Lewisham Council (202105460)

REPORT

COMPLAINT 202105460

Lewisham Council

20 December 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

The complaint is about the landlord’s handling of the resident’s reports of noise and fouling caused by birds.
The Ombudsman has also considered the landlord’s handling of the resident’s associated complaint.

Background

The resident and landlord have a secure tenancy agreement. The property is a second floor flat within a 5-storey building. The landlord uses contractors to complete some repairs.
The resident complained to the landlord about an issue with birds at their property in February 2021. The resident said that birds continued to nest on the roof of the property, causing a noise nuisance and fouling on their balcony. The landlord responded on 15 March 2021 and said it could deal with the issue, but the resident would be charged, as it did not provide a free pest control service. The landlord provided a contact email address and telephone number, to signpost the resident to services the landlord could provide.
The resident contacted the Ombudsman on 5 June 2021. They explained that they had an issue with birds nesting on balconies above their property and the roof of the building. The resident said that noise created by the birds would wake them up, “sometimes as early as 5am”, and this was impacting their mental health. They said they had privately purchased “spikes” as a preventative measure for their personal balcony, but the birds continued to fly over them. The resident said the “infestation should be managed by the landlord” and that they had been signposted to the landlord’s environmental health department, but it had said it did not “deal with pigeon infestations”.
The resident contacted the Ombudsman again on 17 June 2021. The resident said they had asked the landlord to escalate their complaint, as they were dissatisfied with its response of 15 March 2021. The resident said they continued to suffer from sleep deprivation due to the noise caused by the birds and they were regularly cleaning up bird droppings. The resident also said that a contractor had been unable to complete a water risk assessment due to the extent of the bird infestation, and as a result they were not using water from the tap.
During internal communication, a contractor confirmed it was “unable to install bird-proofing measures” as this was considered an improvement which it was not permitted to complete. However, the contractor said it had advised the resident they could request permission to install preventative “netting”, but the resident said they had already installed some.
The resident contacted the Ombudsman in October and November 2021 to state they had not received a response from the landlord. The resident confirmed the issue with birds remained outstanding and it continued to impact their health. The Ombudsman contacted the landlord on the resident’s behalf to request a response.
The landlord contacted the resident with a response on 2 February 2022. It referred to a conversation with the resident on 28 September 2021. The landlord said that its contractor was not obliged to implement improvements, such as mesh, CCTV, or solar panels. The landlord provided contact details where the resident could request permission to install mesh and/or bird proofing. It also said the resident could request escalation to “stage 1” of the complaint process if they remained dissatisfied. The resident told the Ombudsman that the landlord should be responsible for the bird issues, that mesh does not prevent noise, and that they remained unhappy with the landlord’s response. This was raised with the landlord on 21 March 2022.
The landlord provided the resident with a stage 1 complaint response on 4 April 2022. The response said:
1. A request to install “bird netting” would be considered an “improvement”, and the contractor was only employed to carry out maintenance of buildings managed on behalf of the landlord.
2. The landlord/contractor was open to consulting with residents regarding the “improvement” and the cost would be recovered through the service charge paid by all residents.
3. The landlord/contractor did not have any objections to residents installing their own netting, providing they obtain written permission from the landlord.
The resident remained dissatisfied with the landlord’s response and requested escalation on 11 April 2022. A stage 2 complaint response was issued on 6 June 2022. The landlord summarised the complaint issues and apologised for the delay in responding, and said:
1. The Ombudsman had contacted the landlord in September 2021 regarding the resident’s reported bird issues.
2. The landlord had suggested the installation of mesh/netting to prevent birds nesting/fouling. This was not a request made by the resident and it apologised for any confusion.
3. The landlord had not received any other complaints regarding birds from residents of the building, but it could conduct a consultation exercise to see if others are impacted.
4. The landlord could not consider installing deterrents, such as roof spikes, unless the majority of residents were in favour. The landlord would also need to consider the cost implications, during a time when funds were being cut and only used for “essential responsive repairs”.
5. The landlord confirmed it was “highly unlikely” that roof spikes would be installed if the majority of residents in the building were not impacted.
6. The next stage, should the resident remain dissatisfied, was a review by an independent adjudicator at stage 3 of the complaint process.
A stage 3 complaint response was issued on 13 July 2022, in which the landlord referred to the complaint as relating to its “unreasonable refusal” to deal with the resident’s issues with birds. The landlord provided a link to the applicable pest control policy which it had relied on during the investigation. It acknowledged that complaint handling had taken longer than it should, but this was due to the impact of COVID-19. The landlord said there was “not a great deal” it could add to previous responses. It said the birds were only adversely affecting the resident, which was not sufficient justification to start a consultation with residents about the possibility of installing deterrents. In any event, the landlord said any deterrents it installed would be unlikely in preventing the birds from causing noise.
The resident contacted the Ombudsman to explain they were unhappy with the landlord’s stage 3 response. The resident said they had been told other residents in the building were having similar issues with the birds. The resident also asked whether it was appropriate that the landlord expected them to suffer just because other residents did not have the same issue.
The landlord provided the Ombudsman with further information, following the completion of its complaint process. It said, “maintenance do not carry out water hygiene risk assessments within tenanted properties, only to the communal tank of which there is one”. The landlord also said:
1. The last inspection had been carried out in September 2022 and “no infestation was identified”.
2. The contractor or independent adjudicator will provide the resident with the outcome of any resident consultation regarding the bird issues.
3. Birds nesting on a balcony would “not be considered an actionable repair”.
The resident told the Ombudsman that the issue with the birds was ongoing as of 22 November 2023, and the number of birds had increased significantly. They said the landlord had told them nothing could be done and that it would not be fair to consult with other residents about installing bird deterrents due to the implicated costs.

