Applications are open to join the next Housing Ombudsman Resident Panel – find out more Housing Ombudsman Resident Panel.

Mosscare St. Vincent’s Housing Group Limited (202209430)

Back to Top

REPORT

COMPLAINT 202209430

Mosscare St. Vincent’s Housing Group Limited

30 January 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

  1. The complaint is about:

a.     The landlord’s handling of the sign-up process and that the terms of the tenancy agreement were not made clear to the resident.

b.     The quality of the meals provided by the landlord as part of the tenancy and response to concerns that the food offer was mandatory.

  1. The Ombudsman has also considered the landlord’s complaint handling.

Background

  1. The property is situated in an extra care facility. The facility was opened in September 2020. The resident signed a tenancy agreement with the landlord on 10 November 2020. The resident understood the level of service charges which were payable as part of the tenancy. The tenancy contained service charges, of which £26.29 per week were not eligible to be paid by housing benefit. The service charge included meal provision, at a cost of £39 per week. The resident “topped up” her rent payments by £190 per month to cover this charge, as she was not eligible for full housing benefit.
  2. The resident moved into the property in January 2021 and initially started eating the meals provided by the bistro. However, she felt that the food was of poor quality and stopped eating at the bistro. The resident said that she did not complain at the time, because she thought the food was free.
  3. The resident told the Ombudsman that during a conversation with a neighbour in or around November 2021, she learned that the food was not free; it was paid for by her service charges. The resident reported asking other residents if this was true and explained that there was confusion among other residents, but the consensus was that the food was not free. The resident complained in November 2021 about both the quality of the food and the requirement to pay, but the landlord did not respond. In January 2022, the resident stopped “topping up” her rent payments.
  4. The resident met with the landlord on 7 April 2022. The landlord confirmed that £39 of the weekly service charge was for food provision. The resident informed the landlord she would be withholding payment indefinitely, before complaining formally on 20 June 2022. She wanted to stop being charged for the food element she was paying. She was unhappy that the charges had been unclear at sign-up and that the quality of food was poor.
  5. The landlord called on the resident on 27 June 2022. It reported issuing its stage 1 response on 28 June 2022. The resident was unhappy and escalated the complaint at an unknown time. The landlord issued a written response on 7 July 2022. It stated that:

a.     There was an action plan in place with the catering company to improve the food offer, which the landlord would monitor.

b.     It was unable to remove the charges because it was part of the resident’s tenancy agreement.

c.      The service charges were clearly set out in the tenancy agreement. Additional clarity was provided in an “attachment to the tenancy agreement”.

  1. The landlord and resident continued to meet and correspond from 11 July 2022 until the landlord conducted a stage 2 review on 12 September 2022. It is unclear which pieces of correspondence or phone calls were formal complaint responses. During this correspondence, the resident added that the food was “inedible and made her unwell”. She stated that the cost of the mandatory food offer meant that it was financially challenging to also pay for alternative meals.
  2. In the landlord’s correspondence and subsequent stage 2 review, it said that:

a.     “The breakdown of charges in the tenancy agreement isn’t made explicit and could be clearer”. However, it said “an addendum was issued which does make the cost clear”. It stated that it had seen evidence that the addendum “was issued by the officer who completed the sign-up process”. The resident disputed this, explaining that the addendum had been issued only after she had signed the tenancy agreement.

b.     The complaint about the quality of the food is legitimate, as other residents had expressed similar concerns.

c.      That improvement of the food quality was ongoing, but that it would compensate residents based on “the period of time where food was at a potentially unacceptable standard”.

  1. The resident approached this Service on 26 September 2022. The resident was unhappy that she had been “misled” about the service charges and what they were for. She was unhappy that the food offer was mandatory and with the landlord’s handling of reported quality issues with the food. On 1 May 2023, the resident told this Service that “even now, some residents still believe the food is free!”
  2. On 26 July 2023, this Service wrote to the landlord, asking for a detailed clarification of the landlord’s position. It provided this on 1 August 2023. This email is referenced at various stages in this report. The landlord’s contract with the food contractor ended in September 2023 and was not renewed.

Assessment and findings

  1. The Ombudsman’s Dispute Resolution Principles (DRPs) are to ‘be fair’, to ‘put things right’, and to ‘learn from outcomes’.

