Islington Council (202121765)

REPORT

COMPLAINT 202121765

Islington Council

29 August 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:
1. Decision to grant permission for the installation of storage cabinets in the communal area.
2. Response to the resident’s concerns about items being removed from the communal area and disposed of.
3. Complaint handling.

Background and summary of events

The resident is a secure tenant of the landlord. She lives in a two-bedroom, second floor flat, in a converted house. The complaint relates to the actions of the landlord and its managing agent. They are referred to in this report both collectively as ‘the landlord’, and separately, depending on the context.
The resident has confirmed that she has ADHD and is autistic. She also has a number of physical health issues. The landlord is aware that the resident was vulnerable owing to hypersensitivity.

Obligations, policies, and procedures

Tenancy agreement

Section 8 of the tenancy agreement states that the resident must not cause or allow any shared area or communal area of the estate to become untidy or unclean.
Section 9 of the tenancy agreement states that the resident must not block, interfere, or obstruct any fire exits in the property or areas that are shared with other households.

Communal areas policy (safe and clear)

The landlord takes a “zero tolerance” approach to items being left or stored in communal areas. The aim of the policy is to protect residents, employees, contractors, and other visitors to the building. To minimise the likelihood of fires in communal areas and ensure that escape routes are clear in the event of a fire.
A zero-tolerance approach is one in which residents are not permitted to use the common parts to store or dispose of their belongings or rubbish.
It will ensure that where residents are storing items in communal areas, which are presenting a health and safety risk and they have failed to remove them, they are cleared as quickly as possible.
After the visit, the landlord will prepare a letter advising residents to remove belongings, with a Torts Notice informing them that they must clear the items from the communal area.
The landlord will revisit within 14 days and will place, wherever possible, an intention to dispose stickers on relevant items. It will also hand deliver an Intention to Dispose, final letter.

Torts Act 1977

The Torts (Interference with Goods) Act 1977 permits a landlord to attach a legal document (a tort notice) to an item that is believed to have been abandoned on the grounds of the property, and then arrange for the disposal of the abandoned item, if the notice is not acted upon or the item removed.

Complaints Policy

The landlord’s complaints policy, in place at the time of the complaint details two complaint stages. Stage one (which is comprised of a stage one and a stage one review), and stage two which is the Chief Executive stage. A stage one response will be sent within 21 calendar days of receipt of a complaint. A stage one review will be completed within 10 working days, and the Chief Executive stage response within 28 calendar days.
The landlord published an updated complaints policy on its website on 23 March 2023. Its revised policy provides updated complaint stages and timeframes in which to respond, which reflect the Ombudsman’s Complaint Handling Code.

Refunds, compensation, and remedies policy

The landlord confirms that it will make compensation payments to residents who have been affected by failures to meet reasonable levels of service delivery.

