Gateway Housing Association Limited (202118564)

REPORT

COMPLAINT 202118564

Gateway Housing Association Limited

8 April 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 resident has complained about the landlord’s:
1. handling of the resident’s request to remove the tree in their garden.
2. response regarding the resident’s reports of its contractor’s conduct.
3. complaint handling.
The resident has also complained about discrimination by the landlord’s contractor.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint, or aspects of a complaint, will not be investigated.
As part of their complaint about the landlord’s contractor, the resident raised concerns about potential discrimination by the contractor. The landlord responded to this aspect of the complaint, confirming its view that there was no evidence of discrimination.
Paragraph 39 (i) of the Scheme states that the Ombudsman will not investigate complaints which, in his opinion, “concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure”.
The Ombudsman cannot make a finding of discrimination, but this is a matter which can be decided by a court. The resident’s complaint about discrimination by the landlord’s contractor is therefore not within the Ombudsman’s jurisdiction to investigate. If the resident remains of the view that there was potential discrimination or an equality issue that occurred during a contractor’s appointment on 15 October 2020, then they might wish to contact the Equality Advisory and Support Service (EASS), who would be able to advise them on where and how they might be able to progress those concerns. However, this investigation has assessed the landlord’s response to the resident’s reports of its contractor’s conduct.

Background and summary of events

Scope of Investigation

The landlord has set out a chronology for this Service of the reports the resident made to the landlord about the removal and/or trimming of the tree in August 2018. However, this investigation has not been provided with any further evidence that a formal complaint was raised about the landlord’s response to the resident’s reports of the tree, until 15 October 2020.
Paragraph 39(e) of the Housing Ombudsman Scheme sets out that the Ombudsman will not consider complaints that, in his opinion, “were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising”.
As there is no evidence that a formal complaint was made and progressed by the resident about the landlord’s response regarding the tree in 2018, the landlord’s response to these events have not been investigated. This investigation accordingly focuses on the events leading to and contemporaneous to the complaint that was brought to the landlord’s attention on 15 October 2020.

Background

The resident is a tenant of the landlord, in a four-bedroom terrace house. The tree in question is in the resident’s rear back garden and on a boundary between the resident and their neighbour. The resident as well as her spouse complained and corresponded with the landlord throughout the complaint. Both parties are referred to as “the resident” throughout this report.
Within the landlord’s tenancy agreement, part 3(8) v, obliges the resident “to keep any external areas included in the Premises, including a garden, clean, tidy, and clear of rubbish or other potential or actual sources of nuisance”. Furthermore, its New Tree Strategy, applicable from April 2019, states that it will maintain residents’ trees by removing or pruning the tree if dead, dying or dangerous or if the removal of the tree is involved in a management programme or improvement project.
The landlord‘s Complaints and Compensation Policy applicable at the time of the complaint states that a Stage One response will be provided within 10 working days and 15 working days for its Stage Two response. This policy also states the landlord will pay £5 compensation per day up to a maximum of £50 regarding a repair service failure or loss of amenities.

