Chelmer Housing Partnership Limited (202218904)
REPORT
COMPLAINT 202218904
Chelmer Housing Partnership Limited
25 January 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
- The complaint is about the landlord’s response to the resident’s:
- request for a fence in the communal area.
- reports of noise and anti-social behaviour (ASB) in the communal area.
- report of a leaking pipe.
Background and summary of events
Background
- The resident is a leaseholder. The property is a ground floor 1 bedroom flat with a communal green space around the block. There are no recorded vulnerabilities.
- The landlord is responsible for repairs and maintenance to the structure of the building and communal areas, as set out in its homeowner policy. As per the lease the landlord must repair the structure and exterior of the building, including drain gutters and external pipes, and make goods any defects affecting the structure. The resident must repair and maintain the inside of the property including the fixtures, and to keep water pipes and interior drains in good order and condition.
- As per the ASB policy, residents are to report issues promptly and are encouraged to engage in local resolution where appropriate. The landlord will respond within 5 working days for most ASB. Some types of allegations will be classed as minor differences in lifestyles and not ASB. Exclusions include: noise transference due to poor sound insulation, everyday behaviour, children playing, DIY between 8am and 6pm, and house appliance noises. Residents who report non-ASB are signposted to self-refer to mediation or restorative justice platforms. Noise nuisance should be reported to the local authority. Reports of crime should be reported to the police and the landlord will work with them to take action.
Scope of Investigation
- The Ombudsman has investigated the issues which were raised as part of the formal complaint made in October 2022. Whilst it is noted that historic reports of ASB have been made, these are not considered within this report, as this Service requires complaints to be made, and brought to the Ombudsman, within a reasonable timeframe.
- Equally, more recent issues such as new reports of ASB made in 2023 are not considered within this report. This is because they have not yet been raised as a formal complaint, so the landlord has not had an opportunity to resolve the issues internally. If the resident remains dissatisfied with the landlord’s handling of his more recent ASB reports, he may wish to raise a new complaint in that regard.
Summary of Events
- On 20 June 2022 the resident reported a leaking pipe to the landlord. The repair log shows that the landlord inspected the leak on 29 June 2022 and found water dripping in front of the flat. The landlord’s notes state that a repair was carried out to a soil stack pipe around 5 July 2022.
- Between 10 and 14 July 2022 the resident and landlord exchanged correspondence about his additional concerns, as follows:
- He asked for a fence to be installed to address his reports of ASB in the communal green areas outside the property, but the landlord declined. It explained that there were restrictions by the Parish Council, and it offered to meet with the Parish Council and the resident to discuss this further should he wish to do so.
- Regarding the resident’s report of children playing on the grass areas and the reasons for the fence request, the landlord said it would not take action on these activities and they were not a breach of the tenancy. If the children of a customer were identified to have caused damage then it would discuss this with their parent.
- The landlord signposted the resident to the local authority to raise any queries about other local green spaces or additional concerns about the surrounding pathways because these were not under the landlord’s management.
- The resident and landlord exchanged further correspondence between 16 and 19 July 2022. The landlord said the resident should record the dates and times of his reports of noise by a neighbour so it could properly investigate them, and it reiterated that it would not be installing fencing. It said that, during the warm weather, neighbours would take the opportunity to enjoy their outdoors space and children would tend to play outside, and it was not likely to take tenancy action on this. It also explained that it was not its responsibility to clear the local footpaths of items such as scooters and signposted the resident to the local authority. Finally, it had not received complaints from other residents about incidents which the resident was reporting, but it did act on all enquiries from police and the local authority as they came in.
- From 8 to 11 August 2022 the resident and landlord exchanged further correspondence about the issues. The resident reported drug-smoking on the landlord’s land and the landlord asked the resident to provide information such as the dates, times and locations, so that it could investigate. It explained that, without this information, it could not investigate further. The resident repeated his request for a fence and the landlord again declined this.
- The resident also reported shouting from a neighbour occurring “around the clock”, and that the neighbour’s windows were open all day and night. He said the area was dominated by screaming children and that he had been reporting such issues for several years. The landlord opened a new case but reiterated the need for the resident to provide specific times of incidents so that it could properly assess them.
- The resident and landlord exchanged more correspondence in September 2022 and the landlord assessed the best way forward to resolve the concerns, as follows:
- Regarding reports of ASB, it had directed the resident to provide details of the perpetrators and decided that, depending on the incident reported, it would investigate further and address complaints directly with the perpetrators.
- Regarding the fencing, it investigated this internally with its teams and considered its historic and current position. It looked into whether the area was on its land and the access needed to the area by its maintenance teams. It referred to historic communication with the resident, such as a letter from November 2021, where it had said that there were likely to be restrictions from the Parish Council. It also considered the costs of installing a fence.
- Regarding the leak, it asked its repair team how this was inspected and what the findings were. It referred to its repair records, although it is not clear to the Ombudsman what these showed.
- The landlord spoke to the resident on 4 October 2022 and explained that it had decided to log a formal complaint about its response to the various issues he had raised.
