Co-op Homes (South) Limited (202012691)

REPORT

COMPLAINT 202012691

Co-op Homes (South) Limited

24 October 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

The resident complains about:
1. The landlord’s position on removal of items from communal areas;
2. The landlord’s position on the use of a rooftop garden;
3. The landlord’s handling of reports of bullying;
4. The landlord’s handling of reports of contractors attending to carry out removal not complying with Covid-19 precautions, and not presenting ID.
The Ombudsman has also considered the landlord’s complaint handling.

Scope

In his complaint to this Service, the resident has stated that he feels he has been discriminated against by the landlord because he is disabled. The Ombudsman cannot make a finding of discrimination under the Equalities Act 2010 or otherwise, since this is a legal matter that would have to be determined by a court. We are therefore unable to consider whether the landlord has engaged in discriminatory practices towards the resident. However, the Ombudsman does consider whether the resident was treated fairly in the landlord’s handling of his concerns.
The resident has also explained that he and his wife are disabled and in their 60s, and that the situation has had an impact on their health. While sorry to hear this, the Ombudsman is unable to make a determination on whether the actions or inaction of landlord are responsible for any deterioration in health or exacerbation of a health condition. Such a decision requires an assessment of liability and would best be decided by a court or insurer.
The above positions are in line with paragraph 42 (g) of the Scheme which states that the Ombudsman may not investigate complaints that concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure. However, the Ombudsman does consider whether the resident was treated fairly in the landlord’s handling of his concerns.

Background

The Regulatory Reform (Fire Safety) Order 2005 requires the landlord to manage fire risk in the communal areas of its properties.
The Housing Act 2004 sets out a landlord’s responsibility to keep fire escape routes clear and ensure tenants understand they need to do the same.
The resident’s Tenancy Agreement states that tenants must not in any way encumber with shoes, boxes, prams, motor cycles, mopeds, cycles, or otherwise leave rubbish upon any part of the building used in common with other tenants.
The landlord’s Shared Areas Removal of Items Procedure in place at the time set out that in order to comply with Health and Safety and Fire regulations, and to respect the local environment, all shared areas including roof terraces, stairwells and walkways must be kept clear of any items that cause obstruction. Where items had been identified in the communal areas, it would write to all residents in the block (by letter or text) giving notice that offending items would be removed without prior warning. This was to give tenants the opportunity to bring items back into their home if they wished to keep them. The landlord would not store items removed.
The landlord’s complaint procedure in place at the time set out a two stage process. If a resident was unhappy with the outcome of their stage one complaint, they could request a review which would be heard by someone independent of the complaint– offering the resident and other parties to the complaint the opportunity to put forward their views. A senior staff member would review the complaint and following this, a draft summary report would be created to capture the conclusion. Once the report was finalised and agreed, the senior staff member would communicate this to the resident.
During the complaint investigation and in any review, a resident would be given a fair opportunity to set out their views, and comment on any findings before a final decision was made.
At the end of the complaint investigation and at the end of the review (if there was one) the landlord would write to the resident to say how they could take the matter further if they were dissatisfied with the outcome, and that they may refer the complaint to the Housing Ombudsman Service.