Summary of events

In the landlord’s chronology of events to the Service, it states that on 28 August 2018 the resident called the landlord regarding the tree in her back garden and requested an update regarding what it could do as the branches were overgrown. On 18 September 2018, the resident called the landlord about the tree again and the landlord contacted its Asset department to assess whether the tree could be trimmed.
The resident contacted the landlord again on 14 November 2018, as they were informed that the landlord would return to the property to trim it. The landlord’s notes from its system advise that it explained to the resident that it was doing a survey. From all the evidence provided it is unclear whether the landlord carried out this survey. However, it noted that the tenant believed that the contractor would return. Therefore, the landlord emailed the Asset Management department to investigate this further. On 20 November 2018, the resident called the landlord and it advised that they had a survey, and the tree was part of a programme. Again, the landlord noted that it asked the Asset team if the tree could be cut down and to contact the resident if so. The landlord informed the resident that if they did not hear from the Asset team, then the tree would be part of the programme.
The resident was burgled in December 2019, although the exact events of the burglary are not known. On 8 January 2020, the landlord’s antisocial behaviour coordinator emailed the resident and landlord staff that it had conducted a site visit that morning after the recent burglary of the property. The coordinator said he advised the resident on how to make the rear aspect of the property safer and questioned if the “large overgrown tree in the garden” was subject to a local authority tree preservation order as the tree was wild and needed heavy pruning by a qualified tree surgeon. The landlord’s coordinator mentioned his concern that the tree could cause subsidence, due to the size and proximity to the property. The coordinator also advised that it needed to erect wrought iron fencing to improve the overall security for the resident but questioned if this would require heavy pruning of the tree to facilitate this and provided photographs of the tree.
The resident emailed the landlord on 10 January 2020 and requested an update regarding any progress that was made in response to this email as a matter of urgency because they felt vulnerable living at the property. However, it is unclear whether the landlord responded.
The landlord’s staff corresponded with each other on 6 August 2020, regarding the resident’s request for a call-back and an update regarding the tree. The resident emailed the landlord on 10 August 2020, stating that they tried to contact the landlord the previous week and requested an update regarding the pruning of the tree that was raised last year that was currently pending.
The landlord informed the resident in an email of 11 August 2020 that further to the inspection and conversation with the resident of the day before, it would not be removing the tree as it was a significant local tree. The landlord advised that it would remove the tree branches that were protruding from their garden and their neighbour’s garden. It confirmed that following the removal of the branches, it would remove slabs around the base of the tree that had been compromised. The landlord promised to “make good” the area of the garden and stated that it instructed its contractor to carry out these works and to contact the resident regarding an appointment to assess the tree.
The landlord assured the resident that after the contractor’s visit, the contractor would carry out planning checks with the local council to decide if there were any planning restrictions concerning the tree to assess if it was in a conservation area or had a Tree Preservation Order. The landlord advised that if it required a planning application, the contractor would submit this, and the decision could take six to eight weeks to be determined. The landlord said that if there were no restrictions, “it will take three weeks for the branch to be removed”. The landlord said it intended to remove branches (and not the whole tree), but that it would first carry out planning checks. It then advised how long it was likely to take for the branches to be removed.
The resident called the landlord on 14 October 2020 as they had not received a call from the tree contractor. The landlord advised that it would contact the resident back regarding this. An appointment went ahead on 15 October, although the resident complained that they had not been made aware of this prior to their call of 14 October.
On 15 October 2020, the resident emailed the landlord a formal complaint. The resident complained that:
1. The second contractor who attended was over two hours late.
2. The contractor told the resident to keep a distance, although the resident noticed that he was at a closer distance to the resident’s neighbour.
3. The contractor kept cutting him off in conversation or did not talk or engage with them.
4. The contractor made a comment saying, “you paying for this work”, said that he would stop working if he didn’t leave and pointed a finger and told him to “leave”.
5. They contacted the landlord twice regarding this incident and got an apology on the contractor’s behalf but wanted the work to be completed and undertaken at an acceptable standard.
6. Chasing the issue regarding the tree had caused stress and had been ongoing since 2019.
On 20 October 2020, the landlord provided its Stage One complaint response and partially upheld the complaint. The landlord said that it had contacted the manager of the contractors and:
1. The contractor was late to the site due to an accident and the landlord apologised regarding this.
2. The manager informed the landlord that the contractors were professional, and no discrimination took place. The landlord said the contractors received conflicting instructions from the resident, neighbour and the landlord and were unable to fulfil the resident’s requests.
3. The landlord said that the contractors informed the resident to leave the work area to abide by social distancing measures for COVID-19.
4. The landlord confirmed that the work for the tree was completed but it had requested another appointment to further inspect the tree, to assess if further work was required.
5. The resident was provided with a month to escalate the complaint to Stage Two.
On 19 November 2020, the resident emailed the landlord and requested for the complaint to be escalated. The resident clarified the events that took place and the difficulty they had in chasing and hearing back from the landlord regarding the tree. The resident said:
