Sanctuary Housing Association (202015054)

REPORT

COMPLAINT 202015054

Sanctuary Housing Association

3 September 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 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 request for removal of items and the resident’s request that the landlord pay for a skip.

Background and summary of events

2. The resident occupied her purpose–built 1–bedroom flat, which had no internal communal areas, under a lease granted 29 May 1992. The landlord does not have any vulnerabilities recorded for the resident however during the course of events covered by this report, the resident informed the landlord that she had disabilities and a shoulder injury.

Legal and policy framework

3. The resident’s lease provided that the leaseholder would comply with “such reasonable regulations as the landlord may make from time to time” relating to the putting out of refuse for removal and such other matters as the landlord considers necessary or desirable for the purpose of securing the safety orderliness or cleanliness of the building or the common parts or the property or the comfort or convenience of the tenant or the efficient or economical performance by the landlord of its obligations under the lease. The common parts included footpaths and other parts of the building that were intended to be or were capable of being enjoyed by the leaseholders, in common with the occupiers of the other flats in the building, in other words, external common parts.
4. The Torts (Interference with Goods) Act 1977 makes it unlawful for a person to seize and dispose of another’s goods, in certain circumstances.
5. The complaints policy provided that the landlord treated all its customers fairly, ensuring the focus was on the individual. It was a two–stage procedure.

Chronology

6. On 3 July 2020 the landlord wrote to the residents of the estate in which the resident’s property was situated. It had identified several examples of fly–tipping and areas where bulky items were located. It gave the residents two weeks to remove the items and provide the locations of their items. It said it would collect and dispose of any remaining items and pass on those costs to the leaseholders by way of their service charges, without further warning. It asked the residents to remove any personal items that were being stored in the communal areas.
7. On 7 July 2020, the resident wrote to the landlord and identified her own items. She denied she was fly–tipping. She stated that the local recycling centre was closed. Some items were for disposal and some were being stored while she redecorated. She considered it was unlawful to dispose of goods without providing an exact date and would issue legal proceedings and make a claim against the landlord if it went ahead. She also considered that the request was not good for the landlord and resident relationship, she said she would set aside her items and label them appropriately. She was happy for the landlord to remove the unwanted rubbish. According to the landlord’s records, the resident did not wish to be contacted by telephone.
8. The landlord replied on 9 July 2020 stating that, in accordance with her lease obligations, residents were not permitted to store items outside their own property. It also explained that the items looked unsightly. It asked the resident to remove any rubbish before 17 July 2020. It provided a link to the local authority refuse and recycling services. If they were not disposed of by then, it would arrange removal and charge the cost to her service charge account. It offered to store some household items for 28 days as she had stated she only needed a temporary store. If those items were not removed by 7 August 2020, the landlord would arrange to dispose of those items as well, at her cost.
9. The resident replied on the same day stating she would ‘take the landlord to court’. She would not travel to a recycling centre that was far away and not familiar to her, due to her disabilities. She was of the opinion that not all items would be accepted. She referred to her previous reports of a number of decorative defects on the estate. She stated that there was also a number of pets on the estate, despite the lease conditions prohibiting pets.
10. The resident felt the landlord’s treatment of her was unfair as she had disclosed her ownership of items. She asked about the other items belonging to other residents and she said would remove her items when the pets were removed.
11. On 14 July 2020, the resident telephoned the landlord to discuss the matter further, and to inform it that she had sustained a shoulder injury.
12. The landlord replied on 17 July 2020. While it noted she was not happy, it would arrange to remove all items that were not permitted under the lease but was unable to provide an exact date due to the lockdown measures in place. It invited her to contact it if she were able to make arrangements to remove them herself. However otherwise, any items would be removed without further warning and charged to her service charge account.
13. The resident wrote to the landlord on 18 July 2020 stating she had already arranged a skip that cost her £180. She felt it was unfair that other residents would not be charged personally. She expected all their items to be removed.
14. On 6 August 2020, the landlord responded to the resident’s complaint stating that, as fly–tipping was prohibited on the scheme, any cost incurred as part of the removal was the resident’s responsibility. It would not refund the cost of the skip. It was sorry she felt that the time given to her to remove the rubbish was insufficient. It was difficult to assess what was a reasonable timeframe but considered that its response of 9 July 2020 showed a level of flexibility. It could not discuss specific issues about other rubbish but reassured her that it would take all reasonable steps to address any fly–tipping on the estate. It also addressed the resident’s other complaints.
15. On 6 August 2020, the resident informed the landlord that she felt discriminated against regarding the fly–tipping. In response, it explained it had followed policy and even made some extra allowances under the difficult and unusual circumstances
16. The landlord responded on 25 August 2020 summarising its position that it had written to all the residents. Its email of 9 July 2020 showed flexibility and provided her with information on local facilities that were open and gave permission to store the items she intended to retain, on a temporary basis for four weeks. It could not discuss any communications it had had with other residents on the scheme, but it had been in contact with those residents and was working with them to resolve the situation. The resident did not contact the landlord again either to request an extension or to advise that she had any difficulties in using the facilities. It referred to a paragraph of the lease regarding the removal of refuse. It noted that she chose to arrange a skip and therefore took personal responsibility for the removal of her waste. The cost was not the responsibility of landlord.
17. The resident continued to report to the landlord pointing out that rubbish and items were still in the common parts of the estate. They should be removed, and the relevant accounts charged.
18. The resident’s complaint was escalated to the second stage of the complaints process on 10 September 2020.
19. The landlord responded on 18 September 2020 stating that “Storage was prohibited but would always take a practical and considerate approach depending on a number of factors, such as where the storage is temporary, whether it impacted on any other residents, whether it posed a health and safety risk. It would continue to take a pragmatic approach and ensure their prompt removal”.
20. On 8 October 2020, the resident responded to the second–stage response. It was her view that the landlord should have sent out individual letters and dealt with the residents that had items outside directly. She was treated differently to all other residents. She reported that there were still items outside other properties on the estate.
21.  On 8 October 2020, the landlord responded with its final response stating that there was no evidence to indicate that the resident had been provided with a different standard of service from other residents at the scheme. The complaint was not upheld and the request for a refund for £180 was refused.
22. The landlord wrote again on 4 November 2020 with a further response to the resident’s email of 8 October 2020. It said that the landlord considered the impact on other residents, any health and safety concerns, and the impact on the estate i.e. whether it prevented repairs and maintenance before a decision was made. In the case of the items outside the resident’s home, the resident was storing a larger number of items which were both visibly detrimental to the estate and to the enjoyment of the estate by other residents. The impact was considered significant. In the circumstances, by offering more time and details of recycling centres, the response was reasonable.
23. The resident wrote to the landlord to state that a survey was not the way to resolve issues as residents did not respond to surveys. The resident contested her items were larger items or that they were in anybody’s way, or that they breached health and safety issues or prevented maintenance.

