Summary: There was fault in the Council’s handling of Mr X’s concerns about the maintenance of the lift and windows in a block of flats, concerns about a conflict of interest and Mr X’s complaints. There was no fault in how the Council decided not to agree to the Residents Association’s terms of engagement or how it consulted with Mr X and other residents about its plans for the block of flats. The Council has agreed to apologise, make a payment to Mr X, and act to improve its service.

The complaint

1. Mr X complained about the Council’s handling of:
1. His concerns about the maintenance of the block lift and windows
2. Its decision not to agree to the Residents Association terms of engagement
3. Concerns that staff have a conflict of interest between maintaining and redeveloping the block
4. Consultation with residents about the plans to redevelop the block
5. Mr X’s complaints about these issues.

2. Mr X says as a result he and the other residents have lived with significant disrepair for a number of years and are being forced to leave their homes.

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What we have and have not investigated

3. Mr X’s complaint covers matters that fall into the jurisdiction of both the Local Government & Social Care Ombudsman (LGSCO) and the Housing Ombudsman Service (HOS).
4. Each Ombudsman has therefore investigated the parts of the complaint which are within our jurisdictions and jointly considered the parts of the complaint that fall within both jurisdictions.
5. The landlord has advised the HOS that it does not manage this block as part of its social housing functions. However, the block in question has long leaseholders and short leaseholders (those under tenancy agreements). The long leaseholders would be permitted to complain to the HOS, so long as the complaint related to the management of the lease, which includes whether the landlord had complied with its obligations to maintain the block.
6. The HOS has therefore investigated complaints a) and b) above and the LGSCO has investigated complaint d) above. The HOS and the LGSCO have investigated points c) and e) above as these issues are within the jurisdiction of both Ombudsmen.
7. Mr X complains about matters from as long ago as 2015 and earlier. We cannot investigate late complaints unless there is a good reason. We see no reason in this case to exercise discretion to investigate matters earlier than the 12 months before Mr X made his complaint to the Council in late 2019.

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The Ombudsmen’s role and powers

8. The LGSCO investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, we have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. We refer to this as ‘injustice’. Injustice may include distress, inconvenience or being put to avoidable time and trouble. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
9. The HOS 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 HOS considers the evidence and establishes if there has been any ‘maladministration’, including circumstances where a landlord behaved unreasonably, treated the complainant in an inappropriate manner or failed to comply with its obligations. (Paragraph 52 of the Housing Ombudsman Scheme)
10. The law says what the LGSCO can and cannot investigate. The LGSCO can investigate complaints about the acquisition or disposal of land. (Local Government Act 1974, part III schedule 5 3(2(a)))
11. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended and Paragraph 42 of the Housing Ombudsman Scheme)
12. If the LGSCO is satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
13. Following an investigation, the HOS may order a member landlord to take steps to put things right. (Paragraphs 54-55 of the Housing Ombudsman Scheme)

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How we considered this complaint

14. Both Mr X and the landlord have submitted information to the Ombudsmen and this has been carefully considered. 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.
15. We considered the complaint and correspondence from Mr X and the information the Council provided in response to written enquiries.
16. We referred to the Guidance on Remedies for both Ombudsmen, copies of which can be found on our websites.
17. Mr X and the organisation had an opportunity to comment on our draft decision. We considered any comments received before making a final decision.

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What we found

18. Mr X lives in a block of flats. The Council owns the freehold and Mr X has a long lease dated 8 July 2016. The rest of the block contains other residents on long leases, secure tenants of the Council, and tenants who rent from private landlords. There are also businesses which operate from the lower floors of the block. There are two lifts to the block – one is primarily for residents and the other is primarily for commercial purposes.

