LiveWest Homes Limited (202219939)

REPORT

COMPLAINT 202219939

LiveWest Homes Limited

15 August 2023

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

1. The complaint is about the landlord’s handling of the resident’s reports of bird faeces at the entrance of the building.

Background

2. The resident is a shared owner. The landlord is a housing association. The property is a flat situated in a building of similar dwellings. A birdbox was installed for swifts above the communal entrance when the building was built in 2019, as the provision of a bird nesting site due to environmental conditions for planning consent.
3. On 23 April 2021, the resident raised the issue of bird faeces on the steps and floor at the entrance of the building and mentioned there was a hole the birds were in below the roof and above the top window. On the same day, the landlord stated that it was not allowed to disturb bird nests and would look into sealing any entrances the birds were using in the summer of that year. It also stated that, in the meantime, it would clean the bird faeces. On 26 April 2021, the landlord clarified that where the birds were seen entering the building was a birdbox and that it was part of the planning requirement for the building.
4. On 20 July 2021, the landlord stated that the nesting season ended in September/October and that it would look into getting the box blocked up at that point. On 10 December 2021, the landlord stated it would look into alternative ways to stop bird faeces from getting on the floor and steps to the entrance of the building without sealing the box up, as it wanted to avoid displacing the birds. On 21 January 2022, the landlord stated it was waiting to hear back from an ecologist to help it decide what actions to take next.
5. On 18 March 2022, the landlord explained to the resident that when a contractor was installing new boxes on 21 February 2022, they noticed that the original birdbox was being used by starlings and that a nest was already formed. It also explained that due to starlings being protected under The Wildlife and Countryside Act 1981, work could not continue. It stated that it would look into adding a canopy or porch to the entrance as an alternative solution.
6. The resident raised a complaint to the landlord on 29 March 2022 and 21 April 2022. The resident raised the following issues:
   1. It had taken the landlord a year to sort out the bird mess issue and that it should have been done prior to the nesting season.
   2. She felt she was back to square one, as birds were nesting again and would make more mess.
   3. She was reassured that the birdbox would be relocated before the nesting season.
   4. She had been emailing two different staff members and had not received a response.
7. The landlord provided its complaint responses on 20 April 2022 and 12 May 2022, where it upheld the complaint in regard to its handling of reports of bird faeces. It explained that:
   1. Its intention was to install new birdboxes and fill the original one. However, when a contractor attended on 21 February 2022 to carry out the work, it said it had discovered a different species of bird was using the original one as a nest. The original birdbox was for swifts who migrated for winter and a different species, that did not, had taken residence in the birdbox.
   2. It was looking into available options and prices of the installation of a canopy.
   3. It was sorry that the issues were not dealt with in a timely manner and had caused frustration and annoyance to the resident.
   4. It would offer £100 as a goodwill gesture as the issue had remained unresolved for a year. The resident accepted the goodwill gesture and apology at the time.
8. The resident brought her complaint to this Service on 29 November 2022, because the issue had been going on for over a year and remained unresolved. She stated the bird faeces was a health and safety risk and that her health had been impacted by the time taken to contact the landlord. She also stated that it had told her it would either seal the birdboxes and install new ones or install a canopy however, it had done neither. The outcome the resident sought was the landlord either sealed the original birdbox or installed a canopy above the building’s entrance. As of May 2023, the issue remained unresolved.

Assessment and findings

Scope of investigation

9. When the resident made her complaint to the landlord, she also raised other aspects such as communal cleaning. However, these aspects have not been brought to this service for investigation. As such, this report will focus solely on the landlord’s handling of the reports of bird faeces.
10. The resident also stated that she considers that the issue has exacerbated her medical conditions. However, it is beyond the expertise of this service to make a determination on whether there was a direct link between the bird faeces and the resident’s medical condition. The resident therefore may wish to seek independent advice on making a personal injury claim if she considers that her health has been affected by any action or lack thereof by the landlord. Nevertheless, this Service can look into time and trouble and inconvenience caused.

