Peabody Trust (202120741)

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REPORT

COMPLAINT 202120741

Peabody Trust

26 September 2023

Our approach

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

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

The complaint

The complaint is about the landlord’s response to the resident’s concerns regarding the installation of fibre optic internet in the building in which he owns a property.
The Ombudsman has also considered the landlord’s complaint handling as part of the assessment.

Background and summary of events

Background

The resident is the shared owner of the property which the complaint concerns. The landlord is the freeholder.
The property is a flat situated in a purpose built building (the building). The resident purchased his share in the property in 2016. The property was a “new build” at that time.
A “wayleave” will be referred to within this report. A wayleave is a contract between the owner of a piece of land (the grantor) and a third party (the grantee) giving the grantee a right of access across the land to install or maintain poles, cables, ducts, pylons and other equipment or infrastructure.

Summary of events

On 30 November 2021 the resident wrote to the landlord to complain about the time taken to arrange installation of fibre optic internet in the building. In summary the resident said:
1. Since moving into the property the internet connection had been “poor”.
2. It was unsatisfactory that the landlord had not prioritised the installation of fibre optic internet as it was a necessary commodity. He stated that fibre optic internet should have been installed “years ago”. He noted that communication from the landlord in 2019 indicated that it was “working” on this, however no progress had been made.
3. It was unsatisfactory that the landlord had not provided residents with updates regarding progress to install fibre optic internet.
4. The poor internet in the building was impacting on his livelihood by reducing his productivity by “about 25% a day”.
On 7 and 16 December 2021 the resident chased the landlord for acknowledgement of the complaint as he had not heard from it.
On 17 December 2021 the landlord provided its stage one complaint response. In summary the landlord said:
1. It was sorry for the delay in acknowledging and responding to the complaint. It therefore awarded £15 compensation.
2. It was “working hard” to ensure that all its residents had access to “fast affordable broadband”.
3. It was exploring broadband providers who would work with it to deliver “fibre upgrades… and other gigabit capable services” it may wish to offer.
4. It was making sure that the broadband provider it did select would “understand and comply with the health and safety requirement of the building”. It confirmed that it was “currently engaging with providers” in this regard.
5. It would have a better understanding of “the delivery phase” once agreements had been entered into with broadband providers. It confirmed that it would have “limited influence” on the programme of works as this would be set by the providers taking into account their own schedules and objectives.
6. It would look to update its website to included information on the “fibre optic retrofitting programme”.
The landlord concluded by confirming that it was “not possible to say when [the building would] have [fibre optic] installed however communications [would] follow once the delivery programme [had] been confirmed”. The landlord acknowledged that this would “not be welcome news” confirming that the programme would likely last “several years, rather than months”.
On 21 December 2021 the resident requested to escalate the complaint as he did not believe that the landlord’s response was “adequate”. In summary the resident said:
1. The landlord had failed to address the following within its complaint response:
  1. “Lack of progress over the last five years” to install fibre optic internet in the building.
  2. “Lack of deadlines provided”.
2. By delaying the installation of fibre optic internet in the building, the landlord was “putting pressure on peoples’ livelihoods”. He noted that many residents had reported issues with poor internet connections. He confirmed that the current set up in the building did not allow him to achieve 10mb of internet speed.
3. It was unsatisfactory that despite the building being occupied since 2016 no progress had been made to install fibre optic internet. He repeated that in 2019 the landlord had issued communication confirming that it was working to install “upgraded internet”.
4. It was unsatisfactory that the landlord had failed to provide updates and timescales, even if provisional, regarding works to install fibre optic internet into the building.
5. He did not accept that the Covid-19 pandemic would have “deeply” delayed works to install fibre optic internet. He suggested that the pandemic should have “accelerated” the works as people required the internet.
6. Following his own enquiries he was aware that broadband providers were “ready to go” with installation of fibre optic internet in the building and it was therefore the landlord who was responsible for delays. He cited contact by one broadband provider who noted that it was “ready to install” however it was waiting for the landlord to provide it with a waiver (the wayleave) to sign in order to go ahead.
