London & Quadrant Housing Trust (201911304)

REPORT

COMPLAINT 201911304

London & Quadrant Housing Trust

15 December 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 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 decision to issue a notice to the resident to remove items that he had stored in the communal cupboard when he previously had been permitted to use this, and its enforcement of this policy across all of the communal areas.

Background and summary of events

2. The resident is a shared ownership leaseholder of a flat in a building with communal areas managed by the landlord.
3. The resident made initial contacted with the landlord via social media on 20 January 2021, explaining that he was not happy about the notice served on him by it on 19 January 2021, for using the communal cupboard to store his personal items. The notice explained that he was required to remove his personal belongings from the communal storage cupboard by 26 January 2021, when the notice would expire.
4. The resident complained to the landlord that his use of the communal cupboard resulted in a notice being served on him. He explained that he had been trying to resolve the matter, but he had not been given much consideration by it. The resident stated that he did not have any issues with using the cupboard for several years. He explained that he honestly believed that he had absolute permission to use the cupboard under the terms of his lease, as explained to him by a staff member when he moved in to his property. The resident explained that he had spoken to other residents in the building to find out if they had been served with any such notices, and they all confirmed that they had not been served with one, even though they had left shoes outside of their flats in breach of the terms of their tenancies/leases.
5. The resident stated that it seemed “unfair” for him to have been served notice by the landlord, after he had been open about the use of the cupboard under a genuine belief that he could do so, being supplied with the key and permission for this from a member of its staff. He also explained that he was hoping the matter could be resolved, as he believed that there was discretion that could applied by it to permit this within the lease, and withdrawing the original permission would inconvenience his family, as they had the smallest flat in the block and insufficient space to accommodate their property.
6. The landlord emailed the resident in response to his above correspondence on 20 January 2021, and it explained that the notice had been served following his confirmation to it that the items in the communal cupboard belonged to him. The resident was provided with information from the landlord’s website, which explained that the communal areas were owned by the landlord, and that it had a statutory responsibility to ensure that these areas were always safe and clear. The landlord also explained that the common parts should be kept clear from obstruction or potential fire hazards. The resident was advised that, if he required additional time to relocate his items, this could be agreed before the expiry date of the notice and extended to 1 March 2021.
7. On 20 January 2021, the resident responded to the landlord’s above email, and referred to a conversation he had with its staff regarding his items stored in the communal cupboard. He explained that he was aware of a recent inspection that it had carried out of this, and that he had always made it openly known to the landlord that he was using the cupboard to store items and he happened to be the only one using the space.
8. The resident also acknowledged that the landlord had raised the issue of fire risk during his conversation with its staff, as per building regulations and as a breach of terms of the lease agreement for his property. The resident explained that he had reviewed documents in relation to this. The resident quoted fire safety and building regulations to explain his position that the storage of his belongings was not a serious or immediate hazard, would not affect the spread of fire, and was unlikely to be covered by the building regulations. He also added that the landlord had discretion to permit this under his lease, and he attached emails that were sent to him in 2017, saying that it would get back to him clarifying the use of the communal cupboard, which it had failed to do.
9. On 22 January 2021, the landlord acknowledged the resident’s latest email, and it explained that it could see the above emails from 2017, which showed that there was no consent provided but that clarity would be sought regarding the use of the communal cupboard. The resident was advised that the landlord had a zero-tolerance policy for items within the common parts of the building. It further explained that a notice had been displayed on the communal noticeboard for some time regarding the formal communication sent out by the landlord about safety concerns. The landlord provided the resident with further information to help him understand the obligations that the landlord had in order to manage safety concerns, including to issue him with the above notice.
10. On 25 January 2021, the landlord emailed the resident to let him know that his stage one complaint to it, which it had discussed with him on that date, would be investigated by it. The landlord explained that it would investigate the ongoing issue regarding permission to use the internal communal cupboard. The landlord would also investigate the notice that it had issued him for this, the obligations of the resident’s lease, a discretionary offer by the landlord and the above zero-tolerance policy as to why other residents did not receive a similar notice on the same day as him. The resident was advised that the outcome would be discussed with him to resolve the complaint, which he would be provided with by 5 February 2021.