Summary of events

On 16 June 2020, the landlord served a Torts notice to the residents within the building, requesting that items be removed from the communal areas. Included with the notice were photographs of items, belonging to the residents, which needed to be removed before 30 June 2020. It further advised that on expiry of the notice, all remaining items would be removed and disposed of without further notice.
On 2 March 2021, the resident received an email from her neighbour. He advised that following a discussion with the landlord, he had proposed to buy and install lockable metal storage cabinets, for the alcove space in the communal area. He suggested that it would provide storage of items, in a fire-safe way. He added that the landlord had agreed the proposal, so long as the alcove door was kept shut, for fire-safety reasons. The neighbour wished to know if the resident had any issues with his proposal.
The same day, the resident emailed the landlord and stated that she objected to her neighbour’s proposal. A follow-up email was sent on 11 March 2021, after she had not received a response. Within this, the resident stated that as she did not agree to the proposal, it could not go ahead.
On 12 March 2021, the landlord emailed the resident and asked if she could provide reasons as to why she objected to the installation of the cabinets.
On 24 March 2021, the landlord emailed the resident and confirmed that approval had been granted for her neighbour to install lockable metal storage cabinets. It confirmed permission was granted on the condition that the door was always kept shut and that nothing else was stored in the room.
The same day, the resident emailed the landlord stating that she was making an “official complaint.” She said she did not agree to the room being used for storage cabinets, or for the door to be kept shut. She stated that there were two of them using the communal area, therefore agreement of both parties was required.
The landlord acknowledged the complaint on 26 March 2021, and advised that it would aim to respond within 15 working days.
On 9 April 2021, the landlord sent internal correspondence, requesting clarification on why the neighbour was told on 4 March 2021 to put on hold the purchase of the cabinets, but on 17 March 2021, he was further advised that he could put cabinets in the room. The landlord noted that it was “confused on the matter.”
An internal response email was sent on 13 April 2021, which confirmed that the storage unit would not cause a nuisance, and after looking at the situation, the leaseholder was given the go ahead, on the proviso that the area was kept clean and tidy. It added that the area had previously been a mess, which had caused a health and safety issue.
The landlord issued a stage one response on 16 April 2021. It said:
1. It understood that the resident disapproved of her neighbour being allowed to have a storage unit in the communal area. The resident also mentioned that she did not agree that the alcove door in the communal area should be locked.
2. The resident had also stated that both she and her neighbour needed to have consent to having the metal storage cabinet installed.
3. A Notice pursuant to section 13(3) of the Torts (Interference with Goods) Act 1977, was issued to the resident’s property on 16 June 2020, because of how the communal area had been used by all residents.
4. Correspondence had been sent to the resident on 15 July 2020, confirming:
  1. It had a “safe and clear” approach to reduce the risk of fires starting. This was also to ensure that there were no obstructions within communal areas.
  2. Communal areas had to be kept completely clear of all items, and it had a strict policy to remove all belongings in the communal area if reported or noticed.
  3. A communal risk assessment letter was sent to all residents instructing all items to be removed by the individual or it would arrange for items to be cleared.
  4. It had already served a Torts notice on 16 June 2020 to all residents in the building, and thereafter served an Intention to dispose notification to the Housing Officer.
5. Following this, the resident’s neighbour subsequently requested approval to install a storage unit in the communal area, to help all residents manage their items.
6. On 2 March 2021, the Property Risk Assessment Officer attended to inspect the communal area including the alcove space. He confirmed that as the room had a fire door, he, personally, would be happy with metal lockers. This was so long as the door was always shut, and that nothing else was in the room.
7. It understood that the resident disapproved of the metal storage cabinet, and she had not given permission. The resident was correct in stating that all residents needed to agree before a cabinet was installed in the communal area. It was therefore sorry that the housing officer had not sought her approval before providing consent to the neighbour.
8. However, the Housing Officer granted permission based on the assessment of the Property Risk Officer. It was also granted on the basis that the door to the alcove area was always kept shut, and nothing else was contained in the room. It noted that the neighbour had offered to install a cabinet for the resident, and to purchase a lock, for which she had declined.
9. It could confirm that the metal cabinet was for individual use by the neighbour to store personal items. The resident would still have access to the communal area if she chose not to accept the neighbour’s offer to install a metal cabinet.
10. Its records did not indicate that the resident had provided a valid reason for objection. It would only reconsider its decision to grant permission if the resident provided a valid reason.
11. The Housing Officer should have asked for the resident’s approval, prior to granting permission for the metal storage cabinet to be installed. It wished to apologise that her approval was not sought, and the complaint was partially upheld.
12. However, it would not be informing the neighbour that he could not put a storage cabinet in the communal area unless the resident could provide a valid reason for her objection.
13. The resident could escalate her complaint if she was unhappy with the outcome.
On 10 May 2021, the resident explained that she had been in hospital for the last month which had delayed her response. She said:
1. Permission was granted without her agreement, meaning that the proposal could not go ahead.
2. It was her opinion that the only reason that the neighbour wanted storage was because he was selling the property.
3. She had requested that the room was left as was. This request had been made as a reasonable adjustment under the Equality Act 2010.
4. She stated having physical disabilities which included fibromyalgia, chronic fatigue, bulging disc, pulmonary embolism, deep vein thrombosis and severe anaemia, and if there was fire, she would not be able to climb the cabinets, to access the windows.
5. It had misused a Notice pursuant to section 13(3) of the Torts (Interference with Goods) Act 1977, which should be used for items left behind by a resident no longer living at the property and the landlord was aware that she had not left.
The landlord acknowledged the resident’s request for a review on 11 May 2021 and confirmed a response would be issued within 10 working days.
On 25 May 2021, the landlord issued a stage one review confirming:
1. It had previously apologised that the Housing Officer had not obtained the resident’s agreement before granting consent for the storage cabinets.
