Clarion Housing Association Limited (202002914)

REPORT

COMPLAINT 202002914

Clarion Housing Association Limited

6 April 2021

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 the resident’s:
1. concerns about the removal of a walkway gate;
2. associated formal complaint.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
The resident asserts that she is the owner of a section of walkway (communal balcony) which runs along the front of her fourth floor flat, and that a gate, sectioning off that area (and providing security to her property) also belonged to her. She states that her ownership arises as a result of ‘possessory title’. The landlord has removed that gate and the resident has complained about its actions.
Paragraph 39 of the Scheme states that this Service ‘will not investigate complaints which, in the Ombudsman’s opinion:

(i) concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure;

(r) concern matters where the complainant is seeking an outcome which is not within the Ombudsman’s authority to provide.’

The Ombudsman does not have the authority to interpret the terms of the resident’s occupancy agreement with regard to the demised premises, or to establish a legal principle such as possessory title. These matters would need to be considered as part of a legal claim, with the courts having the requisite powers, remit and expertise to make a legally binding decision in that regard. As a result, these issues are not considered further in this report (in accordance with paragraph 39(i) of the Scheme).
Further, the resident wants the landlord to reinstate the gate by way of a remedy to her complaint. However, for this Service to direct such action, it would have to either make a legal determination about the resident’s claim (which it cannot do) or have legal confirmation that that claim has already been decided in the resident’s favour (which has not been provided). As a result, the Ombudsman is not in a position to provide this particular outcome requested by the resident and so does not address the matter further in this report (in accordance with paragraph 39(r) of the Scheme).

