Tower Hamlets Community Housing (202126826)

REPORT

COMPLAINT 202126826

Tower Hamlets Community Housing

1 February 2024

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

The complaint is about:
1. The landlord’s handling of the resident’s request that it enforce the terms of the lease at a neighbouring property.
2. The landlord’s handling of the related complaint

Background and summary of events

Background

The resident is a leaseholder. The lease commenced on 26 October 1987.
The property is described as a one-bedroom ground-floor flat situated within a Victorian tenement block of 24 flats.
The resident’s lease agreement includes a qualified covenant on subletting at section 3 (7). This states that subletting requires the landlord’s consent and a deed of covenant to be signed by the subtenant. The Fourth Schedule of the lease indicates, at Regulation 1, that the property should only be used or occupied as a private residential flat. It also confirms that all statutory regulations and provisions relating to overcrowding should be observed. The lease agreement for the neighbouring property includes a similar covenant on subletting and regulation on use as a private residential flat only. Regulation 2 prevents the use of the property for business purposes.
The landlord’s information to leaseholders available online states that “your lease will let you know if you are able to sublet your home – it will also tell you how you need to let us know and if you need approval.” It sets out the circumstances in which approval may be given.
At the time of making the complaint, the landlord’s complaints procedure stated that residents could complain about any issue within six months of the event happening and older complaints may be accepted on the discretion of the manager. It could not accept a complaint about a complaint that it had already investigated.
The landlord’s complaint procedure said that it would respond to a complaint within 15 working days at the first stage of the complaint procedure. If the resident remained dissatisfied, the resident should escalate the complaint to its final stage within 15 working days. However, if the landlord decided not to escalate the complaint, it would give reasons within 15 working days.
The resident’s complaint concerns a neighbour who is the leaseholder of a neighbouring property (referred to in this report as ‘Property A’). The lease agreement for Property A includes a similar qualified covenant on subletting and regulations on use as a private residential flat only and to abide by overcrowding regulations and provisions.

Scope of investigation

The resident has said that his concerns are ongoing and that he has been raising these with the landlord since 2009. This Service has considered related events in the past. It is understood that the present complaint was made to the landlord on 17 August 2021. This investigation will consider events from a year prior to the resident’s complaint as per paragraphs 42(c) and 42(l) of the Housing Ombudsman Scheme. The report may however reference historical events for the purpose of context.
In addition, paragraph 34(a) of the Scheme states that a complaint must be about a matter which, in the Ombudsman’s opinion, have affected the resident in respect of their occupation of the property. This investigation will therefore focus on the landlord’s handling of the impacts that the resident has reported, or experienced, due to the subletting issue rather than whether there was, or was not, subletting by other residents in the block.
The landlord’s internal complaint procedure also investigated and responded to the resident’s concerns about the local authority’s refuse and recycling service. These matters fall under the jurisdiction of the Local Government and Social Care Ombudsman and are therefore outside of the scope of this investigation.

