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Bromford Housing Association Limited (202006247)

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REPORT

COMPLAINT 202006247

Bromford Housing Association Limited

20 May 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 resident complains about the landlord’s response to his concerns about:
    1. The condition of the garden at the property, and his requests for compensation in relation to this.
    2. A tree within the garden that he would like to remove.
    3. Replacement of the kitchen.

Background

  1. The landlord’s Empty Homes Standard sets out that gardens will be cut and cleared.
  2. The landlord’s Aids and Adaptations policy defines an adaptation as a fixed alteration to a dwelling that can improve the customer’s access or quality of life. It classifies them as follows:
    1. Minor adaptations – small-scale adaptations costing less than £1000, fitted relatively easily without the need for an Occupational Therapy (OT) assessment.
    2. Major adaptations – adaptations that are more complex or costing more than £1000. An OT recommendation must support all requests for major adaptation works.
  3. Examples given in the policy for minor adaptations include external lighting, highlighting edges of steps, widening a path or driveway, and reducing main door thresholds. Examples given for major alterations are installation of ramps, and external access alterations.
  4. The landlord’s repairs policy sets out that (other than emergency issues which would be attended to within two hours), repairs where there was no risk of harm or significant inconvenience or impact on a tenant would be attended to ‘As required by the customer and availability of appropriate resources.’