2. The Housing Officer had provided approval as the alcove area had previously been full of items that had been cleared by it at the end of June 2020. It was thought that having a more managed system would be helpful to all residents in the building.
3. The Property Risk Assessment Officer identified no risks with the proposal.
4. The lock on the metal cabinet installed was for individual use by the neighbour. The resident would still have access to the communal alcove area if she chose not to accept the neighbour’s offer to install a cabinet for her.
5. It concluded that the approval to install the cabinet was in line with its communal area safe and clear policy. In addition, the resident had not provided a valid reason why she disapproved of the installation.
6. The resident had advised that she was making her request under the Equality Act 2010, and that she had concerns about safety. It was sorry to learn of the resident’s concerns. However, the area had been assessed and no risks were identified. Furthermore, based on the assessment, it was important that the alcove door was always shut.
7. The resident had stated that the neighbour had since left and that he had installed the cabinets to “trick potential buyers into buying his flat.” It could confirm that the leaseholder of the neighbour’s property had not changed, but that it was unable to provide any further information in relation to the lease.
8. Its previous decision remained, and the resident could ask for her complaint to be considered at the Chief Executive stage if she remained unhappy.
The resident remained dissatisfied with the landlord’s response, and sent a reply on 26 May 2021, in which she stated:
1. The landlord had not addressed all points within her complaint, and she requested that it review its response before she decided whether to escalate her complaint.
2. Her main complaint related to the storage cabinets, and she had not agreed to the proposal and therefore, it could not go ahead.
3. The area should remain open, as a reasonable adjustment, under the Equality Act 2010, because she was autistic. The resident explained that there were two windows in the communal area that let in light. She said that she has hypersensitive to light, and without the light from the two windows, she would become overwhelmed by the green fire safety light on the ceiling.
In a supplementary review response sent on 10 June 2021, the landlord reiterated its previous points made in the stage one review, adding:
1. A more manageable storage system was helpful to all residents within the building.
2. It was unable to make any adjustments, as it was a shared area, and no risks had been identified.
3. On review, it felt that the resident’s concerns had been fully addressed and the decision to partially uphold the complaint was correct.
On 11 June 2021, the resident emailed the landlord. She asked if the landlord’s response to two of her concerns could be considered further, as she did not believe that it had addressed the points that she had raised. The two points were:
1. She had not provided her permission for the storage cabinet, and it therefore could not be installed without her agreement.
2. By keeping the alcove door closed, the area was without natural light, and she was becoming overwhelmed by the green fire safety light.
On 22 June 2021, the landlord offered an apology for any miscommunication regarding two of the points raised as part of the resident’s complaint. It had reviewed the issues as requested and advised the following:
1. Its failure to ask for her agreement was acknowledged, and the complaint in relation to that had been upheld. However, it had not received any “reasonable” objections for the installation, and it thought that the cabinets were a good idea for extra security and adhered to its policy in communal areas.
2. Due to fire safety, the alcove door in the communal area would need to remain closed. It was looking at making adjustments to reduce the impact of the green light and it had contacted the Occupational Therapy Team (OTT) for recommendations on suitable adjustments, which would also be appropriate for other residents, due to it being a communal area.
In a response the same day, the resident stated that the landlord was repeating itself, without addressing the point that all residents had to agree before a cabinet was installed, and as she had not agreed, it could not go ahead.
The landlord emailed the resident on 23 June 2021, to request evidence of hypersensitivity to light for the OTT to progress a suitable adjustment. The resident responded the following day to advise that she was in hospital and was unable to access evidence from the eye hospital. She reiterated that the cabinets could not be installed without her consent.
On 25 June 2021, the landlord emailed the resident advising it was sorry to hear she was unwell. It requested any information relating to her health issues as and when she was able to provide it. It confirmed that her complaint was escalated to stage two of the complaints process.
A Chief Executive stage response was sent on 4 October 2021. The response confirmed:
1. It apologised for the delay in responding due to an increase in escalated complaints and offered £50 compensation.
2. It accepted that it did not consult prior to giving permission for her neighbour to install a storage cabinet in the communal area. It advised that it had a policy to consult with residents regarding changes to communal areas, but this was out of courtesy and not a mandatory requirement. It advised that the lockable storage cabinet was a secure way to store personal belongings and it found no fault with its decision.
3. It appreciated that the light on the stairway could affect her condition but the door in the area must remain closed when not in use for fire safety reasons.
4. In response to the resident’s request for reasonable adjustments, it had contacted the OT team for recommendations regarding the communal area. It had also written to the resident and requested proof of her hypersensitivity to light. The resident had advised that she had evidence but was in hospital at the time. Without the medical evidence, it had been unable to look at making reasonable adjustments.
5. The Torts (Interference with Goods) Act 1977 dealt with the voluntary delivery of goods, referred to in law as “bailment”. It was not specific to any arrangement between tenant and landlord. Under sections 12 and 13 and Schedule 1 of the 1977 Act, a person in possession of goods was entitled to sell, or dispose of them, where prior notice was given to the owner to take possession of the goods. This meant that it could dispose of items stored by residents in any communal area of its properties, where prior notice was given, and residents had not removed the items.
6. It was able to dispose of items stored by residents, in the communal area of the landlord’s property, where prior notice had been given on 16 June 2020.
7. It apologised that the clearance notice sent had caused concern. It apologised that it had been a distressing time but was satisfied that it had followed the correct process before clearance took place.
8. It partially upheld the complaint for not consulting before permission was granted for the storage cabinet.
9. The resident was advised on how to escalate her complaint to this Service.
In December 2021, the resident informed this Service that to put things right, she wanted the communal alcove area to remain empty, and for the landlord to reconsider its decision that the alcove door should remain shut.

