Southwark Council (202009109)

REPORT

COMPLAINT 202009109

Southwark Council

29 April 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

The complaint is about the landlord’s response to the resident’s report of satellite dishes installed on his building block.

Background and Summary of Events

Background

The resident has been a leaseholder, in respect of the property, since November 2000.

Legal and policy framework

The Lease

The landlord has provided this Service with a copy of the lease. Of particular relevance, the Ombudsman has noted the below clauses:
1. Clause three of the lease, which explains
  1. “The Lessee hereby covenants with the Council and with and for the benefit of the Lessees…and owners of other flats in the building or on the estate on behalf of the Lessee and those deriving title under him… (15) Not to erect any external wireless or television aerial.”
2. Clause four of the lease, which explains
  1. That the Lessee paying the rent hereby reserved and observing and performing the several covenants on his part and the conditions herein contained shall peaceably hold and enjoy the flat during the term without any interruption by the Council or any person rightfully claiming under or in trust for it.
  1. That should the Council hereafter grant a lease of any other flat in the building or on the estate they will (so far as they are able) require any person to whom they so grant a lease to covenant to observe the restrictions set forth in Clause 3 hereto”
3. Clause five of the lease, which explains:
  1. “(1)…if any covenant on the part of the Lessee herein contained shall not be observed or performed then and in such case it shall be lawful for the Council at any time thereafter to re-enter the flat or any part thereof in the name of the whole and thereupon this lease shall absolutely determine but without prejudice to any right of action or remedy of the Council in respect of any antecedent breach of any of the Lessee’s covenants or the conditions herein contained.”

