Waverley Borough Council (202217773)

REPORT

COMPLAINT 202217773

Waverley Borough Council

29 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 decision to use part of a communal car park as a storage and welfare area for its contractor.

Background

At the time of the complaint, the resident held an introductory tenancy, which began on 15 August 2022. The resident now holds a secure tenancy, with the landlord, which is a local authority.
On 1 September 2022, the landlord wrote to a number of residents and confirmed that due to ongoing maintenance within the area, it was necessary to provide a secure site set up and storage facility for the contractor (also referred to as a compound). It informed residents that it had identified a small area, at the rear of the car park, as a suitable location and that it would be in place for approximately 18 months. It also provided a direct telephone number for residents to call if there were any concerns.
On 4 October 2022, the resident called the landlord and said that he was unhappy that the contractor’s cabins had been placed in the car park. The landlord’s records show that the call was terminated due to the resident’s conduct, however it did pass on his concerns to the planned works manager.
On 11 October 2022, the resident contacted the landlord and raised a formal complaint. The resident said that the communal car park had turned into a ‘builder’s yard’, there was no where for residents to park and that he felt intimidated.
On 18 October 2022, the landlord arranged to visit the communal car park with the contractor to carry out a visual inspection. This was completed on 19 October 2022.
On 20 October 2022, the landlord provided its stage 1 response and said that:
1. After concerns were raised, the size of the site was scaled back as a result of the resident’s complaint. It would also change the toilet facilities to porta-loos, move the skip and push the fence back to further reduce the size of the site.
2. The contractor had been asked not to park personal vehicles within the carpark.
3. The site was required so that the landlord could carry out programmed works, but its purpose was as a welfare and storage site, and not a building site. And there should be no noise or deliveries before 8am and after 6pm.
On 24 October 2022, the resident escalated his complaint as he remained dissatisfied with the landlord’s response. The resident said that little had been done to reduce the size of the site, and that the landlord’s decision to reduce the size of the communal car park was a breach of his tenancy agreement. The resident also said that the contractor was discarding cigarette butts where children play, and he wanted to know what action plans were in place if the emergency services required access.
On 8 November 2022, the landlord wrote to the resident with its stage 2 response and said that:
1. It had not breached the resident’s tenancy, as there are no allocated parking spaces.
1. As a result of the resident’s concerns, the compound was reduced in size, which freed up an additional 2 car parking spaces.
2. A smoking bin had been installed for any discarded cigarette ends.
3. The contractor confirmed that there was fire safety equipment together with fire plans, which were included in its health and safety pack.
4. The site should be removed within the next 12 months.
On 23 November 2022, the resident contacted the Ombudsman as he remained dissatisfied with the landlord’s final response. The resident said that the compound is only five meters away from his back door and is very noisy and disruptive. He also says that the landlord breached his tenancy, as it failed to consult with residents about the change.

Assessment

Scope of investigation

This Service is aware that the resident contacted the landlord in January 2023 to report issues with ongoing noise from the contractors and the location of the porta loos. The landlord carried out a site visit and responded to the resident accordingly on 8 February 2023.
The resident informed the Ombudsman in September 2023 that throughout the summer he had experienced issues with the contractors accessing the site from 6am and again up until 7pm in the evening, 7 days a week. He also said that as the porta-loos are not emptied on a regular basis, it had caused an overwhelming smell and that the discarded cigarette butts were still an issue.
The above issues have not exhausted the landlord’s complaint procedure and so cannot be investigated by this Service. As such, this investigation focuses on the resident’s dissatisfaction in October 2022, the landlord’s final response in November 2022 and whether the landlord has delivered what it said it would, as a way of resolving the resident’s complaint.
If the resident completes the landlord’s complaint process on these matters and remains dissatisfied once he has received the final response, he could refer the matters as a new complaint to the Ombudsman.

The Ombudsman’s approach.

The Ombudsman’s role is to determine complaints by reference to what is fair in all the circumstances and decide if the landlord is responsible for maladministration or service failure.
When investigating a complaint, the Ombudsman applies its dispute resolution principles. These are high level high-level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution:
1. Be fair – treat people fairly and follow fair processes
1. Put things right, and
2. Learn from outcomes.
The car park area in which the contractor’s compound has been situated, is communal, which residents can use on a first come first serve basis. Residents do not have allocated spaces and the resident’s tenancy agreement does not make any specific reference to the communal car parking.
The resident’s tenancy agreement states that the landlord will consult with residents:
1. If it plans to change the way in which it manages the resident’s home.
1. About important changes in managing the property that are likely to affect the resident.
2. If it changes the conditions of the tenancy.
The landlord has confirmed to this Service that it does not have a specific policy relating specifically to the subject matter of the resident’s complaint; however, the purpose of the investigation is to assess the evidence received and see whether the landlord acted reasonably to the resident’s complaint.
On 1 September 2022, the landlord took reasonable steps to inform the local residents about its decision to use part of the communal car park as a welfare/storage site for its contractors. The letter detailed the reasons why and appropriately provided a direct telephone number for residents to contact, should they have any concerns.
On 11 October 2022, when the resident reported his concerns to the landlord about its decision, it was obliged to carry out an investigation and communicate the outcome as part of its formal complaint response. Information provided shows that the landlord arranged for the contractor to meet on site and observe the impact the resident had reported.
Following the site visit, the landlord determined that although no further concerns had been raised, it would arrange for the size of the compound to be scaled down and for the contractor to ensure that personal vehicles belonging to its staff were not being parked within the communal carpark. This was communicated to the resident as part of the stage 1 response. These were reasonable actions for the landlord to take and show that it was listening to the resident’s concerns and, furthermore, was taking proportionate action to ‘try to put things right’.
When the resident escalated his complaint, he raised further concerns about the way in which the contractor was using the site, which included the inappropriate discarding of cigarette butts. The resident also said that the landlord had breached his tenancy agreement as it did not consult with him about the change.
In order to try and resolve the resident’s complaint, the landlord installed a smoking bin for discarded cigarette butts and confirmed that it had reduced the size of the compound to free up more space. The landlord also explained that it had not breached the resident’s tenancy agreement as there was no allocated parking in his tenancy.
This response was fair and reasonable in the circumstances. The landlord’s actions show that it was listening to the resident and trying to ease the impact that the site was having on him. The landlord’s decision to use part of the carpark did not affect the way in which the landlord managed the resident’s home, nor did it change the conditions of the tenancy, it did not have an obligation to consult with the resident. Furthermore, the tenancy agreement does not include the carpark, and the change in use of the land was not permanent.
It is clear that the resident has been impacted by the landlord’s decision to utilise part of the communal car park for its contractors, but the evidence provided to the Ombudsman show that the landlord considered the impact of its decision and acted reasonably in response to the resident’s complaint.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s decision to use part of a communal car park as a storage and welfare area for its contractor.

Recommendations

It is recommended that the landlord work with the resident in order to identify if the contractor uses the compound at unsocial hours to enable the landlord to address this accordingly with the contractor.
It is also recommended that the landlord provide the residents with an update as to when it estimates the compound will be removed.
It is further recommended that the landlord assist the resident in seeking a resolution to the new issues and support the resident to access the complaints process if he remains unhappy with the landlord’s final resolution.