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Cottsway Housing Association Limited (202000991)

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REPORT

COMPLAINT 202000991

Cottsway Housing Association Limited

12 April 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 complaint is about:
    1. The landlord’s response to the resident’s report of her neighbour’s shed causing damage to her garden and restricting natural light to her property.
    2. The landlord’s handling of the associated complaint.

Background and summary of events

Background

  1. The resident is the shared owner of the property and commenced her lease agreement with the landlord on 30 May 2018. The property is a two-bedroomed house. Her complaint has been brought by her representative; both parties will be referred to within this report as ‘the resident’.
  2. The landlord’s repairs and maintenance webpage confirms that, if the resident lives in a house, and is a shared owner or leaseholder, she is responsible for all the repairs.
  3. The landlord’s complaints and feedback process provides for a two-stage procedure where it aims to provide a resolution within ten working days of the stage one complaint and within five working days of the final stage complaint.

Summary of events

  1. The resident reported to the landlord on 16 December 2019 that she was experiencing flooding in her garden and she attributed this to her neighbour’s newly constructed outhouse which she believed was causing the waterlogging in her garden.
  2. After correspondence between the resident and the landlord in January 2020, the landlord informed the resident on 5 February 2020 that it had issued a three-month notice to her neighbours to investigate her reports of leakage and for any remedial works identified to be carried out.
  3. The landlord carried out an inspection of the resident’s and the adjoining neighbour’s gardens on 28 February 2020. It found that the flooding was part of a “larger issue due to poor drainage consideration of the rear gardens when they were constructed”.
  4. The landlord submitted a claim about the garden drainage to the National Housebuilding Council (‘NHBC’) on 3 March 2020 and advised the resident two days later about this. It informed her that her neighbour was willing to repair a gravel board to their shared fence and this was left to the two parties to negotiate. 
  5. The resident contacted the landlord for updates on 11, 23, 24 and 26 March 2020 where it informed her that it was awaiting a response from the NHBC.
  6. The resident contacted the landlord on 20 March 2020 to make a complaint as she wanted a resolution for the damage she had reported to her garden from her neighbour’s outhouse.
  7. The landlord offered mediation to the resident on 2 April 2020. Due to the deterioration of her relationship with her neighbour; the resident accepted this offer on 6 April 2020.
  8. On 16 April 2020, the landlord wrote to the resident to “update [her] on [her] complaint about [her] neighbour’s shed”. It confirmed that it had sent her neighbour a three-month notice to request evidence of their actions. The landlord advised that it had granted its retrospective consent for the erection of the outhouse which was conditional on their completion of agreed works once the coronavirus lockdown had lifted. It relayed that it had received a response from the NHBC, which had declined to assist with the issue of the waterlogging as this had occurred more than three metres from her property. The landlord suggested that she privately engage a suitably qualified professional if she continued to experience issues related to water logging.
  9. In response to an email from the resident on 29 April 2020, the landlord replied the following day to reiterate the content of its letter on 16 April 2020 and confirm that the problem of waterlogging was “not unique to [her] garden”.
  10. The complaint was referred to this Service by the resident’s MP on 21 May 2020.  After our subsequent enquiry with the landlord on 16 July 2020, it confirmed to us on 31 July 2020 that it would not be progressing the complaint any further as the neighbour’s outhouse was compliant with permitted development, as it had received confirmation from the local authority’s planning department that the outhouse did not require planning permission. It also advised that the NHBC could not assist with the waterlogging as it was more than three metres from the property and the neighbour’s outhouse did not affect the light into the resident’s property.
  11. An internal email from the landlord on 27 July 2020 detailed the observations made by its surveyor when it inspected the properties on 28 February 2020. The conclusions in the email supported the landlord’s statement to this Service above on 31 July 2020.
  12. On 12 August 2020, the landlord confirmed to this Service that it had not raised a formal complaint for the resident, asserting that it had looked into her reports and had completed its investigation. On 2 September 2020 we requested that the landlord raise a stage one complaint about its response to the resident’s request for it to repair damage to her garden caused by her neighbour’s erection of an outhouse. The complaint also included its response to her report of the impact of the outhouse on the amount of natural light to her property.
  13. The landlord issued a stage one complaint response to the resident on 15 September 2020 in which it confirmed that it was satisfied that the neighbour’s outhouse was “within the required measurements”, did not require planning permission, and did not affect the sunlight entering her property. It explained that the waterlogging in her garden was the result of the shape of the ground at the end of the garden.
  14. The landlord relayed the NHBC’s statement that gardens must be well drained within three metres of the property and the reported waterlogging was seven and half metres away from the property. It explained that it had inspected the issue and had sought legal advice which had confirmed that it had done what it could; therefore, it confirmed that it would not offer any further resolution on the matter.
  15. The landlord confirmed that it had spoken to the resident that morning and acknowledged that she wanted to matter escalated to the next stage of its complaints procedure.
  16. The landlord issued its final stage complaint response to the resident on 22 September 2020. In this, it reiterated that its surveyor had found that the cause of the waterlogging in her garden was a “fundamental problem” with the rear gardens due to a low spot which formed a “bowl” which led to flooding in excessive rainfall. The landlord did not accept that the neighbour’s outhouse was the cause of the flooding.
  17. The landlord confirmed that the NHBC declined its claim due to the waterlogging occurring more than three metres from the property. It also rejected the resident’s claim that the neighbour’s outhouse was having an effect on the natural light entering the resident’s property as the structure was “at the bottom of [her] neighbour’s garden and not affecting light into [her] house”. It confirmed this was its final response to the complaint.

