Reading Borough Council (202120998)

REPORT

COMPLAINT 202120998

Reading Borough Council

17 March 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

1. The complaint is about the landlord’s:
   1. Response to the resident’s concerns about ad-hoc visits and the conduct of a member of its staff.
   2. Response to the resident’s concerns about their garden.
   3. Complaint handling.

Background

2. The resident lives in a property owned by the landlord, a local authority, since 2012 under a secure tenancy. The landlord is aware that the resident has mental health issues including anxiety and emotionally unstable personality disorder.
3. In August 2020 the resident complained that a housing officer called, unannounced, to the property to check the height of the resident’s hedge. The resident stated that the housing officer shouted at them and made a rude gesture. The resident stated the harassment from the housing officer exacerbated their mental health symptoms and they did not want him calling unannounced again.
4. The landlord responded that the housing officer had previously written to the resident to return the garden to a usable space and, although some progress had been made, more was needed; a further visit would be arranged in September 2020. The landlord apologised if the resident felt harassed and said that a different housing officer would attend in future, and that might be booked in advance or ad-hoc. The resident escalated the complaint and added that this was discrimination based on their disability.
5. The resident complained in September 2020 that they were unable to maintain their garden due to the neighbour’s garden encroaching theirs. The landlord partially upheld this complaint and said measures were in place to resolve this. It asked that the resident did what they could in the meantime to cut back the vegetation that came into their garden.
6. The final response regarding the resident’s garden in October 2020 said that 24 hours’ notice would be given in future, staff would attend equality and diversity training and the resident would be allowed to keep their front hedge to seven foot to allow privacy. The final response regarding the neighbour’s garden was partially upheld due to a delay in the response but could make no finding regarding the neighbour’s garden as it related to a tenancy other than the resident’s.
7. The resident remains dissatisfied that the housing officer turned up without notice, the resident’s mental health conditions have been impacted by the landlord’s actions and they feel the landlord should maintain the neighbours garden as it continually encroaches on the resident’s garden.

Assessment and findings

Scope of investigation

8. The resident provided a large amount of information to this Service which included a chronology going back over a decade, detailing previous complaints regarding the landlord, on a range of subjects. It is understood that this history will affect the resident’s expectations and inevitably add to their anxiety around any interaction with the landlord. Whilst this information provide context for the resident’s experience, none of the previous complaint issues are considered in the current complaint investigation.
9. There were two separate complaints logged by the landlord which have overlapped and, given the nature of the issues, they have been investigated together in this report. The first response following the resident’s complaint about the landlord asking them to reduce the height of the hedges at their property, was August 2020. The complaint about the resident’s neighbour’s garden was first responded to by the landlord in October 2020. The final responses were issued in October and December 2020 respectively.
10. This report considers the appropriateness of the two final complaint responses. It does not decide if the garden maintenance work was necessary or what jobs should have been included, but whether the landlord responded reasonably and appropriately to concerns raised by the resident. The two final complaint responses cross over in terms of the issues being responded to, but taken as a whole, cover the broad complaint issues of this report.
11. The various issues raised after the final responses are not included in this investigation. The Housing Ombudsman Scheme says that the Ombudsman will not usually investigate complaints which are made prior to having exhausted a member’s complaints procedure. This means that landlords must usually have an opportunity to investigate complaints before they are brought to this Service. This includes the resident’s concerns about the gardening work carried out in January 2021 and the fence which was installed on the boundary between the resident and their neighbour in April 2021. While the Ombudsman expects the landlord to carry out resolutions discussed in the final response letter, new issues which arise from that work would need to be raised as formal complaint by the resident and, if needed, escalated to this Service.

Assessment

The landlord’s response to the resident’s concerns about the ad-hoc visits and the conduct of a member of its staff

