London Borough of Brent (202112043)

REPORT

COMPLAINT 202112043

Brent Council

09 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

The complaint is about:
1. The action taken by the landlord in response to reports of Anti-Social Behaviour (ASB), including the proposed installation of a gate and CCTV.
2. The landlord’s handling of reports of noise, smoke, and odours from neighbouring commercial premises.
3. The landlord’s handling and enforcement of waste management on the estate.
4. The landlord’s communication and complaints handling.

Background

The resident is the leaseholder of the property, which is a first floor flat. The landlord is the freeholder. The estate within which the property is situated includes both residential and commercial premises. The complaint by the resident is brought on behalf of herself and 7 others. Actions taken by all residents forming part of the group complaint are referred to as actions taken by ‘the resident’ for the purposes of this report.
The Ombudsman has confirmed that each of the group complainants has satisfied the criteria for inclusion as a member of this complaint on the basis that evidence has been provided that each put their name to the original complaint submitted to the landlord (20 November 2020) and each has confirmed separately to the Ombudsman their intention that they be included within this Service’s investigation. In addition, evidence has been provided to confirm that each named complainant satisfies the occupancy requirements for bringing a complaint to this Service, either by their status as a leaseholder, or else through a secure tenancy agreement.
Since 2008, residents of the estate have raised concerns about ASB in a communal area referred to as the service yard, which is used for parking by residential tenants and for access, egress, and bin storage by commercial tenants. In response to residents’ concerns, the landlord improved lighting in the area and temporarily installed CCTV. It also engaged the services of a third-party company to manage parking using a permit system.
Recycling bins situated in the service yard area for use by residential tenants were removed in 2018, due to fly-tipping and contamination. The landlord later committed to reinstate the bins within a secure enclosure. In 2019, the landlord agreed to the installation of a gate to prevent ASB, subject to consultation with residential and commercial tenants. Following installation of the gate, the recycling enclosure would be constructed. Post-consultation, the landlord concluded that the gate should not be installed, as residents were unwilling to commit to the repair and maintenance costs. The landlord was willing to review its decision if residents confirmed they would comply with the landlord’s terms.
Residents also reported nuisance, in the form of noise, smoke, odours and poor waste management by commercial premises, which had led to pests. Two of the premises concerned were commercial tenants within the estate and one was adjacent and not the responsibility of the landlord. The landlord referred residents’ concerns about extraction systems causing noise and smoke to the Council’s Planning Enforcement team. It also stated that it had reminded the commercial premises about their waste management obligations, was actively monitoring the situation and would take further action if needed.
The resident made a formal complaint to the landlord in November 2020 about its failure to take adequate steps to resolve ongoing ASB and nuisance within the service yard area. The resident noted the delays in installing the gate, the landlord’s failure to reinstate the recycling bins and the lack of enforcement action in response to unauthorised parking and inadequate waste management by the commercial tenants. Overall, the resident was disappointed with the landlord’s lack of clear, consistent communication and effective action.
The landlord partially upheld the complaint but noted that commercial activity will always cause some disruption, and that it could only take action against statutory nuisance. The final complaint response highlighted that the gate consultation had been delayed to investigate queries raised by residents. The consultation had then been extended due to a poor initial response. The landlord concluded that it had acted reasonably in response to reports of nuisance. The landlord accepted that its stage 1 response had failed to address the complaint about unauthorised parking and clarified that the option to park was offered to individual vehicle owners using a permit system to cover the management costs. Residential leaseholders did not contribute to parking management or enforcement costs via their service charge.
The landlord accepted that delays in the consultation process had caused uncertainty. It also acknowledged the delay in progressing the installation of recycling bins. The landlord had failed to respond to residents’ reports regarding waste disposal by commercial tenants in a “reasonable manner”. The landlord apologised and offered £350 compensation in recognition of delays and lack of action.

