First Choice Homes Oldham Limited (202012538)

REPORT

COMPLAINT 202012538

First Choice Homes Oldham Limited

22 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

1. The complaint refers to:
   1. The landlord’s response to the resident’s request for the decorative flagstones and pathway in her garden to be replaced due to health and safety concerns.

Background and summary of events

2. The resident is a tenant of the landlord. The resident’s garden has a pathway that runs along the back wall of the property to a gate at the boundary fence. The remainder of the garden area is formed of several decorative flagstones with stone chippings.
3. The complaint was raised by the resident and, at times, by her representative. For clarity, this report will refer to both the resident and her representative as “the resident”.
4. On 2 November 2020, the resident emailed the landlord and explained the following:
   1. She reported that when she moved into the property in 2014, the previous owners had painted the decorative flagstones and pathway in the back garden. These had now become slippery and many were broken.  She was concerned that this was a health and safety risk. She explained that the landlord had arranged for the paint to be scraped back previously but felt that a long-term solution was needed.
   2. The resident acknowledged that the upkeep of the garden was her responsibility, but she noted that the pathway and flagstones would be the landlord’s responsibility to repair. She asked the landlord to remove the current flagstones and redo the garden as the weeds underneath were becoming an issue. She said that she would be willing to contribute to some of the costs and asked if there was any budget the landlord could provide to help with this garden work.
5. The landlord’s records show that an inspection was completed on 7 December 2020. It found that the decorative flagstones were within the garden boundary and explained that they would be the resident’s responsibility to maintain under the terms of her tenancy agreement.  
6. The resident raised a complaint on 7 December 2020 and expressed dissatisfaction that the landlord had refused to help replace the flagstones in her back garden, which she maintained were a health and safety risk. She believed that the stones were the landlord’s responsibility and said that they were not fit for purpose.
7. The landlord issued its stage one complaint response to the resident on 17 December 2020 and explained that following the inspection, it had concluded that the paving area which formed a pathway from the resident’s back door to the gates at either side of the boundary fence to the property was not a health and safety risk. It said that as the complaint referred to the area of the garden that was the resident’s responsibility to maintain, any works it undertook to that area would be chargeable to the resident. It said that it would require her prior agreement and a down payment before carrying out the work in line with its re-charge policy. It confirmed that it would not contribute towards the cost of this work. It explained that the resident could ask for the complaint to be escalated should she remain dissatisfied. 
8. The resident remained dissatisfied with this response and asked for the complaint to be escalated on 17 December 2020. She confirmed that the walkway stones were slippery which was a health and safety risk, as were the painted garden stones. She expressed dissatisfaction that the landlord had not contacted her to discuss this matter further and argued that it would be the landlord’s responsibility to provide a resolution.
9. On 24 December 2020 the resident asked the landlord to confirm that her complaint had been escalated to stage two of its process and she had not received a response. The landlord responded on 4 January 2021 and apologised for the delayed response. It confirmed that the complaint had been escalated and it was looking to book a further inspection of the resident’s garden. A further inspection took place on 21 January 2021. The landlord’s records show that it had inspected the paved area and found no defects.
10. The landlord issued its stage two complaint response to the resident on 22 January 2021 and explained the following:
    1. The member of staff who had attended the property on 21 January 2021 had noted that the pathway adjacent to the resident’s back door and the wall was found to be in a good condition with no cracked or displaced paving and did not require replacement at this time. At the time of the inspection, no slip hazards were identified.
    2. The landlord noted that there were patches of paint on the top surface of the paving which had been applied by a previous tenant. It confirmed that this was not an action it would have taken.  It acknowledged that most of the paint had worn away and said that the resident would have to remove the paint themselves if they no longer wanted the stone to be painted.
    3. It confirmed that the main part of the garden was a combination of decorative paving and stone chippings and that these had been placed by a previous tenant. It explained that the resident had said that when she viewed the property this work had already been completed by a previous tenant. At this time, it had removed a plastic garden structure at the resident’s request, but the rest of the property was accepted as seen, this included the garden.
    4. It explained that it would be the resident’s responsibility to alter how the garden appears as she had accepted the garden as it was when she signed the tenancy agreement. It confirmed that it would not be carrying out any remedial works to her garden. It confirmed that she could request to escalate her complaint to stage three of its complaints process if she remained dissatisfied.
11. The resident asked for the complaint to be escalated to stage three on the same day as the issue had not been resolved and the landlord had offered no compromise. She maintained her position that the pathway and garden flagstones were the landlord’s responsibility.
12. The landlord issued its final complaint response to the resident on 25 January 2021 and explained that a further investigation would not result in a different outcome for the resident. It advised that a complaint could only be escalated to stage three of its process if some of the issues raised were not addressed in the response or actions detailed in the response had not been carried out or completed. It confirmed that it had completed two inspections of the resident’s garden and had not deemed it to be a health and safety risk. It explained again that maintenance of the garden would be the tenant’s responsibility, as stated in the tenancy agreement.
13. On 13 May 2021, following contact from this Service, the landlord said that it would be willing to carry out a disability inspection to see if any adaptations were required as the previous inspections were only in relation to general health and safety. This was proposed to the resident on the same day and she agreed for a disability assessment to be carried out.
14. The resident contacted this Service on 1 June 2021 and said that the landlord had attended the property but did not complete a disability assessment of the garden. She said that the landlord had done an assessment of the internal parts of the property and had asked about beds and sofas which was not relevant to her garden complaint.

