Sandwell Metropolitan Borough Council (202211526)

REPORT

COMPLAINT 202211526

Sandwell Metropolitan Borough Council

9 February 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 regarding the landlord’s handling of the resident’s:
   1. Concerns about a change to its tenancy conditions, specifically related to age of tenants and visitor restrictions.
   2. Concerns about anti-social behaviour.

Background

2. The resident is a tenant of the landlord, a local authority. She lives in a flat within a medium rise block of flats. It is understood that the resident’s block is currently subject to a local lettings policy which gives letting preference to tenants aged 55 and above, although the landlord has said that it sometimes advertised properties without this age restriction for reasons considered later in the report.
3. Between March and June 2022, the resident contacted the landlord due to concerns that young men had been witnessed entering her block with a dog. She believed the young men in question were occupants of a neighbouring property although the proximity of the neighbour’s property to the resident’s was unclear from the evidence seen by this investigation. The resident stated that whilst the alleged occupants did not cause a nuisance, the dog did due to barking. She said that “the last (she) heard the (letting) age (for properties in the block) had been changed to 50 and over and no dogs” and asked the landlord to confirm if this had changed, and if so, why residents had not been informed.
4. During this time, the landlord replied that the age restrictions for the block had not been changed and that it still advertised letting for properties in the block as no dogs. It advised the resident it would investigate the issues she had reported with the neighbour’s property. During this time the resident also reported noise nuisance and parking issues caused by the alleged occupants of the neighbouring property.
5. The landlord registered the matter as a formal complaint in June 2022, noting that the resident believed it was unfair to let the neighbouring property to a family as it was within an age restricted block and that the occupants had been a nuisance “since day one”. However, the resident clarified that “it is the tenancy agreement that is the issue, and this is a complaint about [the landlord], not the (neighbouring) tenant.” The resident believed she signed the tenancy agreement for her property under false pretences, as she said she was told by the landlord at the time of sign-up that she was not allowed visitors or people living with her who were below the letting age.
6. The landlord issued its final complaint response on 4 August 2022. It stated that when the block had been originally warden controlled, it was intended to house residents over the age of 55, but parts of the tenancy conditions were relaxed when funding for the warden scheme was removed twenty years ago. It advised it had sent thirty-day notice letters to all residents and followed this up with a letter confirming the changes. It said that current tenancy conditions confirmed that its tenants can have visitors to their home who may stay overnight, but that they should not cause nuisance or disturbance to other tenants. The landlord explained that its age–restriction rules had recently been reviewed, as some age–restricted flats were difficult to let and it was unable to justify having long-term vacant flats, due to the current housing shortage and the increased demand for housing in the area. As a result, it said it had no option but to consider lowering the age limit of residents in some blocks when allocating its properties.
7. The resident referred her complaint to this Service as she was unhappy with the landlord’s response. She outlined that the outstanding issues were:
   1. She had believed for some years that she was not allowed overnight guests and disputed that she was ever told about changes to rules/restrictions at the block.
   2. She was concerned about how the changes will affect all the residents within the block. She also says the properties are not built for families.
   3. She said the landlord was still advertising properties in her block as age restricted.
   4. She stated there had been noise and parking issues as a result of the letting of the neighbour’s property to younger people.
   5. The landlord dealt with a neighbour’s complaint more quickly than hers. She believed this was because the neighbour must be a friend or relative of a council employee, which she believed was evidence of a conflict of interest.
8. To resolve the complaint the resident wanted the landlord to enforce age–restriction rules relating to the age of occupants and any overnight guests.