Background and summary of events

The resident’s property is a fourth-floor flat which she occupies under the terms of a long lease agreement with the landlord. The walkway which runs along the front of the property was sectioned off by a gate until late November 2018.
In July 2018, the landlord wrote to all residents in the block stating that a recent inspection had been carried out by the fire brigade and they had raised concerns about personal belongings being stored in communal areas. It concluded that they not only presented a fire risk but were also a tripping hazard for residents trying to escape the building in the event of an emergency. It noted that some residents had installed their own gates and that this was unacceptable, and they needed to be removed. It confirmed that it would be serving notices requiring removal of these items, failing which it would remove them itself.
At the same time the landlord provided the resident with a “Notice of Tort” (NOT) telling her she had left her gate on the landlord’s premises and it would dispose of it should it not be removed within 21 days.
On 15 October 2018 the resident emailed the landlord, asking it to respond to her “attached” letter dated 19 July 2018 about the situation. However, by 31 October 2018 the resident had received a letter from the landlord (dated 29 October 2018) setting out that work was to go ahead regarding the removal of the gate. She had spoken to the landlord by telephone that day and emailed it to confirm her request that no action be taken until it had considered the contents of her letter of July 2018 (which she stated had been sent by recorded delivery) and provided its response. The email stated that a further copy of the letter could be found “below”.
The landlord acknowledged this request on 1 November 2018 and gave an estimated response time of 5 working days. The resident responded that she considered the landlord’s original NOT to be invalid and asked for confirmation that nothing would be done until at least 12 November 2018 to give time for the landlord’s promised response.
However, the staff member who was dealing with the issue was then reassigned by the landlord. She emailed the resident on 7 November 2018 stating that another staff member would be in touch with her and in the meantime she supplied the resident with some documents. The resident responded that they did not answer the points she had raised in her letter.
On 10 December 2018, the resident complained to the landlord. She explained that she had purchased her flat in May 2018 and in July 2018 she had received the NOT stating that her gate was to be removed and was a fire risk. She had replied to the NOT in writing but had received no response and, in the meantime, the landlord’s staff member had reassured her that no action would be taken regarding removal until her representations had been considered. However, this had not happened and, on 29 November 2018, she had come home to find the gate had been removed.
The resident said that this was unacceptable as she had ‘possessory title’ to the walkway, given that the gate had been in place for 30 years. She said she would have taken legal proceedings to prevent its removal had she not had the reassurance from the landlord’s staff member that nothing would happen without the landlord reverting to her first. She insisted that the gate be reinstalled at the landlord’s expense.
In the absence of a response, the resident sent chasing emails on 16 January and 4 July 2019. The landlord’s internal records show that a voicemail was left for the resident on 5 July 2019 to let her know her complaint would be investigated shortly. A telephone conversation then took place on 23 July 2019 to discuss the complaint and to apologise for the landlord’s delay in replying (due to relevant staff members being on annual leave).
In the landlord’s Stage 1 response of 24 July 2019, it detailed the contents of its July 2018 letter to residents and said that it had been unable to “locate” the resident’s response to the NOT. However, it had identified two emails from her, one requesting that no removal take place until the situation was resolved and the other where she had asked for a delay until after 12 November 2018. It had not agreed to either request and had written to confirm, on 16 November 2018, that it had approval to remove the gates and that it had acted upon that shortly after.
The landlord recorded its understanding that the resident was asserting that the gate had been in place for 30 years and she therefore had “possessory title” to the walkway. It pointed out that, in fact, the resident had purchased her leasehold interest in May 2018 and the extent of her ownership was set out in a lease plan which did not include the walkway. It agreed that the lease provided a right of way over the walkway, but this did not carry the right to block it. It referred the resident to clause 3 of the fifth schedule of the lease on this point. It confirmed that prior notice had been given before the removal and that it was not agreeable to reinstating the gate. It finished by stating that its response concluded the complaint.
In the resident’s response of the same day she stated that the landlord had not responded to the points raised in her letter of 19 July 2018 and she had never been supplied with a copy of the report the landlord had received from the fire brigade. She said the landlord’s staff member had confirmed in writing that the gate would not be removed until her original letter had been dealt with. She therefore asked the landlord go back through that correspondence and address her concerns.
The landlord wrote to the resident again on 2 August 2019, thanking her for her “complaint” received on 30 July 2019 regarding her request for a response to her letter dated 19 July 2018. It sent a copy of its complaint response of 24 July 2019 and commented that the gate had now been removed and, as this was more than six months previously, it was now unable to address her complaint.
The landlord’s internal records show that, on 6 September 2019, the resident supplied her comments on the landlord’s “recent correspondence” and on 24 and 26 January 2020 she chased the landlord for updates. The landlord then provided its Stage 2 response on 14 February 2020, when it noted the resident’s desired remedies as follows:
1. A response to her letter dated 19 July 2018;
2. A determination as to whether its actions in removing the gate were accurate, legal, fair and reasonable;
3. A decision to be made as to whether it would reinstall the gate;
4. Compensation for its removal if it were judged to be illegal or unreasonable.
The landlord stated that it had tried to contact the resident on 28 and 29 January 2020, to discuss the second stage process, without success. It agreed that it had not responded in writing to her letter of 19 July 2018 but stated that its officer had discussed the situation with her in October 2018. It apologised for its lack of response.
It gave its understanding of the legal position regarding possessory title and maintained that the walkway was not part of the resident’s property. It stated that it “had every right to remove the gate if we felt that it infringed upon our fire and health and safety policies for block type buildings”. It provided a copy of its policies and referred to the relevant section as stating “all access routes in the communal areas of open balconies, including walkways and pathways must be kept clear at all times”.
The landlord also referred to the Local Government Association’s ‘Fire safety in purpose-built blocks of flats’ guidance (and provided a copy). In particular, it drew the resident’s attention to section 43.6 which stated that, whilst residents can take measures to ensure their own safety (such as additional locks and alarms) they must not do anything which prevented or delayed escape in the event of a fire, either for themselves or for other residents. It confirmed that, given the policy and legislation in place, it would not be offering to reinstall the gate. In terms of security, it noted the block benefited from an entry phone system to prevent intruders.
The landlord maintained that it was satisfied it had acted lawfully in removing the gate and that it had given notice which had been acknowledged at the time. However, because the resident’s letter of 19 July 2018 had not been responded to, it offered £100 compensation and stated that, as far as it was concerned, its complaints procedure had now been concluded. It referred the resident to this Service if she remained dissatisfied.
In the resident’s response of 6 April 2020, she denied receiving the landlord’s telephone calls as set out in its letter. She accepted that her land registry title did not currently include the walkway but stated that she had a statutory declaration from the previous owner setting out the latter’s control of the area in question. She maintained her intention was to establish possessory title over the walkway, which she considered was indefensible, and insisted the gate be reinstated.
The resident stated that she had raised queries in the past, in her letter of 19 July 2018, which had not been responded to. Specifically, she wanted to know how the landlord was going to maintain the existing level of security without the gate; she wanted to see a report prepared by the landlord in conjunction with the fire brigade; and she had asked for any “previous information and correspondence relating to the gate” to be sent to her.
The resident also commented that she had not previously seen the landlord’s policy documents which were enclosed in its letter of 14 February 2020 and would have disputed them, had she seen them sooner. She asked to see the risk assessment the landlord had undertaken to decide that the removal of the gate was the right course of action when she understood it was originally installed to prevent criminal activity. Finally, she rejected the offer of £100 compensation and stated that she would refer the matter to this Service.
On 12 May 2020 the landlord wrote to the resident thanking her for her email and apologising for its delay in replying. It referred her to its review response of 14 February 2020 and confirmed that that response represented completion of the final stage of its complaints procedure but she could refer the matter to this Service if she wished to do so.

