Peabody Trust (202208163)

REPORT

COMPLAINT 202208163

Peabody Trust

30 September 2023

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 the resident’s query about grounds maintenance. This was following concerns raised about an overhanging tree and the maintenance of a path.
The Ombudsman also investigated the landlord’s complaint handling.

Background

The resident occupies a property under the shared ownership scheme. The occupation agreement was originally with Catalyst Housing (“Landlord A”), and it has recently merged with Peabody Trust (“Landlord B”). The resident explains that her husband and son both have vulnerabilities that impact their balance.
The resident raised a formal complaint with Landlord A on 21 January 2022, about her neighbour’s tree overhanging her property. The tree, she said, was resulting in unsanitary, slippery, and dangerous communal areas due to bird excrement. She also asked for the tree to be cut down and clarification over her service charge, which was payable for the communal areas. Before this, there were 5 repairs raised for the property resulting in the need for pest control as early as 21 May 2021.
The landlord responded to the resident on 26 February 2022. It said that the resident’s concerns had been passed to the relevant team who would be in contact with her. After contact was not made, the resident chased the landlord on 13 June 2022. On 24 June 2022, Landlord A confirmed that her complaint had been logged at stage 1.
The landlord issued its stage 1 response on 22 July 2022. It said:
1. that the overhanging tree was not something it was responsible for and would be a civil dispute.
2. that she could cut the overhanging branches of the tree over the boundary line.
3. it would support her to work with her neighbour towards a mutual resolution.
The resident escalated her complaint on the same day. She felt her concerns had not been fully addressed.
The landlord provided its stage 2 response on 8 September 2022. It explained that the outcome of the substantive issue remained the same. However, it also apologised for its delay in complaint handling and reaffirmed that direct contact with her neighbour would be the best way to resolve this issue. It also offered her £50 in compensation in recognition of its service failure.
The resident remained dissatisfied. She referred her complaint to the Ombudsman and is seeking:
1. the tree to be cut back fully or to a reasonable height
2. a full breakdown of her service charge costs for the grounds maintenance so that she can understand what the landlord’s maintenance covers
3. the landlord cleans the communal pathways more frequently.

Assessment and findings

The landlord’s handling of the grounds maintenance

There are four parts to the complaint about the service charge for grounds maintenance, which are:
1. The landlord’s handling of the tree and whether this was covered in the grounds maintenance charge
2. The landlord’s handling of the path and whether this was covered in the grounds maintenance charge
3. The landlord’s information about the service charge overall
4. The landlord’s record-keeping
The landlord’s responsive repairs policy states that:
1. It has a general responsibility to maintain common areas where it is the freeholder.
2. Communal areas will be kept safe and secure for customers.
3. Communal repairs are routine repairs. The landlord will aim to complete them within 10 working days. If this timescale cannot be met, residents will be informed of when the repairs will be completed.
4. Leaseholders are normally responsible for all repairs within their home and are normally responsible for communal areas and repairs resulting from their action or inaction.

The overhanging tree

Landlord A has demonstrated that the overhanging tree is located on land that is not owned by it or Landlord B. This service cannot find fault with the landlord’s response regarding the tree. The landlord is not able to take further action to cut down the tree or cut the tree back to the boundary line. There was no legal obligation on the landlord to take any action and this would not fall under ‘grounds maintenance’.
That said as a matter of fairness, it (the landlord) could have contacted the owner of the neighbouring land to inform it of the issue with the tree. That would have helped protect the resident’s enjoyment of their home without interference from encroachment.

The path

It is clear from its policy that the landlord is responsible for communal repairs. As the resident has reported that the communal path was slippery and dangerous, the landlord ought to have inspected this within a reasonable time. Whilst the landlord had notice of the issue from at least 21 January 2021, it did not inspect until 6 February 2023 – some 518 working days later. That was not appropriate and was a failure on the part of the landlord.
It is also unclear how the landlord intends to amend its maintenance programme in respect of the path. The Ombudsman considers this to be a failure of the landlord. This conflicts with the landlord’s policy to “keep communal areas safe and secure” for customers. This is particularly necessary where there is a household with vulnerabilities.
The landlord has not provided clarity on whether the service charge claimed is to cover maintenance and upkeep of the path.

Information about the service charge for grounds maintenance

On 13 June 2022, the resident requested clarity over her service charges.
The Ombudsman expects landlords to understand which communal areas are its responsibility so it may correctly charge for the services provided. The evidence shows that the landlord did not know the costs of the grounds maintenance for the communal areas until 6 February 2023. Its internal correspondence states: ‘from the comments raised we have found from our legal team we are responsible for the garden areas in front of [the property].’ The landlord was at fault for not being able to identify what the resident was paying for in her charges and what area it was providing services for within a reasonable timescale from June 2022 to February 2023.