7. He did not accept that health and safety would impact the installation of fibre optic internet in the building as broadband providers had “years of experience” and therefore would comply with any regulations.
8. It was not clear why fibre optic internet was not installed as part of the construction of the building.
9. It was “unacceptable” to be told that the works to install fibre optic internet may take several years.
10. It was not clear why the landlord had “limited influence” over the programme of works to install fibre optic broadband once broadband providers had been selected.
11. He believed that private blocks on the estate, where the building was situated, had access to fibre optic internet.
12. He did not accept the landlord’s offer of £15 compensation, suggesting that £50 would be a more reasonable sum for poor complaint handling.
The resident concluded that he required “immediate action” by the landlord to progress the installation of fibre optic internet in the building. He requested that the landlord provide timescales and reassurances.
On 4 January 2022 the landlord acknowledged the complaint, confirming that in order to respond it would be meeting with the officer who was responsible for overseeing the project to install fibre optic internet in the building.
On 14 January 2022 the landlord provided its stage two, final, response. In summary the landlord said:
1. Although there was no provision within the property’s lease that it must provide fibre optic internet, this did “fall within [its] wider principles of providing a great place to live”.
2. It was the responsibility of broadband providers to install fibre optic internet and therefore it did not have “overarching control” of the roll out or which geographical areas were completed first. It was its responsibility to allow broadband providers access to the building.
3. There had been delays because of the pandemic which meant that broadband providers “had to halt the rollout” of fibre optic internet.
4. In the last two years it had had “extensive external consultation” with broadband providers.
5. Under the “code” (The Electronic Communications Code (Conditions and Restrictions) Regulations 2008) all households should have a choice of three broadband providers. It confirmed that it was in the “latter stages” of agreeing two providers and narrowing down a third, which it hoped to do within the “next few months”.
6. It was its intention that the cost of works to install fibre optic internet in the building was “cost neutral” so leaseholders should not have to pay a contribution.
7. It was looking to improve its communication regarding the installation of fibre optic internet. It noted that communication has been infrequent historically as there had not “been much to report back on”. It confirmed that it was working on updates for its website.
8. Health and safety was a “significant factor” in the process to install fibre optic internet in the building. It explained that building regulations had changed in response to the Grenfell fire which had “added a further level of risk”. It also explained that allowing broadband providers access to make changes to its estates also posed a risk. It set out that it was therefore required to make sure that the broadband providers met health and safety guidelines if something were to go wrong.
9. In order for a broadband provider to complete any work in the building they were required to sign a wayleave agreement. It confirmed that, while broadband providers had informed residents directly that they were ready to go ahead and install fibre optic internet, they had not been prepared to sign the wayleave agreement. It noted that it was “close to [agreeing] a wayleave agreement” which would become standard for all housing associations.
10. The Government initially targeted the installation of fibre optic internet to be completed by 2025, however the timeframe was “unrealistic”, including due to the pandemic.
11. As it was “not in control of the process” to install fibre optic internet it was unable to confirm a date that the work would be completed in the building. It reiterated that it had limited influence on which estates would be completed first because “priority [was] based on [the broadband providers] own strategic expansion plans”.
12. It was unable to comment on the installation of fibre optic broadband within private blocks on the estate.
The landlord concluded by confirming that it was sorry that there had been a delay in the installation of fibre optic broadband in the building, however the delay was “not necessarily down to failures” by it. The landlord also increased its offer of £15 compensation to £50 for poor complaint handling as its stage one response was not detailed and provided more questions than answers.
In an update to this Service in September 2023 the resident set out the landlord had provided no updates regarding the installation of fibre optic internet in the building since the complaint and the internet was “still just as bad”.

Assessment and findings

The landlord’s response to the resident’s concerns regarding the installation of fibre optic internet in the building in which he owns a property

The Ombudsman understands that the resident is frustrated about the time it is taking to install fibre optic internet into the building and acknowledges the related impact on him, as described within his complaint correspondence.