Summary of events

The resident communicated with the local authority’s mayor between June 2020 and July 2020 regarding the local authority and the landlord’s responsibilities to prevent overcrowding in Property A. The resident complained that parties were occurring until midnight and the landlord had not communicated with him.
The landlord responded to the resident in an email dated 24 June 2020, regarding his reports of overcrowding. It advised that the property in question was occupied by two couples, it was not statutorily overcrowded and it had informed the leaseholder of their obligations under the Housing Act and the licencing scheme. The landlord responded to the resident’s concerns about noise nuisance at Property A in an email dated 26 June 2020. It confirmed that it had asked Parkguard (who offer community safety services) to patrol the area for signs of nuisance and to conduct a door knock at Property A. The landlord also suggested the resident used the Noise App to capture any further instances of noise nuisance.
Between July 2020 and August 2020, the resident informed the local authority’s mayor that there were four people living in a one-bedroom flat and he disputed the landlord’s assertion that the property was not overcrowded. He advised that the mayor was equally criminally liable for the overcrowding in Property A. He also provided the landlord with the measurements of his property, giving the permitted number of occupants.
On 1 September 2020, the resident informed the landlord via email that the police were called to Property A on 30 August 2020 by a member of the public. He stated that he and another resident heard screaming and a commotion. He believed that an assault had taken place. The resident asserted that there were six people living in Property A and questioned whether the landlord knew the identity of the occupants of its properties.
The landlord contacted the resident via email on 3 September 2020 regarding the incident on 30 August 2020. It noted that it understood that the resident had spoken to the police and requested the crime reference number so that it could contact the police. It informed the resident that it would contact the leaseholder and the police.
The resident made a complaint to the landlord on 11 December 2020, stating that it had not addressed the subletting that was ongoing in Property A though it was aware that anti-social behaviour was continuing. The key findings from the landlord’s complaint response on 4 January 2021 were:
1. If there was a sub-tenant living in Property A, the leaseholder was responsible for carrying out the prescribed identity checks introduced by the government.
2. It worked with the local authority’s fraud team as and when necessary to resolve concerns about any occupant living in its properties.
3. It investigated reports of anti-social behaviour that it receives and its neighbourhood patrol service had not identified any such concerns.
4. Nevertheless, the patrols of the area would continue and the resident should report and log any anti-social incidents that occurred for its investigation.
5. It was aware that the resident had reported that someone had rung his buzzer and had banged on the front door. The resident should report further incidents to itself and to the police.
There was a gap in communication regarding the resident’s reports that the leaseholder was subletting Property A until 7 August 2021 when the resident contacted the landlord. The resident advised that for the period that Property A had been up for sale, the leaseholder had sublet the property.
On 16 August 2021, the local authority responded to the resident’s query about missed recycling collections from 23 July 2021local authority. In response, on the following day (17 August 2021), the resident emailed the local authority and copied in the landlord, requesting that the local authority get the landlord to clean up discarded rubbish such as the contents of fast-food containers. The resident provided photos.
The resident made a complaint to the landlord on 31 August 2021, referencing his email to the local authority dated 17 August 2023. The resident stated that the landlord had failed to remove the rubbish that was displayed in his pictures. He had considered making an application to the First Tier Tribunal to manage the property. However, as the landlord was an exempt landlord under section 58 of the Landlord and Housing Act 1987, this option was not available to him. Therefore, he informed the landlord that it should treat the email and the contents of the email sent on 17 August 2021 as a complaint regarding the landlord’s management of the disposal of refuse.
The landlord acknowledged the complaint on the same day (31 August 2021), advising that he should receive a response within 10 working days.
On 3 September 2021, the resident emailed the landlord to advise that the subletting of Property A was occurring which was a breach of the covenant within the lease. Also, he had brought this to the landlord’s attention since May 2009.
The landlord emailed the resident on 7 September 2021, apologising for the delayed contact. The resident was informed that a voice message had been left providing the officer’s contact details.
The following day, the resident informed the landlord that he had received the voicemail left on his phone but he preferred to communicate with the landlord in writing.
The landlord acknowledged the resident’s communication preferences and provided its complaint response on 14 September 2021. The key findings from the complaint response were:
1. It had received complaints from the resident about the refuse collection on 17 August 2021 and 31 August 2021 and apologised for its delay in contacting him.
2. It explained that it was working with the local authority and residents to improve its recycling collections.
3. Daily updates were received from the local authority about the refuse and recycling service and checks were made to minimise missed collections.
4. It would be writing to each property, enclosing eight clear recycling bags, to assist with the bin area being kept neat and tidy.
The resident escalated his complaint on 21 September 2021. He expressed that he already had recycling bags and that the landlord had failed to address that the incorrect disposal of rubbish by his neighbours was a symptom of the actual problem. The resident described the problem as his neighbours’ disregard for the correct disposal of rubbish and the landlord’s refusal to take action regarding the unauthorised subletting. The resident also maintained that the landlord had failed to address that the leaseholder of Property A had been undertaking short sublets of the property while he was waiting for the property to be sold. Furthermore, the subletting of Property A was a breach of a covenant in the lease which he had originally bought to their attention in 2009. In addition, he expressed that despite complaining about the subletting of Property A, he had been continually fobbed off. He advised of his intention to make a complaint to this Service once he had received the landlord’s final complaint response.
The resident chased the landlord’s complaint response on 16 November 2021. In his email, he advised that he had been complaining for the past 12 years that Property A had been sublet and the landlord had delayed in responding to him.
The resident chased the landlord’s complaint response on 21 December 2021. He informed the landlord that he had been away from 21 November 2021 to 12 December 2021. The resident expressed that the landlord had not responded to his complaint and neither had it acknowledged his email sent on 16 November 2021.
The landlord provided its final complaint response on 24 December 2021 and apologised for its delay in responding to his complaint. The key findings from the complaint were:
1. It advised that the resident’s complaint was about its refuse collection and recycling provision.
2. It understood that the resident was also concerned about the behaviour of sub-tenants living in the building and that subletting was not permitted under the terms of the lease.
3. It confirmed that it had previously investigated the resident’s concerns about the subletting under its complaint procedure and its position remained unchanged.
4. It agreed to monitor the disposal of refuse at the property and take action once it identified individuals.
5. It offered to meet with the resident and an independent mediator to resolve the outstanding differences.
The resident remained dissatisfied and sent a letter dated 18 February 2022 to this Service, setting out the reasons for his complaint.

