Peabody Trust (202201602)

REPORT

COMPLAINT 202201602

Catalyst Housing Limited

8 February 2023

Amended 24 July 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:
1. response to the resident’s reports of nesting pigeons;
2. complaint handling.

Background and summary of events

Background

The resident is a shared ownership leaseholder of a two-bedroomed house (“the property”), with an enclosed garden for sole use by the resident. The property situated next to a block of flats also owned by the landlord. There are no recorded vulnerabilities for the resident.
The lease agreement states that:
1. the resident has a responsibility to keep the property in good and substantial repair and condition
2. the resident is responsible for cleaning their windows
3. the resident is responsible for maintaining all parts of their private garden
4. the landlord shall maintain, repair, redecorate and renew ‘service media’ and communal facilities
5. service media relates to cisterns, tanks and other gas, electrical, drainage, ventilation, water apparatus and machinery.
The resident pays a service charge to the landlord, this includes elements required for the maintenance and upkeep of communal areas on the estate in which the property lies.
The landlord has a pest control policy, which sets out its approach to controlling pests for both tenants and leaseholders. Within the policy it states that the landlord will carry out pest control work in the following circumstances;
1. in a home in a block of flats where the landlord thinks the problem will spread
2. where the infestation is clearly caused by poor design or a failure to do repairs for which the landlord is responsible
3. where damage is being caused to the building and the resident is failing to address the pest infestation
4. for particularly vulnerable tenants or leaseholders. For example, someone with mental health issues, that make them incapable of understanding the problem and organising a solution to it.
The landlord’s pest control policy states that their estate services team are responsible for all aspects of pest control including;
1. procuring specialist contractors or directly carrying out pest control activities
2. commissioning reports on pest infestations
3. inspecting pest infestations
4. approving and inspecting works to control pest infestations
5. providing advice to colleagues, tenants and leaseholders if appropriate
6. deciding whether to recharge tenants or leaseholders for work undertaken to control infestations.
The landlord’s two stage complaints policy states that it will acknowledge complaints within five days and aims to resolve them within ten working days at each stage.

Summary of events

The resident raised a formal complaint with the landlord on 15 October 2021. She advised that;
1. in clearing the guttering to neighbouring flats, the landlord’s operative had left mess behind. She had asked the operative whether as a gesture of goodwill, they would also clean the gutters at her property, but the operative advised they could not as they had been contracted to work on the flats only
2. she considered that she should be compensated for having to clean her own windows, and for having carried out jet washing as a result of the neighbouring guttering works
3. she pays a service charge for other elements of the estate which she does not use, such as gardening to the communal areas, and considered that this was unfair. She considered that it would only take “seconds” for contractors to cut the hedge on her property, when they tended to the hedges outside the flats
4. she pays a tree maintenance fee for the estate, many of which had died, yet she remained responsible for the maintenance of the tree in the front garden of the property.
On 21 October 2021, the landlord acknowledged the complaint and apologised for the delay in responding. It said that she could expect to receive contact within 48 hours to discuss her complaint. The landlord’s contact records show that from November 2021 to March 2022, the resident had to chase several times for a response.
In between chasing the landlord for a response, on 4 February 2022 the resident advised she wanted to raise a further issue with regards to pigeons nesting under her solar panels. She advised that;
1. the neighbouring flats had some deterrent nets recently installed by the landlord which had stopped the pigeons from nesting there, but consequently they had migrated onto her roof
2. the pigeons were causing her a nuisance. She reported they were noisy, they were defecating on her rattan furniture, and they were leaving a bad smell which she believed were a health and safety issue
3. she considered that the neighbouring flats were getting preferential treatment in having the deterrent nets fitted, which she felt was unreasonable given the amount of service charge she was also paying.
On 3 March 2022, the landlord acknowledged her complaint and advised she could expect a response within ten working days.
On 24 March 2022, around 112 working days after the resident’s initial complaint, the landlord provided its stage one response. It apologised for the delay in responding to the resident. The landlord advised that it had sent pest contractors to her home to review the situation with the pigeons. The landlord’s contractor had confirmed that there was pigeon activity on the property’s roof, and this was likely caused by the landlord recently installing nets on the neighbouring flats. It said the pigeons had essentially needed to find an alternative home and so they were nesting on her roof as her solar panels did not have deterrent nets. The contractor advised that the solution was for her solar panels to be cleaned and a mesh ‘shirt’ fitted to prevent roosting. The landlord advised that these works were not service chargeable and that it was the resident’s responsibility to resolve herself by hiring a private contractor.
The resident responded two days later confirming that she was unhappy with the response and wanted an escalation of the complaint to stage two of the complaints procedure. She said that the pigeons were not an issue prior to the landlord doing works to the neighbouring flats, therefore she felt it was the landlord who had caused this problem and it should contribute to the unexpected cost she would have to incur. She said that the pigeons were causing an ongoing disturbance. They were noisy, clogging her guttering and she felt unable to use her garden. She again referenced that she felt it unfair that the neighbouring flats had deterrent nets fitted as she pays a service charge, the same as they do.
The resident approached the Ombudsman on 25 April 2022 and said she was getting no response to her request for escalation. The Ombudsman prompted the landlord for a stage two response to the resident.
On 25 May 2022, the landlord issued the resident with its stage two response. It advised that as the resident was a leaseholder, she was responsible for the improvements to the solar panels at the property. The landlord advised it could not be held responsible for where the pigeons had migrated to, even if they had migrated as a result of works to other properties owned by the landlord.
As a goodwill gesture, the landlord offered the resident £250, in recognition of the inconvenience caused to her by its delays in responding to her complaint. It later increased the goodwill payment to £300, after the resident challenged the landlord that the original figure was £50 lower than the compensation which had been offered to her neighbour for the same issues.
The resident has informed the Ombudsman that she felt that the landlord was showing preference to the neighbouring flats, completing works to the solar panels on their building and not to her property. She felt that the goodwill payment was not reflective of the cost of the works she would now have to undertake to pigeon proof her own property.

