One Housing Group (202012573)

REPORT

COMPLAINT 202012573

One Housing Group

30 March 2021

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 landlord’s decision not to remove a tree.
2. The delay in the landlord’s response to the complaint.

Background and summary of events

Background

The resident is an assured tenant and lives with his wife and two young children. The property is a ground floor maisonette with a garden which backs onto communal land made up of green space and trees. The resident has exclusive use of the garden.
The tenancy agreement requires the resident “to look after, cultivate and keep tidy any garden area that is let within the accommodation … and not to interfere or damage any fixtures or fences in the said garden(s)”
According to the landlord’s website, the resident is responsible for keeping the garden tidy and carrying out any tree works within the garden. The landlord will “carry out work to trees where they are dead, diseased or dangerous.”
There is no reference in the repairs and maintenance policy to tree management and response times related to reports regarding tree maintenance.
The complaint policy in place at the time of the complaint states that on being informed a resident is unhappy about a service, the concern will be forwarded to the resolutions team for review. A member of the team will contact the resident to discuss their concerns and try to reach a satisfactory outcome. The landlord aims to complete this initial stage within three working days. If the resident remains dissatisfied, or the resolution team is unable to resolve the resident’s concerns, the matter will be passed to the Corporate Complaints and Insight Team who will treat the matter as a formal complaint.
Complaints at the formal stage should be acknowledged within two working days and a written response should be issued within 15 working days. If the landlord needs more time to investigate the complaint, it should contact the resident to explain and to agree a new response time. The policy states a response will always be provided within 30 days, unless otherwise agreed with the resident.