11. The resident received a stage one complaint response from the landlord on 28 January 2021. The landlord explained that it was aware that storage was a concern to the resident and his household. He was informed that there was an external bike store for residents, located in the rear car park. The store could also be used to hold other items for a limited time. The resident was advised to use this space more often for his items to help with the household’s storage needs. He was also advised with regard to other external storage units that were available in the area, which could accommodate additional household items.
12. The landlord further explained in its stage one response that, even though he had reported having previously been given permission by it to store his items in the cupboard for several years, this was something that it believed that it was not permitted to do and had been done without written consent. It added that it was, however, permitted to work with him and given some flexibility for his items to be removed. The landlord referred to the landlord’s and leaseholder’s obligations set out within the terms of the resident’s lease. The resident was additionally reminded of the notice within the communal areas, where residents were notified of the zero-tolerance policy approach to personal items left in communal areas.
13. The resident was also advised to check the landlord’s website for further information. He was informed that the landlord would not be renting out or making verbal agreements regarding internal common spaces to individual leaseholders, as the landlord aimed to reduce risks that could help spread, fuel and start a fire from residents storing personal items within internal cupboards. It explained that, if an exception was made for the resident’s case, this would be considered unfair and the landlord would be required to do the same for other residents, thereby increasing the risk of an internal building hazard.
14. The resident was advised that there were an excessive number of items stored in the cupboard, and the notice was displayed in order to identify the owners of the personal items. The notice had expired and would be extended to 1 March 2021 because of the pandemic, with him also having reported having concerns about and incurring costs in finding an alternative location to store his personal items. The landlord explained that it would conduct site visits to ensure that there was compliance from other residents following notices being issued, who would all receive texts and letters from it to remind them not to store personal items in communal areas, which would be removed after the expiry of its final notices.
15. On 9 February 2021, the landlord sent out an internal email explaining that the resident had agreed to the extension of the notice, and that he would be relocating his items found in the store cupboard. The landlord explained that the resident’s case would be closed and that there was no request for a final stage complaint two escalation.
16. On 28 February 2021, however, the resident contacted the landlord via email and requested a final stage two escalation of his complaint. He quoted substantial parts of the stage one complaint response from the landlord, and he explained that he had used the cupboard for 12 years with the full knowledge of the landlord and that he was supplied with a key for this by it. The resident explained that he genuinely believed that he was not breaching the terms of the lease, as it was his honestly held belief that it had given him permission to use the cupboard. He stated that he was now being targeted because the landlord had failed to keep any records of the original clarification request, despite the resident providing the documentary evidence of the two emails requesting further clarity.
17. On 9 March 2021, the landlord responded to the resident explaining that, if he wanted to escalate his complaint, another staff member of the team would respond to this.
18. On 9 April 2021, the landlord emailed the resident its final stage two response to his complaint. He was advised that the landlord would continue to liaise with residents where appropriate to ensure that the bike store was used appropriately by residents, as he had expressed concerns as to how this was being used, already overflowing with items preventing this from being used by others or to store bikes. In relation to usage of the cupboard in question, the landlord said that the resident had been correctly advised by its current staff on usage of the cupboard, and of the need for removal of personal items based on its current zero-tolerance approach to items in communal areas, despite its staff’s previous correspondence.
19. The above zero-tolerance policy was described as having been put in place to always ensure the safety of all residents and visitors to the resident’s building, and it was referred to as the landlord’s duty to ensure that its staff members were enforcing this. It was confirmed that this policy was applied across all communal areas of the block and to all properties, with the same conditions applied to similar instances of usage of cupboards/communal areas with the residents’ neighbours, where applicable.
20. On 12 October 2021, the landlord emailed the resident to explain that it had not given its contractors permission to store items in the communal cupboards, following communication from the resident stating that contractors have previously used the communal cupboard. The landlord stated that it had advised its staff to remove all items belonging to its contractors, who had been made aware that this was not acceptable under its service standards. The landlord advised that a site visit would be made by it as part of the monthly or bi-monthly inspection.
21. The resident nevertheless complained to this Service that he believed that a precedent had previously been set by the landlord to grant him access to use the communal cupboard, and that it had not disclosed documentation to the contrary. He was therefore concerned that it had served him notice to prevent him from using this, and that it was not enforcing such a policy across all of his building’s communal areas.

