Optivo (now Southern Housing) (202206632)

REPORT

COMPLAINT 202206632

Optivo (now Southern Housing)

31 October 2023

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s handling of:
1. The resident’s request for reimbursement of his service charge.
2. The resident’s reports regarding communal repairs.
3. The associated complaint.

Jurisdiction

What we can and cannot consider is called this Service’s jurisdiction. This is governed by the Housing Ombudsman Scheme (‘the Scheme’). When a complaint is brought to this Service, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
The resident’s complaint refers to long-standing issues relating to communal repairs since 2019 which he explained had not been carried out by the landlord. The resident has also asked this Service to consider the level of service charge he has paid to the landlord in light of communal repairs. He does not believe the level of service charge paid reflects the service he received.
In accordance with paragraph 42(d) of the Scheme, the Ombudsman may not consider complaints which concern the level of rent or service charge or the amount of the rent or service charge increase.
The Ombudsman cannot review complaints about the level of service charges and determine whether service charges are reasonable or payable. Complaints related to the level, reasonableness, or liability to pay rent or service charges are within the jurisdiction of the First-Tier Tribunal (Property Chamber). The First-Tier Tribunal can look at whether a refund of service charge should be given. As we cannot look at the level of service charge, we would not be able to tell the landlord to refund or remove this charge. However, we can look at the landlord’s communication around the service charge and whether it followed its relevant policies and procedures correctly.

Background and summary of events

Background

The resident is a shared owner of his two-bedroom apartment, of which the landlord, a housing association has a shared ownership lease from the freeholder. The resident purchased 50% of the property on 16 October 2013.
The freeholder owns the apartment building the resident’s property resides in. The freeholder uses a managing agent to manage its properties and apartment buildings. The landlord is not responsible for repairs.
The resident reported the circumstances of the complaint had caused him stress, anxiety and depression.

Landlord obligations

The landlord operates a two stage complaints policy. When a complaint is formally made, it will be acknowledged within five working days. It would respond to stage 1 complaints within 10 working days and stage 2 complaints within 20 working days.

Scope of investigation

Paragraph 42(a) of the Housing Ombudsman Scheme (the Scheme) states:
1. The Ombudsman may not consider complaints which are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint-handling failure, and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.
Paragraph 42(b) of the Housing Ombudsman Scheme (the Scheme) states:
1. The Ombudsman may not consider complaints which were brought to the Ombudsman’s attention normally more than 12 months after they exhausted the member’s complaints procedure.
The resident first raised his concerns with the communal repairs in March 2019. He complained to the landlord in September 2020. The landlord communicated with the managing agent to discuss the outstanding repairs reported. Arrangements were put in place for repairs to take place by the managing agent. This complaint did not reach stage 2 of the landlord’s internal complaints procedure (ICP). The resident then brought a further complaint to the landlord in August 2021 to raise similar concerns the communal repairs remained outstanding.
The resident did not exhaust the landlord’s ICP following his complaint in September 2020. Furthermore, had this complaint exhausted the landlord’s ICP, the resident did not refer that complaint to this Service within 12 months. Therefore, this Service is unable to consider the events prior to 18 March 2021, six months before the resident’s complaint of 18 August 2021.
This investigation will concern the landlord’s management of the relationship between the resident, the managing agent and freeholder, from 27 March 2021 until the resident received his stage 2 review panel meeting response on 22 April 2022.

Events pre-27 March 2021

On 1 March 2019, the resident emailed the landlord to raise issues with the communal areas. These were listed as:
1. The front door was a security risk as it was hard to open and did not fully close.
2. When the front door was previously painted, the contractor spilt paint over the floor, and it was never cleaned up.
3. The walls were scratched and damaged.

