Raven Housing Trust Limited (202127488)

REPORT

COMPLAINT 202127488

Raven Housing Trust Limited

23 November 2022

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 reports about the resident’s overhanging shrubbery and the shared back-garden fence.
   2. The associated complaint handling including the level of communication.

Background

2. The resident is a tenant of the landlord, which is a housing association. The property is a mid-terraced house with a rear garden.
3. According to the landlord’s correspondence, it wrote to the resident in April 2020 and March 2021 about the condition of her garden, following concerns raised by her neighbour (a copy of the letters has not been provided), specifically regarding an overgrown hedge and bushes that the neighbour believed encroached upon the shared rear-garden fence.
4. The resident raised a formal complaint in May 2021 as she was dissatisfied with the landlord’s letters about the overgrown hedge and fencing. She said the landlord had asked her to cut the bushes back because it had photographs, but had not gained her side of the story. The resident explained that she had left the bushes unkept to protect the birds nesting. She noted it was unacceptable to photograph neighbouring properties, and questioned why the landlord had accepted the photographs. She said that she had written to the landlord multiple times but had not received a response. The resident believed the landlord had avoided her query concerning what constituted an overgrown bush, specifically the height and width. She disputed that the hedge had caused the fence to hang.
5. The resident explained that the landlord had not visited her property, despite her invite to view the hedge, later stating that, since March 2020, there was limited communication from the landlord and no resolution. She advised that there had been no work carried out at the end of the garden, and gas containers and pieces of wood were pressed against her shed.
6. The landlord’s contractor carried out three visits between March 2021 and May 2022. It found that the shared back-garden fence posts were damaged and it required access to the resident’s garden to complete repairs, due to the high hedge. Repairs to the back-garden fence posts were completed in May 2022.
7. In response to the resident’s complaint, the landlord advised that there was no specific guidance in its tenancy agreement or housing law about plant height and width. It referred to the tenancy agreement, noting that the resident would be responsible for keeping her garden from becoming over-grown or untidy; and if she failed to do so, it would be entitled to decide what works were required. The landlord explained that due to the Covid-19 restrictions in place in 2020, there were no visits being carried except in emergencies. It noted a visit should have taken place prior to its letter issued in 2021, as the same restrictions were not in place. The landlord apologised for its recognised failure and offered £200 in compensation and offered to cut back the resident’s hedges as a gesture of goodwill (GOGW). The landlord stated that if the resident wished to install a second fence, it would be at her own cost and she would need to request written permission. It further advised that its contractor had not seen wooden pieces or gas containers pressed against her shed as asserted, so requested that the resident provide photographs of the objects in order to address this.
8. The resident brought her complaint to this Service as she was dissatisfied with the landlord’s handling of her complaint. She said that the landlord had not provided copies of the photographic evidence supplied by her neighbour. She noted she was concerned that the replacement of the fence panels would damage her hedge and that the left side of the fence panels had not been replaced.

Assessment and findings

Policies and procedures

9. The tenancy agreement states that the landlord is responsible for the maintenance and repairing of the fences.

Scope of investigation

10. The resident noted she had requested the photographs provided to the landlord by the neighbour, under subject access report (SARS), but it had refused to provide them. These concerns are better suited to the Information Commissioners’ Office (ICO). Paragraph 42(k) of the Housing Ombudsman Scheme states that the Housing Ombudsman may not investigate matters which fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body. Therefore, the issues relating to the resident’s request for pictures under her SAR, will not be considered in this investigation.
11. In the resident’s correspondence to this Service, she said that work had not been carried out to the left side of her fence, and also raised concern about her hedge being damaged if the fence panels at the front of her garden were removed. This is not something that this Service can adjudicate on at this stage, as the landlord needs to be provided with the opportunity to investigate and respond to this aspect. The resident will need to contact the landlord and, if appropriate, raise a separate complaint to get this matter resolved.

The landlord’s handling of reports about the resident’s overhanging shrubbery and the shared back-garden fence

