Barking and Dagenham Council (202002471)

REPORT

COMPLAINT 202002471

Barking and Dagenham Council

21 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

The complaint is about:
1. The landlord’s response to the resident’s reports of anti-social behaviour (ASB) and request for anti-ASB measures.
2. The landlord’s response to the resident’s reports in relation to the management of communal areas, including cleanliness, mould and the front door.
3. The amount of compensation offered to the resident in relation to a delay in installing anti-climb measures.

Background and summary of events

The resident was the leaseholder of his first floor one bedroom flat in a low-rise block. There were no vulnerabilities recorded by the landlord, but the resident stated that he had physical health issues.

Legal and policy framework

The lease provides that the resident was obliged to pay service charges. The landlord’s obligations included, subject to the payment of service charges, “to manage the estate in such reasonable manner as it thinks fit and to carry out the obligations and provide the services specified”. Which services are specified in the lease including:
1. To keep in repair the structure and exterior of the building and property and to take reasonable steps to make good any defect affecting that structure.
2. To maintain and keep clean and tidy areas the common parts.
3. To provide a suitable caretaking service for the estate.
The lessee would not have a claim against the landlord where its failure to comply with its obligations arose out of circumstances outside the landlord’s “reasonable control”.

The ASB policy

The landlord defined antisocial behaviour as: “conduct capable of causing nuisance or annoyance to any person and directly or which indirectly relates to or affects the housing management functions of the landlord”. It differentiated between deliberate acts and lack of consideration or awareness of the impact of certain acts or as a result of conflicting, but legitimate, lifestyles. It included drug use and trespass.
The ASB procedure required the landlord to complete a risk assessment form in order to assess the risk (if any) the complainant may be at, and their vulnerability. It would also be a guide as to what level of intervention and support was needed. It was also to agree an action plan with every complainant and then put this in writing. This would provide the landlord with an opportunity to explain what could and could not be done, thereby managing expectations of the complainant and also illustrating that they are being listened to and action taken. These agreed actions should then be listed along with the results in the closing letter so that all parties were aware of what has taken place.

The landlord’s service standards

The policy’s aim was to maintain and improve the look and cleanliness of shared areas in order to assist the landlord in tackling antisocial behaviour, in providing a minor repairs and maintenance service for shared areas. It set out its functions, including cleaning and reporting repairs in communal areas. The landlord did not provide a policy with timescales in which it would take action.

