Incommunities Limited (202005780)

REPORT

COMPLAINT 202005780

Incommunities Limited

26 May 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 to the landlord’s response to the resident’s:
   1. Reports of anti-social behaviour (ASB) relating to vehicles parking in disabled bays.
   2. Reports of dogs fouling on pavements.
   3. Concerns about the condition of the pavements.

Background and summary of events

Background

2. The resident has an assured tenancy with the landlord that started in 2018. The property is a one-bedroomed bungalow.
3. On its website the local authority explains that road adoption is a term used to describe the council taking ownership of a “private street”. A “private street” is a road which is not maintained at public expense. This means that the council, as the highway authority, is under no obligation to carry out repairs or cleansing to the street, even though it could be a public right of way to which highway and traffic law can be applied. New roads that have been constructed in accordance with the local authority’s guidelines are normally adopted by way of an agreement between them and the developer under section 38 of the Highways Act 1980. The road on which the resident lives is an “adopted road”.
4. The tenancy agreement says that when dogs are in the area around the property, they must be kept on a lead and not be allowed to foul any pavement, grass verge, play area, private garden or any communal area. If fouling does occur, the person accompanying the dog must clear the fouled area.
5. The landlord’s ASB policy says that it recognises that all residents have the right to the peaceful enjoyment of their home. Equally, every resident has a responsibility not to interfere with their neighbour’s right to the peaceful enjoyment of their home. It recognises that, if not addressed, ASB can significantly reduce the quality of life for its tenants and local residents.
6. The policy says it will take a balanced approach to ASB combining support and assistance to tackle the causes of ASB with swift and proportionate enforcement where necessary and where behaviour does not improve. Key components of that approach include support and prevention; enforcement tools – adopting a proportionate, staged response aligning the action taken with the seriousness of the behaviour and recognising that informal approaches are successful in resolving the vast majority of cases and can stop bad behaviour before it escalates; support for victims and witnesses; involving and empowering residents; and partnership working.
7. The landlord has an anti-social behaviour hotline and its website explains that residents can report this via its hotline, via their online account, by calling its contact centre or by reporting it to their housing officer.
8. The landlord has a two-stage complaints procedure. This says that the landlord should respond to the complaint within ten working days at stage one. At stage two the landlord says it will agree a timescale of the response with the resident.

Summary of events

9. On 29 June 2020 the landlord wrote to the resident saying that on 9 June 2020 he had reported that two other tenants had continued to park their cars in, or block access to, a disabled parking bay without displaying a disabled parking permit/badge. The landlord said it had spoken to both residents and confirmed that one of them held a blue disabled badge and confirmed they were using the disabled parking bay to park their car which they were entitled to do providing the badge was clearly displayed at all times. The landlord said the other resident had said that they had parked their car in that space over twelve months ago; however, as they did not hold a blue disabled badge, they would not use that bay again or block any access to prevent other cars with blue disabled badges parking there.
10. On 13 July 2020 the resident told the landlord that his complaint about ASB that is, cars being parked in a disabled bay, was over 14 months old and he had not had its “proof and assurances” that there would be no recurrences. Regarding the dog fouling and pavements, he wanted to know what action the landlord would take.
11. On 28 July 2020 the landlord wrote to the resident at stage one of its formal complaints procedure. In relation to current matters brought to the Ombudsman it said:
    1. It had recently dealt with a report of ASB and had written to him with the outcome on 29 June 2020. It added that, as he was unwilling to keep a record of incidents, it was unable to investigate potential other cases of ASB. It said this aspect of the complaint was not upheld.
    2. In respect of the condition of the footpaths and dog fouling, the landlord said that there was a mix of ownership of the footpaths in the area around the property. It added that its ground maintenance team had confirmed that the area was included in its annual maintenance scheme but that such maintenance had not been undertaken during the pandemic lockdown.
    3. It said that it had been in touch with the local authority to share his concerns about the paths and they had decided that their condition did not warrant any repair. The landlord said to let it know if the condition of the paths had worsened to the extent that they required repair.
    4. It said it would look to deal with dog fouling as a breach of tenancy but the resident would need to work with it to establish patterns of behaviour. It added that the resident could also report dog fouling to the local authority as they could issue a fixed penalty notice.
12. The landlord explained how the resident could ask it to escalate the complaint.
13. On 30 July 2020 the resident told the landlord that he was unwilling to record ASB and gave his view that it was responsible for the footpaths. He asked the landlord to escalate the complaint.
14. On 4 August 2020 the landlord acknowledged the escalation request.
15. On 10 August 2020 the landlord wrote to the resident at the final stage of its formal complaints procedure. Its main points were:
    1. It had limited enforcement powers to resolve ASB matters and had to work with the parties involved to seek resolution.
    2. When resolution was not an option, it had to exercise its enforcement powers and, ultimately, had to rely on gathering sufficient evidence to seek a legal resolution through the court. That was why it had repeatedly asked him to provide detailed records of incidents of ASB, that is, dates, times, vehicle registration numbers and offending resident’s names/addresses.
    3. With regard to dog-fouling, the landlord had limited powers to resolve matters and, for that reason, had asked the resident to provide detailed records of incidents that he had witnessed.
    4. The Dog Fouling Act 2016 placed responsibility on the person in charge of the dog at the time of the incident to collect/clear the mess and dispose it; failure to do so could result in the person being fined. It explained that the resident had the right to raise a report with the local authority’s “Report Dog Fouling” service.
    5. The resident could request that that the local authority clean up the mess and gave links to the local authority’s website for both those options.
16. The landlord said that, whilst it was unable to offer the resident the outcome that he was hoping for, it considered it had provided further clarification and explained why it had to continue to seek evidence from him. It confirmed that his complaint was not upheld and was closed.
17. On 11 August 2020 the resident told the landlord that his concerns were with the dog fouling on private, not public land and therefore did not come under responsibility of the local authority.
18. On 14 August 2020 the landlord sent an email to the resident saying it had tried to provide him with reasons as to why it required detailed information if it was to consider enforcement action under the terms of its tenancy. It said, in respect of dog fouling, it had suggested that he report matters to the local authority because they held enforcement responsibility for dog fouling in public spaces. The landlord confirmed that the footpaths in and around the area where he resided were maintained by the local authority and attached a map. It added that this maintenance extended not only to repairs but also clearance of dog fouled mess. The landlord asked the resident to direct his concerns in relation to dog fouling and the conditions of footpaths to the local authority. It confirmed that he had exhausted the complaints process and his complaint was closed.
19. On 18 August 2020, following further contact from the resident, the landlord told the resident that he had exhausted its formal complaints process and attached a leaflet explaining how he could escalate his complaint externally.
20. On 20 August 2020 the resident approached the Ombudsman. He said that there was a lack of action by the landlord in respect of neighbouring tenants; he believed that it was the landlord’s responsibility to take action in respect of the dog fouling and the poor state of the footpaths as tenants paid ground maintenance and management charges.

