Optivo (202104585)

REPORT

COMPLAINT 202104585

Optivo

4 March 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:
   1. The landlord’s response to reports of rubbish left in the communal areas, which caused an infestation of flies.

Background and summary of events

2. Pest Control Guidance for Staff
   1. The guidance noted that “Residents must take reasonable steps to avoid an infestation of insects, pests or vermin in their home of in the common areas”.
   2. Regarding “What should a resident do if they have pests in their home?”, the guidance states “It’s the resident’s responsibility to remove them”.

Summary of Events

3. The resident is an assured tenant of the landlord. Her property is a flat in a block. The block does not receive a communal cleaning service as the residents had previously rejected this option.
4. On 10 July 2020 the resident reported that someone had left black rubbish bags in the communal hallway, attracting flies. The landlord has not provided evidence of what action it took in response to this report.
5. The correspondence on the case indicates that around the end of November / start of December 2020, the resident reported a black bag understood to contain general rubbish in the communal area, causing a smell. There is no contemporaneous evidence of the resident’s report.
6. On 2 December 2020 the landlord served a notice under the Torts (Interference with Goods) Act 1977 stating that it would remove the items in the communal area if someone had not collected them by 16 December 2020.  
7. According to the landlord’s internal correspondence when investigating the resident’s formal complaint, its contractor had 21 days to remove the rubbish and did so on 18 December 2020. However, again there is no contemporaneous evidence to confirm when it removed the rubbish.
8. In her correspondence the resident has stated that on or around 17 December 2020 she went to stay elsewhere as her flat was infested with flies attracted by the rubbish. The resident has also stated that on 18 December 2020 she spoke to a member of the landlord’s staff requesting reimbursement or compensation for cleaning products she had bought. The resident has further stated that the member of staff agreed to call her back the following day, but did not. 
9. On 11 January 2021 the landlord’s contractor carried out a deep clean to all communal areas of property.
10. On 18 January 2021 the resident complained to the landlord that she had not been using her kitchen since December 2020 due to a fly infestation which she attributed to other residents in the building.  She stated that no-one had called her to respond to her request for reimbursement of the cleaning products she had used.  The resident informed the landlord that she was at that time staying away from her property.
11. On 27 January 2021 the resident emailed to chase up a response to her request for reimbursement of cleaning products.  The landlord then phoned the resident to discuss her complaint further and, according to its notes, established that she was unhappy that other residents had left rubbish in the hallway at the start of December 2021 and that it took the landlord four weeks to take it away.
12. On 10 February 2021, the landlord sent the response to the resident’s complaint  .It stated:
    1. On 14 December 2020 the Housing Team raised an order for its Property Services Team to arrange a deep clean of the communal area due to a bad smell following someone leaving rubbish bags in the hallway. The Property Services Team in turn obtained and authorised a quote for the works.  The Deep Clean took place on 11 January 2021 and was unable to be scheduled earlier due to the Covid-19 pandemic.
    2. On 4 January 2020 [it is understood the landlord intended to write 4 January 2021 from the context of the letter] the resident had emailed the landlord following which it arranged for the rubbish mentioned be removed and the deep clean chased up.  The rubbish items were then removed and it was satisfied that “the rubbish items have been removed as soon as possible”.  Neighbours, however, had continued to store additional rubbish following removal so the Housing Team had sent a letter to all residents in the building about this matter.
    3. It could not compensate for cleaning products to clean the flat as this was the resident’s responsibility as a tenant.
    4. As the building did not receive regular communal cleaning, rubbish would only be identified during a monthly inspection or if reported by a resident. It would consult with residents about implementing monthly cleaning visits which would be subject to a service charge.
13. On 4 March 2021 the resident requested a review of her complaint. The resident stated that she had emailed the landlord since 23 November 2020 about a black bag in the communal area and “it got to the point, a month later, where the flies were everywhere”. She stated that she went into hospital on 17 December 2020 and after leaving she had stayed away from her flat due to flies. She believed that there may still be nest/eggs in the building as flies were still present. The resident also stated that she was unhappy that the landlord had not called her back when she had requested  reimbursement for cleaning products and when she spoke to the landlord, it had refused her request.
14. On 31 March 2021, the landlord wrote to the resident stating that it would not escalate her complaint. It stated that:
    1. It had confirmed in the initial complaint response that the rubbish items were removed from the communal area and a thorough deep clean took place on 11 January 2021.
    2. It was the resident’s responsibility to clean her flat, therefore it would not pay for cleaning products. It was the resident’s decision to leave her property.
    3. It apologised that the member of staff did not respond to her request for reimbursement of cleaning products but she could now call her to discuss the request.
    4. A surveyor would inspect her property on 14 April 2021 to see if there was a smell there.  It was satisfied there was no smell in the communal area.
15. The landlord’s notes indicate that at the inspection of 14 April 2021 which was virtual the resident informed the surveyor that the smell was not in her property but coming from other properties. The landlord advised her to contact Environmental Health at the local authority as it was not a repair issue.

