Hounslow Council (202106793)

REPORT

COMPLAINT 202106793

Hounslow Council

29 December 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 concerns:
   1. The landlord’s decision to remove plants from the resident’s balcony.
   2. The formal complaint into the matter.

Background and summary of events

Background

2. The resident is a leaseholder of the landlord, which is a local authority. The property is a maisonette in a communal building.
3. The landlord operates a two-stage complaints process. When a complaint is received, the landlord aims to provide a response at stage one within 15 working days. If the complainant is dissatisfied with the response, they can request an escalation of the complaint to the next stage. The landlord will then undertake a review of the complaint and provide a stage two response within 20 working days. This will be the landlord’s final response to the complaint. 
4. Sections 6 and 7 of the complaint policy relates to the circumstances where the landlord will not open or progress a complaint through its formal process. This, in part, states that the landlord would not progress a complaint about its policy or policy decisions and goes on to say that:
   1. “Some complaints are not about the [landlord’s] failure to meet its service standards, but are expressions of dissatisfaction with a specific policy or a general comment about a [landlord] service. We cannot pursue these through the complaints process but will deal with them as ‘comments’ to ensure that the Policy is up-to-date and consistent with relevant legislation and standards and the relevant service area is made aware of your comments. If relevant, the comments will be considered when the policy is reviewed.”

