Paragon Asra Housing Limited (202105810)

REPORT

COMPLAINT 202105810

Paragon Asra Housing Limited

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 handling of a potential breach of the lease agreement relating to the maintenance of the resident’s garden.

Background and summary of events

The resident is a leaseholder of the landlord. The property is a flat with a private garden.
A previous complaint had been brought to the Housing Ombudsman Service for investigation, which related to the discarding of some of the resident’s items from a communal area. For clarity, though on some occasions both complaints overlapped due to the timescales of each complaint, this is a separate complaint to the one assessed in this report. Details of this previous complaint will be used in this report for background information only. The Ombudsman will not investigate matters which our service has already decided upon. Therefore, the issues relating to the resident’s complaint about the removal of her items will not be considered in this investigation, as these issues have already been investigated by this Service.
The landlord’s record’s state that an on-site visit was carried out at the resident’s property on 30 January 2020 which concluded that her garden was ‘wildly overgrown.’
The landlord’s record’s state that it issued the resident a 21-day notice card on 16 June 2020 as there had been no improvement to the condition of the resident’s garden.
The resident made a formal complaint on 17 June 2020 as she believed she had been unfairly treated in relation to how the landlord was monitoring the progress she was making with her garden. She informed the landlord that work had already started to improve the garden and would be completed in due course; however, a medical concern meant she was reliant on others to help her. She contended that the landlord’s involvement was not necessary as she was in the midst of resolving the matter, which she said should be evident.
She said the landlord’s handling of the matter felt like harassment which she attributed to an ongoing complaint with her neighbour (as detailed above in paragraph 3). She argued that, because the neighbour, who was complaining about her garden, was also the neighbour involved in her other complaint relating to the removal of her items, there was a conflict of interest, which she did not believe was ethical. She did not believe, therefore, that the landlord would address the matter fairly and impartially and suggested that the landlord’s handling of the matter felt like racial discrimination.
To resolve the complaint, she requested that the landlord stop issuing warning letters and leave her to complete the work on her garden, which she had already begun to do. She also requested that a particular member of staff not be involved in this complaint until the other complaint had been resolved.
The landlord acknowledged the complaint via email on 17 June 2020, which advised it would aim to provide a response within 20 working days rather than the usual ten working days, due to the impact of the Covid-19 pandemic.
On 23 September 2020 the landlord issued a ‘Breach of Tenancy’ letter which said that it had received reports about the resident’s garden being untidy which was causing nuisance to her neighbours. It said that she was previously asked to tidy the garden within 21 days, which had now expired, yet it had received reports that the garden was still in the same condition. The letter stated that she had seven days to tidy the garden, otherwise the landlord may consider taking further action.
On 2 November 2020, the landlord’s records note that it had spoken with the resident who expressed concern that it had been informed there had been no changes to her garden, as she had sought help from a friend who had carried out some work. The landlord requested photographs of the current condition of the garden so it could assess what further work was required to bring the garden to an acceptable standard. The resident was given a couple of weeks to send the photographs and the landlord confirmed that no enforcement action would be taken at this time.
On 17 December 2020, the landlord emailed the resident to apologise that her complaint had not been responded to. It explained that the member of staff that was assigned the complaint initially had been off work for a number of months due to illness, but the complaint had now been reallocated accordingly.
In the landlord’s complaint response of 23 December 2020, it firstly apologised for the delay in providing the response. It explained that it was never its intention to target anybody and apologised if the resident felt that this was the case. However, upon reviewing the case, the landlord could not see any evidence that she had been unfairly targeted, confirming that it had followed its internal processes for untidy gardens. It concluded by clarifying the agreed next steps as follows, as per a telephone conversation that day:
1. That the resident would continue to work on her garden over the next month; and
2. It would conduct an inspection of the garden in mid-January 2021.
In the resident’s reply of the same date, she wanted to clarify a few aspects of the conversation which she felt had been misconstrued or omitted. She stated that:
1. She did not feel the landlord had accurately recorded her perspective around the type of garden she wished to keep and believed she should not be coerced into correcting aspects which were personal taste.
2. She explained that the area had been trimmed back away from the neighbour’s border and that should be sufficient. She did not agree with the landlord’s position that the garden was untidy and felt this critical point was not addressed in its response.
