Abri Group Limited (202216490)

REPORT

COMPLAINT 202216490

Abri Group Limited

5 April 2023

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. a proposed 5G installation on a landlord owned building near to the resident’s property, and;
2. the landlord’s response to the resident’s complaint about this.

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 paragraph 42 (p) of the Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
1. A proposed 5G installation on a landlord owned building near to the resident’s property.
Paragraph 42(p) of the Scheme says that the Ombudsman may not consider complaints which ‘concern matters where the complainant is seeking an outcome which is not within the Ombudsman’s authority to provide’.
The resident has said that as an outcome to this complaint, they want the proposed 5G installation to be stopped. This is an outcome that is not within the Ombudsman’s authority to provide, and therefore the installation itself is not considered in this investigation. Rather, the assessment will focus on how the landlord handled the resident’s concerns.

Background

The resident is a leaseholder and the landlord is the freeholder of the property.
On 13 June 2022 the resident emailed the landlord with concerns about a proposed construction of a 5G station on the roof of a neighbouring block, owned by the landlord. He said that the station was not wanted by residents and asked the landlord to meet to discuss his concerns.
On 15 June 2022 the landlord met with the resident, and the following day a formal complaint was raised. The resident expressed concerns about the cost to him and his neighbours, and about the possible installation of a 5G mast. He said that he was under the impression the landlord was arranging for someone to come and talk to all residents about their concerns.
On 20 July 2022 the landlord responded to the resident at stage one of its complaints process. In summary, its response said that it had tried to arrange for a senior member of management to visit him to discuss the matter further. The landlord said that it had rejected the initial request for the equipment to be installed on the roof, and that planning permission had not yet been granted by the local authority. It said that the telecoms provider was using the Electronic Communications Code (the Code) to enforce the installation and that the resident would need to voice their concerns with the local authority.
On 27 July 2022 the resident asked the landlord to escalate the complaint. He said that if the landlord was the freeholder of the property, the installation would need owners’ consent, and that a wayleave agreement must be reached before any permission to install was granted by the landlord. He asked how and when a survey was conducted to assess the suitability of a roof installation, and if it was a coincidence that the re-roofing of the block was carried out at the same time the installation was proposed. He wanted to know how the installation would affect the roof warranty, who would benefit from the wayleave agreement, and expressed concerns that there had been no consultation.
On 22 August 2022 the landlord acknowledged the complaint at stage two of its complaint process. The landlord issued its final response on 14 October 2022. In summary, the response said that the landlord would challenge where appropriate but ultimately the decision about where equipment could be sited was written within the electronic communications code.
On 17 November 2022, following a telephone conversation with the resident, the landlord wrote to him again about his concerns, explaining that the local authority planning team had rejected a planning application to erect an antenna on the roof of the block, however, new laws now allowed telecoms operators to install higher 5G masts under certain circumstances that did not require full planning permission from the local authority. It said that the operator did not need to keep the landlord informed of its plans, and that the landlord had limited scope to object to the proposals, as it was considered that the public benefit of the installation outweighed any prejudice to the landowner.
In the resident’s complaint to the Ombudsman he said he objected to the proposed installation of a 5G station as it would raise the height of the building, would be obtrusive, and could cause health issues. The resident said that he was only looking for one outcome to his complaint, to have the proposed 5G installation stopped.

Assessment and findings

When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution:
1. Be fair – treat people fairly and follow fair processes;
2. put things right, and;
3. learn from outcomes.
The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident.
When a resident raises a concern with a landlord, the Ombudsman expects the landlord to consider this, and provide a timely clear response, setting set out its position. In this case, the evidence available shows that the landlord took action to understand the resident’s concerns by meeting with him to discuss the matter. This was a proportionate first step, and shows that the landlord was taking the resident’s concerns seriously.
Given the ongoing concerns, a stage one complaint was raised on 16 June 2022. The landlord’s complaint policy sets out that stage one complaints would be responded to within 10 working days. However it took over a month for the stage one response to be provided. While the landlord did contact the resident on 5 July 2022 to discuss an extension, this was already outside of the ten working day time frame.
The landlord’s 20 July 2022 stage one letter provided a clear explanation of the situation and the action it had taken in relation to the mast, rejecting the initial request for this. It referred to the fact that the telecoms provider was using the electronic communications code to enforce the installation.
The electronic communications code (the Code) is set out in Schedule 3A of the Communications Act 2003. It is a set of rights designed to facilitate the installation and maintenance of electronic communications networks. The Code confers rights to install and maintain apparatus on, under and over land with simplified planning procedures. In the event that agreement cannot be reached with the owner or occupier of private land, the Code allows an operator to apply to the Court to impose an agreement which confers the Code right being sought or for the Code right to bind the landowner or occupier. The provisions of the Act, however, does state that a land owner may defend such an application. Ultimately, it would be for the court to decide if the operator will be entitled to install the communications devices on the building.
In light of this, it was reasonable and accurate for the landlord to refer to the Code in its explanations to the resident, and the restrictions on its ability to prevent the installation of the mast. However, the landlord could have been clearer to explain its right to object to the mast, during any proceedings brought to enforce an agreement.
The landlord’s complaint policy states ‘All Stage 2 complaints will be reviewed and resolved within 20 working days’. It took the landlord over a month to escalate the resident’s complaint when he requested this on 27 July 2022, and a further 39 working days to provide a final response. These delays were unreasonable, and caused frustration to the resident.
Having said this, it’s 14 October 2022 response again set out clearly the landlord’s position. The landlord:
1. apologised for the time it had taken to resolve the complaint and recognised service failure in escalating and responding
2. said wayleave had not been signed to date
3. explained that the responsibility for consultation lay with the telecommunications provider and the landlord was not qualified to answer technical questions about the equipment
4. confirmed that roof replacement plans were brought forward to ensure it could cope with the installation and that the installation would not affect the roof warranty
5. noted that there was a small compensation payment for the use of the rooftop but this was prescribed by the electronic communications code
6. said that it had not agreed to the installation and the matter was paused until the provider obtained planning permission
7. confirmed that it would object to it proceeding if possible but objections would need to focus on very localised health and safety issues, as per the Code and the Act
8. said it would challenge where appropriate but ultimately the decision about where equipment could be sited was written within the electronic communications code.
The landlord provided a full and clear response to the resident’s concerns here. It also reiterated the position on 17 November 2022.
Overall, the landlord’s responses to the complaint provided a good level of detail on the situation, detailing the landlord’s position and the relevant issues. There was no failing on the part of the landlord in its response to the resident’s concerns about the installation.
However, there was a delay responding to the stage one complaint, and then delays of over two months in escalating and responding to the resident’s stage two complaint. This was a failing in the landlord’s complaint handling, and the delays would have caused inconvenience and time and trouble to the resident. Although the landlord apologised for the delays, it provided no offer of redress and has not demonstrated any learning from the complaint handling failures, in line with the Ombudsman’s dispute resolution principles: put things right and learn from outcomes.
In light of this, orders for remedy are made below, in line with the Ombudsman’s remedies guidance which suggests compensation from £50-£100 is appropriate for instances of service failure short duration and minimal impact.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of the landlord’s response to the resident’s complaint.

Orders

The landlord must, within the next four weeks, pay the resident the sum of £75 for the inconvenience and time and trouble caused by the complaint handling failures identified in this report.

Recommendations

The landlord should consider seeking legal advice on the prospects of successfully defending any application made by the network provider should it seek an order to install the 5G installation. The landlord should consider sharing this with the residents of the block so they are able to seek their own advice should they wish.