Leicester City Council (202109417)

REPORT

COMPLAINT 202109417

Leicester City Council

15 October 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 is about:
   1. the landlord’s decision not to allow a mutual exchange until the resident undertook a tree removal.
   2. the landlord’s decision not to reimburse the cost of the tree removal.

Background and summary of events

summary of events

2. On 13 December 2019 the resident completed a Mutual Exchange (MEX) and was assigned the tenancy for a one bed bungalow.
3. In May 2021 the resident requested to complete another MEX in order to relocate to another property. As part of the process, a property inspection is required to be passed before an exchange can go ahead. 
4. On 18 May 2021 a property inspection took place, and it was noted that the tree was unsafe. The resident has stated that before this inspection took place, he contacted the housing officer and raised concerns about the tree. In response to concerns raised by the resident, and in the property inspection, the housing officer requested an inspection of the tree.
5. On 26 May 2021 an inspection was carried out by the councils Trees & Woodland section, and it reported that the tree was unsafe and needed removing. It quoted a cost of £380 to complete this work.
6. The housing officer contacted the resident on 2 June 2021 and explained that the MEX had been conditionally approved but the tree trunk in the rear garden was dangerous and required removal before the MEX could take place. On 3 June 2021 the resident paid £300 to have the tree removed by an independent contractor.
7. On 4 June 2021 the resident contacted the landlord and raised a stage one complaint. He explained that he initially contacted the housing officer in May 2021 about the tree potentially falling onto the property and that, after it was inspected, he was told that someone would let him know when it would be taken down. He stated that he had already purchased new things for his MEX after passing the property inspection and his rent being up to date. He expressed his dissatisfaction at having to take the tree down because he did not plant it and it was not noted as being dangerous on the inspection completed before he moved into the property in December 2019. To resolve his complaint, he asked to be reimbursed the price paid to remove the tree.
8. On 7 June 2021, the property was inspected by the housing officer to confirm that the tree had been removed so that the MEX process could proceed.
9. On 18 June 2021, the landlord issued its stage one response, it acknowledged that whilst managing the application for a MEX the resident had contacted the housing officer and raised concerns about a tree in his garden.
10. The landlord set out that the Conditions of Tenancy were clear and that it was the tenant’s responsibility to maintain the garden, which includes pruning trees. It explained that it could have had the tree removed but the quoted cost of £380 would have been re-charged to the tenant as it had been concluded that the removal was his responsibility. The landlord highlighted that the housing officer had spoken with the tenant on 2 June 2021 and explained that the MEX would not take place until the tree was removed.  Having since confirmed that the tree had been removed, it would not prevent the MEX from going ahead.
11. The resident’s complaint was escalated to stage 2 on 22 June 2021. He stated that a tenant was only responsible for the pruning of a tree, not the removal if classed as unsafe. He further stated that he only removed the tree because of the threat of his MEX being terminated, which he felt was unfair.
12. The resident reaffirmed that he did not plant the tree and it should have been noted to be dangerous on the property inspection carried out in 2019 before he moved in. He also stated that had he chosen to stay in the property, the tree would have been deemed unsafe, thus, putting the property at risk and therefore becoming the landlord’s responsibility as it must provide a safe living space.
13. On 16 July 2021 the landlord provided its stage 2 response. It explained as follows:
    1. There were no reports of there being an issue with the tree when the resident completed his MEX in December 2019.
    2. Since the resident’s current MEX has been submitted, the tree had been highlighted to require attention for the MEX to proceed.
    3. The housing officers acted within its procedures and communicated with the resident, accordingly, confirming information from the conditions of tenancy that the maintenance of a resident’s gardens is the resident’s responsibility, and provided the clause.
    4. The request for reimbursement was declined as it is the responsibility of the resident to ensure that anything planted within the garden, following an exchange, is maintained and not to allowed to get to the point of being unmanageable or dangerous.
    5. From its investigations the landlord concluded that the resident had not received less favourable treatment than other claimants/customers in the same circumstances.
14. The landlord provided details of how to contact this Service if the resident remained unhappy with the decision.
15.  On 17 July 2021 the resident responded explaining that he passed the property inspection on 18 May 2021, and it was him that originally brought the danger of tree to the housing officers’ attention after the person he wanted to swap with raised concerns about it falling on the house.  And it was only after the inspection carried out on 26 May 2021 that it was confirmed the tree was dangerous by any party. The resident also reiterated points made in his stage one response.

Assessment and findings

16. The Tenancy agreement states that it is the tenant’s responsibility to maintain the garden, which includes pruning trees: PART 3 – Your Obligations To Us 3.11 Gardens, courtyards and communal/open spaces. 3.11.1 ‘You must keep your garden clean and tidy and the paths free from obstruction. You must maintain the garden, including trees, hedges, fences, lawns and borders to the satisfaction of the Council.’
17. The MEX policy states where there are rent arrears, outstanding rechargeable repairs or where there are other breaches of tenancy conditions Housing Services may give provisional permission to exchange, conditional upon these breaches being remedied.
18. Property inspections were completed in line with MEX procedure both before the resident moved in and when they wanted to leave. The inspection completed in May 2021 concluded the tree was dangerous, whereas the property inspection completed in June 2019 did not note the tree to be dangerous. It was reasonable for the landlord to rely on the findings of the property inspections when reaching conclusions.
19. The resident has suggested that it was the incoming tenant that initially raised concerns about the tree, this investigation has been unable to confirm this, but the Service is satisfied that based on the evidence neither the resident nor landlord raised an issue with the tree until 2021 after MEX procedure had started. Also, whilst the resident asserted that they passed inspection completed on 18 May 2021 the inspection reported stated that the tree was dangerous and needed removing immediately.
20. Additional the resident was given the same opportunity as the incoming tenant to inspect the property before moving in and ultimately accepted the property ‘as is’ in December 2019.
21. The landlord makes it clear it is important that a resident carefully check the property they want to move to, prior to undertaking the exchange, as they will be accepting it in its current condition. Additionally, the landlord stated that it will not be responsible for repairing, replacing or improving aspects of the property that would not be normally its responsibility. This is relevant because the maintenance of tree falls to the resident under the terms of tenancy. The tenancy does not explicitly state that the ‘removal’ of the tree is the tenant’s responsibility. However, it is reasonable to conclude that whichever party is responsible for the maintenance of the tree will also be responsible for its removal if it is found to be dangerous.
22. The landlord could have had the tree removed but the cost would have been recharged to the resident, this was clarified by the landlord. No evidence has been provided to this Service to show that the landlord has the responsibility of removing the tree.
23. There is no evidence of service failure in the landlord’s response to the complaint. The tree was inspected and deemed dangerous, and under the terms of the tenancy, the maintenance of the tree was the resident’s responsibility. At each stage of the complaint process the landlord explained in detail why it had not upheld the complaint based on the conclusions of its investigations. This means that there was no basis on which the resident would expect a reimbursement of the cost of the tree removal.

Determination (decision)

24. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its decision to not to allow a mutual exchange until the resident undertook a tree removal.
25. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its decision not to reimburse the cost of the tree removal.

Reasons

26. The landlord relied upon the correct terms when concluding that it was resident’s responsibility to remove the tree and has been able to demonstrate that there were no concerns raised about the tree prior to the resident moving in.
27. The MEX process was carried out in line with the relevant guidance and the decision to conditionally approve the MEX was allowed under the landlord’s policy.
28. The landlord was consistent in clarifying why it was the resident’s responsibility to remove the tree and allowed a reasonable amount of time for the resident to do so when conditionally accepting the MEX.