Optivo (now Southern Housing) (202124044)

REPORT

COMPLAINT 202124044

Southern Housing

14 July 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

The complaint is about:
1. the standard of grounds maintenance; and
2. the associated complaint.

Background

The resident is an assured tenant of the landlord. The landlord has noted that the resident has hearing difficulties, restricted mobility and a learning difficulty.
The resident’s flat sits within a development, consisting of homes owned by various landlords and managed by a managing agent on behalf of the developer. The developer retains some control over specific areas of the site.
The resident has contacted the landlord on numerous occasions to report issues with the standard of grounds maintenance around his property. Specifically, this related to overgrown shrubbery which he felt was encroaching into his parking space and restricting access to his back garden, as the side alleyway was overgrown. The resident also felt that, left untended, the shrubbery may cause damage to his car.
The resident escalated his complaint to stage one of the landlord’s internal complaints process on 7 December 2021 and the landlord responded on 9 December 2021. The landlord did not uphold the resident’s complaint. It said the grounds were in an “immaculate” condition and that the other areas were not owned by the landlord, and it was not responsible for those areas.
Following this response, the resident contacted this Service. Our Service noted that the complaint response did not include sufficient details to be compliant with our Complaint Handling Code and therefore requested the landlord reissue it. The landlord responded on 24 March 2022 and did not uphold the complaint. The landlord also stated that it would not allow an escalation to stage 2 of its complaint procedure, as the issue had been investigated many times and remained unsubstantiated.
The resident remained dissatisfied and escalated his complaint to the Ombudsman. He said the grounds maintenance was not being carried out and that this was affecting his car parking space, access to his garden and could cause damage to his car. The resident wants the landlord to carry out this work or stop taking service charge payments for work that was not being carried out.

Assessment and findings

Scope of investigation

Under paragraph 42(e) of the Housing Ombudsman Scheme, this Service may not consider complaints which relate to the level of rent or service charges, or any subsequent increases. For this reason, this investigation will consider the ground maintenance undertaken and the landlord’s response to the resident’s concern. It will not address the level of service charge paid by the resident.

Grounds maintenance

The resident pays a service charge of £343.72 per year and in return for the following services:
1. grounds maintenance;
2. private and street lighting including electricity;
3. tree maintenances;
4. general repairs;
5. the provision and cleaning of a bin store; and
6. professional fees and insurance.
The landlord commits, within its estate service standards, to cutting the grass regularly, maintaining flower beds, renewing plants when needed and making sure that hedges are not overgrown or causing an obstruction.
The resident’s complaint relates to the shrubbery on the right border of his property becoming overgrown and encroaching onto his driveway and blocking the side alleyway into his back garden. The resident was also concerned that further growth may cause damage to his car. He was also concerned about the general upkeep of the estate. During the complaint, the resident has also expressed that he dislikes the ‘wild area’ at the rear of his property and has asked the landlord to cut this back.
Following the resident’s complaints, the landlord visited the area on at least six occasions. It conducted home visits with the resident and his neighbours. The site visits included photographs of the condition of the grounds including the areas that the landlord states it is required to maintain, along with areas it states are owned by other parties. There is evidence that the landlord has communicated with other parties, including the managing agent and local authority, to attempt to progress the resident’s complaints on his behalf.
The landlord’s position is that:
1. It is responsible for maintaining the right-hand boundary of the resident’s property which includes a line of shrubbery adjacent to the resident’s driveway and an alleyway leading to the back garden. It concluded that the standards of these areas was high.
2. The estate has a third-party managing agent which is responsible for virtually all other grounds maintenance.
3. The developer retains some control over elements of the estate, including ‘wild areas’. The resident’s property backs onto one of these ‘wild areas’.
In correspondence with the resident, the landlord has explained the ownership of the land surrounding his property and the limitations that this brings to the level of work they can undertake. In particular, the landlord has explained that it cannot cut back the ‘wild area’ at the rear of the property as this land is not owned by the landlord.
Despite this, there has been no evidence presented to this Service that the landlord has consulted the Land Registry for a definitive ruling on the ownership of the land, as well as consulted its headlease or contracts with the developers or sought legal advice on the same. This could have been achieved relatively quickly and cheaply and would have provided substantive evidence of ownership for the current, and any future, tenants.
The position is likely to be confusing to the resident since he pays a service charge for grounds maintenance. It is noted that the resident states in his correspondence that he has also contacted the managing agent and other third parties independently. These contacts have not resolved the resident’s ongoing issues, as no party appears to be taking responsibility for the land or the resident’s concerns. This has led to additional distress, inconvenience, and time for the resident, spent pursuing this complaint.
Whilst the landlord has attended the property in a timely way following concerns, the landlord has not provided any substantive evidence to the resident or this Service which clarifies the legal ownership and boundaries of its property for which he pays a service charge. Without this information, it is not possible for this Service to say the landlord has acted fairly in all the circumstances. For this reason, this amounts to service failure.