Assessment

11. The landlord’s shared ownership lease agreement states that the landlord is responsible for maintaining, repairing, redecorating and renewing the common parts. It is also responsible for the cleaning of the common parts.
12. The landlord has not provided a specific timeframe for non-urgent repairs. The usual standard amongst social landlords is around 28 calendar days for routine repairs. However, this case involves contributing factors that should be taken into account, such as the need to allow for the end of the nesting season. The landlord needed to ensure that its actions took into account its ecological obligations as well as its responsibilities toward the resident.
13. After the resident reported the issue to the landlord on 23 April 2021, it acted reasonably by responding on the same day. It explained that it could not do anything while the birds were nesting and it would have to wait until the end of the summer when the nesting season had finished for that year to be able to look into the issue. It later updated this information on 20 July 2021, explaining that the birds would continue to nest until September/October of that year.
14. It was reasonable that the landlord would have waited to attend the property as it needed to take into consideration when the birds’ nesting season ended. However, the landlord failed to attend the property at the end of the nesting season in September/October 2021, and did not seal the entrance to the bird box. The landlord also did not proactively arrange for an expert to assess the bird boxes, with an ecologist only attending the property in January 2022. This was nine months after the resident reported the issue. Additionally, after the ecologist recommended at the beginning of January 2022 that the birdbox was now vacant and could be sealed, the landlord did not attend until 21 February 2022. The box was then once again occupied by nesting birds. This was not reasonable as the landlord had assured the resident it would attend the birdbox in September/October 2021. From the evidence provided the issue was still outstanding as of May 2023.
15. A delay is not always considered a failing. However, in line with general good customer service standards, the landlord would be expected to continue to communicate with the resident, and effectively manage their expectations. It would also be expected to have a legitimate reason for the delays in finding a permanent solution for the resident. While the landlord did assure the resident it would find a permanent solution and arranged for a cleaner to clean the bird faeces every two weeks in the interim, it failed to provide meaningful updates with the resident and thereby it did not manage the resident’s expectations. There is also no evidence to show that the landlord has permanently resolved the issue with the bird faeces. Therefore, the delays in providing a long-lasting solution to the issue with the bird faeces is a failing.
16. When failings are identified, the Ombudsman’s role is to consider whether the redress offered by the landlord has put things right and resolved the resident’s complaint satisfactorily. This is in accordance with the Ombudsman’s Dispute Resolution Principles (DRP): to be fair, put things right, and learn from outcomes.
17. According to this service’s complaint handling code (the code), the landlord is expected to use its complaint procedure to identify any mistakes, acknowledge these to the resident, explain why they occurred and to put things right. The landlord acted appropriately by acknowledging that there were delays in attending to the birdbox issue, and that it had failed to provide appropriate communication. It acted reasonably by arranging for cleaners to attend to clean the bird faeces every two weeks. It also acted appropriately by offering some compensation as a goodwill gesture and apologised to the resident for the inconvenience caused by the delays.
18. When offering a remedy, landlords should clearly set out what will happen and by when, in agreement with the resident where appropriate. Any remedy proposed must be followed through to completion. As an interim measure the landlord advised the resident it would investigate installing a canopy.
19. However, the landlord did not take action in regard to this and did not acknowledge that such action did not take place. Similarly, the landlord did not acknowledge that it missed the opportunity to seal the birdbox in 2021, nor did it acknowledge that the issue remained unresolved. As a result, the redress offered was disproportionate to the time, trouble and inconvenience caused to the resident.
20. The landlord has acknowledged some of its failings and made some attempt to put things right. However, it failed to address all of its failings and the detriment caused to the resident. From the evidence provided, it can be seen that the issue remains outstanding, as it again failed to attend the property at the end of the nesting season in 2022. The landlord’s offer of redress was not proportionate to the failings identified by our investigation. Therefore, a finding of maladministration has been found. In order to put things right the landlord should pay the resident an additional £250 compensation. This brings the total payable, including the £100 already paid, to £350. As the evidence suggests that the issue remains outstanding, the landlord has also been ordered to re-assess the situation with regards to the bird boxes and to establish a plan of action as to how this might be resolved.

Determination

21. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its handling of the resident’s reports of bird faeces at the entrance of the building.

Orders

22.  Within 4 weeks of the date of this report, the landlord is ordered to:
    1. Pay the resident an additional £250 in compensation. This made up of £100 for time and trouble and £150 for inconvenience.
    2. Re-assess the situation with regards to the bird boxes and to establish a plan of action as to how it intends to resolve the issue in an effective way, such as installing a canopy. The landlord is to discuss the plan with the resident and to agree timescales with her as to what action it intends to take and by when.
    3. Confirm to this service that it has complied with the above orders.