Trafford Housing Trust Limited (201914289)

REPORT

COMPLAINT 201914289

Trafford Housing Trust Limited

8 June 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 refers to the landlord’s response to the resident’s concerns about:
1. The grounds maintenance provided at the property.
2. The service charge associated with grounds maintenance at the property.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.

The service charge associated with grounds maintenance at the property,

Paragraph 39(g) of the Scheme states:
1. “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, concern the level of rent or service charge or the amount of the rent or service charge increase”
It is understood that part of the resident’s complaint concerns whether she should pay service charges for grounds maintenance works and what a reasonable amount would be for her to pay given the level and quality of service offered by the landlord. The Ombudsman cannot review complaints about whether service charges are reasonable or payable. Complaints that relate to the level, reasonableness, or liability to pay rent or service charges are within the jurisdiction of the First-Tier Tribunal (Property Chamber) and the resident would be advised to seek free and independent legal advice from the Leasehold Advisory Service (LEASE) (https://www.lease-advice.org/) in relation to how to proceed with a case. However, the Ombudsman has considered the landlord’s communication regarding the grounds maintenance and its response to the resident’s concerns about this service.

Background and summary of events

The resident is a tenant of the landlord. The landlord employs an external company to carry out grounds maintenance to the communal areas around the block. The resident has a private garden to the rear of her property which had historically been maintained by the landlord.
The resident raised concerns about the landlord’s grounds maintenance team who she said had not been maintaining the areas to the rear of her property in 2019. On 28 January 2020 the landlord acknowledged that some areas had not been sufficiently maintained and agreed to reimburse the resident 25% of her service charge over the previous 12 months; it rounded up this figure and offered the resident £100. The resident did not accept this offer.
The resident wrote to the landlord on 14 May 2020 to raise a formal complaint and explained the following:
1. She explained that the lack of grounds maintenance service was ongoing and the grounds team had not touched the area to the rear of the property on their 9 January 2020 or 5 March 2020 visits to the site. After she chased this matter, the contractors returned and cut the hedges but left the clippings in her garden. She expressed further dissatisfaction that the grounds staff were now also using her side gate to enter the rear of the property, rather than going through the communal entrance as they did previously.
2. She was dissatisfied that she was paying a weekly service charge throughout the year for this work yet the grounds team did not visit at all during the winter months. She was also unhappy that the contractual obligations, with regard to the frequency of visits, were not being met. She also raised concerns about the landlord’s communication and handling of this matter and explained that she could find a private company to do the work for less than she was currently being charged.
The landlord’s records show that it spoke to the resident on 20 May 2020 and advised that the complaint may take longer than ten working days to resolve due to its complexity, but that it would keep the resident updated. It contacted her again on 11 June 2020 where she said she was unhappy that she had continued to pay the grounds maintenance service charge during this time. She asked the landlord to provide an update by 15 June 2020.
The landlord emailed the resident on 15 June 2020 to provide an update on its investigation to date. It apologised for the delay and explained the following:
1. It confirmed that it had reviewed the tenancy agreements for all the properties within the scheme and it was confident that it should be providing a grounds maintenance service to several areas of the resident’s block. It noted that this would not include the resident’s private back garden area. The landlord reasoned that this would have been “demised” (allocated) to the resident as part of her tenancy as it was clearly fenced off for private use. There were several areas around the block which were considered communal grounds, accessible to all tenants. These areas were being maintained by the landlord and it was those areas that the resident was being charged for.
2. It noted that the resident’s tenancy agreement did not specifically include a grounds maintenance charge. The landlord sought legal advice on this and said that it could defend the charge as reasonable on the grounds that it had provided the service for several years, and by paying the service charge, the resident had accepted “custom” of the service.
3. It explained that the charges were based on the cost of providing the service and the company responsible for the grounds maintenance also benchmarked their charges annually with other housing providers to ensure the charges remained reasonable. With regard to the hedge cuttings not being removed, it concluded that it would be the resident’s responsibility to maintain her side of the hedges as they were situated in an area which had been allocated to her property for her personal use and as such, this side of the hedge should not have been cut in the first place.
4. It said that it would organise for a consultation to take place to see whether tenants would prefer to take responsibility for maintaining the communal areas in the block, rather than paying a service charge for the service provided. It explained that for the time being, the service and charge would remain unless otherwise decided. It said that the service charge refund for the previous year offered in January 2020 would remain available, should the resident wish to accept this and conclude her complaint.
The resident responded on 23 June 2020 and explained the following:
1. She said that the fence was in place when her tenancy began and there was no information in her tenancy agreement that stated that this area was not covered by her grounds maintenance fee. She said that two other fenced ‘private’ gardens had been maintained by the landlord and asked what criteria the landlord used when describing her garden as “demised”. She said that as the landlord had previously maintained her garden, this would also be an agreed ‘custom of service’.
2. She estimated that around 75% of the hedge bordered on the communal area and to date it had been maintained by the landlord. She said that maintaining her side herself was not an issue but she expressed concern that the guidance posted on the communal noticeboard for the estate stated that visits would take place three times a year and that ‘all’ rubbish would be removed by the landlord.
3. She said that she did not have a problem paying the service charge but was concerned about the scope of work she was being charged for. She asked the landlord to provide further clarity on what areas it managed and what areas were the responsibility of its tenants. She also asked the landlord to provide further information about when the consultation would take place and how this would be monitored.