Assessment and findings

The Ombudsman’s role includes an assessment of whether the landlord has followed its polices and its response to the reports it received, including to the formal complaint. This Service will consider whether the landlord’s response was reasonable considering all the circumstances of the case.
The resident’s dissatisfaction with the landlord is duly noted. It is clear from the resident’s submission to this Service that he has been frustrated that the landlord has not undertaken more action to resolve the subletting reports he consistently made to it.

The landlord’s handling of the resident’s reports that a neighbouring property was being sublet.

The landlord’s information on subletting states that it manages different types of leases within its portfolio of properties. While it states that subletting is not allowed, it recognises that there are occasions when leaseholders may need to do so. In certain circumstances, it will give permission for this to occur. This is a reasonable approach to take as it recognises and responds to the changing circumstances that can occur and allows it to apply discretion and respond in a proportionate way. The landlord has previously explained to the resident that it had permitted the leaseholder of Property A to sublet the property on either a short-term or long-term basis. As the covenant is qualified and the landlord has stated that it has consented to the sublet, the landlord’s response is appropriate. However, the landlord has not addressed the use of the property for residential purposes. The lease notes that the landlord can provide consent for short-term lets, but also that the property should be used solely as a private residential flat. These appear to be contradictory. It would be prudent for the landlord to obtain legal advice on the wording of the lease to understand if it prevents short-term lets within the building (whether the landlord has consented or not). Upon receipt of that advice, the landlord should then write to all leaseholders in the building to inform them of the outcome of that advice.
The resident reported his concerns about overcrowding in Property A and related anti-social behaviour between June 2020 and September 2020. In response, the landlord informed the resident that it was satisfied that the property was not statutorily overcrowded. It is noted that the resident also complained at the same time to the local authority’s environmental team about the alleged overcrowding in Property A as they have a statutory duty to take action if the property meets the threshold to be considered statutorily overcrowded. From the submission to this Service, there is no evidence that the local authority’s environmental service found sufficient evidence to take action against the leaseholder of Property A for the number of people occupying the property, nor that the landlord was therefore able to take further steps to take any enforcement action open to it in accordance with any lease held with that leaseholder.
The resident informed the landlord in September 2020 of an incident that occurred outside Property A. The landlord responded within a reasonable period (two days) to obtain more information from the resident, such as the crime incident number. From the evidence provided to this Service, no further communication followed between the resident and the landlord about that incident. However, the landlord appears not to have noted whether it considered the report in September 2020 met the threshold to be considered as anti-social behaviour as defined by its policies. This was a shortcoming as it could have contacted the resident to advise of the further action that it intended to take, if any. Nevertheless, it did inform the resident of the steps that it would take, such as contacting the leaseholder of Property A and the police.
The landlord responded to the resident’s concerns about noise nuisance at Property A in an email dated 26 June 2020. It confirmed that it had asked its neighbourhood patrol service to inspect the area for signs of nuisance and to conduct a door knock at Property A. The landlord’s further response on 4 January 2021 indicated that its neighbourhood patrol service had not identified any concerns or issues at Coburg Dwellings but it would continue to ask them to patrol in the area. The landlord’s response was reasonable.
The resident made a report in January 2021 about an individual who had rung his bell. The evidence seen by this Service indicates that the individual was not identified and, although the resident was appropriately advised to report further incidents if they occurred, there was no specific report made to the landlord about noise disturbance or anti-social behaviour. It was therefore limited in any other actions it could take to address this issue.
The landlord acted appropriately following the resident’s report of discarded rubbish. There was nothing to identify that the rubbish was discarded by the occupants of Property A. Therefore, it was reasonable for the landlord to advise in its final complaint response that it would write to all occupants of the building to remind residents of their responsibilities regarding the disposal of refuse. It also said it would monitor this issue following the final complaint response and would take action with ay individuals identified as causing such a problem. This was a reasonable approach given the circumstances of the case.
The landlord is required to act within the principles outlined in the General Data Protection Regulations regarding the use of personal information. Therefore, it was limited in the amount of information that it could share with the resident regarding the occupancy of Property A. It appropriately shared with the resident that it would communicate with the relevant leaseholder on the concerns raised by him about the occupancy of the property. The landlord was not required to inform the resident of the personal information it held regarding any of the occupants of Property A.

