The Riverside Group Limited (202216395)

REPORT

COMPLAINT 202216395

The Riverside Group Limited

15 January 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 handling of the resident’s:
1. Reports of fly tipping in the bin store.
2. Concerns relating to the caretaker’s performance.
3. Reports of repairs required to the external communal doors of the building.
4. Reports of repairs required to the car park gates.
5. Reports of antisocial behaviour (ASB) in the car park and within the block’s communal areas.
6. Complaint.
The Ombudsman has also considered the landlord’s record keeping.

Background

The complainants are a couple who own the leasehold of a fourth floor, 2 bedroom flat within a block. The estate contains multiple blocks of flats, of which the landlord owns the freehold. The leaseholders do not live in the property, however their son and his family do. The leaseholders’ son liaised directly with the landlord about the complaint issues throughout the events set out in this report. Upon referring this complaint to the Ombudsman, the leaseholders stated that they were doing so on behalf of their son, who is their tenant. For clarity, the leaseholders and their son are referred to as ‘the resident’ throughout this report. However, it will be sometimes necessary to refer to either party individually.
On 22 January 2022, the resident reported fly tipping in the nearby bin store to the landlord and asked how it planned to stop this happening. He made further reports at the beginning of August 2022.
On 8 August 2022, the landlord issued a stage 1 complaint response. It apologised for the delay in issuing this. It stated that it had inspected the cleanliness of the resident’s estate on many occasions and was satisfied it had been brought up to standard. The landlord explained that a cleaning schedule was in place and that the car park gates were now in working order. It stated that it understood the ASB had dramatically reduced. It also stated that fly tipping was an issue that it was looking into and that there was no easy solution.
The resident continued to report incidents of fly tipping to the landlord. On 27 August 2022, they complained to the landlord that they did not believe the caretaker was carrying out their cleaning duties to their block in line with the weekly cleaning schedule. On 22 September 2022, the resident also informed the landlord that the ASB issues, which concerned young people stealing bikes and throwing them around the car park, as well as accessing communal areas and smoking drugs, continued.
The landlord issued a final response to the resident regarding their complaint about the caretaker on 4 October 2022. It clarified the caretaker’s duties as set out in the resident’s lease agreement. The landlord stated that the management of the caretaker’s employment was its responsibility and declined to provide the resident with a copy of the job description. However, it confirmed that the caretaker’s line manager had no concerns about their performance.
On 16 October 2022, the landlord issued a stage 2 complaint response to the resident about the remaining issues. It stated that while not all problems with the car park gates and communal doors had been resolved, there had been a “significant amount of activity” to address these issues. The landlord listed the actions it had taken and noted that the ASB associated with the compromised security of the car park and various blocks had been reduced. With regards to the regular fly tipping, it stated that it understood the resident’s concerns and accepted that it needed to do more to deter those responsible. The landlord partially upheld the complaint as it accepted it had not yet put up permanent signage for the CCTV or replaced the existing camera in the bin store. It offered the resident £50 compensation for failing to provide a written outcome within its timescales, which was later increased to £100.
The landlord issued a further stage 1 complaint response on 24 October 2022, concerning the resident’s dissatisfaction with how long it had taken to repair the door entry system. It accepted that the repair had been outstanding for some time. It explained why there had been delays and stated it would resolve the issue once necessary parts had arrived.
The resident contacted the landlord on 26 October 2022 to request that it consider installing anti climb spikes to the electric car park gates and that the anti climb paint be reapplied. They hoped this would deter young people from climbing over the gates to access the car park and steal bikes or cause damage.
On 20 January 2023, the landlord issued the resident with a stage 2 response regarding the door entry system. It stated that the issue had been remedied, with the complaint upheld at stage 1 of the procedure. The landlord explained that it was aware of the issues affecting the resident’s estate and had developed an interdepartmental working group that met regularly to review the concerns.
The resident sent a number of emails to the landlord across March 2023 and April 2023 stating that ASB was being caused by young people gaining unauthorised access to the estate’s car park and the blocks. On 10 March 2023, the resident confirmed the codes to the communal doors had been changed.
The resident escalated their complaint to the Ombudsman for investigation. They stated that issues remain unresolved and they also had concerns with the landlord’s complaint handling, including its communication with them. The leaseholders’ son has stated that he would like the landlord to pay him further compensation to recognise his time and trouble. The leaseholders have explained that seeing the effect of the landlord’s actions or inaction on their son and his family has had a negative impact on them.