Maintenance

19. Mr X told us about repeated problems of disrepair in the block, especially to the lifts and windows. In response to enquiries, the Council accepted that a previous managing agent for the block had not kept the property in a suitable state of repair. Although it does not have any repair records for the period this managing agent was in place, the Council accepts that a lift was “out of action” for long periods in 2016 and that further repairs were undertaken in April 2017, August 2017, November 2017, July 2018, January 2019 and April-May 2019.
20. The Council agreed a new managing agent, with input from residents, to start in October 2019. It held an agreement from 1 October 2019 for the managing agent to liaise with residents to ensure the proper running of the property and carrying out of “general supervisory activities”, including annual boiler and lift inspections. Site inspections between September-November 2019 found that:
• the “external fabric” was “generally in poor condition” with some of the windows, in particular, in a bad state of disrepair;
• replacement of lifts was recommended to be undertaken urgently (in 2020);
• a related window survey report (from October 2019) showed 87 individual defects were identified so “a programme of extensive repairs or replacement of the majority of the glazing and associated elements will be required in the short to medium term (2 – 5 years)” with remedial works recommended such as replacing damaged or missing glass and replacing rotten sills and frames.
21. These indicate that the Council had not ensured that the lift and windows at the block (and potentially other items such as the “external fabric” of the building) were kept in good and substantial repair condition as the lease obliged it to.
22. It is of concern that the Council does not hold any details of communal repair records prior to its engagement with a new managing agent in October 2019. The HOS Spotlight Report on Managing Agents (March 2022) set out that accurate and robust records should be retained in circumstances where buildings are managed by third parties. These are necessary to enable the Council to monitor, and, if necessary, chase the performance of the managing agent against either their responsibilities or its own as the freeholder. The Council’s failure in this case to ensure such records were retained prior to October 2019 meant that it was unable to offer explanation or assurance to Mr X when he alleged that it had failed in its historic maintenance obligations.
23. Since the Council obtained condition reports relating to the windows and lifts in late 2019 to early 2020, there has been a lengthy period where recommendations to replace have not been met. Despite the urgency of the lift replacement in particular, it was not until December 2021 that this work was conducted, two years after the lift condition survey. This was despite a report in July 2020 that highlighted the urgency needed given the lift did not meet modern safety standards. Further, the substantial window works were still outstanding when the complaint exhausted the Council’s complaints process in October 2021 with an estimated start date of spring 2022.
24. Some delay was inevitable as the Council was obliged to enter tender and consultation periods given the extent of the major works necessary and additional window surveys in particular were impacted by the Covid-19 pandemic which is likely to have slowed progress. Further, there were multiple day to day repairs that the Council attended to during early 2020 to late 2021, demonstrating it attempted to complete interim works as and when required. For example, its block expenditure records demonstrated quarterly lift maintenance, lift repairs in March 2020, May-July 2020, November 2020 to February 2021, April 2021 and August-October 2021 and nine window repairs.
25. Nevertheless, although the Council attempted to ease inconvenience and health and safety concerns by visiting vulnerable households and arranging a concierge system, it will inevitably have been a source of frustration for residents in the block that the lifts were unreliable and sometimes out of use for lengthy periods and that some windows were left in a poor state of repair. This will have been especially concerning for leaseholders, including Mr X, who would have been worried about costs they would be incurring for repair charges and eventual major replacement works.
26. It is not clear if the cost of the works were due to past neglect as Mr X has alleged and, in the case of the lifts in particular, reports indicate that their age meant replacement was inevitable. In addition, it is not within the jurisdiction of the HOS to determine the reasonableness of service charges incurred by leaseholders. However, given the resident’s repeated concerns on this issue being raised through the complaints process, it is unreasonable that the Council did not give consideration to this view or provide a decision to him as to why it believed that charges were proportionate.
27. The Council provided an account to the HOS showing lift repair costs of £36,593.41 for the period December 2017 to June 2019 which it has said were not recharged to residents in recognition of the poor service that had been offered by the previous managing agents (up to October 2019). However, it is unclear whether additional charges incurred from October 2019 to December 2021 (for the lift) have been passed to residents, whether it has recharged residents for any window repairs and how it communicated this decision to leaseholders.
28. Further, through the complaints process, it did not identify or apologise for its block maintenance failings, consider Mr X’s allegations of negligence, decide whether any compensation was warranted in recognition of inconvenience caused by the lift unreliability or outline what steps it could take to prevent similar failings in future beyond a change in the managing agent. The Council therefore failed to offer sufficient redress to Mr X in accordance with the HOS Dispute Resolution Principles to ‘be fair’, ‘put things right’ and ‘learn from outcomes’.
29. Overall, the Council has acknowledged that there were failings in block maintenance prior to October 2019 and, despite changing the managing agent and limiting lift repair recharges, it has failed to fully acknowledge these, put them right or learn lessons in accordance with HOS Dispute Resolution Principles. There were also excessive delays in it resolving the extensive lift and window works from late 2019 to late 2021. This was maladministration.