1. That they reported the burglary to the landlord in December 2019 and had concerns about further burglaries, but this was not taken into serious consideration. The landlord’s antisocial behaviour coordinator assessed that the tree needed to be removed to install an iron fence to prevent further burglaries, but the resident said they had to chase the landlord for updates and for the work on the tree to be carried out.
2. The figs from the tree fell on the resident’s head and caused the resident to slip and fall, causing a nuisance and hurting the resident. The resident said that they were vulnerable and during lockdown were unable to enjoy their garden due to the tree being overgrown and the issues mentioned above.
3. They had no response after they contacted the landlord in January 2020 until they contacted the landlord again in August 2020.
4. On 14 October 2020, they contacted the landlord for an update and to arrange an appointment but discovered an appointment was booked for 15 October 2020, which had to be cancelled then reconfirmed to access the garden. The appointment went ahead after it was confirmed with the resident that day. Nevertheless, the resident was unhappy that the appointment was booked prior to their knowledge and then cancelled to be reconfirmed when the issue was ongoing for a year.
5. They were upset with the way they were treated by the contractor and said the contractor made another comment during the appointment, “why does it matter to you then”, regarding the tree after they confirmed that they were not paying for the work directly themselves. The resident said that they felt this comment insinuated and stereotyped them to be “scroungers”.
6. When they contacted the contractor’s manager, he said he was unable to apologise on behalf of the contractor but was sorry for how they felt as he believed the work requested by the landlord was carried out. The resident stated that he disagreed and provided photos to both the contractors’ manager and the landlord of the tree and further work that was required. The resident believed minimal work was done and they were also waiting for further work on the wall to be placed to prevent burglaries.
The landlord responded on the same day with its acknowledgement letter, which informed the resident that they would receive a response within 15 working days, 9 December 2020.
On 5 February 2021, the landlord sent the resident its Stage Two response and upheld the resident’s complaint. The landlord:
1. Apologised for the delay in its response. It said that its offices were closed due to COVID-19 and there was some confusion as to who was responding to the resident.
2. Stated a “lack of commitment” as it did not inspect the tree works and carry out additional work after it promised to do so in its Stage One response or provide an explanation as to why this could not be done.
3. The landlord apologised for its poor service, lack of communication and inconvenience caused to the resident as follow up actions were not completed or communicated.
4. The landlord offered £100 for the identified service failure and £50 for its initial lateness of its Stage Two response, in line with its complaint procedure.
The landlord did not mention a timeframe for providing this compensation. However, it did note that the compensation may offset any arrears the resident had.
As per the landlord’s records, the resident called on 22 March 2021. Internal emails between staff state that the resident wanted to know if the tree surgeon who attended the property that day was genuine and arranged by the landlord. In this email, the landlord said that it believed the contractor was genuine but wanted to confirm this prior to advising the resident as there were no notes on the system to be certain.
The landlord noted that on 30 March 2021, the resident called again about the tree surgeon who attended the property. The landlord confirmed that the contractor was genuine during this call. The resident enquired about a complaint they made because they had not received a response or an update. The landlord responded to the resident via email and attached the Stage Two response again on 16 April 2021. The landlord apologised that the resident did not receive it when it was sent out to them and noted that some time had passed since its initial communication and confirmed that its actions would be reviewed by the Head of Service and that the Customer Service team would arrange the compensation to be provided by cheque.
On 21 April 2021, the landlord’s staff corresponded via email and advised that the resident was not satisfied with the pruning of the branches on the tree and requested an inspection for the next week to assess the tree. The next day, the landlord’s staff confirmed an appointment for 29 April 2021. The landlord confirmed the appointment went ahead. An internal email of 7 May 2021 between landlord staff indicates a “marked area in red” on a photo of where the resident wanted to cut the branches on the tree. On 20 May 2021, the landlord emailed the resident and informed them that this information was sent to its tree surgeon and the tree would be cut to the marked area.
The resident contacted the landlord on 8 July 2021, with an email attachment from the Council. The Council stated that it had not been informed of the works the resident mentioned (it did not mention what these works were) and that further evidence was required for the Council to investigate this further. Internal emails between landlord staff at this time detail that it had made an application to the Council to prune the tree as it considered that it was protected with a Tree Preservation Order, but it was unsure if it was sent to the correct department. In this correspondence, the landlord discovered that the tree was not protected with a Tree Preservation Order but was in a conservation area. There is no evidence that the landlord responded to the resident’s email.
The resident referred the complaint to this Service in November 2021 and said that the landlord had not provided the compensation it offered in its Stage Two response, had not provided an update, or cut the tree.
The landlord contacted the resident on 23 December 2021 and provided an update that it was waiting for the Tree Surgeon to get a decision from the Council to cut the tree. On 4 January 2022, the landlord raised a job to cut the branches of the tree back to the marked area in red to resolve the complaint but did not clarify a date or time for this appointment. It is not clear from the evidence provided whether the tree branches were cut to the marked area since this email or if the compensation that was offered to the resident was paid.