Assessment and findings

Scope of investigation

The leaseholders’ son acts as the chairman of a residents’ association for the estate in which he lives. The landlord has provided evidence which demonstrates him acting in this capacity, including raising repairs or making reports on behalf of neighbouring residents who live in different blocks of flats. The resident has not brought a group complaint to the Ombudsman on behalf of any of their neighbours. Therefore, this investigation has focused on the complaint issues that have directly affected the resident. It has not considered, for example, reports of repairs or ASB that solely affected other blocks on the estate, including the matter of a homeless person sleeping in a neighbouring communal area.
When investigating complaints and assessing the landlord’s handling of matters arising, this is within the context of a contractual relationship existing between the landlord and the complainant. Where a landlord has a contractual relationship with a leaseholder or a tenant, this creates legal and contractual obligations between parties that the Ombudsman will assess the landlord’s actions against. Where there is no contractual relationship between two parties, the same obligations do not exist.
The leaseholders’ son, as the resident of the property and the tenant of his parents, has brought a number of issues directly to the landlord’s attention. The landlord has stated that there is an informal agreement to handle the leaseholders’ son’s communications. However, it is not formally recorded that he acts in the capacity of a representative of his parents and this is also not apparent from the communications provided. Often the focus of the reports made to the landlord relates to the impact of various issues on the leaseholders’ son and his household as residents, rather than the leaseholders themselves. This has also been true of some communications with the Ombudsman. In accordance with the Housing Ombudsman Scheme, the Service can only assess the landlord’s handling of its obligations towards the leaseholders as it does not have a landlord-tenant relationship with their son. Should any service failure or maladministration be found, the impact of this on the leaseholders will be considered when considering if any remedy would be appropriate.
One of the resident’s complaints relates to concerns over the estate caretaker’s performance of duties associated with their job role, such as cleaning and maintenance of the communal areas. While the Service can consider matters relating to the landlord’s delivery of services, it is outside of our remit to investigate issues relating to an individual’s employment or performance. This would be between the employer and the employee and the landlord is entitled to manage its employees as it considers appropriate.

Policies and Procedures

The leasehold agreement sets out the obligations of the landlord and the resident. It states that the landlord will “repair and keep the premises in good and substantial repair and condition” and “keep the common parts of the building adequately cleaned”.
The landlord’s repairs policy states that it will resolve repairs within a maximum of 56 days depending on how it categorises the repair. It states it will resolve “emergency” repairs within 12 hours and “urgent” repairs within 5 days. It aims to resolve repairs at the first visit, wherever possible.
The landlord’s neighbourhood and estate management policy states that it will ensure the communal areas it owns are “safe and well-maintained” and that it will take a “proactive approach to estate and tenancy management”. It states it will deliver grounds maintenance and cleaning services in communal areas to ensure they are kept clean and tidy. These services will be provided by in house teams and contractors, which the landlord will manage. The policy states the landlord will manage standards taking into account “quality assurance information, local inspections and customer feedback”. It goes on to say it will remove abandoned vehicles and fly tipping. It states that where it can identify that a customer is responsible, it will hold them to account by charging them or taking legal action. The policy also sets out that the landlord will manage parking controls such as barriers and gates.
The landlord has a legal obligation to investigate reports of ASB and take appropriate action to resolve it. Its ASB policy states that it will take “all complaints of nuisance and anti-social behaviour seriously, and respond promptly in an effective and sensitive manner” with the aim of resolving issues. It says it will “work in partnership and effectively signpost” and take a “harm centred approach” where it will tailor support given as appropriate. It undertakes to use a national standard risk assessment matrix to any ASB case regardless of type or category as long as there is an identifiable complainant. It also states it will keep complainants informed of developments as appropriate and use intervention measures such as mediation and floating support referrals.
The landlord’s complaints policy states that it will respond to complaints at stage 1 of its procedure within 5 working days. It states it will aim to provide a written response at stage 2 “within a maximum of 10 working days from receipt of the request to escalate”. The policy sets out that where these timeframes are not possible, it will provide an explanation and a date by when the response will be received.

The landlord’s handling of the resident’s reports of fly tipping in the bin store

