Catalyst Housing Limited (202014121)

REPORT

COMPLAINT 202014121

Catalyst Housing Limited

8 June 2022

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 landlord’s response to the resident’s reports that bamboo was encroaching their garden from a neighbouring property.
2. The related handling of the complaint.

Background and summary of events

The resident has been a leaseholder of the property since 2008, the lease commenced on 25 January 1998. The property is a first-floor maisonette with a private garden allocated to the demised premise.
The bamboo that the resident reported in their garden had grown from a plant in a neighbouring garden, which is a tenanted property of the landlord. It is noted that there had been a separate on-going neighbour dispute between the resident and the neighbour in question, for which the landlord had suggested mediation.
The resident has said that the first signs of the bamboo encroaching their garden was in May 2019 when their paving slabs were lifting, and the concrete border was breaking. The resident said that at that time their gardeners lifted the slabs up, removed the visible roots and poured on weed killer to try to prevent them from reappearing.
On 15 June 2020, the resident wrote to the landlord, following they said a telephone conversation with the landlord that day. The resident said that they would welcome a contractor to visit and see the bamboo in their garden.
On 24 and 26 June 2020, the resident wrote to the landlord to express their disappointment with the landlord’s offer, that replacing patches and leaving the bamboo roots beneath their lawn was unacceptable, and that this was not what the landlord had led them to believe would happen.
On 3 July 2020, the landlord wrote to the resident regarding several issues, including the bamboo. The landlord said that it had commissioned works to remove the bamboo roots that were coming into their garden and for their lawn and slabs to be re-laid. The landlord said that two contractors would be carrying out the work, one of whom had visited that day, and that it would do its best to get the second to them before 20 July 2020.
On 24 July 2020, the landlord was sent an email by its contractor confirming the works had been completed. The resident called the landlord to same day to say that the works were not what they agreed with the person that inspected their property.
On 4 August 2020, the landlord wrote to the resident to confirm what it had agreed when it visited the resident’s property again, with its contractor, on 30 July 2020:
1. That the resident would contact an expert to provide a report on the effects of the bamboo under their lawn and to provide recommendations for its removal, and to prevent it coming back.
2. That it would not pay for the expert report but would take seriously, and do its best to meet, its recommendations.
3. That it would ask the neighbour to remove the bamboo plant.
4. That agreeing to pay for the works to be done was not an admission of any responsibility, that what it had agreed to do was a gesture of goodwill to help resolve their dispute with their neighbour.
On 8 August 2020, the resident wrote to the landlord confirming that they would arrange for an expert to visit, they would initially cover the cost of the report but that as the report had been commissioned for the purpose of resolving a problem caused by the landlord’s tenant, they would expect the cost to be offset against their service charges.
The expert survey took place on 18 August 2020 and on 4 September 2020 the resident emailed a copy of the report to the landlord. The report stated that in normal circumstances, the treatment or removal of the bamboo in both properties would be recommended. However, at that time the tenant of the neighbouring property did not want to either remove or kill it off. The expert recommended using a micro-digger to turn over the affected area of the lawn in the resident’s garden to uncover all the remaining rhizome which could be completely removed, and a root barrier installed to prevent future incursion. However, the only permanent solution would be for the bamboo in the neighbouring property to be removed or killed off completely, or for it to be relocated and fully contained.
On 1 October 2020, the landlord again visited resident’s garden with its contractor.
By 20 October 2020, the neighbour had removed the bamboo, and the landlord had raised a job with its contractor to grind out the roots from the neighbour’s garden. The landlord also raised a job to remove any visible roots from the resident’s garden.
