Tower Hamlets Community Housing (202224268)

REPORT

COMPLAINT 202224268

Tower Hamlets Community Housing

23 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

1. The complaint is about the landlord’s handling of the resident’s concerns about fly tipping and waste management on the estate where he lived.

Background

2. The resident is the leaseholder of a property on an estate managed by the landlord.
3. The estate is private property and so refuse management on it is the landlord’s responsibility. There is an underground refuse store (URS) on the estate where residents are required, by terms of their leases and tenancy agreements, to place their rubbish. The landlord has an agreement with the local authority to empty the URS weekly. The local authority often failed to comply with this agreement throughout 2021 and during the time covered in this report.
4. The resident wrote to the landlord in March 2022 saying that rubbish often built up around the URS when residents did not correctly sort and dispose of their rubbish. He sent photos and asked what actions it intended to take to improve matters. He suggested the installation of CCTV and patrols of the estate.
5. The resident became increasingly frustrated by the problems with refuse management on the estate. He met the landlord in July 2022 and agreed some action points. It said it would provide him with statistics on actions taken against residents, add an extra bin for cardboard and investigate fencing off the URS and installing CCTV. He was unhappy with a lack of progress with these action points and, on 14 September 2022, emailed the landlord which treated his email as a complaint.
6. In its stage 1 complaint response of 29 September 2022, the landlord said it needed permission from the local authority to install the cardboard bin. It was commencing daily collections of fly-tipped waste and would charge leaseholders for this service. It said it was not practical to fence off the URS and it was holding an internal review about CCTV. It also said it would take other steps to deal with rubbish including writing to residents and reintroducing a fob system to access the URS.
7. On 15 October 2022, the resident requested an escalation of the matter, stating that the landlord had still not given him a date for the installation of the cardboard bin, nor a firm date for a decision on CCTV. It had told him it would fence around the URS and had now gone back on this. Its action points set out in the stage 1 response were vague and unlikely to help and he wanted it to take actions against residents who used the URS wrongly.
8. In its stage 2 decision of 15 December 2022, the landlord explained that it had faced problems in dealing with refuse as 2 temporary housing officers had been covering the estate and there had been unusually high levels of sickness. Nonetheless, it had been working to sort out the problems at the estate. It had been liaising with the local authority. It would work with individuals who misused the URS but would not take action against them under the terms of their leases. It would not give him statistics about actions taken. It would look into the costs of a CCTV system. The officer would apologise to the resident, and it would pay him £50 and hold workshops to improve its service.
9. The resident was not satisfied with this response and complained to this Service. He said it had not taken effective action to address the problems at the estate, thus, it should take action against those who misused the URS and instal CCTV.

Assessment and findings

Scope of the investigation

10. Paragraph 42(f) of the Housing Ombudsman Scheme (the Scheme) says this Service may not consider complaints if the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts or tribunals. The First-tier Tribunal (Property Chamber) deals with challenges to the level of service charges, so this Service has not considered the level of service charges in this case. It has, though, considered the terms of the lease which deal with service charges to see whether, in principle, the landlord has the right to charge for services in the way that it did.
11. The resident in this case has made proposals for actions which he believes would alleviate the problems of fly-tipping and refuse management on the estate on which he lives. It is not the role of this Service to evaluate those proposals or to judge whether he is right. It is the Ombudsman’s role to evaluate the actions of the landlord and to see whether they were reasonable, proportionate and in line with its duties under its agreement with the resident.

Lease terms

12. The resident’s lease agreement with the landlord says that the leaseholder must pay a fair and proper proportion of its outgoings incurred in managing the estate. He is required to pay the service charge in advance. The expenditure will be calculated by the landlord in advance based on expected expenditure. It can increase or decrease the amount payable at will.
13. The landlord “shall not be liable to the leaseholder for any failure in or interruption of services…which are not attributable to its neglect or default”.
14. Leaseholders and tenants are required to use the URS as the sole method for disposal of refuse and to ensure it is left neat and tidy. The landlord is required, “in so far as practicable” to keep the common parts of the building adequately.
15. It is the landlord’s responsibility, if required to do so by the leaseholder, to enforce the tenant’s covenants similar to those contained within his lease which bind other tenants in the building which affect his property, as long as the leaseholder indemnifies the landlord against all costs and expenses of enforcement.