Assessment and findings

Scope of investigation

9. It should be noted that this Service is not a regulatory body, and it is not within the Ombudsman’s remit to investigate how the landlord advertises and lets its properties. The specific arrangements of the neighbour’s tenancy agreement and occupancy arrangements regarding a neighbouring property are beyond the scope of this investigation and the landlord would not be obliged to disclose these for data protection reasons. What this Service can consider is whether the landlord reasonably responded to the concerns the resident raised, and how any issues identified may have impacted upon the resident’s own tenancy agreement or occupancy of her property.
10. In correspondence with this Service the resident stated she believed that the landlord dealt with a neighbour’s unconnected complaint quicker than hers, which she considered was due to the neighbour being a relative or friend of a landlord employee. However, there is no evidence that the resident raised this concern with the landlord during the complaints process. In accordance with paragraph 42(a) of the Housing Ombudsman Scheme, the Ombudsman may not consider complaints which, in the Ombudsman’s opinion “are made prior to having exhausted a member’s complaints procedure.” A landlord needs to be given the opportunity to respond to any elements of a complaint so if this matter is still of concern, the resident may wish to raise a new complaint with the landlord.
11. As a resolution to the complaint, the resident stated she wanted the landlord to enforce age–restriction rules in the block, regarding the age of occupants and overnight guests. However, as this would involve the landlord potentially disregarding other tenant’s occupancy agreements, this will not be considered in this investigation as, in accordance with paragraph 42(p) of the Housing Ombudsman Scheme, it is not an outcome which is within the Ombudsman’s authority to provide.

The landlord’s handling of the resident’s concerns about a change to its tenancy conditions