Chronology

Following reports of youths entering the building in which the resident’s flat was situated, the landlord wrote to all the residents on 5 June 2020 asking them not to leave communal windows open and to close and secure the communal door. It explained this was for the residents’ protection and security, including against ASB, and asked the residents to be vigilant.
Following this, the resident made several reports throughout June in relation to youths entering through open windows. He also made similar reports to the police. While he did not make a formal complaint, he contacted this service and as a result the landlord wrote to him on 30 July 2020 framed as a response to his complaint. It stated that the complaint concerned incidents of youths entering the block, cannabis being smoked below the resident’s property and the standard of cleaning. It said that:
1. It had met with the resident in the past and had taken the following steps:
  1. It had written to all the tenants/residents on 5 June 2020, but it was unable to arrange for the windows to be secured permanently.
  2. It had put anti-climb measures in place but on only one side and would investigate further steps.
  3. It had collected the resident’s diary sheets.
  4. It was carrying out an investigation and interviewed the resident’s neighbours. No one had reported a significant problem with youths in the block to date. A meeting had been arranged with the police to discuss this and the resident would be updated.
  5. The cleaning service manager had attended and discussed the cleaning with the resident.
2. The resident had reported the smoking of cannabis to the police several times. The landlord was unable to take action against any individuals without evidence.
3. Work had been delayed due to lockdown.
4. It would continue to investigate the issues and liaise with the police.
Unfortunately, while the landlord had installed anti-climb measures (plastic spikes), it had only ordered sufficient for one part of the building. However, on being contacted by the resident, the landlord rectified this and on 18 August 2020, the landlord placed an order for anti-climb measures (plastic spikes) which it installed on 17 September 2020.
On 11 September 2020, this service forwarded the resident’s complaints to the landlord as follows:
1. There was anti-social behaviour and noise nuisance in his building.
2. In the resident’s view, the anti-climb spikes were not strong enough.
3. There was water damage to the balcony, including damp and mould.
4. Repairs were required to the communal security door handle.
5. Cleaning of the communal areas inside and outside the building was inadequate.
6. Cigarette butts were being discarded.
On 17 September 2020, the landlord wrote to the resident a stage one response as follows:
1. It acknowledged that the installation of the spikes had been delayed due to internal miscommunication and offered the resident £50 compensation.
2. Weekly cleaning had been taking place. It highlighted the areas that the caretaking team needed to improve on. The supervisor would monitor the work in the coming weeks.
It further wrote to the resident on 21 September 2020 with a detailed list of items its caretaking service was dealing with and said that it would monitor the cleaning every four weeks.
The cleaning measures were reflected by a sample of the landlord’s records from August 2020 to October 2020 provided to this service, which showed weekly cleaning schedules and caretaking notes which were graded and monitored.
On 23 September 2020 the landlord wrote to the resident stating that it would install more robust anti-climb measures.
On 28 September 2020 the landlord wrote to all the residents of the block asking them not to leave cigarette butts in the communal areas.
On 28 October 2020, having investigated and tested the matter, which investigation was evidenced in the landlord’s records, the landlord concluded that the plastic anti–climb measures installed were the only option in order to allow access to the fire brigade.
According to the landlord’s internal email of 28 October 2020, it inspected the door handle to the block and did not identify any disrepair.
According to the landlord’s internal email of 3 November 2020, the police had investigated the reports of youths congregating and making noise by patrolling the area but found no evidence to substantiate this report.
According to internal emails of 9 November 2020, the landlord considered that the resident’s reports of ASB lacked detail. It had installed a CCTV camera in the front of the building. Two residents confirmed that youths from other blocks congregated under the block to chat and socialise but did not cause any ASB.
On 9 November 2021, of which this service only has a draft of the letter, it appears that the landlord wrote to the resident as follows:
1. It had provided diary sheets to residents to monitor any ASB and it had liaised with the police but there was no significant evidence that there was an issue with ASB.
2. A temporary CCTV camera had been installed to try and identify the levels of ASB. The footage would be examined as part of a further review of the case. It asked the resident to record any anti-social behaviour on the forms provided, and then return these to the landlord.
3. It advised the resident to report any behaviour to the police that was criminal in nature.
According to internal emails of the landlord of 19 November 2020, no job had been raised to date to inspect the balcony for damp and mould. This was put in hand.
This service wrote to the landlord on 23 November 2020 setting out what the resident was requesting as follows:
1. A review of the Council’s complaint response dated 17 September 2020.
2. The £50 redress offered by the Council to be increased to £75.
