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Hyde Housing Association Limited (202013546)

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REPORT

COMPLAINT 202013546

Hyde Housing Association Limited

17 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 resident has complaint about the landlord’s handling of a pigeon infestation and related works to his roof.

Background and summary of events

The contractual agreement and policies/procedures

  1. The resident is a shared owner of the landlord his lease commencing in 2017.  His property is a new build-house.  Schedule 1 of the lease confirms that the landlord lets “the Premises with full title guarantee” to the resident and that the premises include:
    1. “all buildings, erections and structures on the Premises from time to time;
    2. the Service Media within and exclusively serving the Premises; and
    3. appurtenances, fixtures, fittings and rights granted by this Lease,
    4. … and improvements and additions made to, and fixtures, fittings and appurtenances in the Premises.”
  2. Clause 3.5 of the lease confirms that the resident has the responsibility “to repair and keep the premises … in good and substantial repair and condition.”
  3. A Microgeneration Certificate Scheme (MCS) certificate dated 25 November 2016 confirms that photovoltaic (PV) solar panels had been installed on the resident’s property prior to purchase by a MCS certified installation company.  The certificate confirmed that the installation of the panels met “Building Regulations Compliance” and the requirement for “Building Regulations Notification” had also been met.
  4. The landlord’s Compensation Policy states that “compensation payments may be offered” where:
    1. “We have failed to deliver a service to the advertised standard.”
    2. “In recognition of the time and trouble taken by the customer to make their complaint.”
    3. “In recognition of distress and inconvenience experienced by the customer.”
    4. “To reflect where a customer has suffered a loss because of a service failure by us.”
  5. The landlord’s Compensation Procedure states that:
    1. “When there is a delay in delivering a service which is the responsibility of the Hyde Group”, it may offer up to £100 if there is “Low Impact.”
    2. “In some circumstances we will make a payment for distress and inconvenience” and that it may offer up to £100 if there is “Low Impact”.
    3. “We consider the extent of inconvenience a complainant has experienced to get a resolution to their problem”, and that it may offer a maximum of £50 for Time and Trouble.

Summary of Events

  1. Although contemporaneous records for May to August 2020 have not been provided to this Service, the correspondence on the case states that the resident first reported birds nesting under the solar panels on his roof on 26 May 2020.  The correspondence further indicates that on or around 17 June 2020 the landlord told the resident it did not have responsibility for the repair, but the landlord later told him it would deal with the matter as it was an external repair. The landlord arranged for its pest controller to inspect the roof in August 2020 but did not take further action.  Furthermore, the resident was advised that he would receive a call back on or around 20 August 2020 but did not receive a phone call or correspondence.
  2. On 10 September 2020 the landlord confirmed that the resident was responsible for the roof and/or solar panels exclusively serving his property. On 22 September 2020 the resident emailed the landlord contending that it had not installed the solar panels so as to deter and negate problems such as bird nesting. He advised of his view that the landlord had been negligent and therefore that it was responsible for resolving this issue.
  3. On 23 September 2020 the landlord phoned the resident advising that it would now register a formal complaint.  In a further phone call on 29 September 2020 the resident contended that the landlord was responsible for removing the pigeons as there was a gap of a few inches between the panels and the roof, and because the landlord did not install mesh in front of the gap to prevent nesting. The landlord acknowledged the complaint stating it would response by 22 October 2020.
  4. During the landlord’s complaint investigation, on 2 October 2020, its pest control contractor confirmed that it had been asked to inspect the resident’s roof in August 2020. It stated it was going to provide a quote but was then told that the property was shared ownership, therefore the landlord was no longer dealing with the repair, and would close the job. 
  5. On 22 October 2020 the landlord sent a holding response advising that it would provide a full reply to the complaint by 6 November 2020.
  6. On 28 October 2020, the landlord sent the Stage 1 response. It advised:
    1. The responsibility for repairs was determined by the lease. The PV panels formed part of the structure and were therefore the resident’s responsibility to maintain and repair.  It suggested that the resident employ a PV specialist to inspect the panels to confirm whether or not they were installed in line with the National House Building Council (NHBC) and manufacturer’s requirements.
    2. Its repair team had incorrectly advised the resident that its pest control contractor would remove the pigeon’s nest. It should have correctly communicated that it was the resident’s responsibility to remove the nest and install mesh.
    3. It should not have taken up to August 2020 for the pest control contractor to attend and then be told not to remove the nest as it was the resident’s responsibility.
    4. It had not responded to phone calls and emails which was another failure.
    5. It would offer £75 compensation, comprising:
      1. “£25 Poor Communication – Incorrectly telling you we would remove the birds nest and install mesh.
      2. £25 Distress and Inconvenience – All the inconvenience caused to you by having to chase us up by email and phone calls with sometimes no response.
      3. £25 Delays – Taking from May 2020 until now to provide you with the correct information to resolve the issue.”
  7. In an exchange of correspondence between 16 and 20 November 2020, the landlord reiterated the findings of the Stage 1 response. The resident advised that he disagreed with the landlord’s position as it had been responsible for constructing the house and the solar/PV panels.
  8. The resident contacted this Service and on 23 March 2021 this Service asked the landlord to escalate the resident’s complaint. On the same day the resident advised the landlord that he would be paying for the birds nest to be cleaned, dirty areas to be cleaned and bird proofing to be installed on the solar panels, but that he sought to claim the cost from the landlord. The resident has advised this Service that he carried out these works in March 2021.
  9. On 14 April 2021 the landlord confirmed it would escalate the resident’s complaint to Stage 2. On 30 April 2021 the landlord wrote again advising that it would aim to response on or before 13 May 2021.  On 10 May 2021 the landlord sent a holding response stating it was seeking further information and would extend the date by which the complaint response would be sent to 11 June 2021.
  10. On 21 May 2021, the landlord sent the Stage 2 response to the complaint. It advised:
    1. The PV solar panels that were in place at the time the resident purchased the property formed part of the structure, as stated in the lease, therefore was the resident’s responsibility to repair and maintain.
    2. It had met its responsibility to ensure the installation of the solar panels had been carried out correctly – during the point of installation it was not part of the specification for the PV solar panels to be proofed underneath.
    3. If the issue arose because of tiling or flashing coming away from the roof, this again would not be its responsibility.
    4. It had previously provided a MCS certificate to confirm that the PV solar panels had been commissioned and installed within the requirements of the building, and had been signed off by the NHBC and Building Control.
    5. Neither any other resident nor its contractor had reported fault with the installation of the solar panel.
    6. The resident could log a claim with the NHBC who could decide whether there was a latent defect due to a fault with the installation. If this was the case, it would be responsible for carrying out remedial works; however, as the resident had proceeded with arranging the works, this option may not be so relevant.
    7. The resident could claim reimbursement of the costs he incurred if he could prove that the landlord made an error with the installation of the PV panels.
  11. The landlord concluded that it had responded positively to the resident’s response in line with the lease agreement. It increased its offer of compensation to £100 for its poor handling of the resident’s request.
  12. On 5 June 2021 the resident advised this Service that he was dissatisfied as he believed the landlord did not consider the risk of pigeon/bird nesting under the PV panels which in turn results in pigeon/bird droppings in the garden which was a health and safety hazard.
  13. On 22 June 2021 the resident declined the landlord’s compensation offer.