The landlord issued its stage one complaint response to the resident on 3 July 2020 and explained the following:
1. It confirmed the details of its previous response to the resident on 15 June 2020 and added that her tenancy agreement implied that the resident had a garden for her personal use and stated that it was her responsibility to maintain this area.
2. The landlord confirmed that the hedges were cut twice a year as part of its current grounds maintenance programme. It time-recorded each visit and took photographs to evidence the work being carried out by its grounds maintenance team. It said that, on occasion, it had not been able to collect hedge trimmings and provide other services due to dog fouling in the communal areas. Other than those occasions it was satisfied that the service was being provided to the standard required.
3. The resident had sent the landlord a letter, which she received on 8 October 2015 which stated that the rear garden was fenced for her sole use, and that the landlord had asked the service responsible for grounds maintenance to maintain the garden area. The landlord advised that this letter contradicted itself and if a garden was for ‘sole use’ it could not also be considered communal. Maintaining a garden for sole use, could not possibly be a service charged to all residents through their service charge and therefore it was not a service it should provide. The landlord apologised for any miscommunication and confirmed that in line with her tenancy agreement, the garden area was the resident’s responsibility to maintain unless this was not kept to a reasonable standard.
4. It explained that the grounds maintenance maps for the scheme were out of date and some areas had either been made private gardens or sold to leaseholders through the right to buy/acquire schemes. This had led to its grounds maintenance team maintaining areas of land which they should not be including the resident’s back garden. It advised that it would be completing a full review of the maps in the next 12-18 months and would make appropriate changes moving forward. It asked the resident to confirm whether she would accept this apology and the goodwill gesture of £100 offered previously.
The resident emailed the landlord on 7 July 2020 and explained the following:
1. She could not find any reference in her tenancy agreement which stated that because a fence was in place, it would be her responsibility to maintain that area. The tenancy agreement stated that the area must be kept neat and tidy with no rubbish. She asked the landlord to provide further information about what she would need to do to maintain the garden.
2. She expressed dissatisfaction that on each interaction with the landlord she had been given contradicting information about whether her garden would be maintained by the landlord. She asked for further information about what would be used to define the new areas on the ground maintenance maps and whether these changes would be reflected in her tenancy agreement.
3. She asked the landlord to explain the difference between it invoking a ‘custom of service’ because she had paid the charge over a number of years and it ignoring the ‘custom of service’ agreed in carrying out maintenance to her garden over the same period.
4. With regard to the hedge trimmings, she explained that leaving cuttings over dog fouling would constitute a health hazard and asked the landlord to detail its normal procedure in this case.
5. She explained that the stress of this matter was having a negative effect on her mental health and wanted to escalate her concerns further. She expressed concern that she had raised this in May 2019 but this had not been addressed until she raised a formal complaint.
The landlord responded on 9 July 2020 and explained the following:
1. It confirmed that the resident’s tenancy agreement did not specifically say that she had a private garden to the rear of her property, but as the garden was fenced-off and accessible through a private back door, this would not be considered a communal area. It therefore had no obligation to maintain the garden under the terms of the tenancy agreement.
2. It confirmed that it interpreted the obligation to ‘keep tidy and free from rubbish’ to mean that the resident would be responsible for cutting the grass, weeding, and trimming the hedges. It understood that the resident may have been given contradictory information regarding this and apologised again for the inconsistent messages she had been given in the past.
3. It advised that the existing grounds maintenance maps did not form part of any legal agreement and were for operational use only. It was aware that the maps needed a full review as things had changed since they were drawn up. It had advised the grounds staff of which areas they should and should not maintain, but the amendments of the maps would take some time.
4. It explained that it would invoke ‘custom of service’ on the grounds that it had consistently maintained the communal areas over several years and the resident had, without dispute, paid for the service charge, despite this not being listed on the tenancy agreement. If challenged at a tribunal, it would dispute ‘custom of service’ for the maintenance of the resident’s private garden, on the grounds that it did not receive payment for that service. It confirmed that the service charge was for maintenance of the communal grounds only.
5. It confirmed that it should not be collecting hedge trimmings from any private back garden and that this would be the tenant’s responsibility. It added that due to health and safety regulations, it had not been able to carry out some work in communal areas because of the presence of dog faeces.
6. It apologised for any stress caused and explained that it had only recently been informed of the issue. It apologised for the length of time it had taken to resolve the complaint. It said that this was a complex case and it was its priority to improve its communication around service charges to customers.
The resident emailed the landlord on 20 July 2020 and asked for her complaint to be escalated to stage two of the landlord’s process as she remained dissatisfied. The landlord acknowledged her escalation the following day and stated that this would be reviewed within five working days.
On 27 July 2020 the landlord provided its stage two complaint response to the resident and explained the following:
1. It was confident that its stage one response was correct and that it was currently charging the resident for grounds maintenance service of the communal areas. It was unable to uphold this aspect of the resident’s complaint and confirmed that she would be liable for the £94.22 outstanding service charge payment.
2. It confirmed that it would be completing a review of the site maps in the next 12-18 months but it would use a draft map in the meantime to ensure that the correct areas were being maintained by its contractors. It confirmed that it would liaise with the grounds maintenance team so that they understood what work was to be completed. It reiterated its of offer £100 as a gesture of goodwill.

