Your Housing Group Limited (202016452)

REPORT

COMPLAINT 202016452

Your Housing Group Limited

26 November 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

1. The complaint is about:
   1. The landlord’s response to the resident’s reports of antisocial behaviour consisting of neighbours leaving rubbish and personal items in communal areas.
   2. The landlord’s complaint handling.

Background and summary of events

2. The resident was a joint tenant and occupied his home under an assured tenancy with the landlord. It was a two-bedroom flat in a three/four-storey block. The tenancy began on 7 November 1994.
3. The resident’s concerns focussed on the health and safety aspects of items being left in communal areas by his neighbours. The resident accepted that the landlord sent warnings to the relevant neighbours. It was the resident’s view that those warnings did not prevent the storing or dumping of items in the common parts and therefore the landlord should take injunction proceedings against the persistent offenders and if that failed, seek their eviction.
4. Under the tenancy agreement, the services included the cleaning of common parts for which the landlord charged a variable service charge. The landlord had an obligation to keep the common halls, passageways and other parts “fit for use”. The tenant was prohibited from causing a nuisance. It is assumed that his neighbours were subject to the same tenancy terms.
5. Under the ASB policy, ASB covered a range of issues, including littering, graffiti or dumping of rubbish i.e. fly tipping.
6. The ASB policy stated that the landlord was committed to working with victims in order to help determine its responses in dealing with reported incidents. When considering what, if any, legal intervention to take, it would look to making fair and proportionate decisions, based upon all the facts available to it at the time.
7. Under the landlord’s complaints policy, the complaints process was a three-stage process. Stage “0” had a response target of 10 working days. Stage 1 would be a full investigation by a manager with a response target of 15 working days from the date of receipt of the complaint. The landlord could take a complaint outside of the procedure or choose to close the complaint at any stage of the procedure, giving detailed reasons for the decision. Stage 2 was a review by a Team Leader/Manager who was not involved in the original complaint. This stage of the complaint “was allowed a longer time” to ensure that all information was considered carefully. It aimed to resolve complaints within 15 working days.
8. The landlord could put a complaint on hold for reasons including seeking further information from the resident or outside agency.
9. Legislation addresses a landlord’s right to remove possessions that belong to third parties under the Tort (interference with Goods) Act 1977. What this effectively provides is that a landlord must, before removing items left on its property, give notice that it believes that the items are abandoned and that it would remove them within a reasonable period. The notice is commonly referred to as a ‘TORT’ notice. If the landlord did not know whom the items belonged to, it would be usual practice to leave the notice on the items themselves.