Summary of events

  1. The resident viewed the property on 13 February 2020. Following this, he emailed the landlord that same day expressing his interest and stating ‘The main problem is the garden it is sloped and would need levelling off and a level secure area created as our son’s disability means he is not out to just go out and play so he does need a level secure area to play…’ He explained that he had emailed his son’s occupational therapist to enquire whether this was something that the local authority could help with, and asked if the landlord might also be able to assist. The landlord replied that depending on the occupational therapist’s response, it would discuss the issue with its aids and adaptations team to see if the resident’s requests were possible.
  2. On 18 February 2020 the resident emailed the landlord and said that the occupational therapist had responded saying that that they would need to carry out a formal assessment of the property and then apply for funding, and the timeframe for this was around 12 to 18 months. As he was unable to wait this long the resident asked the landlord if its aids and adaptations team would carry out alterations to the garden. On    2 March 2020 the landlord replied that it would not be able to complete the alterations without an OT assessment.
  3. On 9 March 2020 the resident emailed the landlord explaining that he had been offered the property but had raised concerns that the garden was not at a lettable standard, and said that it sloped towards the house and had no drainage, meaning water collected next to the door. He said that the garden was a mud bath and contained debris. As he had a disabled child garden access was essential. The resident acknowledged that the landlord had previously informed him that it would not be carrying out any works to the garden, but he did not agree with this and asked it to reconsider.
  4. The resident accepted the property, and the tenancy began on 11 March 2020. He emailed the landlord again on 2 April 2020 saying that he had sent in his complaint on   9 March 2020 but had received no written response. He said that he had started work on the garden himself to allow him and his family to move in, explaining ‘As the water and damp were causing issues we had no choice but to rectify this. As the repair team refused to put a drain in until at least 19th may we obviously couldn’t wait 3 months for this...’ He asked the landlord to reimburse him the £1480 he had spent carrying out works to the garden.
  5. The landlord provided a stage one response dated 8 April 2020 addressing this matter (and a complaint the resident had made about the condition of the inside of the property). It noted that when the lettings team received the resident’s request for the garden to be levelled, it made an enquiry with the aids and adaptions team and then emailed the resident with the outcome of this on 2 March 2020, explaining that the landlord would not be able to carry out the work without an up-to-date OT assessment. The resident then stated that he would carry out the works himself.
  6. The response went on to say that on 5 March 2020 an engineer attended and carried out various works to the garden such as raking it over and clearing debris. Another visit was carried out on 18 March 2020 to assess the drainage issue, which found that the landlord would be unable to fit new drainage as the resident was having a patio laid. The resident was advised that his own contractor would have to fit the drainage while laying the patio. Subsequently, the landlord advised the resident that it would carry out the drainage work on 18 and 19 May 2020. It acknowledged this was a longer wait than the resident had hoped but this was due to the availability of engineers. The landlord said ‘You were advised before sign up that we would not be completing the levelling works to the garden without an up-to-date OT assessment and you have advised your Neighbourhood Coach…that you would be completing works to the garden yourself. For these reasons, I believe you are not eligible to be reimbursed for costs relating to garden works.’ In relation to the internal repairs, the landlord acknowledged that the condition of the property fell short of its usual standard, and once the resident had provided details of his cost for the repairs he had carried out, it would reimburse him.
  7. The resident responded the same day, providing the landlord with an annotated version of its 8 April 2020 letter setting out his reply. He said that the drainage works should have been carried out before the property was let. The resident agreed that he had been informed that aids and adaptations would not complete the works, but when he appealed this was told that ‘someone would come and look at it.’ The resident said that it was not until after signing the tenancy that he was informed that the drainage work would not be completed until mid-May. Given the family’s circumstances and need for garden access, the resident had to carry out the works himself.
  8. The resident stated that the reason given for not fitting new drainage on 18 March 2020 was an excuse as no work had commenced on the patio at that time, and he questioned why he should be paying his own contractor to do this when it should have been done by the landlord before letting the property. He said ‘Despite Bromford knowing whilst the property was empty that the drainage was an issue and us requesting back in February if it was going to be done it will take until May to complete the work...’
  9. The resident stated that the landlord was aware that there was an 18 month wait for an OT assessment, and that he had provided it with a copy of a previous OT assessment along with an OT cover letter detailing the requirement for a level garden and secure level access. He asked the landlord to re-consider its decision not to reimburse his costs for gardening works. The resident also detailed the internal works he had carried out and his costs.
  10. The landlord provided an additional stage one response saying it had looked again at the information relating to the garden issues and confirmed that when the resident had been informed on 2 March 2020 that no adaptations would be carried out to the garden without an up-to-date OT assessment, he had asked if drainage works would be completed so that the garden could be used until an OT assessment was obtained. The landlord stated ‘You were advised that someone would come out to look at the garden. You signed your tenancy before receiving confirmation of works and what date we would be coming out to complete them.’
  11. The letter went on to explain that the landlord had agreed to install additional drainage in the garden as water was pooling by the backdoor when it rained, apologising that this had not been identified previously, but explaining that no previous occupant of the property had ever raised this as an issue. The landlord said that it may have been caused by the unprecedented levels of rain fall that year causing the garden to become waterlogged and unable to absorb further water.
  12. The engineer had suggested that the resident’s own contractor that was installing the patio could also install the drainage. The landlord said ‘Whilst I understand that you feel Bromford are responsible for this it could also be considered reasonable that your contractor complete this work whilst they are installing the patio rather than us having to retro fit the acro drains after the patio has been laid.’ It said that it was happy to attend as scheduled on the 18 May 2020 to complete the drainage work.
  13. The landlord said that when it received an email from the resident dated 9 March 2020 querying the standard of the garden, the Empty Homes Team revisited the property prior to the resident signing the tenancy and confirmed that the garden had been cleared and no further works were required. Its Empty Homes Standard set out that gardens would be cleared and trip hazards removed, and the garden adhered to this standard. On      13 March 2020 the resident sent the landlord a modification request, setting out that he would be laying a patio area, adding drainage and levelling a section of the garden.
  14. The landlord said that the resident had been made aware before signing the tenancy that any adaptations to the garden would be his responsibility if he did not wish to wait for an OT assessment. At no point had the landlord accepted responsibility for levelling the garden or laying patio slabs. The resident had confirmed that he would be completing these works himself and made no mention of expecting reimbursement at the time. Therefore, it would not be offering this.
  15. The resident made a stage two complaint on 17 April 2020. He said that while the email from the landlord dated 2 March 2020 had advised it would not carry out the works, it had told him for the three weeks before then that it would. He said that the landlord was made aware that the works would need to be completed before his son moved in, and that they could not wait 18 months for an OT assessment. The resident felt that he had been messed around and lied to and as a result his only option was to carry out the works himself so his family could move in before they became homeless. He said that the garden was a mud bath and unusable and asked again to be reimbursed the £1485 it had cost to remedy this.
  16. In the landlord’s 4 May 2020 response, it reiterated its previous comments and said ‘I cannot agree any further claims for compensation, for works carried out for or by yourself, and to your family’s particular taste, and requirements.’ It referred the resident to this Service. In relation to the internal repair issues, it made an offer of £1045 compensation.
  17. The resident replied on 7 May 2020, making a ‘counteroffer’ as follows:
    1. £500 towards internal works.
    2. £500 towards external works.
    3. £500 towards for stress and anxiety.
    4. Guarantee that the kitchen would be replaced within the next 12 months.
  18. The landlord replied on 18 May 2020, again declining to pay the resident for external works. In relation to a guarantee that the kitchen would be replaced within the next 12 months the landlord said ‘…the inspection of the damp you have reported will be completed as and when Covid-19 guidelines allow.’ It reiterated its offer of £1045 for the internal repair issues and again referred the resident to the Ombudsman.
  19. The resident responded that same day explaining that no one had turned up that day for the arranged appointment to carry out the drainage works and so he would like to keep the complaint open until this was done. The landlord replied saying it would do so and noted that the resident had been contacted that day regarding ‘…miscommunication around 2 man jobs not being carried out at present. I apologise once again for any inconvenience caused.’
  20. On 28 August 2020 the resident emailed the landlord with a new formal complaint which included concerns about a lack of response from the tree landscape team regarding unsafe trees to the rear of the property. There followed a number of emails between the resident and the landlord about the issue, with the resident expressing his frustration that no complaint response had been provided, or any update on the trees, and the landlord stating that it had been ‘…chasing your requests to get the trees in the alleyway at the back of the property addressed.’ The landlord logged the matter as a formal complaint on 23 September 2020. On 25 September 2020 the landlord asked a contractor to provide a quote for the tree works. The contractor visited the property on 28 September 2020 and provided a quote that same day.
  21. The landlord sent its stage one response on 9 October 2020, in which it acknowledged communication issues with the tree works team and apologised for the standard of service provided, saying ‘I would like to confirm that these issues have now been escalated and addressed.’ It said that as the resident was aware, there had been a delay in resolving the matter as the land that some of the trees were on did not have an owner. It said that it had therefore ‘…taken the responsibility on this occasion to remove the trees as they are dangerous.’
  22. The resident emailed the landlord with a stage two complaint on 12 October 2020. In relation to a tree that was situated in the garden of the property the resident expressed his concern that this was not being removed (as opposed to those in the alleyway which were).
  23. The landlord provided its final response on 2 November 2020. It stated that it had reviewed the file and could find no record of any complaint about trees until                     1 September 2020. In relation to the tree situated in the garden of the property, the resident was advised on 28 September 2020 that this would not be removed, as it had not been identified as diseased or unsafe. If the resident did not agree with this the landlord invited him to secure the services of a tree surgeon to inspect this and forward the results on to it to consider. The landlord noted that when it received a repair report it had a period of time in which to carry out the works, and there had been no service failure in this respect. The landlord signposted the resident to this Service.

