Harlow District Council (202210843)

REPORT

COMPLAINT 202210843

Harlow District Council

6 October 2023

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 the landlord’s:
   1. handling of the resident’s concerns about the location of the bin stores and the construction of the bin stores.
   2. sending the resident rent requests.
   3. handling of the resident’s neighbour erecting a birdhouse outside the resident’s home.
   4. placement of fencing around the bin store.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (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.
3. In accordance with paragraph 42 (a) of the Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
   1. The landlord sending the resident rent requests.
   2. The landlord’s handling of the resident’s neighbour erecting a birdhouse outside the resident’s home.
   3. The placement of fencing around the bin store.
4. Paragraph 42(a) of the Scheme says that the Ombudsman may not consider complaints which ‘are made prior to having exhausted a member’s (landlord’s) complaints procedure.”
5. In this instance the resident would need to log a complaint with the landlord about the above issues as the Ombudsman has not seen evidence that these complaints have exhausted the landlord’s complaints procedure. The resident may be able to bring the new complaints to the Ombudsman if he remains dissatisfied once the issues have been through the landlord’s complaints process.

Background

6. The resident is a secure tenant and lives in a ground floor flat.
7. On 25 May 2022 the landlord wrote to all residents on the estate regarding its proposal to change the way waste was collected. The landlord said it had initially sent residents a proposal for creating new communal waste collection points on the estate in July 2020. The landlord advised the collection points would contain bins stores for the non-recyclable waste from the ground floor properties on the estate and bin stores for the dry recyclable waste for all properties on the estate. The landlord outlined the expected benefits of the new waste collection scheme, including all properties having the opportunity to recycle their waste and not just those on the ground floor. It stated the new collection points would provide adequate containment of waste, reducing the risk of attracting vermin and non-recyclable waste would be collected on a weekly basis for all properties and not just those on the upper floor.
8. The landlord’s letter outlined its responses to the petition raised by some residents raising their concerns and questions about the new proposal. The landlord also explained why it would not be feasible or safe for ground floor properties to each have individual wheelie bins. The landlord advised the proposed bin stores were designed to be as unobtrusive as possible and the two larger stores on the roadside would have shrubs behind them, in order to screen them from view on the property side. The landlord stated the bin stores would only be visible from the roadside.
9. Following the landlord’s letter to the residents on 8 August 2022 stating that the works for the bin stores were due to be undertaken from 12 September 2022, the resident raised a complaint on 18 August 2022. The resident stated he was unhappy with the landlord’s proposals for the installation of the new bin stores because they would blight the view from his living room window. The resident also expressed his dissatisfaction about the landlord initially failing to address the resident’s reports of rubbish being dumped around his home.
10. The landlord responded to the stage one complaint on 26 August 2022. It stated the consultation for the new waste collection arrangements had started in May 2020 and the project had been put on hold because of comments and concerns raised. The landlord advised the benefits of the new collection arrangements were:
    1. The new collection points were closer to resident’s homes, and this would likely deter the indiscriminate fly tipping and dumping that was currently taking place on the estate, which the resident had previously complained about.
    2. The landlord had been successful in the roll out of similar bin enclosures throughout the area and similar concerns raised by other residents had not materialised after the collection points were in place.
