Whitefriars Housing Group Limited (201910096)

REPORT

COMPLAINT 201910096

Whitefriars Housing Group Limited

30 September 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 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 response to the resident’s concerns about the pigeon mess on her balcony and her requests for pigeon-proofing works to be carried out on her balcony.
The report will also address the landlord’s handling of the associated complaint.

Background and summary of events

The resident has an Assured Tenancy with the landlord for a flat within a block.

Policies, procedures, and agreements

Tenancy agreement:

This sets out the landlord’s responsibilities. Generally speaking, the landlord is responsible for the upkeep and maintenance of the structure and outside of the property.
The tenancy states that the landlord will maintain and decorate the outside of the block and the sharded areas ‘when we think it is necessary’.
With regards to improvement works, the tenancy states that, apart from small improvements (e.g. putting up a shelf) the tenant is not allowed to change or add anything to the flat without getting the landlord’s prior permission in writing first.

Complaints policy

The policy defines a complaint as ‘an expression of dissatisfaction, however made, about the standard of service, actions, or lack of action by the organisation, its own staff, or those acting on its behalf, affecting an individual resident or group of residents’.
It also stated that ‘if the contact is a request for a service, a comment, suggestion, compliment or any other enquiry, the details will be logged…as appropriate, but the issue will not progress through the complaints procedure.

