Metropolitan Thames Valley Housing (MTV) (202106636)

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REPORT

COMPLAINT 202106636

Metropolitan Thames Valley Housing

23 May 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:
1. The time taken by the landlord to start a Japanese knotweed treatment plan in the garden.
2. The landlord’s decision not to maintain the garden, or to replace the lawn once treatment was complete.
The Ombudsman has also investigated the landlord’s complaint handling.

Background and summary of events

The resident is an assured tenant of the landlord’s property, a one-bedroom flat. The tenancy began on 22 October 2001.
The tenancy agreement sets out the rights and responsibilities of both the landlord and the resident. It states that the resident must keep the garden tidy and free from rubbish.
The landlord has a procedure for managing Japanese knotweed. This states that on receipt of a report of suspected Japanese knotweed, it will raise a works order and inform its estates contract officer to add to their Japanese knotweed log. The procedure does not set out what steps will be taken in terms of treatment or tackling the problem.
The landlord’s complaints policy states it will acknowledge a complaint within five working days and respond within ten working days at stage one and 20 working days at stage two.

Summary of events

On 21 August 2017, the resident reported Japanese knotweed within her garden. The landlord raised a job, and on 25 August 2017 informed the resident that its contractor would be in touch by 30 August 2017 to arrange an appointment.
The landlord’s contractor attended the property on 25 September and completed a survey. This stated that a five-year management programme would be required to treat the Japanese knotweed. This would involve undertaking carefully timed foliar spay herbicide treatments and stem injection treatments. All new growth would be monitored and treated over the five year period. On completion of the management programme the work would be fully guaranteed for ten years.
The survey also stated that during the treatment process it would be important for the resident to leave the Japanese knotweed undisturbed and left it to grow. It stated it would advise the resident on what should and should not be done within the garden while treatment was ongoing.
On 2 November 2017 a report showed that the landlord’s contractor attended and treated the Japanese knotweed with a spray. The report stated, “the whole garden was overgrown with stinging nettles and between them Japanese knotweed”. Photographs included in the report confirmed this description.
On 5 December 2017 the landlord’s contractor attended the property again. The report showed that it had cleared the Japanese knotweed by hand. Photographs included within the report evidenced that the garden had been cleared.
On 5 March 2018 the resident contacted the landlord and requested a call back. She said that the Japanese knotweed had been treated and she had been advised that the landlord would attend and re-lawn her garden and the flower bed as it was completely ruined. It is unclear whether the landlord responded to the resident’s request at this time.
On 12 May 2018 the landlord’s contractor attended to carry out further treatment. The report stated that there was still a small amount of Japanese knotweed scattered in the garden and flower bed. There was also a thicker amount growing behind the garden shed. It was able to access it all for treatment. Photographs were again included in the report.
The landlord’s contractor attempted to carry out further treatment on 29 August 2018. However, it was unable to gain access.
The next visit took place on 22 October 2018. The contractor stated that no re-growth of Japanese knotweed was found; and as such, no treatment was required on this visit.
On 30 April 2019, a small growth was found during a further attendance, and spray treatment was used accordingly. Pictures included in the report showed the small amount of growth. The situation was found to be the same during an attendance in October 2019.
Towards the end of July 2020, the landlord contacted the resident to confirm a further appointment. From the evidence, it is unclear if this appointment went ahead. However, on 18 August 2020 the resident contacted the landlord and explained that she was unhappy that the treatment plan had another two years to run; and that she had been informed that it would last three years in total. The evidence provided to this Service does not demonstrate what happened following this.
On 12 November 2020 the contractor attended the property again; and a further spray treatment was provided. The pictures included in the report showed that there was a small amount of Japanese knotweed present.
On 10 May 2021 the resident contacted the contractor to confirm an appointment for 18 June 2021. She wanted the visit to be the last one but was advised that there would be a further visit later in the year. On 26 May 2021 the resident contacted the landlord to report that the garden was “overrun with Japanese knotweed”.
On 18 June 2021 the landlord’s contractor completed a monitoring site visit. The report stated that there “was no disturbance observed within the area”. On the same day the resident called the landlord and asked it to “redo her garden” following the treatment. The landlord declined and explained that the garden was the resident’s responsibility under the tenancy agreement. The resident was unhappy with the response and advised that she would be making a complaint.
On the same day the resident contacted this Service. She said that the treatment for the Japanese knotweed was complete, but that the garden was overgrown with weeds and in a “bad condition”. The resident said that the landlord had refused to replace her lawn and bedding plants, and that she and her son were unable to enjoy the garden.
This Service wrote to the landlord on 18 June 2021 and asked it to consider the resident’s concerns through its complaints process.
On 22 June 2021 the landlord called the resident and sent an email to acknowledge receipt of the complaint. The landlord issued a “stage one final response” to the complaint on 28 June 2021, it said:
1. It started treating the Japanese knotweed in the resident’s garden in the summer of 2019. It was a five-year programme to eradicate the weed. The latest visit to inspect the site took place on 18 June 2021; during this the contractor had confirmed that the garden was clear of Japanese knotweed.
2. It understood that the resident had contacted the contractor to ask if it would attend to the garden and tidy it up of all other weeds. This was not something it would do or have agreed to do as the resident was responsible for the maintenance of the garden under the terms of the tenancy agreement.
3. It did not uphold the complaint because a treatment plan had been put in place to treat the Japanese knotweed; and it would take up to five years for the full treatment to be carried out.
The resident was unhappy with the landlord’s response and contacted this Service for further assistance in August 2021. The resident advised that:
1. The landlord had declined to carry out further works in the garden, even though there was an agreement in place.
2. She was unhappy with the condition of her garden, and how the landlord had communicated with her.
3. She had asked for her complaint to be escalated to stage two of the landlord’s complaints procedure “over a month ago” but had not received a response.
4. To put things right, she wished for the landlord to continue with the agreement to maintain the garden, to lay a new lawn and to replace a damaged flowerbed.

