Midland Heart Limited (202221858)

REPORT

COMPLAINT 202221858

Midland Heart Limited

28 March 2024

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 handling of the resident’s reports about the condition of a shared garden.
   2. The landlord’s complaint handling.

Background

2. The resident is an assured tenant of the property. The property is a 2-bedroom first floor flat in a converted house. The resident lives at the property with her 8 year old son who has autism.
3. The property has a back garden. This is shared by the resident and the neighbour in the flat below.
4. On 2 February 2022, the resident contacted the landlord and complained about the condition of the garden. She said:
   1. She had been unable to use the garden ever since she moved into the property in 2016.
   2. It was full of plants and the neighbour stored excessive amounts of items in it. It was “overgrown” and “untidy”, and this was attracting rats which were then getting into her flat.
   3. The condition of the garden meant it was unsafe for her son, who had autism, to play there.
   4. She had reported the problem to the landlord on numerous occasions, but it had done nothing to resolve the issue. The landlord said when she first moved in that it would clear the garden, but this did not happen. Mediation with the neighbour had been attempted but only made things worse.
   5. She wanted the landlord to clear the garden and ensure it was in a reasonable condition in order that her son could enjoy playing outside.
5. The landlord issued its stage 1 response to the complaint on 15 February 2022. It said that it could not investigate the complaint of an untidy garden as this issue first arose in 2016. As such it was outside the 6 month period within which complaints must be brought to its attention as per its complaint policy. It stated that it was the responsibility of the resident and the neighbour to maintain the garden as it was not subject to a service charge. The resident had indicated she would be open to participating in mediation. The landlord said it would contact her to arrange this. The landlord also said it would inspect the property for vermin.
6. Following this, the resident received no further contact from the landlord regarding mediation. The landlord did however inspect the property for vermin. It put bait down and monitored the situation. By 8 April 2022, the landlord was satisfied the bait could be removed and that no further action was required in relation to vermin. It advised the resident of this.
7. On 3 August 2022 the resident asked for a review of her complaint. The landlord issued a stage 2 response on 26 August 2022. It apologised that it had not followed up on the offer of mediation made in the stage 1 response. It recognised this as failing in its service. It apologised that the resident had seen no further developments in relation to the condition of the garden since she had made the initial complaint. It assured her that it was dealing with the matter. It said that an inspection of the garden would be carried out to ensure her neighbour had removed items from it, and that the resident would be kept updated. The landlord offered the resident £191 compensation for the delay since the date of the stage 1 response in resolving her concerns regarding the garden. It also offered her £170 for poor communication and inconvenience.
8. The resident was not satisfied with this response and did not believe the compensation offered reflected the fact that she had been unable to use her garden for the duration of her tenancy. She did not think the landlord had taken her son’s disability into account when handling the complaint. She therefore referred the complaint to the Ombudsman.

Assessment and findings

The landlord’s handling of the resident’s reports about the condition of a shared garden