Summary of events

5. The landlord’s records state that on 31 July 2020, the resident and another tenant of the building were asked to remove plants and flowerpots hanging over the railings in the communal area outside of their properties.
6. The landlord called the resident about the status of the plants on 3 August 2021. The landlord’s notes of the call state that it asked the resident to remove the flowerpot from the communal area or it would arrange to have it removed. The notes then go on to state that the resident refused, and also refused to prune the plants on the balcony.
7. The resident wrote to the landlord on 3 August 2021. She disputed that the plants presented a fire risk and requested to raise a complaint.
8. The landlord replied on 6 August 2020. It explained that it had zero tolerance to any items left in communal walkways that may pose a fire hazard. It noted that following discussions with its staff member, the resident had agreed to remove a flowerpot from the doorstep of the property and to cut back the plants on the balcony. It advised the resident that if the flowerpot was not removed, the landlord would remove it, which may result in her being recharged.
9. The landlord called the resident on 13 August 2020 to inform her that the plant trays on her balcony were dripping water and asked for them to be removed. The resident informed the landlord, on 14 August 2020, that the flowerpot had been removed. It acknowledged this and asked her if the plant trays had been removed.
10. On 18 August 2020, the landlord’s records state that it had called the resident to inform her that as the flowerpot had not been removed, the landlord would now arrange its removal.
11. The resident informed the landlord, on 23 August 2020, that she felt that she was being singled out, she did not accept its stated reasons for removing the plants and wished to escalate the matter further.
12. In its response, of 27 August 2021, the landlord explained that it was satisfied that it had acted reasonably, it had explained the reasons why the plants needed to be removed and had given the resident plenty of opportunity to do this. It confirmed the reasons why it had made the request were that the flowerpot on the doorstep presented a fire hazard and that while small flowerpots were allowed to be placed on the balcony, her plants had become overgrown.
13. The resident called the landlord following its 27 August 2021 email, to dispute its decision and reasons. The landlord then wrote again on 29 September 2021. It provided a timeline of its correspondence with the resident since July 2021 and restated its reasons for its request for the removal and pruning of the plants. The landlord also explained that the resident had not been singled out as similar requests had been made to other residents in the building. It also informed the resident that it had made the decision not to recharge her for the removal of the flowerpot from her doorstep.
14. On 4 November 2021 the resident requested information from the landlord to allow her to take her complaint to her Member of Parliament (MP) or to this Service.
15. The resident wrote again on 28 January 2021. She requested information on the landlord’s process and noted that her previous email had not been replied to. The landlord replied and provided the resident with a link to its website page where its complaint procedure was explained.
16. The resident responded on 30 January 2021. She explained that she did not want to go through its complaint process again and only wanted information on how to escalate her complaint to her MP or this Service.
17. The landlord provided the resident with its complaint information again on 4 February 2021. The resident wrote on 8 March 2021. She stated that she was unhappy that the landlord’s complaint department had not contacted her and that she was now considering legal advice.
18. The landlord wrote to the resident on 16 March 2021. It explained that she had the right to take her complaint to her MP or this Service once she had exhausted its complaint procedure, and that it had provide information on how to progress a complaint. It also restated its position on the plants.
19. The resident contacted this Service on 21 May 2021 to state her dissatisfaction with how her complaint had been handled by the landlord. The Ombudsman passed on the resident’s concerns to the landlord and described the elements of her complaint as:
    1. She has had plants on her balcony for five years and did not understand why it had only become a problem recently.
    2. Other residents had plants on their balconies, and she did not believe that they caused an obstruction or a fire hazard.
    3. The plants were very expensive and due to the location of the property being close to a busy airport, she believed that they provided clean air to the property.
20. The landlord wrote to the resident on 24 May 2021 and confirmed that a formal complaint had been opened, and on 28 May 2021 it sent a stage one complaint response. The landlord informed the resident that:
    1. During their correspondence in July and August of 2020, it had explained that the water tray and debris from her plants on the balcony had deemed to be a nuisance as water was overflowing onto a garden below. The landlord had also deemed plants outside the resident’s front door to be a health and safety hazard.
    2. As the resident had failed to resolve the matter, the landlord informed her that it would arrange to have the plants removed and recharge the resident.
    3. It explained that the balcony was not solely for the resident’s use as it opens onto a communal walkway. This area is narrow, and any plants left in the walkway are a potential hazard. The plants on the balcony had also overgrown and were encroaching on the communal space.
    4. It was satisfied that it had acted fairly within its policies and looked to work with the resident to have the items removed. Although the landlord had the right to charge the resident for the disposal of the items, it had made the decision not to do so in this case.
    5. Although it agreed with the resident that plants do help with the environment, it cannot allow plants to become overgrown or to be become an obstruction in and around residential pathways.
21. The resident wrote to the landlord and requested to escalate the complaint on the grounds that:
    1. She had removed the plants from her front door when asked and disputed that the plants on the balcony were a fire hazard or caused an obstruction.
    2. She was not on good terms with the neighbours below her and that she believed that they had falsely claimed that water was dripping from her balcony into their garden.
    3. She was not made aware that if she did not claim her plants from the landlord within 28 days that they would be destroyed. She noted that the plants were expensive.
22. On the 10 June 2021 the landlord sent its final response to the resident. The landlord explained that it had declined the resident’s request to escalate the complaint as a stage two response would not achieve a different outcome as her request related to a decision made in line with current landlord policy. The landlord quoted the relevant section of the policy that related to complaints about landlord policy.
23. The landlord confirmed that the resident had exhausted its complaint process and offered to discuss alternative ways that the resident could enjoy keeping plants at her property without using the balcony.
24. During a telephone conversation with this Service on 9 September 2021, the resident stated that her outstanding issue from the complaint was that she disputed that the landlord’s position that the balcony was not for her sole use. The resident described her desired outcome to the complaint would be to be reimbursed the cost of the removed plants, which she stated was £600.