Summary of events

Between 22 June and 24 June 2021, the resident sent a video to the landlord which he explained had previously been provided. It showed the issues he had with the front communal door and damage within the communal areas of the apartment building. The landlord confirmed it had again issued the video to the managing agent for a response.
Between 3 August and 11 August 2021:
1. The resident chased the landlord for an update. The landlord responded and explained the request had been passed to its home ownership team to respond to.
2. The resident raised his intention to complain due to the landlord’s lack of communication and response to his emails. He also explained his expectations were not managed, with target dates provided for him to receive a response to his emails and the dates were not kept, or some responses were delayed by weeks and months.
On 18 August 2021, the resident formally complained to the landlord. He explained:
1. He previously raised communal repairs with the landlord on 1 March 2019 however no action was taken. The communal repairs requested were to:
  1. Replaster and redecorate the communal walls.
  2. replace the communal front door as it did not properly close and previous repairs had not stopped the issue from occurring.
  3. replace the communal carpet as it was stained and spilled paint from previous painting works was present.
2. He requested a full breakdown of the service charge since March 2019 with a view to recover his payments due to the lack of action. He also wanted compensation for the delays and stress caused.
3. He resent the videos and images he previously sent.
On 26 August 2021, the resident asked for acknowledgement of his complaint.
On 27 August 2021, the landlord emailed the managing agent. It explained:
1. The managing agent had not responded to the landlord’s three previous emails chasing repairs between 23 June and 26 June 2021.
2. It resent the original email which asked if an inspection of the communal hall walls and carpet had been completed recently, with confirmation of the condition if an inspection had occurred. It also asked if any works were pending or scheduled for this issue.
On 24 September 2021:
1. The resident emailed the landlord to chase it to log a formal complaint.
2. The landlord emailed the managing agent and explained it continued to receive reports about the condition of the internal communal area and attached the resident’s video. It asked for the managing agent to contact it urgently as there was a formal complaint.
On 27 September 2021, the landlord asked the resident to send copies of his previous emails to the landlord and details of the outstanding repairs so it could be chased with the managing agents.
On 27 October 2021, the landlord provided its stage 1 response. It stated:
1. It acknowledged the resident had previously dealt with a staff member who had since left the business. It apologised for delays responding to his emails and explained a new inbox had been set up for resident emails. It provided the contact details.
2. It contacted the managing agent and the agent agreed to attend to inspect the condition of the walls and the carpet in the communal area. It would arrange an appointment and inform the resident of the date once booked.
3. The emails the resident sent regarding the outstanding repairs were provided to the managing agent to facilitate a resolution of the matter. It apologised the outstanding repairs had not been completed following the agents involvement, prior to raising his formal complaint in August 2021.
4. It would not compensate the resident the £7,500 requested as it was not justified.
5. It accepted there was a lack of communication with the resident and delays to respond to queries. It offered £75 compensation.
6. It enclosed a form for the resident to complete should he wish to request a panel review the decision it made.
On the same date, the resident emailed the landlord to state the landlord’s response had not resolved the issues. He would therefore consider legal action. There is no record of the resident’s formal request to escalate the matter.
Between 7 February 2022 and 9 March 2022:
1. The resident emailed the landlord following his attempt to contact it by telephone. He explained on 31 January 2022, he was told he would receive an update within 72 hours. He had not yet received an update from the landlord. He also stated he would not pay his service charge until the repairs were completed.
2. He raised further concerns he did not receive a response to his emails relating to service charge arrears and that the landlord was not complying with its policy, which stated it was responsible for communal doors and external repairs to communal areas.
3. The landlord requested an update from the property manager regarding the process relating to the managing agent and the outstanding repairs.
4. The resident asked the landlord to waive the arrears on his account due because repairs had not been completed.
5. The landlord raised a review of the case on behalf of the resident. A review panel would be scheduled. This was later confirmed as 30 March 2022.
On 14 March 2022, the resident emailed the landlord ahead of the review meeting. He requested compensation for anxiety, stress and depression, his service charge from April 2019 to be refunded and the communal repairs to be completed.
On 30 March 2022, internal correspondence at the landlord explained:
1. A staff member from the managing agent attended the building. They could not access the communal area however, from what could be seen, the communal area looked spotless. They attempted to take photographs through the door. They also took photographs of the front communal area. It was described as looking tired and in need of a clean-up.
2. A complaint review panel meeting took place.
On 22 April 2022, the landlord provided its formal response following the panel meeting. It stated:
1. During the meeting, it explained to the resident the landlord was not the freeholder of the property and therefore the responsibility for communal repairs was with the freeholder.
2. It had been liaising with the managing agent regarding the repairs reported. It confirmed the agent had completed a survey of the common areas and a specification had been put together to carry out redecoration, carpeting and other repairs which may be necessary. It expected these to be completed by September 2022.
3. It would not compensate for stress and anxiety caused as it was outside the powers of the panel.
4. It accepted the resident’s concerns with the landlord’s service and there had been delays responding to his queries, which resulted in him chasing on multiple occasions. It offered £500 compensation in recognition of these failings.

Post internal complaints process events.