Assessment and findings

Handling of the resident’s request to remove the tree in their garden

The resident was a victim of a burglary in December 2019 and the landlord’s antisocial behaviour coordinator made a site visit to the property in January 2020. He raised concerns and questioned if the tree had to be pruned as it could cause subsidence to the property and was preventing a fence from being installed, to improve the security of the resident’s property. Although the coordinator was not appropriately qualified to make decisions on subsidence and pruning, he seemed to be aware of potential barriers that made the removal of the tree not straightforward, as he asked if there was a tree preservation order in place.
The burglary appears to be the driver for the queries from the resident in 2020 about the tree. The landlord did not reasonably respond or confirm exactly what it would do regarding the resident’s concerns and coordinator’s request, until the resident chased the landlord. This was unreasonable given the coordinator and resident’s concerns about security at the property.
The tree met the qualifying requirements for its New Tree Strategy for the landlord to be responsible to remove or prune the tree as the tree was considered to pose a security risk and possibly cause potential damage to the property, according to the coordinator. Other than this assessment from the coordinator, there was no further evidence that the tree could cause damage or a risk to the resident.
Although the landlord discussed with the resident about making an appointment for its contractor to attend to cut the branches of the tree in August 2020, its contractors did not attend until 15 October 2020. This demonstrates a delay in the landlord reasonably investigating and actioning this request.
After this appointment, the resident complained that the landlord did not complete the work as it did not cut enough branches back. From its Stage One response in October 2020, this was addressed as the landlord advised that it would inspect the tree and assess whether any further associated works were required. However, this was not actioned until March 2021. The landlord acknowledged this failure in its Stage Two response in February 2021 and provided an offer of £100 for its service failure.
However, this offer of compensation was not proportionate to the landlord’s failings considering the overall duration of the delay the landlord took in pruning the tree, which covered the period of the coordinator raising concerns about the tree from January 2020 to October 2020, the date of the first appointment it initially pruned some parts of the branches of the tree. This appointment was also chased by the resident and booked without the resident’s consent or awareness until the resident made further enquires and had to get the appointment rebooked causing time, trouble, and inconvenience.
The landlord then took around five further months to inspect the tree and assess any additional work, whilst having promised this appointment back in October 2020, in its Stage One response. Furthermore, after its Stage Two response, the resident had to chase the landlord three more times between March and July 2021, regarding an appointment that was booked but not clarified to the resident and chasing for updates, prior to escalating the complaint to the Ombudsman in November 2021. The branches of the tree were not pruned to the agreed marked area until after January 2022. Therefore, the landlord took over two years to resolve the resident’s issues regarding the tree.
The nature of the complaint is not exceedingly complex, and although the adverse effect to the resident was ongoing, serious detriment was not caused in terms of the resident’s daily needs and requirements. However, the landlord’s omission to provide appropriate updates, correspondence, booking appointments and actioning follow-up works in a reasonable period of time demonstrates that, the handling of the resident’s request to remove the tree was not done so in an appropriate or timely manner. In its Complaints and Compensation policy, it is stated that the maximum compensation for repair service failure and loss of amenities is £50. The landlord appears to have recognised that its service failure amounted to more than this, but it did not recognise all that went wrong and put a plan of action in place to put those things right. This may have mitigated the risk of further failings after the Stage 2 response, including around the issue of making an application to the Council.
From the evidence provided, it appears that the landlord pruned the tree in October 2020 and made assurances that it would prune the tree further without yet receiving permission from the Council. It was only when the resident provided email correspondence from the Council that the landlord followed this up.
Part of the delay in cutting the branches back was due to the confusion and question as to whether the tree was protected with a Tree Preservation Order. It was reasonable for the landlord to verify this with the Council and apply for the branches of the tree to be pruned. The landlord also notified the resident of this back in August 2020 and the timeframe of six to eight weeks for the application. However, there is no evidence of the landlord making enquiries with the Council at that time, and the landlord only discovered that the tree did not have a Tree Preservation Order in July 2021 but in fact was in a conservation area, which still required the permission of the Council to cut. This realisation followed the resident’s pursual of the matter with the Council.
It is unclear exactly when the landlord applied to seek consent to cut the branches upon finding out that the tree was in a conservation area, and it is not clear if or when consent was granted, but there followed a significant period of time, from July 2021 to January 2022, to raise a job to further cut the branches back to the recommended marked area.