Assessment and findings

Scope of investigation

The resident has explained that she has hypersensitivity, which was exacerbated by the landlord allowing permission of storage units in the communal area. It is beyond the scope of this investigation to determine whether the actions of the landlord resulted in a deterioration, or adverse impact on the resident’s health. Liability for exacerbation of a condition is something which is best determined by a court. However, consideration has been given to the landlord’s response in relation to the resident’s concerns, as well as the general distress and inconvenience the situation may have caused her.

The landlord’s decision to grant permission for the installation of storage cabinets in the communal area.

The landlord’s letter to the resident dated 19 March 2024 provided some important background information on the alcove area. Prior to the start of the resident’s tenancy in 2008, the landlord identified that the leaseholder of 45a had carried out works to the communal area without the permission of Islington Council. The landlord explains that when 45a was in the process of being sold, the landlord undertook enforcement action to ensure all residents in the building had access to the alcove area.
The landlord confirms that its surveyors completed an inspection in August 2012 and were satisfied that the remedial works were satisfactory. It explains that since then the intention of the alcove space was for it to be used as a storage room for all residents. The landlord notes that the area has been assessed numerous times since then and no safety concerns have been raised. It also stated that the area complies with communal fire safety requirements and it has no plans to make any changes to the alcove area in the foreseeable future. The landlord highlighted that a neighbouring property has a similar alcove space that is also used for storage.
Having reviewed all the correspondence regarding this issue, it is apparent that:
1. The landlord and tenants are required to keep communal areas clear.
2. The installation of storage cabinets disregarded the landlord’s communal areas policy.
3. The resident’s associated safety and accessibility concerns have not been fully addressed.

This report will now consider each of these points in turn.

The landlord and tenants are required to keep communal areas clear.

Following advice from the London Fire Brigade, the landlord takes a zero tolerance approach to items being left or stored in communal areas. This is confirmed in the landlord’s communal areas policy. The policy explains that the purpose of this approach is to:

(1) Protect residents, employees, contractors and other visitors to buildings with communal areas.

(2) Minimise the likelihood of fires in communal areas and ensure that escape routes are clear in the event of a fire.

(3) Ensure compliance with statutory legislation relating to health and safety.

The policy also explains that a zero tolerance approach means that the landlord: ‘does not allow residents any flexibility in the use of communal areas, no items are allowed to be stored or left in any communal areas, even areas where permission had previously been granted (pre September 2017). The sole exception to this is that an appropriate doormat may be permitted immediately inside the communal entrance door. Doormats are not permitted in communal areas outside front entrance doors to individual dwellings.’ The communal areas policy also confirms that residents ‘must not prop open communal fire doors or leave cupboard doors, which have been identified as fire doors, open’.
The landlord’s zero tolerance approach has been communicated to the resident on a number of occasions since 2017. The conditions of the tenancy also state that ‘you must not cause or allow any shared area or communal area of the estate to become untidy or unclean’. The landlord’s management of communal areas is therefore clear. No items are permitted in any communal areas at all. The only exception is a doormat at the communal entrance door.

The installation of storage cabinets disregarded the landlord’s communal areas policy.