Residents Association

30. Mr X is the secretary of a Residents Association (RA) for the block. Mr X says the Council recognised the RA in the 1980s. The Council says it sought to work with it.
31. Mr X and the Council exchanged correspondence in early 2018. This followed a meeting in November 2017, after which Mr X told the Council that the draft minutes produced by it were inaccurate and unbalanced. Mr X proposed terms of engagement in March 2018. These included a term that draft meeting minutes should be agreed between the RA and Council before arrangements for the next meeting could commence.
32. The Council responded in March 2018, setting out why it would not accept the terms of engagement and offering instead to retain two versions of the minutes rather than agreeing on a single version. It said that the proposed terms could “slow and frustrate dialogue”.
33. Mr X and the Council exchanged correspondence in September-October 2019. The Council reiterated that it did not agree with the terms and proposed the use of a third party to manage future meetings and minutes and said it would consult with residents as it had previously explained in August 2019. It added that no formal meetings with the RA were planned.
34. The Council had also referred to legislation and guidance that meant it could not agree to the terms. Mr X asked the Council in September 2019 and November 2019 to explain where there was conflict between the proposed terms of engagement and the Council’s legally binding procedure. The Council listed legislation and guidance in a letter in October 2019 but Mr X sought more details in a follow up letter in November 2019.
35. When the Council responded to Mr X’s complaint in April 2020, it again cited the need for minutes to be approved as a term that was likely to slow progress. It set out the other methods it was using to consult with residents of the block. In its subsequent June 2020 complaint response, it added that there were not legal reasons for its refusal to agree the proposed terms.
36. There was no maladministration in the Council’s decision on the proposed terms of engagement. It considered the request, consistently explained why it disagreed with the proposed terms, offered alternatives to the terms, including involvement of a third party, and explained that it was consulting with residents using other methods. This was a reasonable approach and there was no obligation on the Council to accept the proposed terms. It also suggested that there were legal reasons for refusing the terms but later corrected this through the complaints process.

