Clarion Housing Association Limited (202120307)

REPORT

COMPLAINT 202120307

Clarion Housing Association Limited

31 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. The complaint is about the landlord’s handling of:
   1. works to an overhanging tree;
   2. the resident’s request for turf to be re-laid; and
   3. the associated complaint.

Background

2. The resident is a shared owner of their property, which is a semi-detached house.
3. Before moving into the property, the resident raised concerns that a tree on a neighbouring land overhung his garden. He said that falling branches posed a risk. The resident asked the landlord to cut back this tree to prevent harm or damage. The resident also raised concerns about the turf laid in his garden. He said it had been laid poorly and requested that it be re-laid for his young children to use safely.
4. The resident raised a complaint on 3 September 2021. The landlord’s response, issued on 29 September 2021, upheld the complaint. It accepted there had been delays by its contractor in surveying the tree and quoting for subsequent works. The landlord offered £25 compensation for the delay.
5. The resident remained dissatisfied and escalated his complaint on 13 October 2021. He said the works were still outstanding, and his family could not use the garden. The landlord responded on 26 November 2021 and upheld the complaint. The landlord apologised and offered £100 compensation.
6. The resident escalated his complaint to the Ombudsman. He remained dissatisfied as the works were still outstanding and he felt the compensation was too low.

Assessment and findings

Works to an overhanging tree

7. The evidence provided confirms the tree branches are overhanging the resident’s garden. He maintains this is a danger to his household.
8. The ownership of the land on which the tree sits is disputed. The developer states that the land was conveyed to the landlord, whilst the landlord has stated that the tree is not on its landlord, and it has no authority or responsibility to fell it. It said the land was owned by a private owner and it had tried to engage with them who declined access.
9. There has been no evidence presented to this Service to demonstrate the legal ownership of the land (and tree) in question. Given the length of the dispute, it would have been reasonable for the landlord to contact the Land Registry for documentary evidence.
10. The owner of the land is responsible for ensuring that the tree does not cause a nuisance, trespass, or damage to the resident’s property. If the tree is owned by the landlord, it must comply with this duty. If the tree resides on land owned by a third party, the landlord’s responsibility would only extend to contacting the landowner to ensure they were notified of any nuisance and, where possible, to protect the resident’s rights. The resident would also have a cause of action against the neighbour. Often contents insurance policies offer legal expenses to cover disputes like this one when they arise.
11. Under Part 8 of the Town and Country Planning Act 1990 and the Town and Country Planning (Trees) Regulations 1999 a local authority can restrict when a tree can be cut down, uprooted, topped, lopped or otherwise damaged, by issuing a Tree Preservation Order (‘TPO’). It is important to note that the tree in question is subject to a TPO. Any party wishing to fell the tree would have to apply to the local authority for permission, before carrying out any work.
12. The landlord attempted to arrange a survey on 24 June 2021, but this was cancelled by the contractor. There is evidence of the landlord following up with the contractor on two occasions to secure another date and the survey was later conducted on 10 September 2021. The survey indicated that there was ‘essential’ work to be carried out on the tree and the tree surgeon suggested a timescale for completion of 18 months.
13. Following the survey, the landlord asked its contractor to provide a quote to complete the works. There is evidence of the landlord chasing a response to this enquiry on at least two occasions. Alongside this, the landlord submitted an application to the local authority on 6 October 2021, for permission to undertake the works. The local authority granted this application just over four months later on 9 February 2022. In the intervening period, there is evidence to show that the landlord requested updates on 9 November 2021 and 31 January 2022 respectively from the local authority.
14. In late March 2022, works were undertaken by the landlord’s contractor to cut back the tree, although the resident maintains that this only removed the deadwood from the tree and did not otherwise reduce the volume of the tree.
15. It is acknowledged that a period of around one year elapsed between the resident moving into the property and first reporting the issue, to the tree being cut back. In the intervening period, there were many factors which contributed to the delays:
    1. A period of around a month, during which the landlord was identifying the legal owner of the land and the tree.
    2. A period of around three months, in which time the landlord was chasing its contractor to undertake the initial tree survey and then to provide a quote to complete the works.[JH1]
    3. A period of around four months elapsed whilst the local authority was considering permission to fell the tree.
16. Overall, it is not possible for this Service to determine the legal ownership of the land and tree in question. There is evidence that the landlord undertook a survey, obtained permission from the local authority, and completed some work to cut back the tree to abate the nuisance. It is noted that the landlord has completed these steps within the legal and time constraints of the TPO.
17. The landlord has not taken sufficient steps to evidence ownership of the land, to the resident or this Service, which is a failure. Ultimately, if the landlord is not the legal owner of the land and the tree, then the steps it has already taken were reasonable. Conversely, if it is the owner of the land and the tree then it has not acted reasonably because it ought to have accepted it was responsible and taken action much sooner.
18. Should enquiries determine that the landlord does not own the land or the tree, it is acknowledged that it may continue to pose a nuisance, or risk, to the resident and his family and that this issue has caused distress and inconvenience over an extended period. Considering this, the resident may, in conjunction with the landlord (as a shared owner), wish to take legal advice on further action that can be taken against the owner of the tree, such as an injunction.