Summary of events

On the 17 November 2020 the landlord wrote to all residents stating that items left in the communal areas or the communal gardens were a health and safety risk to all residents and visitors. It had been noted that there were a lot of personal belongings in the communal areas and therefore cleaners had been instructed to remove these without any prior warnings. The letter said the items would not be stored so residents should retrieve any belongings if they wished to keep them. The letter quoted the section of the tenancy agreement stating that tenants must not in any way encumber any communal areas.
On the 25 November 2020 the resident made a formal complaint to the landlord. He explained that he had encountered a strange man in the communal area of his building removing residents’ belongings from the roof garden. The resident said he asked the man who he was but the man refused to tell him and said he could take anything he wanted, and also refused to provide any ID. The resident also complained that this man and another individual who was in attendance were not wearing any PPE and therefore had endangered residents’ safety while under Covid-19 restrictions.
The resident went on to say ‘…we have had this garden space since we moved in it is part of our tendency and recognised as such by yourselves and we will not be intimidated into any other view.’ The resident linked this issue to a possible redevelopment of the block, and said that not only had the incident caused harm and distress, it was in breach of his human rights. The resident noted that both he and his wife were disabled and vulnerable and had concluded that these actions were deliberate on the part of the landlord. The resident also referred to other issues in his letter such as estate management and repairs.
The landlord has stated to the Ombudsman that this was discussed further via telephone on 2 December 2020 and it was agreed to be passed on to a senior staff member in line with stage two of the complaints policy. However, there is no record of this discussion.
The senior staff member provided a response dated the 11 December 2020, addressing a number of issues raised by the resident. This included his concern regarding the moving of items from communal areas, with the landlord acknowledging the resident’s concerns that items were removed with no warning, that contractors did not wear any PPE and refused to show ID or give their names. The landlord said that the order had been placed to remove all items in communal areas as part of a recent fire risk assessment and quarterly estate inspection. It stated that items left in the corridors and communal spaces including the rooftop garden and access area needed to be removed, as this was a hazard in the event of a fire or emergency escape from the building. Advance warning had been given to tenants regarding this, the last one being a hand delivered letter to all properties on the 17 November 2020. The landlord provided a copy of this letter.
The landlord noted that their contractor had reported that during this visit the resident had been threatening and aggressive and as such they did not wish to engage with him at the time. The landlord said that it would continue to work to ensure communal areas remained obstacle free, as was designated by its external fire risk assessor.
Regarding access to the communal roof garden, the landlord said that this was granted as a favour and did not constitute part of the resident’s tenancy agreement, and on the condition that no personal belongings were left there, as a stipulation of its fire risk assessments. The landlord noted that the roof garden still contained a number of items belonging to the resident, and asked him to remove these at his earliest convenience, otherwise it would need to raise an order for them to be cleared. The landlord said that if the area continued to be used to store personal items, it would have no option but to consider locking it, which would mean that no residents in the block would be able to access the roof garden. The landlord also addressed concerns the resident had raised about being bullied, saying that it had no record of any previous complaints about this and asked the resident to provide details of when and how this had happened, and it would then investigate.
The landlord wrote to the resident on the 13 of January 2021 explaining that it had been advised by its fire risk assessment advisor that items were still being left in the communal stairwells or on the communal roof, which was a hazard. It said that he would need to remove all personal items from the communal areas before the 26 of January 2021. The landlord would attend the block on the 27 January 2021 with a clearance company and all items would be immediately removed and disposed of. The landlord reminded the resident that the roof garden formed no part of the tenancy agreement.
The resident contacted this Service in January 2021. As it was unclear from the copy of the landlord’s December 2021 letter whether the complaint process had been exhausted, the Ombudsman wrote to the landlord on the 3 of February 2021, setting out the resident’s concerns, and asking the landlord to get in touch with the resident for further details of the complaint and provide a written response, if the resident had not yet completed the complaint process. Alternatively, if the complaint process had been completed, this Service asked the landlord to provide a copy of the final response. The Ombudsman also wrote to the resident on 3 February 2021 advising him of this. In response the resident forwarded copies of correspondence with the landlord from 2018, and another copy of the landlord’s December 2020 letter.
On 8 April 2021 the Ombudsman wrote to the resident explaining that while we could see that the landlord had responded to the complaint on 11 December 2020, it was unclear whether the resident had asked to escalate the matter with the landlord, and explained that before the Ombudsman could consider a complaint, the landlord’s complaint process must be exhausted, with the landlord issuing a final written response confirming this. We advised the resident to escalate his complaint with the landlord, setting out why he was dissatisfied and the outcome sought. The Ombudsman explained that if the resident had already done so, it could ask the landlord for a copy of the further response, and asked the resident for further details about his complaint. This Service also wrote to the landlord asking it to either contact the resident about the matter, or forward a copy of the final response to the Ombudsman.
When the resident confirmed in June 2021 that he had received no further contact from the landlord, this Service again chased the landlord for a response on the matter. In July 2021 the landlord confirmed that the complaint had exhausted its complaint process.
In July 2021 the Ombudsman again wrote to the landlord regarding the provision of a final response to the complaint, noting that it was unclear from its December 2020 letter whether this was considered a final response or not. The landlord then wrote to the resident on the 29 July 2021. It said that it was its understanding that stage one and stage two of its complaint process had been completed. The resident’s complaint had been closed and there were no outstanding actions for it to progress. The landlord noted that it had asked the resident for specific instances or when he had felt bullied but had not had a response.

