Peabody Trust (202216824)

REPORT

COMPLAINT 202216824

Peabody Trust

28 February 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

The complaint is about the landlord’s handling of:
1. A neighbour dispute involving a bamboo intrusion, boundary fence responsibility, and a hedge.
2. The associated complaint.

Background

The resident is a leaseholder of a maisonette. She has a private garden. A dispute arose between the resident and her neighbour about bamboo. The neighbour appears to be a tenant.
The resident told the landlord in June 2020 that the bamboo roots had grown into her garden from the neighbour’s garden. She said that this had caused damage to a fence and her lawn.
The landlord told the resident in June 2020 that she was responsible for maintaining the boundary on the right and rear of her property. It also agreed to send a contractor to assess the issues. The contractors removed the visible bamboo shoots in the resident’s lawn and replaced the patches of the damaged lawn.
The resident brought a previous complaint to the Ombudsman about the issues with the boundary and bamboo, following a complaint which exhausted the landlord’s procedure on 23 June 2021.
The Ombudsman investigated the complaint about the bamboo and issued a determination on 8 June 2022. Following this the landlord worked with the resident on her ongoing dispute with her neighbour.
On 12 July 2022 the landlord sent the resident a letter asking the resident not to have direct contact with the neighbour. The landlord asked the resident to direct any communications about the neighbour to it. This was because the landlord said that the neighbours were uncomfortable with the resident’s communications. The landlord also asked the resident to remove any lights or accessories on the fence and to not spray paint the fence.
In August 2022, the resident raised further complaints about her landlord. Specifically, she said:
1. the landlord had discriminated against her as it had not acted over the issues with the neighbour but had written to her on 12 July 2022
2. the neighbour had not repaired a fence they were responsible for
3. the bamboo continued to encroach on the resident’s property
4. the neighbour’s hedge had overgrown and needed to be cut back
5. her landlord had not acted on her reports of the bamboo, broken fence, and overgrown hedge
6. the landlord had cancelled an appointment on 22 August 2022
7. the landlord’s decision not to hold her neighbours to account for breaches of tenancy and to postpone garden works was evidence of discrimination.
On 8 September 2022 the landlord responded at stage 1. The landlord:
1. apologised that its contractor cancelled an appointment for garden works in August 2022 in error. It told the resident it would address this error internally to prevent a reoccurrence
2. stated it could not find evidence that the resident had experienced discrimination
3. stated it would raise any unresolved issues the resident had raised with the relevant departments
4. offered £50 compensation for the inconvenience caused by the appointment cancellation.
The resident said the landlord had not taken her concerns about the antisocial behaviour seriously. The resident alleged this involved her neighbour shouting at her, blocking her car in, and threatening to plant bamboo.
On 29 September 2022 the landlord told the resident it had reviewed her complaint and found there was no evidence to justify an escalation to stage 2.
The landlord removed the bamboo and laid her lawn. In October 2022 the resident told the landlord that she was happy with the work done. She told her landlord the only outstanding issue was the overgrown hedge.
On 30 October 2022 the resident expressed dissatisfaction that the landlord had not found it had discriminated against her by sending her a letter. In April 2023 the resident further complained to her landlord that her neighbour had not cut the hedge back.
The landlord issued another response at stage 1 on 18 May 2023 stating:
1. the communications it sent the resident were not meant to be malicious or threatening and it apologised that the letter made the resident feel this way
2. the resident could raise matters with the neighbourhood customer specialist and could cut the hedge back
3. it had asked her neighbour to cut the hedge back and provided information on the consequences of this not happening
4. it offered £150 for delays in complaint handling and poor customer service.
The resident expressed dissatisfaction with the delays and said she felt the landlord had not acknowledged the impact that its communication had on her.
On 16 June 2023 the landlord told the resident it had asked her neighbour again to cut the hedge back. The landlord asked the resident if she wished to escalate her complaint to stage 2.