Response regarding the resident’s report of its contractor’s conduct

Although this Service cannot make a finding on whether there was discrimination, it can investigate the landlord’s response to the resident’s reports of such conduct. According to the landlord’s Stage One response, it spoke to the contractor’s manager to investigate the resident’s report of the contractor’s conduct during the appointment on 15 October 2020.
However, the landlord has not provided any contemporaneous evidence of its investigation regarding the reports the resident made of discrimination, the comments, and the service provided on the day of the appointment. The Ombudsman requested ‘any records concerning the landlord’s investigation into the conduct of the contractor and the contractor’s version of events regarding the resident’s complaint’, on 10 March 2022. The landlord provided an internal email trail of staff correspondence and email correspondence with the resident but within those emails, there was no evidence or further information regarding the landlord’s enquiry into the resident’s reports. Therefore, the landlord has failed to demonstrate that a thorough and serious investigation into the resident’s reports took place.
In its Stage One response, the landlord advised that it contacted the contractor’s manager and confirmed that there was no discrimination that took place and provided the reasons for its contractor asking the resident to leave the work area and for keeping his distance due to social distancing COVID-19 guidance. However, the landlord failed to be empathic to the reports the resident made of discrimination and rudeness, and it would have been reasonable for the landlord to have apologised to the resident for initially having to raise those concerns, which shows a level of service that was absent in its Stage One response.

Complaint handling

According to the landlord’s Complaints and Compensation policy, the landlord is meant to provide a Stage Two response within 15 working days. The resident requested to escalate their complaint from Stage One on 19 November 2020. The landlord provided an acknowledgement on the same day, informing the resident that it will provide its Stage Two response by 9 December 2020. The landlord did not provide its Stage Two response until 5 February 2021, nearly two months after the due date. The Ombudsman notes that the landlord apologised, explained, and offered compensation of £50 for its initial lateness in providing this response due to its offices being closed because of COVID-19. It is acknowledged that the landlord experienced unforeseen circumstances having to close its offices due to restrictions caused by COVID-19, and it was appropriate that it recognised inconvenience caused to the resident and offered a reasonable level of compensation for its failings.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord’s handling of the resident’s request to remove the tree in their garden.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord’s response to the resident’s reports of its contractor’s conduct.
In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, the landlord has offered reasonable redress regarding the landlord’s complaint handling.
In accordance with paragraph 39(i) of the Scheme, the resident’s complaint about discrimination by the landlord’s contractor is not within the Ombudsman’s jurisdiction to investigate.

Reasons

Handling of the resident’s request to remove the tree in their garden

While the landlord offered £100 compensation for its service failure in its Stage Two complaint response, considering the overall delay the landlord took in removing the branches to the recommended marked area, this compensation does not reflect the adverse effect.
The resident was caused additional trouble, time, and inconvenience by regularly chasing the landlord for updates between the period January 2020 to February 2021, and then again following the Stage 2 response.
The landlord failed to acknowledge everything that went wrong in its final complaint response, and put a plan of action in place to put those things right.

Response regarding the resident’s reports of its contractor’s conduct

The landlord has failed to provide substantial evidence that demonstrates a thorough investigation took place regarding its response to the resident’s reports. The Ombudsman notes that the landlord did attempt to answer and explain its contractor’s conduct in its Stage One response. Nevertheless, the reports made by the resident were not addressed in detail or with empathy within its Stage One response and prior to it.

Complaint handling

The landlord has offered £50 in terms of its initial lateness for its Stage Two response, provided a reasonable explanation and apologised for the delay.

Orders

Within four weeks of the date of this determination, the landlord should pay the resident £300 compensation comprising:
1. The £150 offer of compensation from its Stage Two response if it has not done so already.
2. A further £100 in recognition of the adverse effect caused by the failings in its response to the resident’s request to remove the tree.
3. £50 for the adverse effect caused by its failings in the investigation of the resident’s reports of the contractor’s conduct.