Assessment and findings

24. It was not disputed that the estate where the resident lived should not be used as a place to put unwanted goods. Moreover, it would be in line with local authority requirements not to do so as this could constitute illegal fly-tipping. It was implied in the lease that the landlord expected residents to cooperate in taking part in “securing the safety orderliness or cleanliness of the building or the common parts” and therefore not to use the common parts to dump or store goods.
25. It was therefore appropriate that the landlord wrote to the residents of the estate requesting they remove bulky items from the communal areas, given that it had determined that the items affected the overall look of the estate.
26. It was reasonable to propose sharing the costs of removal with all the residents. The performance of the landlord’s obligations was subject to the payment of service charges, so costs that arose in relation to the common parts should be charged to the residents’ service charge account in any event. Moreover, the landlord had been unable to ascertain to whom the items belonged. The lease entitled the landlord to create regulations in order to manage the estate in relation to “the putting out of refuse for removal and such other matters as the landlord considers necessary and desirable for the purpose of securing the safety, orderliness or cleanliness of the building”. It could be said that the landlord had created a regulation by requesting the items be removed. While any regulation had to be reasonable, the management of the estate was a matter for the landlord.
27. It was appropriate the landlord did not simply dispose of the items without notice, otherwise there could have been a legitimate complaint under the Tort (Interference of Goods Act) 1977. However, as this did not occur, this report will not consider this aspect further.
28. Fourteen days’ notice, during the period of a lockdown, was a short period in the Ombudsman’s opinion, particularly given that, as far as the evidence showed, the notice of 3 July 2020 was the first notice of such a regulation. However, the fourteen days referred to the period when the landlord would visit, not when the landlord intended to dispose of the items. It had no choice but to write to all of the residents, as it did not know whose item was whose.
29. As far as residents disposing of unwanted items themselves, the landlord could have considered the fact that recycling and waste services were restricted at that period, due to the recent lockdown. However, the residents would have been aware that dumping items in communal areas would not be acceptable, and the landlord’s offer to remove them from the estate was helpful rather than otherwise. It was reasonable for the landlord to expect the occupiers to pay for the disposal of their goods. It was reasonable that the landlord would charge a resident individually, where possible, as it would not be fair to charge other residents for disposal of goods in situations, where it was aware whose items they were.
30. While the request was reasonable and in line with the requirements of the lease, the Ombudsman would also expect the landlord to consider the individual circumstances of the residents, where it was made aware that an individual’s circumstances could lead to difficulty in complying with its request to remove items.
31. The landlord’s response of 9 July 2020 to the resident’s email was reasonable in that it offered to store the items she wished to keep for 28 days, given she was decorating. It also provided the contact details of waste and recycling centres, so that the resident could make her own arrangements. It was for the resident to enquire whether the local authority was operating a collection service for bulky items. However, it gave a deadline of 17 July 2020. The tone of its correspondence, in the Ombudsman’s opinion, was firm and did not appear to be flexible. It subsequently stated the resident should have requested an extension of time, when in effect that is what she did.
32. At that stage, the resident had not mentioned any disabilities or particular difficulties in her email of 7 July 2020, however she did refer to them in her email of 9 July 2020. While the resident had not explained the reason why her disabilities would prevent her from going to an unfamiliar site, the landlord should have considered the resident’s individual circumstances and replied sooner. The offer made by the landlord in its email of 17 July 2020 effectively giving the resident more time was reasonable, however the timing of its response of 17 July was problematic : it had given the resident a deadline of “by” 17 July 2020, so to respond giving the resident more time on 17 July 2020 was too late. While it would have been frustrating for the resident as she had already ordered a skip, she was responsible for removing the items, given they belonged to the resident. Consequently, the resident would have been faced with charges in any event, whether by hiring a skip or through her service charges, unless she made arrangements to take the items to the recycling centre. In any event, the landlord did not say it would dispose of the items on 17 July 2020 but sometime after.