Assessment and findings

The resident’s tenancy agreement states that she would be responsible for keeping her garden neat and tidy, and free from rubbish. The landlord is responsible for the upkeep of the communal gardens/area that the resident’s flat is situated in. The service charge covers maintenance of communal gardens and other land owned by the landlord, not the maintenance of private gardens. The landlord employs a grounds maintenance service which carries out various seasonal tasks in the communal areas throughout the year, including two visits per month in each season and hedge trims twice a year.
In view of the above, it was correct for the landlord to confirm that it would not be obliged to maintain the resident’s garden as this would not be considered a communal garden. This response was appropriate as it was in line with the landlord’s legal obligations under the terms of the tenancy agreement, which states that a garden would be the tenant’s responsibility to maintain. The landlord has also utilised the complaints process to identify points of learning and establish why certain areas including other private gardens were being maintained by its grounds staff by mistake. It established that its site maps were not up to date and has confirmed that these would be reviewed to ensure that its grounds staff knew which areas they should and should not manage.
Despite this response, there has been service failure by the landlord in respect of its communication with the resident regarding this matter. It is not disputed that the resident had been given contradicting information in relation to who would be responsible for the upkeep of her garden. This is likely to have been frustrating, especially considering that the landlord had previously apologised for not maintaining this area in January 2020, leading the resident to believe that her garden should be maintained. Ultimately the landlord had set expectations that her garden would be maintained and had not confirmed its obligations until she had raised a complaint on the matter.
Furthermore, the landlord does not appear to have answered all of the resident’s questions in its complaint responses, including why she pays a weekly service charge year-round when the grounds staff do not attend in the winter months and further information about the scope and amount of service charge she pays for the communal grounds maintenance. In view of this it is recommended that the landlord provides further information in relation to how the grounds maintenance service charge is calculated to the resident and explain why she pays a weekly service charge year-round when the grounds staff do not attend in the winter months.
The landlord has acknowledged that it had provided the resident with contradicting information and apologised to her, which is reasonable. However, the offer of £100 compensation for the inconvenience caused was not appropriate as this amount had previously been offered as redress for separate identified service failures in maintaining the grounds at the property. Ultimately, the landlord would be expected to honour its previous offers of compensation or provide an explanation as to why this would be withdrawn, which it has not done. The landlord should offer further compensation to the resident in recognition of the inconvenience and confusion caused by its provision of contradicting information and the time and trouble the resident had spent pursuing the complaint, which had not been adequately addressed in its complaint responses.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its response to the resident’s concerns about the grounds maintenance.

Reasons

The landlord has provided a satisfactory explanation as to why it would not be obliged to maintain the resident’s private garden; however, it has not offered sufficient redress in view of the length of time the resident has spent pursuing this matter and for the confusion and inconvenience caused.

Orders and recommendations

The Ombudsman orders that the following actions take place within four weeks:
1. The landlord is to pay the resident £200, comprised of:
  1. £100 as previously offered in January 2020,
  2. An additional £100 in recognition of the inconvenience caused by the landlord’s communication and the time and trouble incurred by the resident.
It is recommended that the landlord provides further information in relation to how the grounds maintenance service charge is calculated to the resident and explain why she pays a weekly service charge year-round when the grounds staff do not attend in the winter months.