West Kent Housing Association (202320441)

REPORT

COMPLAINT 202320441

West Kent Housing Association

27 March 2025

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 concerns about pigeon spikes.
2. Response to the resident’s concerns about the carpark gate.
3. Complaint handling.

Background

The resident is a leaseholder at the property, which is a third floor flat. The building is owned by a freeholder, which is a private company. The landlord leases the building from the freeholder under the terms of a head lease.
The legal agreement between the landlord and freeholder is set out in the head lease. The legal agreement between the landlord and the resident is set out in the lease.
Between September 2021 and February 2022 the resident told the landlord that pigeon spikes needed replacing. He felt that pigeon mess at the property was a health and safety issue. The landlord advised it could not replace the spikes as the freeholder owned the building. It contacted the freeholder about the issue.
There was a gap in correspondence until April 2023 when the resident reported that the spikes had not been replaced. He asked the landlord to raise a complaint about it not fixing the pigeon spikes and a broken car park gate.
As it did not own the spikes or the gate, the landlord consulted its solicitor. It responded at stage 1 on 17 July 2023. In line with its solicitor’s advice it said that as the freeholder was responsible for both repairs issues, it could not consider the complaint.
The resident escalated his complaint on 20 July 2023. He said that he did not have a contractual relationship with the freeholder and the landlord should address the issues.
The landlord responded at stage 2 on 17 August 2023 and summarised the action it had taken in referring the matters to the freeholder. It acknowledged that it had not handled the complaint correctly at stage 1. It should have addressed the resident’s concerns about its lack of action in chasing the repairs. It offered £50 compensation.
The resident referred his complaint to us on 15 September 2023. He said:
1. The car park was “infested” with pigeons and droppings. This was a “severe health risk”.
2. There was “illegal” parking, which obstructed his assigned parking space.
3. People used the car park for sleeping, drinking and urinating.
4. The landlord should install anti-pigeon devices and repair the electric gate. It should pay compensation for the inconvenience and distress caused by the “negligence and delay” in addressing the issues.

Assessment and findings

Scope of investigation

The resident first raised the issue of the pigeon spikes in September 2021. He did not make a complaint about this issue until June 2023. We encourage residents to raise complaints with their landlords at the time the events happened. This is because with the passage of time, evidence may be unavailable and staff involved may have left, which makes it difficult for a thorough investigation to be carried out and an informed decision to be made.
Taking this into account and the availability and reliability of evidence, this assessment has focussed on the period from 24 April 2023 onwards. Before this there had been a gap in correspondence since February 2022, a period of over a year. Reference to events that occurred prior to 24 April 2023 are made in this report to provide context.
As part of the resident’s complaint he said he was unhappy with the freeholders decision to not install pigeon spikes until it did works to the roof. We are unable to consider complaints which concern matters which do not relate to the actions or omissions of the freeholder as they are not a member of tour Scheme. As such, we cannot consider the reasonableness of its decision.

