Wandsworth Council (202003375)

REPORT

COMPLAINT 202003375

Wandsworth Council

27 January 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

This complaint is about the landlord’s handling of the leaseholder’s concerns about:
1. squirrels accessing his balcony via the internet cabling that had been laid by the landlord at the side of the building.
2. the cost of remedial actions to tackle the problem being passed on to leaseholders via an increase in the service charge.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraphs 39(g) and 39(i) of the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction:
1. The landlord’s handling of the leaseholder’s concerns about the service charge.
The leaseholder has raised the issue of how the costs of any ongoing remedial actions to minimise the squirrel activity will be passed on to leaseholders via an increase in the service charge.
Paragraph 39(g) of the Ombudsman’s Scheme states that:
1. “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion (…) concern the level of rent or service charge or the amount of the rent or service charge increase’.
In addition, paragraph 39(i) of the Ombudsman’s Scheme also states that:
1. “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion (…) concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure”.
The Ombudsman does not have the jurisdiction to investigate this issue because, firstly, it is about the level and/or potential increase of the service charge, and secondly, the appropriate body that has jurisdiction to consider such complaints is the First-tier Tribunal (Property Chamber).
The First-tier Tribunal can determine the appropriate level and amount of service charges recoverable by a landlord; decide if the charges were reasonably incurred; by whom they are payable, and when. It would therefore be more reasonable and effective for the resident to seek a determination on the reasonableness of the service charge and/or the increase from the Tribunal.
This report will therefore only address the complaint about the landlord’s handling of the leaseholder’s concerns about the squirrel activity.

