Cognatum Estates Ltd (202012911)

REPORT

COMPLAINT 202012911

Cognatum Estates Ltd

7 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

1. The complaint refers to:
   1. The landlord’s response to the resident’s report of the vegetation being removed from the trellis that runs along the boundary of her garden.
   2. The landlord’s handling of the associated complaint.

Background and summary of events

2. The complaint was raised by the resident and, at times, by her representative. For clarity, this report with refer to both the resident and her representative as “the resident” and “she”.
3. The resident is the leaseholder of the property. The landlord is the freeholder and provides estate management services for the communal grounds near the resident’s property. The garden of the property is walled with a trellis, which had vegetation growing on both sides.  The landlord cut back the vegetation on the communal side of the trellis in February 2020.  
4. On 2 June 2020 the resident wrote to the landlord and raised a complaint about the gardening work which had been completed to the trellis that ran alongside her garden. She expressed dissatisfaction that the landlord had not consulted with her before clearing this vegetation and asked the landlord to explain its process for carrying out this work without considering the impact it may have on residents. She said that the vegetation on her side of the trellis had been cultivated by her late husband to allow for privacy when using the garden and the removal of this had caused her emotional distress. She acknowledged that the landlord had offered to plant some fast-growing plants but she had not been updated on this and asked to be compensated. She expressed dissatisfaction that other parts of the area had not been maintained, including a pathway to the rear of her property which had plants encroaching from a neighbour’s flowerbed. She asked what actions the landlord would take regarding this.
5. The landlord acknowledged the resident’s letter on 3 June 2020. It said that this matter would be investigated and a detailed response would be provided. The resident sent follow-up emails to the landlord on 22 June 2020 and 20 August 2020 as no response had been received. During this time the landlord explained that the delay was due to the impact of Covid-19 and it would be in touch once it had completed its complaint investigation.
6. The landlord issued its stage one complaint response on the same day and explained the following:
   1. It apologised for the delay in providing a response and said that its focus had been keeping its residents safe during the Covid-19 pandemic.
   2. It said that it employed a garden advisor whose role was to inspect the communal gardens and provide advice to its managers, to ensure that the grounds were maintained to a good standard. A task list was produced after each inspection and its managers were required to consult with the gardener to ensure that tasks were carried out at the right time of year.
   3. It noted that the growth on the path side of the trellis was severely overgrown and the garden advisor had asked this to be cut back to the trellis. It explained that the path area was not a private garden area and that there was no need for it to consult the resident before carrying out the work. The gardener carried out this work in February 2020 and, at the time, the ivy growing on the resident’s side of the terrace meant that her privacy would not be affected.
   4. It understood that in April 2020, the resident had cut back the ivy on her side of the trellis and eventually removed this completely, meaning that any screening was removed. It acknowledged that the resident had reported the lack of privacy and then consulted with the gardener, who arranged for some fast-growing creeper plants to be planted immediately. The landlord apologised for any upset caused but was satisfied that it had acted correctly in this instance.
7. On 25 August 2020 the resident emailed the landlord and explained the following:
   1. She expressed dissatisfaction with the way the landlord had handled her complaint, stating that it had not addressed each complaint aspect, nor had it responded within its complaint handling timescales or explained how the complaint could be escalated.
   2. She was not disputing that the plants outside of the garden may have needed cutting back, but the removal of the vegetation on one side meant that the attachment of any plant on the other side was destroyed. She reported that the plants on her side of the trellis began to die within three days of being cut. She felt that the landlord should have discussed cutting back the vegetation before carrying out any action and asked why it was felt that this work could be done with no impact on the greenery on the resident’s side. 
   3. She expressed dissatisfaction that the vegetation on her trellis had been cut back but other greenery in communal areas had not. She again stated that the path from her back door had become a safety hazard as a rose plant encroached onto the path. She expressed concern that other areas had not been surveyed by the garden advisor and the landlord had not responded to this aspect of her complaint. She asked the landlord to provide details of the tasks that arose as a result of the garden advisor’s visit at the start of 2020.
8. The landlord acknowledged the resident’s letter on 26 August 2020 and explained that the member of staff handling the complaint was on annual leave but would respond on their return. The resident responded the same day and explained that she would have expected the landlord to have arrangements in place for handling complaints in the absence of staff members, but agreed and asked for a response to be provided within 15 working days.
9. On 16 October 2020, the resident sent a follow-up email to the landlord as no response had been issued. She asked for justification as to why the complaint remained unanswered for so long and expressed dissatisfaction that the landlord had not handled this in line with its complaints procedures. Since September 2020 the resident had been seeking to get a substantive response which justified what happened and recognised the distress had been caused by the way the landlord had handled the work. She had sought to establish the status of the complaint, to see whether it had exhausted the landlord’s complaints procedure and could be escalated elsewhere. The resident asked for a response to be provided before the end of October 2020. The landlord acknowledged this email on 23 October 2020.
10. On 13 November 2020 the resident sent a follow-up email asking if there had been any progress on the complaint. The resident confirmed that her ideal resolution would be an apology that the work was not planned correctly, recognition that the landlord had not adhered to its own complaints procedure, confirmation that lessons had been learnt, and that in future residents would be consulted before any work which may directly impact them is completed, and compensation for the distress that this matter had caused such as a Christmas hamper.
11. On 26 November 2020 the landlord emailed the resident and apologised for the length of time it had taken to provide a complaint response. It explained that the Covid-19 pandemic had impacted the whole organisation which meant that its normal complaint handling timescales needed to change. It apologised that the resident had been adversely affected by the work to the trellis and explained that it would not usually consult with leaseholders on the gardening work to the communal areas. It agreed that it could have been more sensitive to the impact of the work to her property. It explained that as a non-profit organisation, it was unable to use leaseholder funds to purchase hampers and similar items; it added that it did not believe that the other leaseholders would consider this a reasonable use of their service charge funds.