Assessment and findings

16. The landlord is not obliged to provide a cleaning or caretaking service at the resident’s block as this not stipulated in her tenancy agreement and she does not pay a service charge for these services. Therefore the landlord was not obliged to remove the rubbish as part of a routine cleaning or caretaking service at the block.
17. However, the landlord does have a responsibility to deal with reports of nuisance behaviour. As items should not be left in communal areas, and, moreover, the resident reported a smell from the bag, and related concerns about flies, the landlord had responsibility to respond to the resident’s report on this ground.
18. The landlord agreed to remove the bag. It was reasonable that it first issued a notice under the Torts (Interference with Goods) Act. This allowed it to grant the owner of the black bag a specified reasonable period of notice to collect the bag, which was his/her responsibility.  Failing this, the landlord by serving the notice would be entitled to sell anything within the bag in saleable condition and protect itself from a claim of damages if it disposed of the bag. Serving the notice also provided a reminder to all residents in the building of their responsibilities to keep communal areas clear and to take reasonable steps to avoid an infestation of insects.
19. It is not disputed that the landlord removed the bag, responsibility being passed to its Estate Services Team. Therefore, ultimately the landlord took appropriate action to resolve the resident’s report of rubbish in the communal area and flies.  The landlord also took further steps to resolve the resident’s concerns about smells and flies as it carried out a deep clean of the communal areas which was over and above its obligations.
20. It was also reasonable that the landlord declined to pay for the cost of cleaning products as it is the resident’s responsibility to clean her property and also because the landlord did not leave rubbish in the communal area.
21. However, there were failings in the landlord’s record keeping, which led to shortcomings in its complaint response. For instance, the landlord did not keep contemporaneous records of exactly when it received reports of rubbish/flies and when the bag was removed, therefore did not produce clear timelines.  As such, it could not fully address the resident’s complaint that it took too long, “a month” to remove the bags or justify its finding that rubbish items had been removed “as soon as possible”.  In fact, the initial complaint response of 10 February 2021 indicated that the rubbish was removed some time between 4 January 2021 and 11 January 2021, which would indicate that it took longer than a month (31 days) to remove the rubbish that the resident complained was left at the end of November 2020 / start of December 2020. In the complaint response, the landlord also could not confirm whether or not it did receive a call from the resident requesting reimbursement of cleaning products, due to an absence of records to rely on.
22. It is possible that the landlord when referring in its response of 10 February 2021 to an email from the resident sent on 4 January 2021 (a copy of which has not been sent to this Service), was intending to convey that the resident had made a report of rubbish that day.  This cannot be confirmed because the response was ambiguous and unclear on this point.  Had this been the case, it would have been inappropriate as the resident had complained of rubbish left in November/December 2020. Regardless, the salient points that the landlord did not fully address the resident’s complaint that it took too long to remove the rubbish or justify its findings remain.
23. Furthermore, the landlord’s response was also confusing and contradictory in that the landlord advised the resident in the response of 31 March 2021 that it had declined her request for reimbursement of cleaning items; however, it also stated that she could discuss the request further with the member of staff she had originally spoken to.

Determination (decision)

24. In accordance with paragraph 54, there was service failure by the landlord.

Reasons

25. Ultimately the landlord took appropriate action to resolve the resident’s report of rubbish in the communal area and flies as it removed the rubbish bag reported.  The landlord also took further steps to resolve the resident’s concerns about smells and flies as it carried out a deep clean of the communal areas which was over and above its obligations.
26. There were failings in the landlord’s record keeping, which led to shortcomings in its complaint response. In particular, it could not fully address the resident’s complaint that it took too long, “a month” to remove the bags or justify its finding that rubbish items had been removed “as soon as possible”.  The landlord’s complaint responses was also confusing in parts.

Order

27. The landlord pays the resident £50 compensation in respect of the distress and inconvenience caused by the shortcomings in the response to her complaint.