The first evidence provided of the resident reporting fly tipping in the bin store to the landlord was on 22 January 2022. They stated that a collection of discarded items had taken place on 21 January 2022 and that more items had been discarded since. They raised concerns that the CCTV camera in the bin store was not working and queried why the landlord was not identifying and issuing fines to the people responsible. The landlord has not provided the Service with evidence that it responded to the resident’s report. There is no evidence of any further communication about this issue between January 2022 and August 2022. It is unclear whether this is because there was no communication, or if records of the communication do not exist, or if the records have not been provided to the Ombudsman to support this investigation. The onus is on the landlord to demonstrate that it has handled reports appropriately and it has not done so.
Between 3 August 2022 and 7 August 2022, the resident made a further 3 reports of fly tipping. The first report stated that a rubbish collection had been done that day but that more items had been discarded immediately after. The resident stated that the issue was “totally out of hand now”. On 8 August 2022, the landlord issued a stage 1 complaint response which briefly referenced the fly tipping. It is unclear from the available records when the resident had made a formal complaint. The response stated that the resident and the landlord had discussed the problem over the phone and in person. It acknowledged that the fly tipping was an issue that it was looking into across the organisation. It indicated that it had already explained to the resident that there was “not an easy solution”. The response did not give any detail about actions it had taken in response to the resident’s reports or about any actions it would take in the future to try and resolve the issue. In the circumstances, it would have been reasonable for the landlord to have assessed its handling of the situation to date, and confirmed whether or not it considered that it had responded appropriately. Therefore, this was a poor response from the landlord that failed to make a meaningful attempt to address the matter.
The resident continued to report further incidents of fly tipping to the landlord in the following days. They indicated that they had escalated their complaint to stage 2 of the landlord’s complaints procedure due to the fly tipping being added to on “a daily basis”. An email sent by the resident on 12 August 2022 indicated a further collection had been carried out that day (with a chair having been immediately left in the bin store) but there are no further details. On 14 August 2022, the resident emailed the police and requested that they attend a ‘fun day’ organised by the landlord for 24 August 2022 and speak to it about the problem.
From the resident’s emails, it is apparent that collections of discarded bulky items had been taking place, though it is not known how regularly. It is also unknown who had arranged the collections and who was responsible for the cost of them. This is down to a lack of records from the landlord demonstrating its response to the issue. It would be reasonable for the landlord to ensure that it keeps a clear audit trail of its actions. This would enable it to review its own performance and clearly demonstrate the action it has taken in response to particular issues. However, it is the case that the only reason the Service is aware that any collections of rubbish were taking place is because the resident was referring to them in their communications with the landlord. This is inappropriate and it will be therefore necessary for the landlord to review its record keeping procedures, including accessibility of records for the purpose of Ombudsman investigations.
No evidence has been provided of any further fly tipping reports prior to the landlord’s stage 2 complaint response issued on 16 October 2022. The landlord gave a more adequate response to the issue in the response compared to the brief reference in the stage 1 response. It explained that some of the items shown in the photographs the resident had provided had been left there by its own contactors following the clearance of internal communal areas. The landlord indicated it understood the resident’s concerns that the cost of removing bulky items would be passed on to leaseholders through their service charges. It listed several ways it had taken action, or was considering taking action:
1. The temporary signage in the bin store regarding CCTV monitoring needed to be replaced with permanent signage, which was in progress.
2. The landlord was considering upgrading the existing CCTV camera or replacing it. It noted that a perpetrator had recently been identified through the use of CCTV.
3. It assured the resident that it would take appropriate tenancy action against any identified fly tipping perpetrator and was currently reviewing financial sanctions.
4. The landlord had introduced routine surgeries for residents to raise concerns and was ensuring more joined up working between various departments to respond to the issue.
5. It reassured the tenant that, during tenancy changes where fly tipping “spikes”, it reminds exiting and new residents of their responsibilities regarding the removal of excess rubbish.
6. It monitored service charge expenditure on a monthly basis and will scrutinise costs associated with communal rubbish removal.
The landlord partially upheld the resident’s complaint (which covered issues other than the fly tipping) due to its failure to have completed the permanent signage in the bin store or upgrade/replace the existing CCTV camera there. It apologised for the delay and stated it would create a specific ASB case for fly tipping that would ensure the resident’s photographic evidence was appropriately stored so it could be investigated.
The stage 2 complaint response demonstrated more adequate complaint handling from the landlord than at stage 1. It had acknowledged the resident’s concerns and set out actions it had taken, and planned to take. Its response was reasonable and it was within its rights to note that this was a problem with customer behaviour, which could be difficult to resolve. While the Ombudsman would not make a finding against the landlord on the basis of its residents’ behaviour, it had a duty to respond appropriately to reports of this happening.
No evidence has been provided of the resident reporting fly tipping again until 6 March 2023. Four further reports were made over the 6 weeks following. The landlord has not provided any evidence that it took any action to acknowledge or respond to the resident’s reports.
The Service acknowledges that the landlord does not have any contractual obligations to the leaseholders’ son, who was bringing this complaint to the landlord as an involved resident of the estate. He is not a tenant or leaseholder of the landlord, nor formally representing his parents. Therefore, it would be inappropriate to make a finding against the landlord for not providing the same service to the leaseholders’ son as should be expected by those with a direct contractual relationship. However, the landlord has not made a convincing case that it took reasonable steps, promptly, to reduce fly tipping and to mitigate any potential increases in the leaseholders’ service charge as a result of it. There were clear delays in ensuring appropriate signage was in place in the bin store and ensuring the effectiveness of the CCTV camera in there, which was a service failure.
The assessed impact on the leaseholders, as the complainants, from the fly tipping was likely to be reduced due to them not living on the estate at the time. However, the landlord will be ordered to consider making a proportionate refund to the leaseholders to acknowledge and offset any potential unreasonableness if it increased the charge, in light of the service failure. The landlord will be required to demonstrate how it has reached its conclusion whether or not to make a refund of an appropriate amount.
Due to the landlord’s poor records, it is unclear when the resident first made a formal complaint to the landlord about fly tipping. A lone record of a report made by the resident in January 2022, followed by 3 records of reports in early August 2022 are the only records that pre-date the stage 1 complaint response dated 8 August 2022. The landlord apologised for the delay to the response but the Service has not been able to establish the length of it. The landlord should reasonably keep a clear record of when an expression of dissatisfaction or complaint is first raised. Recording this data will allow it to ensure that it is issuing responses in line with its policy timescales and the Code. This was maladministration in record keeping.
The Service notes that the landlord’s stage 2 complaint response had been subject to a significant delay. Its complaints policy states that it aims to provide a written response at stage 2 within 10 working days of a request to escalate. There is evidence this request was made by the resident by 11 August 2022, though we have not had sight of it. The response was issued 2 months later and there is no evidence that it contacted the resident to explain the delay and agree extensions. This was not in line with the Ombudsman’s Complaint Handling Code (the Code).

