Co-operative Development Society Limited (202014369)

REPORT

COMPLAINT 202014369

Co-operative Development Society Limited

24 June 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

This complaint is about the landlord’s handling of:
1. the removal of plants from a neighbouring garden;
2. the procurement of a new estate gardening contract;
3. the related complaint.

Background and summary of events

Background

The resident is a leaseholder. The landlord has provided a copy of the lease dated 10 October 1983 and described the property as a one-bedroom terraced house on an estate.
The lease agreement obliges the landlord to maintain ‘communal areas and gardens’ of the estate.
The landlord has a service charge policy that says it ‘will consult and inform residents in line with statutory requirements, including carrying out a “Section 20 consultation” for homeowners as prescribed by Section 20 (1) of the Landlord and Tenant Act 1985, as amended, when appropriate’.
The landlord has a section 20 notice procedure that requires it to:
1. issue a notice of intention to leaseholders that describes the proposed works and why they are necessary, invites comments during a consultation period of at least 30 days and allows residents to nominate a contractor
2. seek estimates from any contractor nominated by a leaseholder or resident association with at least two contract submissions (or three, to comply with good practice) required to make the estimates valid
3. notify leaseholders of the estimates, setting out the total cost from the tenders received and a summary of the observations received and its responses
4. invite further comments on the estimates at the notification of estimates stage (through another consultation period of at least 30 days) with a ‘duty to regard’ the observations
5. notify leaseholders of reasons if it does not choose the lowest priced estimate
6. although a notice is not required, it is good practice to let leaseholders know if the lowest priced contractor is chosen.
The landlord has a complaints policy that defines a complaint as ‘any formal expression of dissatisfaction with a policy, procedure or our performance of a service or contractual duty’. It adds that it encourages staff ‘to “hear” and capture complaints, whether or not a formal complaint is made’ and ‘actively log dissatisfaction as a complaint so that it can be formally responded to in a timely way’. The policy sets out a two-stage complaints procedure of 10 working days (for a stage one response) and 20 working days (for the final response)