The landlord has indicated that its property risk assessment officer attended the property on 2 March 2021 to inspect the alcove area. The landlord states that they confirmed that the space had a fire door and they were therefore happy if metal lockers were installed provided the door was always shut and nothing else was in the room. The landlord has been unable to provide documentary evidence to confirm the property risk assessment officer’s visit and advice.
The resident’s neighbour from 45b emailed her on 2 March 2021. They explained their proposal to install two storage cabinets in the alcove communal area so that belongings do not get removed in future. The neighbour confirmed that the landlord was happy with this, provided the door to the alcove space was always kept shut and nothing else was stored in the alcove area. They asked to let them know if the resident had any issue with this.
The resident emailed the landlord on 2 and 11 March 2021 to confirm that they objected to the proposal. The resident noted that they considered that the proposal could therefore not go ahead. The landlord replied on 12 March 2021. It asked the resident to explain why she objected. It does not appear that the resident replied to this email.
The landlord emailed the resident on 24 March 2021 and confirmed that approval had been granted for her neighbour to install a lockable metal storage cabinet. The approval was granted on the basis that the door was always kept shut and nothing else was kept in the area. HM Land Registry shows that the leasehold for 45b was sold on 25 June 2021. As such at the time that they applied for permission and the landlord granted permission, the resident’s ex-neighbour may have been going through the sales process but they remained the owner of the leasehold.
There is nothing within the landlord’s communal areas policy which allows for the installation of metal lockers. The zero tolerance approach clearly states that the only exception is a doormat by the communal entrance door. As such, as per its own policy, this exception was not permitted. The landlord’s decision to grant permission to install the cabinets therefore disregarded its communal areas policy.
The available evidence indicates that the alcove area was previously a health and safety concern due to the number of items left in the space. Given that the landlord’s property risk assessment officer attended the site and completed an evaluation, it would appear reasonable for the landlord to decide that the installation of metal cabinets to keep a communal area tidy (thereby reducing the health and safety risks) was preferable to an untidy space. However, ultimately, the landlord’s communal areas policy does not state that it can do this. The landlord should have acknowledged this within its complaint response and taken steps to clarify and amend its policy as a result. Its failure to do so is a shortfall in its handling of this matter.
The landlord has indicated that it has made recent changes to its procedures for permissions. However, it is not clear that these have sufficiently clarified how it will handle matters like this in the future. It is therefore ordered that the landlord reviews its communal areas policy to confirm that there are exceptions to its zero tolerance approach that the landlord will consider and to detail exactly what these exceptions are. As it stands the policy is unclear and can lead to residents feeling other residents are not following the rules or are receiving preferential treatment.
As the landlord’s policy does not explain what exceptions are permitted (aside from the doormat), it also does not outline what permissions are required before the exception is approved. As such, although the landlord’s stage 1 complaint response letter states that all residents have to agree before a cabinet is installed in a communal area, this is not actually documented in its communal areas policy. It also appears impractical. The landlord’s reference to this unsubstantiated policy was unhelpful. While all affected residents should be consulted, this does not mean that residents have a power of veto. The final say ultimately rests with the landlord.
As part of its review of the communal areas policy, it is ordered that the landlord details an approval process for allowing exceptions to its zero tolerance approach. The housing officer and property risk assessment officer should be involved in the approval process and all affected residents should also be consulted in a fair, timely, appropriate and effective manner. It is important that the landlord also responds to any objections before it grants permission.
The landlord’s letter dated 14 September 2023 indicates that it now does not consider the alcove space to be included in its communal areas policy. It explains that the policy only applies to communal areas that provide access and egress to the building and self-contained rooms/alcoves with a fire door are not considered part of the communal area. This definition of a communal area is not detailed in the policy. I note that this definition would also mean that garden areas are also excluded from the policy. As such, it appears that this definition requires further consideration from the landlord. It is ordered that the landlord considers clarifying its definition of communal areas within the policy.
Overall, the landlord acted inappropriately in its handling of this matter as, although the resident was asked to explain their reason for objecting, the landlord did not provide her with a deadline to respond and it proceeded before she replied. The landlord should have taken more care to ensure that the resident’s views were fully and fairly considered and responded to before approving an exception to the zero tolerance approach.
I acknowledge that the landlord did apologise to the resident for its handling of the permission. However, the landlord could have done more to put matters right. It is therefore determined that the landlord’s handling of this issue amounts to service failure. The Ombudsman has ordered a compensation payment, in line with the landlord’s compensation policy, and the Ombudsman’s remedies guidance, proportionate to the distress and inconvenience caused to the resident, because of the landlord’s actions.
This Service does not agree that the landlord should remove the metal cabinets on the basis that the resident did not agree to them being installed. The resident is entitled to object to the installation and explain their reasons; however, ultimately, the final decision rests with the landlord and provided its housing officer and property risk assessment officer approve, the landlord is within its rights to continue to permit the cabinets to remain in the alcove area. It is also recommended that, once the landlord has revised its communal areas policy, it should complete a retrospective approval process for any items stored in the alcove space.

The resident’s associated safety and accessibility concerns have not been fully addressed.

