Gentoo Group Limited (202324287)

REPORT

COMPLAINT 202324287

Gentoo Group Limited

30 August 2024

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 the landlord’s handling of the resident’s reports of overgrown trees.
The Ombudsman has also considered the landlord’s complaint handling.

Background

The residents are a husband and wife and are assured tenants of the property, a mid-terraced 4 bedroom house. The residents have lived in the property with 4 children since 2021, and were expecting another child at the time of the complaint. The landlord is a housing association, which owns and manages the property. When we refer to ‘the resident’ in this report, we are referring to the joint residents. However, as the wife dealt with the landlord and this Service in relation to this matter, we use female pronouns.
There is a tree on the pavement in front of the property and a tree behind the back garden fence, both of which are on land owned by the landlord. The landlord’s tree surveyor attended the property on 6 May 2022 and inspected both trees. He confirmed no action was required on the tree at the back of the property but returned on 5 July 2022 and trimmed the branches of the tree at the front of the property. The tree surveyor confirmed both trees did not need to be inspected more regularly than every 5 years.
The resident raised sent an online complaint to the landlord on 21 July 2023, in which she said:
1. She had raised the issue of the trees being overgrown in 2022. The landlord had attended and cut back the tree at the front of the property but not the tree at the back.
2. The tree at the back of the property was blocking out the sunlight and dropping leaves and berries into her garden so often it meant she could not enjoy the garden.
3. Ideally, she wanted the landlord to cut down the trees entirely, or authorise her to pay for this to be completed. If not, she felt the landlord should maintain the trees at least once per year.
4. She wanted the landlord to send a tree surgeon to cut back the tree at the back of the property as soon as possible.
The landlord emailed the resident on 24 July 2023 and told her it had passed her complaint to its ground maintenance team.
The resident emailed the landlord on 29 August 2023. She said:
1. She had not received a response to her complaint raised on 21 July 2023. She wanted the landlord to ensure the complaint had been logged correctly and to respond urgently.
2. The tree at the back of the property was so overgrown she could not sit in her garden. She also felt there were safety issues because her baby would be unable to play in the garden and the falling leaves and berries affected their access to the gate in the event of an emergency.
3. The tree at the front of the property also blocked sunlight and street lighting.
4. She felt the landlord should maintain the trees annually or cut them down if it was unable to do this. She also wanted the landlord to confirm if she had the right to pay a tree surgeon privately to remove the trees.
The landlord emailed the resident on 30 August 2023 and confirmed it would register the complaint and provide a stage 1 response within 10 working days. It sent the response on 12 September 2023, in which it said:
1. A tree surgeon had attended the property in 2022 and discussed the tree with the resident. He had told the resident the tree had good clearance and was well lifted from the boundary. The tree surgeon had acknowledged there was some overhang into the resident’s garden “but this was consistent with adjacent peripheral trees in the area”.
2. It had liaised with its grounds team, who had confirmed they would not carry out work to the tree at the back of the property because:
  1. Although the tree might be overhanging, it was not causing any physical damage and was a reasonable distance from the resident’s home.
  2. Where a tree growing naturally within the environment blocks light into a property, there was no legal requirement to cut the tree.
  3. Liability for leaves, flowers, seed pods, fruit, pollen and sap falling off the tree did not lie with the landlord as the owner of the tree because this was naturally occurring.
3. It did not agree to her request for the trees to be removed by an external tree surgeon because the trees were in good condition. It would inspect the trees on its routine tree survey cycle and would reassess any works in the future if applicable.
4. The resident could request an escalation to stage 2 of its complaints procedure if she was dissatisfied with the response.
The resident requested an escalation to stage 2 on 13 September 2023. She said:
1. The landlord had not provided a timescale about when it would maintain the trees.
2. The trees posed a health and safety risk and reduced her enjoyment of the property.
3. She found the stage 1 response unhelpful and it offered no resolution to the problem.
The landlord acknowledged the stage 2 request on 13 September 2023 and confirmed it would send a response within 20 working days.
The landlord attended the site on 6 October 2023 and completed a health and safety check of the trees.
The landlord sent the stage 2 response on 10 October 2023, in which it:
1. Said it was satisfied the information it had provided in its stage 1 response was accurate and aligned with its tree management approach.
2. Stated that, while it understood leaves and berries falling into her garden would cause frustration, it was not liable for this because it was naturally occurring.
3. Confirmed it would inspect both trees on a routine tree survey cycle and will consider cutting the trees back in the future if the canopies are beginning to encroach the property.
4. Said it was unable to provide specific dates regarding when it would inspect each individual tree or when any future works could be considered. This depended on several factors, including extreme winter weather.
5. Included details of the process for the resident self-funding tree works, if she wanted to consider this. This involved the resident contacting an approved contractor, receiving a scope of work from this contractor and providing this to the landlord for sign off. The landlord included contact details for approved contractors and its ground maintenance team so the resident could initiate this process if desired.
6. Confirmed the resident could bring the complaint to this Service if she remained dissatisfied.
The resident duly made her complaint to this Service on 26 February 2024.