Summary of events

On 30 May 2019 the resident advised the landlord that there were more satellite dishes than flats installed on his building block, yet his lease stated that residents were not allowed to fix items to exterior walls. He said that he thought the dishes were an ‘eyesore’.
The landlord responded to the resident on 3 June 2019. It confirmed that it did not allow dishes to be installed. It was aware of the problem and that this was because it did not have a communal aerial for the block. It explained that some blocks had communal aerials, and would be provided in the future for those that did not.
The resident and the landlord then discussed the matter further, and the landlord advised that it would deliver a letter to each of the residents in the block about the satellite dishes.
The resident emailed the landlord on 16 July 2019 to ask for an update, as his neighbours had advised him that they had not received a letter. The landlord responded the same day to say it had not yet been able to carry out the exercise, but would follow it up the following month as it hoped more people would be home when it visited the properties to deliver the letter.
On 12 September 2019, the resident asked the landlord for a further update. He said it had been 105 days since his first email on the issue, and they were no further along. The landlord responded to him later that day to confirm that it was hand–delivering the letters that afternoon. It apologised for the delay, and explained this had been due to sickness.
The landlord delivered a letter dated 12 September 2019 to all the residents in the building block. This letter reminded residents that the landlord did not grant permission for residents to install satellite dishes on the walls of the building. It asked the residents to urgently contact the landlord if they had a satellite dish installed, as this would allow it to identify the owners of the satellite dishes as they would be responsible for any damage caused by the installation. It said that any unclaimed satellite dishes would be removed and disposed of.
The resident contacted the landlord again on 13 November 2019 for another update. Later that day, the landlord explained it had received confirmation from a few residents that were still using their dishes because there was no communal aerial to connect to. It said that because most residents were yet to get in contact, it had not been able to establish which dishes were not in use for removal, but it was awaiting that information.
The resident wrote back to the landlord and said the residents that had not already responded, were not going to do so. He thought that if there were no plan to install a communal dish soon, all the dishes owned by residents that had not got back to the landlord ought to be removed. The resident pointed out that, technically, there should be no satellite dishes on the estate at all as they were in violation of the lease. He thought the landlord was legally obliged to enforce all terms of the lease.
The landlord advised the resident that it would raise the matter with the management team. It later confirmed to the resident that any satellite dishes removed during major works would not be reinstated. The resident responded to ask if there were any major works planned which included the removal of the dishes. He said he wanted a concrete plan with detailed action points and dates.
The landlord wrote back to the resident and said there were no major works planned for the estate, though it would continue to monitor dishes not in use and they would be removed.
On 3 December 2019, the resident emailed the landlord. He said the following:
1. The landlord had advised in its letter dated 12 September 2019 that any unclaimed satellite dishes would be removed and disposed of following the notice. The resident wanted to know when the removal would take place.
2. He wanted to know when the cut-off date had been for residents to get back to the landlord regarding dishes that were being used.
3. He asked which blocks already had the communal dish installed, and what the timetable was for the installation of the remaining communal dishes.
The landlord responded to the resident on 9 December 2019. It said:
1. It does not allow residents to install satellite dishes on the walls and, any such installation is a breach of the tenancy terms and conditions, or the covenants of the lease. It was aware that some residents had already installed satellite dishes, but it had decided not to carry out enforcement action. However, it was arranging for any redundant dishes to be removed. The landlord also explained that it was working with its engineering colleagues to install communal aerials and, once funding became available, it would notify all residents about this and the decision to remove all satellite dishes.
1. It had delivered a letter on 12 September 2019 which had asked residents to let it know if they had a dish installed. Unfortunately, only a few residents had responded and so it could not identify which dishes were not in use and therefore could not go ahead with the removal of unused dishes.
2. It confirmed which blocks had the communal dish installed and said there was no budget at that time to undertake new communal TV installations, but once funding became available, it would notify all residents.
On 9 February 2020, the resident made a formal complaint to the landlord. He said it had taken 105 days before any action was taken, and he thought the delay was unprofessional. The resident pointed out that, following the landlord’s letter to all the residents of 12 September 2019, no further action had been taken. He said he would like the landlord to remove any unclaimed satellite dishes immediately, as this was what the landlord had advised residents would happen.
After speaking with the resident about the matter, the landlord provided its Stage One complaint response on 17 February 2020. It said it was working to remove the unused satellite dishes, and noticed that the resident had said he would provide a list of those that he believed to no longer be in use. It accepted that by having the satellite dishes installed, those residents were in breach of the tenancy conditions and the covenants of their leases. It said it was not able to take enforcement action against all its residents and every action it takes must be reasonable and proportionate. Finally, it confirmed that it was working to provide an Integrated Reception System (IRS) that would enable residents to access various TV providers, but there were budgetary constraints which meant the rollout could take years.
On 27 August 2020, the resident provided the landlord with photos of the satellite dishes that he believed to no longer be in use. He thought the oversized dishes should be taken down, whether or not they were in use, as he thought they were an ‘eyesore’. He asked for a timeframe in which the landlord would remove the dishes.
The landlord provided its response to the resident the same day. It thanked him for providing the list and photos of the satellite dishes that he thought were not in use. It advised that it would verify this and take steps to dismantle them. It also confirmed it had applied for funding to install the communal aerial (the IRS), though it said there were other area teams that were bidding for the same funding. The landlord explained that it would not be taking legal action to take down the dishes as such action would be unreasonable and disproportionate. It pointed out that residents rely on indoor entertainment, particularly during the Covid-19 pandemic, and the installation of the communal aerial was the preferred alternative that it was taking.
Later that day, the resident asked the landlord to escalate his complaint to Stage Two. He said he had still not had a timeframe of when action would be taken, he had no job number to track, and he had had no clarification on whether or not the oversized dishes would be removed in the first wave. He also thought the letter to residents advising that the dishes would be removed was an empty threat. Finally, he said the landlord was in breach of the lease.
On 1 October 2020, the landlord provided its Stage Two complaint response. It said:
1. It had only received ten responses from residents following its letter of 12 September 2019, and so had not been able to confirm which dishes were in use, and which were not.
2. It had advised the resident in December 2019 that it would not be taking enforcement action to deal with the matter, though it had continued to offer to discuss removals with individual households.
3. It had not removed the satellite dishes, because it had not adopted an approach to remove all satellite dishes across its housing stock. It confirmed that its preferred option to resolve the issue was to install the IRS. It remained unclear what the likely timescale for delivery of this would be, though the aim was for funds to be allocated within the financial year.
4. Although it accepted there had been an initial delay with residents being approached about redundant satellite dishes, it pointed out that since the responses had been limited, it did not think this delay had had an impact on the situation.
5. It confirmed that residents were not permitted to fix satellite dishes to the property without its written consent, however, it needed to balance this with the practical concerns involved in pursuing enforcement. It said it would not be able to implement the ban solely at the resident’s particular block – it thought that if it were to do so, it could be challenged by judicial review.
6. It did not think the presence of the dishes breached the covenants of the resident’s lease as they did not interfere with his peaceful and quiet enjoyment of his flat.