Assessment and findings

Agreement, policies and procedures

22. The landlord’s procedure for the removal of goods in communal areas’ strict or zero-tolerance policy in place is described by the procedure as intended to comply with statutory landlord obligations to prevent loss of life and injury in the event of an emergency, e.g. fire, and ensure that residents are aware of their responsibilities.
23. The landlord’s above procedure explains that no resident should store or leave, on a temporary or permanent basis, personal belongings or rubbish within communal areas at any time. No exceptions apply to ensure that common areas are effectively clear. Residents and their visitors must not leave items in communal areas which would breach tenant and leasehold conditions, make shared spaces unsightly or inconvenient for other residents, increase the risk of fire including arson, or block the means of access and escape. Communal areas are defined as including utility and storage cupboards that all residents have in common.
24. The procedure requires the landlord’s caretakers to immediately remove and dispose, without notice, goods that pose a high risk and so are hazardous to residents’ health and safety, such as items obstructing escape routes or are a potential source of fire ignition, e.g. fuel, solvents, paints or good stored in a meter cupboard.
25. Such immediate action to remove or dispose belongings under the landlord’s procedure is said to comply with the requirements of fire safety regulations. Where goods have been urgently removed and disposed of, a notice should be put on the noticeboard to inform residents of the action taken. When goods stored in communal areas are not an immediate risk, the landlord is required to attach a notice to them requesting their removal within five working days, after which it is permitted to remove the goods.
26. The resident’s lease under 1(2)(b) states that “‘the Common Parts’ means the entrance lobbies corridors landings hallways storerooms staircases any lift lift apparatus and any communal aerials or entry phones and other parts (if any) of the Building and landscaped areas (excluding any private demised gardens) walls hedges fences gates access areas steps pedestrian ways footpaths accessways parking areas (if any) forecourts lighting bin store and cycle hoops on the Estate…intended to be or are capable of being enjoyed or used by the Leaseholder in common.”
27. The resident’s lease goes on to state under 5(4)(b) that, in relation to its maintenance of the common parts, “the Landlord may add to diminish modify or alter any such service if by reason of any change of circumstances during the Term such addition diminution or alteration is in the opinion of the Landlord reasonably necessary or desirable in the interest of good estate management or for the benefit of the occupiers of the Building.” Additionally, under 6(4) of the lease “The Landlord shall have power at its discretion to alter the arrangement of the Common Parts provided that after such alteration the access to and amenities of the Premises are not substantially less convenient than before.”
28. The landlord’s compensation guidance gives it discretion to recognise residents’ distress, inconvenience, time and effort in relation to complaints with up to £100 compensation for a medium impact of its failures.

The landlord’s decision to issue a notice to the resident to remove items in the communal cupboard and enforcement of this policy across communal areas