Assessment and findings

Jurisdiction and scope of investigation

The Housing Ombudsman Scheme sets out what complaints the Ombudsman may and may not investigate. Paragraph 42(f) of the Scheme states we may not investigate complaints where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy via the courts, other tribunal or procedure.
Under the Equality Act 2010 only a court can make a declaration that there has been discrimination. As such, it would be fairer and more reasonable for the resident to seek a final and binding outcome via the courts.
We can however consider whether the landlord acted reasonably in handling the resident’s concerns about discrimination. This would include whether the landlord had due regard to its obligations under the Equality Act 2010.
Paragraph 42(l) of the Scheme also precludes the Ombudsman from considering complaints where a resident seeks to raise matters which have already been decided upon by an Ombudsman.
The Ombudsman acknowledges that the resident had an ongoing dispute with her neighbour about bamboo. This continued after the previous complaint about the issue was determined. The Ombudsman cannot consider issues it has already decided upon. Therefore, this investigation will focus on issues that arose since the resident complained in August 2022.

The landlord’s response to the bamboo

The resident has complained about encroachment by bamboo since around May 2019. Following inspections in 2020, the landlord arranged for an ongoing programme of work to deal with the bamboo growth. This involved the landlord removing visible patches of bamboo and replacing the damaged lawn. The resident was previously concerned about this.
The persistent and problematic nature of bamboo regrowth necessitated an ongoing programme of work. The Ombudsman is of the opinion that the length of time and steps taken to resolve the bamboo intrusion by the landlord were reasonable.
The Ombudsman has seen evidence that the landlord attempted to attend the resident’s property on 6 July 2022 and 26 September 2022 without giving advance notice to the resident. It also cancelled the appointment on 22 August 2022 in error. The evidence also shows that the landlord did not attend an appointment it made with the resident on 20 September 2022. These were failures by the landlord. The Ombudsman expects landlords to make appointments with residents and to attend appointments it has made.
The landlord offered the resident £300 compensation to acknowledge the lack of communication and delays in dealing with the bamboo issue. This amount is reflective of the compensation we would order for these issues.

The landlord’s response to the boundary fence

The resident believed she was responsible for the boundary and fence to the left of her property based on her neighbour’s plans. Therefore, she replaced the fence on the left-hand side of her property on this basis.
The landlord correctly informed the resident that the lease to her property showed she had responsibility for the boundary to the right and rear of her property. The resident could have established legal ownership of the boundaries herself by consulting her lease. However, it is unclear if this would have helped. This is because the landlord accepted in July 2020 that the lease plan may be incorrect, it subsequently reimbursed the resident for the fence.
The Ombudsman considers it reasonable for the landlord to reimburse the cost of replacing the left-hand side fence. This is because this was not the resident’s legal responsibility, and her neighbour could not afford to do this.
When the resident asked her landlord about the damage to the fence on the right of her garden in February 2022 the landlord said it would write to her neighbours. It also told the resident it was not responsible for the repair to the fence or providing a boundary fence. We have not seen evidence to show otherwise. The landlord’s actions in contacting the neighbour to inform them of the damage were reasonable given that the landlord was not responsible for the fencing.

The landlord’s response to the overgrown hedge

On 13 July 2022 the resident told her landlord that her neighbour’s boundary hedge had overgrown and was intruding on her driveway. The landlord responded on 28 July 2022 to say it had asked her neighbour to cut the hedge back by 12 August 2022. The landlord explained to the resident that the hedge was her neighbour’s responsibility. The landlord told the resident that she was allowed to cut back any part of the hedge overhanging onto her property. This was a reasonable initial position for the landlord to take as the landlord was not responsible for the hedge.
However, there were deficiencies in the landlord’s communications with the resident. The landlord agreed with the resident on 9 September 2022, 18 October 2022, and 1 November 2022 to obtain further information about the hedge and to update her. Despite these assurances, there is no evidence that the landlord updated the resident.
It was appropriate that the landlord gave the resident’s neighbour a deadline for cutting it back. Once this date had lapsed, it would be for the landlord to consider tenancy enforcement action. The Ombudsman therefore considers that it would have been appropriate of the landlord to have explained to the resident what action it would take to ensure the hedge was cut back. However, the landlord did not do this until 18 May 2023.
In doing so it accepted its failures in its handling of the hedge and offered the resident £150 compensation. The Ombudsman considers that this offer is reflective of the award we would make.
The Ombudsman considers that the landlord took reasonable steps to address the problems caused to the resident by her neighbour. The landlord offered the resident and her neighbour mediation. It wrote to the neighbour requesting that they remove the bamboo, repair their fence, and cut back their hedge. The landlord had contributed to the cost of fence repairs by reimbursing the resident.
The landlord wrote to the resident in July 2022 on her neighbour’s request, the letter was not a legal warning or part of an antisocial behaviour case but caused the resident distress. The landlord apologised for how its letter made the resident feel which was appropriate.
The landlord’s contractor cancelled an appointment on 22 August 2022 due to a misunderstanding which the landlord explained and apologised for. The landlord offered the resident £50 compensation for the missed appointment.
The landlord responded to the resident’s claim of discrimination in September 2022, it apologised for any upset caused by its letter of 12 July 2022. The landlord concluded there was no evidence of unfavourable treatment on account of the resident’s race.
The Ombudsman considers the landlord acted reasonably in dealing with a neighbour dispute and the resident’s allegation of discrimination. It appropriately apologised and offered compensation to the resident when it was aware its communication and appointment cancellation caused the resident distress.