The landlord’s handling of the related complaint.

The resident complained on 31 August 2021 about the landlord’s management of the disposal of rubbish and recycling. The landlord responded on 14 September 2021. The landlord responded within 13 working days which was within its published complaint handling timescales. It is noted that the resident’s initial complaint to the landlord did not mention his concerns about Property A.
The resident escalated his complaint on 21 September 2021 and the landlord appropriately contacted the resident to clarify his complaint. This is in line with this Service’s Complaint Handling Code (July 2020) which informs landlords that they should confirm their understanding and clarify any aspects of a complaint that are unclear.
The landlord’s complaint procedure states that if it decides not to escalate the complaint, it should inform the resident within 15 working days. The landlord did not meet the requirements outlined in its complaints procedure as it did not respond to the resident’s final complaint until 24 December 2021 – 65 working days later. This was not reasonable. It delayed the resident in obtaining the landlord’s position on the complaint at the earliest opportunity as outlined in the Complaint Handling Code (July 2020). Furthermore, it caused inconvenience to the resident who had to chase the landlord on two separate occasions before it provided its complaint response.
The landlord decided that it would not investigate the resident’s complaint about subletting. The landlord informed the resident that it had already considered this matter under its complaint procedure and its position remained unchanged. It is not disputed that the resident had complained about the subletting to the landlord in the past and that it had considered that matter through its complaints process. Its explanation that its decision on the subletting allegation was unchanged and would not be re-considered through the complaints process was therefore reasonable. Nevertheless, as per paragraph 38 above, the landlord did offer to continue involvement in taking actions to remedy the substantive impacts on the resident of the alleged subletting. This demonstrated the landlord’s willingness to remedy any effects on the resident’s living conditions caused by other occupiers of the block.
When the landlord reviewed its handling of the resident’s complaint, it apologised for its delayed complaint response and it re-offered an opportunity to meet with an independent mediator to improve their relationship. Whilst these measures were appropriate, it did not take the opportunity to consider whether an award of compensation was appropriate for the inconvenience experienced by the resident due to its delay. This meant that it did not offer sufficient redress to the resident for its failure to respond to the complaint within its published timeframes.
It is noted that the landlord’s complaint policy (November 2022) available online now meets the complaint timelines outlined in the Ombudsman’s Complaint Handling Code.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s reports that a neighbouring property was being sublet.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the related complaint.

Reasons

The landlord has responded to the resident’s concerns regarding Property A. It assessed that the property was not overcrowded and it had not received recent specific reports of noise disturbance or anti-social behaviour from Property A that had impacted the resident or reached the threshold to be considered as anti-social behaviour.
The resident experienced an unacceptable delay in receiving the landlord’s decision regarding his complaint about Property A. The landlord in its complaints review did not consider whether a compensation award was appropriate in light of the inconvenience experienced by the resident and the time taken by him to pursue the matter.

Orders and recommendations

Orders

Within four weeks the date of this report, the landlord should:
1. Write to the resident to apologise for the service failures identified in this report.
2. Pay the resident £100 compensation for the unreasonable delay in providing its final complaint response.
3. Obtain legal advice on the wording of the lease to understand if this prevents short-term lets within the building (whether the landlord has consented or not). The landlord should then write to all leaseholders in the building to inform them of the outcome of that advice.
The landlord should evidence compliance with these orders to this Service within the timescales set out above.

Recommendations

Within four weeks of the date of this report, the landlord should consider offering the resident the option of an independent mediation service to resolve the resident’s outstanding concerns with the landlord.