12. As part of this investigation, the landlord was asked twice to provide evidence relevant to the resident’s complaint. Not all information was received, which included the resident’s original terms of her tenancy agreement from 2008. The landlord has provided a partial tenancy agreement from 2008 along with details of tenancy conditions from 2009, which it has said are the updated terms. However, the omissions indicate poor record keeping by the landlord in that it was not able to provide the relevant information when asked. It was noteworthy that in its final response to the resident in 2022, the landlord stated the warden–control service at her block had ended approximately twenty years ago. It later advised this service that warden control was gradually phased out between 2011 and 2012. This is generally more in accord with the resident’s account, who advised this Service that the warden-control service ended in 2013. Whilst this error has not had an impact on the outcome of the complaint, it is further indication of the landlord’s poor record keeping. In this case, the investigation has been able to reach a determination based on the information available, although a recommendation for the landlord has been made in light of this.
13. It is reasonable to assess that the 2009 tenancy conditions are the resident’s current terms, given that the landlord signposted the resident to these terms in its complaint response, and the resident has not contended that a different version exists. It is noted that the 2009 tenancy terms and conditions do not make reference to any restrictions in relation to the age of occupants or visitors. As such, without the original agreement and any evidence of a change to the terms, this Service cannot determine if the landlord was required to advise the resident of any change in the agreement in this respect. It should be noted that the resident has not complained to this Service about any specific written conditions of her tenancy agreement. Her dispute lies with what she said she was told were conditions of her tenancy, verbally, by a member of the landlord’s staff during the tenancy sign-up period. She stated she was advised that no children, or people under the age of sixty were allowed to stay overnight or live at the property. The resident stated she is unhappy this rule is no longer enforced, as this increases the presence of young people in the block and the likelihood that antisocial behaviour (ASB) will occur as a result.
14. In conducting its investigations, the Ombudsman relies on contemporaneous documentary evidence to ascertain what events took place. It is appreciated that the resident may have been given verbal information from the landlord’s staff prior to signing her tenancy agreement and the Ombudsman is not querying her version of events. However, without third party corroboration of any conversation between the resident and landlord, and without records of what was discussed at that time have been seen in the evidence, it is not possible for this Service to determine what was, or was not said to the resident. Unless there is evidence of what the resident was advised in writing, anything that she was told outside of the written tenancy agreement terms would be impossible to prove or substantiate.
15. The landlord advised the resident that the age requirement for lettings in the block was a guideline, rather than a tenancy condition. As nothing was seen in the evidence that the resident’s tenancy agreement contained conditions that related to the age of occupants, this appears to be a reasonable explanation. The landlord further advised that it currently designated particular blocks, including the resident’s, as local lettings schemes which included the allocation of properties to residents over 55 or 60. It explained that whilst it tried to maintain this profile, it sometimes let properties to people who may be slightly younger if there is a significant need, or if the property is hard to let. This was a reasonable explanation given that social landlords have limited resources and it would be reasonable for a landlord to utilise its empty–housing stock in light of an increased demand for social housing.
16. The resident believes that her neighbour has permanent occupants living with her below the guideline letting age. In response, the landlord said that it had not let the property to a family. It said that having made several visits to the block, it “had no reason to suspect that [the] neighbour is not complying with her tenancy conditions. There is no evidence that anyone else is living at this address, although relatives and friends may visit frequently and stay if they wish”. This was a reasonable response as the landlord found no tenancy breaches when visiting and it managed the resident’s expectations by clearly communicating its position.
17. A particular concern of the resident’s is that she believed the presence of ‘young’ people in the block increased the risk of ASB occurring on the premises, particularly as she experienced historical incidents of ASB from 2017 onwards from visitors to various neighbouring properties. Whilst it is appreciated that past experiences of ASB may have been distressing for the resident, the landlord appropriately advised in its final response that it would investigate any reports of ASB accordingly, in line with its obligation to do so. However, the landlord said that it could not act in relation to ASB based on speculation. This was a reasonable explanation as landlords cannot take any formal action in relation to ASB without supporting evidence that it is occurring. Without such evidence, it would not be able to show that any enforcement actions would be proportionate.
18. In her complaint to this Service, the resident stated there had been noise issues as a result of the “younger people” she alleged were residing at her neighbour’s property. However, the evidence shows that her reports of nuisance were intermittent and while the landlord appropriately provided the resident with diary sheets to document any noise incidents, it is noted that she did not appear to use these and clarified with the landlord that she did not wish for it to pursue an “antisocial complaint”. She later advised this Service that she left this to another resident to undertake. Without corroborative evidence, a landlord is unable to assess the duration, frequency and impact of the noise. As such, the landlord was limited in what further actions it could take following the resident’s reports.
19. Within its response, it was appropriate that the landlord identified that mediation between the resident and the neighbour could be beneficial and it acted reasonably when reiterating that it was an option the resident could consider. It was also positive that the landlord agreed to carry out an inspection of the communal doors within the block, as it acknowledged they could be “noisy”.
20. In response to the resident’s concerns regarding parking, the landlord said that “if cars are roadworthy and legally parked, it has no power to prevent anyone parking in the car park”. This appears to be a reasonable response, as it was not seen in the evidence that provision of a parking bay is a requirement on the landlord under the terms of the tenancy agreement. In general, as long as a vehicle is taxed and is not in violation of traffic laws, vehicle owners are able to park where it is legal to do so, unless the parking space in question is subject to a parking permit. The landlord’s parking policy does not stipulate it has an obligation to ensure that each resident is granted access to parking, or parking for visitors. As the resident did not report she was unable to park herself, the landlord was limited in what actions it could take in that regard and it is not clear from the evidence what detriment, if any, there was to the resident.
21. It is clear that this situation has been frustrating for the resident. Nonetheless, this Service has not seen any evidence which suggests that the landlord acted unreasonably in its response to the concerns she raised. The landlord utilised its complaints process to clarify rules relating to visitors and to explain its approach to allocating its properties in relation to the age of occupants. Its explanations were reasonable in the circumstances. It subsequently took the further proactive step of writing to all residents in August 2022 to clarify the current guidelines.

Determination

22. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord regarding its handling of the resident’s:
    1. Concerns about a change to its tenancy conditions, specifically related to age of tenants and visitor restrictions.
    2. Concerns about anti-social behaviour.

Recommendations

23. It is recommended that the landlord reviews its record keeping system to ensure that all relevant information in relation to a resident’s tenancy is retained so that it can be provided upon request to relevant parties such as residents or this Service, in response to a complaint or service request.