Assessment and findings

In his complaint to this Service the resident has said that he feels he has been harassed and discriminated against by the landlord because he is disabled. The resident has stated that the property is due to be redeveloped and he feels the landlord is trying to get rid of him because of this. The resident disputes the landlords assertion that the rooftop garden does not form part of his tenancy and that storing things in the garden could be a safety hazard. The resident says that the use of the roof garden has always been in place and forms part of his tenancy agreement.
The resident has also said that the landlord and its contractors have trespassed and should not have access to the roof garden, and also disputes the account of his own behaviour having been aggressive and threatening. The resident has explained that he and his wife are disabled and in their 60s, and that the situation has caused them stress and is having an impact on their health.
When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution:
1. Be fair – treat people fairly and follow fair processes;
2. put things right, and;
3. learn from outcomes.
The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse effect, the investigation will then consider whether the landlord has taken enough action to ‘put things right.’

The landlord’s position on removal of items from communal areas

In line with the Regulatory Reform (Fire Safety) Order 2005, the Housing Act 2004, the tenancy agreement, and the Shared Areas Removal of Items Procedure, the landlord was obliged to ensure that all communal areas were kept clear of items. As such, it was reasonable for it to take action when items left in the communal areas were identified, and its position that such items needed to be removed was appropriate. Further, a landlord is entitled to access the communal areas of its properties at any time, and in doing so is not trespassing. There is no indication that the resident was treated unfairly here.
While the evidence available demonstrates that the landlord advised residents (via its 17 November 2020 letter) of their obligations to keep communal areas clear and warned that items would be removed if found, it is noted that the landlord’s Shared Areas Removal of Items Procedure does not appear to fully reflect the Torts (Interference with Goods) Act 1977, which sets out responsibilities when removing a tenant’s property. In this case the resident has not raised any concerns about belongings having been removed (rather, he is unhappy that the landlord has indicated that it would do so), and so this does not materially affect the complaint made. However, a recommendation is made to the landlord at the end of this report to consider its position in relation to the Act.

The landlord’s position on the use of a rooftop garden

The landlord explained that access to the roof garden did not form part of the tenancy agreement. The Ombudsman has been provided with a copy of the tenancy agreement, which does not provide for the use of a roof top garden. As such, and while the resident has been permitted to use the roof top garden nonetheless, there is no ‘right’ to do so, and the landlord’s position on this matter was reasonable.

Bullying

In his complaint to the landlord, the resident stated (referring to the contractor’s attendance to remove items from communal areas), ‘This incident is the most recent in a history of harassment, neglect, and bullying spanning years.’In reply, the landlord noted that it had no record of any previous complaints about bullying and said, ‘Please give me the details of when and how has this has happened and I will carry out an investigation.’ This was a reasonable first step for the landlord to take in light of the concerns that the resident had raised. As the resident did not provide further details of his concerns, there was no further action for the landlord to take on this matter.
While the Ombudsman recognises that the resident experienced the landlord’s position on use of the roof garden and belongings left there as bullying, and understands that this was very distressing for him, as explained above, the landlord’s position on this was reasonable and in line with its obligations and the tenancy agreement.