Summary of Events

An arboricultural assessment report was completed for an area of estate land on 2 August 2019. The company said it had been instructed by building insurers to assess whether any vegetation outside a neighbouring property to the resident was ‘likely to be influencing soil moisture levels beneath the foundations of the property, and if so, to provide recommendations as to what tree management could be implemented to effectively prevent damage continuing’. It recommended that:
1. a lime and an oak tree have their crowns reduced by 70% followed by subsequent biennial pruning to these levels
2. laurel, rose, privet, magnolia and buddleia (in location ‘SG1’) and box, jasmine and privet (in location ‘SG2’) plants be felled with stumps treated.
The above report was sent to the landlord on 23 August 2019 and the claims handler confirmed in the accompanying email that the plants in the ‘SG1’ and ‘SG2’ categories needed to be removed.
A subsidence specialist wrote to the landlord on 19 October 2019. A site investigation report was attached and it was added that this had been sent to the arborist to ‘secure removal of what vegetation we need removed’.
The landlord issued a notice of intention to the resident on 31 October 2019 that said it intended to ask companies to tender for a new qualifying long-term agreement for gardening and ground maintenance services. It invited resident observations and suggestions of contractors that could be approached for an estimate with a consultation deadline of 1 December 2019.
The landlord recorded receipt of comments from nine properties in reply to the notice of intention. There was a mixture of comments with some residents satisfied with the level of gardening and some requesting changes and improvements.
An updated arboricultural assessment report was completed on 22 November 2019 to reflect that the plants mentioned in the ‘SG1’ and ‘SG2’ categories were the likely source for unidentified roots found during the site investigation.
The landlord wrote to some residents in the area affected by subsidence on 11 March 2020 to advise them that it would remove plants by a bin shed and entrance on 17 March 2020. It said this was due to advice it had received from the insurance company following the claim it had made and it is not disputed that the removal went ahead as planned.
Emails were exchanged between the landlord and previous gardening contractor on 18 March 2020. There was a discussion about ways to improve the area in question following removal of plants. The landlord subsequently raised concerns about the way a member of the contractor’s staff had handled a telephone call that day.
The resident wrote to the landlord on 18 March 2020 to query the plant removal.
The previous gardening contractor gave notice on 22 March 2020 to end the contract with the landlord by the end of April 2020.
The landlord wrote to all residents on 23 March 2020. This included an apology for the lack of notice of removal of plants and an explanation that this had been done ‘based on expert advice from our insurers following a long-term investigation into subsidence’.
The landlord also wrote to the resident individually on 23 March 2020. It apologised for the lack of advanced information about the clearance of plants and indicated this was because the usual leasehold services officer was away. It offered assurance that the garden area in question would not be left in its present state.
The resident wrote to the landlord on 1 April 2020 – he queried why the insurers thought the clearance was necessary and asked for progress in reinstating the area.
The landlord made an offer on 8 April 2020 for the previous gardening contractor to tender for the new contract but this was rejected by them on the same day.
The landlord also invited several other companies to tender on 8 April 2020. It described the work as ‘gardening services’ and provided a summary of the notice of intention resident consultation responses.
The resident chased a response on 17 April 2020 to his earlier questions and asked what plans there were to maintain the gardens given the previous gardening contractor had ceased work.
The landlord replied to the resident on 20 April 2020. It provided a copy of the August 2019 report and the email from the subsidence specialist from October 2019. It added that they were asking companies to tender for a new contract.
The resident replied on 20 April 2020 with some questions about the plants that were removed, the ‘alienation’ of the previous gardening contractor and the tender timetable (and gardening arrangements in the meantime).
The landlord wrote to the resident on 24 April 2020. It acknowledged the situation could have been managed better and that shrubs could have been relocated. It confirmed the invite that had gone to the previous contractor to tender and gave some information about the tender timescale.
The resident replied on 24 April 2020 – he suggested the landlord apologise to the previous gardening contractor, that it should not have followed the insurance company’s findings unquestionably and recommended an apology and compensation to residents given the impact of the loss of plants and garden maintenance on them.
The landlord wrote to the resident on 27 April 2020 and acknowledged his correspondence as a complaint. The resident replied the same day – he said he was disappointed that this approach had been taken instead of just acting on the suggestions he made.
The resident reiterated his concern on 3 May 2020 that the landlord had pre-empted his complaint and the landlord acknowledged this on 4 May 2020.
The landlord’s internal records evidence that grounds maintenance work was temporarily completed by a new company on 12 May 2020 and 29 May 2020.
The landlord sent a notice of estimates to residents on 13 May 2020 that included the proposals from the three companies that had offered quotes and asked for resident feedback by 15 June 2020. It noted that interim garden maintenance had been provided in the meantime.
The resident subsequently made comments during the consultation period as follows:
1. he raised concerns about the quality of each of the proposals and whether the estimates were too low
2. he asked if a temporary arrangement could continue rather than entering a long-term contract
3. information about the previous gardening contract cost was inadequate.
The landlord replied during the consultation period and advised that:
1. residents were able to say that they do not prefer any of the proposals (this advice was passed on to all residents)
2. all comments would be reviewed and a decision made at the end of the consultation period
3. clarity was given to all residents about the cost of the previous garden contractor.
The landlord’s internal records show that comments from 17 properties were received in reply to the notice of estimates.
The landlord made several reference requests on 8 June 2020 for companies that had provided quotes to it. It received feedback the same day about the contractor that it eventually chose to deliver the gardening services. This was positive about the quality of work by the contractor over the previous eight months.
In the meantime, the company that completed the August 2019 report confirmed on 9 June 2020 that all plants in the ‘SG1’ and ‘SG2’ category had required removal (with roots treated with a poison or removed by hand) and gave some guidance on types of plants that could be reinstated.
The landlord advised the resident on 7 July 2020 that a new gardening contractor had been appointed based on the majority of residents’ giving their preference. It added that a six-month probation period would allow it to take feedback from residents on performance.