12. When a resident raises concern about another resident’s hedge being overgrown and causing damage to the fencing, a landlord should take reasonable steps to investigate. If it is unable to do so due to unforeseen circumstances, it would be expected that the landlord informs the resident of any delays and provide details of the next steps and expectations.
13. The resident complained about the landlord’s letter in April 2020, requesting her to cut back her hedges, despite not inspecting the hedge prior. In this case, whilst the landlord did inform the resident of its delayed inspection in April 2021, due to Covid-19 restrictions in place at the time, a visit should have taken place prior to its second letter issued in March 2021. It would have been appropriate for the landlord to inspect the resident’s garden to determine whether or not her hedge was overgrown and contributed to the damage of the shared garden fence. Nonetheless, it was appropriate for the landlord to apologise for its recognised failing and to advise the resident accordingly. It was also appropriate for the landlord to offer the resident compensation of £200, which was in line with the Ombudsman’s remedies guidance.
14. It was appropriate for the landlord to arrange for its contractor to inspect the shared back-garden fence on 15 March and 20 July 2021. The landlord’s actions were appropriate as it would aid in identifying the cause of the damage to the fence, as well as determine whether or not the hedge required cutting back as a result. In this case, the landlord has relied on the findings of its qualified contractors, who deemed that the overgrown hedge added a great amount of stress to the fence. The landlord was entitled to rely on the conclusions of its appropriately qualified contractors, regarding the cause of damage. Accordingly, its conclusion that the overgrown hedge contributed to the bowing fence was reasonable. The landlord also went beyond its obligations by offering to cut back the resident’s hedge as a GOGW, to allow repairs to the fence, and prevent it from being damaged again once repaired.
15. The resident questioned what was considered overgrown. The landlord explained that it had no specific guidance on plant height or width and referred to its tenancy agreement, which states that: where the resident has exclusive use of a garden, she would be responsible for keeping it from becoming over-grown or untidy. Given that the landlord’s contractor concluded that the resident’s hedge was overgrown, it was reasonable for the landlord to explain its position in line with its tenancy agreement, which further states that if the resident failed to keep the garden from becoming overgrown or untidy, it would be entitled to decide exactly what work needed to be done and request that the resident carry this out so as to comply with the responsibilities.
16. The ASB Act 2003 defines high hedges as a line of two or more evergreen or semi evergreen trees or shrubs higher than two meters above ground level, that have the potential to negatively affect the reasonable enjoyment of a property. In this case, in line with the ASB Act 2003, tenancy agreement, and the conclusions of the landlord’s contractor it was reasonable for the landlord to determine that the hedges were overgrown.
17. As noted, the landlord has recognised its failure to inspect the hedge prior to issuing its letter and offered appropriate compensation and a GOGW, which in the Ombudsman’s opinion, satisfactorily resolves the complaint.

The associated complaint handling including its level of communication

18. The landlord has a three-stage complaint policy. At stage one it aims to resolve the complaint within five working days, and within ten working days of receiving the complaint at stage two. The policy states that if the resident remains dissatisfied they may be able to appeal the decision, in which it would provide a written response within 20 working days.
19. The resident raised a formal complaint on 3 May 2021 and the landlord issued its stage one complaint response on 17 May 2021, which was outside the landlord’s advised response timescale of five working days. The resident asked to escalate her complaint on 21 June and again on 25 September 2021. On 21 October 2021 she asked that the landlord confirm which stage of its complaint process she was at. The landlord provided its final complaint response on 30 May 2022 which was significantly outside its complaint response timescale of ten working days.
20. This Service acknowledges that on occasions there will be circumstances that mean a complaint response cannot be provided within the designated timeframe, this is usually to be expected when complaints are complex and further investigation is required. However, in accordance with the landlord’s complaint policy, the landlord should have kept the resident informed of any delays and managed the resident’s expectations accordingly, setting clear timescales in which the resident was likely to receive a response. It was appropriate for the landlord to apologise for the delay in its complaint responses, however, because given the significant delay in providing the stage 2 response and its failure to adequately address this, this constitutes service failure and compensation as detailed below is due in view of this.
21. The landlord’s compensation policy does not set out the level of compensation, therefore, the Ombudsman has assessed the level of compensation which should be paid using our own remedies guidance, which is published on our website. The landlord should pay the resident £100 in compensation for the delays in its complaint responses, and the distress and inconvenience caused to the resident.
22. Throughout the landlord’s correspondence with the resident, the stage in its complaint responses was unclear. It is vital that landlords complaint responses clearly depict the stage (stage one or two) of its complaint procedure. If there is no clear indication of which stage the landlord is responding under, this may be confusing for the resident, and we may not be able to conclude the stage of its complaint responses. It is recommended that the landlord take steps to ensure that its complaint responses clearly depict the stage (stage one or two) in line with its complaint procedure.
23. The resident also raised concern about the landlord’s level of communication. In this case, the landlord’s level of communication was appropriate. The landlord appropriately explained its findings in its complaint responses, it kept the resident informed of the reason behind its decisions. It also kept the resident informed of the reasons for its delay in inspections and appropriately addressed each concern in its complaint responses.

Determination

24. In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress in respect of the landlord’s handling of reports about the resident’s overhanging shrubbery and the shared back-garden fence, prior to the investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.
25. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of the associated complaint handling including its level of communication.

Orders and recommendations

Order

26. The landlord is ordered to pay the resident £100 in compensation for the distress and inconvenience caused by its delay in its complaint responses. This should be paid within 28 days of the date of this letter.
27. The landlord should take steps to ensure that its complaint responses clearly depict the stage of its complaint procedure.

Recommendation

28. The landlord should pay the resident £200 in compensation as offered in its final complaint responses, if it has not done so already.