3. She was not happy with this ‘single-minded approach’ and contended that this failure to reflect her point of view was indicative of her feeling that she was being victimised.
4. She was not happy that the same member of staff who had discarded her belongings (previous complaint) was also prominent in this complaint.
In the landlord’s email, dated 30 December 2020, it apologised if the resident felt some of the aspects of the conversation had been missed and therefore clarified the below:
1. It confirmed that the untidy garden case was not opened because of the aesthetics of the garden, but because her garden appeared untidy at the time of the initial inspection. It understood that residents have different tastes in garden styles, and it was not its intention to direct how their gardens should look. However, it explained that it was obliged to ensure that gardens are maintained in accordance with the tenancy agreement.
2. It confirmed that the staff member the resident had referred to in her previous correspondence was only involved insofar as providing updated photographs of the garden and would not be involved in reviewing or managing the case or complaint.
The landlord concluded by stating there was no evidence that the resident was being victimised, reiterating that it had followed its internal procedure for an untidy garden. It had also given various extensions to ensure her garden was maintained in line with the tenancy agreement in consideration of the resident’s medical issues. The landlord also said that if the resident was able to provide photographic evidence of her garden, it may be able to close the case at an earlier point.
On 15 January 2021 the resident emailed the landlord to express some points that she still needed to be addressed:
1. She said she felt like the landlord was not willing to see the nuance of what she was trying to convey, and for it to see that there was an issue with somebody (the neighbour) whom she had an ongoing complaint about, simultaneously following up with a complaint against her.
2. She was not happy with the landlord’s timeline of events because she said it did not reflect the conversation she had with it, and she did feel victimised and felt there was bias in the landlord’s handling of the matter.
3. She clarified that her health issue was not relevant at this stage and said that her friend helped her with the garden due to the trauma of the landlord’s handling of the situation.
4. She contended that it was victimisation when she did not believe the condition of the garden was in breach of the lease agreement.
On 17 January 2021 the landlord detailed the agreed action plan via email as follows:
1. That the resident would continue to work on the garden over the next month;
2. That the landlord would inspect the garden when it was next on site unless Covid-19 restrictions did not allow for this; and
3. That, following the inspection, the landlord would discuss the next steps and expectations with the resident.
The landlord concluded by asking for confirmation that the complaint had been resolved at stage one of its internal complaint procedure.
In the resident’s email, dated 18 January 2021, she repeated her claim that the landlord had victimised her, and that she did not agree with the proposed actions, and therefore she requested a senior manager to review the complaint at stage two of the landlord’s complaint procedure.
In the landlord’s email reply of 18 January 2021, it confirmed that the complaint had been escalated to stage two and that a response would be provided within ten working days.
In the landlord’s stage two complaint response of 2 February 2021, the landlord assured the resident that it had not treated her differently, explaining that it had recently implemented a new way of working to ensure its neighbourhoods were well maintained and that the landlord was accessible to customers if they need it. It confirmed that this was not a targeted approach specific to the resident, but instead a new approach implemented across all the neighbourhoods. The landlord apologised for any inconvenience this had caused and, in recognition of the failure to respond in a timely manner to the resident’s initial complaint, it offered £50.00 compensation. This concluded the landlord’s complaint procedure.
In the resident’s response email, dated 2 February 2021, she explained that she did not feel the landlord had understood the essence of the complaint. She clarified that the complaint was brought forward because she felt she had been victimised, and this remained the case. She did not accept the compensation offer, stating that she could no longer bear to be near her garden due to the trauma associated with the situation, and the amount offered could in no way compensate for this.
The resident emailed this Service on 7 April 2021 to outline her complaint she had brought forward for investigation:
1. She contended that because she had raised a previous complaint against the landlord in regard to the removal of her belongings, the landlord had treated her unfairly with regard to the current complaint about the garden. She contended that the landlord was more receptive to the concerns raised by her neighbour about her than the resident’s concerns raised about the neighbour.
2. She also believed that by having the same member of staff who was involved in her previous complaint being involved in this current complaint was a conflict of interest and felt like victimisation.
3. She believed proportional compensation would be between £500-£1000.