On 30 November 2022, internal correspondence at the landlord stated:
1. It spoke with the managing agent in March 2022 regarding scheduled cyclical decoration to the building. A surveyor had previously attended in February 2022 to draw up the specification. This would include painting and decorating of common parts, carpeting and other repairs which were identified.
2. The consultation process was due to start in May 2022 and works completed by October 2022.
3. It asked for confirmation of a new schedule to start and complete the works.
On 13 and 16 December 2022, the landlord urgently chased the managing agent for a response to its email of 30 November 2022.
On 21 December 2022, internal correspondence at the landlord confirmed it received a call from the managing agent. A new property manager at the managing agent had recently been appointed. The landlord arranged a site visit with the managing agent to take place. The visit date requested was 20 January 2023 however, no further evidence has been provided to confirm what took place after this date.

Assessment and findings

When investigating a complaint, the Ombudsman considers its Dispute Resolution Principles. This is good practice guidance developed from the Ombudsman’s experience of resolving disputes for use by everyone involved in the complaints process. There are 3 principles driving effective dispute resolution:

a. be fair – treat people fairly and follow fair processes

b. put things right, and

c. learn from outcomes.

The resident’s reports regarding communal repairs.

The landlord is not responsible for communal repairs in the resident’s building. The responsibility is for the freeholder and its managing agent which are not part of the Scheme. In managing the relationship between managing agents and the freeholder, landlords need to be clear, confident and consistent in their approach.
The evidence showed the resident had been regularly chasing the landlord for it to provide a response to his request for completion of communal repairs to the building entrance door and communal areas, initially raised since March 2019. The resident states he provided videos and photographs of the communal building entrance door and communal areas several times to the landlord.
The resident continued to ask the landlord for updates on the requested communal repairs prior to making a formal complaint. The landlord confirmed on 24 June 2021, it had again referred the request to the managing agent for a response. The landlord confirmed the same between 3 and 11 August 2021 when the resident requested a further update. Whilst the landlord stated it previously referred the repair requests onwards, there is no evidence provided by the landlord which confirmed correspondence it had with the freeholder and managing agent between 1 March and 22 June 2021.
Internal email correspondence did however, confirm the landlord had emailed the managing agent on 3 occasions between 23 June and 27 August 2021 and again on 27 September 2021. The evidence provided does not show the landlord received a response from the managing agent. The landlord has not provided evidence to confirm whether alternative methods of contact were used such as telephone calls or letters to attempt to speed up the response of the managing agent. Neither has evidence been provided to suggest the landlord considered alternative contact of the freeholder to ensure a timely response from its managing agent. This Service would expect to see evidence of telephone notes and letters to the managing agent to show the landlord took reasonable steps to facilitate contact. Whilst the landlord showed it attempted contact with the managing agent, this Service would expect to see all reasonable steps being taken, such as to have been provided with evidence of alternative contact methods to show the landlord explored every opportunity to make contact with the managing agent or freeholder. This is a service failure.
There is often confusion, not just for the resident, but also the landlord and third-party managing agent and/or freeholder as to responsibilities. This confusion can then be compounded by poor communication. Whilst this Service acknowledges the issues had been long-standing and complex, no evidence has been provided to show the landlord explained to the resident it was not responsible for communal repairs until a review panel took place on 30 March 2022. This Service expects the landlord to communicate effectively and manage the resident’s expectations relating to the responsibility for the communal repairs at the earliest opportunity. In addition, it should provide an explanation of attempts it had made to contact the managing agent. The evidence does not show the landlord informed the resident of the contractual relationship of the managing agent and freeholder to manage his expectations. The lack of clear communication impacted the resident, causing him time and trouble and frustration as he had no clear understanding of the responsibilities of the landlord.
The resident also raised concerns with the landlord’s responsiveness to his email queries and requests for updates. It was acknowledged by the landlord within both of its complaint responses, it failed to communicate promptly with the resident. It also apologised to the resident. The Ombudsman will not make a finding of maladministration where a landlord has offered suitable redress to resolve a complaint. In this case the Ombudsman recognises that in its complaint responses, the landlord acknowledged failures with the service it provided through poor communication and delays caused. It offered £75 in its stage 1 response and a further £500 following a review panel meeting to reflect these failings.
Whilst the landlord could have made further attempts to contact the managing agent or freeholder other than emails, this Service recognises the managing agent was unresponsive for long periods and this ultimately caused significant delays to the resident. This Service acknowledges the delays have caused distress and anxiety to the resident and the landlord communicated poorly with the resident, failing to manage his expectations. However, the landlord’s offer of a total of £575 compensation for its failings in communication and responsiveness is reasonable. The landlord apologised at both stages of its complaint procedure and showed that it learnt from the failings, by taking positive steps to chase the managing agent for an action plan and a schedule of works. This Service therefore found the landlord offered reasonable redress for its service failings relating to the communal repairs reported.