- On 12 October 2022 the resident emailed the landlord and reported that the children and neighbour were playing in the communal areas, and he spoke to them but they continued. He would provide more detail if the landlord needed it but he had specified the individuals he had personally witnessed. He reported a neighbour shouting for half an hour and gave the landlord the perpetrator’s address. The resident also told the landlord that an independent plumber confirmed that the problem with the leak did not come from inside his property and they would speak to the landlord if it wished. Therefore, the repair was the landlord’s responsibility.
- In the landlord’s email of 13 October 2022, it acknowledged the resident’s ASB report and advised that it would investigate the matter, contact the perpetrator and update the resident. It told the resident that it would keep his details confidential. The following day, the resident asked the landlord not to take this action as he had already spoken to the perpetrator and he considered the matter resolved.
- On 17 October 2022 the landlord issued a stage 1 response, as follows:
- It summarised the resident’s ASB reports made since July 2022 and detailed the steps it had taken to respond to his concerns, including asking for specific details of the incidents and perpetrators. It confirmed that cases had been opened to monitor the situation and inspections had been carried out but no further action had been warranted. It invited the resident to keep reporting any specific incidents of ASB so that it could investigate further, and to also make reports to the police, where appropriate.
- With regard to the resident’s request for fencing, the landlord reiterated its previous explanations and its offer to meet with the resident and the Parish Council. It concluded that erecting a fence may cause access issues for its ground maintenance team, and it did not believe that it was necessary as the green spaces were open to all.
- In relation to the resident’s reports of a leak, the landlord detailed the steps it had taken to investigate and resolve this issue between 20 June and 23 September 2022. It stated that, if he was still experiencing problems with the soil stack, it could investigate further to ascertain whether any required repairs were its or his responsibility.
- On 18 October 2022 a job was raised for the landlord to investigate the continued report about a leak from the soil stack.
- The resident escalated the complaint on 22 October 2022. When the landlord asked why he felt his complaint had not been addressed, he explained that the landlord did not want to do anything.
- A work order was raised on 24 October 2022 and completed on 28 October 2022. The landlord’s complaint notes state that it investigated if there was an issue with the mains pipe to the block or if this was a repair relating to the property, and it established that it was the latter. It therefore concluded that this issue was the resident’s responsibility to address.
- A Councillor contacted the landlord on the resident’s behalf on 22 October 2022, restating the resident’s submissions about the misuse of open space by children and his request for a fence to be installed. The landlord responded that week, explaining that: the children’s actions were not a breach of tenancy; the land the resident wanted to be fenced was owned by the council; the resident was the only person requesting a fence; and the resident had expressly asked it no to contact the parents of the children he was reporting.
- On 24 October 2022 the landlord’s plumber provided the landlord with their assessment of the leak and shared their diagnosis of the repair and overflow . They said it was a leak dripping outside of the property, not inside as reported by the resident, and they confirmed that this would be the resident’s responsibility to resolve.
- In early November 2022, the resident agreed for the complaint panel hearing to proceed in his absence, and the landlord then issued its stage 2 response on 17 November 2022:
- It upheld its decision regarding the ASB reports. It acknowledged the difficulty in identifying perpetrators and ascertaining whether they were its tenants, but explained that this was why reports should also be made to the police, who it could then work in partnership with. It reiterated its limited powers to investigate ASB reports which did not include sufficient information about the property or people involved.
- If the children playing were its tenants, it would still not deem this behaviour as anti-social requiring tenancy enforcement action. As a result, it would not be able to consider further action on this point.
- The resident had suggested that the landlord fence off the communal garden outside the property to address the impact of the reported ASB on him. The landlord had considered this request but concluded that it was not a viable or suitable proposal for all customers in the area. It confirmed that the green space was available to all customers to use, the ground maintenance team required access to all areas, and erecting a fence may cause other kinds of ASB in the area.
- It explained the steps it had taken to investigate the leak and upheld the plumber’s decision to decline the repair, in accordance with the lease, and it was now for the resident to take this matter forward himself.
- It explained the circumstances around the removal of a ‘no ball games’ sign and confirmed that it would not take enforcement action if any such games were played in the area.
- It advised the resident of his responsibility to pay service charges, as he had withheld some payments.
- It provided contact details for the resident to use if he wanted to report something to its teams, and signposted him to the Ombudsman.
Assessment and findings
Request for a fence
- The landlord has historically addressed the resident’s request for a fence and reoffered its previous explanations as part of its response to the current complaint. It also took steps to investigate the request anew but still concluded that the erection of a fence was not necessary or appropriate.
- Whilst the landlord has made reference to limitations imposed by the Parish Council, limited evidence of the Council’s involvement has been provided to the Ombudsman. However, the available evidence demonstrates that the landlord made its decision on a balanced assessment of the proportionality of the request and its own discretion. It considered whether other residents had made similar requests and how the installation of a fence would impact on them. It also considered the cost of installing a fence, as well as the difficulties it would pose in terms of access for its maintenance team. Ultimately, the landlord concluded that, even if there were no restrictions on it, it would not install a fence in the circumstances.