The landlord has confirmed that, due to fire safety reasons, the communal alcove door has to remain closed. As the door is a fire door, this advice is to be expected. However, it appears that previously the door was regularly left open and natural light from the alcove windows appeared in the hallway. The resident has explained that she is autistic and has a hypersensitivity to light. She has provided evidence of a medical assessment to support this. The resident explains that without the light from the alcove windows she gets overwhelmed by the green fire safety light on the ceiling. The landlord therefore referred the resident to its Occupational Therapy Team for recommendations on suitable adjustments. The landlord emailed the resident on 23 June 2021 and asked for medical evidence of her hypersensitivity to light. The resident replied on 24 June 2021 to explain that at that time she was in hospital, so she was unable to access the information.
The Housing Learning and Improvement Network’s report on home adaptations in social housing identified that landlords sometimes do not treat adaptations with the importance they deserve and rather than saying ‘yes’ to adaptations, barriers are often placed in the way. The landlord has acted appropriately in its handling of the resident’s request for an adaptation regarding the fire safety light. However, the requirement to provide additional medical evidence to support the request is a potential barrier to the landlord properly considering the resident’s request. The Royal College of Occupational Therapists’ report. ‘Adaptations without delay’, has highlighted that not all adaptations need the expertise of an occupational therapist. It confirms that there is potential for better use of resources through a recognition that occupational therapists do not need to assess for adaptations that are required to resolve ‘simple issues’. This will allow residents to receive simple adaptations more quickly and free up occupational therapists to focus on more complex needs.
It is not clear that this issue has been followed up by the landlord. I have therefore ordered the landlord to consider the findings in the Royal College of Occupational Therapists’ report and review whether:
1. it requires medical evidence of the resident’s hypersensitivity;
2. it requires occupational therapy input in order to consider a reasonable adjustment to the fire safety light;
3. it could fit a different fire door with glass to the alcove to allow natural light to still enter the hallway.
Ultimately this is a decision for the landlord to make. If the landlord still requires medical evidence and occupational therapist input before acting on the resident’s adaptation requests, it is expected to clearly confirm this to the resident in writing.
The resident has indicated that, in the event of fire, she intends to use the windows in the alcove area as her means of escape. The resident explains that the storage cabinets and closed fire door would impede her access to the windows. The landlord’s letter dated 14 September 2023 confirms that the resident’s fire escape route is down the communal stairs and through the front door of the building. It is acknowledged that the resident may not be able to evacuate in a safe manner without the assistance of others. For this reason, it is important to have a plan in place for this eventuality. A personal emergency evacuation plan (PEEP) is a bespoke escape plan which is created to assist individuals who may require additional support during a general emergency evacuation of a building. The purpose of a PEEP is to ensure that everyone can evacuate the building safely and promptly in the event of an emergency, regardless of their level of mobility or other impairments. It is ordered that the landlord completes a PEEP assessment.

The landlord’s response to the resident’s concerns about the removal and disposal of the resident’s items left in the communal area