9. When the resident complained to the landlord in February 2022, she explained that she felt pressured into accepting the property in 2016 and that when viewing it, she was told the garden would be cleared. The landlord in its stage 1 response said that this could not be investigated as its complaints policy required complaints to be brought to its attention within 6 months of the issue arising. It explained that due to data protection and storage capacity, there would be limited information available dating back to 2016. This was an appropriate response and was also in line with the Ombudsman’s Complaint Handling Code (the Code) which states that it will usually be fair and reasonable for a landlord to require complaints to be brought within 6 months of an issue arising. Residents are expected to raise complaints with their landlords in a timely manner so that the landlord has a reasonable opportunity to consider the issues whilst they are still ‘live’ and while the evidence is available to reach an informed conclusion on the events that occurred.
10. However, the landlord went on to say in its stage 1 response that due to the 6-month rule, it was unable to uphold the resident’s complaint about the untidy garden. This was not reasonable as the resident’s complaint about the garden was not limited to what the landlord said to her in 2016. It was clear from the landlord’s call records that the resident said it was an ongoing issue and that the state of the garden was so bad her 6 year old son, who had autism, could not go out to play. She stated it was unacceptable and that she was unhappy the landlord was doing nothing to resolve the matter. The landlord should reasonably have identified this was a current and valid complaint, distinct from the complaint about its advice when the resident accepted the property in 2016. While it could reasonably have limited the scope of the complaint investigation to cover the previous 6 month period only in line with its complaints policy, the Code states that where there is a recurring issue, landlords should consider any older reports as part of the background to the complaint if this will help to resolve the issue for the resident. The landlord’s response in relation to this element of the complaint was therefore inappropriate.
11. The landlord conducted an inspection of the garden 4 days before it issued the stage 1 response. This was appropriate given a complaint had been made about its condition. However, the landlord did not disclose the inspection had taken place in the stage 1 response and instead stated it could not investigate the matter due to time limits, even though it had in fact taken some steps to investigate.  This was unreasonable and lacked transparency.
12. The landlord arranged the inspection of the garden by contacting the neighbour, rather than with the resident. It is understandable that the landlord wanted to discuss the matter with the neighbour and ensure she was fulfilling her tenancy obligations. However, it would have been reasonable in the circumstances for the landlord to have informed the resident that it would be carrying out an inspection. At the inspection, the landlord recorded that the garden contained a lot of garden equipment and pots but that these were “neatly managed and organised”. It noted that the neighbour looked after the plants that she had put in the right hand side of the garden and stored her items on this side also. The left hand side was not used by the neighbour and was overgrown. The landlord has since advised the Ombudsman that in its view, there was never a point where the resident was not able to use the garden, that the items were mostly pots and plants and that there was no hazardous waste.
13. Following the inspection, the landlord did not then discuss its findings or view of the garden’s condition with the resident. It did not offer to meet with the resident at the garden, as it did the neighbour. This was unreasonable as it did nothing to resolve the neighbour’s concerns about her garden which remained, regardless of whether it accepted the resident’s formal complaint.
14. The resident evidently felt very strongly about the condition of the garden being unsuitable for her son. She was best placed to explain what her son’s needs were, and to point out any items she felt posed a hazard. This may have included, for example, items being stored around the outside stairs leading from the resident’s property to the garden which the landlord itself later identified as causing an obstruction. The landlord later worked with the neighbour to have the items removed and the stairs kept clear (September 2022 – May 2023), but this could reasonably have happened much sooner had it engaged with the resident on the substantive complaint in February 2022.  It was unfair of the landlord to assess the condition of the garden without then putting its findings to the resident, and providing her with the opportunity to challenge it, point out things that may have been overlooked, or to explain her perspective further.
15. It was a significant failing that the landlord did not consider the suitability of the garden through the lens of a resident who had a child with vulnerabilities. Landlords are required under the Equality Act 2010 and the Regulator’s Tenant Involvement and Empowerment Standard to demonstrate that they understand the different needs of their tenants, including additional support needs, and to respond to them appropriately. It is not possible to say whether such a consideration would have changed the landlord’s view as to the condition of the garden in February 2022, but it would likely have led to the landlord having a conversation with the resident about her son’s needs and whether any aids, adaptions or other works were needed for the property. This conversation did not happen until December 2023, which was 22 months after the initial complaint. Given this, it is recommended that the landlord reviews the Ombudsman’s Spotlight report on ‘Attitudes, Respect and Rights’ which contains best practice guidance on recognising, recording, and supporting residents with vulnerabilities.
16. As such, the landlord’s overall response to the resident’s concerns about the condition of the garden was inappropriate.
17. The landlord did however demonstrate good practice when dealing with the resident’s complaint that the garden was attracting rats which were getting into her flat. Shortly after issuing the stage 1 response in February 2022, the landlord inspected the garden and the flat in line with its pest and vermin policy.  It did not find evidence of a current problem, but it monitored the situation for 2 months. It spoke to the resident about whether she was continuing to see or hear anything, before deciding no further action was required. The landlord advised the Ombudsman that it did not believe any rodent activity in the past was linked to anything in the garden but was simply due to the property being in an inner city location. Overall, the landlord responded appropriately to the report of rodents.
