Derwent Housing Association Limited (202010657)

REPORT

COMPLAINT 202010657

Derwent Housing Association Limited

25 November 2021

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

This complaint is about how the landlord handled:
1. The resident’s report of fly-tipping outside her property following a mutual exchange.
2. A report that the resident had disposed of rubbish in bins allocated to other properties.
This complaint is also about the landlord’s complaint handling.

Background and summary of events

On 12 October 2020, the tenancy was assigned to the residents by way of mutual exchange. The residents, Mrs and Mr X, had been joint tenants of the landlord since 6 July 2018. The property is a two bedroom flat over garages. This service has seen sight of evidence that the landlord was aware the Mrs X suffers from ‘’moderate anxiety disorder, moderate mobility issues and a life limited condition’’.
On 19 October 2020, Mrs X reported that on her return home that day she had found fly-tipping (including a carpet, a wooden planter and a roman blind) outside her front door. Mrs X alleged that the tenant she had exchanged with had dumped the rubbish and that both her and her husband were disabled and so could not move it, which meant they had to climb over it the best they could.
The housing officer called the alleged perpetrator the same day. The perpetrator admitted fly-tipping outside the residents’ garage, not their front door. The housing officer advised the perpetrator to remove items as fly-tipping was an offence.
On 20 October 2020, Mrs X called the landlord to advise that the fly-tipping had been moved to the car park and so now no one could get in or out of the car park. The landlord advised Mrs X to report the matter to the Police and the Council.
The residents’ housing officer received an email from the Police on 21 October 2020, which was followed up with a further email on 26 October 2020. In its email of 26 October 2020 the Police said that as the matter related to fly-tipping it was most likely a civil matter that would need to be dealt with by the Council. The Police emailed the Council the same day suggesting that some form of enforcement action would be suitable against the perpetrator.
On 26 October 2020, Mrs X called the landlord to advise that the fly-tipping was still there, having been there for more than seven days, that she suffered from anxiety and that she was constantly being harassed by people as they could not get in or out of the car park.
On 28 October 2020, the Council advised the landlord that it had visited the property, confirmed that rubbish was in the car park and that as it was on private land it would be for the landlord to remove it. The Council also said that if the landlord wanted them to proceed with legal action against the perpetrator the landlord would need to submit a formal statement.
The landlord contacted the perpetrator the same day to advise them that, as they had admitted to leaving items, the Council would go ahead with enforcement action if they did not remove them. The fly-tipping was removed by the former tenant the same day.
On 29 October 2020, Mrs X called the landlord to complain about the way it had handled her report of fly-tipping outside her front door. Mrs X said that the landlord had failed to take into consideration her anxiety and the additional stress this matter had caused her. Mrs X said that her housing officer had treated her badly and made her do all the running around, that the housing officer had said that the landlord could not get involved and that it was only when it came to prosecution that the landlord took any action. A call back request was made for the housing officer to call Mrs X to discuss her concerns.
On 30 October 2020, the landlord sent a warning notice to the perpetrator to advise that should it receive any further complaints it would take further action against her to enforce the terms and conditions of her tenancy agreement.
On 6 November 2020, the housing officer contacted Mrs X to advise that they had received a report that she had been seen leaving a large cardboard box with Mr X’s name on it by the bin stores that were for the flats only and asked that Mr and Mrs X refrain from using that area again. The housing officer advised Mrs X that going forward such items should be stored in their garage prior to being disposed of.
Mr X complained to the landlord in letters dated 11 November and 25 November 2020 about the landlord’s call to his wife on 6 November 2020 and about the upset and distress this had caused her. Mr X said that he did not agree that the area where the cardboard had been left was not for their use, that the landlord was or should be aware that Mrs X had numerous disabilities which caused her to react badly to stressful situations and that following the housing officer’s call on 6 November 2020 he had to spend the next 24 hours calming Mrs X down and getting her anxiety under control.
Mr X also complained that the landlord had not been interested when they reported that the previous tenant fly-tipping outside their home and had told Mrs X that she would need to sort it out. Mr X said that landlord could have done this at any time instead of making his wife ‘‘jump through hoops’’ for weeks and suffering anxiety due to the large pile of rubbish outside.
The landlord provided an initial response on 19 November 2020, followed by a formal stage one complaint response on 15 December 2020. The landlord did not uphold the complaint, saying that it was satisfied that it had dealt with both Mrs X’s report on 19 October 2020, and the later report that Mrs X had left cardboard in the communal bin store, in line with the correct procedures. That landlord also said that Mr X’s allegation that it had been vindictive and harassing was found to be without foundation or evidence and that the reason for two issues being dealt with separately was that the fly tipping was left in front of the resident’s own property and the cardboard had been left in the communal space.
The landlord said that it was sorry to read that Mrs X ‘‘reacted badly’’ following the housing officers call on 6 November 2020. Whilst it was aware of Mrs X’s anxieties and disabilities, the landlord said that it had contacted Miss X on several occasions regarding a number of different matters and so it did not believe it was reasonable for its housing officer to know that Miss X would react badly to the call.
Mr X emailed the landlord on 5 January 2021 to escalate his complaint. Mr X said that the landlord had not satisfactorily explained why it had refused to get involved following his wife’s report of 19 October 2020, causing unnecessary anxiety to her when the matter could have been dealt with earlier. Mr X also challenged the landlord’s position with regards to the cardboard stating that cardboard was left in that area and was collected by the refuse collectors on a weekly basis.
The landlord issued its final response on 2 February 2021, maintaining its position that there was no service failure with regards to the actions it had taken following the residents’ report of fly-tipping on 19 October 2020 and that, as per its telephone conversation with Mrs X on 11 January 2021, it was in the best interest of all involved for the perpetrator to remove the rubbish thus avoiding unnecessary time and cost of a prosecution. The landlord also said that, despite both parties to the mutual exchange signing a disclaimer that they would both be responsible for their own belongings, it did get involved in order to try and speed up the process.
The landlord explained that the reasons it did not raise an order to remove the fly-tipping when it was first reported was because it believed it to be on the resident’s property, there was no evidence to suggest that the rubbish itself was food or any type of hazard and because the Police were involved. The landlord apologised to the resident for any undue stress this situation had caused and said that its intention had been to resolve the situation as quickly as possible, in conjunction with the relevant authorities.
With regards to the way in which the cardboard matter had been dealt with, the landlord acknowledged that the residents had a recycling bin on order from the Council, that this was therefore just a timing issue and that the residents believed that they were doing nothing wrong. The landlord explained that the communal areas of the flats were not included as part of the residents’ service charges, that the area in question was for the use of the flats only and that if everyone was to use that area it would soon become unmanageable.
The resident’s complaint came under the formal remit of this service on 31 March 2021. The resident complained to this service that:
1. The landlord adopted different stances when dealing with her reports of fly-tipping by the previous tenant and when dealing with her leaving cardboard in the communal bin area.
2. The landlord should have done more to address the rubbish dumped outside their property as it took 9 days to resolve and involved her having to contact multiple parties.
3. The landlord should have been more sensitive to her anxiety issues and not ‘‘harassed or threatened’’ her about leaving cardboard in the communal bin area.
4. The landlord had not addressed, and showed a lack of empathy with regards to, her disabilities which caused her considerable stress and anxiety.