Assessment and findings

Scope of investigation

In bringing her complaint the resident advised that she feels aggrieved that she contributes towards a service charge for the wider estate, some parts of which she does not use. The Ombudsman is unable to establish whether variable service charges are reasonable or payable. The First Tier Tribunal (Property Chamber) can reach conclusions on these matters.

Response to the resident’s reports of nesting pigeons

Neither parties have disputed that works pertaining to the roof generally, are the resident’s responsibility, but it is appreciated that the pigeon issue is causing the resident significant nuisance. The resident’s position is that she feels she has incurred costs as a result of the landlord carrying out proofing to the neighbouring solar panels, which displaced pigeons onto her roof. Indeed the contractor’s report suggests that the pigeons may have migrated following the landlord’s works. However, no information has been seen to show the landlord was obliged to cover the resident’s costs as a result. The landlord’s position was justified in that it could not be reasonably held accountable for where the pigeons would migrate to, therefore there was no maladministration in its decision not to reimburse any costs caused by the presence of pigeons at the property.
The landlord has different repair and maintenance responsibilities for its properties depending upon type and tenure. Communal areas, and blocks of flats are covered under its pest control policy, however individual houses are not, unless extenuating circumstances such as vulnerabilities apply. Under the terms of her lease agreement, the resident is responsible for the repair and maintenance of the property. It was therefore reasonable that the landlord concluded that the resident was responsible for undertaking works to the solar panels to deter more birds from roosting on the roof.
The landlord has provided the resident with advice following its pest contractor visit, that the solar panels need cleaning and a mesh shirt fitted to stop the problem. Seeking advice from a specialist contractor and sharing these findings with the resident was the right response from the landlord, who was acting in accordance with its pest control policy. There was therefore no maladministration on behalf of the landlord in their response to the resident’s reports of nesting pigeons.

Complaint handling

There was a significant delay between the resident first reporting her complaint on 15 October 2021, and receiving her stage one response on 24 March 2022. This was approximately five months out of the expected ten day timescale for a resolution. The landlord’s records show the resident also chased at least four times between this timeframe for a response. It is reasonable to conclude that this level of chasing up a response was both unnecessary and inconvenient for the resident.
The landlord apologised for the delay within its stage one response, but this was insufficient redress given the significant time that had passed whilst the resident had to chase on multiple occasions. Further, when the resident requested an escalation to stage two, she experienced continued delays which demonstrated that the landlord had not taken learning from its first response to ensure delays did not occur again.
In contacting the Ombudsman, the resident advised that she was struggling to get a response from her landlord and this Service had to intervene, prompting the landlord for a response. A stage two letter was sent on 25 May 2022, approximately 32 working days later than required under its complaints policy.
In its complaints response, the landlord correctly advised the resident that the repair responsibility remained with her as shared owner of the property, and confirmed again what works were required to her solar panels to stop the pigeon problem, including advice of the pest contractor. This summary of the landlord’s stance on the complaint demonstrates clearly the decision made regarding this complaint point and the reasons why, which is in line with the Housing Ombudsman’s Complaint Handling Code.
However the landlord did not respond to the resident a timely manner, causing her inconvenience, time and trouble in having to chase for a response on multiple occasions. This was evident in both stages of the complaint’s response. This was a service failure by the landlord as the delay in handling the resident’s complaint was at odds with the Complaint Handling Code and its own complaints policy, both which state that a stage one response should be provided within ten working days.
Further, the landlord failed to respond to all the resident’s complaint points. Given the significant delay in responding to the resident’s complaint, it would be reasonably expected that the landlord would have completed a thorough investigation and respond appropriately, even if it only provided clarification around specific issues raised, its failure to do so undermined its delayed attempts at drawing a line under this complaint and this is service failure. As such, it’s offer of £300 is not appropriate it as parts of the resident’s complaint have yet to be responded to.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in respect of the landlord’s handing of reports of pigeons nesting on the roof.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in its response to how the resident’s complaint was handled.

Reasons

Response to the resident’s reports of nesting pigeons

The resident is responsible for repair and maintenance of the property. Whilst they caused a resident a nuisance, the pigeons migrating from the landlord’s block of flats onto her property was not something the landlord could have reasonably foreseen or prevented from happening. The landlord has acted in line with its pest control policy.

Complaint handling

There was a service failure in the handling of the resident’s complaint as she experienced significant delays in receiving a response and the landlord failed to respond to all the concerns raised.

Orders

The landlord to pay the resident a total of £400 in recognition of its failure to investigate all complaint points. This is inclusive of the £300 offered in the landlord’s stage two response. This amount can be deducted from this payment, if already paid.