18. Although the landlord did not engage on the substantive complaint about the garden’s condition in its stage 1 response, it offered the resident mediation with the neighbour. While this was an appropriate suggestion, in itself it was a limited response to an issue that the resident had been complaining about for years. Based on the landlord’s knowledge of both parties, their circumstances and the history of this matter, the landlord could have considered whether it was fair and feasible to expect the resident to take on full maintenance responsibility alongside her neighbour. The landlord would have had reason to believe that it needed to intervene further to ensure the garden remained maintained to an acceptable standard. It would have been reasonable for the landlord to consider whether alternative arrangements, such as a service charge for routine maintenance, would be more suitable in the particular circumstances of this case. However, given the landlord did not investigate the complaint fully in February 2022 on the grounds of timeliness, it did not give such action any consideration and it was approximately 18 months later before a service charge arrangement was put in place.
19. By August 2022 when the stage 2 response was issued, there appeared to be a shift in the landlord’s attitude. The landlord’s position in the stage 1 response was that garden maintenance was the resident’s responsibility, and that it was for her to find a solution with the neighbour, albeit the landlord would support her in doing so by offering mediation. The stage 2 response however apologised that the resident had seen no developments in the garden since the stage 1 response was issued, assured her “we are dealing with this”, and advised an inspection had been arranged to ensure the neighbour had removed items. It said if the items had not been removed, this would be followed up with the neighbour and the resident would be kept updated. It also appropriately apologised that it had not followed up on the mediation offered in the stage 1 response. It offered compensation for the delay in resolving the resident’s concerns, and for poor communication and inconvenience. The landlord therefore appropriately recognised in the stage 2 response that it had a responsibility to oversee and manage the situation, rather than simply telling the resident it was her responsibility to resolve as it did at stage 1.
20. The stage 2 response demonstrated some good practice in line with the Ombudsman’s Dispute Resolution Principles. It identified failings, apologised, suggested action that would be taken in relation to the garden and offered financial compensation. It said that it would use learning from this case to improve its service. However, the landlord did not go far enough to provide proportionate redress on the matter.
21. The stage 2 response focussed on a review of the lack of progress made since the stage 1 response was issued. It did not review the stage 1 response itself which, as outlined above, had not engaged with the resident on the substantive complaint due to it incorrectly deeming it out of time.
22. In terms of resolving the issue going forward, the only action suggested in the stage 2 response was that the landlord would oversee the neighbour had removed some items from the garden. The landlord did not set out what those items were, but it is evident from other records that it was referring to garden items stored under and around emergency exit stairs leading from the resident’s flat to the garden. If the landlord felt that other than these items, there were no other issues with the condition of the garden, then as outlined above it would have been reasonable to have explained that to the resident. She firmly remained of the view that the garden as a whole was unusable and was concerned about other matters such as planting and overgrowth. However, there is no evidence that the landlord put its view to the resident at stage 2 and then gave her the opportunity to challenge it. As with stage 1, this would have assisted the landlord in understanding the situation from her perspective and her son’s vulnerabilities. It would have enabled the landlord to consider whether the outcomes it was suggesting would meet the needs of both the resident and the neighbour.
23. It would also have been reasonable for the landlord to consider during its stage 2 investigation whether removal of items around the stairs would provide a long-term solution in terms of the maintenance of the garden. However, it did not do this and instead focused its suggested outcome on a short-term fix. It was not until the following year, after the resident had exhausted the complaints procedure, that the landlord explored the option and then put in place a service charge arrangement.
24. The landlord offered the resident compensation of £191 for its delays in resolving her concerns. It said this was based on a calculation of £1 a day from the date of the stage 1 response given she had not noticed a change in the garden since then. This calculation derives from the landlord’s compensation matrix, which provides that £1 a day will be applied where a repair issue exceeds 28 days. While this was not a repair issue per se, the compensation matrix did not provide for the specific circumstances of this case. The landlord could have considered it a “service failure,” which attracts a maximum payment of £70 using the compensation matrix. Instead, the landlord opted to use the repair calculator which resulted in a higher amount being offered. This was a fair approach, given that it made a separate award to reflect poor communications and inconvenience.
25. The landlord also offered the resident £170 for its poor communications and inconvenience. This was in line with the compensation matrix which sets out the maximum payment for service failure is £70 and for inconvenience is £100. While the landlord therefore acted appropriately and offered compensation in accordance with its policy, the Ombudsman has discretion to increase compensation amounts in line with its Remedies guidance where it appears fair and reasonable in the circumstances to do so.
26. Overall, the Ombudsman finds there was maladministration in the landlord’s handling of the resident’s reports about the condition of the shared garden. A compensation payment of £600, to replace the £170 previously offered for poor communications and inconvenience, is appropriate. This is at the top end of the maladministration scale as per the Remedies guidance given the multiple failings identified and the impact this had on the resident and her son. The landlord formed its view of the condition of the garden by liaising with the neighbour to organise an inspection. It did not offer the resident the same opportunity to meet on site. At no stage did the landlord set out its inspection findings to the resident, thus denying her the opportunity to point out things the landlord may have overlooked, and to present her perspective. Throughout its management of the garden’s condition, the landlord failed to acknowledge or consider the resident’s son’s vulnerabilities. It was only after the complaint had exhausted the internal complaints process that the landlord considered alternative arrangements for the longer term management of the garden. As outlined above, the landlord did not identify all these issues in its stage 2 response. The £170 offered therefore falls short of a reasonable offer of financial redress as it does not reflect the totality of the failings.