Pigeon spikes

The resident told the landlord that pigeon spikes were missing on 16 September 2021. The landlord made enquiries about this and told the resident that it was waiting for an update from the freeholder. The resident chased the matter with the landlord between October 2021 and January 2022.
On 14 January 2022 the landlord confirmed that it could not install pigeon spikes, as it did not own the building. It gave the resident contact details for the freeholder. The resident queried this and said that the landlord was responsible.
The landlord reiterated on 16 February 2022 that the spikes were the freeholder’s responsibility. It had asked the freeholder to replace them and had provided it with a photograph of the area. It said that the freeholder was addressing an unrelated issue with the roof, which would likely take priority.
The resident chased the matter on 25 February 2022. He was concerned that it was becoming a health and safety risk. The landlord responded that same day and said it would chase the freeholder. It advised that the resident could raise the issue with Environmental Health, who may be able to serve notice on the freeholder.
There was a gap in correspondence for over a year until 24 April 2023. By this point the landlord had anew tenancy officer in post. The resident said that the pigeon spikes had not been installed.
On 3 May 2023 the landlord said it was not aware of the location of the missing spikes. It said it would arrange for a photo to be taken and raise this with the freeholder. The evidence shows the landlord had not recorded information to enable the new staff member to know about the previous reports or the previous photograph it had.
The landlord told the resident on 12 June 2023 that it had raised a request with the freeholder about the pigeon spikes. However, it had not realised that it had previously done so in 2022.
On 30 June 2023 the resident chased the matter. The landlord advised the resident that the freeholder would fix the pigeon spikes at the same time as carrying out roof repairs. This was because scaffolding was needed to access the area effected.
Within its stage 1 response on 17 July 2023the landlord reiterated the action it had taken about the pigeon spikes. It’s decision not to consider the complaint has been addressed separately below.
In its stage 2 response dated 17 August 2023 it said that it understood the frustration caused by the lack of progress with the pigeon spikes. It considered it reasonable for the freeholder to install these at the same time as the roof work, to avoid unnecessary costs. It said it would continue to work with the freeholder and update the resident when information was available.
Under clause 6 of the head lease, the freeholder is responsible for the roof and structure of the building. This includes walls and fences.
The landlord’s information on repair responsibilities for leaseholders says that it will complete any repairs that it is responsible for. In some cases a freeholder may be responsible for repairs.
As the freeholder was responsible for the pigeon spikes in this case, the landlord was not responsible for replacing them. The landlord was, however, expected to liaise with the freeholder to make it aware of the issue and have an oversight of the progress of the repair. The resident did not have a relationship with the freeholder and therefore it was reasonable for him to expect the landlord to act on his behalf in making the necessary arrangements.
It is clear that the issue had been ongoing and unresolved since September 2021. When a new Tenancy Officer took over in January 2023, the lack of sufficient record keeping meant that the landlord’s new staff was not aware of the outstanding issue.
We expect landlords to have sufficient records to show outstanding repair issues and what action had been taken. As this did not happen, the new staff member said it would arrange to photograph the area and contact the freeholder. This was a repletion of actions which had already been done a year before.
The landlord advised the resident in June 2023 that the freeholder had said it would fix the pigeon spikes when it carried out works to the roof. It was appropriate for the landlord to keep the resident informed about the freeholder’s intention and the reason for its suggested repair timeframe.
Since the events being considered in this case, the landlord updated its ‘Maintaining your Home’ policy. This says how it will respond to repairs where it is not the freeholder as follows:
1. It will make the freeholder aware of the repair and ask for timescales. If this deadline is not met, it may carry out the repair.
2. If the freeholder fails to investigate or act after their investigation, the landlord may step in to resolve the matter. This would be considered on a case by case basis and normally if there is continued damage within a resident’s home.
It is encouraging to see that the landlord provided clarity within its policy following the events in this case.
In summary, the landlord acted appropriately and in line with the head lease in referring the matter to the freeholder. However, its record keeping impacted its ability to know that the issue had been outstanding since 2021 and caused poor management of the resident’s issue. As such there was service failure by the landlord. To acknowledge the effect of this on the resident, compensation of £50 has been ordered. This is in line with our remedies guidance where a failure may not have significantly affected the overall outcome for the resident.

Carpark gate

The resident reported this issue on 24 April 2023. The landlord advised on 3 May 2023 that the freeholder was responsible for the gate but it had been managing the electronic closure device. It said it was considering the options available for repair or removal of the electronic mechanism due to frequent damage.
The resident reiterated his concern on 9 May 2023. He said that the car park was being misused and cars were blocking his parking space. The landlord reiterated that it was looking at the options.
Between 15 and 30 June 2023 the landlord was in contact with the freeholder about the gate. It told the freeholder on 30 June 2023 that it intended to remove the electronic gate mechanism and return it to a manually operated locking gate.
The landlord asked the resident if he had any evidence of the reported “illegal parking” so it could investigate. The resident provided photographs of cars parked without a permit. The landlord explained on 3 July 2023 that the freeholder managed the parking control system. It asked if the resident had the date and time of the illegally parked vehicle so the freeholder could consider a parking charge. There is no evidence that the resident responded to this.
In its stage 2 response the landlord said it had been in regular communication with the freeholder about the gate. It said it was reliant on the freeholder engaging and taking appropriate action. It would keep the resident updated with any progress.
Clause 6 of the head lease says that the freeholder is responsible for parking spaces and access to parking spaces.
Despite the head lease, the landlord said that it had decided to install an electronic locking mechanism to the gate around 10 years ago. There was no requirement in the head lease for it to do so.
When the electronic locking mechanism no longer functioned due to regular damage, it was reasonable for the landlord to consider other options. Its suggestion that it be replaced with a manual lock was reasonable as this would still provide security for the car park.
As the gate was owned by the freeholder, the landlord could not install a replacement without permission. The landlord discussed this option with the freeholder. The freeholder challenged how damage had been caused to the gate and which party was responsible for the work as a result. These discussions were ongoing until at least 17 August 2023 (the date of the stage 2 response). The landlord’s internal notes show that a suggestion to lock the gates with a combination padlock has been dismissed as the fire escape led to the car park.
Following the completion of the internal complaints procedure, the landlord told us that the freeholder had fixed the gate.
It is clear that the landlord has been in regular correspondence with the freeholder in respect of the issue. At the completion of the internal complaints procedure the freeholder had not committed to repairing the gate or an agreed solution. As such, the landlord was limited in what it could do as the gate did not belong to it and it was not responsible for its maintenance. The landlord took appropriate steps to make the freeholder aware of the issues. The evidence shows it suggested solutions and kept the resident updated. As such, there was no maladministration in the landlord’s handling of the resident’s concerns about the carpark gate.