33. It also would have been frustrating for the resident that she felt she had paid for a skip unnecessarily, and then witnessed that others did not move their items. However, the landlord’s explanation for its different treatment of the various residents was reasonable, given that it stated that the resident’s items were bulkier. While the resident disputed that was the case, that was a decision for a landlord to take and the landlord is not criticised for exercising its discretion differently in each case. Moreover, there is a difference between storing items residents wish to retain and allowing residents to use the communal grounds as a place to retain unwanted waste. The landlord made that distinction: it offered storage for the items that the resident wished to retain. The issue of the skip related to items she intended to dispose of.
34. It was reasonable that the landlord did not accept the linkage with other issues on the estate, such as the pets and decorative defects, as the resident suggested it should.
35. The landlord’s references to the lease throughout its correspondence with the resident to the lease justifying its position could have been clearer. It stated that the lease stated that the storage of items in the common parts was not permitted under the lease. The lease, rather, provided that the landlord would be entitled to impose regulations in relation to refuse, the safety, orderliness or cleanliness of the estate. It should have been more transparent in its explanation to the resident.
36. While the landlord could have dealt with the issue better, the practical impact on the resident, in the Ombudsman’s view, was not significant given that one way of another, she would have had to arrange and/or pay for the removal of her unwanted items. The landlord was carrying out its function in ensuring the estate was tidy and in good order. It was entitled to make estate management decisions, subject to their being reasonable, and subject to statutory obligations in relation to service charges. It was also entitled to, if not required to, carry out its management of the estate cost effectively. It offered a flexible approach, if too late for the resident in the circumstances, and, while it initially denied it had treated the resident differently, it provided an explanation for the different treatment that the resident had commented on.
37. While the communication from the landlord could have been clearer and more flexible from the outset, it was reasonable for the landlord to pursue clearing the estate. It was reasonable for the landlord not to pay for the cost of the skip, given it was the resident’s responsibility to arrange disposal and there would have been costs associated with the removal of goods in any event. It was the resident’s decision to hire the skip, rather than allow the landlord to remove the unwanted items.

 Determination (decision)

38. In accordance with paragraph 54 of the Housing Ombudsman’s Scheme, there was no maladministration in relation to the landlord’s request for removal of items and the resident’s request that the landlord pay for a skip.

Reasons

39. While the landlord could have improved its communication, the principle of the landlord’s request was reasonable. It considered the resident’s circumstances by offering the resident more time and to store the items she wished to keep. It was the resident’s responsibility to remove the goods. Her options were to arrange for a skip, leave disposal of the items to the landlord, or take the items to a waste and recycling centre.

Recommendations

40. The resident has informed this service that other residents’ items are still in situ and the landlord has not carried out its actions as it said it would in its letter of 3 July 2020. That is outside the remit of this investigation as it significantly post-dates the conclusion of the landlord’s internal complaints procedure, and the Ombudsman has not seen any evidence either way, or whether the items are for disposal or storing. However, in the Ombudsman’s view, given the landlord set out its intention to clear the estate in July 2020, it may benefit the resident and would be fair if the landlord provided a more in-depth explanation of its actions, including, in general terms, what steps it has taken and intends to take to clear the estate of items, and setting out what is acceptable for residents to store on the common parts of the estate.
41. The Ombudsman recommends that the landlord provides accurate explanations in particular in relation to the provisions of the lease and issues regulations in accordance with the provisions in the lease in order to provide more clarity on its expectations.