Concerns relating to the caretaker’s performance

On 27 August 2022, the resident raised concerns with the landlord about the estate’s caretaker. They queried whether the caretaker was adhering to the weekly cleaning schedule as their block had not been cleaned the previous week. The landlord responded on 30 August 2022 to state that the caretaker had cleaned and would be doing so again that day. The resident disputed this and requested the caretaker’s job description be sent to them. The landlord said that it would quality check the area. Despite the lack of legal obligation to the leaseholders’ son, the landlord’s response to this initial report from him was reasonable. It had responded within an short timeframe, made enquiries with the caretaker, and promised to carry out further checks.
On 7 and 8 September 2022, the resident contacted the landlord again to state that their block had not been cleaned that week and the caretaker had failed to sort out the bins. On 11 September 2022, the landlord responded and said it would investigate. It then followed up 3 days later explaining the caretaker had denied he had not carried out his duties and therefore the landlord would increase spot checks at unscheduled times to ensure tasks were being completed. This was a reasonable response.
On 22 September 2022, the resident emailed the landlord offering evidence that the caretaker was not reporting repairs as they were expected to do. On 4 October 2022, the landlord issued a stage 2 complaint response. The landlord has not provided a copy of the stage 1 response, which it says had been issued on 20 September 2022. It is again unclear if this is as a result of poor record keeping, poor accessibility of records, or if this has just been omitted from the landlord’s submission to the Ombudsman. Regardless, the landlord has failed to provide sufficient evidence of it acting in line with its complaints policy and the Code. While it had no obligation to handle the leaseholders’ son’s complaint, unless he was specifically raising it as his parents’ representative, it had not declined to accept the complaint and therefore it should be able to show it had handled it appropriately.
The stage 2 response referred to the leasehold agreement it has in place with the leaseholders, which outlined services the landlord was obliged to provide. It also listed the caretaker’s service areas but declined to provide a copy of their job description, as it considered the information it had just provided to be sufficient. The landlord’s position was reasonable. An employer-employee relationship is between those two parties and the landlord was not obliged to provide detailed information concerning an individual’s personal employment to a third party.
However, the landlord remained responsible for ensuring it was meeting its obligations as set out in the leasehold agreement and it addressed concerns that it was failing to do so in the stage 2 response. It confirmed it had investigated the allegations by speaking with relevant members of staff, including the caretaker’s line manager. It confirmed that the line manager had no concerns with the caretaker’s performance and that regular, unannounced checks were carried out on site. The landlord also reviewed its repairs logs and was satisfied the caretaker was reporting identified repairs as they were expected to. The landlord’s response was reasonable. It had promptly investigated the resident’s concerns and had taken steps to reassure the resident that it was satisfied it was providing the service as required for its leaseholders.
There is no evidence that the resident continued to raise significant concerns about the caretaker’s performance following the landlord’s complaint response. The Service has not found any evidence of maladministration as the landlord handled the concerns reasonably. However, the leaseholder has stated to the Service that this issue is unresolved as the status of the caretaker is unclear given they are not currently present on the estate. As this is a different concern from the matters raised in 2022, the resident should consider raising a further formal complaint if they consider the landlord has withdrawn a service completely.

