Shepherds Bush Housing Association Limited (202006610)

REPORT

COMPLAINT 202006610

Shepherds Bush Housing Association Limited

9 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 the landlord’s response to the resident’s request to run a business from her property.

Background and summary of events

2. The resident is a tenant of the landlord’s property. The property is a one-bedroom flat.

Tenancy terms and conditions

3. The tenancy agreement states that the resident is to “use the property for residential purposes as the only or principal home and not to operate a business at or from the property (without the prior written consent of the Association).”
4. In relation to permission, the tenancy agreement states – “The Association will not refuse permission, unless we feel that the business is likely to cause a nuisance to other people, or damage your property or adjacent property. If the Association do give permission to run a business from your property and it causes a nuisance, we will withdraw permission. You may also need to obtain planning permission to run a business from your property. It is your responsibility to obtain and comply with such permissions.”

Summary of events

5. On 14 July 2020, the resident wrote to her housing officer to request permission to run a business from the property. The resident explained that her intention was to sell fresh juices in addition to vegan and vegetarian meals. She added that once she had received permission from the landlord, she would go through the correct channels such as gaining certification and approval from the local authority.
6. On 18 August, the resident’s housing office replied and asked if she could provide additional information, so that the request could be considered in full. The housing officer said that it would be necessary to know the following:
   1. Whether customers would visit the property to purchase food, or if the resident would be selling items in a shop. If a shop were to be used, where would that be.
   2. Would the resident be storing food products and oil for commercial cooking in her home.
   3. Given that cooking on a commercial basis was likely to cause increased smells and increased refuse, had the resident spoken to her neighbours to see what their views were.
   4. Did the resident have any indication from the local authority as to whether it would permit the property to be used for commercial cooking.
7. The resident responded on the same day to confirm that:
   1. Customers would visit the property to collect food; but she had also considered an “organised event” where customers would have appointment times within the garden to prevent overcrowding, and to adhere to Covid-19 social distancing measures.
   2. The demand for business was quite low, so she would not be storing food commercially. If the demand increased, she would let the landlord know.
   3. She had not spoken to her neighbours, and she was seeking permission from the landlord first. She also wished to add that the cooking smells from her home had only received compliments, and not complaints, in the past.
   4. She had yet to approach the local authority, but was aware that an inspection of the property would be undertaken as part of the process.
8. The resident chased a response on 27 August. Within her email, the resident expressed dissatisfaction with the lack of response and advised that she just wished to receive a final response as to whether or not permission had been granted.
9. The landlord responded on 28 August, and apologised for the delay in providing a response. It said, it had taken into consideration that the property was a one-bedroom flat which was connected to a converted building. Having done so, it considered that the impact of the type of business on the residential area would be “too great”. It added:
   1. There were concerns about the amount of rubbish that would be generated, and it had been receiving complaints about the matter already from the local authority.
   2. The resident’s neighbours would have to contend with the smells of food cooking; and certain cooking facilities required specific attention for storage and disposal.
   3. There was an associated high risk in relation to fire safety; and it was considered that the type of business would be more suited to an outlet which could accommodate the resident’s needs to cook and organise events.
10. Taking the above into consideration, it had declined the resident’s request. The resident could get in touch if she wished to discuss the matter further.
11. The resident responded to the landlord on 1 September to express dissatisfaction with the decision that had been reached. The resident expressed concern that it had taken the landlord a long time to respond to her request, and she was of the opinion that it had already made up its mind, and was trying to “stall” the situation, so that it could provide a response. The resident added:
    1. She wished to make a Subject Access Request in relation to the complaints that had been made by the local authority.
    2. Assumptions had been made about potential smells. This had not been proven, and therefore was not a valid reason to decline the request.
    3. She used an electric cooker, which was proven to be safer than a gas cooker.
12. In closing, the resident said that she wished for the landlord to reverse the decision, and if not, to provide her with a final response so that she could take the matter further.
13. Further correspondence was exchanged, and the resident also contacted her MP for assistance as she considered that the landlord was intentionally delaying in responding to her correspondence and queries. The landlord informed the resident’s MP on 2 September that it had already provided its reasons for refusing the resident permission, and that it had since reviewed the decision and was satisfied that it was correct. The resident subsequently sought confirmation that the landlord’s decision was final; and on 7 and 23 September the landlord reiterated that the refusal was the final decision regarding the matter.
14. The resident subsequently contacted this Service in January 2021, as she was unhappy with the landlord’s decision. Through subsequent conversation, it was established that while the landlord had provided a final response regarding the resident’s request for permission, a formal complaint response had not been issued. This Service referred the matter back to the landlord, and a formal complaint response was issued on 31 March. Within this, the landlord said:
    1. It had met with colleagues who had been involved in the decision-making process, and had reviewed the chronology of the resident’s request for permission, and how this was dealt with.
    2. Having done so, it was clear that there were delays in its response which resulted in the resident escalating the matter to her MP. As such, it wished to offer her £50 compensation for the delay and inconvenience caused. In line with its compensation policy, this would be credited to the resident’s rent account.
    3. From reviewing the case, it was apparent that it had not been clear with the resident in its response to the original request with regards to how long it would take for the request to be considered, and how the resident could appeal the decision if she did not agree.
    4. It would be amending its process for handling residents’ request for permission, providing a “reasonable timescale” for responding, and explaining how residents could appeal the decision.
    5. The resident’s request for permission to run a catering business from home had been reviewed, and its position remained the same. The reason for this was because it had to consider the wider impact on the resident’s neighbours and fire safety.
    6. Its response was a provisional response, and the resident had five working days to advise whether she wished to dispute the findings, and provide additional evidence. It explained that it would consider the resident’s views and make adjustment where these were supported.