 Assessment and findings

Reports of anti-social behaviour (ASB) relating to vehicles parking in disabled bays

21. It is the Ombudsman’s role to assess the appropriateness and adequacy of the landlord’s actions in responding to reports of anti-social behaviour and the fairness and reasonableness of its response to the formal complaint. This does not include establishing whether a party is responsible for anti-social behaviour; our investigation is limited to the consideration of the actions of the landlord in the context of its relevant policies/procedures as well as what was fair in all the circumstances of the case. The Ombudsman cannot tell the landlord to take action against neighbours.
22. The landlord’s response to the residents report of ASB of 9 June 2020 was appropriate. It contacted the persons who the resident said had parked in the disabled parking bay and reported their responses back to him (paragraph 9). That was a proportionate response and in line with its ASB policy which includes preventive measures and recognises that informal approaches can be successful.
23. In the absence of further reports from the resident, it was reasonable that the landlord asked him to keep a record of incidents so that it could take action if there were further incidents relating to the disabled parking bay.
24. There is no evidence of any service failure relating to the landlord’s actions in response to the resident’s reports of ASB.

Reports of dogs fouling on pavements

25. This Service has not seen evidence of any reports by the resident in relation to dog fouling on pathways or his reports of broken pathways; however, he did make a complaint about these matters.
26. The landlord’s responses were appropriate here. In relation to the landlord’s response to reports of dog-fouling, it explained it could take tenancy action (because not clearing up after a dog is a breach of tenancy conditions – paragraph 4). It explained it would have to establish those responsible and asked the resident to record any incidents that he witnessed (paragraph 15.c) to assist it in this. This was a reasonable approach, because, in the absence of such evidence, the landlord would not be able to take action. The landlord acted reasonably by signposting the resident to the local authority’s website where he could report dog-fouling for them to either take enforcement action or report that the street needed cleaning.
27. There is no evidence of any service failure relating to the landlord’s actions in response to the resident’s reports of dog-fouling on the pavements.

Concerns about the condition of the pavements

28. The landlord reported the resident’s concerns about the condition of the pavements to the local authority which decided that they were not in need to repair at that time (paragraph 11.c). This action was reasonable because the landlord does not have responsibility for these pavements; they are the responsibility of the local authority as they are adapted roads (paragraph 3). The Ombudsman does not have jurisdiction over decisions taken by the local authority in relation to the repair of pavements.
29. There is no evidence of any service failure relating to the landlord’s actions in response to the resident’s concerns about the condition of the pavements.

Determination (decision)

30. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to:
    1. Reports of ASB relating to vehicles parking in disabled bays.
    2. Reports of dogs fouling on the pavements.
    3. Concerns about the conditions of the pavements.

Reasons

31. The landlord acted appropriately and proportionately to the resident’s report of ASB in June 2020. It explained that he should report any further incidents to ensure that they were dealt with appropriately.
32. The landlord acted reasonably in response to the residents reports of dog-fouling by requesting that he provide them with evidence so that it could take tenancy action and signposting him to the local authority for reporting and street cleaning.
33. The landlord acted reasonably in response to the concerns raised about the condition of the pavements by signposting him to the local authority who have responsibility for those adapted roads.