Islington Council (202108137)

REPORT

COMPLAINT 202108137

Islington Council

6 September 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

The complaint is about the landlord’s response to the resident’s request for repairs to her garden.

Background and summary of events

The resident is a secure tenant of the landlord’s property. The property is a two-bedroom ground floor flat with a garden. The resident occupies the property with her partner and daughter. She has informed this service that her partner suffers from multiple sclerosis.

The conditions of tenancy

The conditions of tenancy booklet sets out the rights and responsibilities of both the resident and the landlord. Section 1.1 states that the landlord is responsible for “access paths and steps to individual properties”.

The repairs guide

The landlord’s housing repair guide provides further details about the repair obligations of the landlord and the tenant. It states:
1. “1.7 As set out in your tenancy agreement, Islington Council is responsible for keeping the structure and outside of the property in repair, including: External walls, external doors, external window frames and sills; Drains, gutters, external pipes; Access paths and steps to individual properties”
2. “8.4 Tenants are also responsible for maintaining and repairing elements to the outside of the property including: Your own equipment, such as your own TV aerials etc; Repairs to sheds; Back garden paths”.

Complaints Policy

The landlord’s complaints policy states the landlord has a two stage complaints process, stage one and Chief Executive stage.
The policy states that if a customer says they wish to make a complaint, “it should always be dealt with as a complaint but it is worth asking the customer if they will give the council the opportunity to try and resolve it before it is recorded as a stage one complaint. If the customer agrees to this, the issue should be resolved as quickly as possible (no longer than 10 working days) before it is registered formally as a stage one.
Once the formal complaints process has started, a stage one response should be sent within 21 calendar days of receipt. If a complaint is escalated to the Chief Executive stage, a full response should be provided within 28 calendar days of the complaint being received.

Summary of events

The resident made a complaint to the landlord on 30 October 2020. A copy of the complaint has not been provided to the Ombudsman. However, the landlord summarised the complaint in its stage one complaint response dated 18 November as follow:

“You were in contact with the councils’ Occupational Therapist Team (OT) about your garden, which you stated is “extremely dangerous for my partner, who has Multiple Sclerosis to get about in the garden because it is extremely uneven and there are missing and broken paving slabs all over”. You stated that you were instructed to contact the Repairs Team, which you did. A works order was issued with an appointment on 2 November 2020, to replace 20sqm of paving.

During a pre-inspection on 30 October 2020, you were informed that 10 paving slabs would be replaced, which you considered is not what was identified previously or agreed. Therefore, you cancelled the appointment for 2 November 2020 and asked that the slabs are replaced and submitted your complaint.”