Assessment and findings

The landlord’s decision to remove plants from the resident’s balcony

25. The first schedule of the leasehold agreement describes the property as:
    1. “The second and third floors of the Building which is shown for the purpose of identification only coloured yellow and hatched black on the Plan TOGETHER with the internal walls and the ceilings and floors of the said flat and the joists and beams on which the floors are laid but not the joists and beams to which the ceilings are attached (unless those joists and beams also support an upper floor of the said flat) AND TOGETHER with all cisterns tanks sewers drains pipes wires ducts and conduits ! used solely for the purposes of the said flat (but no others) EXCEPT AND I RESERVING from the demise the main structural parts of the Building including the roof foundations and external parts .(but not the glass of the windows of the said flat nor the doors and door frames nor the internal surfaces of such of the external walls as bound the said flat) PROVIDED THAT all internal walls bounding the said flat shall be party walls severed medially and shall be used repaired and maintained accordingly.”
26. The agreement does not specify the balcony as part of the property, and it would therefore be considered part of the main structural parts of the building and the responsibility of the landlord to maintain.
27. The landlord undertakes a monthly fire safety inspection. As part of the monthly checklist, the inspector has to ensure that “all walkways and corridors [are] free from combustible materials.
28. The landlord was therefore obligated to inspect the balcony as part of its monthly fire safety inspection and ensure it was free of obstructions.
29. During their initial correspondence, the landlord explained to the resident why the plants in front of the door needed to be removed and why the plants on the balcony needed to be cut back.
30. There is, therefore, no evidence of service failure in the landlord’s decision to remove the plants from the balcony. As the resident was not deemed by the leasehold agreement as the balcony’s sole user, the upkeep of the balcony was the responsibility of the landlord. The landlord was therefore obligated to ensure that it was free of obstructions and was in compliance with its monthly fire safety inspection as it was a communal area of the building.

The landlord’s complaint handling

31. The landlord’s complaint policy defines a complaint as an expression of dissatisfaction relating to the landlord’s processes, policies and services. However, the policy also states that not all expressions of dissatisfaction will be treated as a formal complaint and if it feels it would be more effective, it will treat the matter as a service request. Some of the examples given in the policy of when an issue will be treated as a service request include littering, fly tipping and grass cutting.
32. Between August 2020 and January 2021, the resident’s complaint was dealt with by the landlord as a service request. However, this was not clearly explained to the resident in the emails sent to her by the landlord.
33. By January 2021, the resident had told the landlord that she was under the impression that she had exhausted its internal complaints process and wished to bring her complaint to this Service. The landlord provided a link to a page on its website which explained its complaints policy but did not inform the resident that the issue had been handled as a service request and a formal complaint had not been opened. It was not until the intervention of this Service in May 2021 – nine months after the resident’s initial complaint – that a formal complaint was opened. This lack of adequate information prolonged the handling of the matter.
34. It would have been more effective and beneficial for the landlord to have logged a formal complaint at the time that it directed her to the information on its website. It had become clear that the resident was of the impression that this was the status of the matter.
35. The Ombudsman’s own remedies guidance (which is available on our website) recommends a payment of £50 to £250 in cases of service failure which had an impact on the complainant but was of short duration and may not have significantly affected the overall outcome. Examples given for when this level of redress should be considered include “failure to meet service standards for actions and responses but where the failure had no significant impact”.

36. In this case, while the landlord responded to all the resident’s emails and queries promptly and provided the requested information, it did not properly explain that that matter was being handled as a service request resulting in confusion for the resident. This confusion was most apparent between January 2021 and May 2021. At this stage the landlord considered the matter settled and the resident was under the impression that the internal complaint process had been exhausted and she attempted to bring her case to this Service to review.

Determination (decision)

37. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its decision to remove plants from the resident’s balcony. 
38. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its complaint handling. 

Reasons

39. The leasehold agreement does not give sole use of the balcony to the resident. The landlord was therefore obligated to include it as part of its monthly fire safety check and ensure it was free of obstructions.
40. By not properly explaining that the matter was initially dealt with as a service request and not a formal complaint, the landlord caused unnecessary delay and inconvenience to the resident.

Orders

41. For the service failure and reasons set out above, the landlord is ordered to pay £75 in compensation to the resident. This payment should be made within four weeks of the date of this report.

Recommendations

42. It is recommended that the landlord review its complaint handling procedures to ensure that complainants are properly notified when their expressions of dissatisfaction are being treated as formal complaints and when they are being treated as service requests.