3. The installation of the anti-climbing spikes at the back and front of the building and other security measures to be improved as they were not strong enough.
4. The camera was looking into his property and caused him distress.
5. Another camera to be installed overlooking the back of the property.
According to an internal email 24 November 2020, the resident had been previously informed that the spikes could not be replaced and that the camera did not point into his flat. The landlord wrote to the resident on 26 November 2020 that it had clarified that the report regarding the balcony was in fact a report of damp and mould to the canopy. It had arranged an appointment to inspect the canopy on 2 December 2020.
On 2 December 2020 the landlord had received a request from the resident for an additional camera to be installed at the back of the block. It investigated whether this was possible and whether the current camera had picked up anything significant.
The landlord wrote to the resident with its second stage response on 14 December 2020 inviting a discussion with the resident. It understood the reference to the balcony meant the canopy. It stated as follows:
1. Multiple visits and various jobs had been completed in relation to the front door since 2018. The landlord had returned to inspect the door on 2 September 2020. The handle was tightened and left in working order. It carried out a further check in early October 2020. The door was secure and no defects were found. A surveyor attended on 2 December 2020. He confirmed the handle was working correctly but he would renew a washer to prevent this becoming loose. This work would be completed within the next 20 working days. The request to replace the handle was declined as the present one was working.
2. It had checked whether any common parts to the block had been affected by damp and mould. The results of the inspection confirmed there was a slight leak on the section of the gutter over the canopy. Scaffolding would be required to gain access to repair the gutter so the deadline would be subject to change if weather conditions were poor.
3. Some minor works were needed on two of the windows on the landing. These jobs would be raised against the block within 20 working days.
4. In relation to the cleaning, in addition to its previous actions, set out in its letter of 17 September, the landlord had carried out further inspections on 22 October 2020 and 22 November 2020 and was satisfied with the standard of work. It enquired whether the resident was provided with any feedback at the time.
5. It had addressed the report that youths climbed through an open window at the entrance and loitered inside, by writing to the residents on 5 June 2020 and a follow up visit was made on 28 July 2020.
6. A camera was installed at the entrance to the block in October 2020. In response to the resident’s concerns about his privacy, the landlord had sent the resident an image to allay his concerns about privacy.
7. Diary sheets were sent to all the residents on 10 November 2020 so they could record any further incidents of ASB. Footage from the camera and any information the residents supplied would be examined. It had not received any feedback from anyone else in the block, however, officers were in the process of reviewing CCTV footage captured on the camera and liaising with the police.
8. It apologised if the resident was not told when the results would be shared but the landlord took sufficient steps to properly assess the risk and gather evidence to determine if additional measures were required to strengthen security to the block. It would consider a second camera in about 2-4 weeks.
9. The landlord liaised with the police team after the residents’ reports of people smoking cannabis in the lobby to the police. It asked residents to keep a record of any further activity. Anything criminal in nature would be a matter for the police to manage. There was not sufficient evidence of ASB available to justify further action, such as increasing patrols.
10. It confirmed that it was prohibited from installing metal spikes because of the risk of injury. In addition, they would prevent emergency services personnel gaining access in the event this was their only means of entry in case of fire. It noted that the spikes were designed to swivel, so any movement was by design and was not a defect with the installation.
11. While part of the work to install anti-climb measures were installed in February 2020, a job was raised in August 2020 to instal the remaining spikes, which were installed on 17 September 2020. The additional work was completed within the 20 working days of the follow up visit therefore it considered that the sum of £50 in compensation was sufficient.
The above steps were evidenced in the landlord’s internal emails provided to the service.
On 14 December 2020, the parties discussed the case on telephone. The resident reported that the other tenants had ignored the landlord’s letter asking them to ensure the windows on the landing were closed at the end of each day. Youths were still using this route to enter and loiter. The door itself did not close automatically, therefore jeopardising the building’s security. The landlord would check this. On 17 December 2020, having inspected the door, it stated that it was functioning normally.
The Ombudsman has noted that while there were delays due to lockdown restrictions, the landlord continued to address the condition of the windows, and to consider the CCTV footage, including of the communal door being left open. By 9 February 2021, the landlord had concluded from the CCTV that there were no obvious signs of ASB activity and none that warranted another camera. It considered removing the current camera as there have been no evidence of ASB or crime and disorder, such as drug dealing, however the landlord has confirmed that at the date of this report, the camera is still in place.