Conflict of Interest

37. Mr X says the Council has a conflict of interest between the ongoing maintenance of the block and its intention to redevelop it. He says the Council has allowed the property to fall into disrepair to make the planned redevelopment a more attractive option.
38. The Ombudsmen make decisions about what happened based on the evidence. Where the evidence does not show the motivations behind an action, or inaction, we cannot speculate about what these may be. We can, however, consider how the Council dealt with a complaint about it.
39. Mr X points to the role of the “programme director”. The records indicate this officer held meetings and “drop-ins” with residents about maintenance issues, including the performance of the lift. However, these “drop-ins” are also described as part of the consultation with residents about the future of the block.
40. In letters to Mr X, the programme director’s signature said the role was part of the “Growth, Planning and Housing” directorate.
41. In response to enquiries, the Council said this directorate had responsibility for the redevelopment until March 2021. From March, redevelopment of the block came under the Finance and Resources Directorate. The Council said the Head of Strategic Asset Management is responsible for management and maintenance of the block.
42. Later correspondence said the programme director was “managed by two Directors from different parts of the organisation”. We understand this to mean the programme director was not exclusively working on either maintenance or redevelopment, but rather spanned both areas. This does not necessarily mean there was a conflict of interest. The Council has explained that this role did not have any direct responsibility for either maintenance or redevelopment. Rather, from the Council’s response to enquiries, it appears this role was intended to be a single point of contact between residents and the Council.
43. Mr X was clearly very concerned about the separation of responsibilities. In response to his complaints, the Council tried to reassure Mr X by explaining the division of roles:
• In response to Mr X’s stage one complaint, the Council said the programme director was now part of the “corporate property” team. It said this meant the division of functions between the “client” and the development team was clear.
• In February 2020, the Council told Mr X that it had appointed an “internal client” within the corporate property team. It said this “client” would oversee “operations” for the block
• Following a further complaint from Mr X, the Council clarified that by “operations” it meant that the internal client was responsible for assessing the options for the future of the block, not maintenance
• In April 2021, the Council told Mr X that the programme director was now the “head of operations manager” and that this included maintenance of the block
44. While the Council said these explanations intended to explain the division of responsibility and so reassure Mr X, we do not consider it properly or clearly did so. The Council’s explanations are not in plain English and do not explain what jargon such as “internal client” means.
45. As a result, we find the Council failed to tell Mr X in a meaningful way who was responsible for day-to-day maintenance issues and who was responsible for the ongoing consultations about redevelopment. It failed to explain that the programme director was not making decisions about either matter, but rather coordinated communication between the Council and residents of the block. Nor did it explain when this changed in 2021. This was fault. This caused Mr X avoidable and understandable confusion and frustration.

Consultation about redevelopment

46. The Council has explored different options for the future of the block. Broadly, these options are:
• Maintain the block
• Refurbish the block
• Retain the block and extend around it
• Redevelop the entire block
47. Some of these options (maintain or refurbish) would result in a charge to the leaseholders, including Mr X. Redevelopment or extension would mean that the residents must move out of the block.
48. Mr X says the Council failed properly to consult with residents of the block about the options for the future of the building.
49. The Council first consulted with residents about the future of the building in 2017. There was further consultation in 2018, when the Council added an additional option following the residents’ response to the first consultation. In October of 2018, the Council told the residents they would have the right to return to the block after it was redeveloped. The consultation included meetings, written materials outlining the options, and offers to meet with individual residents on request.
50. The Council started a new period of consultation in November 2020 which Mr X and other residents did not engage in.
51. The Council’s preferred option is to demolish and redevelop the site. Mr X and many of the other residents have expressed strong opposition to this option. This is because all the residents would have to leave their homes.
52. Mr X says the Council has been steadily buying available flats in the property for years to make redevelopment easier. From Mr X’s perspective, the Council has already decided to redevelop the building and so consultation with residents has no prospect of changing the outcome.
53. The Council had a statutory duty to consult with residents who were secure tenants of the Council. The Council did not have a statutory duty to consult with Mr X or most of the other residents in the building. However, once it decided to do so, the courts have said the process must be fair and meaningful. This means the Council should:
• Provide enough information and time for a proper and informed response
• Start consultation at a point when plans are at a “sufficiently formative stage”
• Consider responses with an open mind
54. This does not mean the Council cannot have a preferred option before it consults. Similarly, having an open mind does not mean the Council has to change its mind about what to do if consultation responses disagree with its preferred option. It means the Council has to take the responses seriously and decide whether to change its mind as a result.
55. Although redevelopment remains the Council’s preferred option, there is evidence that the consultation has influenced the process. As a result of responses to early consultations, the Council:
• included an additional option to retain the block and extend around it
• added new criteria against which the various options were assessed to include “minimise resident disruption and facilitate the preservation of local communities”
56. Mr X said the Council’s repeated communications about rehousing and housing options for the residents amounted to harassment. As a criminal offence, we cannot make a finding of harassment.
57. We recognise that the communications about rehousing could be a distressing reminder that residents might lose their homes. However, the Council had to balance this against the need to keep residents informed and invite them to share views. The volume, content, and nature of the communications are not such that we would find fault with the Council’s decision to send them.
58. Mr X does not want to leave his home and the Council’s preferred option to proceed with redevelopment has caused him understandable distress. However, there was no fault in how the Council carried out the consultation process.