Reports of repairs required to the external communal doors of the building

The landlord’s stage 1 complaint response issued on 8 August 2022 is the first evidence provided that indicated there had been repair issues with the external communal doors of the resident’s block of flats. The compromised security of the resident’s block, and neighbouring blocks, was enabling unauthorised access to non residents who would often cause ASB. The landlord has not provided evidence of the resident’s original reports or their formal complaint. The response defined the resident’s complaint as including issues with the communal doors. However, it did not address the issue directly thereafter. The letter provided a brief response to the other complaint issues and then referred to a task group that had been set up and a ‘fun day’ to be held later that month. This was poor complaint handling by the landlord as it should have responded to all parts of the complaint in reasonable detail, in accordance with the Code.
On 6 September 2022, the landlord emailed the resident. It stated that it understood the malfunctioning of the communal doors had caused “many issues” for residents and it apologised. It said that there was a procurement process underway to find a new supplier for the doors. Once this had been completed, it would be agreeing a programme of works with the new supplier. The resident responded 2 days later to thank the landlord for upgrading the door access control points and said the new fob system was working well. The emails suggest that the landlord was taking reasonable steps the resolve the issue. However, it should not be necessary for the landlord and resident to refer to the landlord’s actions in email communication for its actions to be evident to the Ombudsman. The landlord should be able to provide records of actions it took, and when, and it has failed to do so.
The landlord’s stage 2 response dated 16 October 2022 made further reference to the issue. It stated that a “significant amount of activity” had gone on to investigate and address the issue with the communal doors and that there had been improvements as a result. While the response went into some additional detail about general plans it had to improve the neighbourhood, it did not offer any indication about how it would continue to make improvements to the situation with the doors. While the stage 2 response was more adequate than the stage 1 response, it offered poor analysis of its handling of the situation and gave only vague information about its next steps.
An additional stage 1 response was issued by the landlord on 24 October 2022 with respect to what appeared to have been a separate complaint raised by the resident. The complaint was set out as being about the time taken to repair the door entry system and lock, concerns about building security, and lack of call back from a contractor. The landlord has not provided the Service with the complaint that was made by the resident, despite our request for this evidence. As a result, it has therefore not been possible to assess whether the landlord handled the complaint in accordance with its complaints policy and the Code.
The response offered a more satisfactory analysis of the issue than previous complaint responses. The landlord stated that it had raised a job in response to the original repair request on 18 September 2022 and that the contractor had ordered the parts required. When the contractor attended to fit the parts on 7 October 2022, it found that the parts were faulty and the repair therefore had to be delayed. The landlord confirmed the replacement parts had been ordered but had not yet arrived and reassured the resident that the repairs would be completed once they had. The landlord’s repairs policy sets out that it will aim to resolve repairs within 28-56 days of the repair being reported. That time had not lapsed by time the complaint had been made and the landlord’s explanation demonstrated that the delays had been unavoidable.
The resident escalated their complaint to stage 2 although it is unclear when as the landlord does not have, or has not provided, record of the request. The stage 2 response was issued on 20 January 2023, however it has again not been possible to assess whether this was issued within published timescales. The response stated that the repair issues with the doors had been resolved and that the resident’s complaint had been upheld. The landlord has provided no maintenance records to support its statement.
On 22 February 2023, the resident emailed the landlord to state that they were aware a job had been raised to change door codes to each block. They pointed out that doors to some neighbouring blocks were still broken and that this may delay the door codes being changed. The landlord responded the following day as acknowledgement and stated that the door code exercise needed careful planning. It explained there was no need to put it on hold until the remaining 2 doors were fixed and reassured the resident it would take steps to ensure the works were completed without further delay. This was a reasonable response. On 10 March 2023, the resident emailed the landlord and thanked it for changing the door codes for the estate.
The resident has informed the Service that the issue with the communal doors is unresolved but no further detail about this has been provided. As the evidence suggests that the original issue was resolved, the resident is encouraged to report any new issue with the doors to the landlord and the landlord should seek to resolve this within appropriate timescales.
The communication between both parties suggests that overall the landlord’s handling was reasonable. However, the investigation into this matter has been frustrated by poor records provided by the landlord. The Ombudsman accepts that repairs can be delayed for reasons outside of the landlord’s control. The landlord should ensure it maintains sufficient communication with affected parties when repairs are delayed. It is also the case that certain exercises, such as changing an estate’s door codes, can require more time to co-ordinate. The communal door to the resident’s block was fixed in a reasonable timeframe and the door codes changed without evidence of significant avoidable delay.