Assessment and findings

The resident has reported to the Ombudsman and the landlord that the issues that form the substance of their complaint have impacted on their health. The Ombudsman understands that this situation has been stressful for the resident, and we do not doubt their comments about the effect the issue has on their health. However, it is beyond the remit of this Service to make a determination on whether there was a direct link between these matters and the resident’s health. The Ombudsman has considered any distress and inconvenience the resident may have experienced because of the landlord’s handling of the issues raised in their complaint. We have also considered the landlord’s response to the resident’s concerns about their health.
The Ombudsman must also note that the resident’s property in this case is located in a London borough. Therefore, it is somewhat inevitable that there will be some birds/pigeons in the area, given the location and existing pigeon population. However, the Ombudsman understands the resident’s issue relates to the number of birds and the fact they are nesting on the building.

Noise and fouling by birds

The tenancy agreement between the landlord and resident sets out the obligations for both parties. The agreement includes the clause which requires the resident to “keep clean any private balcony”. This meant the responsibility to clean the balcony of any mess caused by birds fell upon the resident, and not the landlord. However, the landlord has a separate pest control policy which gives residents advice and outlines potential actions it could take when handling issues with birds.
The landlord’s pest control policy reaffirms that private balconies are the responsibility of residents, but states that it can “carry out cleaning and proofing works to lessen health risks from pigeon fouling or roosting”. This indicates that, although it might have required consultation with all residents, the landlord installing a bird deterrent could have been a potential outcome.
The landlord’s response to the resident at stage 3 of its complaint process, suggests that deterrents tend to have the aim of preventing birds from defecating on or around a resident’s property. The landlord said deterrents would be unlikely to prevent noise nuisance and were, therefore, not considered. The Ombudsman understands deterrents specific to birds often aim to prevent them from landing on, nesting in or entering a property. While it cannot be said with complete certainty, a deterrent which prevents birds from landing on a property/building, can prevent a bird from being in the immediate vicinity of a property/building and from nesting on the area where the deterrents are placed. This would indirectly prevent the quantity of birds present and therefore decrease the volume of any noise created by the birds. Therefore, the Ombudsman would have expected the landlord to explore the possibility and feasibility of installing such deterrents.
The landlord’s pest control policy also refers to when an issue is impacting more than one resident, and that a resident should contact their “housing provider” when this occurs. After the resident raised the issued, the landlord and contractor mentioned the potential for a “consultation” with other residents in the block, but later said this was not something it would do as there was not “sufficient justification”, and the issue had only been impacting the resident. The landlord and contractor suggested it would consult with residents of the block on multiple occasions throughout the complaint process. However, the landlord’s stage 3 complaint response seems to contradict those suggestions of a consultation. Therefore, the resident was reasonable in understanding a consultation was not something the landlord would be considering. The Ombudsman has not been provided with evidence to suggest a resident consultation regarding the bird issue took place during or after the landlord’s complaint process.
The Ombudsman is of the opinion that a lack of other complaints or feedback from residents does not suggest the absence of an issue or requirement for the landlord to act. It should also not detract from the importance or relevance of an individual resident’s complaint or complaint issues. Therefore, the landlord’s decision not to conduct a consultation regarding the bird issues, due to the resident being the only complainant, was unfair. The landlord’s suggestion that the cost implication on residents prevented it from consulting with them, whilst an understandable consideration, should not have been a reason to not complete a consultation. The landlord said itself that the cost of any installation of deterrents would be covered by the service charges paid by residents. Therefore, the landlord should have given residents the opportunity to decide whether they wanted bird deterrents installed, rather than making the decision for them.
During internal communication, the contractor informed the landlord that the resident had already installed netting on their private balcony. However, the landlord explained the process of requesting permission to install netting in its complaint response, in February 2022. This demonstrated a failure by the landlord to consider information it had previously been party to. The landlord also suggested in a later complaint response that it had confusion around whether a request to install netting had been made. This was likely to have added to an already distressing situation for the resident, who had been dealing with the bird issue for over 12 months. It was also likely to have caused the resident to lose confidence in the landlord’s understanding of their issue and what they were asking for as a resolution. The Ombudsman expects the landlord to have managed its relationship with its contractor to ensure that the issue and associated complaint were handled efficiently. However, the miscommunication and confusion throughout the complaint process suggests the landlord did not.
The landlord followed its policies when informing the resident they were responsible for their balcony, however, the Ombudsman has found the landlord could have done more to address the bird issue. The lack of investigation or action to prevent noise caused by the birds, meant the resident has continued to live with the issue for a substantial amount of time. The Ombudsman cannot predict what the outcome of a resident consultation would be, but the fact the landlord failed to act when it suggested this was an option meant the resident was negatively impacted and denied a potential route towards resolution of the issue. The landlord also caused and contributed to the resident’s confusion about what it could and could not do to address the noise caused by the birds. Therefore, the Ombudsman has found the landlord must act to put things right for the resident.
The Ombudsman’s approach to compensation is set out in our Remedies Guidance, published on our website. The guidance suggests that an award may be appropriate for cases where the landlord has made an error which adversely affected the resident, and the landlord has failed to acknowledge those failings.
The Ombudsman found that the landlord identified delays and some confusion that it had caused the resident, and apologised in its complaint responses. However, the solution it offered fell short of being proportionate to the failings identified in this report. Therefore, this Service has determined compensation of £400 to be fair and proportionate. This amount considers the landlord’s miscommunication throughout the complaint process, failure to complete a resident consultation when it said it would, and asserting that a consultation may not resolve the issue with noise caused by the birds. The Ombudsman has also made an order relating to a resident consultation later in this report.