Assessment and Findings

Clause three of the lease (as set out in point 5a above) sets out the various covenants (or promises) that apply on the resident’s part, including that television aerials should not be erected. It is understood that the same covenant applies to the other residents in the block of flats, whether they are tenants or leaseholders.
It has been accepted by the landlord that there are a number of residents in breach of that covenant, and that this has been the case for some time. Given that there has been confirmed breaches of a covenant in tenancy conditions and/or leases, it was appropriate for the landlord to remind the residents that it did not grant permission for satellite dishes to be installed. It did this in its letter to all residents on 12 September 2019.
Despite the fact that there have been confirmed breaches of tenancy conditions and/or leases, the landlord has chosen not to enforce the relevant covenant. That was the landlord’s decision to make. Clause five of the lease (as set out at point 5c above) effectively allows the landlord to take the action it deems necessary against any previous or existing breaches. The landlord has decided not to enforce the covenant, as it thinks that to do so would be unreasonable and disproportionate. The landlord is not in breach of the lease in taking that decision.
The landlord is also concerned that if it were to enforce the covenant for the resident’s particular block of flats (presumably by removing all the satellite dishes), it would have to do so across all of its housing stock, as otherwise it would leave itself open to legal challenge.
The landlord’s reasons for not enforcing the covenant seem reasonable in the circumstances. It has explained its intention is to install an IRS system and, at that point, it will consider enforcing the covenant as there would be no reason for residents to have a satellite dish. That appears to be a fair and proportionate response.
Clause four of the lease (as set out in point 5b above) sets out the various covenants that apply on the landlord’s part. In choosing not to take enforcement action against residents in breach of their tenancy conditions and/or leases, the landlord has not acted in breach of its own covenants with the resident. The landlord was required to ensure other residents granted a lease would have the relevant covenant included, and it is understood that it has done so (even though it is accepted that there have been some breaches of that covenant). Also, the installation of the satellite dishes on the side of the building block could not be said to be preventing the resident from peaceably holding and enjoying the flat.
The landlord has confirmed that if it is able to identify the unused dishes, it will arrange for their removal. Given that this would remove some of the satellite dishes from the side of the building, including perhaps the larger and more prominent ones, this would be a reasonable action to take.
The difficulty is that the landlord has yet to identify any of the unused satellite dishes, and so has not arranged for any of them to be removed.
The resident thought the landlord’s letter of 12 September 2019 was an empty threat, as it had asked the residents to inform it if they had a satellite dish, and said that any unclaimed satellite dish would be removed. That has not happened, so it is understandable that the resident found this frustrating. The landlord’s explanation for this was that only ten residents responded to its letter, so it was not able to establish what satellite dishes were not being used. Presumably it believes more than ten residents are using their satellite dishes, but have chosen not to declare this to the landlord.
It does not seem surprising that so few residents admitted to owning satellite dishes, given that the letter gave the impression that any satellite dish owner would be liable for any damage caused by the installation. If the landlord had instead explained that it would not require the removal of any satellite dishes currently being used, but wanted to establish who the owners were in order to identify and remove any unused dishes, it may have received a greater response from residents.
The Ombudsman does accept that there was some delay in the landlord’s follow-up action and in contacting the residents of the block, as it said it would. As the landlord said that it would undertake this exercise in the following month (August), it would have been reasonable for it to do so. Still, given that the landlord was already aware of the breaches and had no intention of removing the satellite dishes that were in use (potentially until a later time), the delay does not appear to have had a significant impact on the situation.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in respect of the landlord’s response to the resident’s report of satellite dishes installed on his building block.

Reasons

Although it is accepted that some residents in the block are in breach of the relevant covenant by installing satellite dishes on the walls of the building block, the landlord has chosen not to enforce the covenant. Under the terms of the resident’s lease, it was up to the landlord what action it took in this respect. The landlord has decided to wait until a communal aerial has been installed before deciding whether to remove all the satellite dishes. That seems a reasonable response.
However, the landlord has agreed to arrange for the removal of unused satellite dishes if these can be identified, which seems fair and would go some way to alleviate the resident’s concerns about the number of dishes installed on the side of the building. Although the landlord wrote to all the residents in order to try and establish which satellite dishes were unused, it did not have a very high response. Though that was likely due to the wording used in the letter, and because the landlord did not make clear the reasoning behind the letter.

Recommendations

It is recommended that the landlord write again to all the residents in the building block, and explain that it does not currently intend to remove the satellite dishes being used. However, it needs to establish which ones are being used, so that it can identify and then remove the unused ones. It may also wish to update the residents about its intention to install the IRS system in the future. If the landlord is able to identify the unused satellite dishes, it can then arrange to remove these as it had planned.
The Ombudsman accepts that, because of the present restrictions due to the coronavirus pandemic, the timing of the above action will depend on what is reasonable in the light of Government guidance regarding the health of the resident and of the landlord’s staff.