Assessment and findings

Policies and Procedures

The leaseholder agreement states that the leaseholder shall maintain and cultivate and keep all lawns, grass verges, shrubs, and trees properly cut, trimmed, and free from weeds and rubbish to the satisfaction of the landlord.
The landlord’s complaints policy states that it has a two-stage complaints process. At stage one, the landlord will aim to provide a response within ten working days. At stage two, the landlord will aim to provide a response within fifteen working days.
The landlord’s compensation policy states that the landlord will consider paying compensation if it failed to meet its own service targets. The amount of compensation given is dependent on the impact on a resident. The landlord has three categories to measure the level of impact: Low, where there is one instance of mild inconvenience directly caused by the landlord, in which up to £20 compensation can be given; medium, where there is a succession of service failures and/or the problem is not resolved within a reasonable timescale, in which £20 – £100 compensation can be given; and high, where there has been a serious or prolonged service failure or loss of facilities resulting in severe stress, disruption, inconvenience or loss of income, whereby an amount of £100-£500 compensation can be offered.

Scope of Investigation

It is noted that the resident has accused the landlord of being prejudiced and discriminatory, which includes the accusation of discrimination based on race. In line with The Housing Ombudsman Scheme (“The Scheme”), the Ombudsman will not investigate matters where we consider it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, a designated person, other tribunal, or procedure. This Service cannot determine whether discrimination has taken place in a legal sense as this would be better suited to a court to decide. However, we have considered whether the landlord treated the resident fairly, in line with any relevant policies and procedures and industry best practice.
It is also noted that the resident has referenced separate complaints relating to her neighbour’s behaviour and actions, which included accusations of assault, a complaint made in November 2019, and the aforementioned complaint regarding the removal of the resident’s belongings. She believes that the landlord has responded in a different way to her concerns about the neighbour in comparison to the way the landlord responded to the neighbour’s concerns raised about her, which she believes has been a contributing factor to the mistrust she has felt about the landlord.
In line with The Scheme, this Service can only look at complaints insofar as they relate to the specific complaint brought forward for investigation. Any preconception of bias based on the landlord’s previous actions or lack thereof is not within the remit of the Service to investigate, as it is not within our remit to compare and contrast the way the landlord has responded to other complaints which may or may not have had an impact on the way the landlord approached this case. As above, our investigation is focused on the landlord’s response to the current complaint about the garden and whether its response to this was fair and reasonable in view of all the circumstances.

The landlord’s handling of a potential breach of the lease agreement relating to the maintenance of her garden.