The Ombudsman notes that the resident sets out that he has been raising concerns with the landlord regarding the internet in the building for many years however it has not taken action to address the issue. In view of the time periods involved in this case, taking into account the availability and reliability of evidence, this assessment will focus on how the landlord responded to the resident’s complaint and sought to provide clarity on the concerns which he raised. This is because as the substantive issues become historic it is increasingly difficult for an independent body, such as an Ombudsman, to conduct an effective review of the earlier actions taken by the landlord to address the issues. This is also in accordance with the Housing Ombudsman Scheme which sets out that it may not consider complaints which were not brought to the attention of a landlord within a reasonable period, which would normally be within six months of the matter arising.
The Ombudsman has reviewed a copy of the lease agreement for the property and has not identified any provision which requires that the landlord must upgrade the infrastructure for the supply of internet in the building. While the property’s lease does not make provision for the improvement of the infrastructure for the supply of internet in the building it is clear that the landlord has made a commitment to do so. The landlord’s website sets out:
1. It understood “the importance of being connected and [it wanted] all of [its] residents to have access to faster, affordable and more reliable broadband. To do this, [it was] working on a strategic programme that [would] make sure all of [its] residents [had] access to fast, affordable broadband and the benefits that connectivity brings”.
2. It was “working with broadband providers who [could] deliver a reliable service to residents and work safely and without risk to [its] residents or the buildings. Connecting every household [would] take [it] time…”
3. It would be “writing to residents of individual properties when [it had] agreed a programme and [would] let [them] know which provider/s [would] be connecting in [their] area”.
As part of the investigation, the Ombudsman requested information from the landlord to demonstrate how it is progressing work to enable the supply of fibre optic internet into the building. The evidence demonstrates that the landlord is currently engaging with broadband providers who are able to and wish to supply fibre optic broadband in the building. This is appropriate as the landlord has made a commitment to provide faster and more reliable internet to the buildings which it owns.
Within the information it provided to the Ombudsman the landlord explained that, whileit was taking time to enter into an agreement with a broadband provider, this was out of its control. This was because there were limited providers who had “developed their network within [the building’s] area/ locality” and it has no control over where they laid and connected their networks. As the landlord is reliant on the broadband providers to progress matters as part of their own wider roll-out programmes the Ombudsman accepts that it has been limited in what it could do to progress matters. This information was shared by the landlord within its complaint responses to the resident. This was appropriate as a landlord should be able to provide adequate reason and explanation to support its service delivery.
In responding to the complaint in November 2021 the landlord explained that the timeline for the provision of fibre optic internet was undefined and was likely to take “several years”. This is also reiterated on the landlord’s website which sets out that the process would take time to complete. While the Ombudsman appreciates that undefined and indefinite timescales will have been frustrating for the resident, it was appropriate that the landlord has been open and transparent in order to manage the resident’s expectations.
The Ombudsman notes that in 2019 the Government’s manifesto commitment was to deliver nationwide gigabit broadband by 2025. This target was revised in November 2020 to a minimum of 85% of “premises” by 2025 and nationwide coverage by 2030. The Government’s paper on “Gigabit broadband in the UK” dated July 2023 confirmed that “the 2030 target [was] considered more realistic by industry stakeholders”. This therefore supports the landlord’s position that works to install fibre optic broadband was not a straightforward or rapid programme of works and will take a significant period of time to deliver.
In responding to the complaint the landlord acknowledged that its communication regarding the programme of works to install fibre optic internet had been infrequent historically. The landlord therefore committed to updating its website. This was appropriate. As set out at the start of this section the landlord’s website does contain information concerning the programme of works to install fibre optic internet into its buildings. The website also provides residents with a “make a request form” and a direct email address to its Telecommunications Team should they have questions which the website does not answer and therefore to get a response.
The landlord has confirmed to the Ombudsman that specific correspondence will be issued to the building’s residents once it has entered into an agreement with a broadband supplier for the installation of fibre optic internet. The Ombudsman has considered whether this is reasonable. While regular updates, for example on a quarterly basis, regarding a programme of works are useful to provide reassurances to residents and to manage expectations in some circumstances, it may be disproportionate to do so in other instances. In the Ombudsman’s opinion the landlord’s approach in this case was reasonable. This is because the landlord’s website clearly sets out its approach and it has provided contact details which a resident may use to obtain further information and building specific updates. Further the Ombudsman notes that the works to install fibre optic internet do not relate to a health and safety hazard/ issue which would require regular communication by a landlord in order to safeguard its residents and to provide reassurances that there is no immediate danger or risk.
The Ombudsman can see that the resident did make his own enquiries with broadband providers regarding the installation of fibre optic broadband in the building including in 2020 and 2021 which he informed the landlord of as part of the complaint. In responding to this part of the complaint the landlord explained that it had been unable to progress with any provider as while some had indicated that they could install fibre optic internet they had not been prepared to sign the necessary wayleave agreement. In the Ombudsman’s opinion the landlord’s explanation was reasonable as it is required to ensure that its rights and interests are protected, including for the benefit of its residents and the buildings/ land which it owns.
The resident suggests that fibre optic internet should have been installed during works to construct the building. While the resident’s view is noted, the Ombudsman will not be commenting on whether it was unreasonable that fibre optic internet was included as part of the construction of the building. This is because of the length of time that has passed since the building was built and the Ombudsman does not generally look at complaints which concern decisions relating to the planning or the design of a building. The Ombudsman however notes that, prior to agreeing to purchase the property, it was the resident’s responsibility to satisfy himself that he was happy with the services and amenities which would be available and would be provided.