The landlord’s complaint handling

The landlord is required to respond to complaints at stage 1 within 10 working days and to complaints at stage 2 within 20 working days.
The resident complained to her landlord on 2 August 2022, and the landlord sent the resident a stage 1 response on 24 August 2022. This was 16 working days when it should have responded sooner. The landlord acknowledged the delay in its stage 1 response and offered compensation.
The resident complained about discrimination on 13 August 2022 and received a response from the landlord at stage 1 to this new complaint ground on 8 September 2022. The landlord apologised and offered £50 for the inconvenience caused by the cancelled appointment on 22 August 2022 and concluded there was no discrimination. It took the landlord 18 working days to respond to the resident’s complaint of discrimination. This was beyond the 10-working day target. However, in the Ombudsman’s opinion, the resident was not placed at a detriment by the delay.
The resident requested her landlord review her complaint on 9 September 2022. The landlord declined to escalate the resident’s complaint on 29 September 2022 but referred the resident to us. The landlord’s complaint policy assumes that it will provide residents with a stage 2 response. The Ombudsman’s Complaint Handling Code requires landlords to allow a review by someone who has not been involved in the complaint unless there are valid reasons not to. In this case, the resident explained what issues she did not feel had been responded to adequately and the responses were provided by the same member of staff. That was not appropriate. It is the Ombudsman’s view that the landlord ought to have allowed the resident to escalate.
The resident complained to her landlord about her neighbour’s hedge on 13 July 2022, 13 August 2022, 21 August 2022, 8 September 2022 and on 30 October 2022, and alleged discrimination. Whilst the landlord had already considered the allegation of discrimination it should have responded to the resident’s concerns about the hedge.
There is no evidence the landlord investigated this and responded to the resident until 18 May 2023 when it sent its stage 1 response. Although this was a delay of nearly ten months the landlord had already given the resident referral rights to the Ombudsman on 29 September 2022. The resident did not suffer a detriment because of the delay. Furthermore, the Ombudsman notes that the landlord sought to put things right in its response. It explained it had asked the neighbour to cut their hedge and offered the resident £150 compensation.

Determination

In accordance with paragraph 42(f) it would be fairer, more reasonable, and more effective for the resident to seek a declaration via the courts that she was discriminated against. The Ombudsman did consider if the landlord’s response was appropriate.
In accordance with paragraph 42(I) of the Scheme, the Ombudsman has not investigated matters which were previously considered by the Ombudsman.
In accordance with paragraph 53(b) of the Scheme, the landlord has made an offer of redress before the investigation which, in the Ombudsman’s opinion, resolves the complaint about the neighbour dispute involving a bamboo intrusion, boundary fence responsibility, and a hedge.
In accordance with paragraph 52 of the Scheme, there was service failure by the landlord in its complaint handling.

Orders

The landlord must, within 28 days of the date of this determination increase the compensation for complaint handling from £150 to £225. This is to recognise the distress and inconvenience caused by the poor complaint handling.

Recommendations

The Ombudsman recommends that:
1. the landlord pays the resident the sum of £450 offered during the complaint process
2. the landlord inspects the hedge to confirm the neighbour has taken the action required. It should update the resident within 28 days of the date of this determination on any action it will take to enforce the neighbour’s tenancy conditions.