Assessment and findings

Relevant agreements, policies and procedures.

Both the residents’ and the perpetrator’s tenancy agreements state that they must make sure that they do not cause or behave in a way that is likely to cause a nuisance or annoyance to another person.
As part of the mutual exchange process, both parties signed a disclaimer that they would accept responsibility for any rubbish or items left in or outside of the property following the exchange.
The landlord’s Breach of Tenancy Procedure states that the landlord should remain vigilant to identify possible tenancy breaches in relation to fly-tipping and misuse of bin areas. The procedure goes on to state that where investigation produces evidence of the perpetrator’s identity, the landlord will explain the concerns to the tenant and give advice on how to dispose of rubbish legally. There is an expectation that there would be an immediate change to the behaviour following this intervention. If the perpetrator does not remove the fly-tipping the landlord will remove it and recharge the tenant for the cost of removal.
The landlord’s Customer Feedback Policy states that a complaint is an expression of dissatisfaction, about the standard of service, actions or lack of action affecting an individual customer or group of customers, where the initial response is not proven satisfactory.
The Ombudsman’s Remedies guidance suggests awards of compensation of £50 to £250 for instances of service failure which had an impact on the resident, including distress, inconvenience, time and trouble, but was of a short duration and may not have significantly affected the overall outcome for the resident.

How the landlord handled the resident’s report of fly tipping following a mutual exchange.