Fly-tipping and waste management

16. The resident has suggested that the landlord’s assumptions when calculating the necessary capacity of the URS were incorrect as the local authority is often unable to empty it because its refuse trucks, specially built for the task, have frequently broken down and the URS has not been emptied on schedule. 
17. This Service understands the resident’s frustration with waste management, but it does not have the necessary expertise to assess the required capacity for the URS. It can only assess the landlord’s responses to the problem of waste management and to the resident’s concerns. The evidence shows that it pursued the local authority on many occasions when it failed to empty the URS. As is stated in the lease, the landlord cannot be held liable for any failure of services which are not attributable to its own mistakes and failings.
18. The resident began to raise his concerns about fly-tipping with the landlord in early 2022. It had a responsive service to which residents could report instances of fly-tipping and it would remove the rubbish, as would be expected.
19. The collection service ran on weekdays only and the resident found that this was inadequate, particularly when bank holidays occurred. He said this meant, particularly in June 2022, when there was a 4-day weekend, that the estate became untidy by the beginning of the working week.
20. In late 2022, the landlord introduced a daily collection service to clear fly-tipped waste from the site. It informed the resident that he would be charged for this service. The resident said that, as he had not caused the problem, he should not have to pay for the service. However, the lease agreement says that the costs of cleaning should be calculated, and then divided fairly and passed on to residents in their service charge. This daily collection service was in line with its duties to keep the site as clean as was practicable and a reasonable response to the fly-tipping problem. Therefore, the landlord’s decision to charge the resident was in line with its duties under the lease.
21. All-in-all, the landlord responded adequately and proportionately to the residents’ reports of fly-tipping in a way which was in line with its duties under the lease.
22. In his early complaints, and throughout 2022, the resident fairly stated in his emails to the landlord that the problem at the URS was not caused by it but by residents failing to dispose of their rubbish as they should have.
23. Photographs provided by the resident show that there were often bags of waste left in the URS area without being put in the individual hoppers which led to the underground storage bins. The evidence shows that, when he notified the landlord of significant amounts of rubbish left above ground, it would have it removed. This was in line with its duties under the leasehold agreement and therefore a reasonable response to his concerns.
24. In May 2022, the landlord wrote to other residents and reminded them of their duty to use the URS responsibly. The resident was clearly frustrated that this had little effect. The waste problem persisted. The resident would often photograph individual pieces of rubbish, usually cardboard packaging with names and addresses on, and send photographs to the landlord asking it to punish the perpetrator. It told the resident on several occasions that it had contacted the perpetrators and reminded them of their responsibilities.
25. The resident repeatedly pressed the landlord to take enforcement action against residents who used the URS incorrectly. However, the landlord was not obliged to take legal enforcement action against any resident. Its antisocial behaviour policy sets out a range of non-legal interventions it can take. These include warning letters, antisocial behaviour contracts and mediation.
26. Whether to take enforcement action and what action to take were decisions for the landlord unless the resident were to insist that it did so in which case, by the terms of the lease, he would have to agree to indemnify it for all costs and expenses of enforcement. He did not, on the evidence, offer to do this and therefore, the landlord was not required to do it.
27. The landlord stated that it would continue to work with residents to prevent them from abusing the URS. The evidence shows that it did this by sending out letters, considering installing CCTV, putting up posters and so forth. This was, therefore, a reasonable and proportionate approach in line with its duties.
28. The resident also wanted the resident to erect a fence around the URS so that it would not attract passers-by who would leave rubbish there. He says the landlord agreed to erect fencing at a meeting in July 2022. There is no contemporaneous note of that meeting, so this Service is unable to ascertain what was said.
29. The landlord’s response was that having investigated, any benefits there would be in erecting such fencing would be outweighed by the disadvantages. It stated that fencing would make manoeuvring a refuse truck into the required position more difficult. This meant that there was every chance that it would be damaged by visiting trucks and residents would have to pay not only for the fence but also to repair it when necessary. The landlord therefore decided it was impractical. This was a reasonable decision in the circumstances.
30. The resident wanted the landlord to instal CCTV. At a meeting in July 2022, it said it would get back to the resident with a view on this shortly. It stated, in its report to the stage 2 panel, that the officer who gave this assurance did not know that it was, at that time, engaged in an organisation-wide review of the use of CCTV. The officer was not, therefore, able to provide a quick response. In its stage 1 response, it said it would get back to the resident by Christmas. The resident said that this was not an adequate response as Christmas was not a date. This is incorrect as Christmas falls on a known date and so it was a firm commitment. But it was a commitment to consider the installation of CCTV not to instal it. The landlord did consider it and told the resident in its stage 2 response that it would keep the matter under review.
31. Such a decision was one that would involve significant costs which would have to be passed on to leaseholders. It also required the formulation of a CCTV policy. The landlord was, therefore, entitled to take the time needed to come to a settled view. The landlord’s panel report said it would not commit to any CCTV installation until the review was complete. This Service understands the resident’s frustration as it appeared to be another change of position. However, it was not a service failure for an employee to try to help before finding out about the review. The landlord’s responses were adequate in the circumstances.
32. Despite the foregoing, this report has considered the shortcomings in the landlord’s communication to the resident. In October 2022, an employee of the landlord accidentally copied the resident into an email they had written to the local authority trying to get progress with the cardboard bin. The email referred to needing to get “this resident off my back”. The landlord has since apologised for this error and the resident has accepted the apology. However, this was an example of poor communication.
33. One of the resident’s requests was to know what enforcement action the landlord had taken against residents. It initially agreed to provide this information but later, in its stage 2 response said it would not do so for data protection reasons. It offered the resident £50 for communication failures in its stage 2 response. The resident has argued that he should have been paid £500 to reflect the time spent complaining and reporting failures to the landlord. However, the landlord’s compensation policy makes no provision for this.
34. The landlord’s compensation policy says that it will pay up to £50 for a failure that causes mild inconvenience. This Service concludes that the landlord’s apology and the offer of £50 for the communication failure was in accordance with the provisions of the landlord’s policy and adequate in the circumstances of the case. We have, nonetheless, made a recommendation below for the landlord with respect to being more thorough in considering its messages to its residents when dealing with a dispute.

Determination

35. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s concerns about fly tipping and waste management on the estate where he lived.

Recommendations

36. The landlord should pay the resident the £50 previously offered if not already paid.
37. The landlord should consider advising its staff members about the importance of being thorough in considering its policies and the practicalities of actions it offers to undertake prior to communicating with residents. This is particularly important in situations of existing dispute and formal complaints.