On 12 November 2020, the landlord wrote to the resident, following it said the concerns raised by the resident in a letter of 8 November 2020, regarding its response to the expert report. The resident’s letter has not been seen by this service. The landlord noted that the report had referred to containment. However, the recommendation regarding this was made assuming the bamboo plant was going to remain in place, and it had now been agreed that the bamboo plant would be killed. The landlord also said that it was not responsible for the roots that had encroached the resident’s garden and that all the actions it had taken was to support the resident and their neighbour to deal with their dispute. The landlord said that the works had been scheduled to take place on 9 December 2020 and asked that the resident allow the contractor to carry out the work as they been instructed.
The landlord wrote to the resident again on 16 November 2020, following it said correspondence from the resident dated 14 November 2020 which again has not been seen by this service. The landlord confirmed that its contractors had been instructed to grind out and removal any visible roots from the resident’s garden and to kill the bamboo. Once the works had been completed to remove the bamboo roots it would arrange for a separate contractor to make good the disruption to the resident’s lawn.
On 21 November 2020, the resident emailed landlord to agree for works to be carried out and on 23 November 2020, at the resident’s request, the landlord agree to put the works on hold until the Spring.
On 1 February 2021, the resident wrote to the landlord’s complaint team stating that the initial attempt to get rid of the bamboo failed, they had to pay £360 for an expert report for which the landlord had not offered them a refund. The landlord had said it would grind out the roots of the bamboo in their neighbour’s property but there was an issue with access, and that they wanted clarity as to what works would be carried out when the contractor visited in the Spring as it appeared that it was going to be the same as the works that had failed previously.
On 19 February 2021, the resident wrote to this service to advise that they had logged a complaint with the landlord about the bamboo on 1 February 2021 but had received no response. A letter was sent to the landlord by this service on 23 February 2021, asking that it provide the resident with a response to their complaint within 10 working days.
On 26 March 2021, the landlord emailed the resident to explain that the bamboo in the neighbouring property had been killed and that it would be checking that the area where the bamboo was planted along the boundary line was clear of roots. The landlord also advised that it would remove any visible roots in the resident’s garden and then relay the lawn and the slabs that were removed.
On 31 March 2021, this service again wrote to the landlord, following contact from the resident, asking that it provides the resident with a response to their complaint within the next five working days.
The landlord issued its final response to the resident’s complaint on 28 April 2021, referring to its response on 4 August 2020 as its previous formal response to the resident’s complaint. The landlord said that whilst it accepted that this must have been a frustrating issue for the resident, it believed it had worked with them to resolve their concerns. Whilst it was not responsible for the encroachment of the bamboo it had taken a number of steps to work with the resident, their neighbour and contractors to manage the situation. It had succeeded in the removal of the bamboo plant itself and offered remedial works to the resident’s garden. Once the resident had confirmed when they were ready for the works to restart to their garden, it would ask the garden contractors to return.
On 23 June 2021, the resident’s complaint came within the Ombudsman’s formal remit. The resident advised this service that they remained dissatisfied with the landlord’s response as its initial effort had been unsuccessful and they did not want it to return and do the same thing again. The resident said that the landlord had assured them that the roots had been removed from the neighbouring property but that was not the case as new shoots were coming up directly by the fence boundary and were still shooting in several parts of their lawn. The landlord had only agreed to deal with visible bamboo shoots and roots, which went against the recommendations made by the expert contractor, and that they had told the landlord that it could only come back and do the work providing it was in line with expert’s recommendations.

