London Borough of Ealing (202113706)

REPORT

COMPLAINT 202113706

Ealing Council

19 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

1. The complaint is about the landlord’s handling of the leaseholder’s request to be allocated a shed based on their understanding of the leasehold agreement.

Background

2. The complainant is a leaseholder and does not reside in the property, but has a tenant who does. Throughout the report, the complainant will be referred to as the ‘leaseholder’ for clarity. The property is a block of flats, and the building has a number of sheds which the landlord provides to residents when available.
3. The leaseholder was dissatisfied that the shed her tenant currently had access to did not match the shed shown in her deed of the property. The leaseholder had previously raised these concerns with the housing officer, but was dissatisfied that no action was taken. The leaseholder raised the issues with the landlord on 17 November 2021. On 24 January 2022, the landlord internally discussed that it had taken legal advice in regards to the deed, and whether the location of the shed or the numbering of the shed took precedence. It stated that it believed the leaseholder was correct about the shed numbers being incorrect at the building. On 31 January 2022 the landlord met with the leaseholder to discuss her deed and decide which shed is allocated to her.
4. In the leaseholder’s stage one complaint on 17 November 2021 she advised the landlord that she was seeking for the shed allocated to her to match the one shown in her deed, and for the sheds to be numbered correctly. The leaseholder escalated the complaint on 05 January 2022 as she was dissatisfied with the shed allocation and felt the complaint had not been dealt with properly. The resident was seeking compensation and for the sheds to be numbered correctly.
5. Following the holding response on 25 January 2022, in which the landlord advised that following the audit it would renumber the sheds to ensure they are numbered correctly, the landlord provided its stage two response on 10 February 2022. It advised the leaseholder that the shed audit was still being completed, but that, following the meeting with the leaseholder, it had decided the shed numbered ‘4’, at that time, was the correct one. It advised it had not determined who had been using the shed yet, but that a seven-day notice had been placed and, following this, the lock would be changed, and the new keys handed to the leaseholder’s tenant by 21 February 2022. The landlord advised that the service from housing officer who the leaseholder had included in her complaint had been investigated, but that it could not confirm any details other than to advise that any service failings had been addressed internally. It also informed the leaseholder that it would not be offering compensation as it is unable to compensate for delays and inconvenience.
6. The leaseholder escalated her complaint to this Service on 07 March 2022 due to the sheds at the building being incorrectly numbered, and not matching her deed. The leaseholder was dissatisfied with the landlord’s decision to allocate her with the shed numbered ‘4’ as she believed her shed was the shed numbered ‘5’. The leaseholder is seeking for the correct shed to be allocated and for compensation.

Assessment and findings

Scope of Investigation

7. The leaseholder has stated to this Service that she does not agree that the shed numbered ‘4’ is the correct one as shown in her deed. The landlord has allocated this shed following the formal complaint and following its own legal advice about the leaseholder’s lease agreement.
8. The Ombudsman does not have the authority to decide upon boundaries or to interpret the meaning in legal documents where there it is disputed. This includes both drawings and/or the meaning of any phrasing. This issue would therefore, be more appropriate to be dealt with through the courts. This is in accordance with paragraph 42 (g) of the Scheme which states that the Ombudsman may not investigate complaints which “concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure;”. The Ombudsman can however assess whether the landlord’s response to the leaseholder’s request was appropriate and in line with the Ombudsman’s Dispute Resolution Principles; be fair, put things right and learn from outcomes.

Policies and procedures

9. The landlord’s compensation policy states that it should consider inconvenience and frustration. It also includes compensation as on option to acknowledge time and trouble.