Assessment and findings

Garden – adaptations and drainage

  1. The resident has stated in his complaint to this Service that the garden had no drainage and was a ‘mud bath’ causing issues for his young child, who is partially sighted and, due to the water and mud ‘…could not access or leave via the back.’ The resident stated that his child required a level, safe and secure outside space especially during the lockdown period. The resident notes ‘I am sure I have read that the inside and outside of a property have to be in a lettable standard and we do not feel it was hence why we asked for the money it cost us to put this right to be returned to us.’
  2. The resident has provided the Ombudsman with evidence of the questions and requests he made prior to signing the tenancy, in the form of emails between him and the landlord from early March 2020. In relation to the garden, these reference a large pile of branches at the top of garden that the resident had asked to be removed, and the bottom of the garden being littered with debris, which he had asked to be cleared. There is no reference in these emails to the garden sloping, drainage issues, or evidence of the resident being told that the landlord would carry out adaptations to the garden at any time.
  3. The evidence that is available, for example the landlord’s email of 2 March 2020, shows that the resident was aware that the landlord would not be carrying out the levelling of the garden that he had requested without an OT referral. This is further supported by the resident’s 9 March 2020 email in which he acknowledged that he had already been told this.
  4. It seems that the landlord considered the adaptations that the resident requested as ‘major’ as defined in its Aids and Adaptations policy and therefore required an OT referral. From the information available to the Ombudsman, this was reasonable – the resident has provided this Service with before and after photographs of the garden, and these appear to show that the works carried out were complex rather than ‘minor’. Further, he is claiming over £1000 in costs, which again indicates the ‘major’ category of adaptations. In light of this, the Ombudsman is satisfied that the landlord followed its policy in requiring an OT assessment before considering the adaptations requested. The resident was aware of this and signed the tenancy agreement in the knowledge that the landlord would not be carrying out the adaptations he had requested at that time.
  5. While the resident is concerned that the landlord does not have a lettable standard for gardens, the Ombudsman has seen that it does, and that this is set out in its Empty Homes Standard. This does not include the levelling of a garden or provision of patios. The Ombudsman can understand the resident’s concern at the long wait for an OT assessment and empathises with his reasons for undertaking the work himself in light of the needs of his child. However, the resident accepted the property with the garden not being level, and in the knowledge that an OT assessment would be required before any works could be funded. The landlord reasonably followed its policy in this regard, and the Ombudsman can find no failing on the part of the landlord here, and so no basis to order it to reimburse him his costs.
  6. Looking now at the drainage issue, while the resident feels that the landlord should have been aware of this previously, the landlord has explained that past occupants had not reported any issues and that it may have been caused by unprecedented levels of rain fall. The Ombudsman considers this to have been a reasonable explanation – the landlord could not have been aware of a drainage issue if it had not been reported by previous tenants.
  7. The first reference to the drainage issue in the records this Service has seen is the resident’s 9 March 2020 email to the landlord (in which he refers to water pooling due to lack of drainage). The repair records show that a job was raised in relation to this on    13 March 2020, and attended on 18 March 2020, which demonstrates that the landlord was willing to address the issue. The Ombudsman considers this to have been appropriate: While the resident’s tenancy agreement sets out that garden maintenance is the responsibility of the tenant, it is reasonable for a landlord to deal with more complex repairs such as drainage.
  8. The Ombudsman finds that the landlord attended to the drainage issue in the first instance within a reasonable timeframe, in line with its repair policy. However, the operative that attended on 18 March 2020 concluded that they were unable to fit the drain required as the resident would be laying a patio, and had suggested that the resident’s own contractor installing the patio could also install the drainage, rather than having to retro fit the drain after the patio was laid. The Ombudsman does not consider this to be an entirely reasonable course of action. If the landlord had accepted the matter as its own repair responsibility, which it seems that it had, then suggesting that the resident carry the work out himself without any offer of reimbursement of costs was not appropriate.
  9. However, the landlord did then agree to install the drainage, and from the records available this was eventually done in June 2020. Even taking into account the fact that the landlord’s repairs policy does not specify a timeframe for such repairs, and states that these would be done according to ‘availability of resources’, the Ombudsman considers three months to be excessive. Having said this, the repair was raised at the start of the Covid-19 pandemic which is likely to have had a significant impact on the availability of operatives, and the landlord has explained that two person jobs (such as this) were not being carried out due to Covid-19. Further, the Ombudsman understands that as the resident had already carried out works to level the garden, the delay in the landlord fitting the drainage did not impact on his family’s ability to access it.
  10. In light of these mitigating circumstances, and while acknowledging that this must have been frustrating for the resident, the Ombudsman does not find a failing on the part of the landlord here.

