Hyde Housing Association Limited (201914239)

REPORT

COMPLAINT 201914239

Hyde Housing Association Limited

22 December 2020

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:

1. The condition of the garden when the resident moved into the property.
2. The landlord’s handling of the complaint.

Background and summary of events

1. The landlord’s records show that in June 2018 it completed a mutual exchange inspection of the property. It was noted that the garden required the grass to be cut and the removal of all items and the shed in the garden. The outgoing tenant was responsible for this. The former tenant of the property and the current resident completed a mutual exchange in July 2018.
2. On 17 July 2018 the resident called the landlord. She advised that she had just moved in and found a gun and ammunition in the garden. The police had been notified. A call back was arranged. In a further call on the following day, the resident confirmed that the police removed the items from the garden. The landlord noted in its records that “no action for tenancy as previous tenant has moved out of the property”.
3. The landlord inspected the property on 1 August 2018. Its quality inspection form detailed that the garden passed the inspection, although it was noted to be overgrown. The resident had cleared a large number of items from the garden, and the landlord arranged for a survey of a large tree. The landlord later accepted that this inspection, and the one in June, had not been as thorough as they should have been.
4. On 23 August 2018 the landlord told the resident that it had raised works to the tree to “raise the crown to four meters, remove all deadwood and reduce branches to provide three meters clearance from building.” It advised that it could take up to eight weeks to get approval from the local authority before it could book works in.
5. The tree works were completed on 28 November 2018.
6. On 12 February 2019 the resident emailed the landlord. She explained that she had contacted several companies regarding her garden fence and back gate, which she described as “ruined” and “not fit for purpose”, but they said fencing would be expensive and difficult due to tree roots. She asked the landlord whose boundary fence it was.
7. The landlord replied on 18 February 2019 stating that its surveyor would be in the area on 20 February 2019 and could have a look then. The landlord explained that, generally, it would only maintain boundaries adjacent to private properties or roads. Intermediate fencing between its properties were not maintained.
8. On 20 February 2019 the resident advised the surveyor that she was unable to make the appointment but asked if he could look at the back garden, left side fence and back gate. The surveyor confirmed that he could on the same day.
9. On 29 April 2019, following another visit to the property, the landlord informed the resident that it would not replace the wired fence between the resident and her neighbour’s properties, as this would go against policy. It did, however, agree to replace the gate and front fence between the properties facing the driveway. It confirmed it would request a work order for this along with brick work repairs to a garden retaining wall, where vertical cracking had occurred.
10. On 3 and 7 June 2019 the resident called the landlord to ask for assistance with garden rubbish clearance. The landlord responded on the same day, and agreed to arrange a one-off rubbish clearance. The resident subsequently asked when this was likely to be.  According to the landlord’s later internal emails it believed that the garden rubbish clearance was completed at the end of June 2019.
11. On 14 June 2019 the landlord renewed the “front fence and gates between properties … front fence and gates to driveway /road”. It also renewed the division panel “with close boarded fence up to retaining.”
12. On 30 July 2019 the resident complained to the landlord that she was unhappy with the time and money she spent on tidying the garden, during which she found a gun, shells and used needles allegedly left by the previous tenant. The resident was told that mutual exchange properties were ‘taken as seen’ so this clearance had been the resident’s responsibility. The resident explained that she had been told differently. The landlord advised that the case would be directed to its complaints team.
13. On 17 September 2019 the resident asked the landlord to escalate her concerns to a complaint. On the same day the landlord called the resident. It told her that at the point of the mutual exchange joint inspection of the property she would have been told about tenants’ responsibility for the maintenance of their gardens. Also, she was reminded that when she signed the deed of assignment, she took on the full contractual responsibilities of the tenancy agreement which included the maintenance of the garden. The landlord concluded that it would “not be liable for the cost incurred for the gardening works or of future maintenance”.
14. In February 2020 the resident chased the landlord to provide a final response to her complaint.
15. Following contact from the resident, this Service contacted the landlord on 27 May 2020. We passed on the resident’s dissatisfaction that the issues she experienced with her garden had not been resolved. She said she had to take a loan to fix the garden and make it useable for her children. We asked the landlord to treat the resident’s concerns as a complaint.
16. Following a call with the resident on the same day, the landlord sent the resident a complaint acknowledgment on 16 June 2020. The landlord advised that it would respond to the complaint by 8 July and, if there was any reason it could not reply in full by then, it would let the resident know and keep her updated.
17. The landlord updated the resident on 7 July 2020. It said that it was still awaiting some information which it needed to respond to, and extended the deadline for its response to 21 July.
18. On 7 July 2020 the resident advised the landlord that, on the days of viewing the property, she and the surveyor could not inspect the garden due to broken patio doors that would not open to allow access.
19. On 24 July 2020 the landlord advised this Service that it had provided the resident with a verbal response, which she remained unhappy with based on the compensation offer. It explained that, as such, it would be ending its complaints process and providing a written response within the next few days.
20. The landlord sent the resident its written complaint response on 31 July 2020. It found that its record keeping of the exact conversations and agreements that took place at the time of the inspection, while the resident was moving in, and the period after should have been better. It also acknowledged its failings to conduct an adequate property inspection prior to allowing the resident to move in, explaining that it did not enter the property to conduct a full property inspection due to its condition. However, it noted that the property and garden were in poor condition, but the resident agreed to proceed with the exchange as she recognised the potential of the property, and was happy to complete the required work. The landlord confirmed that it now photographed each property prior to agreeing to any exchanges to go ahead.
21. The landlord acknowledged some of its communication had been ambiguous, and that there had been a lack of follow up and ownership. It was unable to ascertain exact details of what had been promised at the time of discussions, but could confirm that the one-off rubbish clearance promised to the resident was completed, in order to help assist with the removal of waste from the back garden following the resident clearing the overgrowth.
22. The landlord offered the resident £700 for its delay in resolving the matter, in light of the time and effort the resident put into chasing the matter with the landlord, and the work she had done to the property. During a telephone call, the resident had said she was unhappy with the offer and was looking for the landlord to cover the full cost of her invoice for works. This was not something the landlord was prepared to cover.
23. The landlord confirmed that this was its final response to the complaint and explained how the resident may refer her complaint to this Service if she remained unhappy.
24. On 4 August 2020 the resident’s MP referred her complaint to this Service. The MP confirmed that the resident remained unhappy with the level of compensation offered and that she sought to be reimbursed for the cost of the fencing and landscaping works at £2,780.