The landlord’s handling of the sign-up process and that the terms of the tenancy agreement were not made clear to the resident

  1. The tenancy agreement sets out the level of rent and service charges. It lists the levels of “rent”, “service charge” and “ineligible service charge”, specifying the cost of each. An asterisk marks the service charges, stating that “if there is a service charge, the services will be shown on appendix 1”.
  2. Appendix 1, located later in the tenancy agreement, is a page with space set out to list “service charge items” and “gifted goods items”. This page is blank. The landlord agreed therefore that “the breakdown of charges in the tenancy agreement and rent increase letter isn’t made explicit and could be clearer”. However, it said “an addendum was issued which does make the cost clear”. The addendum in question is called the “Extra Care Housing attachment to Tenancy Agreement”. Section 1.2 of the addendum states “you must pay the Support Charge plus the meal charge as part of the rent as set out in the tenancy agreement”. This however is confusing, as there is no meal charge listed in the tenancy agreement. The landlord therefore failed to follow its Service Charges Policy, which states that “the services provided will be clearly identified to customers and set out in agreements”.
  3. The Consumer Rights Act 2015 sets out what is required for the terms of an agreement to be considered fair; they must be “transparent” (expressed in plain and intelligible language), and “prominent” (brought to the consumer’s attention in such a way that the average consumer would be aware of them). The charge itself is not listed, though the total cost of all charges are included. They are apportioned between two categories: “service charge” and “ineligible charge”. Although the tenancy agreement states it should be explained elsewhere in the document, the landlord failed to ensure that this was listed. Therefore, the term was not transparent. The landlord stated that in its view, the addendum “made the cost clear”. When investigating this case however, the Ombudsman found the addendum to be unclear to the extent that the landlord needed to be contacted to clarify which document it was referring to. In order to establish the total cost of the charge, the Ombudsman relied on the landlord’s later correspondence with the resident, because it was not listed in any document provided. Therefore, this statement was unreasonable; the landlord was unable to demonstrate that the term was brought to the attention of the resident in a way that the average consumer would be aware of it. The resident also disputed having seen the addendum before she signed the tenancy agreement. When asked, the landlord stated that the tenancy agreement and addendum were uploaded to the resident’s file nine days after the tenancy agreement was signed. Although the landlord is correct that this does not “represent a substantive delay”, it nevertheless fails to demonstrate that the resident saw this addendum on sign-up.
  4. The resident told this Service that she felt that she had been misled, because she reported being told that the meal provision was free. Both this Service and the landlord were unable to confirm the resident’s account of what she was told on sign-up, because the relevant staff member had since left. The landlord however has since acknowledged that “the staff member was very busy occupying and signing highly vulnerable customers up for an extra care scheme during an unprecedented global pandemic... It is possible that the officer advised [the resident] that the meal is part of the tenancy as this isn’t technically incorrect.” However, as above, whether or not a verbal description of the charge is “technically correct”, does not mean it was brought to the attention of the resident in a way the average consumer would understand. It added that “as part of our learning from this case, we have reviewed the process at sign-up and ensured that the new checklist includes a signed understanding from the customers on all charges for the scheme.” In conclusion, for the reasons set out above, the Ombudsman finds that the service charges referred to were not fair, as required by the Consumer Rights Act 2015, or clear as required by its own policies and procedures. The Ombudsman has therefore determined that the charges are unrecoverable and there was maladministration in the landlord’s handling of the sign-up process and that the terms of the tenancy agreement were not made clear to the resident. Orders are made below ‘put things right’. These orders also contain an additional sum in respect of the time and trouble the resident went to as part of this process. This is calculated in line with the Ombudsman’s remedies guidance, which states that where there has been maladministration and an impermanent adverse effect, compensation of up to £600 is due.
  5. Given the Ombudsman’s concerns about the transparency and clearness of the charges in this case, there is a potential that other residents may have been affected in the same way. Therefore, the Ombudsman has made orders and recommendations below, in line with paragraphs 48 and 54(F) of the Housing Ombudsman Scheme (the Scheme). Paragraph 48 of the Scheme states that “the Ombudsman may accept an individual’s complaint as a test case if its facts equally affect others”. Paragraph 54(F) of the Scheme states that the Ombudsman may make orders or recommendations that the landlord review its policy or practice in relation to a matter if that policy or practice may give rise to further complaints about that matter.
  6. The Ombudsman has also identified further issues with the sign-up process. For example, the landlord issued the resident with an ‘Extra Care’ document which was given to residents to explain what they could expect from their tenancy. It states that “all costs and charges associated with living at Extra Care are fully explained when applied for”. It also states that “tenants are subject to extra rent and service charges, however these are affordable and eligible for housing benefit”. In this case however, only a small amount of the service charge is eligible to be covered under housing benefit, the rest being described as “non-HB eligible”. The resident said that she was “advised to contribute [additional money] to make up what her housing benefit did not [cover].” The landlord explained that this document is produced by the local authority, not the landlord. The document however was given to the resident during the sign up process, serving as another example of the resident being given confusing or contradictory information about what to expect from their tenancy. In this case, there was no discernible impact on the resident caused by the lack of clarity in this particular document. The Ombudsman acknowledges that the landlord has already sought to ‘learn from outcomes’ by making changes to its sign up process. Orders and recommendations are made below to ensure learning is robust and effective.