Reports of repairs required to the car park gates

The earliest evidence the landlord has provided of an issue with the electric car park gates breaking down is its stage 1 complaint response that addressed the matter, issued on 8 August 2022. It has not provided the resident’s initial reports of issues with the gates or his formal complaint. Therefore, it has not been possible to assess if the response was issued in line with its complaints policy or the Code. The response simply stated that the car park gates “should now be in working order”. In the circumstances, it would have been reasonable for the landlord to set out when it was first notified of the issue, when the repairs took place, and whether this was in accordance with its repair timescales. In the absence of such an explanation, it is unclear whether the landlord had assessed its handling of the matter.
No further records relating to the issue with the car park gates have been provided from the period of time between the stage 1 response and the stage 2 response issued on 16 October 2022. In the stage 2 response, the landlord stated that there had been “a significant amount of activity” to investigate and address the issue with the gates. It said that it had a new contractor with responsibility for the gates and that they had been instructed to carry out condition surveys to identify common faults and suggest any appropriate improvements. While this would be appropriate action and the statements were not disputed, the Service notes that the landlord has not provided us with any evidence to support them.
On 13 March 2023, the resident emailed the landlord to report that the car park gates were broken and remained in the open position. This was a new fault and had occurred several months after the previous issue which had been resolved and addressed via the landlord’s complaints procedure. There is no evidence this particular issue was addressed subsequently via the complaints procedure and the landlord has not had the opportunity to respond formally to this new concern. Therefore, this particular issue falls outside of the scope of this investigation, as the Service can only investigate issues that the landlord has had the opportunity to respond formally to.
There is no evidence to support a finding of service failure or maladministration for this part of the complaint. There is no evidence that the landlord’s statements about this issue in its stage 2 response were disputed. Therefore, affording the landlord the benefit of the doubt, the Service accepts that it is likely that the landlord had taken reasonable steps to fix the car park gates in 2022. However, the Ombudsman’s investigation into this has been frustrated as a result of poor record keeping by the landlord. As the Service cannot make an active finding on this issue based on evidence, it will therefore be appropriate to make a maladministration finding on record keeping as a result of the significant limitations this investigation has experienced.

Reports of antisocial behaviour (ASB) in the car park and within the block’s communal areas