The associated complaint

The resident formally complained to the landlord on 18 August 2021, however his complaint was not acknowledged by the landlord. The resident chased acknowledgement on 26 August and again on 24 September 2021. The landlord’s complaints policy states an acknowledgement would be provided within 5 days.
Whilst the evidence suggests the landlord did log the resident’s complaint after 24 September 2021, there is no evidence the landlord provided any acknowledgement of the resident’s complaint. An acknowledgement of a complaint is an important part of the internal complaints procedure. It ensures the resident receives confirmation his complaint had been received and manages their expectations with regards to the timescales expected as set out within a landlord’s complaints policy. It is disappointing the landlord failed to acknowledge the resident’s complaint. This Service recognises it caused the resident distress and inconvenience where he was required to chase the landlord on two separate occasions. This was a policy failing and was not in line with the Ombudsman’s Complaint Handling Code (the Code).
The landlord provided its stage 1 complaint response on 27 October 2021. This was 10 weeks after the resident raised his complaint. This was not appropriate. The landlord has not provided this Service with any evidence it was in communication with the resident regarding delays to provide a stage 2 complaint response.
Whilst the resident raised he was unhappy with the stage 1 response by email on 27 October 2021, there is no evidence to confirm if or when the resident requested his complaint be escalated. This Service notes between 27 October 2021 and 9 March 2022, the resident continued to raise his concerns with the landlord and eventually a review panel meeting was arranged. It is concerning the review panel hearing relating to the resident’s complaint did not take place until 30 March 2022. This was a delay of approximately 6 months since the resident received his stage 1 response. However, there is not enough evidence provided to state why there was such a delay and no evidence the resident formally requested to escalate his complaint to stage 2 that has been provided.
It is therefore unclear if the landlord took steps to escalate this on the resident’s behalf due to the ongoing complaints, or the evidence of the resident’s request for escalation was not provided to this Service.
The landlord acted unreasonably by failing to provide an acknowledgement of the resident’s complaint and providing its stage 1 response 10 weeks after the resident formally complained. The delay left the resident in the complaints process, without a clear resolution. The landlord did not provide the resident with an explanation for its delay. This Service found service failure in respect of the landlord’s complaint handling.

Determination (decision)

In accordance with paragraph 42 of the Housing Ombudsman Scheme, the resident’s complaint about the landlord’s handling of the resident’s request for reimbursement of his service charge is considered outside of the Ombudsman’s jurisdiction.
In accordance with paragraph 53(b) of the Housing Ombudsman Scheme there was reasonable redress by the landlord in its handling of the communal repairs.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in its handling of the associated complaint.

Reasons

The landlord was not responsible for the communal repairs in the resident’s building and this Service acknowledged the landlord made attempts to contact the managing agent responsible to report the resident’s repair requests.
Whilst the landlord’s communication with the resident was unsatisfactory and failed to manage expectations, the landlord apologised and put things right by chasing the managing agent to agree an action plan of scheduled works. It also offered £575 compensation. This was reasonable redress for its service failures.
The landlord’s complaint handling was unreasonable and it did not acknowledge the resident’s initial complaint. It also took 10 weeks to provide its stage 1 response.

Orders and recommendations

Orders

Within four weeks of the date of this report the landlord is ordered to:
1. Apologise to the resident for the complaint handling failures identified in this report.
2. Pay the resident a total of £200.00 in recognition of the distress and inconvenience and time and trouble for its poor complaint handling.
3. If the landlord has not already paid the resident, pay the resident £75 which the landlord offered in its stage 1 response on 27 October 2022 and £500 offered in its stage 2 review panel meeting letter dated 22 April 2022.

The landlord should provide evidence of compliance with the above orders.

Recommendations

The landlord should review its position against the Engagement with Private Freeholders and Managing Agents spotlight report by this Service.
The Ombudsman has recently made a number of orders and recommendations in other investigations to this landlord about reviewing its complaint handling approach. The Ombudsman has therefore not made further recommendations around these aspects of service in this report but expects the landlord to take all relevant learning points from this case into account in its overall reviews of complaint handling.