A torts notice is served pursuant to the Torts (Interference with Goods) Act 1977. It is usually used in situations where goods have been left at a property by a tenant when their lease has expired. It imposes an obligation on the tenant to collect the goods and allows the landlord to sell or dispose of the goods, if the tenant fails to do so.
Although a torts notice is most commonly used for goods left by an ex-tenant, it can be used by any bailee (a party who gains possession) when a bailor (a party who gives up possession) leaves goods on private land or property. That is, anyone who lawfully comes into possession of someone else’s goods is entitled to use a torts notice. This can include goods left within a communal area within a building managed by a landlord.
Under the Act, the landlord must serve notices on the tenant in order to deal with the goods in the communal area. The notice should clearly explain to the tenant that the goods need to be collected within a reasonable time period. It should also inform the tenant that the landlord intends to sell or dispose of the goods if they are not collected within that time period.
On this occasion, the landlord sent torts notices to all residents in the building on 16 June 2020. Torts notices were also issued in 2019 and 2021. The landlord’s stage 2 complaint response dated 4 October 2021 confirmed that it would not investigate a complaint about the 2019 torts notice as the resident had raised the concern more than 12 months after the incident occurred. The landlord is within its rights to exercise this time limit, which is confirmed within its complaints policy. For that reason, any concerns about the 2019 torts notice are outside of the Ombudsman’s jurisdiction. I have not identified that the resident raised concerns about the 2021 torts notice and this matter was not included in either the landlord’s complaint responses. Therefore, again, the torts notice in 2021 is outside of the scope of this investigation.
The torts notice sent to the resident’s home in June 2020 provided a timeframe of two weeks to remove items from the communal area. It confirmed that any items not moved would be immediately disposed of. To avoid any doubt, the notice also included photographs of the items it intended to dispose of. The landlord acted appropriately and provided the resident with sufficient notice of the action it would take.
The resident emailed the landlord on 28 June 2020. She confirmed that she had received the torts notice on 19 June 2020. The resident highlighted that the landlord had previously removed £2,000 worth of her items when she was in Spain visiting her father. She explained that she had also asked the landlord for support with moving items as she had severe problems going up and down the stairs as she suffered from fibromyalgia, chronic fatigue, three bulging discs, degenerative damage to her spine, autism and ADHD. The resident also noted that due to her medical conditions, she cannot cope with telephone calls.
The landlord replied to the resident’s email on 13 July 2020. The landlord explained that it was unaware of her vulnerabilities and asked her to complete its Vulnerable and Risk Register Referral Form so that it could place her on its register of vulnerable residents. It noted that this would allow its staff to be aware of the resident’s conditions when it contacted her and it would be able to help her accordingly. The landlord confirmed that all communal areas (both internal and external) must be kept completely clear of all items. It explained that it would be removing and disposing of all items later in the week; however, the landlord’s later complaint responses confirm that it had already removed items on 30 June 2020.
I have reviewed the landlord’s Vulnerable and Risk Register Referral Form. I note that it specifically states that the form is for the ‘Reporting Officer to complete’. As such, the form should have been filled out by the landlord on the basis of the information the resident shared. That is, she should not have been asked to fill out the form on the landlord’s behalf. Nevertheless, the resident replied on 13 July 2020 with the completed form indicating that she had autism, ADHD and impaired mobility.
As set out in the Ombudsman’s Spotlight report on Knowledge and Information Management and its more recent report on Attitudes, Respect and Rights, recording vulnerabilities is the first step in a landlord providing a sensitive and responsive service. This information must be kept up to date, be accessible, and be shared and used appropriately. The information could be captured at the start of a tenancy, during a tenancy audit or at moments such as these when a landlord is communicating with a resident.
The landlord should have recorded the medical issues that the resident disclosed immediately without the need for her to complete the form. It is not clear how the landlord recorded the vulnerabilities she disclosed, but it failed to communicate them to the Ombudsman as part of its response to this Service’s information request. The only vulnerability noted by the landlord was hypersensitivity. As such, this indicates a failing on the landlord’s part in relation to recording the resident’s vulnerabilities.
All residents have the right to expect their landlord to act within the requirements of the Equality Act, Care Act and Human Rights Act. When considering its approach to vulnerabilities and individual circumstances, meeting legal requirements should be the baseline, not the aspiration. Landlords should consider creative, person-centred and bespoke responses to the individual needs of their residents. This could include making appropriate referrals to partner agencies and showing a willingness to do things differently.
On this occasion, the resident has confirmed that she received the torts notice on 19 June 2020. The torts notice provided a telephone number to call if she wanted to discuss it. The notice did not provide a dedicated email address. This meant that if a resident wanted to raise a query and could not telephone, they had to email the landlord’s general enquiries email address. The resident’s email was not responded to until more than two weeks later. As such, despite her raising a concern two days prior to the deadline, the landlord does not appear to have taken this onboard before progressing with the removal of items.
It is recommended that the landlord reviews its torts notice communications and considers offering residents a dedicated email address, a dedicated postal address and an in-person option to enable residents to raise concerns about torts notices and for the landlord to identify and consider these in a timely manner. The existing process appears to disadvantage residents who are unable to telephone.
Following the resident’s further emails, the landlord provided a further response on 28 July 2020. It noted that due to her disability, it may be able to help her move items that were in the communal areas. However, by this point, the landlord had already removed items in the communal space 4 weeks previously. The landlord’s focus should therefore have been on ensuring that support was offered to the resident in 2021 if a torts notice was issued in the building the following year. The available evidence does not indicate that it took this action.
Given the resident’s known vulnerability, the landlord would be expected, under both the Equality Act 2010 and the Regulator’s Tenant Involvement and Empowerment Standard, to demonstrate that it had taken steps to ensure that it understood her needs and responded to them. The landlord failed to take account of the resident’s reasonable adjustment request when exercising its right to clear items in a communal area following a torts notice. The landlord’s decision not to adapt its service delivery was unreasonable and damaged the landlord/tenant relationship.
It is ordered that the landlord updates its records with regard to the resident’s vulnerabilities. The landlord should also ensure that it has taken steps to consider any reasonable adjustments it can make to support the resident in terms of its method of communication with her and enforcing future tort notices.
According to the resident’s email dated 28 June 2020, the landlord had previously removed £2,000 worth of her items when she was in Spain visiting her father. As such, it is clear that this did not occur in relation to the torts notice in 2020. On this occasion, the resident was aware of the landlord’s intention to clear the items, but the landlord failed to respond to the concerns she raised before it acted to clear the communal area. From reading through the evidence both parties have provided it is not clear what detriment the resident experienced. That is, it is unclear if the resident’s items were disposed of in 2020. As such, when considering a compensation award, this determination has only considered the distress and inconvenience the resident experienced as a result of the landlord’s actions in 2020, as opposed to the monetary value of any items that were cleared. It is ordered that the landlord apologises to the resident and provides compensation of £100.

