The Guinness Partnership Limited (202127417)

REPORT

COMPLAINT 202127417

The Guinness Partnership Limited

6 March 2023

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 resident has complained about the landlord’s management of the gardening contract and its decision not to refund her service charge.

Background and summary of events

Background

2. The resident is an assured tenant of a two-bedroom house on the edge of a small estate. The tenancy was assigned via a mutual exchange on 26 April 2010. The property has a contained front garden. There is grassed area outside the garden that forms part of the maintenance contract covered by the service charge.
3. In 2011-12 (the first budget year following the mutual exchange) the gardening contract costs amounted to £1,570 per year. The apportionment to the resident’s property was £0.10 per week with £0.08 being charged for the gardening. By 2021-22 the service charge had increased to £2.17 per week. The annual rent increase notice was accompanied by a service charge breakdown indicating the overall costs to the Scheme for gardening and tree work; Fly tipping removal and bin hire; communal repairs and a management fee.
4. The resident reports the grassed area is often neglected.  She states that she and her neighbours had to weed and mow the grassed area themselves as the contractors did not always attend, or if they did, did not necessarily work on the grassed area. She has also raised concerns regarding the pruning of shrubs in the estate, that the gardeners are paid for more visits than actually take place, and for work that is not undertaken.
5. 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. An element of the complaint relates to the management of the gardening contract for the past 11 years. There is no evidence that a formal complaint was raised at the time or that the complaints procedure has been completed in relation to these historic matters.
6. After carefully considering all the evidence the historic complaints will not form part of this investigation.  This is compliant with paragraph 42 (c) of the Housing Ombudsman Scheme which states that the Ombudsman will not consider complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be within 6 months of the matters arising. 

Summary of Events

7. On 7 July 2020 the resident contacted the landlord asking what was happening with the gardening service. She stated that the contractor had not attended since November 2019 and pointed out that she and other houses were paying for a service that they were not receiving.
8. There is a gap in the evidence and no formal response from the landlord has been seen by this service to the resident’s contact. However, from other correspondence between the landlord and the resident it appears that the complaint was considered and a formal response sent on 11 March 2021.
9. By April 2021 the resident was in contact with the landlord advising that the grass was not being cut again. The landlord replied and explained that the estate was regularly inspected and no issues had been found with the grounds maintenance.  It noted that if the residents were doing the gardening, this would make it difficult for the landlord to monitor the performance of the contractor. The resident was asked not to cut the grass on this basis. The situation continued and on 25 June 2021 she reported that the grass had not been cut for two weeks. The landlord attended on 29 June 2021 but by then the resident had cut the grass herself.
10. Following the landlord’s discussion with the resident it undertook checks with its legal team regarding the grassed area to explore whether maintenance could be devolved to the residents. It also asked that the apportionment across the estate be looked at, particularly the split between the houses where the resident lived, and the flats within the estate. 
11. A formal complaint was lodged on 24 August 2021. An acknowledgement was sent the following day and the landlord asked a number of questions regarding the date and outcome of the last contractor visit. The resident explained that she was on holiday, but before she left there had not been a visit from the gardener for three and a half weeks. Upon her return she had contacted the landlord again to report that the grass mowing had been half completed.
12. The landlord’s notes record that its portal confirmed that there had only been one visit in August and the issue was raised with the contractor who was asked to provide records for its site visits for the financial year.   
13. The resident contacted the landlord again in September 2021 and advised that she had spoken to an enforcement officer from the local council who had stated that the grassed area was owned by the council, not the landlord.  She therefore queried why she was being charged to maintain council property. The landlord responded on 14 September 2021. It confirmed that the Land Registry records had been checked and these confirmed that the grassed area was owned by the landlord. It explained that it was waiting for the information from the contractor and its legal team and would be in touch once the information was received. The resident was not happy about this delay.
14. The contractor provided reports for one date in May and August plus two dates in June and July (all 2021). The landlord requested information regarding the missing visits.
15. A complaint response was sent on 28 September 2021 at stage one of the complaints process. This confirmed that there had been times when the contractors had not visited the area every two weeks as agreed. The letter explained that there had been times when the contractor had been unable to undertake work as the grassed area had been maintained before their arrival. The letter confirmed that the author was unable to provide the outcome sought by the resident: a refund for the past 11 years of service charges. The matter had therefore been escalated to stage two of the complaints process. Further reports of missed maintenance were reported by the resident in October 2021.
16. The landlord issued its final response to the complaint on 3 November 2021.  The letter explained that it would not be possible to look back over the 11 years of the resident’s tenancy. It explained that it’s complaints policy requires issues to be reported as they occurred and it therefore did not investigate complaints older than six months.  
17. The reviewer had conducted conversations with the resident, the staff responsible for the scheme, the contractor and reviewed the inspection reports submitted by both. It explained that the contractor, like others, had been impacted by the pandemic, as well as Brexit, however, it was satisfied that the estate had not been too severely affected. The letter reiterated that the contractor would not cut the grass if it had already been cut when they arrived and added that it would not move any of customers’ personal items such as plant pots or ornaments.  It noted that the resident had stated that she cut the grass when she felt the contractor had failed to do so. It also noted that photographs of the area taken at different times and dates showed large plant pots on the grassed area, outside the resident’s garden.
18. The landlord acknowledged that there were times when the condition of the grass and grass and shrubs might appear less than perfect and shrubs but confirmed that the level of service delivered was in line with the contract specifications. The letter went on to share some of the details regarding the frequency of visits, that they would not cut the grass if it had already been cut, it would not move personal items from the grass and if there were nesting birds it would not cut back the shrubs. 
19. In relation to the resident’s recent concerns regarding the shrubs, the letter confirmed that although the shrub was a bit untidy, it was cut back from the path and was not too high, which was what it would expect. A hard cut back would be undertaken in the winter which was a specification within the contract as an annual task, rather than with a specific date. The letter explained that the contract allowed flexibility for the contractor as to how and when it undertook work.  This included the dates of visits, as the contract only specified the number of visits per year/season. The landlord could not therefore provide the resident with a rota showing when visits would take place.
20. The letter confirmed that the past six months had been reviewed and there was no evidence of missed visits that would warrant a service charge refund. It had however found evidence that the contractor had not always maintained the standards according to the gardening specification. The contractor was allowed to remedy any issues brought to their attention under the contract and this would  not therefore lead to a refund from them to the landlord and customers.
21. The resident’s views had been taken into account as part of a wider review of the apportionment of the service charge. As a result the houses on the estate, including the resident’s home, would be liable for a smaller percentage of the overall maintenance costs than in previous years. This change would come into effect in April 2022 with the new financial year. 
22. The landlord concluded that there was no evidence to support a refund of the service charge. It suggested that the resident log any future issues as a complaint and took photographs as this would help ensure that the issues was dealt with formally and within a reasonable timeframe.
23. Since completion of the complaints process the situation has continued with the resident unsatisfied with the level of service provided by the gardening contractor.