11. The landlord advised the design of the bin stores had taken into consideration the location of the bin stores within accordance of a number of guidance and regulations, including building and fire regulations. The landlord recognised the resident’s concerns about the visual appearance of the bin stores when he was looking outside of his living room window. It advised that as outlined in its plans, there would be vegetation planted between the resident’s window and the bin enclosure. The landlord also advised there was an elevation difference, and the bin stores would lie on lower ground to the resident’s home, at the road level. The landlord stated this would ensure there would be very minimal, if any visual impact to the resident.
12. On 8 September 2022 the resident requested for his complaint to be escalated to the next stage of the landlord’s complaints process. He disagreed with the landlord’s stage one findings and stated he was first made aware of the issue after the landlord had written to residents about rubbish being left outside homes. The resident states he had not left rubbish outside, and that the landlord had felt it was okay for other residents to dump their rubbish outside of his home. the resident advised he had mental health issues, and the matter was stressing him out.
13. The landlord provided the resident with a stage two complaint response on 26 September 2022. It advised the resident had previously raised the issue of rubbish being dumped outside his home on several occasions. The landlord advised the letter the resident had referred to was a Section 46 Notice that had been sent to all ground floor residents regarding rubbish not being disposed of correctly. The landlord explained that despite fines being issued, the action had not been successful in dealing with the problem of waste being left in the communal areas. As a result, the landlord had explored other ways to reduce the dumping of rubbish, namely positioning communal bin stores throughout the estate.
14. The landlord explained the primary driver for the new waste collection proposals were the indiscriminate dumping around the estate, and its estate cleaners and residents had been included in consultations. The location of the collection points (bin stores) had been dictated by building and fire regulations. It advised this standard was the code of practice for methods of storage, collection and segregation for recycling and recovery. The landlord also reiterated that it would be commencing weekly collections for the ground floor properties instead of the current fortnightly collections. The landlord advised it did not feel people would hang around the bin store and if the resident started to experience antisocial behaviour, he should report it to the landlord.
15. The resident raised an additional complaint with the landlord on 7 December 2022. The resident felt the landlord had dismissed his objections concerning the location of the bin stores and stated it would convert his home into a communal bin site. The resident stated his living room windows would be obscured to some degree and the landlord had not considered his mental health issues and claustrophobia.
16. On 16 December 2022 the landlord provided the resident with a stage one complaint response. The landlord stated it had considered the bin stores against guidance, regulations and the British Standard of code of practice to waste management. It advised the bin stores in the current location would deter fly-tipping and dumping. The landlord advised it would be planting vegetation and shrubs behind the bin stores to prevent it from becoming an eyesore for residents. The landlord stated it felt the location of the bin stores served the best interests of all residents.
17. The resident asked for his complaint to be escalated on 31 December 2022. He was unhappy with the location of the bin store and felt the landlord was minimising the impact the size of the bin store outside his living room window would have. He stated fly-tipping had been rare but could now be more common because of the large bin stores being built on the curb side. The resident advised the bin stores that were being built were not the same as detailed in the plans he had received.
18. The landlord provided the resident with a stage two complaint response on 23 January 2023. It reiterated its earlier position regarding the complaint. The landlord stated it would not be upholding the resident’s complaint because it was delivering the new waste collection project in line with consultation with residents and because it had put measures in place to reduce the impact of the bin stores on the estate.
19. The resident contacted the Ombudsman because he did not want the bin stores to be installed outside his home.