The landlord sent an email to all residents on 8 July 2020 that confirmed the appointment of the new gardening contractor and that a lime tree was to be removed on 8-9 July 2020 as part of the subsidence insurance claim.
The resident wrote to the landlord on 8 July 2020 and raised concerns again about the quality of work the new gardening contractor was likely to be able to achieve and questioned whether most consultation responses were from absentee leaseholders. In a separate email that day, he asked for consultation responses to be published.
The landlord replied to the resident on 10 July 2020 with a redacted spreadsheet that showed comments made by residents during the consultation and demonstrated most residents had expressed preference for the contractor chosen by the landlord.
The resident responded to the landlord on 12 July 2020 – he raised concern that five other residents had mentioned litter picking in their responses when this should be a task that is separated out from gardening. He added that his questions about the gardening expertise of the new contractor had not been satisfied.
The landlord wrote to the resident on 13 July 2020 to advise that it had raised his pruning concerns with the new contractor. The resident replied the same day to query why gardening was not mentioned on the new contractor’s website.
The resident reiterated on 14 July 2020 that, following a conversation with a member of their staff, the new contractors intended to prune plants at incorrect times and was a cleaning company not a gardening firm. He asked for the contract to be suspended and told it that he intended to make a complaint.
The landlord replied to the resident the same day. It advised it had passed on comments to the contractor about pruning, signposted the resident to its complaints process and advised that it was not aware of what information was not on the contractor’s website. It also provided a copy of a reference it had obtained from a customer of the new contractor the previous month.
The resident submitted a complaint to the landlord dated 15 July 2020. He requested that the new contract be suspended due to his concerns about their capabilities. He complained on the grounds that:
1. the August 2019 arboricultural assessment report contained inaccuracies and did not recommend removal of plants
2. the landlord had removed all plants rather than the ones mentioned in the report, none of which were re-planted elsewhere on the estate
3. the landlord had alienated the previous gardening contractor through this removal of plants, a subsequent telephone conversation and an incident in 2019 during cyclical works
4. the new gardening contractor was ill suited to the work required and the landlord had failed to meet them on site
5. the landlord had taken a pre-emptive approach to logging complaints which he suspected was to gain control.
The landlord acknowledged the complaint on 21 July 2020, following a chaser from the resident.
The landlord’s internal records show that it raised concerns with the new gardening contractor on 27 July 2020 about the lack of references to gardening on its website. The contractor replied to advise that the website had not been updated since it started taking on more gardening contracts over the previous year. It supplied additional evidence over the following two days of its ground maintenance capabilities in the form of photographs and client testimony.
The landlord issued a stage one complaint response on 29 July 2020. It said it had agreed to suspend the new gardening contract pending the complaint investigation but concluded that:
1. it had invited five companies to tender for the new gardening contract, of whom three responded; it set out information about these three companies
2. it was not a requirement that the ground maintenance and gardening contract be offered to a gardening company but rather that it should have ‘demonstrable experience and proven track record of providing ground maintenance services’ which were provided through testimonials and photographic evidence
3. the proposal from the contractor that was chosen was shared with residents and included photographic evidence and a commendation from a current client of theirs
4. the contractor had been asked to update their website to reflect that they are not solely a cleaning company
5. the leasehold services officer had met the contractor at another site but was unable to meet any of the tenderers at the resident’s block due to the coronavirus lockdown
6. resident’s comments about the new contractor’s pruning regime had been passed to them for consideration
7. it did not agree that the contractor’s charges were too low for them to employ decent gardeners and their quality of works would be reviewed through the contract management process
8. it had not been able to listen to a recording of a conversation between the leasehold services officer and the previous garden contractor but was aware that the latter had decided to end the contract and refused to participate in the tender despite being invited to
9. the area of vegetation outside the neighbouring property had to be removed on the advice of its insurers who had been investigating a subsidence issue and they appointed the company that completed the ‘arboricultural assessment report’
10. the company had been approached and confirmed that all plants listed under the ‘SG1’ and ‘SG2’ categories on the report had required removal and the insurance recommendation had to be followed to avoid invalidating the claim
11. there had been a 3-year tree management cycle on the estate since November 2016 and trees were due to be pruned in November 2022
12. it directs ongoing disputes through its complaints process to give residents a clear path for escalation and bring matters to a conclusion.
The resident replied to the landlord on 30 July 2020 – he requested that the complaint be escalated as the stage one response was ‘dishonest’ and an ‘abdication of responsibility’.
The landlord issued its final complaint response to the resident on 24 August 2020. It concluded that:
1. it had undertaken the required section 20 consultation with leaseholders prior to the appointment of new gardening contractors and this process led to the view that most leaseholders preferred the cheaper option
2. it removed the plants outside a neighbouring flat due to a recommendation from building insurers that related claims could be refused otherwise
3. it would not apologise to the previous gardening contractors as it had received no complaint from them and had been aware three years previously that they intended not to tender for the next contract
4. its complaints policy allowed for expressions of dissatisfaction to be logged and investigated as complaints but it would listen to the resident’s preference in future if he advised that he did not wish to enter the complaints process
5. the stage one complaint response was exhaustive and in line with its policies and procedures
6. it had suspended using the new gardening contractor during the complaints process but would now proceed with using them.
The landlord has advised this Service that the new gardening contractor began to carry out works from September 2020. This has been evidenced by positive feedback provided to the landlord by residents in September 2020 and October 2020 about the performance of the contractor and photographs and feedback from the contractor.
The resident advised this Service as recently as June 2021 that plants were yet to be reinstated to the area affected by the removal in March 2020.

