London Borough of Newham (202218153)

REPORT

COMPLAINT 202218153

London Borough of Newham

27 March 2024

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 response to:
1. The resident’s reports that his recycling was not collected on several occasions.
2. The resident’s reports that he has not received a caretaking service for several years.
3. The associated complaint.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
The resident’s complaint regarding the local authority’s recycling service is outside of the Housing Ombudsman’s jurisdiction. This is because in accordance with paragraph 41d of the Housing Ombudsman Scheme, the Ombudsman is unable to investigate matters in respect of a local housing authority that do not relate to their provision or management of social housing.

Background and summary of events

Background

The resident is a secure tenant of a local authority landlord. The tenancy started on 19 June 1989. The property has been described by the landlord as a 3-bedroom first floor maisonette.
The resident has explained to this Service that the property is self-contained and the entrance to the property is via a front door on the ground-floor (the front door is for the resident’s use only). He explained that on entering the property all rooms are up a set of stairs on the first floor. In addition, he explained that the property has a small front garden behind an enclosed fence and gate.
The property is situated on an estate which also includes a block of flats. The resident explained that in front of his garden there is a communal path and large lawned area for the use of the whole estate. He further explained that there is a path and archway which runs adjacent to the property also for communal use.

Scope of the investigation

The Ombudsman’s approach to complaints is governed by the Housing Ombudsman Scheme (‘the Scheme’). Our role is to take an ‘inquisitorial’ approach, rather than an ‘adversarial’ one. In practice, this means that we act impartially whilst investigating disputes rather than taking up one side of the dispute or another. Our overriding principles demand that we are fair to all parties within the process and this approach assists in this aim.
This approach also means that we do not act like a court, considering opposing positions or stances on a matter or providing answers to all the issues and questions raised by a resident. It is not our role to weigh or compare different positions to decide who is right or wrong. We aim to resolve disputes and make an objective determination on the cause of landlords’ and residents’ disagreements. Where we find mistakes, we aim to find ways to put things right.
It is not within the Ombudsman’s authority or expertise to make definitive determinations about the reasonableness of service charges. Therefore, in accordance with paragraph 42(d) of the Housing Ombudsman Scheme, the Ombudsman may not consider complaints which in the Ombudsman’s opinion concern the level of rent or service charge. Consequently, the investigation will be limited to the landlord’s response to the resident’s complaint regarding the provision of the caretaking service.
The Ombudsman acknowledges that the resident has commented that he had verbally raised his concerns regarding the provision of caretaking on various occasions throughout the tenancy. By the resident’s own admission these were not raised as formal complaints. While the Ombudsman understands that the resident maintains that the caretaking service has been lacking for approximately 30 years, we are unable to investigate the matter dating back that far. Paragraph 42(c) of the Scheme states that “The Ombudsman will not investigate complaints which, in its opinion, were not brought to the attention of the member as a formal complaint within a reasonable period, which would normally be within six months of the matters arising. The Ombudsman would normally investigate a complaint from 6 to 12 months prior to a formal complaint being submitted. However, neither party has provided any evidence of an interaction in respect of the issue complained about before the date of the formal complaint. Consequently, the investigation into the complaint will commence on 21 July 2022, which is the date the resident submitted a complaint and will conclude at the landlord’s final response.
The Ombudsman acknowledges that the resident has raised concerns regarding the impact of the issues complained about, on his wife’s health. However, the Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be more appropriately dealt with as a personal injury claim through the courts or the landlord’s liability insurer (if it has one). This is a legal process and the resident should seek independent legal advice if he wants to pursue this option.