Contractors attending to carry out this removal not complying with Covid-19 precautions, and not presenting ID

The landlord acknowledged these aspects of the complaint in its 11 December 2020 response, but other than stating that it would remind contractors that ID should be visible at all times, did not address these concerns. This was a failing on the part of the landlord, which should have responded to all aspects of the complaint, or explained why it could not. It did not follow a fair process here, which has led to frustration for the resident, and time and trouble in pursuing the matter.

Complaint handling

The landlord provided a single response to the complaint on 11 December 2020, which, as it was from a senior staff member, appears to have been at stage two of the complaint process. The response did not set out how the resident could take the matter further if he was dissatisfied with the outcome, or that he may refer the complaint to the Housing Ombudsman Service, and so was not in line with the complaint policy. Neither is there any indication that the resident was given the opportunity to comment on any findings before the final decision was made. Further, it took a number of contacts from this Service for the landlord to confirm in July 2021 that it had issued a final response.
It is the Ombudsman’s view that only allowing one response to a complaint will be unfair if this does not allow sufficient opportunity for residents to respond to the landlord’s position. Having a further stage allows for a review, bringing a wider perspective and level of expertise to a complaint, and may ensure full consideration of both sides of a complaint.
Overall, the landlord did not handle the complaint fairly or in line with its policy. It is not clear why the first stage of the complaint process was skipped, and this meant that the resident was not afforded the opportunity to comment on or counter the landlord’s response to his concerns. For example, had the complaint process been followed the resident would have been able to follow up on his concerns about the Covid-19 precautions, which the landlord had failed to address.
Finally, in reply to the Ombudsman’s request for information in relation to this investigation, the landlord noted that it had not been made aware of the resident having any vulnerabilities. This is concerning given that the evidence available shows that the resident clearly noted in his communications to the landlord that both he and his wife were disabled and vulnerable. As such, a recommendation is made below.

Determination (decision)

In line with section 52 of the Scheme, there was:
1. No maladministration in relation to the landlord’s position on removal of items from communal areas;
2. No maladministration in relation to the landlord’s position on the use of a rooftop garden;
3. No maladministration in relation the landlord’s handling of reports of bullying;
4. Maladministration in relation the landlord’s handling of reports contractors attending to carry out this removal not complying with Covid-19 precautions, and not presenting ID, and;
5. Maladministration in the landlord’s complaint handling.

Reasons

The landlord’s position on removal of items from communal areas and the use of the roof top garden was reasonable, and in lieu of further information pertaining to the resident’s concerns about bullying, its handling of this matter was reasonable.
However, the complaint response failed to address the concerns about contractors not complying with Covid-19 precautions, and not presenting ID, and the landlord did not follow its complaint handling policy, giving only a single response. This meant that the resident was not provided with a full response to his concerns. In addition, the failure to clearly set out that its December 2020 letter was a final response caused delays in the resident being able to escalate the matter.
These failings have led to frustration to the resident, and additional time and trouble in pursuing the complaint, and so orders to ‘put things right’ are made below. The compensation amount is in line with the Ombudsman’s own guidance on remedies, which suggests amount of £100 and above where there has been a failure which adversely affected the resident, but no permanent impact.

Orders

Within one month of the date of this report, the landlord must:
1. Pay the resident a total of £250 for the adverse affect caused by the failings in its handling of the reports about the contractors (£100), and the complaint handling (£150).
2. If it has not done so in the last 12 months, conduct a staff training exercise, with a view to ensuring that all relevant staff are aware of the complaint process, the importance of providing a response at both stages, and responding to all aspects of a complaint. Reference should also be made to the Ombudsman’s Complaint Handling Code.
3. If it has not done so in the last 12 months, remind contractors of the policy on presenting ID.

Recommendations

The landlord should take steps to satisfy itself that its procedure for removing items from communal areas is in line with Torts (Interference with Goods) Act 1977.
The landlord should ensure that it has a record of the vulnerabilities of the resident’s household.