Record-keeping

The Ombudsman notes that the landlord was made aware of the household’s vulnerabilities as early as 21 January 2021. However, the evidence shows that on 1 February 2023, the landlord did not have any records to reflect this.
The Ombudsman would expect landlords to have robust systems in place to ensure vulnerabilities of households are recorded. This is so that landlords can make necessary adjustments as required.

Conclusions on the landlord’s handling of the service charge

Taken together the landlord is responsible for maladministration because:
1. It delayed inspecting the path and has not been clear on when works will be completed this and whether this was included in the service charge paid.
2. It delayed providing correct information about what the service charge for grounds maintenance included.
3. It failed to create and maintain adequate records in respect of the vulnerabilities of the resident’s household.
The resident is likely to have suffered some distress and inconvenience because of these failures. The condition of the path is likely to have caused some anxiety given the vulnerabilities of her family. Moreover, not knowing what she was paying a charge for and how that could change was not appropriate.

Putting things right

In order to put things right, the landlord must:
1. pay compensation to the resident for the distress and inconvenience caused
2. inspect the path, determine what works are required and if it is responsible for those works under the lease
3. set out the likely charges for the path and explain to the resident whether a section 20 consultation will be required
4. provide full details of all the areas it is responsible for and whether it makes a charge under the grounds maintenance charge for the areas.

The landlord’s complaint handling

The landlord’s complaint policy states that:
1. Service requests will be dealt with under a service recovery process. If further enquiries are needed to resolve the matter, if the resident requests it, the issue will be logged as a complaint.
2. New complaints are logged within 5 working days and a response will be provided in 10 working days unless an extension is agreed with the complainant.
3. Stage 2 responses will be provided within 20 working days of the request being received unless further time is required, which will be communicated to and agreed with the complainant.
The resident’s original complaint was made on 21 January 2022. The landlord referred the complaint to the estate management team as a service request. The landlord informed the resident it would contact her. There is no evidence it did follow up. As such, the resident chased the landlord.
There is no evidence that shows the resident raised issues with her neighbour’s tree and its impact on the communal area to the landlord, before her complaint on 21 January 2022. On the balance of probabilities, the landlord would have been aware that there were some ongoing issues. This is because, there were at least 5 repair logs, that identified the property as having issues with birds nesting in the property between 21 May 2021 and 27 June 2022.
The evidence does not show with any certainty that the landlord was aware of the overhanging tree before 21 January 2022. On this basis, it would have been reasonable for the landlord to have dealt with the resident’s initial query as a service request. However, it failed to deal with this adequately because it did not contact her when it said it would. It also failed to provide any resolutions to her despite being chased by the resident.
The Ombudsman considers this to be a service failure because had it followed up with the resident, its position could have been conveyed at any earlier stage. This would have ultimately limited the inconvenience and time and trouble taken to pursue the complaint.
The resident chased on 13 June 2022. The landlord logged the complaint on 24 June 2022. This was 4 working days outside of its complaint policy. Further, it issued its stage 1 response on 22 July 2022 which was 10 working days outside of the timeframes in its complaint policy. Additionally, the response did not:
1. Acknowledge, and account for its delay
2. did not provide a date or the stage of the complaint
3. did not respond to all the issues raised in full.
This is a service failure because the complaint response was not in line with the Complaint Handling Code (“the Code”) and it was outside of the timeframes required in its complaints policy and the Code.
The resident escalated the complaint on the same date as the stage 1 response (22 July 2022). The landlord issued its stage 2 response on 8 September 2022. This was 14 working days outside of the timeframes in its complaint policy. However, it did in general acknowledge the delays experienced as part of the complaint handling and offered £50 compensation in recognition of this.
Although the landlord did acknowledge its shortcomings in its complaint handling, it did not explain which failures it had identified. As a result, the Ombudsman considers it missed an opportunity to be accountable.

Determination

In accordance with paragraph 52 of the Scheme, there was maladministration with the landlord’s handling of the resident’s estate management query.
In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord in the way it handled the complaint.

Orders and recommendations

Orders

The Ombudsman orders that the landlord must, within 28 days of the date of this determination:
1. Pay the resident an additional £675 compensation, made up as follows:
  1. £350 for the distress and inconvenience caused by its handling of the service charge queries
  2. £200 for the distress and inconvenience caused by the delay in assessing the path.
  3. £125 for the distress and inconvenience caused by the complaint handling.
2. Provide the resident with a breakdown of the estate management charge and the planned maintenance routine for the communal areas for this financial year.
3. Inspect the path, determine what works are required and if it is responsible for those works under the lease.
4. Set out the likely charges for the path and explain to the resident whether a section 20 consultation will be required.
5. Provide full details of all the areas on the estate it is responsible for maintaining and whether it makes a charge under the grounds maintenance charge for the areas.
6. Provide a written apology to the resident specifically addressing the service failures found in this report.
7. Provide this service with evidence of completion of these orders.

Recommendations

The Ombudsman recommends that the landlord write to the landowner of the neighbouring property about the overhanging tree.