Trafford Housing Trust Limited (202015189)

REPORT

COMPLAINT 202015189

Trafford Housing Trust Limited

27 September 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 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 handling of tree maintenance next to the resident’s property.

Background and summary of events

Policies and procedures

2. As per the landlord’s tree procedure, it will not investigate a tree work request if the tree is perceived to be too large, obstructs views, causing shading or loss of light to properties or seasonal nuisances, or the work only benefits an individual. It will investigate this further if the tree is thought to be unsafe, damaged or diseased.
3. The tree procedure also states that approval is not needed by the landlord for it to undertake work on trees in individual gardens if the tree is dangerous. However, it is required to write in advance to seek feedback from residents who can see trees that are due to be felled by its planned works, and to then consider any feedback on this from them for alternative options.
4. The leasehold agreement between the resident and the landlord confirms that she has a right of “access of light to buildings or any part of a building.” This also confirms that the landlord is responsible for maintaining the exterior of her property.
5. The landlord’s discretionary compensation (gestures of goodwill) guidance permits it to consider paying discretionary compensation to its residents where an apology is not proportionate, or where they seek further redress, for their dissatisfaction relating to complaints or to correct its errors. It is recommended to award up to £100 for residents’ time and inconvenience to reflect the cost and time that they have incurred resolving issues with it.

Background

6. The resident is the leaseholder of the property, with the landlord being the freeholder.
7. There is a historic element to this complaint which is outside of the scope of this investigation. While some of this is included below for contextual purposes, this report focuses on events from the resident’s tree maintenance communication with the landlord from 16 February 2021 onwards. This is because this Service cannot investigate complaints that were not brought to the landlord’s attention as a formal complaint within a reasonable period of normally within six months of the matters arising. The resident’s tree maintenance communication with it of 16 February 2021 was the earliest date that she raised this matter with it within six months of its stage one complaint response to her of 15 March 2021, and so is the starting point of this investigation.
8. Therefore, while the resident has also explained that she requested tree maintenance from the landlord in January 2020, this report is unable to assess its handling of her request at that time. This Service also cannot consider complaints made prior to exhausting the landlord’s complaints procedure. As a result, while the resident has additionally reported being dissatisfied with its handling of issues relating to parking, flower boxes, lighting and its consultation on tree maintenance in the vicinity of her property, these matters are outside of the scope of this investigation. This is because there is no evidence that a complaint from her about them has exhausted the landlord’s complaints procedure.
9. In January 2020, the resident reported that she had asked the landlord for two trees to be “cropped off”, as they were impacting light entering into her property. She explained that this had worsened for her in the summer of 2020, however, at this time, it was dealing with a backlog of work following the corona virus pandemic. The resident stated that she was only asking the landlord for maintenance and a right to light, which she was paying for as per her leasehold agreement.

