Case digest

The decisions in these cases do not create precedents. Every new complaint must be decided on its merits according to what is "fair in all the circumstances". The details of these cases are confidential to the parties directly involved – except for those where the landlord is named.

Leaseholder consultation
A complainant and his wife were joint long leaseholders of Kent-based High Weald Housing Association. He complained on his own behalf, and on behalf of four other leaseholders, that the association was not entitled to charge for works to high-level balconies at the property carried out in 1996 and 2001. He regarded the problem as a latent defect and the responsibility of HWHA.

On a strict interpretation, the lease allowed the landlord to claim for the works. Consultation for both sets of works was governed by the provisions of section 20 of the Landlord and Tenant Act 1985 (as amended). Section 20 imposes certain requirements on a landlord who seeks to recover service charges for the cost of works carried out under a repairing covenant. If these requirements are not met, then costs which exceed £50 multiplied by the number of leasehold dwellings in the building, or £1000 overall (whichever is the greater) are irrecoverable. In this case, the original consultation for the works in 1996 was flawed.

However, following advice from its solicitors, HWHA got it right at a third attempt and the charge subsequently levied was justified. In relation to the works in 2001, on the other hand, HWHA failed to consult properly with the leaseholders. The fundamental mistake was that the leaseholders were not given the prescribed month's notice. The law is quite clear that one month's notice is required, not 28 days. This is an all too common mistake made by landlords and can easily be avoided. Furthermore, it did not appear from information contained on HWHA's files that the original notice and estimates were served on the complainant's wife, as a joint leaseholder. HWHA's ability to charge for the works was therefore restricted.

The ombudsman criticised HWHA for the way it communicated with the complainant regarding the section 20 notices. Prior to the complaint being considered by the HWHA's board, its solicitors had advised that the notice for the 2001 works was deficient and might be challenged as a result. Neither the chief executive nor the board were aware of the exact terms of this advice when they dealt with the complaint. A director of HWHA had provided the wrong information. As a result, HWHA mistakenly argued that the requirements of the Landlord and Tenant Act had been met. The explanations given both to the complainant and to the board were inaccurate and misleading. The ombudsman awarded the complainant £250 to reflect his time, trouble and effort in bringing the complaint. He also ordered that the association limit its costs for the works carried out to the property in 2001 to £1000 to be shared between each of the units.

Racial harassment
A complainant reported to staff at a hostel run by English Churches Housing Group that he was being subjected to racially motivated harassment, but at first they did nothing.

He was later moved into semi-independent accommodation in a tower block, but so were the perpetrators of the harassment, despite the complainant's expressed concern. He was then seriously assaulted by one of these neighbours and two unauthorised occupiers of her flat, about whose presence ECHG had been alerted but had taken no steps to remedy. He had to be hospitalised as a result.

ECHG took no action to investigate the alleged involvement of its residents and unauthorised occupiers in the assault. Following the complainant's discharge from hospital, ECHG not only continued to fail to support him but also failed to provide tokens for his electricity meter, leaving him without power for five days.

Then, after he received death threats from a relative of one of his assailants, ECHG moved the complainant to another of its hostels in a different town. However, it took no effective action to relocate him to a metropolitan area where he hoped to find work as a computer programmer. After nine weeks, the complainant left the hostel and made his own way to the place where he wanted to live. He then made a complaint to ECHG's head office. The customer complaints panel of ECHG offered him £1000 compensation without admission of any error or failing.

However, the ombudsman's investigation found that the panel had identified the lack of a relocation policy to be a problem in this case, but that ECHG took no action to follow this up. The ombudsman determined that there had been multiple instances of maladministration. He required ECHG to apologise to the complainant as well as paying him compensation. He required ECHG to review its policies and to provide training for hostel staff on recognising, recording and acting on racial harassment. He also required ECHG to provide training for the complaint panel members.

Following the man’s discharge from hospital, English Churches failed to deal with his claims of racial harassment and also left him without electricity for five days

Allocations and human rights
A complainant was referred by the local borough council to a women's refuge managed by Swale Housing Association. Seven weeks later, she was evicted from the refuge for breaching a requirement not to see her former partner. The complainant applied to SHA for rehousing in the same month and was later informed that she was excluded from the association's housing register for a year for reasons connected with her eviction from the refuge.