Assessment and findings

15. The resident’s tenancy agreement states that the resident would be responsible for maintaining any garden that forms part of their home and keeping it in a clean and tidy condition. The landlord’s repair policy states that the resident would be responsible for repairs needed to garden paths, patios and sheds which had not been provided by the landlord. The landlord would be entitled to re-charge the resident if it completed any repairs that were not its responsibility in line with its re-charge policy.
16. The resident has argued that the decorative flagstones and pathway in the garden would be the landlord’s responsibility to maintain. The landlord has confirmed that it was responsible for the pathway that ran alongside the resident’s property, however, the resident would be responsible for the decorative flagstones in the garden area. This is in line with the tenancy agreement. The landlord acted reasonably by inspecting the garden twice and clarifying its obligations to the resident. It did not identify any health and safety or slip concerns on the pathway and it was, therefore, reasonable for it to take no further action at this stage.
17. Whilst the Ombudsman acknowledges the resident’s concerns about health and safety, the landlord was entitled to rely on the opinions of its qualified staff and contractors concerning the safety of the stones. The Ombudsman has not seen any evidence to confirm that the flagstones would pose a significant health and safety risk.
18. The landlord explained that as the decorative flagstones were placed within the garden boundary, these would be the resident’s responsibility to maintain in line with the tenancy agreement. Before accepting the property, the resident had viewed the decorative flagstones in the garden, laid by a previous tenant, and could have asked for these to be removed at the time if she wished. On accepting the tenancy, the garden became the resident’s responsibility to maintain in line with the tenancy agreement.  The landlord confirmed that it could undertake the work to replace the stones in the resident’s garden but the resident would be responsible for the cost of this work. This is in line with the landlord’s re-charge policy as the work would not be the landlord’s responsibility to undertake.
19. There has been no maladministration by the landlord in respect of its response to the resident’s request for the decorative flagstones and pathway in her garden to be replaced. The landlord acted reasonably by responding to the resident’s health and safety concerns and setting out its obligations.
20. Following the complaint, as part of attempts at mediation through our service, the landlord offered to complete a disability assessment to see whether it could offer any further support to the resident in relation to the garden. The resident has said that this assessment was completed but only covered the inside of the property, not the garden. it is not clear what the landlord’s current position is regarding the stones in the resident’s garden, it is therefore recommended that the landlord completes a disability assessment which includes the resident’s use of the garden, if it has not already done so and explains the outcome of this assessment to the resident.

Determination (decision)

21. 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 request for the decorative flagstones and pathway in her garden to be replaced due to health and safety concerns.

Reasons

22. In line with the tenancy agreement, the resident would be responsible for maintaining the garden at the property. The landlord has acted appropriately by completing two health and safety inspections, during which it found no health and safety or slip concerns.  

Recommendations

23. If it has not already done so, it is recommended that the landlord completes a disability assessment which includes the resident’s use of the garden.