Summary of events

The records are not clear but the available correspondence refers to the resident contacting the landlord in February 2020 about various issues including general ASB/security issues on the block and also asking the landlord to carry out pigeon-proofing works to her balcony, which she said was currently unusable due to constant pigeon mess.
The landlord responded to the request on 13 February 2020 and said:
1. The balcony is the responsibility of the customer to keep clean, unfortunately there is no sort of pigeon proofing [it] can fit to the balcony.
2. If you would like your balcony to be cleaned, [the landlord] can provide you with a quote for this type of work, as it is a chargeable service, please let me know if you would like a quote.
The records show no further contact from the resident until 1 June 2020, when she emailed the landlord about several issues (e.g. graffiti) and she again mentioned the problems with the pigeon mess. She asked that the landlord, amongst other things, install professionally fitted nets to stop the pigeons accessing her balcony and install signs telling residents not to feed the pigeons. She said that not being able to use her balcony had impacted on her mental health and her wellbeing.
The landlord responded on 5 June 2020 and said that her request for improvement works (e.g. painting the block) would be sent to the appropriate team to consider. As for the netting, this had been considered previously and it had concluded that it would not be able to install netting on all the balconies. It said it would not be putting up ‘no feeding’ signs as these were difficult to enforce. It reiterated that the upkeep of the balconies was the tenants responsibility to ensure it was clean. It suggested ways other tenants had deterred the pigeons e.g. wind-chimes, old CD’S or balloons, decoy owls or rubber snakes.
The landlord also said that as part of its tenancy management inspections of every flat in the block, which was completed in 2019, it had inspected every balcony and gave advice to all residents regarding keeping their balcony clean and pigeon free. It said that the majority of residents were keeping their balconies clear, and as a result, pigeons were not causing them as many problems.
The resident contacted the landlord on 11 June 2020 and reiterated the impact of not being able to use the balcony, especially during the pandemic lockdown, was having on her and her pet dogs. The resident also contacted this Service on the same day to say that she was pursuing a complaint against the landlord about pigeon-proofing her balcony. The resident was advised by this Service to complete the landlord’s internal complaints process.
The resident wrote to the landlord on 23 June 2020 and asked that it install professionally fitted pigeon netting on her balcony, and also bio-clean the external wall of the block.
The landlord’s internal correspondence on 23 June 2020 showed that it had not recorded a complaint about the pigeon-proofing request as it said it did not meet its criteria in that it was not a service it provides and hence there was no service failure to investigate. It said it had provided advice to the resident about the pigeon mess and there was nothing more it could do about this issue. Its investigation showed that out of 133 properties that had been checked as part of its Tenancy Management Checks only five had issues with pigeons and these were as a direct result of rubbish being kept on the balconies. It said that the levels are similar in other high-rise blocks, and hence the decision by its Property Services team at the time not to install pigeon netting which would have been expensive in terms of both installation and maintenance.
On 24 June 2020 the landlord reiterated its position to the resident:
1. The balcony is the responsibility of the customer to keep clean.
2. There is no sort of pigeon proofing it can fit to the balcony, and it is not obliged to fit it.
3. There are steps the resident can take to deter the pigeons.
4. It can provide a quote for the balcony to be cleaned.
5. It confirmed that the complaint about the lack of pigeon netting has not been registered as a complaint. It said it had no obligation to provide pigeon deterrents of any kind and so this did not meet its complaints criteria.
On 8 July 2020 the resident advised this Service that she was liaising with the landlord about several issues/complaints and she wanted to deal with them separately. At this time she was focusing on the pigeon-proofing complaint and she wants this addressed and resolved first before her other issues. This Service informed both the resident and the landlord to complete the complaints process for the pigeon-proofing complaint.
The landlord informed this Service on 9 July 2020 why it had not registered a formal complaint about the pigeon-proofing request as this did not meet its complaints criteria. It also confirmed that this matter had not been escalated.
This Service wrote to the resident on 29 July 2020 confirming that, as the landlord had confirmed it would not review the pigeon-proofing complaint and had provided its reasons as to why, we would consider its response dated 24 June 2020 as its final response to this complaint. This Service told the resident to refer the complaint back to the Ombudsman after eight weeks (or via a Designated Person) if she still wished to pursue the complaint, and that it would take no further action until then. The landlord was also notified that its response of 24 June 2020 would be deemed to be its final response on the complaint.
On 27 August 2020, the resident contacted this Service to pursue her complaint.
On 2 December 2020 the resident asked this Service for an update.
There followed further protracted correspondence between this Service, the landlord and the resident about the ASB/security complaint as well as the pigeon-proofing complaint to ascertain which one was to be investigated by this Service.
On 15 February 2021 the landlord issued, what it said at the time, was its final response on the pigeon-proofing complaint (it also reiterated its position with regards to the general ASB/security complaint):
1. It maintained its position that cleaning of the balcony was the resident’s responsibility.
2. It had previously offered to buy deterrents that could be used on the balcony (such as wind chimes) and it said it could look at this again.
3. It maintained that the pigeon nuisance was not caused by a structural or disrepair issue but was a natural occurring event.
4. It explained why it had decided not to install pigeon netting and that this was due to the high cost of installation and maintenance. It said such works were categorised as improvements, and not essential works and essential works would be prioritised. Furthermore, its view was that, after the Grenfell fire, it would be inappropriate to cover a whole high-rise building with nylon netting.
5. It said that pigeon nuisance was not something it alone could resolve as it had not power to take enforcement action against residents or the public who continue to put food out for the pigeons. However, it said it would liaise with the local council to see if there was anything collectively, it could do to minimise the problem. It said the council was considering putting up signs in the worst affected areas around the block about not feeding the pigeons and I it would work with the Street Enforcement Team to oversee this.
6. It acknowledged that the resident had obtained a quote from the council for installing netting and it said it would look at what the council quote was for to see if it was appropriate. As for the cost of the works, it said it could not fund this, but advised the resident to speak to the council if this was as issue.
7. In line with its improvements policy it explained that the resident would need to submit a request in writing with a specification of the works to be undertaken and it will consider this.
8. The landlord confirmed that with this response its complaints process had now been completed.
As part of this Service’s process, we discussed potential mediation with the landlord and the resident. The resident asked that the landlord pay her compensation to allow her to install pigeon-proofing or alternatively pay for this work itself. The resident confirmed at this stage that the pigeon-proofing issue was her main complaint at this time, and the other matters (ASB/security) ‘will remain, however, to be discussed over a long period of time due to their complexity and historical nature and may require legal action’.
This Service proceeded on the basis that the only complaint to be investigated at this time was regards the pigeon-proofing. The resident was advised that her other complaint about the general ASB/security issues would need to exhaust the landlord’s complaints process and be brought to the attention of the Ombudsman within 12 months of the completion of the landlord’s complaints process.
As part of the mediation process, the landlord provided this Service with a detailed assessment of its position:
1. It concluded that it did not have any responsibility to install anti-pigeon devices. This was not a repair service, but an improvement. The building was designed with open balconies and vermin/pests infestations which occur in individual homes remain the responsibility of the tenant. Guidance and advice is given to all tenants about such issues.
2. Its records showed that it did not have any similar complaints from other residents in this block other than from [the resident].
3. It provided a breakdown of its research showing the various methods of reducing the pigeon nuisance (e.g. culling, acoustic deterrents, egg stealing) and why these were not feasible and/or appropriate.
4. It explained that nylon or steel netting was too prohibitive in cost and it also required costly maintenance.
5. Its research suggested that a cost-effective option would be for the resident to install pigeon spikes (which it said were readily available for around £5.00).
6. It confirmed that it is due to replace the windows on the block in the next five years and as part of this exercise it would consider whether the balconies should be enclosed.
7. Similarly, it said it would be communicating with the residents on the block about some remedial fire safety works shortly, and as part of this process it will inspect the building again.
8. It explained that independent experts believe that pigeon spikes are the only anti-roosting product (or exclusion device) that can be considered to be 100% effective, providing they are installed as per the manufacturer’s recommendations. It was of the view that this was the best option because of the fact that it can be easily installed by anyone and they are non-invasive.
On 26 May 2021 the landlord confirmed that, in the long term it would, over the next few months, conduct a further assessment on the design of the building to see if any improvements can be made to minimise the pigeon nuisance – but it could not guarantee what improvement works, if any, would be done. In the short term, it said it was willing, as a gesture of goodwill, to reimburse the resident up to £20 (upon proof of purchase) if she were to purchase pigeon spikes. These would need to be fitted by the resident and the landlord could not take responsibility for any ongoing repair or maintenance for these in the long term.
The resident declined the landlord’s gesture of goodwill and said that she wanted the landlord to pay for full pigeon-proofing (netting).