Assessment and findings

In reaching a decision we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case.
The Ombudsman’s Dispute Resolution Principles are:

Be fair
Put things right
Learn from outcomes

This Service will apply these principles when considering whether any redress is appropriate and proportionate for any maladministration or service failure identified.

Removal of plants

A building insurance claim was made due to subsidence on the estate. The claims handler sent the landlord an arboricultural report in August 2019 that recommended plants be ‘felled with stumps treated’. The resident has raised concern over the necessity of the plant removal. However, the accompanying email from the claims handler in August 2019 confirmed that the landlord needed to ‘arrange removal’, the updated November 2019 arboricultural report said that these were the ‘likely source’ of roots found during subsequent site investigation and the company confirmed in June 2020 that these had required removal. The landlord’s decision to remove the plants was therefore reasonable and based on advice received from qualified professionals as part of the insurance claim process.
It is not disputed that an opportunity was lost to relocate the plants elsewhere on the estate. The landlord acknowledged this failure when it offered appropriate apologies to the resident the month after the removal.
The resident has raised concerns that the arboricultural report contained inaccurate information about plant type and that more plants were removed than was recommended within the report. The landlord’s ability to answer these concerns was likely to have been restricted by the plants no longer being in situ but it was unreasonable that it failed to address this point or demonstrate that it had investigated this.
It is not disputed that there was a lack of notice given to both the resident and the gardening contractors when the removal was conducted in March 2020. This lack of notice was unreasonable even if the removal was inevitable. The landlord apologised to all residents for this shortly after the removal and repeated this apology to the resident individually.
The landlord indicated that the lack of notice was because the usual member of staff was away at the time of the removal. However, when it proposed to also remove a tree in July 2020, there was a similar lack of notice as residents were only informed of this on the day works were due to start. Given this further lack of communication linked to the insurance claim grounds maintenance work, the landlord should have examined how it could avoid a similar incident in future. Its failure to do so was not in line with the Ombudsman’s Dispute Resolution Principles to ‘learn from outcomes’ and meant that it did not offer sufficient redress to the resident.
The resident has linked this incident to the departure of the previous garden contractor and suggested that the landlord apologise to them. Based on evidence seen by this Service, the plant removal may have impacted the contractor’s decision. However, the contractor’s comments indicated that there were other factors in its decision and it is not within the remit of this Service to assess a landlord’s obligations to its contractors.
In summary, the landlord’s decision to remove plants to mitigate against a risk of subsidence was based on the recommendations of appropriately qualified specialists and was reasonable. Although it apologised that it did not adequately communicate the decision to residents, a similar failure occurred a few months later which demonstrated that it had not learned from the earlier service failure. It also failed to answer the resident’s concern that plant types had been removed that were not referred to in the arboricultural report.

Procurement of new contractor

The landlord issued a notice of intention in October 2019 as part of its plan to enter into a new long-term qualifying agreement for ‘gardening and grounds maintenance services’. It invited residents to suggest a contractor and collected their views on the kind of service they expected during a consultation period of more than a month. This was in line with the requirements at notice of intention stage within its section 20 notice procedure and therefore appropriate.
The previous garden contractor gave notice in March 2020 that it would not be continuing to work for the landlord. The landlord was obliged to maintain communal gardens in accordance with the resident’s lease agreement and began to invite companies to tender for a new gardening contract around two weeks later, providing an interim service in the meantime. It therefore took reasonable steps to ensure it could meet its lease obligations once the previous contractor gave notice.
When the landlord sent out invites to tender for the new contract, it provided potential contractors with a summary of the resident’s observations it had collected through the notice of intention consultation. This was a reasonable approach and ensured that resident views were represented and could be built into the contractors’ proposals.
The landlord sent the notice of estimates to residents in May 2020. This included a summary of the notice of intention comments, details of the potential contractors’ proposals, the quotes from these companies and allowed a period of more than a month for residents to offer feedback. These steps were all in line with the requirements at notice of estimate stages within the landlord’s section 20 notice procedure and therefore appropriate.
The landlord notified residents in July 2020 that it had chosen the cheapest option which was in line with its section 20 notice procedure best practice. It has since also demonstrated that its decision was in accordance with the wishes of the majority of consultation responses. The decision to choose the contractor it did was therefore appropriately based on leaseholder feedback which the landlord’s procedures said it had a duty to regard.
Beyond the obligations set out in its section 20 notice procedure, the landlord also demonstrated that it considered the resident’s views during the procurement process by:
1. ensuring that the previous contractor was invited to tender for the new contract
2. writing to residents during the notice of estimate consultation period to clarify the costs of the previous arrangement and inform them that they did not have to express a preference for one of the proposals
3. suspending the commencement of the new contract given the concerns raised by the resident when he raised a complaint
4. attempting to obtain additional assurance about the new contractor by collecting further evidence of its competence (through photographs and client testimony) and questioning the information on its website.

