London & Quadrant Housing Trust (L&Q) (202224144)

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REPORT

COMPLAINT 202224144

London & Quadrant Housing Trust (L&Q)

17 October 2023

 

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 disposal of the resident’s garden furniture.

Background

  1. The resident has lived in the property as a leaseholder since March 2020. The property is a first floor flat and shares a communal garden with 7 other flats.
  2. The landlord said it carried out an estate inspection on 22 July 2022, when it identified items in the communal garden that appeared to be abandoned. On 13 October 2022, the landlord placed a tort notice on each of the items. The notice said the items needed to be removed within 5 working days, and if not removed, they may be sold or disposed of in accordance with Section 12 of the Torts (Interference with Goods Act) 1977.
  3. As the items were not removed, the landlord arranged for them to be removed and disposed of on 1 December 2022.
  4. On 12 December 2022, the resident complained that her garden furniture had been removed. She complained the correct procedure had not been followed and the landlord had made no effort to contact her. She said if the landlord had contacted her, she would have removed the items.
  5. In its response on 16 December 2022, the landlord said its inspection had identified “unkempt furniture” in the communal garden. It said some items were covered in ivy and its contractor had reported it was unable to maintain vegetation because of the furniture. The landlord said in line with its policy, it attached a tort notice to the items and when it had no contact, it removed them. It said no personal items should be stored in communal areas.
  6. The resident escalated her complaint on 16 December 2022. She said the tort notice had not been clearly displayed and no enquiries had been made to find out who the items belonged to. She also asked the landlord, where in her lease agreement it said garden furniture could not be kept in the communal garden.
  7. In its final response, the landlord repeated that it followed its policy and under her lease agreement, the resident must not store personal items in communal areas. The landlord said it had learnt from the complaint and text messages would be sent to all residents in a block when personal items had been left in a communal garden. The resident remained dissatisfied and wanted compensation to cover the cost of the removed garden furniture.

Assessment and findings

Scope of investigation

  1. The resident has asked that the landlord compensate her for the cost of the garden furniture. After carefully considering all the evidence, in accordance with paragraph 42(g) of the Scheme, this Service cannot consider the complaint for damages. This is because the Scheme says that this Service will 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, other tribunal or procedure.” This means it is not within this Service’s authority or expertise to award damages in the way an insurance procedure or court might.
  2. This Service can assess whether the landlord has followed proper procedures and behaved reasonably, considering all the circumstances of the case.