The landlord’s response then explained how the complaint had been considered, and the conclusions which had been reached. It said:
1. The resident had initially contacted the OT team; however, due to the pandemic they could not prioritise her request to assess the garden. The resident had advised that the OT team had advised her to report the issue to the Repairs Team so that a repair could be carried out in the meantime.
2. The works order which was raised on 21 September was issued with a description relating to the paving on the pathway in the back garden. It was recorded that it was “very uneven”, and some slabs were missing – and broken – which was causing a trip hazard.
3. The job was assigned to one of its contractors, and a pre-inspection took place on 20 October. Following the attendance, the contractor contacted the landlord to advise that the resident had refused the proposed repair, as such the works order was cancelled.
4. During a conversation on 12 November, the resident confirmed that as she was a trainee teacher she could not take time off work for what she considered was an ‘ad hoc repair’.
5. Further discussion had taken place internally, and it was confirmed that the repairs team could only carry out repairs, and not works that would be an improvement. As such, the contractor had been correct when explaining the proposal to remove 20sqm of paving and relay it – replacing the broken slabs which had been assessed to be about 10.
6. However, it appeared that the operative who attended may have misinterpreted the instruction as the resident had advised that he had been informed that it was unlikely that the paving slabs could be reused. If this had been the case, it would have expected the works to have started and for the contractor to submit a variation of works for approval if more paving slabs were identified as being needed during the works.
7. The complaint had not been upheld; however it emphasised with the resident’s position and considered that the contractor could have managed the resident’s expectations better.
8. It has asked the repairs team to re-issue the job and the works order had been raised on the same day. The contracts manager would be attending with the contractor to agree the works required; and it wished to reassure the resident that the patio would have an even surface with all trip hazards removed.
On 18 December 2020, the resident emailed the repairs team leader, copying in the complaints department. She explained that during the inspection in November it had been agreed that the entire garden would need to be repaved, with adequate draining made. It had been a few weeks since the inspection and she had learnt from the contractor that the landlord was unhappy with the quote it had received. The resident explained that she had been chasing a response from the repairs team leader, and had since been informed by another member of staff that the landlord was only responsible for a “small area outside the patio doors”. She therefore wished to query why the decision had been changed.
The resident chased the matter on 12 January 2021 as she had not received a response. Dissatisfied with the lack of response, the resident sent a further email on 13 January and asked for the matter to be treated as a formal complaint. In her email, the resident explained:
1. A member of the occupational therapy team had contacted her that day to ask what was happening. The resident said she explained what had happened, and that the therapist made further enquiries with the landlord that same day. She said that the therapist later informed her that as the paving had not been put in place by the landlord, it was not its responsibility.
2. She did not accept that the landlord had not laid the paving. This was on the basis that neighbouring houses had the same style slabs.
3. The disrepair was the landlord’s responsibility, and she was only responsible for internal repairs – not external.
The landlord issued a stage one response to the complaint on 4 February. It said:
1. The resident had informed the customer service team of a delay carrying out works to repave her back garden.
2. It had investigated the matter and could confirm that a works order was raised on 18 November 2020. One of its contractors attended the property with the repairs team leader to carry out a joint inspection, and some paving works were recommended.
3. The resident had been in touch on a number of occasions to enquire about the works after the inspection. On 15 December, the resident had been informed that the quotation submitted by the contractor had been declined by the repairs team leader. The resident was also informed that its responsibility as her landlord was only in relation to a small section of the garden – and it was the works in relation to this area that had been approved.
4. It had discussed the matter internally, and the repairs team leader wished to apologise for the delay in responding to the resident’s emails. On receipt of the quotation, the repairs team leader had contacted the necessary department to confirm what the landlord’s repair obligation was, and he was advised that it was only responsible for “access path and steps to individual properties”. It followed that the repairs team leader was not able to authorise works to pave the entire garden. It had attached a copy of the terms relating to its repairs responsibilities for the resident’s reference.
5. It had tried to contact the resident on 4 February by telephone to discuss the above, but had been unsuccessful in making contact. If the resident wished for the approved repairs to be completed she should make contact with the repairs team so that a suitable appointment could be scheduled.
6. The complaint was partially upheld on the basis of poor communication from the repairs team. However, the information that the resident had been provided with in relation to its repair obligations was correct.
7. If the resident was dissatisfied with the outcome, or felt that parts of her complaint had not been addressed, the matter could be considered further.
The resident replied on 13 February 2021. She said:
1. That she wished to highlight her previous comments that the gardens of neighbouring properties had been fully paved by the landlord.
2. The tenant of a neighbouring property had also given her text messages showing the jobs that were raised in respect of her garden. The resident attached these photographs, together with photographs of the neighbouring property’s garden.
3. The landlord had also re–paved the entire front garden of the neighbouring property; and it had therefore set a precedent.
4. The disrepair within her garden was in contravention of Health and Safety laws, especially given the vulnerability of her partner and that they had a young child.
5. She did not feel that the landlord had fully addressed her complaint, and wished for it to be considered further.
6. The landlord had asked what she was hoping for to resolve her complaint. The resident explained that during the inspection two possible repair options had been discussed. One was to lower the drain lift and replace 21sqm of paving; the second was to raise the drain height and replace 21sqm. She said that either of these two options being carried out would resolve the matter.
The landlord wrote to the resident on 4 March following a review of the stage one complaint. It said:
1. On receipt of the resident’s request for further consideration of her complaint, the matter was passed to the repairs team.
2. The complaint – and specifically reference to the works at neighbouring properties – was reviewed by a manager. He commented that he could not see a relevant works order for one of the resident’s neighbouring properties. In relation to the other neighbouring property, it had been inspected by a surveyor who had since left the business; however, an order to carry out such works should never have been raised.
3. It wished to draw the resident’s attention to the repair guide which highlighted the responsibilities of residents. This states that garden repairs are the responsibility of the tenant.
4. If the resident still remained dissatisfied, she could escalate her complaint to the Chief Executive stage.
On 4 March, the resident confirmed that she remained dissatisfied as she believed a precedent had been set given that the landlord had paved the gardens of two neighbouring flats. While the landlord said that it did not carry out such works, it had done so previously. She added that as the contractors had identified that works were needed throughout the garden she wished to escalate her complaint.
The landlord issued its Chief Executive stage complaint response on 28 June. Within this it provided a summary of the events that had transpired since November 2020. It said:
1. It acknowledged that its response was delayed, and confirmed that it had been unable to reply in line with its service standards. It therefore wished to offer the resident £50 in recognition of the delay.
2. It noted that the resident chased matters following the inspection in November 2020, and that she had spoken with one of the occupational therapists too.
3. On receipt of the quotation in November 2020, the repairs service team leader consulted the Homes and Communities team, and he was advised that its repair responsibility was only in relation to access paths and steps leading to individual properties – and not the entire garden. At this stage, it would have been good practice for the team leader to update the resident and to explain its position given the conditions of her tenancy. It wished to apologise for any misunderstanding caused as a result of the failure to do so.
4. It acknowledged the evidence the resident had provided in relation to her neighbour who had similar work done. However, it was unable to comment on other cases owing to the provisions of GDPR. Nevertheless, as it had mentioned, it was not responsible for laying or replacing paving within the entirety of a tenant’s garden.
5. It acknowledged how important a level garden surface was to the resident in light of her family circumstances. However, as previously advised, it’s responsibility as described in the repair guide did not extend to fully paving back garden.
6. It had partially upheld the complaint on the basis of a “lack of clarity”, and failure to keep the resident informed when it was decided that the repair was not within its remit.
7. The resident could refer her complaint to the Housing Ombudsman Service if she remained unhappy with the response.
The resident subsequently contacted her local MP and referred her complaint to this Service. She said that she believes she has been “messed around” by the landlord and that the garden is “extremely dangerous and unsafe”.