Assessment and findings

It is reasonable to conclude from the context that the resident’s reports began sometime before the 5 June 2020. However, the Ombudsman investigated the period starting 5 June 2020, a period of over six months prior to the conclusion of the landlord’s internal complaint procedure.
The Ombudsman understands that the resident is concerned about the ASB issues he has reported and the overall management and cleanliness of the communal area. It is clear that he has spent time raising and pursuing these matters. The Ombudsman’s role in such cases is to consider whether a landlord’s response to its resident’s reports was in line with the landlord’s legal obligations, policies and good practice. This includes considering whether a landlord’s actions were appropriate and proportionate to the issues being reported.

The landlord’s response to the resident’s reports of anti-social behaviour (ASB) and request for anti-ASB measures.

The landlord’s response to the reports of youths climbing through the building windows was reasonable in that it took a number of measures and gathered evidence. Those measures were reasonable in scope. It was also appropriate that it wrote to the other tenants of the block requesting them to take responsibility for their own security and not to act themselves in an anti-social manner. It was appropriate that, despite the lack of evidence from other residents, the landlord continued to liaise with the police, who investigated and patrolled the area, however the police had not identified any evidence of ASB. The landlord acted reasonably in taking a number of appropriate steps: it installed a CCTV camera which it monitored, it installed anti-climb measures (the spikes) and it explained its approach of not taking action against individuals without sufficient evidence, which stance was reasonable.
While the landlord had not received any precise reports from the resident (with time and dates), it sought the evidence of other residents and provided the residents with diary sheets. Given that the other residents, although they saw youths on occasion, stated positively that they did not witness ASB, and no ASB was identified by the police, there was little action the landlord could take.
In relation to the resident’s concern about the CCTV camera, the landlord responded promptly to reassure the resident that the camera was not looking into his property. The landlord considered the resident’s request for a second camera, however, given the lack of evidence of ASB, and the lack of evidence the first camera had picked up, it was reasonable of the landlord to have declined to fit a second camera. It would have to have regard to incurring unnecessary expense which it would have to justify to the leaseholders who would jointly be funding the costs, and have regard for its own limited funds as a social landlord.
It was reasonable that the landlord investigated the resident’s report that the spikes were not strong enough. Unfortunately, prior to investigating the matter, it initially stated that it would install “more robust” measures, which had raised the resident’s expectations. However, once it had investigated the matter, the landlord was entitled to make its own judgement in relation to the type of spikes it installed. Its explanations for not installing ‘more robust’ spikes were reasonable. Moreover, the lease specifically entitled the landlord to manage the block as it saw fit. It was also reasonable that the landlord explained its reasoning in order to be transparent and to better manage the landlord and resident relationship and the resident’s expectations.
There was no evidence of the landlord having complied with its own ASB policy and completed a risk assessment and action plan. Even if there had been a risk assessment in the past, the Ombudsman would have expected any action plan to be updated. The very rationale for a risk assessment and action plan was set out in the landlord’s own policy namely “to the landlord with an opportunity to explain what could and could not be done, thereby managing expectations of the complainant and also illustrating to the complainant that they are being listened to and action taken”.
Communication could also have been improved: the evidence showed there were updates on the telephone but it was not always clear the landlord had updated the resident as often as it should have done. The landlord has informed this service it does not, as a matter of practice, make a written record of telephone conversations. The importance of making a written note of calls is so that communication is transparent, it avoids misunderstandings, and creates an audit trail of the landlord’s actions. The lack of an action plan, the failures of communications and the lack of records were not appropriate and did not reflect good management. However, given the landlord set out much of its actions and explained its reasoning, albeit as part of the complaints process, and given that it identified no evidence of ASB, the impact of this omission was not significant.

The landlord’s response to the resident’s reports in relation to the management of communal areas including cleanliness, mould and the front door.

Given that the landlord had an obligation to provide a caretaking service, and according to its policy set high importance to the condition of the block, the landlord’s response to the resident’s initial reports in relation to the cleaning of the building was appropriate. Not only did it meet with the resident, but the evidence showed that it monitored the condition of the building, by inspecting it weekly, liaising with the cleaners and caretaker and giving marks to its own performance. It went into the matter in detail. It also followed this up by monthly inspections. Given nearly a year has passed since the initial meeting, and if the resident were still raising concerns with the landlord about the cleanliness of the building, it may be timely to consider inviting specific feedback from the resident, and if the landlord considered it helpful, for the resident to meet with the landlord’s caretaking services.
There was a delay of nearly three weeks in responding to reports of a faulty security door handle on 11 September 2020. However, when the landlord did attend, it did not find disrepair. It was reasonable of the landlord to inspect again on receipt of a further report. The initial delay did not have a significant impact given that the landlord identified that, while the handle could do with tightening, it was not a major issue. The landlord acted reasonably in giving a timescale of 20 working days for the repair in order to manage the resident’s expectations. While there is no repair policy in relation to timescales for its responses, 20 working days was reasonable, given the lockdown restrictions prevailing at the time and the relatively minor nature of the repair.
The resident has informed this service that that the door handle still does not function. The Ombudsman does not investigate events post the conclusion of the landlord’s internal complaints procedure unless it is fair to both parties. In this case, the Ombudsman has not seen any response in relation to any current reports from the resident from the landlord in relation to this issue. However, it may be sensible to arrange that the landlord’s surveyor meet with the resident when it next attends to check the functioning of the front door. The resident has also informed this service that he had contacted the landlord about various issues but had not received a response. This service has noted that the landlord has provided the resident with contact points, but it may benefit the resident if the landlord would provide a list of contact points at periodic intervals, as and when the landlord considers it appropriate.
The response of 19 November 2020 to the reports of mould made on 11 September 2020 was an unreasonable delay. However, some confusion was caused by a reference to mould on a balcony rather than the canopy. Once set in motion, the landlord took reasonable steps to address the mould. The landlord was proactive in arranging to overhaul the communal windows.
The landlord responded to the resident’s reports in relation to the cleanliness of the building, the mould and front door by carrying out an investigation and taking action where action was required. While according to the lease, the landlord would not be liable for circumstances beyond its control, it was not clear whether the pandemic delayed any action by the landlord.