29. The landlord responded to the resident’s use of the communal cupboard to store his personal items by serving him with five working days’ notice on 19 January 2021 to remove the items by 26 January 2021, which was in accordance with its above procedure for the removal of goods in communal areas. This is because the procedure prohibited residents from storing or leaving such belongings within communal areas at any time without exception, and it defined these areas as including common utility or storage cupboards, such as the one the resident was using.
30. It was therefore appropriate that the landlord served the resident with the above notice, as it identified that the items that he had stored in the communal cupboard were not a high risk or hazardous to health and safety, which would have required it to have immediately removed and disposed of these without notice under its procedure. It instead complied with its obligation from the procedure to give him five working days’ notice requesting that he remove the goods stored in a communal area that were not an immediate risk before it would remove these itself.
31. The landlord’s service of the notice to the resident was also in line with the above terms of his lease, which included the communal cupboard where he stored his personal items in his building’s common parts, as this was a common storeroom there. The lease permitted it to add to, diminish, modify or alter the service that it provided to him in relation to the common parts if any change of circumstances meant that this was, in its opinion, reasonably necessary or desirable in the interest of good estate management or for the benefit of the building’s residents. This meant that the landlord was additionally able to prohibit the resident’s use of the communal cupboard for personal storage under the terms of his lease.
32. The above terms of the resident’s lease additionally meant that it was permitted to withdraw any previous permissions that he may have received from it to store his personal items in the communal cupboard, as it had discretion under the lease to alter the arrangements for this. This is despite his reports to it from 20 January 2021 after he had received the above notice that it had told him that he had its permission to use the cupboard when he had first moved in, the fact that it had given him a key for this and let him use the cupboard since then until 19 January 2021, and his requests to it for clarification on this in 2017.
33. As the resident informed the landlord from 20 January 2021 that withdrawing his use of the communal cupboard would inconvenience his family, as they had the smallest flat in the block and insufficient space to accommodate their property, he was provided with an extension of the above notice by it to 1 March 2021. It offered him this extension on 20 January 2021 to ensure that he was not inconvenienced, and to enable him to arrange for the disposal or relocation of his personal belongings. It was reasonable for the landlord to do so because its procedure for the removal of goods in communal areas did not require it to remove these non-high risk items immediately, while its request that the resident still do so by 1 March 2021 complied with the procedure’s prohibition on their storage.
34. The landlord also took reasonable steps to explain to the resident, on 20, 22, 25 and 28 January and 9 April 2021, his obligations in the lease agreement in relation to the use of communal spaces, which were owned by the landlord and should be kept clear for the safety of all of the residents to meet its obligations. It was appropriate for the landlord to notify the resident of this, to ensure that he complied with the lease’s obligations, and with its procedure for the removal of goods in communal areas.
35. The landlord additionally provided the resident with other alternative storage options to the communal cupboard that he could explore on 28 January 2021, such as an external bike store for residents which could be used for a limited period, as well as an external storage unit available in the resident’s area. Although it is of concern that he then reported to it after 28 February 2021 that the bike store already overflowing with items preventing this from being used by others or to store bikes, it responded to him about this reasonably on 9 April 2021 by confirming that it was liaising with residents to ensure that they used the bike store appropriately.
36. In response to the resident’s report from 20 January 2021 that he had been singled out by it as the only one of the residents in his building to be served with a notice by it to remove his belongings from communal areas, the landlord explained the following to him from 22 January 2021. It confirmed that all residents had been informed of the zero-tolerance policy that it had on storing items in communal areas for some time via the communal noticeboard. The landlord also added on 28 January 2021 that other residents who contravened this would be served with notices, site visits would be carried out by it to monitor this, and they would receive reminder text and letters from it prior to its removal of their personal items from communal areas.
37. The landlord went on to demonstrate that it would additionally enforce the prohibition against the storage of items in communal areas against its contractors on 12 October 2021, when it replied to the resident’s reports that they had used the communal cupboard. It did so by confirming to him on that date that it had advised its staff to remove all items belonging to its contractors, made the latter aware that this was not acceptable under its service standards, and that a site visit would be made by it for this as part of its monthly or bi-monthly site inspection, which was reasonable.
38. It is nevertheless concerning that the resident reported that the landlord had given him a key and permitted him to store his personal items in the communal cupboard for a number of years from when he first moved in until its notice to him of initially only five working days after 19 January 2021. This is particularly in light of the fact that he showed that he had previously made enquiries with it about this in 2017, which it agreed to seek clarification on at that time but failed to respond to, and so it was inappropriate that it did not inform him of the prohibition on communal storage or discuss this with him well in advance of the notice.
39. The landlord was additionally not able to provide records of its earlier communications showing decisions by its previous members of staff in relation to any permission granted to the resident to use the communal storage cupboard. As the resident explained that he was previously given permission and a key by the landlord to store his personal belongings in the communal cupboard, he had based his decision to do so on this. The landlord did not, however, appear to have retained records of his communications with its previous staff to support this, and it was reasonable to expect the landlord to have provided these records as part of the investigation into his complaint about this, given his above reports to it and the fact that it served him with a notice.
40. The retention of full and appropriate records by the landlord would have provided a clear audit trail of any permission that was granted to the resident and what was said to him in relation to the use of the communal cupboard. Although this Service was still able to determine his complaint using the information that was made available to us by the parties, it is vital that the landlord should have kept clear, accurate and easily accessible records. It has therefore been ordered below to compensate the resident with the £100 recommended by its above compensation guidance to recognise any distress, inconvenience, time and effort that he experienced from this failure, as well as recommended below to review its record keeping process and staff training needs in light of this.

Determination (decision)

41. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its decision to issue a notice to the resident to remove items that he had stored in the communal cupboard when he previously had been permitted to use this, and its enforcement of this policy across all communal areas.

Reasons

42. The decision on whether to allow the storage of personal belongings in communal areas lay with the landlord under the terms of the resident’s lease, and this was prohibited by its procedure for the removal of goods in communal areas. In this case it clearly explained the reasons for its decision to the resident, which were supported by its procedure and the lease agreement.
43. The landlord was not able to provide records of communication showing any decisions by its previous staff in relation to any permission granted to the resident to use the communal storage cupboard.
44. The landlord was able to show that the zero-tolerance policy prohibiting the storage of personal items in communal areas in its procedure for the removal of goods in communal areas was being applied to all of its residents and contractors, and that this was not selectively applied to the resident only.

Order and recommendations

45. The landlord is ordered to pay the resident £100 compensation within four weeks to fully recognise any distress and inconvenience caused to him due to its failure to keep full records in his case.
46. It is recommended that the landlord:
    1. Conduct a review of its record keeping process to ensure that there is a clear audit trail of its communications regarding its permissions for its residents, which provides details of specifically when contact was made, what was said, and what the agreed next steps and expectations were in relation to consent given to residents.
    2. Reviews its staff training needs in relation to record keeping, to improve its practices in relation to communication with residents. This should include the completion of this Service’s free online dispute resolution training for landlords at https://www.housing-ombudsman.org.uk/landlords-info/e-learning/, if this has not been done recently.
47. The landlord shall contact this Service within four weeks to confirm that it has complied with the above order and whether it will follow the above recommendations.