Assessment and findings

The tenancy conditions and repairs guide, as detailed above, set out the rights and responsibilities of both the landlord and the resident. These clearly detail that the landlord is responsible for access paths and steps to individual properties. Neither the tenancy conditions nor the repairs guide places any responsibility on the landlord to repair or maintain the back garden as a whole. As such, it was appropriate for the landlord to inform the resident that it was only responsible for repairing the patio area immediately outside the property, and not for the paving to the entire garden.
In response to the concerns that were initially raised by the resident in October 2020 about the proposed scope of works, the landlord arranged for a further inspection to take place. This was a joint visit attended by the contractor and the repairs team leader. As there was some uncertainty about what had transpired during the previous attendance and once the works order was raised, it was appropriate for the landlord to arrange a joint visit so that the repairs could be properly identified without any miscommunication.
The further inspection took place as arranged and during the attendance the contractor and repairs service team leader discussed two proposals that related to the entire garden. Following the attendance, there was a lack of communication and the resident had to chase the matter to enquire what works had been approved and when they were likely to take place. The resident was subsequently informed that the contractor’s quote had not been approved, and that the landlord was only responsible for repairing the area outside the patio doors. While the landlord’s decision was correct given the tenancy conditions, it had delayed in communicating this information and its decision to the resident.
When the complaint was considered at Chief Executive stage it was appropriately acknowledged that good practice would have been for the repairs service team leader to update the resident once he had confirmed the landlord’s repair obligations – and that these did not extend to the garden in its entirety. The landlord acknowledged that the resident would have been disappointed to learn that its repairs obligation did not extend to the rest of the garden and that it should reasonably have confirmed this sooner.
However, when considering the complaint and events as a whole, it would have been reasonable for the landlord to consider offering the resident some redress for the loss of expectation. The resident had been present during the inspection and was aware that two potential repairs relating to the entire garden had been proposed. It was only on chasing the matter that she learnt that the landlord was in fact only responsible for a small area of the garden. It would have been appropriate for the landlord to properly acknowledge that the resident’s expectations had been raised; and that she had been inconvenienced in having to chase the repair between November 2020 and January 2021. That the landlord did not take such steps was a failing in the circumstances.
The evidence provided to the Ombudsman shows that during the course of the complaint, the landlord had appropriately discussed the garden and proposed works with the occupational therapist given the resident’s concerns about her partner’s safety. She confirmed that any OT recommendations following an assessment would relate to the provision of equipment or minor adaptations that would enable the resident’s partner to access the garden more easily – and to ensure that the area immediately outside the property was safe. However, they would not extend to works to the garden as a whole – or drainage. The evidence provided to the Ombudsman is not clear as to whether the resident has since requested an OT assessment for her partner. If she considers that this is necessary, this should be requested accordingly.
The resident’s comments in relation to the paving of neighbouring gardens have been noted. The landlord addressed this in part when responding to the complaint, but advised that it was limited in relation to how much information it could share owing to GDPR provisions. It was appropriate for the landlord to try to address the resident’s comments within its complaint response. However, as detailed above, the landlord’s obligation in relation to the resident’s garden is to repair or maintain access paths and steps leading to the property. Any repairs required to the resident’s property or the area(s) leading to it, would have to be considered in isolation of works that may or may not have been carried out at neighbouring properties. It follows that the landlord’s decision in respect of the resident’s garden is in line with its contractual obligations, and there was no failure by the landlord in declining to carry out works to the entire back garden.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in the landlord’s response to the resident’s request for repairs to her garden.

Reasons

The landlord’s decision regarding the works to the garden was correct, and in line with its contractual obligations. It was also appropriate for the landlord to acknowledge that its communication should have been better following the attendance at the property in November 2020. However, in the circumstances, it would have been reasonable for the landlord to consider offering the resident some redress for the loss of expectation and for the inconvenience that she had been caused as a result of its actions.

Orders

Within four weeks of the date of this determination, the landlord should pay the resident a total of £150 compensation comprised of:
1. £100 for the loss of expectation.
2. £50 for the inconvenience caused by the lack of communication surrounding the repair between November 2020 and January 2021.

Recommendations

Within four weeks of the date of this determination, the landlord should:
1. Contact the resident to arrange the repairs which had been identified as its responsibility.
2. Pay the resident the £50 which was offered during the complaints procedure if this has not been previously accepted.