In accordance with the lease agreement, the resident is obliged to ensure her garden is maintained “to the satisfaction of the landlord”. It is worth noting that the resident did not dispute the landlord’s initial position in January 2020 that there was some work needed to improve the condition of her garden.
As such, when the resident was informed that her garden did not meet the required standards, it was her responsibility to take such actions that would ensure the garden met the requirements within a timely manner. Equally, as the landlord was managing the issue using an internal policy only – not available to the resident – the landlord would need to communicate effectively, ensuring that the next steps and expectations were clear.
In this case, however, it was evident that the landlord’s communication regarding this matter was insufficient at times and ultimately contributed to the resident’s feeling that she was not being treated fairly. For example, following the initial inspection in January 2020, there is no evidence of any further communication regarding this matter until the landlord’s 21-day warning notice provided on 16 June 2020. Thus, no clear expectations had been set before the formal warning.
Having identified that the garden did not meet the landlord’s satisfaction in January 2020, it would have been expected that the landlord thereafter provide the resident with a timeframe in which to complete the necessary work, along with guidance on the standard expected, and the date of the next inspection. Because this was not forthcoming, the resident was not clear on the next steps and thereby could not measure her actions against the landlord’s set expectations. This resulted in the resident raising a complaint on 17 June 2020, as she felt that the landlord’s response to the matter was disproportionate.
Moreover, though the complaint was acknowledged the same day on 17 June 2020, the matter was further worsened by the landlord not providing a complaint response within the agreed timeframe of 20 working days. In fact, the next correspondence the resident received regarding the matter was on 23 September 2020 when the landlord issued a ‘Breach of Tenancy’ letter, notifying the resident that she now had seven days in which to tidy her garden.
Notwithstanding the distress a letter of this nature could cause, it was inappropriate for the letter to have been issued prior to the landlord responding to the resident’s concerns raised in her complaint, especially as she contended that some work had been undertaken. The letter states that the landlord had received further reports that the garden was in the same condition, yet it would seem that no inspection had taken place to establish if this was the case.
Instead, the landlord’s approach left the resident, understandably, with a feeling that the matter was not being handled in a proportionate way, a matter that at this point had been ongoing for approximately ten months. It is worth noting here that the use of warning notices as a means of ensuring compliance to certain obligations of a leaseholder can be an appropriate tool a landlord could and should use in certain circumstances. Nevertheless, they should be used as part of a holistic approach with clear expectations being set and inspections to check progress which was evidently lacking in this case.
Incidentally, there was seemingly some confusion on the landlord’s part with how it would deal with the matter, as the landlord was unsure whether to approach the matter as a breach of tenancy or a breach of the lease agreement. This was indicative of the landlord’s overall approach as there was seemingly no clear procedure being followed, despite it stating it was following an internal policy.
This Service has not had sight of this internal procedure, so we have not been able to determine that the landlord was following an internal policy correctly. As this approach was internal only, the resident was not aware of the process either, which may have contributed of her feelings of bias by the landlord.
That said, the landlord’s subsequent approach somewhat improved during November and December 2020 and throughout January and February 2021, with the landlord improving communication with the resident, which saw the landlord setting expectations regarding enforcement action and providing timescales in which to improve the condition of the garden, as well as giving the resident options to provide photographic evidence to demonstrate the improvements made, and making adjustments to the timescales in light of the resident’s circumstances.
Moreover, the landlord’s complaint responses of 23 December 2020 and 2 February 2021 attempted to address the resident’s concerns regarding being mistreated as well as specifically addressing the resident’s concern about the involvement of a particular staff member in this complaint. At this stage, it is evident that the landlord addressed the resident’s concerns appropriately during the complaint process.
However, although the landlord offered assurances and found no evidence during its investigation that the resident had been treated unfairly, this did not allay the resident’s concerns. Also, the landlord’s explanation in its stage two complaint response of 2 February 2021 of a new ‘neighbourhood interaction’ contributed to the resident’s feelings of being mistreated, as this had not been explained previously, and seemed to indicate an ad-hoc approach rather than a clear procedure being followed.
Wherever possible, the Ombudsman would encourage a more transparent operation, which could, in turn, result in a better relationship with leaseholders and tenants. In this case, a readily–available policy for garden disputes may have reduced the resident’s concerns about the landlord’s approach to this matter, as the next steps and expectations would be clear to all parties at the outset and the resident would be in a position to know if the procedure was not being adhered to correctly. In light of this, a recommendation will be made below.
In summary, the issue first raised in January 2020 took more than 12 months to resolve because of the landlord’s poor communication, which constitutes a service failure and compensation should therefore be given to the resident in order to provide adequate redress for the distress and inconvenience this caused her.
It is recognised that the landlord acknowledged the delay in providing the stage one complaint response and apologised, explaining why the delay occurred, and offered compensation of £50.00 in recognition of the length of the delay. However, the resident raised the complaint on 17 June 2020, yet she did not receive the stage one complaint response until 23 December 2020, which was a considerable amount of time over the 20 working days stated in the landlord’s acknowledgement letter of 17 June 2020.
If we consider the length of the delay and the impact that the delay had on the situation, this amount does not provide adequate redress for the overall distress and inconvenience caused. As such, in accordance with the landlord’s compensation policy, the amount of £50.00 should be increased to £100.00, which is the maximum that could be offered for what the landlord constitutes a medium level of impact.
Furthermore, in light of the further service failures identified with the landlord’s communication, or lack therof, a further £100.00 compensation should be offered in order to resolve the matter satisfactorily, which is in line with the landlord’s compensation policy for medium impact whereby the problem is not resolved within a reasonable timescale.
It is noted that the resident believes proportionate compensation would be closer to £500-£1000. Whilst it is acknowledged that the resident has found the situation distressing and upsetting, it is important to be aware that the Ombudsman’s awards of compensation are not intended to be punitive and do not offer damages in the way that a court might. In assessing an appropriate level of compensation, this Service takes account of a range of factors including any particular distress and inconvenience caused by the issues, the amount of time and effort expended on pursuing the matter with the landlord, and the level of detriment caused by the landlord’s actions. Also, the Ombudsman’s awards are generally moderate, taking into account the landlord’s need to make the most effective use of its limited resources as a social landlord.
It is the Ombudsman’s opinion that the amount of £200 compensation would provide adequate redress for the service failures identified and is in line with our service’s remedies guidance (published on our website) as well as the landlord’s own compensation policy. The Ombudsman’s remedies guidance suggests awards of between £50-£250 where there has been service failure which had an impact on the complainant but was of short duration and may not have significantly affected the overall outcome for the complainant. In this case, the delays and poor communication did not affect the outcome of the complaint as the landlord ultimately agreed a way forward to manage the garden, but these errors did have an impact on the resident and compensation is due in view of this.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in way it handled a potential breach of the lease agreement relating to the maintenance of the resident’s garden.

Reasons

Despite there being some agreement with the landlord’s conclusions following an inspection of the resident’s garden in January 2020, the landlord’s communication thereafter lacked clear and identifiable next steps and expectations.
Because the landlord did not have a clear policy for dealing with garden maintenance disputes, the matter was prolonged unnecessarily, and the approach taken may have exacerbated the resident’s feelings of being victimised by the landlord.
The landlord acknowledged the delay in providing the stage one complaint response and offered compensation as way of redress. However, the length of the delay and the impact this delay had should have warranted further compensation. Furthermore, the landlord should have offered further compensation for its overall communication in order to resolve the matter satisfactorily.

Orders

The landlord is ordered to pay the resident:

£100 for the service failures identified in its handling of the garden maintenance issue; and
£100 for the identified delay in providing the stage one complaint response (this amount will decrease to £50.00 if the landlord has already paid the previously-offered compensation amount of £50.00).

The total amount to be paid is £200. This should be paid within 28 days of the date of this report.

Recommendation

It is recommended that the landlord considers producing a policy that details its approach to garden maintenance disputes, which is available to all leaseholders upon request.