Home Group Limited (202204375)

REPORT

COMPLAINT 202204375

Home Group Limited

24 July 2023

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

1. This complaint is about the managing agent’s response to:
   1. Damage caused by a pigeon infestation.
   2. Reports of inconsiderate use of the communal car park.
   3. Reports of insufficient cleaning of the communal bin area.
   4. Requests for a refund of service charges.
2. This Service has also decided to investigate the managing agent’s complaint handling as part of this report.

Background

3. The resident is a leaseholder of a two-bedroom flat in an apartment block. The flat has a 10m terrace on the outside of the property overlooking the car park. The resident purchased the lease on their flat in August 2020.
4. The respondent in this complaint is the managing agent of the apartment block. The resident’s lease is with a landlord who is not a member of the Housing Ombudsman Scheme. The flat is in a new building, with some parts of the estate still being constructed.
5. The resident first raised concerns in March 2021. They told the managing agent that a resident of another flat was using a parking bay for a commercial vehicle, which they believed violated the terms of the lease. The managing agent confirmed that it would begin parking enforcement shortly. In July 2021, the resident raised concerns that pigeons were causing damage by defecating on their terrace. They also raised concerns that the bin area smelled bad and did not seem to be cleaned as often as it should.
6. On 12 August 2021, the resident raised a complaint to the managing agent. They complained that:
   1. Pigeons were regularly defecating on the resident’s balcony, rendering it unusable. The resident wanted the managing agent or landlord to install pigeon-proof measures.
   2. Another resident was regularly using their parking bay for a commercial vehicle which was too big for the space. This meant the resident found it difficult to use their own space.
   3. That the bin area was not cleaned regularly enough. This caused a smell and a fly infestation near the resident’s terrace.

The resident said that they would not pay service charges while these issues remained outstanding. The resident alleged that other leaseholders were not being treated the same and they felt that this was discrimination.

7. The managing agent acknowledged the complaint on 28 August 2021 confirming the aspects they would investigate. This included:
   1. Whether pigeon-proofing measures could be provided (eg netting, pigeon spikes). This included why spikes were provided in another property.
   2. Further information about using hawks to control pigeon populations and what measures were expected in future.
   3. Whether another food waste (brown) bin could be provided, and the area jet washed more regularly.
   4. To investigate the use of the parking bay by another resident.
   5. General information in respect of service charges and fire safety.
8. The managing agent wrote to the resident on 7 September 2021 with its response to stage 1 of the complaint. That response confirmed:
   1. There would be hawk flights around the building to prevent pigeons nesting.
   2. It was commissioning a further report into the suitability of other pigeon-prevention measures it could take.
   3. An additional food waste bin would be provided.
   4. The managing agent was trialling a jet-wash service for the bin area and would decide whether to roll this out in future.
   5. It was awaiting updates from the landlord and solicitors on all other aspects.
9. The resident escalated the complaint to stage 2 of the managing agent’s process as they did not feel that the complaint was fully responded to. The managing agent wrote to the resident on 22 September 2021 to confirm it had accepted the escalation. It provided further information on the investigation, confirming that netting and canopies could not be installed as these were considered a fire risk. It also confirmed that it would not clean the resident’s terrace.
10. No further communication was made with the resident until 15 November 2021. The managing agent suggested in its emails that this was because of a staff shortage and excess volume of complaints. The managing agent then said it would send weekly updates to the resident until the complaint was resolved.
11. The managing agent sent its final response on 21 December 2021. In its final response it said:
    1. It needed a holistic solution for the pigeon problem across the whole block. Therefore, it would await recommendations from its contracted pest controller.
    2. Additional food waste bins had been provided and the bin storage area would now be cleaned weekly.
    3. It was unable to enforce any terms of the lease in respect of car parking.
    4. It offered £110 compensation in relation to the complaint. This was split as:
       1. £55 in recognition of its failures in relation to cleaning.
       2. £55 in recognition of its failures in relation to complaint handling.
12. Since the final response was issued, the managing agent and the resident have continued to liaise regarding the complaint. In April 2022, the landlord completed some pigeon spiking works on the front of the building, the other side to the resident. The resident reported that this led to an increase in pigeons nesting on the same side of the building as their terrace. The resident wished to raise a further complaint about this.
13. In July 2022, the resident wrote to the managing agent to ask that the communication in April 2022 be responded to. There is no evidence of any response to this communication. The resident escalated their complaint to the Ombudsman in August 2022. The resident told this Service that all issues remain outstanding although the managing agent has since promised to install pigeon spiking on their side of the building and clean the terrace. Subsequent complaints have also been raised to the managing agent although these are outside the scope of this report.

Assessment and findings

Scope

14. The resident has complained to the managing agent, who is a member of the Housing Ombudsman Scheme. However, in reviewing this complaint, we are only able to investigate whether the managing agent has behaved fairly in respect of its responsibilities. Where the responsibility falls to the landlord, who is not a member, we are unable to make any judgements about what is fair and reasonable.
15. According to the management contract sent through to this Service, the managing agent has responsibility for managing any “services” the landlord would provide under the lease. There is no exhaustive list as to what constitutes a service and therefore, we have taken the view that it is any regular duty or responsibility a landlord would be expected to provide, for which a regular service charge is payable.
16. The resident has further complained that they want a reduction in their service charges to account for the failings they allege. While the managing agent is responsible for collecting service charges, it is not responsible for setting the level of those service charges or determining what is included in those service charges. As such we are unable to investigate whether a service charge refund is due.