The landlord’s complaint handling

27. The landlord demonstrated some good complaint handling practice at both stages of the complaints process. Both responses were issued within the timeframes set out in the landlord’s complaints policy and the Code. Both responses provided advice on how to escalate the complaint if the resident remained unhappy. The stage 1 response was solution focused in relation to the resident’s report of rodents, and the landlord complied with its policy in investigating this issue. The stage 2 response acknowledged failings that had occurred since the stage 1 response had been issued, namely that there had been no follow up on the offer of mediation, and there had been no improvement in the condition of the garden. The landlord apologised for these failings, offered compensation, and set out its next steps. It said that it would learn from its failings in this case and use it as a case study. While there were shortcomings in the substance of the stage 2 response, as outlined above, the landlord did demonstrate that it was trying to be fair, put things right and learn from outcomes in line with the Ombudsman’s Dispute Resolution Principles.
28. However, there was a significant complaint handling failure at stage 1 when the landlord ruled the substantive complaint about the condition of the garden as being time-barred. It failed to recognise this mistake during its stage 2 review. It was also a significant complaint handling failing at both stages of the process that the landlord did not acknowledge or take into account the fact that the resident had reported her son had vulnerabilities. The Ombudsman has therefore determined there was maladministration in the landlord’s complaint handling.
29. A thorough and impartial complaint investigation in February 2022 into the condition of the garden would have required the landlord to review previous reports made by the resident, to consider her perspective as well as the neighbour’s, and to assess the suitability of the garden for a child with vulnerabilities. This may have resulted in outcomes that were achieved 18 months later (see below), having been achieved sooner. Given the impact this failing therefore had on the resident, and in line with the Ombudsman’s Remedies guidance, it is recommended that the landlord pays the resident £300 compensation for its complaint handling failure.

Relevant events occurring after the internal complaints process completed

30. This investigation is focused on the complaint that went through the landlord’s internal complaints process between February and August 2022. Any subsequent events have not influenced the Ombudsman’s findings in relation to whether the landlord acted fair and reasonably when it processed the complaint. The landlord’s actions have been judged based on what was known to it at that time. However, the events that unfolded after August 2022 were relevant when the Ombudsman was considering suitable remedies based on its findings. This is because some of the non-financial orders or recommendations the Ombudsman might otherwise have made, are no longer relevant as events have since moved on.
31. In September 2022, the landlord inspected the garden as it indicated it would do in the stage 2 response. It worked with the neighbour to support her in removing items being stored around the emergency exit stairs leading from the resident’s flat to the garden. It was May 2023 before the items were fully cleared. The landlord has continued to monitor that the area is being kept clear. The landlord also arranged for weeds and overgrowth to be cleared. This was initially on a one-off basis in February 2023, but it then agreed a service charge for ongoing garden maintenance with the resident and her neighbour. This has been in place since Autumn 2023. An informal arrangement is also in place whereby the neighbour and resident each use one side of the garden.
32. The landlord also offered the resident additional compensation during 2023. It is helpful to set out what this related to, in order that it can be distinguished from the compensation ordered in this report.
33. In April 2023, the landlord dealt with a further formal complaint from the resident regarding the time it was taking to resolve the ongoing garden issues. It limited this complaint to an examination of its actions from November 2022 onwards. The complaint was escalated and a stage 2 response issued in June 2023. In its response, the landlord offered the resident compensation of £880. This included the £361 offered to her in August 2022 that she had not yet accepted. The remaining £519 was on account of failings the landlord identified in its service provision, communications, and complaint handling from November 2022 onwards.
34. For clarity, the £600 ordered in this report for the landlord’s handling of the resident’s reports about the garden, replaces the £170 previously offered by the landlord in August 2022 for poor communications and inconvenience. The £600 should be added to the £191 that the landlord offered for delays in August 2022, with a further £300 ordered in this report for complaint handling. This brings the total compensation amount to be paid by the landlord on account of its handling of the garden complaint between February and August 2022 to £1,091. This is separate to and does not replace the additional £519 it offered to the resident in June 2023, as that £519 relates to the landlord’s actions from November 2022 onwards.

Determination

35. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in respect of the landlord’s handling of the resident’s reports about the condition of a shared garden.
36. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in respect of the landlord’s complaint handling.

Orders

37. Within 4 weeks of the date of this report, the landlord should pay the resident compensation of £1,091. This replaces the offer of £361 made by the landlord in August 2022 in relation to this complaint. The compensation is broken down as follows:
    1. £600 for the failures in the handling of the resident’s reports about the condition of a shared garden.
    2. £191 being the amount the landlord calculated as being payable for delays in line with its compensation matrix.
    3. £300 for the failures in its complaint handling.
38. The above compensation is separate to and does not replace the additional £519 it offered to the resident in June 2023.

Recommendation

39. It is recommended that the landlord reviews the Ombudsman’s Spotlight report on ‘Attitudes, Respect and Rights’ which contains best practice guidance on recognising, recording, and supporting residents with vulnerabilities.