Chronology

10. The evidence showed this was a long-standing matter in relation to which the resident had made a previous complaint. He made a complaint on 17 December 2018 as follows:
    1. The complaint concerned a problem that had been ongoing over many years of residents leaving rubbish and personal items.
    2. Neighbours left items in the communal areas of the building, including the bin rooms, which items included furniture, TV sets, cardboard boxes, household rubbish, clothes, bikes, household appliances and large pieces of wood with nails sticking out of them, for weeks at a time.
    3. He felt the landlord had ignored the issue or sent warnings that had no effect.
    4. The landlord had informed the perpetrators that the resident was the complainant, which he felt was vindictive.
    5. The landlord had made assurances to him, but no action was taken.
    6. He had made a previous complaint on 26 June 2018 and provided photographic evidence.
    7. He was told on 27 June 2018 that the landlord would only serve a TORT notice and not take any other action as it would be “unmanageable”. He felt the issue was a serious health and safety hazard including a trip hazard, and risk in a fire, particularly in the light of the Grenfell Tower disaster in 2017.
    8. Leaving the items was also unsightly and added to the stigma of living in social housing.
11. According to an internal email of the landlord dated 17 December 2018, it decided to deal with the complaint “outside” its complaints process. There is a gap in the landlord’s evidence between 17 December 2018 and 23 September 2019 and it is not clear what, if any, action was being taken during this period.
12. As a result of the resident contacting this service, this service wrote to the landlord on 19 September 2019, asking the landlord to reply within 10 working days to the resident’s complaint he had raised in December 2018 concerning a pest infestation, rubbish and personal belongings being left in communal areas. The landlord replied on 23 September 2019, stating it had progressed the resident’s concerns as a “stage 0 complaint”. It also wrote to the resident on the same day, stating that his concerns had been passed to the appropriate department and it would aim to “resolve this” within the next 10 working days.
13. On 7 October 2019, the landlord wrote again thanking the resident for this complaint and stating it had a “strict clear landings procedure” in place and its staff should be dealing with the matter. It assured the resident that it would “ensure that this behaviour does not continue”.
14. The resident wrote to the landlord again on 1 November 2019 and 4 November 2019 to report the issues were ongoing. He reported that in addition to rubbish and other items, electrical cables were running out of one of a neighbour’s windows and into the neighbour’s garage. He had also been harassed, threatened, and even assaulted by the perpetrators. He said rubbish was left out for days and even weeks. He had provided photographs.
15. According to the landlord’s records, it inspected the building on 11 December 2019 and the landing was clear.
16. The landlord closed the complaint on 17 December 2019 without providing a written response to the resident . On the same day. the resident wrote again. He noted that the landlord had inspected on a weekly basis and found nothing to report, however the resident disputed this.
17. The landlord wrote to a neighbour of the resident’s on 18 December 2019 with a tenancy warning.
18. On 19 December 2019, the landlord wrote to the resident stating it would aim to respond to the resident’s complaint as soon as possible after 2 January 2020. The landlord met with the resident on 21 January 2020 and on the same day, the resident provided further photographs.
19. The landlord wrote to the resident on 24 January 2020 stating that all items had been removed and it had placed “TORT” notices on other items outside. It would be increasing the number of inspections. It also wrote a further warning letter to the same neighbour on the same day.
20. On 28 January 2020, the resident reported further items, some of which had been there for three weeks, and also reported there were electrical cables hanging from the neighbour’s window. The landlord stated it would inspect the block the next day, remove items, speak to neighbours and update the resident. The resident made a further report on 30 January 2020. On 4 February 2020, the landlord took photos and did not identify any issues.
21. The landlord wrote its first stage complaint response on 6 February 2020 as follows:
    1. It agreed that continually putting personal items in the communal hallway constituted a breach of tenancy.
    2. It had spoken with the relevant neighbour and sent the neighbour a warning letter.
    3. It would increase visits to at least twice weekly for the next two months.
    4. It had served a further TORT letter.
22. On 6 February 2020, according to the landlord, it spoke to the same neighbour. The landlord has shared a report of the conversation with the Ombudsman but this cannot be shared with the resident, due to data protection requirements. However, the Ombudsman is satisfied the conversation addressed the resident’s concerns, without referring to the resident.
23. According to the landlord’s internal emails, on 13 February 2020, the items left were small and it would consider entering into an acceptable behaviour contract with the relevant neighbour or neighbours.
24. The resident wrote to the landlord on 20 February 2020 with further reports of items being left. He stated that items were still being left by various residents including mats, umbrellas and a large cardboard box. He noted that a TORT notice was served on 29 January 2020 and that the landlord removed items on 31 January 2020. It was his view that his neighbours ignored the landlord’s notices and therefore visits would be inadequate as items would still be left. His view was that the landlord should take legal action against repeat offenders. According to the resident, the landlord had previously stated that a court would not grant an injunction or a community penalty notice. The resident felt court action was the only effective action.
25. The landlord replied on 20 February 2020 that it did not intend to be a collection service and simply collect items. It could not monitor the building continually. It also stated that matters seemed to be improving.
26. The landlord took photos on 21 February 2020.
27. On 25 February 2020, the landlord accepted the escalation of the resident’s complaint and said it would respond within 20 working days.
28. On 4 March 2020, the landlord recorded that the building was clear on inspection. The landlord wrote another warning letter on 12 March 2020 to a relevant neighbour.
29. On 16 March 2020, the resident set out his reasons for escalating the complaint:
    1. The problem had not been resolved.
    2. The landlord had intended to close his complaint in December 2019, claiming no rubbish was visible during his weekly visits but he disputed this.
    3. In January 2020, the landlord accepted there was a problem (as well as a breach of tenancy).
    4. He felt one particular housing officer had been more proactive by weekly visits and removing items but the situation persevered. He agreed the landlord should not be a collection service and he was not prepared to pay for that cost through his service charge.
    5. Legal action was the only solution.
30. According to its records of 19 March 2020, the landlord was of the view what it was doing enough with its weekly inspections to keep the communal areas clear. It accepted, however, that the issues had not been entirely resolved and that there should be a review. It could not disregard that the items dumped could be causing a fire hazard.
31. On 20 March 2020, it was noted by the landlord that one of the cardboard boxes was a delivery.
32. The landlord wrote to the resident with its second stage response as follows:
    1. Regular weekly inspections had been undertaken and photos taken once a week between 26 February 2020 and 16 March 2020. The photos showed the areas to be clear of any debris or rubbish.
    2. Visits were likely to be scaled down due to lockdown.
    3. Where appropriate, action would be taken against any tenant in accordance with its anti-social behaviour policy.
    4. It could not share the identity of the neighbour who had been contacted with the resident.
33. According to the landlord’s records1 April 2020 that no items had been left in the communal areas in the previous three weeks.

Assessment and findings

The landlord’s response to the resident’s reports of antisocial behaviour consisting of neighbours leaving rubbish and personal items in communal areas.

34. It was evident from the correspondence that the landlord has not provided to the Ombudsman all the correspondence between the parties that took place in 2019. The resident made references to what had been stated by the landlord which was not evidenced in its correspondence. However, as these were the explanations by the landlord for not taking action, which the Ombudsman sees no reason to doubt, the Ombudsman accepts the resident’s evidence of the landlord’s responses.
35. It was evident that the resident’s complaint dealt with very long-standing issues which had not been resolved and, by the resident’s account, had got worse in December 2018. It is also reasonable to conclude from the resident’s emails that the landlord’s responses to the resident’s reports had been to serve TORT notices and to warn the neighbours of the consequences if they persevered with their actions of leaving items in the communal areas. There was no evidence that the situation improved during the course of 2019. It is understandable that the resident felt frustrated that no further action was taken in the light of the persistent behaviour by the perpetrators of leaving items in the communal areas. The landlord had a duty to ensure that the communal areas were safe from hazards and obstructions, in particular in case of fire.
36. There was evidence that the landlord considered legal action. It was reasonable of the landlord to consider the chances of success and appropriateness of such action. A court would consider whether it was just, convenient and proportionate to grant an injunction and is therefore a discretionary matter for the court to decide and not an automatic process. A court would expect a party to seek alternative means of resolution. The second reason given by the landlord for not taking legal action, according to the resident, was that it would be “unmanageable”. It is not clear what was meant by unmanageable, however, as well as considering the chances of success, the landlord was entitled to weigh up the legal costs and staff time expended. While the appropriateness of issuing injunction proceedings may have been debatable, issuing possession proceedings could be even more problematic. When considering making a possession order, a court would have to consider whether it was reasonable to make a possession order and that eviction should be a remedy of last resort. In the circumstances, the landlord’s decision not to have pursued proceedings was reasonable.
37. However, the landlord could have pursued other means such as an Acceptable Behaviour Contract (ABC) or serving a Notice Seeking Possession as a more robust threat. There was evidence that the landlord considered an ABC but no evidence of whether it did or not do so, or explanations either way. If, in the future, the landlord identified evidence of significant and persistent fly-tipping and knew the identity of the perpetrator, it could consider injunction proceedings against that individual if, in its opinion, it were reasonable and proportionate to do so. It could also consider serving a notice seeking possession as a warning, were it appropriate, even if it was minded not to pursue it. It is noted that the landlord would not be able to share the detail of such decisions with the resident, due to data protection.
38. There was no evidence that the landlord shared with the resident the identity of the source of the complaints with the neighbours or that it acted out of vindictiveness.
39. The actions of the landlord in the early part of 2020 were reasonable and focussed: it issued a number of TORT notices and warnings, it monitored the building on a weekly basis, and it removed items.
40. While the Ombudsman accepts that the resident’s evidence that the problem had persisted to a degree and notes that he had spent time and trouble pursuing these concerns and the delays and lack of progress must have been frustrating for him, the evidence also showed that the landlord‘s actions produced results, in that the situation had improved by the time of the second stage response. The landlord was, in the circumstances, entitled to conclude that its actions were having an effect and there was even less reason to pursue legal proceedings.

The landlord’s complaint handling

41. The resident did not complain about the landlord’s handling of this complaint. However, the Ombudsman notes that the resident made a complaint on 18 December 2018. Even though the resident’s communication was unambiguously sent as a complaint, there was no evidence that it was addressed as a complaint until this service contacted the landlord on 19 September 2019 and the landlord acknowledged the resident’s complaint on 23 September 2019. The delay was significant and inappropriate. Moreover, it did not respond to the resident’s complaint until 6 February 2020, also an inappropriate delay.
42. While the Ombudsman noted that the landlord sought to meet with the resident in January 2020 which, through no fault of either party, took two weeks to arrange, the delay in the landlord’s complaint response was effectively from 18 December 2018 to 6 February 2020. This is an inappropriate and significant delay of over a year. There was no evidence of an explanation for the delay or evidence that the resident was updated.
43. The resident’s complaint was specific. The complaint was that, given the landlord had issued warning letters, served TORT notices, arranged collections of the abandoned items, and had weekly inspections, he wanted to know why the landlord did not take legal action. The landlord did not clearly address the resident’s central point. The landlord had accepted, as was appropriate, that leaving items in the communal areas was in breach of the tenancy agreement and was a fire hazard. It also gave assurances it would “ensure the behaviour did not continue”. The landlord needed to provide a clear explanation, as far as it was reasonable to do so, why it would not escalate its actions to court proceedings, in particular until the point when matters did improve, and set out what it could and could not do. Not to provide an explanation may seem that the landlord was tolerating breaches of tenancy, when a landlord may have proportionate and good reasons for not pursuing every breach with court action, but instead was seeking to manage them in alternative ways, as a court may expect it to do.
44. The landlord did not address the resident’s complaints that the landlord shared the source of the complaint with the neighbours or his comments about receiving threats. There is insufficient evidence for the Ombudsman to draw any conclusions on the latter, and the allegations may be historical. However, the landlord should ensure all aspects of a complaint are or have been addressed, if it has not done so already. The resident made a reference to a pest infestation which, while it was not pursued by the resident, the landlord should consider addressing.
45. In the circumstances, there was service failure in relation to the landlord’s complaint handling.

Determination (decision)

46. In accordance with paragraph 54 of the Housing Ombudsman’s scheme, there was:
    1. No maladministration in relation to the landlord’s response to the resident’s reports of antisocial behaviour consisting of neighbours leaving rubbish and personal items in communal areas.
    2. Service failure in relation to the landlord’s complaint handling.

Reasons

47. While the Ombudsman understands the resident’s frustration at the lack of progress, the landlord took action in that it contacted the relevant neighbour or neighbours, it monitored the block, it sent warning letters. The improvement in the situation evidenced that the landlord’s actions was effective. It said it would keep the situation under review. Its decision not to issue proceedings at the time was reasonable.
48. The landlord closed complaints, did not respond or delayed its responses without reasonable explanation or any explanation. It did not address all of the resident’s issues. This would have been frustrating for the resident. The landlord missed the opportunity of providing clear explanations of its actions to the resident.

Orders

49. The landlord is ordered to pay the resident £75 in recognition of the failings in its complaint handling and the resident’s time and trouble in pursuing the matter within 28 days.
50. The landlord should confirm compliance with the resident within 28 days.

Recommendations

51. The landlord should keep the monitoring of the block under review, in accordance with its assurances.
52. The landlord should ensure it maintains good record keeping in order to provide an audit trail of its actions and clarity to all concerned parties.
53. The landlord should ensure it provides complete records to the Housing Ombudsman.
54. The landlord should ensure it adheres to its complaints policy in terms of its aims and timescales and considers providing training to its staff to ensure they appreciate the importance of good complaint handling. It should also ensure it addresses all aspects of a resident’s complaint. The landlord should consider staff training in that regard.
55. While it is noted that the initial informal stage should offer a response within two working days, the landlord should also consider adopting a two-stage complaint procedure and is referred to the Housing Ombudsman’s Complaint Handling Code. Complaint Handling Code – Housing Ombudsman (housing-ombudsman.org.uk)