Assessment and findings

The landlord’s response to the resident’s report of a natural screen being removed from her garden.

12. In line with the landlord’s purchaser information pack, the landlord is obliged to maintain the communal gardens, roads, paths and grounds on the site. This pack acknowledges that residents may have their own ideas about how the gardens should be maintained and to reconcile different views, the landlord employs a garden advisor. The landlord would not be expected to consult with each leaseholder before completing any maintenance or gardening work to any communal areas, as it would not be practical to do so on every occasion. Although, it would be reasonable to consult residents before major works such as building work or large scale landscaping.
13. In this case the landlord’s garden advisor had identified that the vegetation on the communal side of the trellis was overgrown, which was affecting the use of the communal pathway adjacent to the resident’s property; it was therefore reasonable that this was cut back. The landlord has stated that, at the time of the cutting, it believed that the ivy on the resident’s side of the terrace meant that her privacy would not be affected. Whilst the landlord was not to know that the vegetation on the resident’s side of the trellis would die back at the time of the work, it is clear that the vegetation on the resident’s side was affected, and the landlord’s actions had caused the remaining vegetation to die off. This had an emotional impact on the resident, who stated that the plants on her side had been planted by her late husband.
14. There has been service failure by the landlord in respect of its response to the resident’s report of a natural screen being removed from her garden. Whilst the landlord has apologised and taken steps to plant new fast-growing creeper plants, it has not offered suitable redress to the resident in recognition of the distress caused. This emotional distress may have been greater in the resident’s case compared with other similar circumstances in view of her emotional attachment to the plants.
15. The landlord has advised that it would not offer the resident a goodwill gesture as this would not be a reasonable use of leaseholder funds. In its communication to the Ombudsman, it has added that any gift to the resident would appear in the annual estate accounts which would “rightly” lead to service charge payers being dissatisfied with this use of funds accrued through the service charge.
16. It is good industry practice and the Ombudsman’s established view that financial compensation should be considered in recognition of distress and/or inconvenience experienced by residents as a result of errors made by their landlord. This is detailed in the Ombudsman’s Complaint Handling Code and our Remedies Guidance, which are available on our website. As a member of the Housing Ombudsman Scheme, the landlord would be expected to comply with our approach and instruction on such matters.
17. The Ombudsman agrees this approach would have to be applied to other complaints which may affect all residents’ service charges. However, other social landlords operate in this way and whilst it is inevitable that mistakes will be made from time to time, the landlord can reduce the amount of errors it makes and the compensation it has to pay for these errors by ensuring that its processes and procedures are robust, fit for purpose and staff have adequate training to follow these processes correctly.
18. The Ombudsman notes the landlord’s concern that any compensation payment would need to be published in the annual estate accounts for the site. Whilst it is outside the Ombudsman’s remit to interfere in the day to day running of the landlord’s organisation, we would suggest that it may be preferable for compensation payments to be paid from the landlord’s overall annual budget rather than from one estate’s accounts. This approach would mean that the cost of compensation payments would be evenly distributed amongst all service charge payers rather than falling disproportionately to leaseholders of one estate, because one of their neighbours happened to be awarded compensation due to an error by the landlord.
19. In view of this, the landlord should offer the resident compensation in recognition of the inconvenience and distress caused by its gardening work. In this case it would be easier to administer the redress as financial compensation rather than a hamper as was suggested by the resident. The resident would be free to spend the money as she sees fit, including on a hamper if she wants to.
20. To assist with the management of compensation requests going forward, it is recommended that the landlord considers amending its complaints policy or establishing a separate compensation policy to set out its approach to compensation for distress and inconvenience moving forward, in line with the Ombudsman’s Complaint Handling Code and industry best practice.