- There is no contractual obligation in the lease, or any obligation under the ASB policy, for the landlord to erect a fence in the communal green area. The landlord was therefore entitled to make its decision in accordance with its discretion. The evidence shows its reasoning and what it gave consideration to, as well as its repeated communication to the resident to manage his expectations on both the fence, and the behaviour he was reporting that this would address.
- Understandably, the resident was dissatisfied with this, as he felt that a fence would address the concerns he had about how the area was used. However, there was no maladministration in the landlord’s decision not to put up a fence in the shared green space outside of the resident’s property.
ASB
- There was a large amount of correspondence between the landlord and the resident, in relation to the resident’s reports of ASB and the landlord’s requests for further information. The evidence demonstrates that, throughout its contact, the landlord was resolution focused as it maintained regular communication with the resident and made use of the complaint process to address his concerns in a systematic way.
- When the resident raised reports of ASB in the form of drug misuse, activity in the communal area, and noise from the neighbours between July and November 2022 the landlord responded promptly and within the 5 day timescale prescribed by its ASB policy.
- The landlord explained the steps taken to progress and investigate the reports and offered a view on the behaviours which the resident reported in accordance with its policy. It asked for more information or explained where it did not consider the conduct to be ASB and signposted the resident to the local authority or police. This was in line with its policy.
- In response to the resident’s reports of activity in the communal area, the landlord explained that children playing was not considered to be ASB. This is in line with the policy exclusions which state that this type of behaviour is not ASB. It explained its own limitations, that it could not enforce actions to prevent children playing ball games, or take action in respect of the activities the resident reported on the surrounding pathway. However, the landlord explained that, depending on the incident reported about the communal area, it would investigate further and address complaints directly with perpetrators. The resident provided the address for the perpetrators, which the landlord then engaged with, although it did not take action per the resident’s request.
- When the resident reported drug use in the communal area, the landlord invited him to provide more information so it could investigate, and signposted him to the police so that it could establish the identities of the perpetrators. It explained that it would work with the local authority and police, which was in line with its ASB policy. It explained the limitations it was under if it did not have information to investigate.
- In respect of the shouting, the landlord asked the resident for details such as the times of the shouting. There is no evidence that the resident provided the landlord with this. It was reasonable for the landlord to ask the resident to provide details about the incidents to establish if the matter was ASB, as the policy excludes certain kinds of noise and signposts residents to report noise to the local authority.
- Given that the landlord proactively responded to the resident’s reports, investigated his concerns where possible, requested further information where necessary, and took proportionate action in accordance with its ASB policy, there is no evidence of any failure in service in that regard. As a result, a finding of no maladministration is made.
Leak repair
- The lease and the homeowner policy set out the respective obligations of the landlord and the resident. The landlord is responsible for repairs to the structure and exterior of the building, including drain gutters and external pipes. The resident is responsible for the repairs to the inside of the property including the water pipes. The Ombudsman is unable to form a view on the source of the leak, and therefore the responsibility of the leak. Instead, it has considered the landlord’s actions following the report, and whether these were fair and reasonable in the circumstances.
- In response to the resident’s report of the leak in June 2022 the landlord repaired part of the communal pipework. Following the continued reports, the landlord investigated the repair and ultimately concluded that it was not its responsibility to carry out the repair, as the problem was inside the property. The landlord communicated this to the resident. It was reasonable for the landlord to have relied on its expert’s opinion in its decision about whether or not it was responsible for the repair. Based on the information it had, the landlord’s response was reasonable as it reflected the repairing obligations under the lease.
- The resident referenced his own investigation via his independently hired contractor, although it is not clear that he provided the landlord with evidence of this, such as a copy of the report. As a result, it is not clear that the landlord has seen any evidence regarding the purported location and cause of the leak other than its own expert’s opinion. The resident had the opportunity to provide this information to the landlord as part of the complaint escalation process but did not do so. In all the circumstances of the case, the landlord took reasonable steps to determine the extent of its repairing responsibilities and then communicate this with the resident. There was no maladministration.
Determination (decision)
- In accordance with paragraph 52 of the Scheme, there was no maladministration in respect of the landlord’s response to:
- the resident’s request for a fence in the communal area.
- the resident’s reports of noise and ASB in the communal area.
- the resident’s report about a leaking pipe.
Reasons
- There was no obligation on the landlord to install a fence under the lease or ASB policy. The landlord considered the resident’s request for a fence and assessed the proportionality of this alongside the reported behaviour, cost, consideration to other residents, and the viability.
- The landlord engaged with the resident’s reports of ASB within its policy timescale and provided advice on its conclusions when it did not consider the reported conduct to be ASB. It signposted the resident in accordance with its policy. The landlord took reasonable steps to gather evidence so it could assess the reports, and explained the limitations it was under in investigating reports without specific details.
- The lease states the respective obligations of the landlord and leaseholder in respect of repairs. The landlord relied on its operative’s opinion which was reasonable to do. The resident referred to conflicting evidence but it has not been evidenced that the landlord has had sight of this during the complaint investigation, though the resident had the opportunity to provide this prior to the panel hearing.