Summary of events

On 21 July 2022 the resident submitted a formal complaint to the landlord in respect of caretaking charges. He maintained that the landlord could not justify the charge and that he wanted the full amount refunded. He added that the situation had a negative impact on his wife’s health.
The landlord acknowledged and responded to the complaint on 25 July 2022. The landlord asked the resident to provide further information in relation to his complaint, so that it could investigate further.
On 27 July 2022 the resident replied to the landlord’s request and explained that his property was part of a terraced-row and he did not receive any caretaking services. He stated that he attached photos as evidence. This Service has not seen those photos. The resident maintained that he wanted all the money he had paid for caretaking service reimbursed. He added that he had been told by a landlord employee that when the system was computerised all resident’s in the area had been charged caretaking services in error. He maintained that the charge for caretaking should only have applied to the block of flats and not the properties in the terraced row.
On 1 August 2022 an internal email stated that the caretaking charge had been applied since 2004 and questioned whether there had been any previous requests to remove the charge. The Ombudsman has not seen a response to this query.
The same day the landlord emailed the resident stating that an appropriate manager was investigating the claim he had made, and that the landlord would update him once the investigation had been completed.
The landlord has provided a copy of an undated internal email in which it stated that it visited the block on 9 August 2022. It stated that the resident’s property is a house but is enclosed in the estate with fencing all around the estate. Within the estate there was a lawned area. The landlord explained that there were 3 door entry systems at various points on the estate. It added that the resident was paying a caretaking charge for the estate.
An internal email dated 18 August 2022 showed that the landlord carried out another visit to the estate and highlighted the location of the property on a map. It added that it had spoken with the resident who maintained that the caretaker had not cleaned there for many years and also stated that leaseholders living in the same area were not charged for caretaking services.
The resident escalated his complaint to stage 2 on 28 September 2022. He reiterated his concern regarding the charging error and the negative impact it was causing on his wife’s health. The landlord acknowledged the stage 2 escalation on 6 October 2022 and advised the resident to expect a response by 19 October 2022.
The same day the resident sent a further email explaining that he contacted the landlord approximately 6 months earlier in respect of the caretaking charges. He maintained that he had never received a caretaking service and added that both he and his wife swept the area outside the property daily and picked up rubbish, to keep the area clean. The resident stated that the caretaker had never cleaned the communal area outside the terraced row of properties within which his home was situated.
On or around 19 October 2022 the resident chased a response to his complaint. He reminded the landlord that it had said it would respond to his complaint on 19 October 2022 and added that up until that point the landlord had not offered a resolution. He stated that he understood that the landlord, via the caretaking service, was responsible for cleaning the area outside his property weekly. He added that the area, which was 40 metres long by 10 metres wide had not been cleaned by the landlord for approximately 33 years and that both he and his wife kept it clean.
The landlord responded the following day and apologised for the delay, it said that it was awaiting further information and it would respond the next day.
The resident emailed the landlord again on 28 October 2022 chasing a response to his complaint. He stated that he had provided the landlord with evidence to support his complaint and had been told by the landlord on several occasions that it was investigating his concerns, yet it had failed to provide and explanation or a response.
The landlord responded at stage 2 of its complaints process on 10 November 2022. In its response the landlord said that it understood the resident’s complaint to be that he was charged for a caretaking service that the landlord was not providing. The landlord explained that as part of its investigation it had spoken with the caretaking services team and the complaints team. It set out a summary of the complaint and explained that it had visited the estate on 10 August 2022. In respect of its investigation into the issues complained about the landlord said that:
1. An appropriate manager had visited the row of terraced properties, where the resident lived, on several occasions and found it to be clean and free from litter.
2. The cleansing caretaker managed the block and was responsible for sweeping the remaining hard surfaces weekly.
3. The lawned area was managed by another team.
4. Resident’s were responsible for their own front gardens.
5. Residents pay a proportion for the cleaning of the estate, which included pathways, stairwells, light fittings, and communal areas.
In recognition of its delay in responding to the stage 2 complaint the landlord offered the resident £50 compensation.
The resident replied to the landlord’s final response on 12 November 2022. He was disappointed with the landlord’s response and repeated that the landlord had not cleaned the area outside his home.

Post internal complaints process

In response to the Ombudsman’s request for evidence the landlord explained that it was reviewing the way it monitored and recorded visits it made for maintenance, cleaning and grounds keeping. It added that it had done the following maintenance to the area:
1. Litter picking and sweeping to the front of the grassed areas, the front of the block and the bin areas.
2. Pruned shrubs annually between November and March.
3. Cut the grass 6 times throughout the year.
It confirmed that the resident’s property was fenced off at the front and that he was responsible for maintaining the pathway in front of the property. It further explained that the proportion of service charge the resident paid was for the maintenance of the wider estate, cleaning, and ground works. It added that the wider areas of the estate were cleaned on a weekly basis and quality assessed by an appropriate supervisor monthly. The landlord also explained that litter picking and sweeping was monitored by the concierge.
The landlord stated that it visited the resident on 13 November 2023 and agreed with him that by the end of December 2023 it would:
1. Install a dog bin on the estate.
2. Erect a dog foul sign on the estate
The landlord provided the Ombudsman with a spreadsheet which showed the months of April 2022, April 2023, and November 2023 on separate tabs in the sheet. Each tab showed the date and against each date in the adjacent column said ‘swept, mopped, litter picked’

Assessment and findings

Landlord’s policies and obligations

The landlord has said that its communal cleaning policy is under review. However, its website details both its responsibilities and the responsibilities of residents. In respect of communal areas, according to its website the landlord’s responsibilities include but are not limited to:
1. Sweeping and regularly removing weeds from external hard surface areas.
2. Removing litter from shrubs and grassed areas.
The landlord states that residents can report problems with the cleaning service by telephone.
The tenancy agreement is silent on the issue of caretaking services.
The landlord operates a 2 stage complaints process. It aims to respond to stage 1 complaints within 10 working days and to stage 2 complaints within 20 working days. The policy does not state if this is from the date the complaint was received or the date it was acknowledged.