12. The tenancy agreement says that the tenant “must give the council’s employees or contractors acting on behalf of the council access at reasonable times and after reasonable notice (except in an emergency) to inspect the condition of the property or to carry out repairs or improvements to the property or adjoining property. The council will normally give at least 24 hours’ notice but immediate access may be required in an emergency.”
13. This does not explicitly suggest that a housing officer calling at the address to discuss the garden, which can be seen from the street and would not require them to enter the property, is unreasonable in itself. It is not unusual that a housing officer being in the area would call on a resident informally. It is understood from the resident’s chronology, that the housing officer was in fact due to visit two days later but called earlier unannounced.
14. The Equality Act 2010 sets out the landlord’s responsibilities, as a public body, to have due regard to the advancement of equality of opportunity between persons who share a protected characteristic, and those who do not. This requires the landlord to ensure it avoids indirect discrimination. Of particular relevance to this case, the landlord is expected to take steps to meet the needs of people with mental health problems that are different from the needs of people who do not.
15. Where a landlord has been alerted to a resident’s particular request that they be given advance notice of a visit from the landlord due to their anxiety, it is reasonable for it to adjust its actions particularly given its obligations in the Equality Act 2010 to consider variation of its services. The landlord’s initial response about staff in August 2020 said that visits may be ad-hoc, as with other tenants in the borough. However, the landlord has since confirmed that it was noted on the resident’s sign up for the tenancy that the resident wanted visits by appointment only, so the housing officer was in error to visit unannounced.
16. In the final complaint response of 14 October 2020, the landlord committed to giving the resident 24 hours’ notice of any visits and tagging the file to reflect this. It also said that equality and diversity training would be refreshed to ensure the needs of tenants with mental health issues were considered and responded to. It apologised for any distress caused and partially upheld the complaint. It is noted that there were occasions since the final response when contractors have arrived at the property unannounced. It seems that contractors had finished a previous job earlier than expected or had been in the area at the weekend so had called at the address they had work scheduled for ahead of time. The landlord’s notes show that when the contractors were made aware of this, the process for giving notice via an allocated support worker was reinforced.
17. The landlord did not act appropriately by carrying out any unannounced visits to the property. It has indicated that it has now taken steps to ensure, as far as possible, that the incident would not be repeated. On a wider front, it evidenced that disability awareness would be raised across the organisation through further training. It is not possible to return the resident to the position they would have been in had the visit not taken place, but the landlord’s response is largely positive and points to a willingness to learn from complaints.
18. However, the landlord did not offer any financial remedy to reflect the upset caused by the ad-hoc visit in August 2020. The resident has detailed the profound effect that particular visit had on them and given the landlord’s awareness of the resident’s mental health issues, the first stage response reinforcing the intention to visit on an ad hoc basis, albeit that was later changed, must have been particularly upsetting. Given that impact, it is fair in all the circumstances that compensation be awarded. The Ombudsman recognises that some of our residents’ circumstances mean that they are more affected by landlords’ actions or inactions than others. This might be due to their particular circumstances, or as a result of a vulnerability. Consideration of any aggravating factors (such as a resident’s mental health condition) could justify an increased award to reflect the specific impact on the resident. Therefore, the sum of £350 is appropriate here to reflect the evident distress caused to the resident.
19. The resident has stated that they are seeking compensation in part due to the landlord’s discrimination based on their disability. The Ombudsman’s role is limited to investigating housing related matters and whether a landlord has complied with its duties and obligations under a tenancy agreement or any relevant policies. Therefore, complaints about discrimination would be a matter for the courts to consider under the provisions of the Equality Act 2010.
20. In relation to the conduct of a member of staff, the resident reported that the housing officer was rude and in particular made insulting gestures to him. The landlord replied that it was not the housing officer’s intention to cause distress, and future visits would be made by a different officer. In cases where there are conflicting recollections between two parties, it is not possible for the Ombudsman to make a definite finding on what occurred. It is also noted that the incident was reported to the police who took no action. Given that the incident was not witnessed, it is reasonable that the landlord apologised for any upset, and offered to allocate a different housing officer to the resident, to avoid any further distress to the resident.