Summary of events

On 29 April 2020, the resident emailed the landlord advising there were three large trees at the back of his garden which were overhanging into the garden and causing a lot of mess. He also stated the trees were blocking sun light and his tv reception. He wanted this to be resolved as soon as possible. The landlord responded the same day asking for pictures so it could see what issues the resident was having.
On 30 April 2020, the resident responded with photos of some trees and a message saying, “almost all of the branches are on my garden”. The resident also stated he wanted to install a gate at the back and the trees would make this difficult. He asked for the trees to be removed. He also reported a tree at the front of the house and asked that this was trimmed as soon as possible. The request was passed to the maintenance team the same day.
On 4 May 2020, the maintenance team sent an internal email advising there was an internal horticultural team, but they were unsure which of the supervisors would oversee this type of request and suggested the building supervisor may be able to assist. The email also explained the horticultural team had been using an external tree surgeon and there was a tree programme in place, which they assumed was ongoing. The email confirmed the resident would need to request permission regarding the installation of a gate from resident management.
On 1 July 2020, the resident submitted a complaint to the landlord. He stated he was frustrated about the trees at the back of the garden, he had seen operatives pruning other trees, but he had been waiting several months and the trees he had reported had not been done yet. He stated he would contact the council environment team to act against the landlord for being negligent towards his and his family’s health and wellbeing. He wanted someone to prune the trees and cut down the big tree.
The landlord tried to call the resident on 8 July 2020, but there was no answer. The landlord left a message and followed up with an email acknowledging receipt of the complaint.
The resident responded to the landlord on 10 July 2020. He asked why the landlord had not pruned the smaller trees and cut down the large tree yet. He stated he would take the issue to the environmental health team and the courts if necessary. He stated he had raised a complaint a long time ago and there had been no action by the landlord, just negligence.
The landlord responded on 13 July advising it had raised the matter with the maintenance team and was awaiting the response. It assured him it was looking into the matter and would update him. The landlord sent internal emails to the maintenance team on 13 and 20 July 2020 requesting an update regarding the tree pruning.
On 21 July 2020, the maintenance team spoke with the resident who insisted there was no tree protection order (TPO) on the tree he wanted removing. The maintenance team advised the resident that they do not remove trees just because a resident asks for it to be removed. They explained there was a tree maintenance programme and the trees reported by the resident would be looked at for pruning, but they had to prioritise other trees. Following the conversation, the maintenance team asked its contracted arborist to visit the resident and assess the issues the resident stated he was having. The arborist responded the same day advising he would visit the resident on 23 July, having just spoken with him.
On 28 July 2020, the maintenance team requested an update from the arborist. The arborist responded the same day. He confirmed he had met with the resident and they had stood and viewed the trees from the resident’s garden. The arborist advised there were no current significant defects, so no work was required to control any risk. Whilst there were branches “oversailing” the garden, they were not near the building, “did not create oppressive shade nor produce excessive debris.”
In relation to the tree dropping leaves, the arborist advised the leaf droppings did not affect the resident’s health and wellbeing. He explained if the resident did not like the leaves in the garden, he would need to sweep them up and dispose of them. The arborist explained that “it isn’t considered anywhere near acceptable practice to remove trees in adjacent land just because they drop leaves.”
The arborist advised that the resident had complained about tree roots encroaching into the garden and making it difficult to enjoy the garden. The arborist enquired how, and the resident advised he was unable to build a shed or dig into the ground. The arborist advised there were significant roots, however they did not prevent the resident from building a shed and he had explained to the resident how a shed could be built without removing the roots. The arborist also advised the resident’s wife had planted out rows of tomatoes, courgettes, pumpkins, chilli peppers, bottle gourds and various salad plants which were growing well and therefore the resident’s claim that he was unable to dig or cultivate the garden did not follow.
The resident had also raised that he had excessive bird droppings in the garden caused by birds roosting in the tree, which he stated was a danger to his children. The arborist explained that the area under the tree was extensively planted out [by the vegetable patches] so he could not see how the children were using this area, however even if they were the bird faeces would have to be handled in volume for the children to be at risk, and for the risk to need control measures. The arborist stated there was no bird droppings when he visited the premises but that the resident could hose the area down when needed.
In relation to the sunlight and tv reception, the arborist stated the resident had no legal right to this. In summary the arborist advised that “to expect complete tree removal as the sole remedy for what [the resident] considers to be a nuisance isn’t reasonable, as the tree confers benefits to the wider site and community.” The arborist explained the resident has a common law right to cut down those branches that overhung into his garden at his own cost. The arborist also advised the resident had expressed his wish to have a smaller adjacent tree removed so he could fit a gate into the communal area.
On 3 August 2020, the resident emailed the landlord stating he was still waiting for the matter to be resolved. He requested a response in writing so he could escalate the matter to the Ombudsman. The landlord responded advising its teams were looking into it and it would seek an update, which it did.
On 20 August 2020, the resident emailed the landlord stating it had failed to respond within the timeframe and it was deliberately delaying. He expressed his disappointment in how the complaint had been handled and stated he wished to escalate it.
The landlord responded on 25 August 2020 and asked the resident what he was seeking as a resolution. It explained there was a list in terms of getting the tree removed. The resident responded asking what the landlord meant by “list in terms of getting the tree removed” and stated the tree was a nuisance to him and his family and needed to be removed.
The maintenance team emailed the arborist on 25 August 2020. The arborist responded advising that if it wished, the landlord could get a quote to reduce the tree by 2m however, he explained:
1. The work was not necessary from a risk management perspective as there were no significant defects at the time of the inspection.
2. The resident has no legal right to light or satellite reception so there was no obligation on the landlord to prune the tree to facilitate this, nor was the shade oppressive.
3. The tomatoes, bottle gourds, chillies, courgettes, and other plants fruiting in the garden evidenced that there was enough daylight.
4. At the time of the inspection, he could not find “piles of bird poo”, he had not found any.
5. Whilst there are roots encroaching into the garden, but they can be cut, and the resident had been advised how he could cheaply and easily build a shed without removing the roots.
The arborist advised the tree would be pruned, but as it had been assessed twice and found to be free of significant defects and no dangerous levels of bird faeces were observed, the job was relatively low on the priority list. He explained “objections and complaints about trees, where no risk of failure has been identified … is accommodated where reasonably possible, but always subordinate to the much greater priorities of general tree risk management and retention of vital green infrastructure assets.”
The landlord also sent a further email to the resident on 25 August 2020 advising the arborist had already visited the property and explained other trees were a higher priority for pruning. Once the priority list had been worked through, the landlord would look at pruning the tree the resident had complaint about. The resident responded asking for a written response and stated the tree should be prioritised as it was causing a nuisance and a health hazard.
The maintenance team called the resident on 26 August and left him a voicemail message. The team also sent an internal email advising the tree had been surveyed and did not need to be removed as per the advice of the arborist. The email also confirmed the resident could not fit a gate in the rear fence as it led on to communal land.
On 9 October 2020, the resident emailed the landlord requesting an update on his complaint.
The landlord responded on 14 October 2020 advising the maintenance team had called on 26 August and left a message. It explained that the tree had been surveyed and did not need to be removed. It confirmed that the resident could not fit a gate in the rear fence as it led to communal land. The resident responded the same day asking why the landlord was not putting the response in writing, and stated he wanted to take the matter further. The complaint was escalated the same day.
The landlord issued its final response on 4 November 2020. The landlord apologised that despite its attempts to do so, it had not been able to resolve the resident’s complaint at the informal stage as per its policy. The landlord thanked the resident for taking the time to speak to its internal surveyor on 29 October 2020. The landlord has not provided any information about the details of this call. The landlord explained it would only remove a tree on the advice of its arborist, and in this case the arborist had advised the tree was healthy and did not need removing, though it did need pruning. It explained there had been a delay in pruning the tree as it had completed an extensive survey of its stock which had highlighted trees needing urgent works. Those trees had been prioritised in the tree pruning programme, however an appointment had now been arranged for his tree to be pruned on 2 December 2020. The landlord apologised for the delay in the works and that it was not properly communicated. It advised it had reminded its staff of the importance of communicating with residents and keeping them informed.

