additional costs.
2. It instructed solicitors on 9 March 2022, as “the 7 days” had elapsed.
3. It was “regrettable” that the resident emailed the day after it had given its instructions.
4. The invoice was an “administration fee” being costs for starting the pre action protocol (PAP).
5. It would not waive it as this was incidental to starting legal proceedings for the debt owed.
6. The final demand letter sent on 2 March 2022 advised that this could happen if there was no response or payment made by 9 March 2022.
7. It appreciated that the timing of the “PAP” letter “was unfortunate”, considering he emailed the day after its instructions.
8. It had not acted unreasonably in recovering the arrears and it had provided adequate notice that legal costs might be incurred.
On 13 May 2022, the resident replied as follows:
1. The confirmation that it was the “patch officer” who instructed solicitors contradicted the previous statement of 29 April 2022 that it was the head of team.
2. He considered that the email of 11 April 2022 constituted “a blatant lie by omission” as he “deliberately (neglected) to state” that it was he who instructed the solicitors.
3. Its solicitors should not have been instructed “on 14 October 2021” as the invoices were still in dispute from May 2021.
4. The invoice was raised on 25 April 2022 “with full knowledge that the invoice in question remained in dispute”. He had “made clear” that the responses of 23 February 2022 and 22 March 2022 were not satisfactory.
5. He had received the solicitor’s letter of 2 March 2022 on 5 March 2022. The letter did not explicitly state on what date the 7 days commenced. He considered that “ultimatums” should start from the date of receipt and implied “working days”. He considered his response of 10 March 2022 was within time.
6. He asked to “register” his formal complaint against the “patch officer”.
7. He considered the email of 15 March 2022 was dismissive and arrogant and did not address his concerns. He appeared to be “extremely trigger-happy and unsympathetic to the concerns of leaseholders”. He appeared to be “the cause of much distress and harassment”.
8. He had instructed solicitors on 14 October 2021 before he had received a formal response on 11 November 2021.
On 18 May 2022, the leasehold officer wrote to the resident that “it had clearly responded to his correspondence queries and provided the requisite answers, as evidenced by the trail of emails, hereunder. The referrals to Solicitors procedure for overdue invoices, has been reiterated, hereunder. Please note that solicitors’ costs fall under court costs and further explained as PAP costs by the email of 13 May 2022”.
On 19 May 2022, the resident wrote that it had made a formal complaint on 13 May 2022 and had not received a response. The landlord had not apologised for making a “false statement“ and causing distress and harassment. The leasehold officer’s language was dismissive, arrogant, and unsympathetic. He had asked him to “cease and desist” till his complaint had been investigated.
On 24 June 2022 the landlord wrote to the resident as follows:
1. This was a final demand for the invoice of 26 April 2022 for £110.
2. Non-payment was a breach of the lease.
3. It would refer the invoice to its solicitors on 8 July 2022 unless it heard from the resident beforehand. He would then incur legal costs.
The landlord replied on 21 July 2022 as follows:
1. It apologised it had not responded regarding his complaint about staff conduct.
2. The landlord had “clearly explained” that he was a day too late to submit an enquiry without incurring the PAP fee. There was “nothing further to add”.
3. The invoice was raised by the debtors team as it was passing on the costs as it had instructed solicitors to commence collection of an unpaid invoice. They had sent a reminder letter. The next step was a PAP letter which incurred a fee. This was “a service” and one he was obliged to pay for.
4. All invoices were due and payable whether they were in dispute or not, however it did place invoices on hold if a leaseholder was querying the invoice. In this case, the invoice was correct and payable.
5. It agreed that the staff member’s email was “blunt” and “did not answer his questions”. He has already been spoken to about this response. It apologised for the tone and content of the email.
6. It partially upheld the complaint. It agreed that there have been occasions where the staff member’s responses and actions could have been improved. Nevertheless, the PAP fee was correct and payable.
On 3 August 2022, the resident wrote as follows:
1. He requested a copy of the landlord’s complaints procedure. There did not appear to be “any coherent steps and timetable” for handling complaints.
2. He asked for guarantees that complaints were taken seriously and that intimidation and harassment was not a policy of the landlord and that such behaviour was not condoned or tolerated.
3. He did not receive a response or acknowledgement of this complaint of 13 May 2022 and wrote again on 19 May 2022 and 14 July 2022.
4. The leaseholder officer, whom he referred to “my abuser”, had sent him another arrogant and dismissive email on 18 May 2022.
5. His “abuser” ignored his “cease and desist” request and sent him a “Final Demand” letter dated 24 June 2022 for an invoice that was in dispute.
6. He had “threatened” to again refer the matter to solicitors if he did not respond by 8 July 2022.
7. On 8 July 2022, he raised a complaint that he had made a complaint on 13 May 2022 and was “repeatedly harassed by (his) abuser”.
8. He received a response within “2 minutes” of the complaint being allocated.
9. The response made “sweeping and presumptive statements, erroneous assumptions and made no attempt to clarify (his) complaint before making a decision”. He found partially upholding the complaint “a patronising gesture” following an “almost complete and “wholesale rejection” of what the landlord had “assumed to be his complaint”. He was not happy with the leasehold officer being “spoken to” or the apology for the “tone and content” of his emails.
10. His “abuser” had caused “tremendous distress and mental anguish by engaging solicitors to intimidate (the resident) while the invoices were still in dispute.
11. The thrust of the complaint was about intimidation and harassment, not just the “tone and content” of emails and the “unnecessary engagement of solicitors”.
12. He noted the solicitor’s letter of 28 July 2022 had amended the phrase “within 7 days” to “within 7 days of the date of this letter”.
13. He wanted monetary compensation for each letter “(10) instances of harassment and intimidation” by the landlord and its solicitors.
On 5 August 2022, the complaint was escalated.
On 22 September 2022, the landlord responded with its Stage 2 response as follows:
1. It apologised for the delay in its response, due to a lack of staff availability. The original complaint of 13 May 2022 was not registered until 14 July 2022. It attached its complaints process.
2. While it was sorry that the resident had felt offended and distressed by the wording of invoices and requests for payment, either from the landlord or its solicitors, it had found no fault with those documents. It was previously acknowledged that some, less formal, communications had fallen below the standard it expected. The landlord had apologised and did so again.
3. It was “misrepresentation” to suggest that the communications, which were intended to pursue monies owed to the Council, constituted ‘intimidation’ or ‘harassment.’ The resident had referred to those communicating as “an abuser”. This was “again a misrepresentation”.
4. A complaint would not stop its services from undertaking actions in accordance with its policies, procedures and in line with governing national legislation.
5. It considered that the previous response was fair and reasonable and thus it did not uphold this review stage of the complaint.
6. It recognised that the resident was dissatisfied with the way Leaseholder Services had pursued him for the sums owed. It referred the resident to Leaseholder Advisory Service.
On 3 July 2023, the resident queried why the invoice for £110 was marked as paid. There followed some correspondence between the parties. The landlord’s position was that the invoice was marked paid automatically as the longest outstanding.
In February 2024, the landlord informed this Service that the leasehold officer’s manager would check his correspondence and that it was unable to change who managed the block.