Assessment and findings

The landlord’s handling of the pigeon-proofing request

The Ombudsman’s role is to consider whether the landlord responded appropriately to the resident’s concerns by adhering to any applicable policies, procedures, and any agreements with the resident, and behaved reasonably, taking account of what is fair in all the circumstances of the case.
The Ombudsman has not been provided with a copy of the landlord’s pest control policy and/or infestation policy. In the absence of this, the Ombudsman has considered the matter in light of the tenancy agreement, the landlord’s repair obligations and what the Ombudsman considers to be reasonable in the circumstances.
There is no evidence to show that the current state of the resident’s balcony (i.e. the pigeon mess) is due to any disrepair issue or caused by a structural problem with the exterior of the building, for which the landlord has any repair obligations.
Looking at the facts and the available evidence, the Ombudsman is satisfied that the landlord has acted appropriately by acknowledging the resident’s concerns and investigating the available options. It has demonstrated that it considered the resident’s requests and it provided clear and consistent explanations for what it could do in this situation. Its responses showed that it has tried to manage the resident’s expectations. The fact remains that as the balconies are open, the pigeon resting (and subsequent mess created by this) is a natural, and unavoidable consequence. The only way to tackle this problem is to consider how best to mitigate this occurrence and deter the pigeons.
It should be borne in mind that the landlord is not obliged or otherwise required to eradicate the pigeon nuisance. Although it had no responsibility to clear the pigeon mess from the resident’s balcony it did offer to provide her a quote for this work. It also confirmed to the resident that the balcony did not require any specialist treatment or cleaning process and the pigeon mess could be removed as part of the regular maintenance tenants are required to do. It also gave her advice and guidance on measures other tenants had taken to try and deter pigeons from resting on the balconies, which was appropriate.
The landlord also enquired with the local council about what the council could potentially do to mitigate the problem, and how the landlord could help with this. One option was to install signs within the area reminding people not to feed the pigeons. This shows that it was considering how best it could tackle this issue and was looking at practical actions that may help.
Whilst the resident may well be disappointed with the landlord’s actions (or lack thereof) the Ombudsman considers that the landlord was not being unreasonable when it concluded that it was not possible to simply eradicate the pigeon activity. The Ombudsman is of the view that the landlord has demonstrated that it was open, honest, and realistic in managing the resident’s expectations as to any permanent solution to the problem.
The resident is adamant that the best way to tackle this problem is to install netting on all the balconies. This has been acknowledged by the landlord, and it has demonstrated that it has carefully considered this option. It has provided the Ombudsman with a detailed assessment of why it considers this option to be unsuitable.
It has said that it has researched the various deterrent options and the netting option is one of the most expensive. This is partly due to the costs involved in specialist installation that is required, as well as the ongoing maintenance costs, which on a high-rise block is considerable. The installation of netting on buildings is invasive and not easily reversible. It has also noted that there were other issues with using netting which would include hidden costs e.g. birds being trapped within the netting.
As an alternative to the netting option, the landlord has said that pigeon spikes would be a more cost-effective option. The Ombudsman acknowledges that the landlord needs to carefully consider how it spends its budget for improvements. Whilst it is not disputed that the netting may well provide a stronger deterrent, and it would satisfy the resident’s request, the landlord is not being unreasonable in assessing the cost implications of such work and looking at other viable solutions.
With regards to the landlord’s handling of the request for pigeon-proofing works, the Ombudsman is satisfied that it acted appropriately. The Ombudsman notes that the landlord has also offered to reimburse the resident the purchase cost of the pigeon spikes, which is reasonable. As is its commitment that it would consider the matter further when it undertakes major works and it would look at what other actions can be taken (e.g. enclosing the balconies) and it will continue to engage with the residents on the block.