Assessment and findings

The landlord’s handling of the resident’s reports of overgrown trees

The National Tree Safety Group published its ‘Common sense risk management of trees’ guidance in 2011. The guidance confirms that the legal standard required of tree owners is that of a “reasonable and prudent landowner”. The guidance states that trees present a very low risk to people and, because of this, “owners and managers should be able to make decisions within this context and avoid unnecessary intervention, survey and cost. In so doing, they can reduce unacceptable risks while optimising the many values conferred by trees”. It adds that “good tree safety management does not seek to eliminate risk, but to reduce it to a reasonable level”. The same guidance also states that “in some situations, people exposed to risks from trees are expected to make reasonable decisions about their own interaction with trees, particularly during extreme weather”.
Section 6.4 of the landlord’s tree management policy outlines the frequency with which the landlord will inspect and maintain its trees. It categorises the trees as such:
1. High priority, which will have work completed on them within 0 to 3 months.
2. Medium priority, which will have work completed on them within 4 to 18 months.
3. Low priority, which will have work completed on them within 19 to 60 months.
4. Non-priority, which require no work and will be inspected again after 5 years.
The landlord categorises its trees into priorities based on the health of the tree and the risk of any dangers that result from unhealthy trees, including the trees falling down. Regarding leaves, fruit and other items dropping from healthy trees, the landlord says it will not remove trees for this reason and it is not liable for this because it is a naturally occurring event.
The landlord’s records show it inspected the trees on 6 May 2022 and completed pruning on the tree at the front of the property. It confirmed both trees were healthy and considered non-priority under its policy, which meant there was no significant risk of danger associated with them. It therefore confirmed both trees were to be inspected again after 5 years. This was in line with its policy. Following the resident’s complaint, the landlord’s records show it attended the site again on 6 October 2023 and completed a further inspection to rule out any health and safety risks from the trees.
While it is understandable that leaves falling into the resident’s garden would be inconvenient, this has to be assessed against the benefits that trees bring to the natural ecosystem. The landlord has assessed the safety of the trees in line with its policy and found them to be non-priority. The resident has the option of following the process of hiring an approved contractor to complete the work privately, as outlined in the landlord’s stage 2 response. The resident should note as per the landlord’s policy that an approved contractor and the landlord may not sign off the scope of work she desires and the works may not end with the result she seeks at her expense.
As the landlord followed its policy correctly, the Ombudsman finds no maladministration.

The landlord’s complaint handling

Section 4.1 of the landlord’s complaint policy at the time of the matter defined a complaint as “an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the organisation, its own staff, or those acting on its behalf, affecting an individual resident or group of residents”. This matched the definition under section 1.2 of the Housing Ombudsman’s Complaint Handling Code (the Code) at the time.
The resident’s online submission on 21 July 2023 fitted the definition of a complaint under the landlord’s policy and the Code. As such, the landlord should have passed this to its complaints team and issued a stage 1 response. However, it instead passed the matter to its grounds maintenance team. The landlord took no action following this until the resident contacted it again on 29 August 2023.
Sections 4.4 and 4.5 of the landlord’s complaints procedure matched the timescale requirements included in section 5 of the Code at the time. The timescales were for the landlord to:
1. Send a stage 1 decision in writing within 10 working days of acknowledgement, extending this by up to 10 working days if necessary by writing to the resident with an explanation of the delay.
2. Send a stage 2 decision within 20 working days of the resident’s request to escalate, extending this by up to 10 working days if necessary by writing to the resident with an explanation of the delay.
The landlord issued the stage 2 response within 19 working days, which was within the correct timescale. However, it took 37 working days to issue the stage 1 response. This delay was caused by the landlord’s failure to pass the matter to the complaints team initially as appropriate. This caused inconvenience to the resident, who had to chase up the landlord for a response.
In her stage 1 complaint, the resident asked the landlord if she could pay to have the trees removed privately. In its response, the landlord said it would not agree to this. While it may not have agreed for the trees to be removed, it could have told the resident in its stage 1 response about the process for the resident to have the trees pruned through an approved contractor. The landlord did go on to outline this process in its stage 2 response, but this was only after further questioning from the resident.
Due to the delay in issuing the stage 1 response, and the failure to outline its approved external contractor policy in this response, the Ombudsman finds service failure in the landlord’s complaint handling.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s reports of overgrown trees.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s complaint handling.

Orders

It is ordered that, within 4 weeks of the date of this report, the landlord sends the resident a payment of £100 for the complaint handling failures identified.