Assessment and findings

The landlord’s response to the resident’s reports that bamboo was encroaching their garden from a neighbouring property.

This assessment has considered how the landlord responded to the resident’s reports and whether that response was fair, reasonable, and in accordance with its obligations under the lease. This assessment has not considered who may be liable for any damage to the resident’s garden caused by the bamboo encroachment as this is a legal matter which is outside of this service’s jurisdiction to consider.
Bamboo is not classed as an invasive species in the Wildlife and Countryside Act 1981 and there are currently no restrictions on planting it. However, as in this case, it can become invasive and spread beyond the boundaries of the property where it is planted.
The bamboo plant in question was planted in the private garden of a neighbouring tenanted property of the landlord. Whilst this service has not had sight of the neighbour’s tenancy agreement it is common practice for the maintenance of such private gardens to be the responsibility of the tenant and as such the bamboo plant would also be the responsibility of that tenant to maintain.
Whilst it is acknowledged that the encroachment of the bamboo into the resident’s garden was understandably distressing, under the terms of the lease the resident is responsible for the maintenance, repair and renewal of their own private garden, including lawns and therefore the landlord was not obliged to carry out any remedial works to their garden.
Nevertheless, in recognition of the distress this issue was causing the resident and to seek to resolve a pre-existing neighbour dispute between the two parties, the landlord took reasonable and timely steps to address the concerns raised by the resident.
Within approximately six weeks of the resident’s conversation with the landlord on 15 June 2020, the landlord had arranged for works to the resident’s garden to be completed; however, the resident was not satisfied with the works that had been carried out.
The landlord again acted promptly, visiting the resident property four working days later, on 30 July 2020, at which point it was agreed that the resident would arrange for an expert to inspect their garden and provide recommendations as to what works needed to be carried out. It is noted that the landlord agreed to do its best to meet any recommendations made in the report, despite having no obligation to do so under the lease.
The resident has suggested that the landlord should reimburse them for the costs of the expert inspection. However, the landlord was not obliged under the terms of the resident’s lease to carry out any works to their garden and therefore it was also not obliged to cover the cost of any inspection carried out.
The resident has also complained that the works the landlord had agreed to carry out went against the recommendations made by the expert contractor, that the works were the same as the landlord had previously carried out and that they had told the landlord that it could only come back and do the work providing it was in line with expert’s recommendations.
With regards to the landlord not carrying out the recommendation made by the expert. The report, sent to the landlord on 4 September 2020, noted that if the bamboo plant was not removed from the neighbouring garden, containment measures would need to be installed on the resident’s side of the boundary. The report also noted that root barriers were not that effective against bamboo and that the only permanent solution would be for the bamboo in the neighbouring property to be removed or killed off completely, or for it to be relocated and fully contained.
At the time the expert report was prepared, the neighbour was refusing to remove the bamboo plant from their garden and as a result the report recommended the steps that needed to be taken to both remove the existing roots from the resident’s garden and to prevent any further incursion. However, by 20 October 2020, the neighbour had removed the bamboo and to seek to ensure that the plant was killed off completely the landlord had arranged for the roots of the plant in the neighbouring garden to be ground away.
The landlord also took reasonable and resolution focused steps with regards to the resident’s garden, agreeing to grind out and remove any visible roots from the resident’s garden, and to arrange for a separate contractor to make good the disruption to the resident’s lawn.
It is acknowledged that the resident had concerns about the works proposed to their garden, however, given that the barrier was recommended in the expert report on the basis that the plant had not been removed from the neighbour’s garden, and as the plant had since been removed, it was reasonable for the landlord not to progress with the installation of the barrier.
Given that these were all works that the landlord was not obliged to carry out under the terms of the lease, the landlord’s actions were both fair and reasonable and as a result there was no maladministration with regards to its response to the resident’s reports of bamboo encroachment.

The related handling of the complaint

The resident logged their initial formal complaint with the landlord’s complaints team on 1 February 2021. In accordance with the landlord’s complaints policy, the landlord should have issued its stage one response within 10 working days, by 15 February 2021.
The landlord failed to do so and so on 19 February 2021 the resident contacted this service. Letters were sent by this service to the landlord on 23 February 2021, asking that the landlord respond within 10 working days, and again on 31 March 2021 asking that it provide the resident with a response to their complaint within the next five working days. The landlord failed to respond to either of these requests within the requested timescales. The landlord provided the resident with its response on 28 April 2021, 62 working days after the resident submitted their formal complaint of 1 February 2021.
In addition to the delay in it providing its response, the landlord also referred to its response in August 2020 as being its previous formal response. However, that letter predates the resident’s formal complaint of 1 February 2021, there is no evidence of the resident logging a formal complaint about the landlord’s response to their reports of the bamboo prior to 1 February 2021 and its response in August 2020 made no reference to it being a formal complaint response.
Having considered the evidence and the landlord’s obligations under its complaints process, I am satisfied that there was service failure by the landlord in respect of its complaint handling for which it has been ordered to apologise and pay the resident £100 compensation.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s reports that bamboo was encroaching their garden from a neighbouring property.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its related complaint handling.

Reasons

Under the terms of the lease the resident is responsible for the maintenance, repair and renewal of their own private garden, including lawns and therefore the landlord was not obliged to carry out any remedial works to their garden.
Nevertheless, in order to seek to resolve an ongoing dispute between the resident and their neighbour and in recognition of the distress this matter had caused the resident, the landlord took fair and reasonable steps to resolve the issue by offering to carry out works to both the resident’s and the neighbour’s garden.
Despite intervention by this service, the landlord failed to provide its response to the resident’s complaint within the timescales set out in its complaints policy. It then issued a final response, stating that its response in August 2020 was its initial formal response but with no evidence to support that that response was in fact a formal complaint response.

Orders

Within 28 days of this report the landlord is to:
1. Apologise to the resident and pay the resident £100 for its complaint handling failures.
2. Review its processes for ensuring timely complaint responses to prevent a recurrence of the failings identified in this case and to then remind its complaint team about the complaint timescales in its complaint policy.
3. Confirm that it has complied with all of the above orders.