Assessment and findings

25. The landlord’s mutual exchange procedure explains that once it receives a full application form for a mutual exchange, it will arrange a time to inspect the property with the incoming and outgoing tenant. Both exchange partners agree to accept the condition of the property as seen when they carry out a mutual exchange. Where there is unrepaired damage the exchange may be refused, and a Notice Seeking Possession served on the original tenant.
26. The tenant’s handbook explains that the landlord is responsible for repairs to boundary fences, gates and walls which divide a property from a road or public garden. It will not carry out repairs to dividing fences between neighbours’ gardens or gates in dividing fences or that provide access to the rear garden from the front.
27. The handbook confirms that residents are responsible for maintaining gardens and any dividing fences between neighbours.
28. The resident undertook the task of clearing her new garden, and subsequently found items of concern. She informed the landlord and, by the time the landlord visited in August 2018 the resident had cleared parts of the garden herself.
29. It is clear from the landlord’s policies (and it is also the usual housing convention), that residents are responsible for the condition of their gardens, and for fences between their garden and another owned by the same landlord. The resident’s garden was in a poor condition when she moved in, and should not have been allowed to get to that state. However, that particular issue is between the previous tenant and the landlord, and is not relevant to this investigation. The evidence shows that the landlord inspected the property, including the garden, before and soon after the resident started her tenancy. Its poor condition was noted, and the outgoing tenant’s responsibility was to correct that. The landlord was not responsible for their failure to do so.
30. There appears to be no dispute that the resident had not been able to properly inspect the garden herself, and so, was not completely aware of its condition. Because of that, she cannot be held to have accepted the property ‘as seen’. That does not change the fact that after starting her tenancy, the maintenance of the garden became her responsibility.
31. The evidence shows that the landlord acted promptly, in the month following the start of the tenancy, to follow up on the resident’s reports of the dangerous items found in the garden, and to resolve issues with the large tree.
32. In response to the resident’s enquiries about the dividing fence the landlord explained its policy on the responsibilities for such fences, and said it would not repair it. Its decision was in line with its policy on the matter, and was therefore reasonable.
33. The landlord agreed to remove rubbish from the garden when asked by the resident in June 2019. Nothing in the evidence indicates that the landlord was obliged to do so. Accordingly, the landlord used its discretion to agree to the request.
34. In its final complaint response the landlord accepted that the original exchange had not gone wholly as it should have, and that when accompanied by its surveyor the resident had not been able to inspect the garden. It also acknowledged some communication and record keeping issues which had added confusion to the circumstances around the exchange. The landlord apologised, explained how it had improved its service following the resident’s experiences, and offered £700 in light of the inconvenience and frustration the resident had been put to. While the amount of compensation offered was not the level the resident was seeking, it was a significant amount in and of itself when considered against the Housing Ombudsman’s remedy guidance.
35. The situation the resident found herself in with garden after she started her tenancy was not one of her making. Nonetheless, she accepted the property aware that the garden was an unknown quantity. The landlord was not responsible for the condition of the garden, because that should have been addressed and resolved by the outgoing tenant, in line with their obligations under the mutual exchange process. In recognition of the unusual circumstances of the matter, the landlord provided assistance with clearing the rubbish from it, and offered a significant level of compensation. Overall, the landlord’s actions were a suitable remedy to the failings it identified at the end of its complaints process.

Complaint handling

36. The landlord’s complaints policy advises that “when a customer first contacts us with an expression of dissatisfaction, we will always try to put things right within 48 hours to quickly resolve the issue.”  Its complaint process consists of two stages. Where a complaint requires investigation at stage one, or where the landlord could not achieve a swift service recovery resolution, the landlord will respond within twenty working days or four weeks. If the customer is not satisfied with the response, a manager more senior than the person who made the response will review the case to determine if it warrants a review at stage two of the process.
37. The resident attempted to complain to the landlord and escalate the complaint on multiple occasions, including in July and September 2019, and in February 2020. The landlord did not treat the matter as a formal complaint until 16 June 2020, after this Service’s involvement in May 2020. The landlord unreasonably delayed in raising a complaint for 11 months, which was clearly outside the timescales in its complaints process. It did not specifically address this service failure in its complaint response.

Determination (decision)

38. In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, there was reasonable redress by the landlord in relation to the complaint about the condition of the garden when the resident moved into the property.
39. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the complaint.

Orders

40. In light of the complaint handling service failure found in this investigation, the landlord is ordered to pay the resident £150, within four weeks of the date of this report.
41. The scale of this order is in light of the significant delay the failure caused in addressing the resident’s concerns.
42. This order is in addition to the £700 compensation offered by the landlord in its complaint response, which it should now also pay if it has not already done so.

Recommendation

43. The landlord is recommended to consider the complaint handling delays in this case, and examine how to improve its services so as to reduce the likelihood of such delays occurring again.