The amount of compensation offered to the resident in relation to a delay in carrying out works.

The landlord’s explanation for declining the resident’s request to increase compensation to £75 in its second complaint response was that the delay was from August 2020 to 17 September 2020. However, the anti-climb spikes were in fact due to have been installed in February 2020, which represented a delay of seven months. That is a significant delay, however the amount of compensation was reasonable given there was no evidence of any significant impact on the resident caused by the delay. It is also noted that the resident had accepted the offer of compensation and the landlord was entitled to consider that it had resolved the issue.

Determination (decision)

In accordance with paragraph 54 of the Ombudsman’s scheme, there was no maladministration in relation to the landlord’s response to the resident’s reports of anti-social behaviour (ASB) and request for anti-ASB measures.
In accordance with paragraph 54 of the Ombudsman’s scheme, there was no maladministration in relation to the landlord’s response to the resident’s reports in relation to the management of communal areas, including cleanliness, mould and the front door.
In accordance with paragraph 55 of the Ombudsman’s scheme, there was reasonable redress in relation to the amount of compensation offered to the resident in relation to a delay in carrying out works to install anti-climb measures.

Reasons

It was not clear the landlord put all aspects of its ASB policy into practice as far as managing the resident’s expectations was concerned, and there was not always evidence the landlord kept the resident updated. However, the landlord responded in a timely manner to the resident’s reports by writing to the other residents, installing anti-climb features, fitting a CCTV camera, investigated the camera’s findings and liaising with the police. It investigated the resident’s reports with his neighbours and the police, but identified no evidence of ASB. The Ombudsman is satisfied that all reasonable investigations were made but with both the police and other neighbours reporting no ASB and the camera not recording any ASB, there were no further steps the landlord could have reasonably taken.
While there were some initial delays in its responses, the landlord addressed all the repair issues raised by the resident including the front door handle and security, and the mould on the canopy. It also responded to the resident’s reports in relation to its caretaking services by inspecting the relevant areas, reporting back to the resident in some detail, and arranging to address any issues it identified.
The offer of £50 for the delay in fitting anti-climb measures was reasonable as there was no significant impact caused by that delay.

Recommendations

The Ombudsman makes the following recommendations that the landlord:
1. Arranges to meet with the resident to discuss the condition and security of the front door in situ.
2. If the resident were still raising concerns with the landlord about the cleanliness of the building, it may be timely to consider inviting specific feedback from the resident, and if the landlord considered it helpful, for the resident to meet with the landlord’s caretaking services.
3. Ensures that it updates the resident of its actions taken in response to the resident’s reports of ASB and the condition of the building at pre-agreed intervals and makes and retains written records of all of its conversations with the resident.
4. Ensures it carries out a risk assessment (or reviews any current risk assessment) and provides the resident with a clear action-plan which is reviewed at pre-agreed intervals and, where appropriate, closing letters, in accordance with its policies.
5. Ensures that it provide refresher training in relation to compliance with its own ASB procedures.
6. Ensures it provides the resident, from time to time as it sees fit, with a list of contact points including telephone numbers and/or email addresses for each of its services in order to avoid the resident contacting the incorrect team and not receiving a response.
7. Has a clear policy setting out timescales in relation to communal repairs.
8. Has a requirement that all telephone calls are recorded in writing in order to provide a clear audit trail of its actions, communications made and received.