This Service subsequently contacted the landlord on 10 August 2021 and asked for a stage two response to the complaint to be issued. We also informed the landlord of the resident’s desired outcomes.
The landlord responded to this Service on 11 August 2021. It said that its records showed that the resident’s “request to escalate came before a final response was provided at stage one”. It said that as it was able to provide the final response the following day, the complaint was not escalated. However, it would now escalate the complaint to stage two of its procedure and would issue a “stage two final response” within 20 working days.
On 9 September 2021 the landlord informed the resident that it needed a further 10 working days to investigate the complaint. It said that it hoped to have its response to her by 22 September 2021.

On 16 September 2021 the landlord responded to the stage two complaint. It said:
1. Its contractor had not promised that any work to the lawn or shrub beds would be complete as the garden was the resident’s responsibility. The only work carried out was to treat the Japanese knotweed infestation which had so far been successful.
2. It was satisfied that the matter was dealt with appropriately in its stage one complaint response as it had not agreed to maintain the garden as the garden is the resident’s responsibility under the terms of her tenancy agreement.

The resident responded to the landlord on the same day. She advised that she was “frustrated” with how the landlord had conducted its investigation; adding that nobody had spoken to her to discuss the complaint at any point. The resident said:
1. The landlord was aware of the Japanese knotweed, and it was discovered in May/June 2011 when the lawn was being replaced.
2. Although she notified the landlord’s Estate Manager, no provisions were put in place, and she therefore “spent a fortune” maintaining her garden.
3. In 2017, she was advised that the landlord was responsible for treating the Japanese knotweed. She therefore contacted the Estate Manager, who visited the property.
4. During the visit, they discussed that the issue was identified in 2011, but that a plan was not put in place to treat the knotweed. The Estate Manager therefore came up with the solution that he would maintain the garden while the treatment was ongoing, and that the lawn would be replaced once the treatment was complete.
5. The agreement was reached to avoid her raising a complaint, and she therefore agreed to it.
6. The garden was being regularly maintained – as arranged by the Estate Manager – and the last appointment was in October/November 2019.
7. She had since tried to contact the Estate Manager, but he advised her that he was working in another area. She had tried to discuss the matter with the new manager, but he informed her that he was not aware of any agreement or arrangement regarding the ongoing maintenance of the garden.
8. Her complaint had not been investigated, and it therefore needed to be “escalated again”.
9. She was aware that the garden was her responsibility; however, if the damage had been caused by others, she did not believe she could be held responsible.
It is unclear whether the landlord provided the resident with a further response. However, the resident confirmed to this Service on 11 October 2021 that she wished for The Ombudsman to investigate her complaint. The resident advised that she wished for a new lawn to be laid, and to be compensated for the years that she was unable to use the garden.