Assessment and findings

Jurisdiction and Scope of Investigation

The landlord has confirmed that residents’ leases do not grant a right to park in the service yard area. Parking is offered and administered as a separate service via a permit scheme. As the parking arrangements form a separate contractual agreement between vehicle owners and the Council, the Ombudsman has no jurisdiction to make findings about the administration and enforcement of the parking scheme, including the landlord’s response to unauthorised parking by commercial tenants. This is because paragraph 39(j) of the Scheme states that the Ombudsman cannot investigate complaints concerning the terms and operation of commercial or contractual relationships not connected with the complainant’s application for, or occupation of, a property for residential purposes. The Ombudsman can, however, review the landlord’s response to the resident’s queries about repair and maintenance obligations for the service yard area and its communication with the resident about the parking issues raised.
Paragraph 39(i) of the Scheme states that the Ombudsman will not consider complaints where it is considered quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, a designated person, other tribunal, or procedure. The Ombudsman cannot provide the resident with a binding determination on tenants’ obligations to contribute to the repair and maintenance of the gate. This aspect of the complaint is therefore outside the Ombudsman’s jurisdiction, in accordance with paragraph 39(i). The Ombudsman will, however, consider how the landlord communicated with the resident about these issues.
The Ombudsman cannot investigate complaints about investigations or decisions made by the Council’s Planning Enforcement Team. This is in accordance with paragraph 39(m) of the Scheme, which states that this Service will not investigate complaints that fall properly within the jurisdiction of another Ombudsman, regulator, or complaint handling body. The Local Government and Social Care Ombudsman is responsible for considering complaints about a Council’s handling of planning enforcement action. Further information can be found on its website here:

https://www.lgo.org.uk/make-a-complaint/fact-sheets/planning-and-building-control/planning-enforcement

The Housing Ombudsman can consider whether the Council in its role as landlord responded reasonably to the resident’s reports of nuisance and whether the action it took was appropriate. This includes considering whether it investigated any potential breach of the commercial leases.

Action taken by the landlord in response to reports of ASB, including installation of the gate and CCTV

The landlord will record all reports of ASB and will contact the complainant within 1 day for cases of “high risk” ASB, or 3 to 5 working days for “low” or “medium risk” ASB. The landlord encourages residents to report any ASB involving criminal activity to the police. The landlord will work with residents to collect evidence and liaise with appropriate agencies to decide what action it can reasonably take to resolve the issues. The Ombudsman does not expect a landlord to be able to resolve all instances of ASB but it should acknowledge and respond to all reports proportionately.
As the ASB is being perpetrated by members of the public, the landlord is limited in the action it can take to provide a resolution. Many of the informal and formal actions described in the landlord’s ASB policy will only be effective where the perpetrator can be identified. The complaint correspondence suggests that there have been several reported incidents in the service yard area by multiple, unidentified individuals. The Ombudsman would therefore expect the landlord to consider what measures it could take to deter further instances of ASB and to escalate its response appropriately if existing measures proved ineffective.
Neither party has provided any contemporaneous evidence of reports of ASB, however, the resident referred to incidents on 25 November 2019, 5 December 2019, 23 December 2019, 24 December 2019, 28 March 2020 and 26 November 2020, which included theft, vandalism, arson, assault, and drug use. The resident also referred to instances of fly-tipping. In the absence of contemporaneous evidence, the Ombudsman is unable to assess whether the landlord took appropriate action in response. It is noted, however, that the formal complaint focusses on the landlord’s handling of measures agreed to deter/prevent further instances of ASB, including the proposed installation of the gate and possible reinstatement of CCTV.
In 2019, the landlord agreed to the installation of a gate, subject to consultation. In doing so, the landlord demonstrated that it was committed to addressing the issue and was willing to listen to the views of both residents and commercial tenants. This was a reasonable approach, as the commercial tenants have rights to use the area for specified activities and the residential tenants are responsible for the maintenance of the area, in accordance with the terms of their leases. Once the decision to consult had been made, the consultation should have been arranged within a reasonable time.
The landlord states that the consultation, which was scheduled to begin in February 2020, was delayed because residents sought clarification on parking rights and maintenance obligations at a meeting in February 2020. This Service has not been provided with copies of notes from this meeting, although the landlord has provided a copy of a response sent following a request under the Freedom of Information Act 2000, which confirmed the respective rights of residential and commercial tenants.
The landlord has also provided minutes from a meeting, dated 27 April 2020. At this time, the landlord committed to respond to queries about costs and parking arrangements by 4 May 2020. The landlord’s final complaint response noted that answers were provided on 18 May 2020. There was no further progress until a meeting was held on 6 October 2020.
The Ombudsman can see no reasonable explanation for the delay in commencing the consultation, as resident queries could have been collated and responded to as part of the consultation process. Failing to begin the consultation meant that residents became increasingly frustrated with the lack of progress and uncertain as to the action the landlord was taking.
The landlord confirmed again in November 2020 that neither commercial nor residential tenants had a right to park in the service yard area, according to their leases, although commercial tenants did have rights of access and egress. It also confirmed that residential tenants would be solely responsible for the cost of repair and maintenance of the gate, and commercial tenants would not be required to contribute.
The landlord’s response to the resident’s queries was reasonable and was provided following consultation with its legal team, however, it is unclear why it took 9 months to obtain legal advice. As no evidence of the landlord’s internal correspondence on the matter has been provided to this investigation, the Ombudsman cannot assess whether the delay was reasonable. In any event, the landlord failed to keep residents updated on progress between February 2020 and October 2020.
The consultation letter was issued on 1 December 2020, but the resident complained that the letter did not answer concerns raised regarding maintenance obligations, parking, and noise. The Ombudsman appreciates that residents were keen for certainty over these issues, although the landlord explained that queries raised during the intial phase of the consultation could be answered later in the process. Whilst the landlord made clear its position on the lease obligations, it did not respond to the resident’s request to open a dialogue with commercial tenants about voluntary contributions, although it was not obliged to do so. Whilst the landlord’s communication on these matters could have been better, its decision not to enter into further negotiations with commercial tenants did not amount to service failure.
As part of its complaint response, the landlord informed the resident that it was happy to continue to allow residents to park in the area on an “informal basis”, provided this did not interfere with the rights of the commercial tenants. This was a reasonable suggestion to resolve the parking issues, based on the landlord’s understanding of the rights of the parties under the leases.
In the formal complaint the resident noted that the temporary installation of CCTV had reduced ASB in the service yard area. CCTV had been removed in October 2020, since which time there had been further instances of trespass and fly-tipping. The landlord requested that CCTV be reinstated but the resident reported on 10 February 2020 that no update had been provided. The landlord’s final complaint response of 24 June 2020 confirmed that the request had been declined, as no reports of ASB had been received between 1 January 2021 and 30 April 2021.
The landlord listened to the resident’s comments about the effectiveness of CCTV and responded appropriately by requesting that it be reinstated. There was an unreasonable delay, however, in progressing the request or updating residents to explain the delay.
Overall, the Ombudsman is satisfied that the landlord considered proportionate measures to address the ongoing ASB and it generally communicated clearly with residents about their rights and obligations under the leases. However, the landlord has failed to adequately explain why there was a delay of 10 months in commencing the consultation on the installation of the gate, or why it took 7 months to provide an update on the request to reinstate CCTV. The lack of contemporaneous records provided to this investigation of internal discussions and communications with residents also raises concerns about the landlord’s record keeping. This has limited the Ombudsman’s ability to investigate the landlord’s response.
The landlord acknowledged that there were unreasonable delays in progressing the consultation. It offered a total of £350 compensation in recognition of the service failure identified in the final complaint response. Although additional failings have been identified in the landlord’s handling of the request to reinstate CCTV, and in respect of the landlord’s record keeping, overall, the Ombudsman is satisfied that the landlord has made an offer of redress to the resident that satisfactorily resolves this aspect of the complaint.