The quality of the meals provided by the landlord as part of the tenancy

  1. The landlord and resident were both in agreement that the quality of the food provided was unsatisfactory for substantial periods. The evidence shows that the landlord had been engaged in efforts to improve the quality of food offered from before the resident’s initial complaint, in response to “ad hoc grievances” it received from other residents throughout 2021. It was understood that this work was continuous and would be measured by seeking regular feedback from all residents.
  2. The landlord told this service that it conducted surveys in October 2021, which showed dissatisfaction with the food. On 11 November 2021, landlord staff conducted a 2 day food tasting event, where the contractor provided samples of a new menu in response to resident feedback. The landlord created an action plan, introducing monthly “food group meetings” with residents, regular quality audits and a number of resident-centred communication initiatives, such as newsletters. Another survey was carried out in December 2021. The landlord explained that there was “initial improvement going into 2022”.
  3. The landlord stated that it had “continuous meetings with the contractor, highlighting issues and looking at solutions”. The Ombudsman has seen evidence of this, which shows that a number of appropriate actions resulted from one of these meetings. For example, the landlord introduced “ad hoc spot checks” by both landlord staff and the head chef, as well as introducing mechanisms for what staff should do when issues were found. It resolved to hold meetings with residents who had complained and send flyers to residents, to keep them informed of ongoing supply issues. The landlord however continued to receive complaints about various aspects of the food offer, including value for money and quality. The evidence shows that the landlord held monthly resident meetings throughout 2022, in which the food offer was regularly discussed. The contractor attended these meetings on two occasions to speak to residents about their concerns and consult about menu changes. The Ombudsman acknowledges the good practice demonstrated at this time by the landlord’s frequent communication with residents and ongoing commitment to improve the food offer.
  4. On 29 September 2022, the landlord compensated residents “in recognition that the standard of food was not what it would like”. The landlord refunded residents for 10 weeks of food charges, which was adjusted based on whether residents received benefit contributions to the charge or self-funded. This was a fair approach. It is unclear which 10 week period during 2021/2022 this refund was intended to cover, but offering financial compensation for the periods where the food was unsatisfactory, was an appropriate remedy. The Ombudsman’s remedies guidance states that where a failing has occurred which adversely affected the resident but had no permanent impact, £100 – £600 is due. On 20 October 2022, the notes from the residents’ meeting reflected an anecdotal improvement in the food quality.
  5. In the landlord’s stage 2 review decision, it told the resident that it “would create a difficult precedent” if it were to permit the resident to stop paying the meal charge on the grounds of poor food quality. It added that this would “render the contract unviable”. Although the Ombudsman acknowledges the challenge this posed to the landlord, this was not reasonable; the landlord’s business relationship with the contractors it chooses to use is not relevant to its obligation to ‘be fair’ and ‘put things right’. The landlord later told this Service that at no point did it seek to pursue the contractor for a breach in service, instead opting to focus on improving the food offer. In light of the evidence of the landlord’s work to improve the food offer and to compensate for a period of poor quality, it is reasonable that the landlord took this approach throughout 2021 and 2022. The landlord therefore offered reasonable redress in respect of the quality of meals provided as part of the tenancy.
  6. In January 2023, the landlord conducted a new survey, which received 76 responses. It showed that despite the work the landlord had undertaken, only 11.84% of residents reported being “satisfied” with the food quality. 51.32% said that they were “very dissatisfied” and a further 22.37% were “dissatisfied”. It is evident therefore that the works to improve the quality of the food were unsuccessful. The landlord opted to serve an improvement notice on the contractor. The contract ended in September 2023 and was not renewed. This change of approach appears to have been appropriate in the circumstances.
  7. It was not unreasonable that the landlord wanted to include a mandatory food offer as part of the tenancy. In later correspondence with this Service, the landlord set out the case for including food provision as part of tenancies going forward. Despite the failings outlined in this case, it is the Ombudsman’s view that the arguments put forward demonstrate a clear benefit for many residents. The landlord’s reasoning also demonstrated that the landlord holds the interests of vulnerable residents at the heart its decision making. It is important therefore that the landlord reflects on the challenges it encountered in this case, if it plans to explore reintroducing the food offer to residents in the future. A recommendation to review the learning from this case is made below.
  8. In doing this, it should consider other complaints it received during this period. For example, in a residents meeting on 15 September 2022, a resident expressed concern that “they were still required to pay for food, even when in hospital”. It was also raised that some residents were not at the facility at the time of day when food was served, therefore preventing them access to a service they were required to pay for. This left some residents out of pocket. In January 2023, a number of residents expressed dissatisfaction at the obligatory nature of the food offer, expressing a wish to “pay as you dine”. One resident raised concerns about being charged for meals which were not halal, and therefore could not be eaten. These examples raise questions of fairness regarding the obligation to pay for the food offer. The landlord should consider ways it could mitigate these issues and prevent future complaints.