The landlord’s handling of the complaint

The Ombudsman’s ‘Complaint Handling Code’ (‘the Code’) sets out the expectations on landlords in terms of complaint handling. The purpose of the Code is to enable landlords to resolve complaints quickly and to use the learning from complaints to drive service improvements.
The landlord’s complaints policy sets out how it handles complaints and the timeframes for its responses. Its policy defines a complaint as:
1. ‘an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the organisation, its own staff, or those acting on its behalf, affecting an individual resident or group of residents’.
The policy also limits the above definition by adding that a request for a service would be logged as a service request and dealt with accordingly, and it would not be logged as a complaint.
The definition of a complaint, as stated in the landlord’s complaints policy is in line with the Ombudsman’s Code and allows for a broad definition of what constitutes a complaint. The landlord’s distinction between a service request and a complaint is also valid.
However, it is noted that the landlord has relied on its policy to say that the issue raised by the resident about the pigeon-proofing works did not meet its criteria for a complaint, and it was therefore not logged as a complaint. Looking at the facts of this case and the available correspondence, the Ombudsman considers that the contact from the resident should have been dealt with as a complaint as it was clearly an expression of dissatisfaction about a lack of action taken by the landlord. The landlord’s reasons for not logging it as a complaint are noted, but the Code states that landlords should accept a complaint unless there is a valid reason not to do so (and the Code gives practical examples of where it might not be appropriate to log a complaint). Furthermore, the Code also states that if a landlord decides not to accept a complaint, it should provide the resident with a detailed explanation for this setting out the reasons why the matter is not suitable for the complaints process.
Whilst the landlord has informed the resident that a complaint had not been logged it has not provided a clear explanation for why it did not log the matter as a complaint. It has said that pigeon-proofing is not a service it provides and therefore, as the request is for a service it does not provide, there is no service failure to investigate via the complaints process. However, the landlord has failed to explain why it could not have dealt with the resident’s concerns under its complaints process.
It is also noted that following the intervention of this Service, the landlord did indeed investigate the concerns raised by the resident and its responses were framed as complaint responses. As such, the landlord could have investigated the concerns at a much earlier stage if it had logged the matter correctly as a complaint at the outset. By failing to log the matter as a complaint, the landlord missed the opportunity to try and resolve the issues at an early stage and caused unnecessary and avoidable delays. It also resulted in the resident having to contact this Service on several occasions to try and progress matters.
Having reviewed the landlord’s handling of the complaint, the Ombudsman considers that it has not handled it appropriately or in accordance with its complaints policy, and this is a service failure on its part.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s concerns about the pigeon mess on her balcony and her requests for pigeon-proofing works to be carried out on her balcony.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its complaint handling.

Reasons

The landlord is not obligated or required to completely eradicate the pigeon nuisance on the block. The available evidence shows that the landlord acted appropriately in its response to the resident’s concerns. It carried out appropriate investigations and provided a full and detailed explanation of its position and its rationale for its decision 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.
Having reviewed the landlord’s handling of the complaint, the Ombudsman considers that its decision not to log the resident’s concerns as a complaint was not appropriate. By failing to log the complaint the landlord missed the opportunity to review the concerns and potentially resolve the matter earlier.

Orders and recommendations

Orders

The landlord should, within four weeks of the date of this report:
1. Pay the resident £100 compensation for any distress and inconvenience caused by the service failure identified in its complaint handling.
Evidence of the payment of compensation to be provided to this Service within four weeks.