Complaint handling

59. Mr X complained to the Council in December 2019. The Council did not respond to this complaint until April 2020. The Council’s complaint policy says it will respond within 10 working days. The delay of four months was fault.
60. Although the Council apologised for the delay, we do not consider this to be a suitable remedy for the injustice caused. Mr X told the Council it had directed his complaint to the wrong department more than once between December 2019 and early February 2020. The Council assured him it had sent the complaint to the right department only to then acknowledge in February that it had not. This caused Mr X avoidable frustration and time and trouble and undermined his confidence in the Council’s complaint process.
61. The Council delayed responding to Mr X’s stage two complaint by two weeks. This was fault and avoidably added to his frustration.
62. Similarly, there was a short delay before the Council responded to Mr X’s stage one complaint in February 2021.
63. Mr X asked the Council to consider this complaint at stage two in May 2021. The Council did not respond until October. This delay of four months was fault. However, we note that the Council kept Mr X informed of the delay, which limits the injustice caused by this further fault.

Conclusion

64. In accordance with paragraph 52 of its Scheme, the HOS found:
• maladministration in the landlord’s handling of Mr X’s concerns about block maintenance, a conflict of interest and the related complaint handling;
• no maladministration in the landlord’s handling of the decision about the resident association.
65. LGSCO found fault with:
• how the Council communicated with Mr X about his concerns about conflict of interest; and
• the Council’s complaint handling.
66. These faults caused Mr X avoidable frustration, which is an injustice.
67. LGSCO did not find fault with how the Council consulted with Mr X about its plans for the block.

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Action required

HOS orders

68. The Housing Ombudsman therefore orders that within two weeks of our final decision, the Council should:
• Write to Mr X to provide a breakdown to him of the charges that it has decided not to pass on to leaseholders in respect of lift repairs
• Advise him of any lift and window repair charges that have been passed on to leaseholders and why it has decided that these were reasonable
• Update him on when it will complete the window repair and renewal works proposed in its final complaint response (if these remain outstanding)
• Pay Mr X £250 in recognition of the distress and time and trouble caused to Mr X by the service failures identified in its handling of concerns about the maintenance of the block lift and windows
69. The Council should create an action plan within eight weeks of the final decision to demonstrate how it will ensure that clear and accurate records are maintained for communal repairs at all blocks where a managing agent is involved with its operations.

LGSCO agreed action

70. To remedy the injustice to Mr X from the faults we have identified, the Council has agreed to:
• Write to Mr X to apologise for the faults identified by both Ombudsmen and explain clearly how it will ensure that officers responsible for block maintenance and block redevelopment have a clear separation of duties.
• Pay Mr X £150 in recognition of the avoidable distress and frustration caused by the failure to explain the division of responsibility between maintenance and redevelopment in a meaningful way
• Pay Mr X £250 in recognition of the avoidable time and trouble and distress caused by the Council’s complaint handling
71. The Council should take this action within two weeks of the final decision.
72. The Council should also take the following action to improve its services:
• Share a copy of this decision with relevant staff to identify any learning from this complaint.
• Remind relevant staff that written responses to complaints should be in plain English and any jargon or language specific to the Council avoided or explained.
73. The Council should tell the Ombudsmen about the action it has taken within eight weeks of our final decision.

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Final decision

74. We have completed our investigation. There was fault by the Council. The action we have ordered and recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman