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Dartford Borough Council (202108863)

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REPORT

COMPLAINT 202108863

Dartford Borough Council

26 August 2022


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. Complaint is about the landlord’s decision to recharge the resident for proposed works to a shed roof.

Background

  1. The resident is the landlord’s leaseholder in a one-bedroom first floor flat in a block of four flats. Each resident has use of a separate section of the garden, and there are two communal sheds, one of which is the subject of the complaint. The shed roofs contain asbestos, and the landlord has been aware of this and monitoring it through specialist external surveyors since at the latest November 2008.
  2. Following contact from the resident and the tenant of the neighbouring property in February 2021 expressing concern at the condition of the asbestos roof, the landlord served a statutory notice on 2 March 2021 informing the resident of, and formally consulting on, its intention to remove and replace the shed roof, recharging 50% of the cost of the work to the resident. The resident responded welcoming the landlord’s decision to do the work but objecting to the recharge. He believed that the work was necessitated by damage caused by ivy from his neighbour’s garden, which had been allowed to grow over the shed roof by the former occupier, who had vacated in March 2020.  Since they had also been a tenant of the landlord and because he said that he had been reporting concerns about this issue for some time, he held the landlord responsible, through failure to enforce the neighbour’s tenancy agreement. This objection was rejected by the landlord.
  3. The resident formalised a complaint on 22 March 2021. His primary complaint is as described in his original reply to the consultation: that he should not be recharged for the works for the reasons mentioned above. He added that the landlord lacked integrity in its approach to the recharge and to his suggestion that it was responsible. Finally, the resident complained that the landlord’s response to his description of a conversation with the landlord’s asbestos surveyor, improperly questioned his own honesty.
  4. On 8 April 2021, the landlord issued its stage one complaint response. While apologising for potentially misleading wording in previous communication, the landlord rejected the complaint, saying there was no “specific damage” to the roof, but that replacement was necessary to prevent deterioration over time. The landlord added that there was “no evidence either way” as to the disputed conversation. The resident requested escalation of his complaint.
  5. On 30 June 2021 the landlord sent its stage two and final response. Again rejecting the complaint. It stated that the landlord had no duty to enforce tenants’ garden care responsibilities, that the ivy was not the cause of work needed, and that the right to recharge for the work arose from the terms of the resident’s lease. The resident then brought his complaint to the Housing Ombudsman Service which accepted it as duly made on 1 October 2021.

Assessment and findings

Scope of Investigation

  1. The consultation notice referred to above states that it is served pursuant to Schedule 3 of the Service Charges (Consultation Requirements) (England) Regulations 2003. It is referred to elsewhere in the landlord’s communication with the resident, as well as the landlord’s internal communications, and its reply to the Housing Ombudsman’s inquiry, as a “Section 20 Notice”. This refers to Section 20 of the Landlord and Tenant Act 1985, which creates the requirement for such consultation, while Schedule 3 to the 2003 Regulations, sets its form and content as applied to long leases like the resident’s lease in this case. In this report, the notice will be referred to as the Section 20 Notice.
  2. The resident does not challenge the landlord’s general right to recharge works of this type to leaseholders. Instead, he says that the right is displaced in this case by what he believes to be the landlord’s own failure to enforce tenancy terms preventing its former tenant – his former neighbour – from causing the damage. This assessment concentrates on that question.
  3. The approach taken goes beyond pure legal liability and considers what is fair in all the circumstances. However, whether as a matter of law or just of simple fairness, the following elements need to be present before it would be fair to say that the landlord should not in this case recharge for works it is otherwise entitled to recharge for:
    1. the landlord was or should have been aware of that risk that the ivy would cause damage to the asbestos roof;
    2. once aware (or once it should have been aware), the landlord should have acted to prevent any damage from happening; and
    3. the ivy did in fact cause damage that made otherwise avoidable work necessary.
  4. This report will also assess the landlord’s communication with the resident, and his complaint that the landlord responded misleadingly, as well as improperly questioning his own honesty.

Landlord’s prior awareness of risk

  1. The resident says in his 8 March reply to the Section 20 Notice, that he had raised concerns over his former neighbour’s garden and ivy growing from it onto the shed, as long ago as 2015. He did not mention this in his 23 February email to the landlord before that Notice was served, saying only that he had raised the matter to no avail with the neighbour herself. The landlord confirms in its response to the Housing Ombudsman’s inquiry, that it can find no record of any such contact, and the resident has provided no evidence of this. Evidence that the resident did alert the landlord to the concern before the 23 February 2021 is therefore inconclusive.
  2. The resident suggests that the landlord had a duty to inspect the neighbour’s property routinely, and thus to make itself aware of any breach by its tenant affecting him, even if he did not do so. There is no evidence that any such obligation existed in the neighbour’s tenancy terms nor within the resident’s lease agreement. As such, no service failure has been identified here in relation to the resident’s view that the landlord ought to have identified potential issues stemming from the neighbour’s property at an earlier point.
  3. It is also relevant that the resident would have had the opportunity to progress any complaints raised about this issue through the landlord’s complaints policy and then, if dissatisfied with the landlord’s response, on to the Ombudsman. Therefore, even if evidence existed of prior contact between the resident and landlord on this issue, there would be jurisdictional concerns from the Ombudsman’s perspective about the extent to which these historic issues could be considered.

Landlord’s duty to prevent damage or nuisance by neighbour if aware

  1. The landlord’s standard tenancy agreement shows that the previous neighbour did have an obligation to the landlord (term 4.3) to keep her garden ”neat and tidy”. She also had an obligation to refrain (term 4.9) from causing “nuisance, annoyance, inconvenience or damage” to neighbours or neighbouring properties, which would clearly have been breached if damage were shown to have been caused.  But these are obligations owed by that tenant to the landlord. There is no obligation on either party to enforce their rights against the other.
  2. However, the landlord’s duties to the resident are set out in the resident’s lease, and do include (term 4.4) a conditional duty to the resident to enforce certain obligations against other leaseholders of flats in the building. It does not mention any such duty to the resident in respect of neighbours who are not leaseholders. Nevertheless, as a matter of fairness in all the circumstances, this report considers that obligation as if it did also apply to other residents who are the landlord’s tenants but not leaseholders.
  3. The landlord’s duty under term 4.4 of the lease is to enforce against other residents, if so-requested by the resident in writing, other residents’ obligations under parts of the lease relating to prevention of damage to the building. This may reasonably be said to be analogous to the former neighbour’s duties under her tenancy agreement, referred to above. However, even treating this term of the lease to extend to obligations in relation to non-leaseholders, there is inconclusive evidence that any such request was made at all, and none that it was made in writing. There is no evidence that the landlord had any duty to take steps to check whether other occupants were compliant with their obligations in the absence of any such request, and this does not appear obviously unfair.
  4. Importantly, term 4.4 of the lease makes it a condition of any duty the landlord may have to the resident to enforce against other occupants – if asked to do so in writing – that the resident must bear all costs of the landlord’s doing so.
  5. It would be hard to justify a finding that the landlord should have done more to protect the resident from damage caused by a neighbour who was not a fellow leaseholder, than in respect of one who was.
  6. If the resident did make the landlord aware of an alleged breach by his neighbour and request enforcement (of which there is inconclusive evidence) and did so in writing (of which there is no evidence), the landlord would have been entitled to recover from the resident, the full costs of doing so. There is no evidence that this would have been cheaper than doing the work it now proposes to recharge the resident for, and no reason to presume that without evidence.
  7. Therefore the landlord’s position in saying that it was not obliged to routinely inspect, or to enforce the neighbour’s tenancy conditions in this respect for the benefit of the resident, as a third party to that tenancy, presents as reasonable in all the circumstances of the case.
  8. Leaving aside contractual duties and simple natural justice, the Ombudsman has also carefully considered statutory and common law duties the landlord may have had in this regard. There is no general landlord liability to neighbours for tenant nuisance in English law. There is caselaw very clearly establishing a land-owner’s liability to neighbours for damage caused by invasive plants originating on land it occupies. On review, though, this establishes liability arising from actual occupancy and therefore legal and factual control of the land, and not from mere ownership. It does not, therefore, appear to make a landowner liable for such damage permitted by occupants to whom the land-owner has let the land. In that case the liability would be the occupier’s, and not the landlord’s.

Whether the ivy caused damage which necessitated the proposed works

  1. The resident says in his 23 February 2021 email to the landlord, that when he pointed out the ivy over the shed roof to the landlord’s contractor attending some 11 months earlier, the contractor had assured him it was safe. That contractor is identified by both landlord and resident as contractor X. Contractor X is the contractor also named in the Section 20 Notice as the contractor with whom the landlord had previously contracted “under an existing long-term agreement previously consulted upon”, to carry out the asbestos removal and shed roof replacement work. There is no evidence that any objection was raised in the previous consultation, nor now in respect to the present consultation, that Contractor X was not properly qualified to do so.
  2. There is therefore no evidence, and no reason to think, that Contractor X operatives sent to do work at a site where asbestos was known to be present, were not qualified to make the assessment that the structure containing the asbestos was safe, as the resident says they stated it to be at that time.
  3. The landlord’s asbestos surveys have been carried out by at least two separate properly qualified consultants, as the resident refers in his 23 February 2021 email, to a conversation with a surveyor from a different organisation to the surveyor firm identified in the rolling “live” report provided to the resident and now to the Housing Ombudsman in response to his complaint. The report starts at 21 November 2008 and the version of the report now provided is dated 8 April 2021. expressly states at page 5 under “Recommended Remedial Actions”, “no action required”. In summary then, both the contractor who will be instructed to carry out works proposed in the Section 20 Notice, and at least two specialist consultants surveying the asbestos in question, have concluded that the asbestos was safe both before and after the resident’s current neighbour removed some ivy on 24 February 2021.
  4. The landlord’s repairs and maintenance policy states that:
  1. “The Council carries out asbestos surveys on all of its residential housing stock. In addition to the above, asbestos surveys to all of the communal and common areas of low rise properties have been completed. The asbestos surveys were carried out by an independent asbestos consultant in line with the Control of Asbestos Regulations 2012 & HSG 264 Asbestos: The Survey Guide.”   
  2. “Asbestos containing materials pose no risk unless they are damaged or disturbed in such a way that asbestos fibres become airborne.”
  3. “If there is any reason to suspect that there is any damaged asbestos in a property the Housing Repairs team should be contacted immediately…”
  1. Review of the evidence available demonstrates that the landlord has acted in accordance with the requirements of the policy as stated above. Notwithstanding the resident’s new neighbour’s telephone call to the landlord on 24 February 2021 expressing concern at having removed the ivy while not knowing that asbestos was present, there is therefore no evidence that it is presently a hazard, and clear evidence that it is not. Nevertheless the concern was raised, and the landlord responded by deciding to remove and replace the asbestos-containing roof albeit satisfied it was not yet dangerous.
  2. There is no evidence on which the Ombudsman could properly conclude that the landlord erred when it said, in its stage two response to the resident’s  complaint, that damage to the shed roof caused by the ivy was superficial, and did not affect the safety of the asbestos or cause the landlord to decide to carry  out  the works; nor that  the landlord is therefore dishonest or mistaken in its statement that the decision to do the work, is based upon the reason stated: namely that it is good practice to do so before any danger arises, as it inevitably must eventually, as the roof deteriorates over time.

Landlord’s communication, and application of its complaints procedure

  1. The landlord rightly apologises, in its stage one response to the resident, for potentially misleading earlier communication in which the appearance is created that the landlord became aware of the presence of asbestos only recently.
  2. The landlord’s Complaints Procedure sets a 20-working day response deadline for stage two complaints. The landlord responded only on 30 June 2021 to the resident’s stage two complaint escalation dated 6 May 2021. This was 39 working days. No warning appears to have been given to the resident that the landlord would not be able to respond within the period set by the procedure, and no apology or acknowledgement was provided when it did not.
  3. Furthermore the landlord says in its final response that there is “no evidence” of the conversation the resident reports having had with the initial surveyor. The Ombudsman can only assume that the landlord meant to say no other or corroborating evidence beyond the account given of this conversation by the resident when he contacted the landlord in February 2021. In any case, the landlord investigated the resident’s reports by contacting the surveyor company, with no corroborating evidence forthcoming from this discussion.
  4. As such, it was reasonable for the landlord to proceed on the basis that there was no substantive evidence of the position the resident had outlined about this discussion in his February 2021 report. The landlord had demonstrated that it had taken this report seriously, acted upon this by contacting the surveyor in question and then, in the absence of any corroborating evidence, it had proceeded with the complaint and its response to the substantive issue on the evidence it did have available.

Determination

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration with respect to the landlord’s decision to recharge the resident for proposed works to the shed roof.