The stage 1 complaint response issued to the resident on 8 August 2022 referred to the resident’s complaint about ASB in the estate’s car park and within some communal areas of the various blocks of flats. However, as with the other complaint issues addressed in this particular letter, the response was inadequate. The landlord stated that “the anti-social behaviour has dramatically reduced” following it having fixed the car park gates. It failed to assess its handling of the issue. The landlord has not provided the Service with any records relating to the resident’s original reports of ASB or their original complaint. This further supports the Ombudsman’s finding of maladministration in record keeping.
The landlord has provided evidence of having opened new cases following reports of ASB in communal areas from the resident’s neighbours, on 30 August 2022 and 2 September 2022. It is unclear whether these neighbours lived in the same block as the resident’s flat. The landlord has not provided any evidence that it opened an ASB case following reports from the leaseholders’ son. This may have been because he is not one of the landlord’s leaseholders or tenants. However, if there had been a reasonable suspicion that the ASB was being caused by the landlord’s tenants (or their household members), the landlord would have been obliged to handle and respond to the reports regardless of the tenure of the complainant. The landlord has not provided any evidence of how it handled the resident’s initial report(s), including whether it carried out risk assessments.
An email from the landlord to the resident dated 6 September 2022 stated that the landlord had believed the ASB had stopped but understood the resident had recently advised it otherwise. It apologised that the resident had not received a call back and stated that a referral had been made to the local authority’s homelessness service concerning the homeless man seen in the car park and communal areas. The landlord stated that one of its officers would be in contact with the resident to find out further details. While this response was reasonable, the landlord has not provided any evidence that it did follow up on the promise to make further enquiries with the resident, as it should have.
The landlord’s stage 2 complaint response of 16 October 2022 also included the ASB concerns. It again failed to assess its handling of the reports against its policy and procedure. It stated its belief that the ASB had reduced following improvements made to the security of the estate by fixing the car park gates. The landlord acknowledged that it needed to do more to improve the estate’s security. While the landlord’s response was reasonable, there is little evidence of it having followed procedure upon having received the reports.
On 26 October 2022, the resident emailed the landlord and suggested it installed anti climb spikes on the car park gates. They stated that they hoped the landlord would consider installing these despite its health and safety concerns about them, and that it re-apply the anti climb paint. A further email from the resident on 31 October 2022 described young people climbing the car park gates, stealing bikes, and causing damage. Internal emails at the landlord indicated that 3 members of staff had already informed the resident that it would not be installing anti climb spikes. It is understandable that the resident felt they were necessary, however the landlord was entitled to use its discretion in deciding whether or not to install these. It emailed the resident and stated that it would consider the suggestion about paint. This was a reasonable response from the landlord but there remains little evidence demonstrating a proactive approach from it to resolve the ASB.
On 30 November 2022, the resident met with the landlord to discuss the ASB and how young people were gaining access to the blocks and smoking in the water meter room. The landlord has provided no evidence of actions taken following this meeting with the resident. A note from an ASB case opened by the landlord on 17 November 2022 following a report from a neighbour suggested that it had identified the perpetrators were not its tenants. It had established they were gaining access to the blocks by using the door entry code. The landlord noted it would “look into” getting the door entry codes changed. This would be a reasonable action to take, but there remained a lack of evidence of the landlord following a set procedure, risk assessing, or taking any proactive action.
The resident reported issues with young people risking damage to parked cars by throwing bikes about, on 5 March 2023. The issue with young people gaining unauthorised access to blocks continued, with the resident reporting 3 individuals in their block on 8 March 2023. The resident had put up posters to ensure all residents checked they had closed the communal doors properly upon their exits. They asked if the landlord had a better plan to assist. It was evident from their email that the landlord planned to carry out door repairs and door code changes to improve security. This was likely to be an effective solution to the problem. However, the landlord has not provided any evidence of short term interventions designed to mitigate the issue while longer term solutions were implemented.
The resident emailed the landlord on 25 March 2023 and said they had not received a response to their email of 5 March 2023 and that there had been a further incident of ASB concerning bikes in the car park the previous night. The resident asked the landlord to check the CCTV. They also requested that it communicate to all residents asking them to padlock their bikes and that any left unaccounted for by a certain date, would be scrapped. It should not have been necessary for the resident to make these suggestions to the landlord, especially considering the absence of evidence that the landlord was making similar suggestions itself.
The resident reported a similar incident on 10 April 2023. There is no evidence the landlord responded or took any action. This was maladministration. The impact on the reported actions were likely to affect a number of the landlord’s residents and it had a duty to act on these reports regardless of the tenure held by the person reporting. The landlord stated to the Service that it could not provide any completed risk assessments from its ASB hub and that it had not identified any perpetrators. It stated that it felt there was little it could do when the physical security of the estate had not been addressed. While this was undoubtedly a difficult problem to resolve, the landlord has failed to demonstrate that it took a proactive approach. The resident appeared to provide more ideas to the landlord about potential actions and there is no evidence that these had been implemented or reasons given for why they had not been. The landlord provided the Service with a list of interventions it took, but has provided insufficient evidence of having taken appropriate short term action.
The leaseholders have brought this complaint to the Ombudsman, which they were entitled to do given the legal contract they have in place with the landlord. The landlord has a duty to handle these reports appropriately regardless of who makes them. However, given the leaseholders did not live on the estate, they were unlikely to have been directly affected by the ASB as described.
It is unclear whether the same record keeping or record provision problem has meant that the landlord has failed to demonstrate adherence to its policy and procedure rather than it actually failing to do so. However, the onus is on the landlord to demonstrate it has met its obligations to the leaseholders and it has made an unsatisfactory case that it has done so. The record keeping review that the landlord has been ordered to carry out will necessarily include a review of how it records and provides records of its ASB case handling. The landlord must also take reasonable steps to ensure that its staff have had appropriate training in how and when to carry out risk assessments following reports of ASB.
The resident has indicated to the Service that the ASB issues persist and remain unresolved. The landlord will be ordered to provide the Service with an update on the current situation with ASB on the estate. If the issues described in this report persist, it will be necessary for it to provide an action plan setting out reasonable steps it can take to resolve outstanding issues as soon as is practical.