Assessment and findings

20. 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 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.
21. 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’ and ‘learn from outcomes’.

Scope of investigation

22. The resident had previously told the landlord it was the failure to collect rubbish that had caused waste issues on the estate, and it was not the result of resident’s dumping rubbish. Paragraph 42 (k) of the Scheme sets out that “the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body”. The Ombudsman can only consider complaints which concern councils’ actions that directly relate to their role as social landlords. The council is responsible for collecting waste from the kerbside for its area, regardless of whether someone is a tenant of the landlord. Therefore, waste collection is not directly linked to the council’s role as a social landlord and the Ombudsman cannot consider this aspect of the complaint. The resident may wish to contact the Local Government and Social Care Ombudsman (LGSCO) for further assistance about the landlord’s waste collection schedule. This is because complaints about councils non-housing related activities fall within the remit of the LGSCO.
23. The resident has said the landlord’s construction of the bin stores has impacted his mental health. The Ombudsman does not doubt the resident’s comments about his health. We can understand that this situation would have been very stressful for him. However, it is outside the role of our service to establish if there is a direct link between any errors by the landlord and any effect on the resident’s health. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident.

Policies and procedures

24. The tenancy agreement states the landlord will repair and maintain any shared areas around residents’ homes including stairs, lifts, landings, lighting, entrance halls, paving, shared gardens, parking areas and rubbish chutes.
25. The Building Regulations 2010 for Drainage and Waste Disposal states adequate provision shall be made for storage of solid waste, adequate means of access shall be provided: (a) for people in the building to the place of storage; and (b) from the place of storage to a collection point (where one has been specified by the waste collection authority under Section 46 (household waste) of the Environmental Protection Act 1990 (a) or to a street (where no collection point has been specified). It also states that the waste collection authority has powers under Section 46 (receptacles for household waste) to specify the type and number of receptacles to be used and the location where the waste should be placed for collection. The Building Regulations advises that consultation should take place with the waste collection authority to determine their (residents’) requirements.
26. The Building Regulation 2010 states “unsightly bins can damage the visual amenity of an area and contribute to increased levels of anti-social nuisance such as odour and litter, so bin storage should be planned carefully. Where the location for storage is in a publicly accessible area or in an open area around a building (e.g. in a front garden) an enclosure or shelter should be considered”.
27. The British Standard for waste management in buildings code of practice states “ground floor communal storage facilities, i.e. a residents’ bring facility, or management arrangements for transporting waste and recyclable material to a ground floor storage facility are preferred options”. It also states “waste storage chambers, detached or as part of the building, should be sited within 30m (excluding any vertical distance) from each dwelling. They should provide convenient access for the collection of the containers by the collection agent”.

The landlords handling of the resident’s concerns about the location of the bin stores and the subsequent building of the bin stores

28. The landlord proposed the installation of new bin stores in order to resolve the persistent waste dumping issues on the resident’s estate between rubbish collections. The landlord had initially sent the residents on the estate a new proposal for the way waste was disposed of and collected in July 2020. Prior to this the landlord had issued a Section 46 letter to all ground floor residents regarding the on-going waste dumping issues on the estate, which had not resolved the issue. The Ombudsman appreciates the resident had told the landlord that he was not involved in leaving rubbish in the communal areas. However, the landlord would have needed to consider a reasonable course of action that would benefit the estate as a whole, when proposing a solution to the waste dumping issue.
29. The resident had disputed that the issue on the estate was the dumping of rubbish and stated it was the lack of rubbish collections that were the real problem. As stated above, it is not within the Ombudsman’s jurisdiction to investigate the frequency of rubbish collection on the estate. Although we note the landlord had stated non-recyclable rubbish collections would be increased from fortnightly to weekly for ground floor residents. We have considered whether the landlord had taken the appropriate action regarding its decision to install the new bin stores and whether the landlord was reasonable in its decision making concerning the location of the bin stores.
30. The landlord has provided the Ombudsman with plans of the bin store locations, which demonstrated it had considered the accessibility of the bin stores for residents by ensuring they met regulatory requirements and were within 30 metres of homes. This is within accordance of the British Standard for waste management in the buildings code of practice. The landlord also considered the location of the bin stores to act as a deterrent for fly-tipping because they would be in less secluded areas on the estate.
31. The landlord advised it had looked at different areas on the estate for the location of the bin stores during site visits. However, it also had to consider a variety of legislation and best practice guidance in its decision of where to locate the bin stores. Some of the main factors the landlord took into consideration were the requirement that the bin stores could not be any more than 10 metres from where the refuse collection vehicle parked, fire safety guidance that requests bin containers to be as far away from the building as possible and building regulations for the distance from the bin stores to residents’ homes. Based on these factors, it was reasonable that the landlord was not reasonably able to change the location of the bin stores.
32. It is clear that the resident is unhappy with the location of the bin store and whilst he is entitled to his opinion, the Service is satisfied that the landlord had taken reasonable action to minimise the visual intrusion of the bin stores.
33. In the Ombudsman’s opinion the landlord’s decision to construct the bin store in its current location was reasonable. The landlord provided evidence that shows it had considered the relevant regulatory guidelines when planning where to put the bin stores and the impact they would have on addressing the estate rubbish dumping issues. The landlord had also demonstrated that it had considered the bin stores’ impact on residents by having a consultation that gave residents the opportunity to raise concerns and questions prior to the construction of the bin stores. These actions are in line with what the Ombudsman would expect the landlord to do before implementing changes to an estate and is therefore deemed fair and reasonable.

Determination

34. In accordance with paragraph 52 of the Scheme there was no maladministration by the landlord in respect of its handling and subsequent installation of the bin stores.