Shed allocation

10. The landlord has advised that most sheds included with the building are not included as part of a leaseholder’s deed, other than two. It has stated that it provides the other sheds to residents on a ‘first-come-basis’ when they are available. It was therefore reasonable for the landlord to complete an audit of the sheds to determine which sheds are in use, and by which resident. However, the audit was referred to in the landlord’s stage one response on 05 January 2022 and was ongoing when the landlord sent its stage two response on 10 February 2022. It would have been reasonable for the landlord to ensure the audit was completed within 28 days, in the same way it would have treated a ‘routine’ repair. It would have also been helpful for the landlord to have already implemented a system which pro-actively monitors shed allocation in order to easily identify which residents are using which sheds.
11. Nevertheless, during the audit the landlord met with the leaseholder to examine the leasehold agreement and determine which shed should be allocated to her. Therefore, despite the timeframe of the audit, the landlord still took steps to resolve the situation during it. The landlord arrange legal advice about which shed it believed should be allocated to the leaseholder based on their lease agreement. The landlord informed the leaseholder in its stage two response that it had been unable to determine which tenant was using the shed which it believed the leaseholder should have access to, but that it would place a seven-day notice, and, following this, change the lock and clear it before providing the keys to the leaseholder’s tenant. It stated it hoped to do this by 21 February 2022.
12. Within the leaseholder’s communication with this Service, she confirmed that the keys had since been provided to the shed that was, at that time, numbered ‘4’. Whilst the repairs policy states that it is the responsibility of the leaseholder to replace any lost keys or locks, it was reasonable in this case for the landlord to do so, considering that the shed was in use by another resident.
13. Following this, the landlord agreed to renumber the sheds upon the completion of its audit. This was appropriate action for the landlord to take to ensure the sheds correspond with the relevant leasehold agreements, and demonstrate that it was using the complaint to improve its service. No evidence has been provided to this Service to show that this has now been completed. It is recommended that the landlord completes an action plan for these works and provide an update to the leaseholder to ensure her expectations are suitably managed, if it has not yet already been done.
14. As part of the leaseholder’s complaint, she raised concerns about one of the landlord’s staff members as she had raised the issue of shed allocation previously and felt it had not been dealt with adequately. The landlord has advised the leaseholder that whilst it will not divulge details of any action taken against specific staff members, any service failures were addressed with the staff members and any further actions needed, were taken.
15. Whilst it was appropriate for the landlord to comply with data protection policies in relation to specific staff members, it would have been appropriate for it to explain the service failures that were identified, and to explain how it would put things right learn from any mistakes. While it is not appropriate for the landlord to detail any actions taken under its internal personnel policies in its complaint process, it should take responsibility for the landlord’s service as a whole (including any delays between an issue first being raised and the resolution) in its complaint responses. The resident stated they had chased the landlord for some months prior to the November 2021 formal complaint. Therefore it would have been more appropriate for the landlord to establish the length of time the resident had been raising the issue, and to consider whether any redress was merited for any service failure. However the landlord’s responses failed to investigate and address this issue by conflating it with the explanation that it could not divulge information about individual members of staff.
16. Whilst it is evident that, once aware of the ongoing issues, the landlord took steps to determine which shed would be allocated to the leaseholder, and to provide the leaseholder’s tenant with the correct keys, the landlord failed to consider any form of compensation appropriately. The leaseholder chased the landlord about the issue, and the timeframe of the issues were prolonged whilst the landlord sought legal advice about the lease agreement. It then stated that it was unable to compensate for delays and inconvenience, however this did not comply with its compensation policy.
17. The landlord acted appropriately in apologising to the resident and informing her of the lessons it had learned from her complaint. It recognised and accepted that its service had been poor, and the actions it took to remedy that were, with one exception, reasonable and appropriate. With the exception being the omission of a fair and reasonable consideration of compensation, and this therefore constitutes a service failure.

Determination

18.  In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in way the landlord handled the leaseholder’s request to be allocated a shed based on their understanding of the leasehold agreement.

Orders

19. The landlord is ordered to pay the leaseholder:
    1. £50 compensation to acknowledge the lack of investigation and explanation about the length of delay experienced prior to the November 2021 complaint.
    2. £50 compensation to acknowledge the delays and inconvenience in the landlord’s handling the leaseholder’s request following the formal complaint.
    3. £50 compensation to acknowledge the inconvenience of inappropriately stating the landlord would not offer compensation to acknowledge delays.
    4. The compensation should be paid within 28 days of the date of this letter.

Recommendations

20. It is recommended that the landlord creates a plan of action for renumbering the sheds within four weeks of the date of this letter, if it has not already, and provides the leaseholder with an update.
21. It is recommended that the landlord considers implementing a system to monitor the allocation of sheds to avoid issues like this in the future.