Kitchen

  1. The resident complains that the landlord had told him in May 2020 that it would replace the kitchen within 12 months, but then extended this timeframe to three years. He states ‘In our complaint back in May to Bromford they said as part of the resolution they would replace the kitchen within 12 months as the old one is rotten mouldy and falling down then in October November time they said they would replace it at some point in the next 3 years. All we are asking is they keep to the original agreement…’
  2. The Ombudsman has reviewed the complaint responses provided by the landlord as well as the additional documentation submitted by both the landlord and the resident, and can find no record that the landlord agreed to replace the kitchen as part of the complaint resolution in May 2020 (or at any other time). Conversely, there is evidence that demonstrates that the resident was informed that the kitchen would not be replaced. For example, a note of a telephone call to the resident on 9 June 2020 states ‘[the resident] confirmed that surveyor had attended today as planed – went through the list of jobs that the surveyor had agreed to get done – [the resident] in agreement with this action plan – ideally he wanted the entire kitchen to be replaced but aware that plinths would only be replaced…’ The Ombudsman has also seen a copy of the surveyor’s findings from the inspection that was carried out on 8 June 2020, which noted that the kitchen was in overall good condition with only the plinths requiring replacement.
  3. This is also reflected in the landlord’s 18 May 2020 letter, which responded to the resident ‘s request for kitchen replacement by saying that an inspection of the damp reported would be carried out (it would seem that this is what the surveyor then did on 8 June 2020).
  4. In lieu of any evidence that the landlord agreed to replace the kitchen, or that the kitchen required replacing, the Ombudsman does not find a failing on the part of the landlord in this matter.

Tree

  1. In his complaint to the Ombudsman the resident explained that he had asked the landlord if he was permitted to remove the tree situated in his garden, but it had not responded. The outcome that he was looking for was clarification from the landlord as to whether he was permitted to remove the tree himself.
  2. The resident has since explained to this Service (in an email dated 26 April 2021) that the landlord had confirmed that he could remove the tree, and that he did so on 23 April 2021. There is no indication of a service failure on the part of the landlord here, and the outcome that the resident sought has been obtained.

Determination (decision)

  1. In accordance with section 54 of the Scheme, there was no maladministration by the landlord in its response to concerns about:
    1. The condition of the garden at the property, and requests for compensation in relation to this.
    2. A tree within the garden that the resident wanted to remove.
    3. Replacement of the kitchen.

Reasons

  1. As understandable as the resident’s wish for the garden to be in a better condition was, the Ombudsman has not identified any failings by the landlord in this regard. It informed him that it would not carry out adaptations prior to his signing the tenancy agreement, explained that the garden met its lettable standard, and followed its policy on major adaptations requiring an OT assessment.
  2. The Ombudsman has found no evidence that the kitchen required replacement or that this was promised, and the enquiry about the tree has been resolved.