Landlord’s handling of reports of noise, smoke, and odours

The resident reported that extraction systems and other installations from 3 neighbouring commercial premises were causing nuisance by emitting smoke, odours, and unreasonable levels of noise at anti-social hours. The Ombudsman has not been provided with a copy of the commercial leases and cannot comment on the commercial tenants’ lease obligations. However, the Ombudsman would expect the landlord to consider what, if any, action it could take, including assessing whether there had been any breach of the commercial leases by its tenants.
No evidence has been provided of the original reports of nuisance, however, meeting minutes from 27 April 2020 record that the Council’s noise team was investigating noise from 3 premises, and residents were encouraged to make recordings to use as evidence. The landlord also committed to investigate whether any alterations had been made without permission and, if so, whether they fell within the enforcement period.
In response to the reports of nuisance the landlord referred the matter to the Council’s Planning Enforcement Team and its Noise Control Team. This was an appropriate response, as the landlord stated that it would only be able to take action against the commercial tenants if it concluded that the issues amounted to statutory nuisance. Any planning breaches must also be resolved by the Planning Enforcement Team. Further reports of nuisance were made in July 2020 and September 2020. An email from 15 September 2020 indicates that an inspection had taken place and recommendations had been made to reduce noise and smoke.
The landlord’s complaint responses clearly set out its obligations and those of the Council more broadly. The landlord explained that abatement notices had been served on 2 premises, with 1 owner currently undertaking works to address the reported issues. The third premises was not a tenant of the landlord. Its investigations had indicated that this premises was not causing statutory nuisance. The landlord would not take further action but would continue to monitor the situation.
In the stage 2 escalation request, the landlord was asked to reach a compromise with the commercial tenants about usage of the installations whilst works were completed to comply with the enforcement notices. Whilst the Ombudsman acknowledges the inconvenience that the residential tenants were put to whilst awaiting completion of works, the landlord’s refusal to continue discussions with commercial tenants did not amount to service failure, as action was already in progress to resolve residents’ concerns.
There is no evidence that progress was made on the landlord’s investigations between April 2020 and September 2020 or that the resident was provided with an update during this period. The landlord has not provided an explanation for the delay, and so the Ombudsman considers that there was service failure in its handling of the reports of nuisance, again highlighting the lack of contemporaneous evidence provided to this investigation.