Background and summary of events

The complainant in this case is a leaseholder (‘the leaseholder’) of a two-bedroom flat on the 10th floor of a 11-storey purpose-built block which is owned and managed by the landlord. The leaseholder does not reside in the flat and it is let to a tenant (‘the tenant’). It is noted that there is a contractual relationship (that dictates the rights and responsibilities for each party) between the tenant and his landlord (the leaseholder); and the leaseholder himself has a separate contractual relationship with the freeholder (the landlord). There is no direct contractual relationship between the tenant and the landlord.
The landlord’s records show that in February 2018 plans for high-speed internet cabling to be installed throughout the estate was considered. It was confirmed that the new cabling would follow the existing Integrated Reception Service (‘IRS’) cabling that had been laid previously for the digital TV service.
The Ombudsman understands that sometime in the summer of 2018 (the landlord’s records are not specific) the fibre optic internet cabling was installed which ran all along the side of the building.
The correspondence shows that on 16 May 2019, at the residents’ association meeting, the issue of squirrels accessing the balconies on the building was raised with the landlord. It was noted that the squirrels were climbing up along the cabling and chewing through the pigeon netting and getting into residents’ balconies.
This problem was raised again on 15 July 2019 and 25 July 2019 by the leaseholder on behalf of his tenant and other residents. It was suggested that a possible solution might be for the landlord to use stainless steel wire mesh instead of the existing pigeon netting. The landlord acknowledged the issue on 26 July 2019 and said that it was looking into potential proposals.
The landlord raised this internally with the internet cabling installer, who maintained that the squirrels were accessing the building via the existing IRS cabling and the new internet cabling would not have made a difference.
The landlord’s internal correspondence shows that on 8 August 2019 it agreed to install cover plates on both cables at the point they start on the building. It said that this method had been successful on other sites. The records show that this was done on 25 September 2019.
On 28 September 2019 the leaseholder enquired as to when the pigeon netting on his balcony would be renewed. The landlord acknowledged this on 1 October 2019 and said that it would be instructing its contractor shortly. The records show that the netting was repaired on 21 November 2019 after several chaser emails from the leaseholder.
On 29 November 2019 the leaseholder contacted the landlord again to report that squirrels were still chewing through the repaired netting and accessing the balcony. The landlord sought advice and guidance on 4 December 2019 from its Biodiversity Manager. It was acknowledged that it was difficult to prevent squirrels from climbing the side of the building. Measures had been taken, such as capping the cabling, but the issue persisted and there were no simple resolutions to this kind of problem. The Biodiversity Manager suggested that residents should be made aware of preventive steps they can take to minimise any nuisance. The landlord could also consider replacing the existing netting with wire mesh and the last resort would be the use of poison and baits.
The landlord considered the options and it acknowledged the leaseholder’s view that the squirrels were not a problem prior to the internet cabling having been installed. However, it stated that it could not validate the leaseholder’s view that the squirrel activity had increased significantly after the internet cabling had been installed.
The internal correspondence from the landlord shows that it sought other potential solutions but it acknowledged that squirrels, by their very nature, would find a way and it would be near impossible to fully eradicate the issue. It agreed to install spikes to the cables between the ground and the first floor to help limit the access.
The landlord provided an update on 22 January 2020 on what actions it had taken so far and it said it would continue to examine practical solutions.
The leaseholder logged a formal complaint on 15 February 2020. He said that by agreeing to the installation of the internet cabling along the side of the building, the landlord had created a problem that had not existed before. This new cabling was being used by squirrels to gain access into balconies and get into flats. The squirrels were also causing damage by chewing through the cabling. The leaseholder was concerned about the health and safety implications, as well as the ongoing financial burden on leaseholders to pay for continuous and ongoing repairs related to squirrel damage via the service charge. He requested that the landlord provide full details of all actions taken so far to deal with the problem. He also asked that the cost of dealing with this problem is not passed on through the service charge and he also asked to see whether the environmental factors (such as increased squirrel activity) were properly considered by the landlord when it agreed to install the new cabling.
The landlord acknowledged the complaint, and in its investigation it noted that it could only do so much to prevent squirrel activity and it was not possible to eradicate the problem completely. It liaised with its Electrical Installations team and its facilities contractor and agreed that the best deterrent would be to install the bird spikes. However, it was acknowledged that there was no guarantee that this would be completely successful in deterring the squirrel activity.
The landlord installed the bird spikes and the correspondence shows that the contractor was of the view that some of the residents were feeding the squirrels, and it was agreed that further advice may be needed from pest control and residents ought to be reminded not to feed the squirrels.
The landlord issued its Stage 1 complaint response on 27 February 2020:
1. It did not agree that any increase in squirrel activity was solely due to the introduction of the new cabling. It said that similar IRS cabling had already been running along the side of the building.
2. The cable looms sit about two or three metres above ground level, meaning that the squirrels must climb the building’s surface up to this point, something that would be extremely difficult to fully prevent.
3. It reiterated the measures it had taken so far, including, tree pruning, capping, and then installing spikes around the cabling designed to prevent squirrels gaining a foothold on the cabling. It had also sent out a block letter to all residents appealing to them to comply with the advice given by the senior parks and biodiversity manager to desist from feeding the animals or birds and for leaseholders to relocate any boilers from their balcony.
4. It confirmed that the cost of these works would not be passed on to leaseholders as it had failed to properly notify them of the intended cost before the works were carried out.
5. It said that it was unlikely that any further measures could be put into place.
6. It did not accept that the new cabling was the source of the problem, as similar cabling has been used on other blocks without any such issues.
The leaseholder requested that the complaint be escalated on 8 March 2020 as he was unhappy that the landlord had not addressed all his complaint points. The landlord acknowledged the escalation request on 9 March 2020 and issued its Stage 2 complaint response on 17 March 2020:
1. It reiterated what actions it had taken to try and mitigate the squirrel activity.
2. It had reminded all residents of the recommendations not to feed the squirrels and it hoped that these measures would minimise any squirrel related repair costs.
3. It maintained that any such repairs are part of the general block maintenance and would be chargeable to leaseholders accordingly.
4. It was satisfied that it had taken all viable steps to tackle the issue, but accepted that squirrels were excellent climbers, easily capable of scaling vertical surfaces irrespective of any cabling in place.
5. Given that this cabling had been installed across the landlord’s housing estates, without this issue having surfaced elsewhere, it was satisfied that any issue with increased squirrel activity could not have been reasonably foreseen.
The leaseholder remained unhappy and asked that the complaint be escalated further and he sought firm assurances from the landlord that ongoing costs incurred in tackling this problem were not passed on to leaseholders via increased service charges. He maintained that the landlord was at fault for allowing the cabling to be installed, and as such, it should bear sole responsibility for the ensuing costs.
The landlord acknowledged the escalation request and said that due to COVID 19 it could not confirm when it would be able to respond, but it hoped to do so by the end of April. The landlord issued its final complaint response on 1 May 2020:
1. It explained that it had taken steps to address the concerns e.g. capping the cabling and installing deterrent spikes at ground level to restrict access.
2. It had waived the service charge for this work.
3. It had pursued a range of further measures to minimise squirrel related activity including tree/shrub pruning and appeals to residents to desist from feeding animals or having anything on their private balconies which may form nesting.
4. It had taken into account that squirrels had excellent climbing ability and were highly capable of climbing vertical surfaces, particularly with a pebbledash exterior which characterise these blocks.
5. The cost of any works for the better management of the block or estate or routine repairs is met from the Housing Revenue Account. Reasonably incurred costs are passed on to leaseholders as part of their routine service charges in line with their leasehold covenants. Tenant rents include an element for repair.
6. It maintained that it would not have had reasonable cause to anticipate an increase in squirrel related activity resulting from the new cabling. This cabling had been installed to other high-rise housing and similar problems had not been noted anywhere else.
7. It had carried out a review and while it was not accepted that the installation of the new cabling was behind any increase in squirrel related activity, it had taken all possible measures to address the complaint. Therefore, it did not uphold the complaint.
8. This was the landlord’s final complaint response.

