Royal Borough of Kensington and Chelsea (202105213)

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REPORT

COMPLAINT 202105213

Royal Borough of Kensington and Chelsea

4 February 2022


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 fly-tipping and personal items left in the communal areas.

Background

  1. The resident is a leaseholder of a ground floor flat. The landlord is the freeholder and also a local authority.
  2. The resident has stated that issues of fly tipping and excessive items left outside of other local residents’ homes and in communal areas had been ongoing for over a year. She raised a complaint regarding the ongoing ‘dumping’ of items in January 2021 and the landlord’s lack of action. She wanted the landlord to be proactive and contact residents regarding the ongoing issues with items being left in the communal areas and the risk they posed. The items included bikes, shopping trolleys, mattresses, white goods, furniture and toys outside of individual properties which she felt posed a health and safety risk.
  3. In response to the resident’s complaint on 5 February 2021, the landlord upheld the resident’s complaint and acknowledged that some residents continued to leave items in the communal areas despite its previous letter in November 2020 regarding fly-tipping and personal items. It confirmed that it would write to all residents and serve a Section 41 Notice which stated that items would be disposed of if they were left in the area. It also said it would review its CCTV footage to identify residents who had been fly tipping and consider tenancy enforcement action.
  4. The landlord issued the Section 41 Notice on 5 February 2021 and followed up by removing items from the communal area on 16 April 2021. It also reviewed its CCTV footage and issued three tenancy warnings. The resident remained dissatisfied with the landlord’s actions and escalated her complaint as personal items remained in the communal areas and the issues of fly-tipping continued. Following this it wrote to individual neighbours asking for items to be removed and installed signage to remind residents of their responsibilities. She continued to report various items being ‘dumped’ in the area to the landlord on a regular basis.
  5. In its final response on 14 May 2021, the landlord confirmed that it continued to monitor the situation and the clearing of the area would be a work in progress. It stated that it would allow residents to place furniture suitable for a single family, however if items approached a level it deemed unreasonable then it would take further action. It involved its fire safety team to determine whether items left posed a health and safety risk and noted that some items still needed to be removed. The landlord continued to carry out inspections of the communal area and, in July 2021, it introduced a new Communal Areas and Balcony Storage policy to provide clear standards to support effective management of common areas of its buildings. It also said it would carry out an audit of the sheds on the estate to see whether these could be made available for residents
  6. The resident referred her complaint to this Service as she remained dissatisfied with the lack of progress made by the landlord in relation to fly-tipping on the estate. She added that there had been issues with mice on the estate and a lack of cleaning around the rubbish chutes in the building.  

Assessment and findings

Scope of investigation

  1. As part of her communication with the landlord and this Service, the resident raised concerns about the landlord’s handling of reported pests on the estate. As this is a separate issue to the complaint raised with the Service, this is not something that this Service can adjudicate on at this stage, as the landlord needs to be provided with the opportunity to investigate and respond to this aspect. The resident will need to contact the landlord and, if appropriate, raise a separate complaint to get this matter resolved.

Fly-tipping and items in the communal areas

  1. The landlord would be responsible for repairs and maintenance of the communal areas of the buildings in line with the lease agreement. It would also be responsible for ensuring that the communal areas meet fire safety standards and arranging for items that increase the risk to the area to be removed. In cases such as fly-tipping and personal items being left in the communal areas, there are limited immediate steps a landlord can take. The landlord does not have any control over the actions of other residents of the estate and would only be able to act against perpetrators of fly tipping once an issue had been reported and the individual had been identified. The landlord would not be authorised to remove items belonging to individuals from the estate without giving them adequate notice of its intent to remove the items in line with its legal obligations. It would also need to manage the expectations of other residents who may have had items in place for some time prior to its communication.
  2. It is evident that the resident had spent significant time reporting her concerns to the landlord. The landlord acknowledged that its communication with the resident prior to the complaint being raised had been poor, for which it apologised. The evidence shows that the landlord maintained regular communication with the resident following her complaint and has demonstrated that it took adequate steps to investigate her concerns in a timely manner from January 2021 onwards. It noted that its previous communication regarding items in communal areas sent to all residents in November 2020 had not been successful and agreed that a more formal approach was needed. The landlord has a responsibility to treat all its occupiers fairly. In this instance, it had acted reasonably in trying to engage with the other occupiers first, to give them the chance to remove their belongings.
  3. Following this, the landlord acted appropriately by serving a Section 41 notice to all residents, notifying them of its intent to remove certain personal items in the communal areas if these were not moved inside by 22 March 2021. It is noted that the resident remained dissatisfied with the actions taken by the landlord on 16 April 2021 where some, but not all, items were removed from the estate and felt that its actions were not in line with the expectations it previously set for all residents. It would have been helpful for the landlord to have clearly explained the actions it was due to carry out on the visit on 16 April 2021 in order to manage her expectations effectively. However, the resident was not significantly disadvantaged by this as the landlord then took adequate steps to contact individual occupants where the remaining items posed a health and safety risk.
  4. It is understandable that the resident had concerns about the safety of items being left as well as concerns about the overall appearance of the area. The landlord provided a satisfactory explanation in that clearing the estate would be a work in progress and it would need to manage both the health and safety of the estate and the wellbeing of its residents. It said that it would allow certain items such as a single furniture set suitable for one family where these did not pose a health and safety risk, and wheelchairs and mobility scooters until it could complete an audit of the available sheds on the estate which was not unreasonable. It confirmed that if the items posed a health and safety risk they would be removed and acted appropriately by involving its fire safety team to ensure that the risk to the area was not increased by the presence of such items.
  5. It is acknowledged that the resident continued to report instances of fly-tipping and her concerns about personal items directly to the landlord on multiple occasions during the course of the complaint. The evidence confirms that there was continuous action by the landlord following each report which demonstrated its willingness to resolve the issues. Alongside the physical clearing of the estate, the landlord also took reasonable steps to monitor its CCTV footage to identify perpetrators of fly-tipping and issue warning letters to individual tenants. As the landlord is the freeholder of the estate, it would be its decision about what items would be allowed in communal areas as long as these complied with its health and safety obligations. As such, it was reasonable for it to take a managed approach. 
  6. The landlord has demonstrated that it had learnt from the resident’s complaint and took ownership of the issues reported by introducing a new Communal Areas and Balcony Storage policy in July 2021 to provide clear standards to support effective management of common areas of its buildings moving forward. The policy confirms that the landlord would take a managed approach toward communal areas and would limit the number of allowable items to control fire hazards, reduce the likelihood of fire spread and keep exits, corridors and stairways clear for escape purposes. It also confirmed that if the ‘managed approach’ was not adhered to it would consider implementing a zero-tolerance policy where no items would be permitted in the communal areas. This was published within a relatively short timescale following the resident’s complaint and shows the landlord’s commitment to resolving the issues the resident had reported.
  7. In summary, the landlord has shown a willingness to resolve the issues and acted in a fair and reasonable manner in its handling of the resident’s reports of items being left in the communal areas. The initial apology offered by the landlord for its poor communication and the lack of progress made along with the continued actions taken following the complaint were reasonable and resolve the complaint satisfactorily. 

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its handling of the resident’s reports of fly-tipping and personal items left in the communal areas.

Recommendations

  1. It is recommended that the landlord contacts the resident regarding her concerns related to pests on the estate and confirms its position to her.
  2. It is recommended that the landlord continues to monitor the estate in relation to personal items and fly-tipping in the communal areas, and in adherence with its Communal Areas and Balcony Storage policy, as the resident has advised that the issues are ongoing.