Complaint handling

The resident made his formal complaint on the telephone on 7 December 2021. The landlord’s first complaint response was not compatible with the Ombudsman’s Complaint Handling Code (‘the Code’), available on our website. This Service wrote to the landlord on 23 March 2022 to request that the response was reissued, including the stage of the complaint and whether the resident could escalate this to stage two of the complaints process. Additionally, the landlord was asked to clarify if this was their final response and, if so, to outline their reasons for not allowing a stage two complaint. The landlord complied with this request within the timescale provided and the response addressed the shortcomings in the previous version, making it compliant with the Code.
It is noted that the landlord chose not to allow the resident to escalate his complaint to stage 2 of its procedure due to repeated attendances at the property not being able to substantiate his claims. Whilst this is permitted by the landlord’s complaints policy, it restricted the resident’s ability to progress his complaint and seek a review of the complaint, which may have resolved the complaint and some of the issues identified in this investigation.
During the investigation of this complaint the landlord provided an itemised breakdown of calls received from and made to, the resident along with the statement “please can the attached Itemised call list from [the resident] be considered in your final decision. The calls total 838 minutes or 13.9 hours on calls with [the resident]”.
The log details several calls and data usage that spans a 13-month period from July to August 2021. Some of the call times are listed as 00:00. The record does not indicate if the calls were inbound or outbound. Moreover, the landlord has not demonstrated which number belongs to the resident. If it was the resident’s number, it has produced no evidence of what these calls related to. It is not clear if the calls in question related to this matter or a variety of different issues. Nor is it clear over what period these calls took place. It has not compared the resident’s usage with the usage both other residents overall. The landlord has also not shown it has considered how the resident’s needs may affect his interaction with the landlord. It is therefore unclear why this information is relevant to the complaint.
The landlord has not suggested in its complaint response that it declined to escalate the complaint due to an unacceptable demand on its service. If that were the case, the Ombudsman would expect to see that the landlord gave warnings to the resident. The complaint response, as required by the Code, ought to have included full details of why the complaint was not being escalated. The final response states it was unable to evidence the resident’s claims of a poorly maintained estate.
In this case there has been a break down in the relationship between the landlord and the tenant. Providing the call records for the Ombudsman to consider without details could be interpreted as ‘othering’ the Ombudsman has referred to.
Overall, the landlord’s stage 1 complaint response was not compliant with the Code and required an intervention from this Service. Following this, the landlord did not permit the resident to escalate his complaint to stage 2, thereby reducing the chance to have resolved the issues. That was not fair or appropriate. Lastly, the landlord’s inclusion of the call log demonstrates could demonstrate a culture of othering when a resident is persistent in holding their landlord to account.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there has been service failure in the landlord’s handling of the resident’s concerns about poor grounds maintenance and the associated complaint.

Orders and recommendations

Orders

Within 28 days of the date of this determination, the landlord must:
1. Pay the resident £100 compensation for the distress and inconvenience caused by its handling of the issue with the estate and the associated complaint handling.
2. Make appropriate enquiries with the land registry and review its headlease and other contracts relating to the estate to clarify to the resident who is responsible for which area on the estate and for what areas the resident pays a service charge for.
3. Write to the resident and confirm the process in place for monitoring of the gardens on the estate and who is responsible for each area and who he should contact if he wishes to raise concerns about the standard of gardening and upkeep.
4. Provide evidence to this Service of compliance with these orders.

Recommendations

The landlord may want to:
1. Review its complaint response letters and processes to ensure that all responses comply with the requirements of the Complaint Handling Code.
2. Review the information provided to tenants at the start of their tenancy, to ensure that this includes details of any relevant neighbouring agents or third parties.