Landlord’s handling and enforcement of waste management

The resident complained about the landlord’s failure to take action in response to poor waste management by the commercial premises and that it had failed to reinstate recycling bins for residential use within the timeframe previously agreed.
In its complaint response, the landlord acknowledged that there was a delay in progressing the installation of recycling bins. In the stage 1 complaint response of 12 December 2020, the landlord indicated that bins would not be installed until after installation of the gate. This was unreasonable as the landlord had already committed to reinstating the bins and the issue of the gate had not yet been determined. Further to this, the landlord did not update the resident on its position until a formal complaint was made. In the final complaint response, the landlord stated that bins should be provided by the end of June 2021, but this did not happen. The landlord indicated to this Service that it hoped to install the bins in early July 2022, citing further delays due to an issue with its payment system. A delay of 3 years to follow-through on the landlord’s commitment to install the bins was unreasonable and the landlord’s communication about this aspect of the complaint was poor.
No documentary evidence has been provided to this investigation of the reports of poor waste management, other than anecdotal evidence of incidents of fly-tipping, oil being poured down drains and a failure to regularly clear waste. The landlord assured the resident that commercial tenants had been contacted to remind them of their waste management obligations, however, copies of these communications have not been provided to this investigation. Whilst it was reasonable for the landlord to seek to resolve the problem using informal measures before taking formal action, the Ombudsman cannot be satisfied that its response was appropriate and proportionate in the absence of documentary evidence.
Although the landlord did acknowledge failings in its handling of the resident’s concerns about waste management, the Ombudsman considers that there was additional service failure due to the delay in installing the recycling bins after the final response and the lack of documentary evidence provided by the landlord. An additional award of compensation is made to reflect this, in line with this Service’s Remedies Guidance.

Complaints handling

There was a significant delay in the landlord providing a final response to the complaint. The landlord’s Complaints Policy in force at the time of the complaint required it to provide a stage 2 response within 30 working days, which it failed to do. A final response was not provided until 4 months after the date of the resident’s escalation request. There is no evidence that updates were provided to the resident during this period and the landlord has not explained the delay, although it did provide an apology.
The landlord did not break down its offer of compensation and so the Ombudsman cannot assess whether the amount offered in recognition of poor complaints handling was reasonable. As the Ombudsman considers that £350 was a reasonable amount to reflect the failings identified in the landlord’s handling of the reports of ASB, an additional award of compensation is made in respect of poor complaints handling.

Compensation

The compensation ordered here for complaints handling is to be paid solely to the lead complainant on this case, to recognise the specific impact experienced on her part in pursuing the complaint.
With respect to all other amounts of compensation referenced here in this report, the Ombudsman requires the landlord to pay the amounts detailed to all eight of the group complainants. This includes the £350 offered in the final response, which was addressed to three of the group complainants. This sum forms the basis of the Ombudsman’s reasonable redress decision for this aspect of the complaint and will need to be paid to each group complainant.

Determination

In accordance with paragraph 55(b) of the Scheme, the Ombudsman considers that the landlord has made an offer of redress to the resident that satisfactorily resolves the complaint about its response to reports of ASB.
In accordance with paragraph 54 of the Scheme, there was service failure by the landlord in its handling of the resident’s reports of nuisance.
In accordance with paragraph 54 of the Scheme, there was service failure by the landlord in its handling and enforcement of waste management.
In accordance with paragraph 54 of the Scheme, there was maladministration in the landlord’s complaints handling.

Orders

Within 28 days of the date of this report the landlord must confirm to this Service that it has complied with the following Orders. The landlord is required to pay each of the group complainants the compensation ordered, except where specified. The compensation payments detailed below are in addition to any compensation amounts already paid on this case.
1. Pay each resident £100 in recognition of the failings identified in the landlord’s handling of the residents’ reports of nuisance.
2. Pay each resident £100 in respect of the failings identified in the landlord’s handling of waste management.
3. Pay the lead complainant £100 in recognition of the landlord’s poor complaints handling.
4. Write to the resident (ensuring a copy is sent to this Service) confirming that recycling bins have now been installed or, if not, providing an update on when this work is expected to be completed.

Recommendations

It is recommended that the landlord:
1. Review its record keeping practices to ensure that full and accurate records of all communications are kept, are easily accessible and can be delivered up to this Service for the purposes of the Ombudsman’s investigations.
2. The landlord pay each resident the £350 compensation detailed in its final response.