Assessment and findings

The landlord’s response to the resident’s report of her neighbour’s shed causing damage to her garden and restricting natural light to her property

  1. As the resident reported that damage was being caused to the property by her neighbour, it was appropriate for the landlord to investigate this, as the property was its asset. It is noted that it contacted her neighbours on 17 and 28 January 2020 to investigate the construction of their outhouse and carried out an inspection of the affected area of the garden on 28 February 2020. These were reasonable actions for the landlord to take to ascertain the cause of the reported damage.
  2. Once the landlord identified that there was a “fundamental” issue with the level of the rear gardens which led to flooding for several properties, including the resident’s, it was reasonable for it to make a claim with the NHBC under its warranty. When the NHBC confirmed that it could not assist with the waterlogging, which occurred more than three metres away from the property, it was reasonable for the landlord to advise the resident on 16 April 2020 to seek a private contractor to remedy this. This was in accordance with its repairs and maintenance webpage, above at point 3, which confirms that shared owners living in houses are responsible for all repairs.
  3. It is reasonable for a landlord to rely on the opinions of its appropriately qualified staff. Therefore, it was reasonable for it to advise the resident on 22 September 2020 that the natural light into her property was not affected by her neighbour’s outhouse, based on the findings of its surveyor when it inspected the gardens on 28 February 2020. In conclusion, the landlord took reasonable actions to investigate the damage to her garden and the effect of her neighbour’s outhouse on her property and there is no evidence of any failing on its behalf.

The landlord’s handling of the associated complaint

  1. The resident first raised the matter of the damage to her garden on 16 December 2019 and contacted the landlord on 20 March 2020 to make a complaint about the handling of her concerns. However, it is evident that it did not progress her dissatisfaction through its complaints procedure. This was despite it writing to her on 16 April 2020 to update her on her “complaint”. The landlord did not raise a formal complaint until the Ombudsman’s intervention on 2 September 2020, and the resident did not receive its final response until 22 September 2020.
  2. While the landlord’s stage one and final responses were issued to the resident within the timeframes specified in its complaints and feedback process, above at point 4, it was a failing on the part of the landlord that it did not acknowledge her complaint made on 20 March 2020. This is at odds with our Complaint handling Code which states that “a landlord shall accept a complaint unless there is a valid reason not to do so”; no reason was provided to this Service by the landlord for not dealing with the resident’s complaint as a formal complaint.
  3. Therefore, the landlord’s delay in raising the resident’s dissatisfaction as a formal complaint is likely to have caused detriment to her by causing uncertainty, inconvenience, and time and trouble in pursuing a resolution. In respect of this failing, the landlord should pay £50 compensation to the resident. This is in line with our remedies guidance where a failing has occurred “which had an impact on the complainant but was of short duration and may not have significantly affected the overall outcome for the complainant”.
  4. It should be highlighted that awards of compensation made by the Ombudsman are not intended to punish the landlord, nor is it to reimburse the resident’s costs in the way that an insurance claim might. Compensation is awarded to recognise and proportionately ‘put right’ any likely distress or inconvenience caused to the resident by any failings exhibited by the landlord.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s report of her neighbour’s shed causing damage to her garden and restricting natural light to her property.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the associated complaint.

Reasons

  1. The landlord made reasonable efforts to investigate and remedy the damage the resident reported to her garden, that were within its responsibility to carry out.
  2. The landlord failed to raise a formal complaint, despite the resident’s request.

Orders and recommendations

Order

  1. The landlord is to pay £50 compensation to the resident within 28 days.

Recommendation

  1. The landlord is to carry out refresher training with its complaint handling staff and assess its complaint handling procedures against our Complaint Handling Code.