The complainant used SHA's complaints procedure to appeal against the decision to exclude her. Although a panel upheld the decision to exclude her, she was allowed back onto the association's register at the expiry of the exclusion period. SHA never offered the complainant accommodation. She was rehoused by another social landlord a few months later.

The ombudsman's investigation found severe maladministration in respect of the SHA's handling of the case. It had breached the complainant's human rights in requiring that she have no contact with her former partner, who was the father of her newborn child, while she was a resident in the refuge, and it evicted her for failing to comply with that requirement and for other reasons, none of which justified the eviction. SHA operated a "statutory housing register" on behalf of the local housing authority, but without a formal contract and without reference to the statutory framework for such registers, and it confused its roles as the administrator of the register and as a landlord taking part in the register.

The ombudsman also found that, as a consequence of that confusion, SHA unlawfully excluded the complainant from the statutory register and unfairly excluded her from its own housing register. In the opinion of the ombudsman SHA was incompetent and biased in dealing with the complainant's appeal against her exclusion. His investigation revealed that a member of staff had fabricated new allegations against the complainant at the appeal stage.

Moreover, after the complainant was allowed on the register, SHA failed to prioritise her application correctly following the expiry of her exclusion and the local housing authority's reversal of a prior decision that she had been intentionally homeless. The ombudsman required SHA to pay compensation of £3000 and apologise to the complainant and her advisors. He also required it to take action to ensure compliance with legal requirements, to review its exclusion policies and train its staff and board members on the implications of the Human Rights Act.

Composite allocation assessment
A tenant of East Thames Housing Group applied for a transfer after experiencing several incidents of harassment from youths on her estate, and was awarded points under the less urgent of two harassment categories.

ETHG was aware at that point that the complainant had a history of mental illness but, despite her expressions of concern for her mental health, failed to consider whether medical points should have been awarded to her application.

Subsequently, incidents occurred that had serious consequences for the complainant's mental health. Her young son was assaulted on the estate by a local man who was later convicted and fined. Due to his fears of further violence from his assailant, the child went to live with a relative until his mother was rehoused more than two years later. Despite having been informed of the assault within days of it happening, ETHG delayed six months before making any attempts to investigate the incident or consider its relevance to the woman's transfer application.

In the meantime, the complainant was admitted to psychiatric hospital after being surrounded and verbally abused by a gang of youths on the estate. She remained an in-patient for three months. ETHG failed to consider several letters from her psychiatrists during a period of two years, which stressed the link between her housing circumstances and the deterioration of her mental state, and her urgent need for a transfer. It eventually awarded her urgent medical points in recognition of her health needs, nine months after her discharge from hospital. The complainant was also disadvantaged significantly by ETHG's transfer policy, which failed to allow for a composite assessment of need for households with multiple-housing needs (R v Islington LBC ex p. Reilly and Mannix (1998) 31 HLR). She fell into three categories of need but, in accordance with the policy, was awarded her full points entitlement only against one of these categories.

Swale HA breached the woman’s human rights in requiring that she had no contact with her ex-partner, who was father of her baby, while she was living at the refuge

Her rehousing was further delayed by ETHG's unjustifiable suspension of her transfer application for three months while it awaited the birth of her third child and receipt of a birth certificate. Instead of deciding whether to consider her for two-bedroom or three-bedroom properties during that period, it failed to consider her against either size category and she missed two offers for which she should have been next in line.

The ombudsman found maladministration and awarded the complainant £3000 to take account of ETHG's significant failures in dealing with her transfer application, and criticised its policy's failure to facilitate a composite assessment of her needs. The ombudsman noted that there were also positive aspects to ETHG's handling of the case, including its attempts to find the complainant alternative accommodation through other landlords and the efforts of the support worker it allocated to her case.

Fixed-service charges
A complainant living in a supported housing scheme with communal laundry facilities complained that she was subsidising her neighbours' use of those facilities.