Pigeon infestation

17. The lease does not have any information about what the landlord would be expected to do in terms of a pest infestation. Generally speaking, we would normally expect a landlord to be responsible for pest infestations in the common areas of a building, but not inside individual flats. An exception to this would be where structural defects allow an infestation to enter the building.
18. In this case, the infestation is being caused by birds, rather than mammals. Therefore, it is not possible to prevent all infestations onto areas such as balconies or outdoor terraces. However, where there is evidence that the birds have nested in or on the building, (in common parts such as the structure or balconies) the landlord would be responsible for providing a pest control service.
19. The resident’s main concern in respect of the pigeons was the mess being left on their terrace. The resident has considered this as damaging the terrace. The lease does state that residents are responsible for keeping the terrace clean. We think this term is reasonable except where there is evidence that the mess, or damage, is being caused by a landlord’s, or managing agent’s, failure to act on an infestation.
20. There is evidence that the managing agent was told of the infestation in July 2021. In October 2021, it consulted a pest controller to survey the property to establish a plan to remove the birds from the building. That survey found that the birds were nesting in common areas of the building, such as under balconies and in drainage pipes. A number of bird of prey flights were conducted to deter the pigeons from nesting however this was not completely successful. The consultation report sent to us shows that a recommendation was made to install spiking on gutters and around vents on the resident’s side of the building.
21. While pest control in common areas would be considered a service for which the managing agent is responsible, alterations to the property would not. The managing agent told the resident that it was unable to recommend canopies be installed as the landlord said this would be a fire risk. This is within the landlord’s discretion and not the managing agent’s, therefore we cannot comment on this decision. The spiking suggested would also be a building alteration within the landlord’s discretion. It is understood that the managing agent now has the necessary permissions to install this spiking, which is positive.
22. Although the managing agent’s discretion to take preventative measures was limited, it was required to deal with the infestation in the common areas. The evidence suggests that it did not do enough to take remedial action once it became aware of the infestation. As a result, further damage is likely to have been caused to the resident’s balcony by the defecating birds. It would have been reasonable for the managing agent to arrange regular cleaning of areas affected by the birds, considering this responsibility.
23. In January 2023, the managing agent wrote to residents to confirm that the spiking would be installed and affected balconies and other areas would be cleaned. We understand that this has not yet happened, but we are pleased to see that the managing agent is taking this step. However, due to the delay in taking this action we have found that there was maladministration.

Car parking

24. The lease explains that residents have the use of the communal car park. They may park one private vehicle in their allocated bay. The lease also defines the car parking essential services for which the landlord is responsible. We have inferred from the managing agent’s contract that these are services for which it is responsible. These include:
    1. Keeping the car parking area in good repair.
    2. Keeping the car parking area clean, unobstructed, and adequately lit.
    3. Maintaining and repairing access systems.
    4. Maintaining and repairing firefighting equipment.
25. The resident first told the managing agent in March 2021 that another resident was using their parking bay for a commercial vehicle. The resident said that this was limiting their ability to use their own parking bay. The managing agent responded to the resident to confirm that it wrote to all residents to remind them of the limitations on the use of the car park. It also said that it intended to contract a parking enforcement company. Signage was also placed in the car park to remind residents on proper usage of the car park.
26. During the complaint, the managing agent told the resident that it could not take any action against the other resident using the parking bay for a commercial vehicle. While the lease terms prohibited this, it was outside the managing agent’s authority to enforce the terms of the lease against a resident. This was the landlord’s responsibility.
27. Broadly we agree with the managing agent’s interpretation of this aspect. However, the definition of management in relation to the car park is quite loose. The managing agent was responsible for keeping the area “unobstructed” which would reasonably include situations where the car park was being obstructed by a resident’s vehicle. We have not seen any evidence that the managing agent sought to engage with the resident to prevent them using the car park in a way which obstructed other residents’ access. It would have been good practice for the managing agent to write to the other resident directly (as opposed to a general letter to all residents) to prevent inconsiderate parking.
28. It has since been established that the other resident using the bay for a commercial vehicle may have a deed of variation to their lease allowing such use. That is a matter for the landlord. Despite this, the managing agent would still be responsible for ensuring the car park remains unobstructed. However, the evidence suggests the managing agent did not carry out this responsibility as it took no steps to manage the reported obstruction. As such, there has been service failure.