Assessment and findings

The landlord instructed solicitors in relation to recovering service charges.

The Ombudsman has considered whether the landlord was reasonable in instructing solicitors in October 2021 and on 9 March 2022. The landlord’s explanation was that it had not heard from the resident following the letters of 23 February 2022 and 2 March 2022. It considered that the 7-day warning had elapsed on the 9 March 2022 and therefore instructed solicitors in relation to next steps.
The evidence showed that the service charges had been outstanding for a considerable time, that the landlord had responded to the resident’s emails in detail and it was entitled to consider that it had satisfied the resident’s enquiries. However, the landlord’s position in response to the email of 10 March 2022 was not clear. Its response email of 22 March 2022 stated that it would pursue the debt in full but that followed a further explanation of the service charges. Another email stated that it would recover the cost of the PAP letter even if disputed. However, in its complaint responses, the landlord stated that it was “regrettable” that the resident emailed the day after the instruction, and “a day too late” implying that the difficulty was that the resident’s email of 10 March 2022 was one day late and, therefore, had it received it sooner, it might have not instructed solicitors.
The timescale of 2 March 2022 to 9 March 2022, given the letter was sent by post was, tight. While notice can be assumed to be from the date of a letter, it is better practice to be specific. Moreover, once the resident wrote to the landlord on 10 March 2022, it had the opportunity to instruct its solicitors to put the PAP letter on hold. In the circumstances, given the resident wrote one day late in a very tight timescale, it would have been reasonable to have waived the fees on this occasion.
There was no evidence that the correspondence was inspired by malice, or for punitive and vindictive reasons, or with an intention to harass or cause distress or be intimidatory. If a landlord is considering legal proceedings, it is right, and, indeed, a requirement of litigation, to send a warning letter. Debt collection correspondence will cause distress and the Ombudsman has sympathy that the resident felt distress and anguish in receiving the legal correspondence. However, the Ombudsman does not find that the landlord acted unreasonably in that regard. The landlord was entitled to pursue legal action. As a social landlord, it has a duty to preserve public funds, and to be fair to other leaseholders to collect service charges on an equal basis. It had engaged in lengthy correspondence and over a significant period of time before asking its solicitors to act. The landlord is entitled to take a reasonable view when to instruct solicitors. It was also entitled to do so in October 2021, and in any event, there was no evidence that that initial instruction had any impact on the resident.
In service charge disputes which cannot be settled by correspondence, leaseholders have a further recourse to the FTT. While the Ombudsman would expect the landlord to engage in a discussion before resorting to proceedings, there may come a point when a landlord can reasonably decide that it has provided sufficient information. One option for residents, as the resident settled upon, is to make payment, while making it clear they was still disputing the charges.
The Ombudsman does not find service failure in the landlord instructing its solicitors when it did. Passing on the initial cost of the letter was reasonable. The Ombudsman does find that expecting the resident to respond by 9 March 2022, and not a day more, and not considering cancelling the instruction to its solicitors, unreasonable. The Ombudsman will make an order of compensation for the value of the cost of the PAP letter in the amount of £100.
It is noted that the landlord’s procedure refers to a letter before claim (LBC) and the correspondence referred to the PAP. It is also noted that the landlord applied the resident’s payment to the disputed invoice despite his request not to. The correspondence was clear in warning the resident charges would be made. However, the policy and procedure did not specify this. There was no evidence this caused confusion in this case or that the resident made a complaint in this regard, however the Ombudsman will make recommendations.