In its final response the landlord said that it was in the best interest of all involved for the perpetrator to remove the rubbish thus avoiding unnecessary time and cost of a prosecution. This was a reasonable stance for the landlord to take however, this is not what the landlord did.
The landlord acted promptly in response to the resident’s report of fly-tipping, calling the alleged perpetrator who admitted that they had left the rubbish but that they had left it outside the resident’s garage and not their front door. At that point it would have been reasonable for the landlord to have advised the perpetrator that leaving rubbish outside Mr and Mrs X’s property had caused them a nuisance, that this could constitute a breach of the perpetrator’s tenancy agreement and therefore should be removed. The landlord did warn the perpetrator that dumping the rubbish was an offence but there is no evidence of the landlord warning them about the potential breach of their tenancy agreement, thus missing an opportunity to resolve the matter at that time.
The following day, 20 October 2020, Mrs X called the landlord to advise that the fly-tipping had been moved to, and was hindering access to, the communal car park. There is no indication that the rubbish was moved by either Mr or Mrs X. At this point, given that the rubbish was now obstructing a communal area and as the perpetrator had admitted to dumping it, it would have been reasonable to expect the landlord to pursue them again with regards to its removal. The landlord’s breach of tenancy procedure allows for the landlord to advise the perpetrator that if they do not remove the fly-tipping the landlord would remove it and recharge them for the cost of the removal. There is no evidence of the landlord doing so, thus missing a further opportunity to resolve the matter.
Rather than being proactive and pursuing the perpetrator to remove the rubbish, the landlord advised Mrs X that she would need to report the matter to the Police and the Council, which she advised she had already done. The landlord then said that it did not want to intervene due to concerns that the fly-tipping might be used as evidence by the Police. In order for that to be a reasonable explanation, it would be reasonable to expect the landlord to contact the Police to find out if that was the case, and if not, to then continue to pursue the perpetrator for the removal of the rubbish. The landlord failed to do either.
At this point the housing officer went on leave and there is no evidence of any further action being taken until they returned on 26 October 2020, four working days/six calendar days later at which point Mrs X contacted the landlord again to advise that she suffered with anxiety and was being harassed by people as they could not get in or out of the car park due to the fly-tipping.
Between 26 and 28 October 2020, there is evidence of the landlord communicating with both the Police and the Council. By this point the Police had advised the landlord that the fly-tipping was most likely a civil matter to be dealt with by the council. It was only when the Council advised the landlord that it would consider legal action, if the landlord were to provide a statement, and that the removal of the rubbish was the responsibility of the landlord, that the landlord then more forcefully pursued the perpetrator, which it did on 28 October 2020. The rubbish was then removed the same day. The landlord also issued the perpetrator with a warning letter on 30 October 2020.
With the exception of a phone call to the perpetrator on 19 October 2020 and its responses to emails from the Police and the Council, the landlord failed to take any action to pursue the perpetrator for the removal of the rubbish, despite them admitting fly-tipping, until the Council advised that it would consider taking legal action.
The landlord also made reference to the disclaimer signed by both parties to the mutual exchange and implied that this document absolved it of any responsibility to take action. This was not a reasonable approach for the landlord to take. The rubbish was not left following the mutual exchange but rather the perpetrator returned to the property a week later and deliberately dumped the rubbish outside the resident’s property, in breach of the terms and conditions of their tenancy agreement, which the landlord itself acknowledged by issuing the perpetrator with a warning letter on 30 October 2020.
By advising Mrs X to contact the Police and the Council rather than actively pursuing the perpetrator itself with regards to the removal of the fly-tipping, the landlord not only failed to follow its own policies and procedures but also delayed any action being taken to remove it. Whilst the fly-tipping was only present for a total of nine days, its presence, the lack of support by the landlord and having to deal with both the Police and the Council herself caused Mrs X unnecessary anxiety and worry.
To remedy this, the landlord is ordered to apologise to Mrs X and pay £100 for the distress inconvenience its failures caused her.

The landlord’s handling of a report that the resident had disposed of rubbish in bins allocated to other properties.