Assessment and findings

Decision not to remove a tree.

The resident’s first email to the landlord was to raise the issue of the tree branches overhanging into the resident’s garden causing a mess, and the branches blocking the sunlight and tv reception. The landlord responded the same day asking for additional information, which the resident supplied the following day. The request was then passed to the maintenance team. This is a service request not a complaint, and the landlord responded appropriately.
The evidence indicates the landlord conducted immediate enquiries regarding the resident’s request, however it appears no further action was taken following the response from the maintenance team until after the resident complained on 1 July 2020.
The landlord spoke to the resident on 21 July and explained it would not remove a tree just because a resident had requested its removal and the trees reported by the resident would be looked at for pruning, but they had to prioritise other trees. However, the landlord did arrange for its arborist to conduct an inspection. This action, though delayed, is a reasonable one as it is important trees are inspected by an appropriately qualified person prior to any decision being made about their management.
The arborist visited the resident on 23 July and provided a report to the landlord advising the tree was healthy and did not need to be removed. He also explained there was no health and safety risk caused by the bird faeces as reported by the resident. The arborist confirmed he had provided the resident with advice regarding the installation of a shed and of his right to cut down those branches encroaching into his garden at his own expense.
Given the arborist’s advice that removing the tree to remedy something the resident considers a nuisance is not reasonable given the benefits of the tree to the wider site and community, the decision by the landlord to follow this advice is a reasonable one. However, the landlord should have provided an update to the resident regarding the planned management of the tree.
The tree was pruned on 2 December 2020, and given the landlord was prioritising trees that needed urgent works this delay was not unreasonable. The landlord apologised for the delay and explained why it had occurred. It also apologised for not keeping the resident informed.

Delay in responding to the complaint.

According to the complaint policy the landlord aims to resolve initial expressions of dissatisfaction within three working days. However, the resident was not contacted about his complaint until 8 July, six working days later. The resident’s concerns were not resolved within three working days as per the policy, though the evidence demonstrates that the landlord was attempting to progress the matter internally.
The resident requested an update on his complaint on 3 and 20 August and indicated he wished to escalate the matter. The landlord provided a response on 25 August 2019 advising the arborist had visited the property and determined the tree was safe and explained the tree was on the list to be pruned, but other trees were a priority. The resident asked for a response in writing so he could take the complaint further. In accordance with its policy, the landlord should have escalated the resident’s complaint to the formal stage following this request on 3 August 2020, but it did not. It missed further opportunities to escalate the complaint on 20 and 25 August 2020.
In response to the resident’s request for an update on 9 October 2020, the landlord responded on 14 October and again explained the tree did not need to be removed. The resident responded the same day and asked for the complaint to be escalated. The landlord escalated the complaint on 14 October, and its final response was issued on 4 November, which was within the 15 working days required by the policy.
The landlord did not abide by the timeframe in its policy at the informal stage and did not escalate the complaint when requested on at least two occasions.

Determination (decision)

In accordance with paragraph 54, there is no maladministration in relation to the landlord’s decision not to remove a tree.
In accordance with paragraph 54, there is service failure in relation to the landlord’s complaint handling.

Reasons

The landlord arranged for the tree to be assessed by an arborist, who determined the tree was safe and provided advice to the resident. It is reasonable for the landlord to rely on the findings of the appropriately trained professional when making its decision. The landlord has arranged for the tree to be pruned, which was completed on 2 December 2020.
The landlord did not abide by its own complaint policy; there were some delays during the complaint process and the resident had to chase for an update several times. The landlord missed opportunities to respond to the complaint at an earlier stage.

Orders

The landlord to pay the resident £50 for the service failure in relation to its complaint handling by 27 April 2021.