Assessment and findings

Policies, procedures, and agreements

Lease:

The landlord’s obligations in respect of the Block states it is required to ‘…repair, cleanse, uphold, support and maintain the exterior of the Block and the communal television aerials entry phone systems fences walls and the entrance ways paths lifts staircases main walls party walls roof foundations and all structural parts thereof…’
The landlord’s obligations in respect to the Estate states it is required to ‘To do such things as the Council may decide are necessary to ensure the efficient maintenance administration and security of the Estate…’

Landlord’s handling of the squirrel activity

The Ombudsman’s role is to consider whether the landlord responded appropriately to the leaseholder’s concerns by adhering to any applicable policies, procedures, and any agreements with the leaseholder, and behaved reasonably, taking account of what is fair in all the circumstances of the case.
It is noted that the leaseholder has said that prior to the installation of the new internet cabling there had been no issues previously with squirrels entering the balcony. He is of the view that there is a direct causal link between the installation of the new cabling and the increased squirrel activity on the building and he believes that the landlord failed to take this into account when agreeing to install the new cabling. He is also concerned that the costs of remedial action will be passed unfairly onto leaseholders via an increase in the service charge and the landlord should cover these costs as it was at fault for agreeing to the installation of the new cabling. As explained above, the service charge implications of any ongoing repairs will not be addressed in this report. What the report will focus on is how the landlord responded to the leaseholder’s requests and dealt with the leaseholder’s concerns about the squirrel activity.
Looking at the facts of the case, it is noted that the landlord has rightly acknowledged the leaseholder’s point about the possible causal link. However, it has been guided by expert advice of its contractor team and biodiversity team which have concluded that in these circumstances there is no way of substantiating whether or not the installation of the new cabling has directly led to a marked increase in squirrel activity. It has said that it cannot quantify or validate this and the correspondence on file shows that the landlord acknowledged the leaseholder’s concern and considered this appropriately. It sought further advice and guidance and concluded that it was not possible to confirm any direct correlation between the new cabling and any increased activity.
The landlord has explained that the new cabling was installed along the same run of cabling that already existed on the building and it therefore had no cause for concern in terms of the impact this may have on any squirrel activity. Furthermore, it has said that it had not faced any similar problems in any of its other managed blocks that have had the new cabling installed, and as such, the increased squirrel activity was not reasonably foreseeable. The Ombudsman is of the view that, whilst the leaseholder’s concerns are duly noted, there is no evidence at present to demonstrate a causal link between the installation of the new cabling and the increase in squirrel activity. The landlord’s rationale and explanation appear to be reasonable in the circumstances and the landlord has acted reasonably by seeking expert guidance and it is entitled to rely upon this guidance.
Looking at the facts and the available evidence, the Ombudsman is satisfied that the landlord has acted appropriately by thoroughly investigating the matter. It has demonstrated that it took on board the concerns raised and it took practical steps to address those concerns. In particular, it arranged for mitigation works such as capping the new cabling, installing deterrent spikes, and carrying out tree/shrub maintenance to minimise and deter the squirrel activity. This was appropriate and was based upon expert advice provided to the landlord about potential mitigation actions.
In addition, it also took on board the recommendations of its biodiversity team to remind all residents of how they can also help to reduce and minimise the squirrel activity, such as not feeding the squirrels and not leaving anything on their balconies that could be used for nesting. This was appropriate and demonstrates that the landlord was looking at the matter on a wider scale and taking a holistic approach to the problem.
Whilst the leaseholder may well be disappointed with the landlord’s actions, the Ombudsman considers that the landlord was not being unreasonable when it concluded that all the measures taken so far were not guaranteed to eradicate the squirrel activity. The Ombudsman is of the view that the landlord has demonstrated that it was open, honest, and realistic in managing the leaseholder’s expectations as to any permanent solution to the problem.
The Ombudsman has taken into account the landlord’s overall handling of the matter up until the final complaint response and it is satisfied that it has acted reasonably. In addition, the Ombudsman understands that in August 2020 the landlord sought further advice and guidance from pest control and it reiterated its commitment to continue to investigate the matter, liaise with any affected residents and also communicate its intentions to the residents association.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the complaint about the leaseholder’s concerns about squirrels accessing his balcony.

Reasons

The landlord is not obligated or required to completely eradicate the squirrel activity on the estate. The evidence shows that the landlord acted appropriately in its response to the leaseholder’s concerns. It carried out appropriate investigations and provided a full and detailed explanation of its position and its rationale for the actions it took, and why it felt that further measures were not appropriate. Overall, taking into account the circumstances of the case, the Ombudsman considers that the landlord’s handling of the matter was appropriate.