Complaint handling

The resident’s initial complaint was submitted on 24 March 2021. The landlord responded on 16 April 2021, which was within its 21-calendar day timeframe, set out within its complaints policy.
The resident expressed dissatisfaction in relation to the complaint responses she received, notably that the landlord had failed to respond to all her complaint points. She requested that the landlord respond to all matters raised before she decided whether to escalate her complaint.
The landlord reconfirmed its position in relation to the complaint, providing two supplementary responses to the resident. This Service has noted the responses provided and concludes that the landlord did address all the points raised, however, the resident was particularly unhappy that approval for storage cabinets had been granted without her consent. While this Service understands the concerns raised by the resident, the landlord provided detailed responses, and supplementary responses on request, which shows the landlord made attempts to clarify the situation and address the concerns of the resident. It is acknowledged that the landlord’s initial response to the resident’s complaint about her health conditions was insensitive. It was not until a number of further emails between the resident and the landlord that it contacted her on 23 June 2021 to ask for evidence of her hypersensitivity to light.
It is evident that there was a significant delay in the landlord issuing a Chief Executive stage response, totalling 115 days. While the landlord apologised for the delay and offered the resident an explanation for it, the landlord failed to adhere to the timescales set out within its complaints policy. The landlord has not evidenced that holding emails were sent during this time, which this Service would expect, in line with the Ombudsman’s Complaint Handling Code, to manage the resident’s expectations appropriately. The delay in response could have led the resident to feel that her concerns were not being taken as seriously, as the evidence suggests they were.
This Service has considered the remedy offered by the landlord and considering the circumstances of the case and the Ombudsman’s own remedies guidance, does not find that it was proportionate to the failings identified within its complaint handling. Therefore, this Service has made a further award, which suitably provides redress for the delay the resident experienced with the landlord’s protracted complaint handling.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in relation to the landlord’s decision to grant permission for the installation of storage cabinets in the communal area.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in response to the resident’s concerns about items being removed from the communal area and disposed of.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in relation to the landlord’s complaint handling.

Orders and recommendations

Orders

The landlord is ordered, within 4 weeks of the report, to:
1. Provide the resident with an apology for the failings identified by the Ombudsman’s investigation.
2. Pay the resident £425 in compensation. This is comprised of:
  1. £150 for the adverse effect caused by the failing identified in its handling of permission for storage cabinets in the communal area.
  2. £100 for the adverse effect caused by the failing identified in its handling of the torts notice in June 2020.
  3. £175 for the adverse effect caused by the delay in issuing its Chief Executive response. If the £50 offered by the landlord during the complaint’s procedure has already been paid, this should be deducted from this sum.
3. Update its records with the resident’s vulnerabilities and support needs.
The landlord is ordered, within 8 weeks of the report, to:
1. Review its communal areas policy. This should include:
  1. Clarifying what communal areas are subject to the zero tolerance approach (i.e. are internal cupboard/storage/alcove areas with doors included?).
  2. Detailing what types of exceptions to its zero tolerance approach the landlord will consider.
  3. Detailing an approval process for permitting exceptions to its zero tolerance approach.
  4. Detailing how affected residents will be consulted in a fair, timely, appropriate and effective manner as part of that approval process (including responding to objections before approval is granted).
2. Review the findings within the Royal College of Occupational Therapists’ report, ‘Adaptations without delay’ and reassess the resident’s adaptation request in relation to the fire safety light in the communal hallway. The landlord should consider whether:
  1. it requires medical evidence of the resident’s hypersensitivity;
  2. it requires occupational therapy input in order to consider a reasonable adjustment to the fire safety light;
  3. it could fit a different fire door with glass to the alcove to allow natural light to still enter the hallway.

The landlord should confirm the result of its reassessment in writing and clearly inform the resident of the next steps.

Complete a PEEP assessment.
Take steps to consider any reasonable adjustments it can make to support the resident in terms of its method of communication and how it enforces future tort notices (e.g. offering to help the resident move items).

Recommendations

The landlord is to:
1. Contact the resident to discuss arranging a move back to Islington. The landlord should offer the resident the option of returning to her existing property or a managed move to a new property in the borough.
2. Once the landlord has revised its communal areas policy, complete a retrospective approval process for any items stored in the alcove space in the building.
3. Confirm if the landlord has a named officer to lead on adaptation cases and how best the resident can contact the named officer/landlord in future to inform them of any reasonable adjustments she requires.
4. Review its torts notice communications and consider offering residents a dedicated email address, a dedicated postal address and an in-person option to enable residents to raise concerns about torts notices and for the landlord to identify and consider these in a timely manner.
5. Review the Ombudsman’s Spotlight report on Attitudes, Respect and Rights. Consider implementing the recommendations in that report from pages 62, 63 and 64 – in particular, testing its vulnerability and reasonable adjustments strategy and policy against the ‘3Rs’ on vulnerable residents – recognise, respond and record.
6. Confirm what stage of its complaints process (that is, stage 1, stage 2 or Ombudsman stage) the following issues are:
  1. Concerns about the installation of a lock on the alcove door.
  2. Concerns about a bicycle stored in the alcove area.
  3. Concerns about inadequate fire and property risk assessments in the alcove area.