Camden Council (202017192)

REPORT

COMPLAINT 202017192

Camden Council

17 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 the landlord’s handling of the resident’s:
1. Use of a communal garden.
2. Associated complaint.

Background

The resident is a leaseholder of the landlord.
In 2010, the landlord’s former caretaker gave the resident permission to use the communal garden outside her property.
The landlord contacted the resident in 2017 to inform her that other residents would like to share the use of the garden.
In early 2019, the landlord contacted the resident to arrange a time to meet, to ensure that the garden was within its grounds’ specification. The landlord missed the resident’s reply, so contacted the resident again. It is not clear from the evidence provided to this Service whether the meeting happened.
In June 2020, a notice was attached to the garden gate which said that from 22 June 2020, the garden would be under the control of the residents’ and tenants’ association (TRA) and would be used to create planting beds for communal use. It said that work would commence on 23 June 2020. It asked that if residents had any items to collect from the garden, that they contact the TRA to arrange collection before 6 July 2020. The notice said that any items found in the garden after 7 July 2020, would be discarded.
The resident complained to the landlord on 25 June 2020. She said that:
1. In 2019, workmen putting up scaffolding had borrowed her key, but did not return it to her as they had lost it. The workmen had put scaffolding boards in the garden causing damage to one of her trees.
2. During the first lockdown due to Covid-19, the resident did not use the garden as she was a care worker and couldn’t risk catching the virus.
3. The resident said that in the past few weeks a new lock had been put on the gate. The landlord’s workers asked the resident for access to the garden, however she said she could not provide this as she no longer had a key.
4. The workers had broken the lock off and left the garden unlocked. She had contacted the landlord who advised her to put a temporary lock on the gate. The lock she had put on was broken off and some of her tools went missing from the garden.
5. Other residents were throwing rubbish into the garden and trying to take the garden away from her.
On 30 July 2020, the landlord emailed the resident to apologise for the time it had taken to contact her and asked when she would be available to speak. On 1 September 2020, the landlord spoke to the resident on the phone. The landlord said that the garden was for communal use. The resident asked for a lock to be put back on the gate. The landlord said that this would mean that someone would need to be responsible for opening and closing the garden, to ensure it was accessible for all residents to use. The resident asked the landlord not to remove the trees she had already planted. The landlord said that the resident should contact the TRA in relation to the garden from now on. The resident said she would not always be able to attend meetings about the garden as she was a carer and worked unsociable hours. The resident asked the landlord to confirm the points discussed on the call, in writing.
The resident contacted the landlord on 1 September 2020. She said that the landlord had not listened to her and that felt like racism. She said her trees had been cut and all her plants had been cleared from the garden. She wanted the landlord to reimburse her for the money she had spent on the garden over the past ten years.
On 11 September 2020, the resident told the landlord that a new lock had been put on the gate and this meant she no longer had access to the garden.
The resident continued to complain to the landlord between April 2021 and May 2021. She said that the landlord had misrepresented what had been said on a phone call and asked that it listened to its phone records. She said she had been falsely accused of breaking the locks on the garden gate. She said when she had first taken over the garden it was a junkyard. She said she would no longer pay her service charge as she had not received a response from the landlord.
The landlord contacted the resident on 30 April 2021. It reiterated that the communal garden was for all residents to use, and that the resident had been maintaining the garden on a voluntary basis. It said that she was liable to pay her service charge.
On 27 May 2021, the resident complained again to the landlord and said that more than half of her tools had gone missing, and others were still in the garden. The resident said she wanted her water collectors back but could not access the garden to get them.
On 18 October 2021, the landlord issued a stage one complaint response. It apologised for the delay in responding. It said that:
1. The resident had been granted permission to use the garden, but this was not an open-ended agreement.
2. The garden clearance works undertaken were requested by the TRA and authorised by the Housing Officer. The work did not include a requirement to undertake an inventory of what was going to be removed. The garden was overgrown and untidy. The grounds maintenance officer had asked to meet with the resident on multiple occasions regarding the communal space from November 2018 to January 2019 with no success. It said the resident had failed to attend meetings with the TRA to discuss future gardening plans.
3. The local authority tree officer had said that some self-sown saplings were causing concern and were at risk of causing damage to the structure of the building. These trees were removed in accordance with the local authority’s tree policy.
4. All containers, debris and plants were removed apart from one tree that the TRA requested be left in place.
5. It was not upholding the resident’s complaint.
6. It said it would award the resident £100 compensation for the delay in responding to her complaint and for the time and effort she put into the garden.
The resident asked the landlord to review the complaint on 1 November 2021. On 19 November 2021, the landlord issued its stage two complaint response. It said that:
1. As a leaseholder, the resident was contracted to pay her share of the service charge in relation to grounds and tree maintenance.
2. The landlord had invited the resident to an inspection by the tree service and had sent her a copy of their report in December 2020.
3. The landlord was unaware of any missing tools.
4. It would not uphold the resident’s complaint and was unable to agree to compensation for the work the resident had done in the garden.
The resident complained to the Ombudsman on 23 March 2022. She said she wanted the landlord to reimburse her for the money she had spent on the garden over the past ten years.