15. The resident responded on 7 April, to advise that she considered the landlord’s response to be “completely unacceptable”. She said:
    1. The landlord had not addressed any of the points that she had raised previously.
    2. She had not received a proper acknowledgement to any of the enquiries she had made, and had to involve a third party on each occasion to get a response.
    3. She did not consider the £50 offer came “anywhere near to resolving” the issue.
16. The landlord issued its final response to the complaint on 12 April. Within this, the landlord repeated the contents of its previous response and advised that it had also considered the resident’s representations which were made on 7 April 2021. Having considered this information, its position remained the same. The landlord confirmed that the resident had exhausted the complaints procedure, and could refer the complaint to this Service if she remained dissatisfied with the decision that had been reached.

17. The resident subsequently referred her to complaint to this Service. She said that she was unhappy with the reasons that had been cited by the landlord when refusing her request. The resident added that:
    1. The local authority had since confirmed that the property would be safe to conduct a business from – although she had not shared this with the landlord as yet.
    2. The business would not generate more rubbish than normal, and would not need more collections.
    3. The food would not smell as it was brownies and cookies.

Assessment and findings

18. As detailed above, the tenancy agreement prohibits using the property for business purposes, except when permission has been granted by the landlord. The decision to provide permission is discretionary, and each request will need to be considered on a case-by-case basis. The Ombudsman’s role when considering such complaints, is not to determine whether permission should have been granted; but rather, whether the landlord acted fairly and appropriately when reaching its decision. The landlord does not have any policies or procedures in relation to considering such requests; and as such, the Ombudsman has assessed whether the landlord’s response to the resident’s request was reasonable in the circumstances.
19. In response to the resident’s request, the landlord appropriately sought further information about what the resident’s intentions were in relation to the business, how and where food would be prepared and stored, and how the property would be used to facilitate the business. The landlord also asked if the resident had obtained the views of her neighbours. These were reasonable questions to ask, given that the tenancy agreement states that permission may be withdrawn if the business is found to cause a nuisance to other residents. In reaching its decision, the landlord advised that it was unable to grant permission on the basis that type of business would be more suited to an outlet which could accommodate the resident’s needs to cook and organise events.
20. It is acknowledged that the resident does not agree with the conclusion that was reached by the landlord and that she disputes that her neighbours would be affected by any smells or rubbish, and that there are no – or minimal – risks as she uses an electric cooker. While the resident’s comments have been considered, the Ombudsman is satisfied that the landlord had appropriately considered the construction and location of the resident’s property, and how approving the request could affect other residents when reaching its decision.
21. However, it is noted that not all of the resident’s queries and comments were acknowledged or responded to by the landlord, in particular, the specific queries that the resident raised in her email of 1 September 2020. While there was no obligation on the landlord to respond to every point that the resident had raised, it would have been reasonable for the landlord to acknowledge them and to explain why they did not change its decision. Taking such steps would have also helped to demonstrate transparency in the landlord’s handling of the request. That the landlord did not provide a response – either in 2020, or when the complaint responses were issued in March and April 2021 – was a failing in its overall handling of the matter.