Summary of events

10. On 16 February 2021, the resident contacted the landlord to query its spending on garden maintenance, in light of her reporting that it had told her for over a year that there was no money to trim back the trees that were blocking her and her neighbours’ natural light, interfering with television signals and allowing squirrels access to their roof. She described such tree maintenance as “not having been done for years”, and she explained that it had told that it would inspect this once it had resumed operations following the corona virus lockdown, having reportedly had a six-week backlog for this in July 2020. The resident stated that she had heard nothing about this from the landlord, and that the value of her property had been affected by this, so that she was being prevented from moving.
11. The resident subsequently chased the landlord for a response to her above correspondence to it on 24 February 2021. It then replied to her on 3 March 2021 to say that it was due to cut back the trees next to her property as part of its scheduled tree work “in the next couple of months”, as it had to prioritise trees across the borough to remove any that were dead or dangerous as a priority. The landlord explained that the trees next to the resident’s property were in good condition, and that it had carried out a small amount of work to these to try and keep them from touching properties.
12. The resident went on to contact the landlord again on 2 March 2021 to query its lack of grounds maintenance fees in her service charge budget for the coming financial year. It subsequently recorded on 11 March 2021 that it had raised a stage one complaint from her for her dissatisfaction with the standard of its maintenance, including for trees growing at a 45-degree angle against her property and blocking light from coming into the property.
13. On 15 March 2021, the landlord issued its stage one complaint response to the resident. It confirmed that it had planned for the above tree work by its tree surgeon to be due to begin in April to May 2021, which followed its survey of her site in 2019 when it had decided that the work was to have been spread over two years. The landlord also apologised for the delay in the work, and it stated that the trees must be reviewed in priority order with the most dangerous trees to be dealt with first, but it agreed to inform the resident once it had a confirmed date for the work.
14. On 16 March 2021, the resident responded to the landlord, stating that her enjoyment of her property had been affected by the “severely leaning trees”, which had meant that she had lived “in darkness” and “in fear” on windy days. She also challenged its claim that the trees had been fully inspected, and she wanted to see the report that its tree surgeon had completed for these.
15. On 19 March 2021, the landlord responded to the resident, saying that it had planned tree works for 20 April 2021. It also confirmed that the trees next to her property would be “made clear of the building, and the height will be reduced”.
16. On 20 April 2021, the resident requested the escalation of her complaint to the final stage of the landlord’s complaints procedure. She explained that this was because, despite being assured in its previous response to her that the trees would be made clear of the building on 20 April 2021, the gardeners had not attended to the trees affecting her property when they had visited on that day. The resident was also unhappy that, “after 15 months”, the landlord had not carried out the work that it had committed to doing.
17. On 21 April 2021, the landlord responded to the resident. It stated that there was “quite a substantial amount of work to complete” which it was unable to finish on the previous day. It had therefore re–attended her site on the next day, however it needed to attend to a dangerous tree in the area instead. The landlord apologised to the resident for this, and it confirmed that it would continue to work on the tree “as soon as possible”, and that it would be sending out further information on this “by the end of this week”. If she nevertheless still wanted to escalate her complaint, it said that it could arrange this.
18. On 21 April 2021, the resident responded to the landlord to re-request the escalation of her complaint to the final stage of its complaints procedure. She stated that she was not surprised that it was unable to complete the above tree work, as it was only there on site for “a couple of hours” and, in this time, it did not begin the work on the trees next to her property. As the resident had felt that the landlord had “lied” about the trees being cut back, she now wanted evidence of the most recent inspection carried out on the trees.
19. On 27 April 2021, the landlord acknowledged the resident’s final stage complaint as having been escalated by it as of 26 April 2021, and it confirmed that a response to this was due within 20 working days.
20. On 28 April 2021, the landlord wrote to all of its residents at the site to explain that it had carried out an inspection with its tree surgeon on that day, following several residents’ reports that a number of trees had not had any work carried out to them, and that it would update the residents once the inspection report was received.
21. On 5 May 2021, the resident emailed the landlord to explain that she had not received further information on the tree work detailed in its response to her of 21 April 2021. This was despite it having further confirmed to her on 28 April 2021 that this would be sent on that day. The resident felt that this was another example of being “continually lied to and let down” by the landlord.
22. On 9 May 2021, the resident wrote to the landlord in response to a letter that she had received regarding the trees affecting her property, stating the following:
    1. It had been 16 months since she had requested the work to cut back the trees, but no work had started on them, and she had not been given a timescale for the completion of the work.
    2. She felt that it had failed to communicate effectively with and had told “lies” to her when it had committed to cutting back the trees in its response to her of 19 March 2021. The resident also disputed the landlord’s assurance to her on 19 March 2021 that the trees were in good condition and had not been identified as dangerous.
    3. She additionally wanted to know why it had delayed her complaint escalation, and she reported that the matter had affected her mental ill-health.
23. On 14 May 2021, the landlord issued its final stage complaint response to the resident. It confirmed that it carried out tree surveys every two years. In the survey carried out in December 2019, the landlord did not highlight that the trees at the front of the resident’s property were a priority. It recognised that, despite this, it had promised her that these trees would be reduced in height at the same time as the priority works identified in the survey, which it had failed to do due to a lack of internal communication.
24. The landlord explained that it had since sought further advice on reducing the height of the trees and their canopies, but that this was not possible due to their size and the impact that this would have had on them in the future, so that it was advised to remove the trees entirely to resolve the issue that the resident had reported to it. It stated that it was not its policy to remove healthy trees, although it recognised the impact that these were having on her and her neighbours and wanted to help, but it had to consult with all of its residents on her site and the surrounding area about this.
25. The landlord stated that all of its affected residents would therefore receive its consultation letter by 28 May 2021 for a two-week consultation period, with the outcome being decided by a majority vote. It also apologised to her for the delay in reaching a conclusion to this, and for its internal and external miscommunication that had led to this and its service, which was “short of [its] usual standard.”
26. On 14 May 2021, the landlord wrote to its affected residents to confirm the findings of its specialist tree contractor’s inspection of 28 April 2021. It confirmed that they had assessed that the trees were not able to be reduced without being damaged. Therefore, the landlord would be looking to remove these trees, and to replant ornamental trees along with large quarry stones to create a focal point for the area. As it needed to consult with residents on the tree removal, it asked them for a response to this by 28 May 2021. The majority vote on the proposal would prevail.
27. On 17 May 2021, the resident replied to the landlord’s final stage complaint by stating the following:
    1. She felt that it was offering an “all or nothing” solution regarding the trees. The resident did not understand why the trees could not be reduced in height, particularly as the landlord had committed to carrying out this work.
    2. In respect to the consultation, she did not feel it was necessary to consult “lots of people whose properties [are not] even affected” by the proposed work. Furthermore, the landlord had previously removed a tree without consulting residents first.
    3. As a result, she would be referring the matter to this Service.
28. On 18 May 2021, the landlord responded to the resident, stating the following:
    1. Following its inspection on 28 April 2021, it had identified “significant signs of disease” in a tree. This had required urgent removal and, under these circumstances, a consultation was not necessary for the tree to be removed.
    2. As its tree surgeon had assessed that it would not be able to reduce the height of the trees affecting her property without damaging them, it had recommended the removal of the trees. This was far more expensive, but in the best interests of the trees.
    3. It would provide residents with a full plan of the work once it had completed its consultation. If the majority objected the proposal to remove the trees, the work would not go ahead and the landlord “would need to look at other options.”
29. On 26 July 2021, the landlord wrote to its affected residents to inform them that, following the above consultation, it would not be removing the trees on the resident’s site, as this showed that residents did not want these to be lost. The trees would therefore instead be “put onto a schedule of works for 2022”.
30. The resident subsequently complained to this Service that the landlord had never trimmed the tops of the trees overhanging her property’s roof, which had grown without it cutting these back to such an extent that there was a dark environment in her property that was “enclosed” and “oppressive”, and this was “mentally and emotionally draining” for her. She reported that it had previously given her various reasons as to why it could not work on the trees at all that included a lack of budget left for this, corona virus restrictions, her not having any right to light contrary to her leasehold agreement with, and tree preservation orders requiring the local authority’s consent for any work.
31. The resident considered the landlord’s proposal to either leave or to cut down the trees to be extreme, and she felt that her concerns could instead be resolved by branches being trimmed back without their removal, which it had not once met her to discuss. As it had insisted that the trees were healthy, she explained that she did not understand why its only course of action was to cut these down and that this went against its own policy. The resident added that she did not understand why the landlord could not either trim back the few branches that she wanted or have followed its 2019 survey’s recommendation to crown lift the trees.