Bin area

29. The managing agent has responsibility for cleaning the common areas of the building. It also has responsibility, as established above, for pest control in common areas. The resident said that the lack of cleaning led to a constant smell outside their window and flies regularly swarming into their flat. At the beginning of the complaint, the managing agent acknowledged that there were insufficient bins for the number of residents and procured an additional food waste bin. Since then, the managing agent conducted weekly cleaning of the bin area, which includes removing any improperly dumped waste.
30. The resident disagrees that the bin area is being cleaned every week and states the issue is still present. The managing agent inspected the resident’s flat and found no infestation of flies and that there was no obvious smell from the bin area. There is evidence from the managing agent that there has been several notices to the cleaning contractor where cleaning has not been completed in line with expectations. The managing agent also offered £55 in recognition of its failures in respect of cleaning.
31. This would suggest that there is no dispute that cleaning is not always completed in line with expectations. However, it is not possible for us to categorically say whether cleaning has been completed or not. We would expect the managing agent to keep a record of cleaning logs which should be available to the resident on request. The managing agent should also make available any reports it produces in respect of cleaning inspections. Ultimately, while this activity is being carried out by a third party, it remains the responsibility of the managing agent. On the basis that there is a lack of evidence in respect of cleaning, and no evidence has been provided to the resident in respect of cleaning, there has been a service failure.

Complaint handling

32. The managing agent’s complaints policy explains the following timescales:
    1. At stage 1 complaints should be responded to within 10 working days.
    2. At stage 2 complaints should be responded to within 20 working days, except in exceptional circumstances.

It also contains a number of “standards” it intends to follow when managing complaints such as:

3. Timely and effective complaint handling.
4. Taking a positive approach.
5. Communication.

33. The Housing Ombudsman Service expects landlords, and managing agents, to abide by the Complaint Handling Code on our website. This sets out general principles of complaint handling as well as practical advice and guidance on managing complaints. This includes things like:
    1. communication
    2. record keeping
    3. putting things right
    4. learning.
34. The managing agent’s timescales follow those laid out within the Complaint Handling Code. However, the managing agent in this case took just under four weeks to issue its stage 1 response. In that response there was insufficient information to consider the complaint closed. The managing agent said that it was awaiting additional information from the landlord and its legal team, however, it is not reasonable for there to be such a delay in obtaining that information.
35. The resident escalated their complaint to stage 2 due to the lack of information provided. The managing agent acknowledged receipt of the escalation shortly after it was raised. However, it did not contact the resident again until two months later. It said that it was short-staffed at this time, but in our view, this is not justification for failing to contact the resident. It then contacted the resident on a weekly basis before issuing its final response three months after the stage 2 complaint was raised. Again, that response stated it needed further information in relation to the pest controller’s report.
36. There is evidence that the managing agent has not kept accurate records in relation to this complaint. In particular, its notes suggest that the stage 2 escalation was raised when it picked the complaint up again in November 2021. Accurate record keeping is important to ensure that learning takes place from complaints and complaint failures. The matters responded to within the complaint also appear to still be under investigation, which suggests a lack of robustness in its response. This could reasonably lead to the resident losing faith in the managing agent’s responses.
37. The managing agent did acknowledge some of these failings in its final response, offering £55 compensation for its delay in responding. In our view this adequately compensates for the delay. However, we consider that there has been further service failure due to the partial nature of the responses and the fact that the investigation was not completed at the time the final response was issued.

Determination

38. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there has been maladministration in the managing agent’s response to reports of a pigeon infestation in the resident’s building. This is because it did not accept sufficient responsibility for removing the pigeons once they had nested.
39. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there has been service failure in the managing agent’s response to reports of inconsiderate use of the communal parking area. This is because it did not exercise its responsibility to manage the parking area, despite not being able to take action in respect of another resident’s lease.
40. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there has been service failure in the managing agent’s response to a lack of cleaning in the communal bin area. This is because it could not evidence that cleaning was taking place in line with previous promises.
41. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there has been service failure in the managing agent’s complaint handling. This is because it did not fully investigate the complaint before issuing a response.

Orders and recommendations

Orders

42. The managing agent is hereby ordered to pay £510 in compensation to the resident. This is inclusive of the £110 previously offered. It is broken down as follows:
    1. £200 for distress and inconvenience caused by its failure to respond to damage and mess caused by a pest infestation.
    2. £100 for inconvenience caused due to its failure to carry out activities which it was able to do in respect of managing the communal car parking area.
    3. £50 for distress caused by failure to provide evidence in respect of cleaning.
    4. £50 for distress and inconvenience caused by failures in its complaint handling.
    5. £55 already awarded in respect of failure to clean areas of the building.
    6. £55 already awarded in respect of delays in the complaint handling process.
43. The managing agent should write to the resident with confirmation of how it intends to deal with the pigeon infestation and its intention to complete any required cleaning. This should include specific timeframes for completion.
44. The managing agent should provide evidence of compliance with the above orders within four weeks of the date of this report.

Recommendations

45. There seemed to be confusion in respect of the separation of responsibilities between the landlord and the managing agent. The managing agent should consider writing to residents to confirm areas where it is, and is not, responsible in respect of communal services.
46. The managing agent should review its communication with the landlord to ensure it is able to access required information in a timely manner in respect of complaints.
47. The managing agent should ensure that the ongoing complaints are responded to in full and with sufficient information to allow the resident to escalate their complaint to this Service if desired.