Assessment

Scope of investigation

In her complaint of 1 September 2020, the resident said that the way the landlord’s staff member spoke to her felt racist. The Ombudsman cannot establish whether racism occurred in a legal sense as discrimination in line with the Equality Act, including racism could only be determined by a court, and so this is beyond the scope of this assessment. The Ombudsman’s investigation can, however, consider the actions taken by the landlord in response to the resident’s report of racism. In doing so, the Ombudsman is able to consider whether the landlord followed its policies and procedures, kept to the law and acted reasonably and proportionately in the circumstances.
In her complaint of 25 June 2020, the resident informed the landlord that in 2019, its workmen had lost the key she had lent them and that scaffolding boards left by them had damaged her tree. As this incident happened several years ago and was not raised through the landlord’s complaint procedure within six months of the incident taking place, the Ombudsman is not able to consider this incident in this investigation. This is in line with paragraph 42(c) which states the Ombudsman may not consider complaints which, in the Ombudsman’s opinion were not brought to the attention of the landlord as a formal complaint within a reasonable period which would normally be within six months of the matters arising.

Policies and procedures

The terms of the resident’s lease state that common parts are “areas inside and outside the block but within the estate which are not intended to remain private, and which are to be enjoyed or used by the tenant and occupiers of the property in common with the occupiers of other flats in the block or on the estate”.
The lease also states that it is the responsibility of the landlord to tend, keep clean and tidy, and generally to maintain the gardens (excluding private gardens) on the estate.
The landlord’s complaint process has two stages. At stage one, a response will be provided within 10 working days. At stage two, a response will be provided within 20 working days.
The Ombudsman’s Complaint Handling Code (published on our website) states that a complaint must be defined 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’.
The Code also states that landlords must address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law and good practice where appropriate.
The Code (against which all member landlord’s were required to self-assess by December 2020) further states that complaint responses should include the complaint stage, the outcome of the complaint, the reasons for any decisions made, the details of any remedy offered to put things right, details of any outstanding actions and details of how to escalate the matter if the resident remains dissatisfied.

