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Livv Housing Group (202102519)

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REPORT

COMPLAINT 202102519

Livv Housing Group

20 June 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 response to the resident’s reports of the condition of her garden.
  2. The Ombudsman has also considered the landlord’s handling of the formal complaint.

Background

  1. The resident is an assured tenant of the landlord. The property is a detached house with a front and rear garden.
  2. The resident raised concerns about subsidence in the rear garden on 8 June 2020. She said that concrete posts, tree roots and pipe works had become visible, and that she had tripped over a grid so she felt the garden was unsafe.
  3. On 8 September 2020, the resident reported an issue with the patio doors in the living room not securing properly, adding that it was a symptom of the subsidence. The landlord arranged an emergency repair to the doors. The resident chased a response to the subsidence issue, informing the landlord that the flagstones in the garden had sunk and caused damage to external walls and the patio doors.
  4. On 11 September 2020, a manager and a surveyor visited the resident’s property and inspected the gardens. Works were raised for a drain to be installed in the front garden. The manager confirmed there were not any repair works planned to the rear garden and that the rear garden naturally sloped downward, although work may be actioned in the future.
  5. The resident contacted the landlord five times between November and December 2020, and was told the landlord would not be carrying out any repair work on 10 December 2020. The resident was unhappy with this, and stated she was not made aware work would not be going ahead at any point following the inspection.
  6. A complaint was raised on 14 January 2021.The resident said she was unable to use her rear garden because it was pooling full of mud and rainwater. She said she had reported her concerns several times, and water pooling on the concrete flagstones made it difficult to access the property at times due to her disability.
  7. The landlord provided the stage one response on 20 January 2021, reiterating that it was not considering any repairs to the resident’s garden at that time but it may be considered as part of planned improvement works. The landlord acknowledged the resident’s disability and advised her to contact the local occupational therapy service in order for the correct adaptations to be made, as no other works would be completed without such recommendations.
  8. From February to May 2021, the resident contacted the landlord and advised: the fencing needed to be repaired; there was an issue with the soil drain leaking; the garden was slipping sideways into the neighbouring property; and there was an issue with the retaining walls above ground with the grass and soil washing away. She asked it about stabilizing the garden, stating that the problem was worsening, and the garden was not safe. The landlord noted internally that it had spoken with the resident on a number of occasions and confirmed that it would not carry out any works, although these may be completed as part of a planned program in future. It also advised the resident’s MP of this in March 2021, and also in an email to the resident dated 29 April 2021, again advising that she contact the occupation therapy service for an assessment.
  9. The complaint was escalated to stage two on 5 May 2021. The resident reiterated that her garden was unsafe, slipping into next door and that she had fallen over a drain. She said she previously had grass, flowers and foliage in her garden but this disappeared, giving way to mud, drains and sandstones plus reinforced walls and tree roots. The resident told the landlord she contacted the local occupational therapy service and was advised a ramp or handrail could be installed, however it would not be possible to extend this to the bottom of the garden. The resident was dissatisfied with this and said it would not be a suitable remedy.
  10. The landlord provided its stage two response on 2 June 2021. It advised the resident an independent survey of the garden would be carried out, and it would make a final decision based on the outcome. A topographical survey was completed on 11 August 2021 and the landlord wrote to the resident on 14 September 2021, confirming it would not be carrying out any work to the resident’s garden.
  11. The resident remains dissatisfied with this response, and told this Service that she cannot access her garden and feels it is unsafe for her, her autistic son and her grandchildren. She said the house is still subsiding due to being built on marshland, and the landlord is aware of this and has said that she could fix the issue herself. The resident is unhappy with this, and also unhappy that she did not receive a full copy of the surveyor’s report, and when she did parts of it were missing. The resident contacted a private company to look at the garden and reports that they advised underground drainage is required. The resident would like the landlord to carry out repair work to her garden to address her concerns of subsidence as a resolution to the complaint.

Assessment and findings

Policies and procedures.

  1. The landlord’s repairs policy states that the resident is responsible for garden maintenance. It states it will attend emergency repairs within 24 hours, urgent repairs within seven days and routine repairs within 28 days. It differentiates between major investment works and cyclical maintenance.
  2. The landlord’s complaints policy states that it adopts the Ombudsman’s definition of a complaint as ‘an expression of dissatisfaction’. It sets out timescales for response as 10 working days at stage one, and 20 working days at stage two.

The landlord’s response to the resident’s reports of the condition of her garden.