Complaint handling

The landlord has a 2 stage complaint policy. At stage 1 it aims to respond within 10 working days. At stage 2 it aims to respond within 20 working days. If additional time is required at either stage it will keep the resident informed.
The policy says that the landlord may not accept a complaint if it is about the action of an organisation that it has no control over or about services that it is not responsible for.
The resident asked the landlord to raise a complaint on his behalf about the issues on 20 June 2023. He requested this again on 27 June 2023. That same day the landlord advised that he could make a complaint on its website or it could do this for him. Given that the resident had asked the landlord twice to raise a complaint, it is reasonable to expect that the landlord should have been proactive and done so on his behalf in line with his request.
The resident confirmed on 28 June 2023 that he would like the landlord to raise a complaint for him. The landlord did so and advised on 3 July 2023 that it would respond within 10 working days.
Given the nature of the complaint, the landlord asked its solicitor for advice on whether it should reject the complaint. Its solicitor advised that it may reject the complaint.
The landlord followed the advice of its solicitor and told the resident within its stage 1 response on 17 July 2023 that it was unable to consider the complaint. This response was 19 working days after the resident had first asked for the landlord to raise a complaint. This was almost double its response timeframe. It did not acknowledge this delay within its response.
The resident escalated the complaint on 20 July 2023. He said that he did not have a contractual relationship with the freeholder and that the landlord should address the repair issues. The landlord acknowledged this on 27 July 2023 and said it would respond within 20 working days.
It responded within the response timeframe at stage 2 (17 August 2023) and addressed the aspects of complaint. It acknowledged that it had not handled the complaint correctly at stage 1. It offered £50 as a goodwill payment to acknowledge this.
The landlord acted upon the expert advice of its solicitor at stage1 to say it could not investigate the complaint. It changed its position at stage 2 and concluded that it should have focussed on how it had responded to the repair reports rather than the repairs themselves.
This was appropriate and showed an effective review process and willingness to learn. It apologised and offered £50 compensation. However, it failed to acknowledge that its stage 1 response had been provided late. This had led to the resident chasing a response.
When a failure is identified, our role is to consider whether the redress offered by the landlord resolved the complaint. We take into account whether the landlord’s offer was in line with our Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes and our guidance on remedies.
The landlord’s offer was in line with what we would expect where there has been a minor failure in the service the landlord provided.
However, in addition to the failure that it acknowledged, the landlord did not identify or remedy the inconvenience caused by the delay in its stage 1 response. As such, there was service failure. To acknowledge the effect of this on the resident, an additional £50 compensation has been ordered.

Determination (decision)

In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s response to the residents’ concerns about pigeon spikes.
In accordance with paragraph 52 of the Scheme, there was no maladministration in the landlord’s response to the residents’ concerns about the carpark gate.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in respect of the landlord’s complaint handling.

Orders

The landlord is ordered to take the following action within 4 weeks of this report and provide evidence of compliance to the Ombudsman:
1. Pay a total of £150 compensation to the resident. This includes the landlord’s previous offer of £50 which does not need to be paid again if already paid. The compensation is made up of:
  1. £50 compensation to acknowledge the effect on the resident of the landlord’s failure in its response to the residents’ concerns about pigeon spikes.
  2. £100 compensation to acknowledge the effect on the resident of the landlord’s complaint handling failures.