Assessment and findings

Time taken by the landlord to start a Japanese knotweed treatment plan.

While this Service acknowledges that the resident states she made the landlord aware of the Japanese knotweed in 2011, evidence provided to this Service does not confirm this. Furthermore, there is nothing to show that the resident chased or queried the matter between 2011 and 2017. It would be reasonable to expect the resident to have chased the matter if she was aware of the knotweed, and if she was indeed incurring costs in removing it or inconvenience because of it.
The landlord advised that it was first made aware of the Japanese knotweed in 2017 and it instructed its contractor to deal with the matter at that point. The landlord appropriately assumed responsibility for treating the Japanese knotweed, however in accordance with the tenancy agreement it remains the case that the resident is responsible for keeping the garden tidy and free from rubbish.
A five-year plan was identified in the original survey to treat and monitor the knotweed. Evidence provided to this Service shows that the landlord’s contractors had removed the Japanese knotweed and had completed nine visits to the property from September 2017 to September 2021. These visits were on average twice a year. The reports show that the landlord continued to ensure that the Japanese knotweed was being managed. This was appropriate.
Evidence shows that the landlord also maintained good records of all the reports and appointment arrangements throughout this period. However, the landlord’s communication with the resident in respect of what it was responsible for could reasonably have been clearer. It is not evident that the resident was given a copy of the contractor’s reports or plan.
Overall, there was no maladministration in the time taken by the landlord to start the treatment plan. There is no evidence to suggest that the landlord delayed in treating the Japanese knotweed and no evidence of any significant failings on behalf of the landlord.

The landlord’s decision not to maintain the garden or to replace the lawn once treatment was complete.

As detailed above, the resident has advised that an agreement was in place between her and the landlord’s estate manager. The resident has stated the agreement was that the landlord would maintain the garden for the duration of the treatment plan and replace the lawn once it was complete. The resident says that this agreement was reached as the landlord was aware of the Japanese knotweed in 2011 but did not implement a treatment plan at the time.
The resident’s comments were made after the landlord issued its stage two response. However, evidence provided to this Service shows that the landlord made internal enquiries to confirm whether there was a record of any agreement. The landlord was unable to find any evidence and therefore maintained its position that it would not carry out any additional works within the garden or lay a new lawn.
While the resident’s comments have been acknowledged, the landlord appropriately considered the matter and there is an absence of any other evidence relating to the matter which confirms the terms of any agreement which may have been made. It follows the landlord’s decision regarding this element of the complaint was reasonable in the circumstances. There is therefore no maladministration in the landlord’s refusal to lay a new lawn and maintain the garden.
However, this Service considers that it would be reasonable for the landlord to assess the condition of the garden after the successful completion of the treatment, given the nature of the plant and potential damage caused, and that the resident was unable to maintain the garden for five years because of this. While the landlord is not obliged to do this, it would then be able to assess what damage has occurred and whether any action is required to restore it to a lettable standard. A recommendation has been made in respect of this below.
In respect of compensation, the resident did not request compensation for not being able to use the garden during the landlord’s complaint process. This was something she raised when she confirmed she wanted this Service to investigate her complaint. The landlord did not therefore have an opportunity to respond to this within its complaint responses as a result.
Generally, it is appropriate for a landlord to offer compensation where there has been a failing in the service it has provided and this has resulted in distress and/or inconvenience to a resident. In this case, there is no evidence of a failing by the landlord in its response to the report of Japanese knotweed, or its refusal to maintain the garden.
This Service acknowledges that it would have been disappointing for the resident that she had to leave the knotweed to grow between treatment periods. However, there is no evidence of a failing in terms of the landlord treating the knotweed, and therefore no grounds for compensation to be paid.

Complaint handling.