Complaint handling

For clarity, this report has included assessment of the landlord’s complaint handling alongside each assessment of each substantive issue, due to different matters being handled across separate complaints. There were clear delays to some of the responses being issued and insufficient communication with the resident about these. Some delays cannot be adequately assessed due to poor records. However, service failure has been found as a result of delays to complaint responses and a poor response issued in August 2022. The landlord failed to adequately manage the leaseholders’ son’s expectations about their obligations towards him as a leaseholder tenant. He was also entitled to make the complaint about ASB regardless. If the landlord accepts a complaint then it should commit to handling it appropriately or else provide a reasonable explanation for refusing to accept the complaint.
In an undated email sent by the landlord to the leaseholders’ son in September 2022, the landlord stated that it had discussed with him its approach to his communications, at the recent ‘fun day’. It reiterated that due to the volume of his contact, it had decided to review his emails at regular intervals and provide a single response within timeframes set by the landlord according to staff members’ schedules. It was reasonable for the landlord to implement this system in order to manage high volumes of contact from an individual it has not signed a contract with. However, it is important that the landlord is able to identify urgent requests for assistance that it may be reasonable for it to respond to. The leaseholders’ son may consider, where an urgent issue arises, that it may be more appropriate for him to contact his parents, as their tenant, so that they may contact their landlord if there is an issue that affects them and/or their property.
The leaseholders’ son routinely added a request to his email communications for the landlord to respond to him by a certain time or date, sometimes within 2 working days. The Service would not find against the landlord for not meeting these requests. This is because the landlord is entitled to take a reasonable amount of time to respond to resident contact and also to manage its workload as it believes appropriate. Without a contract with the leaseholders’ son or an agreement that he represents his parents, there had been no undertaking to adhere to its policies and procedures in its communications with him. The Ombudsman generally recommends that the landlord respond to resident communication in line with any published timescales it may have, or adhere to established good practice. The Ombudsman would consider 10 working days to respond to residents as good practice, unless the issue is urgent or an emergency.
The landlord did not offer any remedies to the resident as part of its complaint responses, with the exception of a £50 offer of compensation made in the stage 2 response dated 16 October 2022. This was offered as remedy for failing to issue the response within its published timescales. The landlord has provided evidence that by time it made the payment, it had increased the offer to £100. The payment was made to the leaseholders’ son. The Service would not expect the landlord to compensate someone for its service failure in the absence of any agreement to provide a service. Therefore, the landlord’s decision to pay compensation for providing an unsatisfactory service was reasonable. Given that there was no obligation on the landlord to compensate the leaseholders’ son, there is no scope for us to assess whether the offer was proportionate in the circumstances or not.
In recent communication with the Service, the leaseholders have stated that they have been distressed by seeing the impact of these issues on their son and his family. While this is noted, and not disputed, it has not been reflected in the evidence. There is no evidence the leaseholders contacted the landlord on their son’s behalf about these concerns, or that their son referred to the impact on the leaseholders in his communications with the landlord. Therefore, while their comments have been taken into consideration, the evidence does not suggest that further compensation or remedy is warranted in respect of this.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was:
1. Service failure in the landlord’s handling of the resident’s reports of fly tipping in the bin store.
2. No maladministration in the landlord’s handling of the resident’s concerns with the caretaker’s performance.
3. No maladministration in the landlord’s handling of the resident’s reports of repairs required to the external communal doors of the building.
4. No maladministration in the landlord’s handling of the resident’s reports of repairs required to the car park gates.
5. Maladministration in the landlord’s handling of the resident’s reports of antisocial behaviour (ASB) in the car park and within the block’s communal areas.
6. Service failure in the landlord’s complaint handling.
7. Maladministration in the landlord’s record keeping.

Orders

Within 4 weeks of the date of the determination, the landlord is ordered to:
1. Review the leaseholders’ service charges for communal waste removal and disposal for the years 2022-2023 and 2023-2024. It must consider making a proportionate refund to the leaseholders in recognition of any potential unreasonableness if this charge has been increased despite delays in taking reasonable steps to address fly tipping. The landlord must provide the Ombudsman with evidence of its considerations and the outcome within 4 weeks of the date of this determination. If it decides that making a refund to the leaseholders would be reasonable, it should also provide evidence that it has done so.
2. Provide evidence that it has taken reasonable steps to ensure that its front line ASB staff receive, or have received, recent training in how and when to carry out and record risk assessments following reports of ASB.
3. Provide the Ombudsman with a summary of any current ASB issues affecting the estate’s car park and communal areas as a result of any continuing site insecurity, or confirm that there are no current issues. Where concerns have been identified, the landlord must also provide an action plan setting out reasonable steps it can take to resolve them. It must provide evidence that it has taken those steps within a reasonable timeframe.
The landlord must review its record keeping processes and record accessibility with a focus on repairs and maintenance, ASB, and customer communication, against the Ombudsman’s Spotlight on Knowledge and Information Management (KIM) report, which is published online. The review should include an action plan designed to ensure that adequate records are kept, with a view to improving its services and to ensure these records are appropriately accessible to support Ombudsman investigations. It must provide the Service with a copy of its findings within 6 weeks of the date of this determination.

Recommendations

The landlord should consider meeting with the leaseholders and their son to formalise the arrangement between them and determine whether the leaseholders’ son wishes to act as a representative for his parents. It should also seek to establish a mutually acceptable communication protocol. The meeting should also be conducted with a view to clarifying the landlord’s legal and contractual obligations, and to whom those are owed. The landlord has a duty to appropriately manage its resources and therefore it should manage expectations about the extent to which it can act beyond its obligations to third parties.