Agreements, policies and procedures

The Local Government Association’s ‘Fire safety in purpose-built blocks of flats’ guidance states that:
1. its purpose was to offer practical advice on how to assess risk from fire and how to manage fire safety;
2. it does not introduce new standards or regulations, but builds upon existing good practice and guidance currently in place;
3. residents may take their own measures, including fitting additional locks to front doors and installing intruder alarm systems. Again, care is needed to ensure that any measures taken do not conflict with the need to escape in the event of fire. Where possible, leases should be used to constrain the fitting of excessive security measures, such as grilles, gates and shutters, that might delay escape by residents; impinge on the safety of others (e.g. across a common balcony); or prevent access to fire and rescue service to effect rescue and fight a fire in a flat.
The landlord’s ‘Open access balconies and walkways to flats – fire safety arrangements’ guidance states that:
1. all access routes in the communal areas of open balconies, including walkways and pathways must be kept clear at all times;
2. residents must not make alterations to communal areas by installing items such as fencing, trellis or gates which block access/egress or section off parcels of communal areas belonging to (the landlord).
The Lease states that:
1. The landlord promises to keep in repair the structure and exterior of the flat and the building; it also promises to keep in good repair “all other property over and in respect of which the resident has been granted rights”;
2. The resident has the right to “go pass and repass over and along all such parts of the building and the estate as afford access to the flat for the purposes only of access to and egress from the same”;
3. The resident promises “not to obstruct the landings, staircases, balconies, corridors or lifts….”
The landlord’s Complaints Policy:
1. states that the first stage follows initial attempts to solve an issue informally. If this has not proved possible, this stage involves a formal complaint being recorded and investigated. At the end of this stage the resident can request a “peer review”, by way of stage two, if they remain dissatisfied. They must set out their desired outcome when requesting this step;
2. does not prescribe any time scales, on the landlord’s behalf, for dealing with complaints.
The landlord’s Compensation Policy states that:
1. It can offer a discretionary payment to maintain “good relations” where a resident has been inconvenienced by its failings. It gives examples which include: the time taken to resolve a complaint; recognition of any failure to follow process; and any known costs that have been reasonably incurred;
2. the amount of compensation should be based upon £100 for each aspect of the impact on the resident “for every year the issue has taken us to resolve”.

Assessment and findings

Removal of the gate

It is accepted that, shortly after the resident moved into the property, the landlord served the NOT requiring her to remove her gate from across the outside walkway. The evidence shows that the resident responded quickly, by letter on 19 July 2018 and it is agreed that this was not replied to. The landlord denies having received that letter, although the evidence shows that the resident supplied further copies on 15 and 31 October 2018 (no copy has been provided to this Service). However, from the surrounding evidence it is reasonable to conclude that the resident raised the question of possessory title, asked for a copy of the fire assessment which concluded that the gate needed to be removed, and requested no action be taken pending the landlord’s response.
After the further copy was supplied to the landlord on 31 October 2018, it agreed to provide a response within 5 working days, but there is no evidence that it did so. In the landlord’s Stage 2 response it said that it wrote to the resident on 16 November 2018 confirming that the gate was to be removed shortly afterwards, and that it had not agreed to the resident’s requests to delay removal. The landlord has not provided a copy of its letter of 16 November 2018 and the resident has not produced any evidence to confirm that the landlord promised not to remove the gate until a reply to her July 2018 letter had been formally given.
Whilst this Service cannot adjudicate upon the legal issues the resident has raised, it does conclude that, given the nature of the resident’s representations and the legal procedure being following by way of the NOT, she was reasonably entitled to have the landlord’s proper response to her July 2018 letter, and ideally before the gate was removed. The landlord’s lack of a reply represented a service failing which left the resident in the dark as to what its position was and what action it was going to take.
In terms of the actual removal of the gate, as set out above, to conclude that the gate was wrongfully removed would require a determination about ownership of the walkway and that is outside this Service’s jurisdiction. It is noted however, that the lease agreement includes a promise on the resident’s part not to obstruct the balcony and the landlord’s policy is clear that gates should not be installed. Both of these matters would have a bearing on the case, even if the resident was successful in demonstrating her possessory title. Further, it is by no means certain that the resident establishing such title would have prevented the landlord from asserting that the gate should be removed (in light of the requirements of other fire and health and safety regulations).
No report has been produced following the fire brigade’s inspection to confirm that it raised a concern about the gate. In the event that it did raise the issue, the landlord acted reasonably in taking its advice and acting upon it. However, even if the fire brigade did not raise a concern, the landlord has a responsibility to the residents in the block with regard to fire safety and it acted reasonably in noting that the gate might obstruct access to the resident’s property and impede her escape in the event of an emergency. Further, it is noted that the Local Government Association guidance supports the landlord’s concern. The landlord therefore acted reasonably in reaching its conclusion that the walkway needed to be clear and unimpeded.
The landlord has offered £100 compensation for its failure to respond to the resident’s letter of 19 July 2018. According to its compensation policy this was a reasonable offer because it only addressed the situation in its Stage 1 response in July 2019 and this was one year later (the policy provides for £100 compensation per issue per year). As the landlord’s lack of response to the resident’s July 2018 letter is the only element of service failure identified in this case, and the only matter for which compensation was necessary, the Ombudsman is satisfied that the landlord responded to this part of the complaint appropriately.
In identifying whether there has been maladministration the Ombudsman considers both the events that initially prompted a complaint and the landlord’s response to those events through the operation of its complaints procedure. The extent to which a landlord has recognised and addressed any shortcomings and the appropriateness of any steps taken to offer redress are therefore as relevant as the original mistake or service failure. The Ombudsman will not make a finding of maladministration where the landlord has fully acknowledged any failings and taken reasonable steps to offer redress, as it has done in this case.