Complaint handling

The landlord’s complaint policy provides information about the complaint process, including how to make a complaint and the timescales for responding. At the time of the resident’s complaint, the landlord had a 3-stage complaint process. The timescales for a response at each stage were revised due to the impact of COVID-19. These were:
1. Stage 1 – 20 working days, amended from 10 working days.
2. Stage 2 – 25 working days, amended from 20 working days.
3. Stage 3 – 35 working days, amended from 30 working days.
The landlord has indicated that it received a complaint from the resident on 11 February 2021, which it acknowledged and responded to on 15 March 2021. This was 22 days after the complaint was made and, therefore, outside of the complaint policy timescales. However, this did not have significant impact on the landlord’s overall handling of the complaint or the outcome of the resident’s concerns.
In an email to this Service on 17 June 2021, the resident said they requested escalation of their complaint. The landlord did not provide a complaint response until 2 February 2022, 161 working days after the resident had informed the Ombudsman of their escalation request. This demonstrated a significant failure to respond within the complaint policy timescales and a failure to put things right sooner. This meant the resident was left with an outstanding concern which they had explained was having a substantial impact on their own health and wellbeing.
The resident remained dissatisfied with the landlord’s response and requested escalation through this Service. The contractor issued a response on 4 April 2022. The resident requested further escalation on 11 April 2022, which the landlord responded to 37 working days later on 6 June 2022. It apologised to the resident for the delays at this stage. Following further escalation, the landlord provided a stage 3 complaint response on 13 July 2022.
The Ombudsman has found some minor delays at the beginning and end of the landlord’s complaint process. However, the significant delay between June 2021 and February 2022 meant the resident continued to have an outstanding issue, far outside of the complaint policy’s suggested timescales. While the delay did not have a significant impact on the outcome of the complaint, it did mean it took too long for the landlord to provide the resident with an outcome. Therefore, the Ombudsman has found the landlord failed to provide an appropriate level of service to the resident and must act to put things right.
The Ombudsman has also considered that the resident referred to a risk assessment of the water hygiene at the property, which they claimed had not been completed due to the extent of the bird infestation. This had caused the resident to refrain from drinking the water supplied to their property. The landlord has since confirmed that no infestation was found as of September 2022, however this was not addressed with the resident during the complaint process. The landlord’s failure to do so meant was likely to have added to the distress the resident experienced while their concerns were outstanding, as their concerns relating to the water hygiene were left unanswered.
This Service has determined compensation of £150 to be fair and proportionate to the delays and distress the resident experienced during the landlord’s complaint process. This amount is in line with the Ombudsman’s remedies guidance referenced earlier in this report.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, the Ombudsman has found maladministration by the landlord in its handling of the resident’s reports of noise and fouling caused by birds.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, the Ombudsman has found service failure by the landlord in its handling of the resident’s associated complaint.

Orders and recommendations

Orders

The landlord is ordered to pay the resident £550 compensation, made up of:
1. £400 for the miscommunication throughout its complaint process and failing to complete a resident consultation, as it had suggested.
2. £150 for the significant delay in receiving a response during the landlord’s complaint process.
The landlord must provide evidence of compliance with the above order within 4 weeks of the date of this report.
The landlord is ordered to outline its intent to consult with other residents within the resident’s block regarding the bird issues and any potential deterrents. The landlord should provide the resident and the Ombudsman with a timescale for when this consultation will be completed. The landlord should share the outcome of the consultation with residents and explain what action, if any, it will be taking to address the bird issues.

Recommendations

The Ombudsman identified miscommunication between the landlord, resident, and contractor during the investigation. The landlord may have since addressed these matters with the contractor through its contract management processes, but if it has not done so already, it should review its relationship with any contractors to ensure communication is efficient and shared information is recorded effectively.