Assessment and findings

24. How the landlord charges for the gardening provision should be set out in the original tenancy agreement. There have been a number of assignments of the tenancy and the original agreement has not been provided to this Service. It is not therefore possible to know with certainty precisely how the service charge is worded. From the correspondence it appears that the charge is fixed annually as part of the rent, rather than varied across the course of the year.  Whichever type of charge, the cause of the complaint is that the resident is paying for a service that she is not receiving. 
25. The landlord investigated by maintaining regular inspections of the estate and grounds and confirmed that these did not raise any concerns regarding the gardening contractor. Once aware that the resident was often undertaking the gardening herself, it requested that she stopped. This instruction was later amended and the resident was asked to photograph the area before she undertook any action. Both were reasonable requests that would allow the landlord to properly monitor the contractor and build a picture of its performance.
26. The reports from the contractor support the resident’s evidence. It had only attended six out of ten potential appointments during April – August 2021. No copy of contract with gardener is available but from the correspondence the landlord has stated they are contracted to attend fortnightly during summer months (April -September) and once a month during winter months (September – March).
27. The landlord took steps to address this by raising the missed appointments with the contractor. It also reviewed the contract and confirmed the reasons why work may not have occurred to the resident (the presence of large pots on the grassed area; not pruning shrubs during the nesting season). Further, it explained that the contract provided the contractor with the opportunity to make up the missed appointments and put things right, rather than refunding the charge. It had taken appropriate action by requesting that this was done under the terms of the contract.
28. The crux of the complaint is that the resident requires a higher standard of gardening than that which is provided. The landlord is required to provide the service that it has contracted for. It took action to put things right by ensuring that the contractor complied with the terms of its contract. This was appropriate given that the service charge payments from residents paid for this contract. The contractor was therefore expected to deliver a service that met the contract requirements, no more and no less.
29. The landlord took steps to ensure that the contractor was aware of the resident’s dissatisfaction with the level of service. It also maintained regular inspections and raised queries and concerns where appropriate. Overall, the landlord was satisfied that the level of service provided met the contract requirements.  It found no evidence to support the residents request for a service charge refund. This was a reasonable conclusion given the reasons provide for the occasions when work was not undertaken, the flexibility in the contract that allowed for work to be undertaken over a twelve month period, and the inspection results.
30. The landlord also reviewed the apportionment of the service charge and implemented changes to ensure that the division between the flats and the houses where the resident lived was fair. This resulted in a lower apportionment for the houses which took effect from April 2022. 
31. The landlord acted fairly in that it undertook an appropriate investigation, has a system in place to monitor contractor performance, responded to the residents’ concerns and provided appropriate information. It took sufficient steps to ensure that the service delivered met the contract requirements and made sure that its treatment of the resident was fair by reconsidering the apportionment of the service charge across the estate.
32. It is noted that the situation has continued with the resident reporting missed appointments and works missed from the contractors visit. This is addressed in the recommendation below.

Determination (decision)

33. In accordance with paragraph 52 of the Housing Ombudsman Scheme, I make the following findings:
    1. There was no maladministration in relation to the landlord’s management of the gardening contract and its decision not to refund her service charge.

Reasons

34. The landlord took appropriate action by investigating the residents’ concerns, raising these with the contractor, ensuring it maintained regular inspections to manage performance, and satisfying itself that the contractor was delivering a service that met its contractual requirements.
35. The landlord provided an explanation to the resident as to why works did not always take place. It also reconsidered the apportionment of the charges across the estate to ensure that the charge to the resident was fair.

Recommendations

36. It is recommended that the landlord provides clear information to the resident regarding the extent of the gardening service provided. This should include a  schedule of items agreed with the contractor, detailing actions that will be undertaken at each visit, any reasons why these actions may not take place, and further details  of items that may/may not be undertaken at any point in the year.   
37. It is also recommended that the landlord ensures residents participate in any new procurement for the gardening contract.