Re-laying of turf

19. In addition to the issues with the tree, the resident has stated that the turf laid in the garden is patchy and has ‘potholes’ after it was poorly laid and flattened. The resident has stated that this is unsightly and is concerned the uneven surface might injure his young children whilst playing.
20. The re-laying of the turf was postponed, pending completion of the works to the tree. This was because the contractors abandoned work as they felt the garden posed a health and safety risk whilst the tree was still in situ.[JH2] In instances like this, it would have been reasonable for the landlord to have taken legal advice about the risk posed by the tree. This may have included an application to the magistrates’ court for an abatement notice in respect of the tree. There has been no evidence presented to show that the landlord sought any such advice.
21. Notwithstanding the delays with the tree, the resident’s turf remains in poor condition, despite assurances from the landlord that this work would be completed in March or April 2023, almost a year after the work to the tree was completed and when the weather was more favourable. This amounts to maladministration, for which the landlord is ordered to pay £300 compensation in line with its compensation policy for a ‘considerable failure’, but with no permanent impact on the complainant. Additionally, the landlord is ordered to provide the resident with a schedule outlining when these works will be completed.

Complaint handling

22. The landlord operates a two-stage complaint procedure, known as the ‘complaint stage’ and the ‘peer review stage’. The landlord’s complaint policy does not include timescales for responding to complaints at either stage which is a failure.
23. The Ombudsman’s Complaint Handling Code (‘the Code’) states that landlords must issue a complaint response at stage 1 within 10 working days and 20 working days at stage 2. Additionally, the Code requires landlords to issue responses in clear, plain language, which outlines the complaint, the outcome, and any remedies.
24. The landlord issued both its complaints responses over the timescales set out in the Code. In combination, the responses were 20 working days over the timescale and this amounts to service failure as it delayed the resident being able to progress his complaint to the Ombudsman.
25. It is noted that the landlord previously offered £50 compensation in its stage 2 complaint response to account for the delays in complaint handling. Considering both the landlord’s compensation policy and the Ombudsman’s remedies guidance, available on our website, this offer is not proportionate, and the landlord is ordered to pay the resident an additional £100 compensation in total.

Determination

26. In accordance with paragraph 52 of the Housing Ombudsman Scheme I have determined that:
    1. The landlord was responsible for maladministration in its handling of the works to an overhanging tree.
    2. The landlord was responsible for maladministration in its handling of the turf in the garden.
    3. The landlord is responsible for service failure in its handling of the associated complaint.

Orders and recommendations

Orders

27. Within 28 days of the date of this determination, the landlord must:
    1. Obtain documentary evidence which shows who owns the land on which the tree is situated. The proprietorship register of the official copies (from the land registry) should set out the owner of the land. The landlord must share this with the resident within five working days of receipt. Should the tree reside in land owned by the landlord then it must also comply with the additional orders in paragraph 27 below.
    2. Pay the resident £400 compensation comprised of:
       1. £300 for the delays in relaying the turf.
       2. £100 for the complaint handling delays.
    3. Pay the resident the compensation previously offered in its stage 1 and stage 2 complaint responses if it has not already done so.
    4. Provide the resident with a schedule of works outlining when the turf in the garden will be re-laid.
    5. Provide this Service with evidence of compliance with these orders.

Additional orders

28. Should the documentary evidence show that the tree resides on land owned by the landlord, it must also comply with the following orders within 28 days of the date it obtained this information:
    1. Arrange works to ensure that the tree does not cause a nuisance, trespass or damage to the resident’s property and provide a copy of the schedule of works to the resident.
    2. Pay the resident an additional £400 compensation for the delays in undertaking the works and incorrect information being provided.
    3. Provide this Service with evidence of compliance with these orders.
29. For the avoidance of all doubt, the orders specified in paragraphs 27(a)-(c) only apply if the land registry records show that the landlord or any of its subsidiaries is the owner or occupier of the land on which the tree is situated.

Recommendations

30. The landlord should:
    1. Consider the resident’s request for artificial grass, in lieu of returfing the garden and respond to him directly with a decision.
    2. Review its processes for responding to complaints to ensure that all responses are issued within the timescales set out in the Complaint Handling Code.
    3. Consider, in conjunction with the resident, taking legal advice on the status of the tree and other legal remedies which may be available to resolve the issue.

[JH1]A landlord will be responsible for delays caused by its contractors. However, it appears it was Miller Homes (the developer) who had agreed to do the works.

[JH2]If this is the case, why hasn’t the landlord app[lied to the magistrates’ court for an abatement notice in respect of the tree. If there is evidence that there is a risk, it needs to do more.