The neighbours in question lived in flats in the next-door house, which were initially intended as part of the supported housing scheme, but were subsequently let by the landlord on a general needs basis.

The ombudsman's investigation established that the complaint was unfounded. Although the landlord had provided confusing information over a lengthy period about her neighbours' service charges and their payments for the use of the laundry, it was clear that the neighbours paid charges for the laundry until they were informed that they could no longer use it and the locks were changed to prevent them gaining access.

Although the ombudsman found no maladministration, his inquiry established that there had been significant confusion among all staff about the service-charge system. The understanding of both the landlord and the complainant was that her service charges were variable, whereas they were, in fact, fixed. Fixed-service charges are defined within a tenancy agreement as part of the rent, and the rent can only be increased once every 12 months by way of service of a section 13 notice, Housing Act 1988. This means the service charges cannot be varied within the year, and that overspends cannot be recharged to tenants at year end. The landlord had not followed those provisions.

Nevertheless, there was no evidence that the complainant had been disadvantaged by the confusion. Standard letters and the tenancy handbook had, however, been inaccurate and misinformed her of her rights in relation to service charges.

It seemed that the confusion applied to the landlord's stock, and it might well have resulted in maladministration if someone else was disadvantaged at some point. The ombudsman, therefore, criticised the landlord for the considerable confusion in its administration of its service charge system.

He recommended that the landlord obtained expert legal and/or accountancy advice, and reviewed its procedures and literature in accordance with that advice.

East Thames failed to consider letters from the woman’s doctor for two years, which stressed the link between her housing situation and her mental deterioration

Good work by complaints panel
A tenant complained to his landlord about harassment from neighbours. On assessing the facts of the case, the ombudsman concluded that the landlord had made fundamental errors in its dealing with the complaint. Not least, it did not investigate the matter as one of harassment, but investigated it as a neighbour dispute.

There were difficulties in obtaining evidence from neighbours, who agreed that members of a neighbouring family were a problem but would not support that in writing. There had been allegations against the complainant, too. In addition, the complainant had asked the landlord not to take any further action while he remained in occupation of his flat. Nevertheless, the landlord did not do all it could have done to have the situation investigated or to support the complainant.

At a complaints hearing, members of the landlord's panel acknowledged the failings and were quite critical of officers. They asked for policies to be reviewed and apologised to the complainant. They noted that they had no liability in law, but offered £250 compensation as a goodwill gesture.

In the opinion of the ombudsman, this was a particularly good example of how a complaints panel should operate. Under the circumstances, there was no further action the ombudsman could expect the landlord to take. The complainant also claimed the landlord had mishandled his transfer application, but there was no evidence to substantiate his allegations.

Right to buy: service-charge woes
A complainant purchased his flat on a mixed-tenure development under the preserved right to buy. His complaint related to the operation of the service-charge fund generally, and specifically the "advance payment fund" (sinking fund).

The ombudsman's investigation established that the landlord was not collecting for the fund on a logical basis; for example, there were no stock condition surveys to form the basis of the fund. The amount paid by leaseholders towards the fund was arbitrary. The leases within the development had different provisions for the collection of the fund: some of them had no requirement to pay into the fund at all. Also, while several leaseholders were paying voluntarily, others did not and there was no clear definition in the leases for works to be paid for from the fund.

The ombudsman also found that the landlord's service-charge accounts did not comply with statutory requirements; for example, surpluses and deficits arising on the accounts were not managed as prescribed, nor as expected in good practice or in the provisions of the leaseholder's handbook.

In particular, the ombudsman was critical of the landlord's failure to follow the statutory limitations in section 125 of the 1985 Housing Act, under which a landlord must, among other things, inform a tenant intending to exercise the right to buy of any projected expenses to be recovered as service charges within a "reference period" of five years.

Although the complaint was considered at all levels by the landlord, at no time did it recognise that those limitations on recoverable sums applied. It thus recovered sums, some of them substantial, that had not been included in a section 125 notice.

The ombudsman also found shortcomings in the way the landlord fulfilled its contractual obligations to provide a cleaning service.