Complaint Handling

  1. The resident and landlord corresponded frequently throughout 2022 about the resident’s complaints. However, from the evidence, it is unclear which pieces of correspondence were formal complaint responses. Therefore, the complaint handling was confusing to follow. For example, the landlord’s evidence submission to this Service set out that it responded at “stage 1A” on 28 June 2022, but no letter dated 28 June 2022 was seen. It also stated that it had responded at “stage 2B” on 14 July 2022, but no letter dated 14 July 2022 was seen either. On 3 August 2022, the landlord wrote to the resident. It later referred to this letter as a stage 1 response, however the letter was not labelled as such. The Ombudsman’s Complaint Handling Code (the Code), by which the landlord is bound, states that complaint responses must be clearly labelled with the stage at which the landlord is responding. There was a service failure in the landlord’s failure to meet this requirement.
  2. The landlord also did issue a labelled stage 2 response letter dated 7 July 2023, though it appears likely that this was actually issued on 7 July 2022. It is unclear, in part because other responses were not clearly labelled. The landlord’s complaint policy sets out that it operates a 3 step process; it claimed to have already responded formally on 28 June 2022, 14 July 2022 and 3 August 2022, causing confusion about the 7 July 2022/2023 response. The landlord also sent what appears to be a complaint response on 17 August 2022, before holding a “stage 2 review meeting” on 24 August 2022. The landlord communicated the meeting’s decision to the resident in writing on 8 September 2022 and/or 12 September 2022. It is unclear therefore how many complaint responses, or stages, this complaint went through.
  3. The Complaint Handling Code sets out that “a 2 step process is ideal to ensure the complaints process is not unduly long. If landlords believe a third stage is necessary, they must set out their reasons for this as part of their self–assessment.” The landlord informed the Ombudsman that it operated a 3-step process as part of its self-assessment, but did not provide its reasoning.
  4. In this case, it does not appear that this confusion caused any detriment to the resident. It is also possible that some of the confusion can be attributed to the correspondence which took place between formal complaint responses, as the landlord continued to engage with the resident in good faith. Given both the complexities of the issues discussed in this case, and the general thoroughness of the landlord’s responses, it would not be fair to find a failing on this basis. Therefore, there was no maladministration in the landlord’s complaint handling, but recommendations are made below.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the sign-up process and that the terms of the tenancy agreement were not made clear to the resident.
  2. In accordance with paragraph 53 of the Housing Ombudsman Scheme, there was reasonable redress offered in respect of quality of the food offered as part of the tenancy.
  3. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s complaint handling.

Orders

  1. Within four weeks of the date of this determination, the landlord must:

a.     Refund the additional £190 per month that the resident paid toward the meal charge for the duration of her tenancy, until the contract ended in September 2023. The amount already refunded in respect of the quality issues may be deducted from this amount.

b.     Pay the resident £250 additional compensation, in respect of her time and trouble.

c.      Review all documents which are given to residents at sign-up to ensure they do not cause confusion, if it has not already done this as part of its changes to the sign-up process. It should then send evidence of this to the Ombudsman.

d.     Review its records of other complaints received and consider whether other residents should be entitled to similar redress.

Recommendations

  1. That when considering these complaints going forward, the landlord should take the approach the Ombudsman has taken in this determination. That is to consider:

a.     The tenancy sign-up information, to confirm that it is clear.

b.     The resident’s explanation of what they were informed at the start of the tenancy and what they thought the charges were for.

c.      If it is clear in the tenancy agreement that the charge is for food.

d.     The redress that should be paid and whether it should be a refund for a set period.

  1. The landlord should conduct a ‘lessons learned review’ in its administering of the catering contract, detailing what it would do differently in future, if it were reintroduce a food offer. It may wish to share this with the Ombudsman.
  2. Take steps to ensure all future complaint responses are adequately labelled, in line with the Code and the future Codes.