Complaint about the communal garden

The landlord acted reasonably in contacting the resident in 2017, to say that other residents would like to use the garden. This is because the garden was owned by the landlord and the resident’s lease states that any common parts which were not private, were for the use and enjoyment of all residents.
It was appropriate for the landlord to contact the resident in 2019, to arrange a time to meet to ensure that the garden was within its grounds’ specification. This is because the maintenance of gardens was the responsibility of the landlord, and it had an obligation to make sure that these were safe for residents to use and not at risk of causing structural problems to any buildings.
It would have been helpful had the landlord contacted the resident to inform her of plans to transfer responsibility for the management of the garden to the TRA. However, the notice on the garden gate in June 2020, provided information on who to contact should the resident wish to collect any tools or equipment belonging to her. Therefore, the landlord did enough to let the resident know that she needed to collect any personal items left in the garden otherwise the items may be disposed of.
The resident told the landlord in her complaint of 25 June 2020, that when the garden had been left open some of her tools had gone missing. She said that when the lock which she had been advised by the landlord to put on the gate had been broken off, more of her tools had gone missing. The landlord would not have been expected to compensate her for these tools as they had been left in a communal area at the resident’s own risk. The resident was informed that personal items left in the communal gardens were left at residents’ own risk.
The landlord was right to inform the resident that she was liable to pay her service charge. This is because although it had given her permission to use the garden, there was no agreement between the landlord and the resident that she would receive a discounted service charge for doing so. In accordance with the lease, the resident is obliged to pay the service charge in full and she is not entitled to a reduction in this.
The landlord acted reasonably in not agreeing to compensate the resident for the money she had spent on the garden over the 10 years she had tended to it. The landlord acted appropriately in informing the resident that although it had allowed her to use the garden, she did so on a voluntary basis, meaning any time or money she spent was not something it was obliged to reimburse her for. There is no evidence that the landlord agreed to reimburse these costs at any point. Therefore, the resident decided to purchase items for the garden and spend time working on it without any reasonable expectation that these costs would be reimbursed.

Complaint handling

The Ombudsman’s Complaint Handling Code (set out above) was not yet in effect at the time of the resident’s initial complaint of 25 June 2020. However, it was the Ombudsman’s established expectation at the time that landlords should respond to complaints within similar timescales to those set out in the Code. The landlord acted unreasonably by not providing a response until 1 September 2020 (over two months later). It has offered an apology for this and there is evidence that on 30 July 2020, the landlord attempted to contact the resident to discuss her concerns. However, the delay in providing a written response will have caused the resident time, trouble, and inconvenience.
In her complaints, the resident said that she felt the way one of the landlord’s staff members had spoken over her was racist. She asked the landlord to listen to its call records. However, there is no evidence that it did so. The landlord should have investigated and responded to this aspect of the resident’s complaint. If it did not have the phone records or was no longer able to listen to these, it should have explained this to the resident in its complaint response. Nor did it respond to the resident’s complaint that she had been accused of breaking the garden locks. The fact that it did not do so, may have given her the impression that the landlord was not listening to her or taking her concerns seriously.
The resident complained to the landlord several times between 1 September 2020 and 4 May 2021. Although the landlord sent a response on 30 April 2021, this was not a formal complaint response, rather a reminder that she was liable to pay her service charge. The fact that the resident had to keep raising her complaint and did not receive a formal complaint response during this time, will have caused further time, trouble, and inconvenience for the resident.
The landlord did not respond to the resident’s stage one complaint of 27 May 2021, until 18 October 2021. The landlord offered an apology for this delay and offered the resident £100 compensation. However, the delay of over four months will have caused the resident further time, trouble, and inconvenience. The landlord’s offer of £100 compensation is not sufficient for this, taking into account the landlord’s other complaint handling errors, as set out above.
The Ombudsman’s remedies guidance (published on our website) sets out our service’s approach to compensation. The remedies guidance states that where maladministration has been identified which adversely affected the resident, compensation of £100-£600 should be offered. In the opinion of this Service, an additional £150 should be offered to the resident as compensation for the landlord’s complaint handling failures. This would bring the total compensation to £250, taking into account the landlord’s earlier offer.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s use of the communal garden.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in the way it handled the associated complaint.

Orders

The landlord is ordered to pay the resident £150 in compensation, within four weeks of this report, ensuring that this Service is provided with evidence of compliance by the same date. This amount is in addition to the £100 already offered to the resident through its complaints process, which should also be paid unless it has been paid already.