The landlord’s complaint handling

The complaint chronology demonstrates that the landlord provided the resident with its stage one response 14 working days after the complaint was made. While this was outside of the 10 working days prescribed by the Ombudsman’s Complaint Handling Code, the Ombudsman does not consider that the delay was so significant to have adversely impacted on the resident. Further the landlord recognised its shortcoming and apologised. This was reasonable to acknowledge the impact on the resident.
The landlord’s stage two response was provided promptly and within the 20 working days prescribed by the Ombudsman’s Complaint Handling Code. This was appropriate.
In reviewing its stage one response at stage two the landlord identified that its response was inadequate as its response provided more questions than answers. It was appropriate that the landlord acknowledge its shortcoming in order to demonstrate that it understood why the resident wished to escalate the complaint and that it was seeking to provide clarity to his outstanding concerns within its stage two response.
The landlord offered a total of £50 compensation in respect of its complaint handling. In the Ombudsman’s opinion this was proportionate to the failures in service which it had identified and the impact on the resident.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration by the landlord in response to the resident’s concerns regarding the installation of fibre optic internet in the building in which he owns a property.
In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, in the Ombudsman’s opinion there was reasonable redress offered in respect of the landlord’s complaint handling.

Reasons

The landlord’s response to the resident’s concerns regarding the installation of fibre optic internet in the building in which he owns a property

The landlord has demonstrated that it is progressing work to enable the supply of fibre optic internet into the building as it is engaging with broadband providers to enter into an agreement. This is in line with its commitment to provide all its residents with fast and affordable broadband.
The landlord has provided adequate reason and explanation to detail why it has been unable to deliver fibre optic broadband in the building at an earlier time.
The landlord’s published information on its website detailing the programme of works to install fibre optic broadband to the buildings which it owns is appropriate. This is because the information clearly sets out that the programme of works will take a significant period of time to deliver, it will provide a specific update to residents when an agreement has been entered into with a broadband provider for their building in addition to providing residents with contact details which they may use to obtain further information and building specific updates.

The landlord’s complaint handling

The landlord has awarded proportionate compensation (£50) for the failures in service which it identified in relation to its complaint handling, namely the delay in providing its stage one response and its vague complaint response at stage one.

Recommendations

The landlord should pay the resident the compensation which it awarded in consideration of the complaint, within four weeks of the date of this determination if it has not already done so.
While the Ombudsman has not identified a failing in relation to the landlord’s approach in updating residents regarding the programme of works to install fibre optic internet within the buildings it owns, the Ombudsman considers that it would be beneficial for the landlord to write to the resident to provide a specific update detailing the status of its engagement with broadband providers in respect of the building. This is particularly as the resident states he has not received an update since the landlord’s final response to his complaint in January 2022. The landlord is therefore asked to provide an update to the resident within six weeks of the date of this determination.
The landlord should takes steps to satisfy itself that all residents occupying properties in buildings which are waiting for the installation of fibre optic broadband are aware of the information on its website detailing the programme of works to deliver upgraded internet. This may include considering notices in communal areas, mail shots and resident newsletters.