The landlord’s response to the resident’s reports that he has not received a caretaking service for several years.

The resident formally complained about the lack of a caretaking service on 21 July 2022. In its stage 1 response the landlord asked the resident for additional information, which he provided on 27 July 2022. Following on from this, on 1 August 2022 the landlord told the resident that his concerns were being investigated and it would provide an update once the investigation was complete. It was reasonable for the landlord to request additional information from the resident so that it could investigate his concerns. However, it would have been more appropriate for the landlord to have requested this information outside of the stage 1 response. This point will be referred to later in the report.
Following the resident’s email on 27 July 2022 the landlord stated that it would investigate the resident’s concerns and update him once it completed the investigation. The landlord has provided 2 internal emails which show that it visited the estate on 2 separate occasions in August 2022. However, the emails only serve as confirmation of the location of the property and the layout of the estate. The landlord has not evidenced that it provided the resident with an update of its investigation, as it suggested it would in its email on 1st August. In addition, during one of the inspections the landlord spoke with the resident who provided additional information regarding their concerns. However, there is no evidence to demonstrate that the landlord considered this information. This was not acceptable and exacerbated the resident’s frustration.
While the landlord has indicated that a manager visited the estate and found it to be clean and free from litter, it has failed to set out clearly how it investigated the resident’s concerns. The landlord has not provided the Ombudsman with any notes or findings from the visit and therefore it is not clear to this Service when the inspection took place or indeed the extent of it. The landlord has stated that wider areas of the estate were cleaned on a weekly basis and quality assessed by an appropriate supervisor monthly. Yet it has failed to provide any evidence of this. At the very least the Ombudsman would expect to see signed and dated checklists confirming the completion of the weekly cleaning and monthly quality checks.
It is noted that cleaning standards can be subjective, and while litter picking may be carried out on one day, this may not mean that the site remains litter free throughout the week. In addition, the landlord would rely on residents to report any issues within the estate alongside its caretaking service as it would not be obliged to remain on site at all times. It can be reasonable for a landlord to rely on its staff, who say that tasks have been completed. However, it should also have measures in place, such as a log of tasks completed on each visit, signed by its caretaker, or before and after photos where appropriate for audit purposes so that it is able to evidence the agreed actions where there is a dispute.
When there is a disagreement in the accounts of the resident and the landlord with regard to the standard of a service provided, the onus would be on the landlord to provide documentary evidence showing how it satisfied itself that the service had been provided to a satisfactory standard and tasks were being carried out as agreed. It is the Ombudsman’s pinion the landlord should be able to provide evidence that caretaking services are being carried out on a weekly basis as agreed when asked. An appropriate order has been made in respect of this.
It is the Ombudsman’s opinion that the landlord failed to fully consider the resident’s concerns. The landlord does not appear to have a schedule for the caretaking services on the block and consequently has no way of demonstrating that the services it is responsible for were completed as described or at the frequency suggested.
Other than mentioning in its stage 2 response that it spoke with the caretaking team; the landlord has not provided any evidence of the meeting or indeed when it took place.
It was clear that the resident was frustrated by the landlord’s inaction and failure to properly address his concerns. The landlord has not provided sufficient evidence to confirm that caretaking services were being monitored effectively. Nor has it demonstrated that it fully considered the resident’s concerns. As such, this Service finds maladministration by the landlord in its response to the residents reports that he has not received a caretaking service for several years.

The landlord’s response to the associated complaint.