The landlord therefore demonstrated that it took reasonable steps to ensure the resident’s views were considered and investigated.

In summary, the landlord followed its section 20 notice procedure appropriately and made a reasonable decision in the appointment of a new gardening contractor. Although this decision was not the resident’s favoured option, the landlord did give appropriate regard to his concerns.

Complaint handling

The resident wrote to the landlord on 24 April 2020. Although he did not state that this was a ‘complaint’, it was a clear expression of dissatisfaction with the landlord’s actions, alleging ‘disregard for good practice’ and ‘rudeness’ and suggesting that the landlord apologise and award compensation. Given that this met the definition of a complaint within the landlord’s complaints policy and that the concerns raised by the resident warranted investigation, it was appropriate for the landlord to log a complaint. This was also in line with the Ombudsman’s Complaint Handling Code recommendation that landlords ensure that residents do ‘not have to use the word complaint in order for it to be treated as such’.
The resident raised immediate concerns with this approach. The landlord promptly acknowledged these concerns, ceased the complaints process on this occasion and subsequently agreed with the resident that it would listen to the resident’s preference in future. This was a reasonable approach for the landlord to take and demonstrated that it was willing to use its discretion to act outside of the complaints policy where the resident requested this.
Nevertheless, the resident did submit a complaint on 15 July 2020. He raised a series of concerns and listed outcomes that he sought. The landlord responded to the complaint on 29 July 2020 – this was within the 10 working days required within the complaints policy for a stage one response so was an appropriate timescale.
The landlord offered a lengthy stage one complaint response that answered each area of concern raised by the resident and gave its view on each desired outcome. This demonstrated that the landlord considered each point raised by the resident and at least offered the resident explanations even where his favoured outcomes were not met.
The resident asked to escalate the complaint on 30 July 2020. The reasons for escalation were essentially that he believed the stage one complaint response was insincere. The landlord sent its final complaint response on 24 August 2020 – this was within the 20 working days required for a final complaint response within the landlord’s complaints policy so was provided within an appropriate timescale.
The final complaint response addressed the removal of plants, the treatment of the previous gardening contractor, the tender for the new contract and the landlord’s complaint handling. These were the central themes of the resident’s dissatisfaction so it was appropriate for the landlord to offer a review of these matters.
In summary, the landlord considered the resident’s dissatisfaction in line with its complaints policy and offered responses within an appropriate timescale that demonstrated it had investigated each point of dispute. It initially logged an expression of dissatisfaction as a complaint but took reasonable steps to reverse this when the resident said that he disagreed with the approach.

Determination

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the removal of plants.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of:
1. the procurement of a new estate gardening contract;
2. the related complaint.

Reasons

The landlord failed to communicate with residents adequately on its decision to remove plants and has not demonstrated that it learned from this failure.
The landlord handled the procurement of the new estate gardening contract in line with its obligations and considered the resident’s concerns within this process.
The landlord handled the resident’s complaints appropriately by responding within required timescales and investigating his areas of concern.

Orders

The landlord to review its handling of the plant and lime tree removals and write to the resident to explain what lessons it has learned to ensure it is able to provide more notice should insurance-related works be required in future.

The landlord should confirm compliance with this order to this Service within four weeks of the date of this report.

Recommendations

The landlord to advise the resident when it expects to be able to reinstate plants to the area where plants were removed in March 2020 and explain why there has been a delay in doing so.

The landlord should confirm its intentions in regard to complying with this recommendation to this Service within four weeks of the date of this report.