Assessment and findings

  1. The property is demised under the lease (known as the premises) as including the service media within and exclusively serving the premises and appurtenances, fixtures, fittings. This includes the solar panels.
  2. The resident, under clause 3.5 of the lease, when purchasing his property took full responsibility to keep the premises in good and substantial repair and condition. As such he is responsible for the upkeep of all aspects of the property and therefore responsible for pest control including pigeons nesting.  Moreover, the solar panels, being installed on the roof, formed part of his property (the premises) at the time he purchased his property, therefore the resident assumed responsibility for the solar panels. Therefore, it was in accordance with the terms of the lease that the landlord did not accept responsibility for removing the pigeons.
  3. The resident argued that the landlord should take responsibility for removing with the pigeons on the basis that the solar panels were not installed appropriately and did not have mesh to proof against bird entry.  However, the MCS certificate confirmed that the panels were designed, installed & commissioned to the industry standard by an accredited company.  There is also no obligation upon the landlord to the resident to have installed a mesh or to generally carry out other proofing works to the roof.  In the absence of any evidence provided to the landlord that the installation was faulty or other inappropriate, it was reasonable that it did not accept responsibility for removing the pigeons and/or the installation of a mesh, or for reimbursing the costs incurred by the resident after he carried out these works himself.
  4. Given the resident’s ongoing dissatisfaction the landlord took reasonable steps to find a resolution by referring the resident to a PV panel specialist as such a professional would have the expertise to confirm if the panels met the relevant installation requirements.  Similarly, it was reasonable that the landlord referred the resident to the NHBC as this organisation provides the warrantee for the building. Consequently, it had the expertise and authority to identify if the installation constituted a defect which could be referred back to the landlord to resolve.
  5. Although the exact timeline cannot be determined due to the lack of evidence provided to this Service, it is not disputed that the landlord initially gave conflicting advice to the resident, raising his expectations that it would deal with the nesting pigeons.  For instance, it asked its pest control contractor to inspect. It was only in September 2020 that it confirmed that it would not carry out the necessary works.
  6. When investigating a complaint, this Service considers the extent to which a landlord has recognised and addressed any shortcomings and the appropriateness of any steps taken to offer redress. The Ombudsman will not make a finding of maladministration where the landlord has fully acknowledged any failings and taken reasonable steps to resolve them. In this case, the landlord offered a total of £100 compensation.  This was a discretionary offer in line with the guidance within the landlord’s Compensation Procedure and proportionate to the circumstances of the case, particularly given that the landlord was ultimately not responsible for dealing with the pigeon nesting. Moreover, there is no evidence that the delay in confirming to the resident that he was responsible caused significant material detriment to the resident, also taking into account that the removal of the pigeons may have been delayed in any case by legal restrictions to moving or destroying birds’ nests while they are being built or still in use.  Compensation is not intended to penalize the landlord, rather it should be proportionate and reflect the level of impact caused to the resident by the landlord’s service failings.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord.

Reasons

  1. It was in accordance with the terms of the lease that the landlord did not accept responsibility for removing the pigeons. Although the resident argued that the landlord should take responsibility on the basis that the solar panels were not installed appropriately, there is no evidence that this was the case.  There is also no obligation upon the landlord to the resident to have installed a mesh or to generally carry out proofing works to the roof. It was also reasonable that the landlord referred the resident to a PV panel specialist or to the NHBC for independent, expert verification given his ongoing dissatisfaction.
  2. Whilst the landlord delayed in confirming to the resident that he was responsible for dealing with the nesting pigeons, it made offer of compensation that was in line with the guidance within the landlord’s Compensation Procedure and proportionate to the circumstances of the case.

 

 

Recommendation

  1. It is recommended that the landlord pays the resident the £100 it offered within the complaints procedure, as the determination of reasonable redress is contingent on this offer.
  2. It is recommended that the landlord reviews its record keeping procedures and systems with a view to ensuring that it maintains contemporaneous records of all key actions and decisions.  It should also consider ensuring that these records are accessible to relevant members of staff, and can readily be provided to the Ombudsman, when necessary.