The landlord’s response to the resident’s reports about staff conduct

The resident frames his complaint about the legal charges that it was in relation to a specific member of staff, as he saw this as an act of harassment by that staff member. The landlord explained that the member of staff had acted in accordance with its procedures. The head of a team would have an overview. Given the context, the Ombudsman does not find fault in how the landlord initially responded to the resident’s question as to who exactly instructed solicitors. In any event, the email of 22 March 2022 stated that the solicitors would have been instructed by the resident’s leasehold officer. There may have been confusion as to who that was intending to mean, in particular as he was referred to by different job titles in the correspondence. However, there was no evidence the landlord was seeking to “tell a blatant lie” or be disingenuous.
In summary, the decision to instruct solicitors was an organisational one. The Ombudsman has made a finding that the decision to instruct solicitors was, in itself, unreasonable.
The complaint was also about the contents of the member of staff’s emails, that they were “dismissive and arrogant” and “extremely trigger-happy and unsympathetic” to the concerns of leaseholders. The landlord did not provide the officer’s email of 15 March 2022. However, if the email of 18 May 2022 was typical, the approach was unacceptable and incompatible with the style guide to be “friendly”.
The landlord accepted the resident’s complaint in relation to the staff member’s writing style. While the language the landlord used was tempered, the Ombudsman is satisfied that the landlord took the complaint on board. It took the matter up with the staff member and arranged for the correspondence to be checked. It also apologised. Given the landlord was offering proportionate and a practical resolution to the complaint, the Ombudsman considers that this constituted reasonable redress to this aspect of the resident’s complaint.

The landlord’s complaint handling

There was an unreasonable delay in the landlord logging the resident’s complaint of 13 May 2022, to 14 July 2022, and to the Stage 1 response. It was clear the resident’s email was a complaint. While the landlord apologised and explained the delay to its Stage 2 complaint which was not so significant, the landlord neither explained it or apologised.
While the resident was critical of the term “partially upheld”, the Stage 1 complaint was clear in that that the landlord rejected the complaint about the £110 fee but accepted the resident’s complaint about the staff member. There was no evidence of impact that the Stage 2 response was sent soon after the landlord informed him who was dealing with the matter.

Determination (decision)

In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was service failure in relation to the landlord instructing solicitors in relation to recovering service charges.
In accordance with Paragraph 53(b) of the Housing Ombudsman Scheme, in the Ombudsman’s view, there was reasonable redress in relation to the landlord’s response to the resident’s reports about staff conduct.
In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was service failure in relation to the landlord’s complaint handling.

Reasons

The landlord acted reasonably in instructing solicitors. However, given the timescales, the landlord’s stance that the resident’s email of 10 March 2022 was one day late was unreasonable.
The landlord upheld the resident’s complaint, it apologised and took reasonable and proportionate action to resolve the matter.
There was significant delay to the Stage 1 response which the landlord did not explain or acknowledge.

Orders

The Ombudsman makes the following orders:
1. Within 4 weeks of this report, the landlord should pay the resident the sum of £150 consisting of:
  1. £100 in relation to landlord instructed solicitors in relation to recovering service charges.
  2. £50 in relation to the landlord’s complaint handling.
The landlord should confirm compliance with the above orders to the Housing Ombudsman Service within 4 weeks of this report.
The Ombudsman makes the following recommendations:
1. The landlord should ensure that its language and abbreviations in its procedures are consistent with its correspondence and where possible, make it clear in its policy and procedures, when administrative charges will be incurred.
2. The landlord should consider removing a credit from a payment when requested by a resident so as to ensure it is clear which invoices are outstanding.
The landlord should provide feedback as to these recommendations to the Housing Ombudsman Service within 4 weeks of this report.