Complaints handling

The resident made a formal complaint on 10 December 2018. Despite chasing the landlord in January and July 2019, no Stage 1 response was given until 24 July 2019, some seven months after the complaint was made. Whilst the landlord’s complaints policy does not provide for any timescales, the resident was entitled to a response within a reasonable period of time, which the Ombudsman would suggest is 10 working days (in accordance with the Complaints Handling Code).
The landlord’s first response did not signpost that there was a second stage to its procedure if the resident remained dissatisfied, which it would be expected to do (in accordance with the Ombudsman’s Complaint Handling Code). The resident persevered but was met by confusion when the landlord incorrectly assumed that she was making a further complaint and that it was outside of its six-month time limit. In September 2019, the resident pressed the matter further but the landlord did not supply its Stage 2 response until February 2020, a further 6 ½ months after the resident had expressed that the Stage 1 response was unsatisfactory. Again, this was unreasonable on the landlord’s part.
The landlord’s delays in dealing with the complaint represent a service failing on its part. Having complained about a lack of response to her representations about the gate, the resident experienced the same issue in the landlord’s handling of her complaint, which exacerbated the situation and her frustration is evident in her communications. Despite this, the landlord did not recognise its failings in the handling of the formal complaint within its response to that complaint. In view of the fact that it took from December 2018 until February 2020 to progress through the two stages of its procedure, despite regular contact from the resident, this Service considers that a compensation payment of £100 is appropriate in that regard and an order is made below.

Determination (decision)

In accordance with paragraph 55b of the Scheme, the landlord has made redress to the resident which, in the Ombudsman’s opinion, satisfactorily resolves the complaint about the removal of the gate.
In accordance with paragraph 54 of the Scheme, there was service failure by the landlord in relation to its handling of the resident’s associated formal complaint.

Reasons

The resident made representations about the removal of the walkway gate, but the landlord removed it without formally addressing her concerns. Through the operation of its complaints process, it recognised this failing and offered proportionate compensation which satisfactorily resolved this part of the complaint.
When the resident complained it took the landlord 14 months to progress that complaint through the two stages of its complaints procedure which represented an unreasonable delay. The compensation offer only addressed the substantive issue, and not the failings in the complaints process. The landlord might reasonably have been expected to recognise and acknowledge that its complaints handling had fallen short and offered a remedy as a result.

Order

The Ombudsman orders the landlord to pay the resident £100 compensation in respect of its handling of her formal complaint.

Recommendations

The Ombudsman recommends that the landlord should:
1. Reoffer to the resident the £100 compensation offered in respect of her concerns about the removal of the gate, if this has not already been paid, as it recognised genuine elements of service failure and the sufficient redress finding is made on that basis;
2. review its staff’s training needs in relation to its complaints handling failures and with regard to implementation of its Compensation Policy, to seek to prevent a recurrence of the issues raised by this complaint. This includes the landlord self–assessing whether it complies with this Service’s Complaint Handling Code which can be found at https://www.housing-ombudsman.org.uk/landlords/complaint-handling-code .