The landlord responded to the resident’s stage one and two complaints in a timely manner and in accordance with its own timescales.
While it is acknowledged that the resident stated the landlord did not respond to her request to escalate to a stage two earlier the evidence provided does not show this.
The stage one correspondence was however headed “stage one final response”. The correspondence this Service exchanged with the landlord in August 2021 suggests that the landlord had intended for this response to be its final response, and that it only escalated the complaint to stage two after we asked it to do so. This was inappropriate, and a departure from its complaint policy, although it is recognised that the landlord did escalate the complaint when requested by this Service and the resident did therefore have her complaint considered through all relevant stages.
The landlord did not however provide any escalation rights or referral rights within its stage one complaint response. Rather, it advised that the resident could talk to the author of the letter if she was unhappy with its contents.
This was not in accordance with the Ombudsman’s Complaint Handling Code (the Code). Section 5.8 of the Code states that the landlord should provide details of how to escalate the complaint to stage two if the resident is unhappy with the answer. If the landlord intended the stage one to be its only response, it should have explicitly said so and provided the resident with this Service’s details. That it did not include escalation or referral rights was a failing in its handling of the complaint. This caused the resident additional time and trouble as the resident contacted this Service, which provided guidance on how to escalate the complaint. This has been considered in the order and compensation below.
The complaint evolved between stage one and stage two and the resident expressed concern that nobody had discussed the complaint with her before the responses were issued. The landlord’s complaint policy states that at stage one it should contact the resident to ensure it understands the complaint.
It would have been beneficial for the landlord to have made more effort to contact the resident to discuss her concerns. This Service prompted both the stage one and stage two responses and the landlord therefore missed opportunities to understand what the issues were and to try to resolve them. This may have been the cause of the landlord’s brief complaint responses.
The lack of detail in the landlord’s stage one and two complaint responses was not in accordance with its own complaint procedure. Its own procedure states that when investigating a complaint, it should state what action it has taken from the point of being aware of the issue to present. That it did not was a failing in its complaint handling. This caused the resident further time, distress and inconvenience in having to pursue the complaint further with this Service.
The landlord’s stage one response was also incorrect. The landlord referred to the treatment plan as being a five-year programme but also referred to it as having commenced in the summer of 2019 whereas evidence shows the treatment started in November 2017. It is important that complaint responses contain accurate information so that the landlord’s position can be fully understood by a resident and confusion can be avoided.
The resident clearly believed that an agreement to maintain the garden was in place. She also stated in her stage two complaint that she remained dissatisfied with how the landlord had communicated with her. It would have been reasonable for the landlord to have taken this opportunity to consider its own correspondence to satisfy itself that the resident had been correctly advised about what the treatment plan involved and clearly set this out in its complaint response. That it did not was a failing in its complaint handling and was a missed opportunity to clarify matters and put things right at an earlier stage.
Overall, the landlord’s complaint handling was inappropriate. It failed to clearly set out its responses in accordance with the Code, and its responses were vague and not in accordance with its own policy. Minor distress and inconvenience, and time and trouble, was consequently caused to the resident. The Ombudsman therefore considers that there was service failure in its complaint handling.
The landlord’s failure to resolve matters at this stage meant that it missed an opportunity to improve the landlord/tenant relationship. To reflect this service failure, an order of compensation has been made.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration in the time taken by the landlord to start a Japanese knotweed treatment plan in her garden.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s decision not to maintain the garden, or to replace the lawn once treatment was complete.
In accordance with paragraph 54 of the Scheme, there was service failure in the landlord’s complaint handling.

Reasons

There was no maladministration as there is no evidence of a failing in terms of the landlord commencing the treatment of the knotweed.
1. There was no maladministration by the landlord as there was no evidence of an agreement to maintain the resident’s garden during the treatment plan, and to replace her lawn once it was complete. The landlord reasonably investigated this further when the resident stipulated what she believed the arrangement to be after the stage two complaint response.
There was service failure in the landlord’s complaint handling as it failed to clearly set out its complaint responses in accordance with the Code and its own policy. Its communication could have been improved as its responses were vague. These failings caused minor distress, time, and inconvenience to the resident, so an order for compensation has been made.

Orders

Within four weeks of the date of this determination, the landlord should:
1. Apologise to the resident for the failings identified in this report.
2. Pay the resident a total of £75 for the stress, time, and inconvenience caused by its failings in its complaint handling.
3. Consider the failings identified in this report and carry out refresher training with its complaint handling staff to ensure that complaints are handled in line with the Housing Ombudsman Service’s Complaint Handling Code (available on the Housing Ombudsman Service website). The landlord should provide this Service with the dates of the training and an overview of the content.

Recommendation

Within four weeks of the date of this determination, the landlord should:
1. Write to both the resident and this Service to confirm whether the treatment plan has finished, and what action, if any, it intends to take to monitor the situation.
2. If the treatment plan is complete, the landlord should inspect the garden to assess what damage, if any, was caused as a result of the Japanese knotweed and/or treatment; and confirm whether it will be carrying out any works to ensure that the garden is in a lettable condition.