Assessment and findings

32. The resident has previously raised concerns over the effect of the trees restricting the natural light into her property on her mental health and wellbeing. The Ombudsman does not dispute her comments regarding her health, but we are unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing or to award damages for these. This because we do not have the authority or expertise to do so in the way that a court, tribunal or insurer might. However, we have considered the general distress and inconvenience which the situation has caused her.
33. The resident complained about the landlord’s handling of the maintenance of the trees next to her property, and she requested that these be reduced in height by it to allow for natural light to enter her property. Even though its above specific tree procedure confirmed that it would not investigate such requests where trees were perceived to be too large, obstructed views, or caused shading or a loss of light to properties, it had committed to doing this from its response to her of 19 March 2021. This was not fair on the resident, however, as the landlord had committed to carrying out work outside of its procedure without providing any evidence of further investigations by a relevant specialist that it could do so.
34.  This led to the landlord acknowledging in its final stage complaint response to the resident of 14 May 2021 that there was failure on its part that was found for its miscommunication to her regarding this. This was because it accepted that it had not only previously failed to lower the height of the trees next to her property to seek to reduce the light loss there after it had agreed to do so, but that this would not be possible in the future due to the size of the trees and the impact that this would have on them.
35. Due to the landlord’s earlier delay in completing the above tree maintenance work, the resident requested a copy of the most recent inspection report for this from it on 16 March 2021. It therefore subsequently arranged for a new inspection to be carried out with its tree surgeon on 28 April 2021, and its final stage complaint response of 14 May 2021 explained that this had assessed that it would not be possible to cut back the trees affecting her sufficiently without damaging them. As a result, this recommended the removal of the trees, and so the landlord had entered into consultation with its residents about doing so.
36. This was a reasonable action for the landlord to propose to take as, following the specialist advice that it had received from its above tree surgeon’s inspection, it was no longer able to carry out the work to reduce the height of the trees. Although it is of concern that the resident reports that this proposal was extreme and that her concerns could have been resolved by it having either trimmed back some branches without removing them or previously crown lifting the trees that it did not discuss with her, there was no contemporary expert evidence to contradict the above findings of its latest inspection. The landlord’s tree procedure also required it to consult in advance and consider any feedback from affected residents about trees that were due to be felled by its planned works.
37. While the resident has additionally expressed dissatisfaction with the landlord’s handling of the subsequent consultation on the proposed tree removal that started on 14 May 2021, which confirmed that the majority of residents had rejected the proposals, an assessment of this is outside of the scope of this investigation, as outlined above. As a result, work to the trees impacting on the resident’s property was put back to its original timeframe for 2022. However, in view of the landlord being unable to either reduce the height of the trees or remove them, no further information was provided by it to the resident on the alternative action that it would take to address her concerns about these, which was unreasonable. It has therefore been ordered below to do so, and to provide her with its timescale for carrying out such action, if it has not done so already.
38. The resident has also raised concerns that she had previously been told by the landlord on 3 March 2021 that all of the trees next to her property were in good condition. It was nevertheless reasonable for it to have used the information from its most recent tree inspection at that point from December 2019, which had concluded this, however it was possible for the condition of the trees to have deteriorated in the intervening period. This was recognised by the landlord, which subsequently arranged for the above new tree inspection to be carried out on 28 April 2021. This was a fair action for it to take to obtain an up-to-date assessment of the condition of the trees in the area.
39. Nevertheless, although the landlord recognised in its final stage complaint response of 14 May 2021 that its poor communication had delayed a conclusion to the resident’s complaint and its work to the trees next to her property and it apologised to her for this, this did not fully resolve the complaint. This is because its apology alone was not proportionate to correct these errors or to recognise the detriment experienced by the resident as a result of her complaint, which had added distress, inconvenience, time and trouble to her.
40. Therefore, it was not appropriate that the landlord did not consider exercising the discretion available to it under its above discretionary compensation (gestures of goodwill) guidance to correct its above errors or to recognise the resident’s above resulting detriment with a proportionate offer of compensation to her, as recommended by the guidance. As a result, it has been ordered below to pay her direct financial compensation for this, as detailed below, which is appropriate to its guidance.

Determination (decision)

41. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of tree maintenance next to the resident’s property.

Reasons

42. The landlord accepted that it had communicated poorly with the resident in respect to the work to the trees next to her property, and that it delayed the work, for which it apologised. However, it did not offer compensation to her for the delays, or for the distress, inconvenience, time and trouble experienced by her in order to fully recognise these proportionately, which was contrary to its policies and procedures.
43. Also, the advice from the landlord’s tree surgeon was for it to remove the trees next to the resident’s property to resolve her concerns about these, with the proposal being rejected by a majority of its other residents. It was therefore required to outline its alternative plan to address her concerns, but it failed to do so.

Orders and recommendations

44. The Ombudsman orders the landlord to:
    1. Pay the resident £100 compensation within four weeks, in recognition of any distress, inconvenience, time and trouble that she experienced from its miscommunication and delays in her case.
    2. If it has not done so already, contact the resident within four weeks to confirm the alternative work that it intends to carry out to the trees affecting her property to resolve her concerns about these, together with its timescale for carrying out such work.
45. It is recommended that the landlord:
    1. Review its record keeping processes for prolonged planned works and maintenance, and for complaints about them, ensuring that there is a clear audit trail for these, which provides details of specifically when contact was made, what was said, what the agreed next steps, timescales and expectations were, and what actions subsequently took place.
    2. Review its staff’s training needs in relation to their application of its policies and procedures with regard to tree maintenance and compensation, to seek to prevent a recurrence of its above failures in the resident’s case. This should include consideration of this Service’s guidance on remedies, at https://www.housing-ombudsman.org.uk/about-us/corporate-information/policies/dispute-resolution/policy-on-remedies/, and the completion of our free online dispute resolution training for landlords, if this has not been done recently, at https://www.housing-ombudsman.org.uk/landlords/e-learning/.
46. The landlord shall contact this Service within four weeks to confirm that it has complied with the above orders and whether it will follow the above recommendations.
47. The Ombudsman accepts that, because of the present restrictions due to the corona virus pandemic, the timing of the above actions will depend on what is reasonable in the light of Government guidance regarding the health of the resident and of the landlord’s staff.