The landlord responded to the stage 1 complaint within the timescale prescribed in its policy, and in accordance with the timescale set out in Ombudsman’s complaint code. However, its response was inadequate. As per the Ombudsman’s complaint handling code (the Code), where any aspect of the resident’s complaint is unclear the landlord must seek clarification so the full definition can be agreed by both parties. The landlord failed to respond to the resident’s concerns, instead requesting that he provide additional information. While the Ombudsman welcomes clarification of the issues, the request should not have formed part of the complaint response. It would have been more appropriate for the landlord to have gathered the additional information from the resident ahead of responding to the complaint so that it could have fully addressed the resident’s complaint. The landlord missed the opportunity to seek a resolution at the first opportunity and has left the resident within the complaints process having to escalate to stage 2, without any form of resolution being offered at stage 1.
The resident provided the additional information requested by the landlord with the expectation that the issues he had highlighted would be investigated. Following the landlord’s failure to provide an update the resident escalated his complaint to stage 2.
According to its policy the landlord will respond to stage 2 complaints within 20 working days. However, it is not clear whether the 20 working days start from the date the landlord receives the escalated complaint or from the date it is acknowledged. Nevertheless, the landlord’s response was delayed by 26 working days from the date it was acknowledged, and the evidence showed that the resident contacted the landlord on 2 occasions for a response. This was likely to have caused an inconvenience to the resident and compounded his frustration.
The Ombudsman’s Complaint Handling Code sets out requirements for member landlords to respond to complaints effectively and fairly. In line with the Code, the landlord would be expected to address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law and good practice where appropriate.
In its response the landlord set out its understanding of the resident’s complaint, this was appropriate. However, the complaint failed to show how the landlord had investigated the resident’s concerns. The resident raised specific concerns related to the service charge, including why he needed to pay this given that, in his opinion, the caretaking services were not being provided satisfactorily. While the landlord explained the responsibilities of the caretaking service, it failed to demonstrate how it had investigated the resident’s concerns regarding the satisfactory provision of said services. Furthermore, it would have been appropriate for the landlord to have explained its position regarding the service charge, and why this was still applicable and payable.
The Ombudsman acknowledges that the landlord accepted that it had failed to respond to the resident’s stage 2 complaint within the timescales prescribed, and that it offered £50 compensation by way of apology. However, the ombudsman is not satisfied that this goes far enough. The landlord failed to provide a satisfactory response to each aspect of the resident’s complaint at both stage 1 and stage 2 of the process. This was likely to have caused inconvenience to the resident, whose concerns remained unaddressed. The Ombudsman finds maladministration in the landlord’s handling of the associated complaint.

Determination (decision)

In accordance with paragraph 41 of the Housing Ombudsman Scheme the landlord’s response to the resident’s reports that his recycling was not collected on several occasions is outside of the Ombudsman’s jurisdiction.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration of the landlord’s response to the resident’s reports that he has not received a caretaking service for several years.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlords response to the associated complaint.

Reasons

The Ombudsman will not investigate matters in respect of a local housing authority that do not relate to their provision or management of social housing.
The landlord failed to demonstrate how it had investigated the resident’s concerns.
The landlord failed to provide an adequate and timely response to the resident’s concerns about the service charge he paid in relation to the caretaking services provided by the landlord.

Orders and recommendations

Orders

Within 4 weeks of the date of this report the landlord is ordered to:
1. Apologise to the resident in writing for the failures highlighted in this report.
2. Pay directly to the resident a total of £600 which comprises of:
  1. £300 in recognition of the distress and inconvenience caused by the landlord’s failure to demonstrate it adequately investigated the issues raised.
  2. £300 in recognition of the time and trouble incurred by the resident in pursuing the complaint and the inconvenience caused by the landlord’s failure to properly respond to his concerns related to the service charges. This amount includes the £50 offered by the landlord in its stage 2 response in recognition of the delayed response. If this amount has already been paid to the resident it should be deducted from the total.
Within 6 weeks of the date of this report the landlord must provide the Ombudsman with the findings of the review into the monitoring and recording of maintenance, cleaning and ground keeping visits. The landlord must be able to show that as part of its review it will implement appropriate record-keeping practices to ensure that the caretaking services are effectively monitored so that it can evidence, when asked, that these are being carried out as agreed.
Within 6 weeks of the date of this report the landlord must:
1. Review its handling of this case. This should be conducted by a senior member of staff who has not had any previous involvement in the complaint. The landlord must write to the Ombudsman with the outcome of this review.
2. Provide refresher training to staff on the requirements of its complaints policy and the new Code, including but not limited to:
  1. The timelines for acknowledging and responding to stage 1 and stage 2 complaints.
  2. The requirement to provide specific information to residents in writing at the completion of each stage.
  3. What constitutes a complaint resolution.
The landlord must provide to the Ombudsman evidence of its compliance with the above orders within the timescales prescribed.

Recommendations

The Ombudsman recommends that within 4 weeks of the date of this report the landlord should provide evidence that it has actioned the requests agreed with the resident in respect of the installation of dog bins and signage on the estate.
The landlord should confirm its intentions in regard to the above recommendation, to this Service within 4 weeks of the date of this report.