The landlord’s handling of the associated complaint

21. The landlord’s complaints policy states that it has a two-stage procedure for handling complaints. At stage one, the landlord should provide a response within ten working days. If the resident remains dissatisfied, they can escalate their complaint to stage two. At stage two a complaint response should be issued within four weeks. If for any reason a longer timeframe is required at any stage, the resident should be informed and advised of when to receive a response. It is noted that the landlord updated its complaints policy in January 2021 to include an appendix which details changes to complaint handling as a result of Covid-19. This was brought into effect after the resident’s complaint.
22. The resident initially raised the complaint on 2 June 2020. The landlord issued its stage one response on 20 August 2020, which was 47 working days outside of its ten–working–day timescale for stage one. The complaint was escalated on 25 August 2020 and the landlord issued its final response on 26 November 2020, which was significantly outside of its four-week timeframe at stage two.
23. There has been service failure by the landlord in respect of its handling of the associated complaint. It was reasonable for there to be some delay in issuing complaint responses as a result of Covid-19; however, the landlord did not appropriately keep the resident updated or manage expectations of when a response would be issued. This meant that the resident needed to repeatedly follow-up on the progress of the complaint, necessitating an unreasonable level of involvement by the resident.
24. Furthermore, in line with the Ombudsman’s Complaint Handling Code, a landlord should address all points raised in a complaint. In this case, the landlord has not addressed the resident’s concerns about plants encroaching onto the pathway at the rear of her property, or explained what actions it would take in regard to this. 
25. In view of the above, the landlord should offer the resident compensation as set out below, in recognition of the inconvenience caused as a result of its complaint handling delays and lack of clear communication. The landlord should also consider carrying out staff training to ensure that residents are kept regularly updated on the progress of their complaint if there is likely to be delays in issuing a response.  

Determination (decision)

26.  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 report of the vegetation being removed from the trellis that runs along her garden.
27. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of the associated complaint.

Reasons

28. The landlord has not fully taken into consideration the emotional distress caused to the resident as a result of its actions. Nor has it offered suitable redress for the inconvenience caused to the resident as a result of this.
29. The landlord did not keep the resident updated or manage her expectations of when a complaint response would be issued at each stage in its process, which meant that the resident needed to follow-up on this matter numerous times over a prolonged period.

Orders

30. The Ombudsman orders that the following actions take place within four weeks:
    1. The landlord is to pay the resident £100, comprised of:
       1. £50 in recognition of this distress caused as a result of the vegetation being cut back.
       2. £50 in recognition of the inconvenience caused as a result of the landlord’s complaint handling.
    2. The landlord is to investigate the resident’s report of encroaching plants on the footpath to the rear of her property and write to the resident to confirm the actions it will take to resolve this issue.

Recommendations

31. It is recommended that the landlord considers amending its complaints policy or establishing a separate compensation policy to set out its approach to compensation for distress and inconvenience moving forward, in line with the Ombudsman’s Complaint Handling Code and industry best practice.
32. It is recommended that the landlord considers carrying out staff training for complaint handlers to ensure that residents are kept regularly updated on the progress of their complaint if there is likely to be delays in issuing a response.