  1. The resident first reported her concerns about subsidence on 8 June 2020, but the landlord’s manager and surveyor did not inspect her garden until 11 September 2020, three months later. The resident chased for updates several times during this period. It was reasonable for the landlord to raise an inspection of the garden in response to the resident’s concerns, although it is unreasonable that this took three months to be actioned, so this Service has determined there was a failing in this regard.
  2. There is no contemporaneous record of this inspection, although internal communications from two weeks later noted that no works were planned, although the garden sloped and may be actioned in a future program. From the internal correspondence, it is clear the landlord knew it was not planning to carry out any work on the garden from late September 2020. Although it is disputed when this was verbally communicated to the resident, the first recorded instance of the resident being made aware is not until 10 December 2020, at which time she expressed her dissatisfaction of not being made aware previously (disputing the landlord’s assertion that she had been). There is a lack of evidence of the landlord clearly communicating with the resident: Records show that the resident contacted it several times during this period of approximately three months to chase a repair. There is no indication of the landlord managing her expectations.  The case was managed poorly with a lack of communication by the landlord.
  3. From December 2020 to June 2021, the resident contacted the landlord approximately 13 times. She raised concerns multiple times about flagstones in the garden and top soil eroding, exposing the retaining wall and worsening the situation. The resident reported a contractor attended her property in February 2021, and argued that the previous repair attempt had made the situation worse. In internal communications, the landlord stated a survey would be carried out to establish if a land drain would help with waterlogging, however there is no record of this being carried out or communicated to the resident. The records show the resident contacted the landlord by phone several times, highlighted the worsening situation and reiterated concerns. However, the evidence does not show the landlord engaged with the resident or addressed her concerns, which demonstrates an issue with its communication.
  4. In the stage two response, the landlord confirmed any issues with the front garden had been resolved. Regarding the rear garden, because there were different conversations and multiple visits recorded, it said it would order an independent survey to address the resident’s concerns and make a final decision based on the outcome. This was an appropriate action to take in the circumstances to try and remedy the resident’s concerns.
  5. The records then show the landlord seeking to commission a report to include a topographical survey, soil condition, drainage and recommendations on what could be done to improve the issues being experienced by the resident. The evidence available demonstrates that it secured a topographical survey only. It is unclear why the plans to gather soil condition information were not taken forward, given that the landlord had felt this necessary to assess the situation.
  6. The topographical survey was completed on 11 August 2021, and the landlord wrote to the resident on 14 September 2021 with its final decision. The landlord referred to surveys of the rear garden that it had undertaken in June and December 2020, as well as the more recent topographical survey. It stated it was not responsible for the garden suffering from slow drainage, ‘unless there is a serious risk of flooding to the property’. Whilst it acknowledged the resident’s inability to fully utilise the grassed areas of the rear garden during heavy rainfall; it said there was little to no possibility of flooding, and evidence grassed areas received high levels of traffic after heavy rainfall, reducing natural drainage. The landlord stated the majority of the garden remained accessible, and made suggestions for actions the resident could take to improve the situation.
  7. The landlord has not provided any contemporaneous records of the surveys it refers to having been carried out in June and December 2020, and there is no evidence from the copy of the topographical survey that this Service has received that supports the landlord’s position, meaning it is unclear what its conclusions have been based on. The landlord suggested the resident, ‘install a fence to restrict pet access during rainfall, install tiered pathways to remove the need to walk on grassed areas and aerate the grass every two years’. From the lack of evidence provided, it is again unclear what these suggestions have been based on.
  8. The landlord has referenced the fact that the resident has had different conversations with several people, contributing towards the uncertainty of the outcome of the complaint. The poor management of the case and confused communication led to several repair jobs being raised for the resident and the resident chasing a decision on the subsidence unnecessarily, when the landlord was aware this work would not be carried out. This contributed towards the resident’s overall distress and inconvenience. The landlord’s undertaking in its June 2021 stage two response to carry out a survey would have been an appropriate way to remedy this and resolve the matter. However, as noted above, the landlord only appears to have carried out part of the survey, and the Ombudsman has not been provided with evidence that supports its position. It is unclear whether this is because the landlord does not hold these records, or if poor record keeping has meant it is unable to retrieve them. It is noted that the resident herself states that she asked for a copy of the report, but has not been provided with a full copy.
  9. Overall, there have been unreasonable delays in the landlord’s response to the resident’s concerns about her garden, and avoidable errors in communication. The landlord has failed to evidence the action it took as outlined in the stage two response, and has not taken appropriate action to ‘put right’ the adverse affect the failings had on the resident. A determination of maladministration is made below, along with orders for remedy.
  10. The compensation ordered is in line with this Service’s guidance on remedies, which sets out amounts of redress for a finding of maladministration where there was a failure which adversely affected the resident; and the landlord has failed to acknowledge its failing and made no attempt to put things right. As such, compensation of £250 is ordered.

The landlord’s complaint handling.

  1. The landlord was aware the resident was unhappy with the condition of her garden and had concerns about subsidence from June 2020. However, a complaint was not raised until 14 January 2021, 89 working days after the expression of dissatisfaction following raising the concern.
  2. The landlord did adhere to the response timescales set out in its complaint policy, and provided the resident with a stage one response within five working days. However, the resident’s complaint should have been recognised sooner, in line with the landlord’s definition of a complaint as “an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the organisation”.
  3. The landlord’s policy states that the resident must ask for their complaint to be reviewed at stage two within 21 days of receiving the stage one response. From the correspondence, it is clear the resident remained dissatisfied with the outcome and also contacted her local MP about the issue. Whilst the landlord did respond to the MP, it did not escalate the complaint to stage two until requested to do so by this Service on 5 May 2021.
  4. The landlord provided a written stage two response on 2 June 2021, 20 working days after the complaint was escalated. This is in line with its policy and the Ombudsman’s Complaint Handling Code. It then provided it’s follow up stage two response, which was a reasonable action to take.
  5. However, by failing to recognise the resident’s complaint within an appropriate time frame, the landlord contributed towards the resident’s overall distress and extended the overall time taken to address her concerns. Therefore a finding of maladministration is made, along with orders for remedy.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s response to the resident’s reports of the condition of her garden.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s complaint handling.

Orders

  1. Within four weeks of the date of this determination, the landlord must:
    1. Pay the resident a total of £400 (comprised of £250 in relation to the impact of the failings in its response to the reports of the condition of the garden, and £150 in recognition of the complaint handling failures).
    2. If it hasn’t already done so in the last 12 months, undertake a full survey and produce a full report into the condition of the resident’s garden, addressing the concerns of subsidence, providing a copy to this Service and the resident, setting out a final decision based on the outcome.
    3. If a full survey and report into the condition of the resident’s garden, addressing the concerns of subsidence, has been undertaken in the last 12 months, provide a copy of this to the Ombudsman along with evidence of any recommendations made, and what the landlord’s final decision was based on the outcome.
    4. Provide the Ombudsman with evidence of compliance with these orders.

Recommendations

  1. The landlord should review its record keeping practices, in light of the record keeping issues highlighted in this report.