22. When responding to the complaint, the landlord appropriately advised that it had delayed in responding to the resident’s queries and concerns. The landlord explained that in recognition of this, it wished to offer the resident £50 for the inconvenience she had been caused. Given the evidence that has been provided to the Ombudsman, this was a reasonable and proportionate offer in the circumstances.
23. The landlord also identified what improvements could be made to its process given issues that had been highlighted by the complaint. It said that it would ensure that it provided reasonable timescales for responding to such requests, and that it would inform residents of the action they could take if they wished to appeal the decision. This was an appropriate response. It demonstrated that the landlord had learnt from the issues that had been identified by the complaint, and that it would implement measures aimed at ensuring that similar errors and issues did not arise in the future.
24. In correspondence to this Service, the landlord has advised that it is aware that its initial handling of the complaint did not comply with our Complaint Handling Code (the Code). It has advised that the implementation of a centralised complaints team will enable it to track and control complaints, and ensure that responses are being provided in line with the Code.
25. While the landlord’s comments have been acknowledged, the issue with the complaint handling in this case appears to have arisen owing to conflation of the resident’s dissatisfaction with the landlord’s decision to refuse permission, and her dissatisfaction with how the process of seeking permission had been handled. To avoid similar issues in the future, it would be reasonable for the landlord to consider implementing a policy or procedure setting out how such requests for permission are to be considered. Such a policy or procedure should explain:
    1. What information a resident should be asked – or what information a resident would need to provide to support their request.
    2. What the decision-making process should entail – including which member of staff should make the decision.
    3. The timeframes for communicating the decision, or requesting further information.
    4. How residents can appeal the decision – as well as who the appeal should be referred to.
    5. How residents can raise a formal complaint about the service provided by the landlord when considering permission requests.

26. The implementation of such a policy or procedure should help to ensure that the landlord handles all such requests fairly and consistently. It should also help to ensure that appealing the decision relating to permission, and subsequently raising a complaint about the overall handling of the issue, remain two separate and distinct areas.

Determination (decision)

27. In accordance with paragraph 54 of the Scheme, there was service failure in the landlord’s response to the resident’s request to run a business from her property.

Reasons

28. The evidence provided to the Ombudsman shows that overall, the landlord acted reasonably in exercising its discretion when considering the resident’s request for permission. When the landlord responded to the resident’s complaint, it appropriately acknowledged the delays in the service it provided, and offered compensation aimed at putting things right.
29. However, it would have been reasonable for the landlord to have acknowledged some of the resident’s comments that were made from September 2020 onwards, and to explain why these did not change its decision. In addition, given the issues highlighted by this case, it would be reasonable for the landlord to consider implementing a policy for considering such permission requests.

Orders

30. Within four weeks of the date of this determination, the landlord should:
    1. Apologise to the resident for the failing identified by this investigation.
    2. Pay the resident £100 compensation for the inconvenience caused as a result of failing to address some of her comments, in particular those made on 1 September 2020.
    3. Re-offer the resident the £50 compensation which was offered during the complaints procedure.

Recommendations

31. Within six weeks of the date of this decision, the landlord should review its process for such permission requests, and consider implementing a policy setting out the types of considerations detailed above. The landlord should share the outcome of its review with the Ombudsman.