The landlord’s disposal of the resident’s garden furniture

  1. The lease agreement sets out the resident’s and the landlord’s responsibilities. It defines common parts as those that can be used by any of the occupiers. The resident and landlord accept that the garden is a common part.
  2. The lease agreement says the resident can use common parts for purposes incidental to the enjoyment of the property. This Service interprets this to mean that the resident can use the garden for general use. This Service has noted that there are no specific references in the lease agreement that prohibit garden furniture being used in the communal garden.
  3. However, the lease agreement says the resident will comply with reasonable regulations that the landlord makes relating to the orderly and proper use of the common parts. The landlord’s estate management policy sets out how it will regulate communal areas. It says it will ensure estates are clean and safe and will carry out estate inspections. To support the policy, the landlord has produced an operating procedure. This details how it will carry out inspections and what actions it may take. The procedure says the landlord has a zero-tolerance approach to items left in communal areas, as these may cause health and safety risks, and fire hazards. Actions the landlord may take when it identifies items left in communal areas include risk assessments and using tort legislation to remove items, especially those that are a major hazard or pose a high risk to the health and safety of residents.
  4. The landlord said it carried out an estate inspection in July 2022 and identified items that appeared to be abandoned in the communal garden. The resident disputes this inspection took place and says she was using the items in July 2022. This Service has not seen evidence of an inspection in July 2022. No evidence has been provided that the landlord carried out a risk assessment identifying the items as a major hazard or risk to health and safety. However, the landlord’s policy is clear that it has a zero-tolerance approach to items left in communal areas. This Service finds that what is unclear is whether the approach applies to gardens when read alongside the resident’s lease, which says the resident can use common parts for purposes incidental to the enjoyment of the property. Using garden furniture can be seen as incidental to enjoyment. This Service recommends that the landlord reviews its estate management policy and operating procedure to make this issue clear.
  5. On 13 October 2022, the landlord carried out an inspection of the communal garden and attached a tort notice to the items. The notice clearly set out what the owner needed to do and what action the landlord would take if the items were not removed. Photographs taken by the landlord at the time show neatly stacked garden chairs covered in vegetation and other items on the ground. The landlord has provided evidence showing that its contractors had reported that they were unable to carry out routine ground maintenance work because of the garden furniture. This Service finds that given the landlord’s stated zero tolerance approach, it was reasonable to place a clear tort notice on the items.
  6. However, the tort notice was attached to the items in October. The resident has told this Service that to access the garden she had to go downstairs, out of her front door, along the side of her property, and through a locked gate. At the time the notice was posted, the resident said she was in the latter stages of pregnancy and was not using the garden due to her personal circumstances and the time of year. This Service has found that on the balance of probabilities, because of the circumstances, the resident was unlikely to see notices posted on the items.
  7. This Service has been informed by the resident that just 8 properties have access to the communal garden. It has been noted that some items were neatly stacked and did not have the appearance of being abandoned. It has also been noted that access to the garden was through a locked gate. In these circumstances, it would have been reasonable for the landlord to write to the residents in the 8 properties about the items. The landlord has provided no evidence that it attempted to contact the resident or her neighbours between issuing the notice on 13 October 2022 and removing the items on 1 December 2022.
  8. The resident informed this Service that in December 2020, the landlord sent a letter to her about a previous issue with items in the communal garden. It was reasonable for the landlord to do this, and having set a precedent, this Service finds that it should have done the same in October 2022. The landlord acknowledged its communication failure in its final response when it said text messages would be sent in future to all residents in a block when items had been left in a communal garden. However, it did not offer the resident redress or an apology for this failing.
  9. In addition, this Service has noted that the landlord had an opportunity to review its decision to remove the items. An email from the landlord’s contractor dated 13 December 2022, which has been provided to this Service, said the contractor attended the property before 1 December 2022 and left the items in the garden as it believed they were a resident’s property, rather than abandoned items. Following this, the landlord instructed the contractor to remove the items. This Service finds that the landlord could have used the contractor’s feedback as an opportunity to review the situation and attempt to contact the residents in the block to identify the owner.
  10. When the resident asked the landlord to return her garden furniture on 12 December 2022, the landlord said it had been disposed of. This was 8 working days after the items were removed. Good practice guidance suggests keeping torted goods between 14 days and 3 months. This Service finds that it was unreasonable for the landlord to have disposed of the items by the time the resident complained. The disposal of the furniture appears to have been due to a communication failure between the landlord and the contractor. In an email from the contractor dated 13 December 2022, the contractor said it only stored torted items and the items it removed were not torted. This Service has seen evidence that a tort notice was attached to the items in October 2022, but it appears that the contractor was not aware of this. Failure to communicate clearly with the contractor led to the items being disposed of and was a failure by the landlord.
  11. This Service has found that there was service failure by the landlord. The landlord failed to contact the resident about the items in the communal garden and it failed to communicate clearly with the contractor. These failures led to the resident’s items being removed unnecessarily and then disposed of. This caused distress and inconvenience for the resident, as well as the loss of her goods. In line with this Service’s remedies guidance, service failure is identified in cases where the Ombudsman has found a minor failure. The landlord is ordered to compensate the resident £100 for the failure to contact her and £100 for the failure to communicate clearly with the contractor.
  12. The landlord’s compensation policy says it will pay out-of-pocket expenses that have been incurred due to its service failure. It is this Service’s view that the landlord’s failures have led to out-of-pocket expense due to the loss of the garden furniture. As the landlord recognised a failure in its final response, this Service recommends that the landlord considers what it should do to compensate the resident for her loss.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of the way it disposed of the resident’s garden furniture.

Orders and recommendations

Orders

  1. The landlord is ordered to apologise to the resident for the failures identified in this report.
  2. The landlord is ordered to pay the resident a total of £200 in compensation. The compensation comprises:
    1. £100 in recognition of the failure to contact the resident about the garden furniture.
    2. £100 in recognition of the failure to communicate clearly with the contractor.
  3. The landlord is ordered to confirm to this Service that the above order has been complied with within 4 weeks of this report.

Recommendations

  1. The landlord should consider out-of-pocket compensation to the resident for the loss of the garden furniture.
  2. The landlord should review its estate management policy and operating procedure to make clear its approach to garden furniture in communal gardens.
  3. The landlord should review its estate management policy and operating procedure to ensure that residents in blocks receive a personal communication about items left in communal areas.
  4. The landlord should review its communication with contractors to ensure they are clear whether items removed should be stored.