Having received a report that Mrs X had disposed of cardboard in the bin area allocated to other properties, it was appropriate and in accordance with its Breach of Tenancy Procedure for the landlord to contact the resident to discuss this with her. Having confirmed that the resident had left the items, it was also appropriate for the landlord to explain that the area the cardboard was left in was for the use of residents of the flats and to give advice as to how to dispose of such items going forward. The matter was resolved at that point and no further action was taken.
In its final response the landlord provided further information regarding the arrangements for the disposal of rubbish and acknowledged that at the time the residents had a recycling bin on order from the council and had not realised that they should not have put the cardboard there.
It is clear that receiving the call from the landlord, and being advised that someone had made a complaint about her, caused significant distress to Mrs X. Whilst I appreciate the impact the call had on the resident, the landlord was acting in accordance with its policies and procedures when it made that call and as the landlord explained in its final response and there is no evidence to support Mrs X’s claim that the landlord ‘‘harassed or threatened’’ her. The issue of whether or not it was reasonable for the housing officer to know that Mrs X would react badly to the call has been considered below as part of the landlord’s complaint handling.

Complaint handling

Mrs X initially contacted the landlord on 29 October 2020, to complain about the way it had handled her report of fly-tipping outside her property. Mrs X said that the landlord had failed to take into consideration her anxiety and the additional stress this matter had caused her. A call back request was made for the housing officer to call Mrs X to discuss her concerns.
The landlord failed to acknowledge Mrs X’s complaint and there is also no evidence of the requested call back being made. Had the landlord done so it would have had the opportunity not only to potentially resolve the complaint at an earlier stage but may also have provided the landlord with opportunity to seek a better understand Mrs X’s disabilities prior to its call to the resident on 6 November 2020, which in his later complaint Mr X had advised had caused considerable upset and distress to his wife.
Given that in his complaint, Mr X had described how upset and distress Mrs X had been following the call of the 6 November 2020 and the impact the call had had on her, it would be reasonable to expect the landlord to acknowledge what it had been told and to show some empathy for the distress reported. Providing empathy allows residents to feel heard by acknowledging their feelings and evidencing that their concerns have been taken seriously even if there was no service failure.
In its complaint correspondence the landlord provided answers to the residents questions about its approach to both the dumping of rubbish and the cardboard being left in the communal bin area of the flats. However, in its stage one response, whilst the landlord said that it was aware of Mrs X’s anxieties and disabilities, it failed to make any reference to the distress that had been reported. In the stage two response, the landlord did apologise for any undue stress that the situation with regards the fly-tipping had caused but again failed to make any reference to the upset and distress reported following the landlord’s call to the resident on 6 November 2020.
To remedy this, the landlord is ordered to apologise to both Mr and Mrs X for its complaint handling failures and pay them a total of £150, made up as follows: £50 for its failure to log Mrs X’s complaint of 29 October 2020 as a formal complaint, £50 for its failure to call her back as agreed and a further £50 for its failure to appropriately acknowledge the distress and inconvenience experienced by Mrs X as a result of the call on 6 November 2020.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of the resident’s report of fly tipping following a mutual exchange.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its handling of a report that the resident had disposed of rubbish in bins allocated to other properties.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its complaint handling.

Reasons

The landlord failed to follow its policies and procedures when dealing with Mrs X’s report of fly tipping. This caused Mrs X unnecessary anxiety and stress having to contact the Police and the Council herself when the landlord could have sought to resolve the issue itself by warning the perpetrator of the risk to their tenancy at a much earlier stage.
It was appropriate and in accordance with its policies and procedures for the landlord to contact Mrs X to discuss the report it had received that she had placed cardboard in an area that was not for her use. The landlord explained that the area the cardboard was left in was for the use of residents of the flats and gave advice as to how to dispose of such items going forward.
The landlord failed to respond to Mrs X’s complaint on 30 October 2020 in line with its complaints process and failed to call Mrs X back to discuss her complaint despite having agreed to do so. Had the landlord done so it may have been able to have resolved the complaint in a timelier manner and it may also have gained a better understanding of Mrs X’s disabilities that in turn may had avoided the upset she felt when she later received the call from the landlord on 6 November 2020. The landlord’s complaint responses also lacked empathy and understanding most especially the Stage 1 response.

Orders and recommendations

Orders

That within 28 days of the date of this determination, the landlord is to:
1. Apologise to Mr and Mrs X for the failures identified in this report.
2. Pay Mr and Mrs X a total of £250 compensation, made up as follows:
  1. £100 for the distress and inconvenience caused by its failure to follow its policies and procedures when dealing with Mrs X’s report of fly tipping.
  2. £50 for its failure to log Mrs X’s complaint of 29 October 2020 as a formal complaint.
  3. £50 for its failure to call her back as agreed.
  4. £50 for its failure to appropriately acknowledge the distress and inconvenience experienced by Mrs X as a result of the call on 6 November 2020.