The landlord’s response to the resident’s concerns about their garden

21. The tenancy agreement says that “if your property has a garden you must make sure your garden is tidy – lawns must be cut and hedges trimmed. You must not allow trees or vegetation to overhang public areas or the garden of neighbouring properties. If you do not maintain your garden and there is no good reason why you can’t do it the council may clear it and charge you for the work”’. The landlord’s “looking after your home” leaflet says that the tenant is responsible for keeping their garden “well-maintained and free from rubbish”.
22. The resident had complained about the neighbour’s garden encroaching and that the housing officer had asked them to reduce the height of their hedges and maintain the garden when this was made more difficult by the additional vegetation. At the time of the relevant final complaint response on 14 October 2020, the landlord said that it would collect hedge cuttings on that occasion as the resident was unable to get to the recycling centre due to lockdown restrictions. It also advised that the resident would be able to keep the hedge at the front of their house to seven foot as desired (provided it did not cause an unacceptable loss of light to their neighbours), and that they should negotiate with neighbours as to what height boundary hedges were agreeable.
23. It was appropriate for the landlord to ask the resident to maintain their garden as it was their responsibility under the tenancy agreement. It is noted that the resident has since explained that they were physically unable to maintain the garden for a nine-month period in 2018 when they were unwell. The landlord has confirmed that it was informed since that the resident became paralysed down the right side in 2018, but was not made aware of this at the time. The landlord’s notes illustrate that when it visited in December 2020, the resident had done some work in the garden and said they had no problem doing this and enjoyed gardening.
24. There is some confusion about the first contact the resident had regarding the hedge, and not unreasonably, they felt that the initial letter threatening legal action in June 2020 was heavy handed. There is also confusion about the visit from a housing officer regarding the issue as the resident was not at home on the date quoted by the landlord, 8 July 2019. It is noted that this may be in error in terms of the date but it does not affect the outcome overall, while understandably an irritation for the resident.
25. Overall, there is no evidence that the resident was unable to maintain their garden from 2020. It follows that there is no evidence that the landlord did not respond reasonably in informing the resident that failure to maintain the garden was a breach of the tenancy agreement, and asking them to reduce the height of their hedge. There is disagreement and discussion about the permitted height of the hedge, but ultimately the height was agreed between the parties. Although the nature of the visit to the resident in August 2020 was not appropriate, there is no service failure shown in respect of the landlord’s response to the resident’s concerns about their own garden maintenance.
26. When the resident raised concerns about maintaining their garden due to the neighbour’s garden encroaching on it, the landlord said in its initial complaint response that it appreciated how difficult this was and said it was putting measures in place to resolve this. It added, in the meantime, the resident should do what they can to maintain their side. The landlord also offered to assist the resident, if they felt their own garden was unmanageable, once the neighbours garden had been cut back to a reasonable level (albeit this would be chargeable but could be repaid over time). That was a reasonable response.
27. The landlord’s final complaint response dated 17 December 2020 included a 15-page report which again evidenced a thorough investigation. It did not give further details about work in the neighbour’s garden, which is not unreasonable in terms of the neighbour’s confidentiality.
28. After they received the stage one complaint response in October 2020, the resident stated that the landlord’s reply did not reflect that this issue had been going on since their tenancy began in 2012 but had not been acknowledged. The landlord’s final response report listed three visits to the property in the first year of the tenancy and said that there was no communication about the neighbour’s garden before January 2020. At this time, a housing officer had visited the resident to discuss the overgrown hedges and they had said that over-hanging vegetation from the neighbour’s garden had stopped them maintaining their own garden. The team leader said they would look into the matter. The landlord records included notes of letters and visits to the resident concerning their own hedge in 2013 and again in 2019 and 2020.
29. The report which accompanies the final response appears to have an error as it refers to the first time the neighbour’s garden was commented on by the resident as being 9 January 2020 (which would appear correct as it follows an item dated July 2019), but later in the report it says the resident first reported the neighbour’s garden in January 2019. It is assumed the 2020 date is correct as there is no evidence to the contrary.
30. One of the outcomes requested by the resident was that the landlord commit to a schedule of maintenance for the neighbour’s garden. This is not something which the Ombudsman can reasonably include in this investigation as it does not relate to the tenancy of the resident making the complaint. It is fair and reasonable that the landlord takes steps to ensure that the neighbour’s garden does not encroach onto the resident’s garden. This may be by requesting that the neighbour takes certain action where the landlord has agreed to assist the neighbour due to vulnerability.
31. There is no evidence to suggest that the resident raised the issue of their neighbour’s garden prior to the landlord’s visits in January 2020. The evidence supports that the resident raised the issue of the neighbour’s garden impeding maintenance on their side of the fence, after they had been approached about their own garden. Notwithstanding this, there is no evidence to suggest that the landlord acted inappropriately in addressing the problem of overhanging vegetation from the neighbour’s garden or that its action or inaction impeded the resident maintaining their garden to a significant degree. Therefore, the evidence demonstrates that the landlord’s response to the residents’ concerns about the neighbour’s garden were appropriate overall.

Complaints Handling

32. The landlord’s online corporate complaints procedure says that stage one complaints will be responded to within 20 working days, and stage two within 30 working days. Its “complaints about landlord services” booklet and its corporate complaints procedure both say that stage two complaints should be dealt with by a more senior member of staff than the first.
33. In this case, the stage one response to the resident’s complaint about the housing officer informing the resident they had to reduce the height of the hedge was issued on 21 August 2020, well within the 20 working days timescale. The final response on 14 October 2020 was late, but the resident had been made aware and the landlord did apologise for the delay. It is noted that the resident said they did not agree to the extension.
34. The response included a detailed nine-page report, the contents of which indicated that the landlord had taken sufficient time and effort to investigate the complaint. It noted that the first response did not fully address the complaint; it had not consistently taken the resident’s mental health conditions into account and adapted its services; and there had been a lack of definitive assurance that there would be no further ad-hoc visit to the resident’s property (outside of an emergency).
35. The recommendations suggest a positive approach by the landlord to the complaint. This is in accordance with the Ombudsman’s Dispute Resolution Principles, which is to have a process that seeks to put things right for residents, is fair, and that learns from outcomes.
36. There is also some confusion around the dates of letters on the second complaint; however, it is clear that the final complaint was issued on 17 December 2020. This was not appropriate as it was sent outside the landlord’s timescales set out in its complaints procedure.
37. The Ombudsman’s Complaint Handling Code (the Code) was launched in July 2020 and landlords were asked to undertake a self‑assessment to consider how their policies followed the code. The Code says that landlords must respond to the stage two complaint within 20 working days of the complaint being escalated. Exceptionally, landlords may provide an explanation to the resident containing a clear timeframe for when the response will be received. This should not exceed a further 10 days without good reason.
38. The landlord published its self-assessment under the Code in December 2020 and advised that it was reviewing how best to adopt to the Code within the current corporate complaint’s procedure; and that it would look to repeat the self-assessment following the review in six months. No updated self‑assessment or complaints policy was found on the landlord’s website or submitted to this Service for consideration. The current policy says that stage two complaints will be responded to in 30 working days, and whilst the timescales would not reasonably have been changed to reflect the Code at the time of the resident’s complaint, the policy should now be updated.
39. The resident has raised that they were advised that an officer from a different department would investigate the complaints at stage two. However, the landlord’s complaint policies, both corporate and within housing, only say that the stage two complaint should be undertaken by a more senior member of staff, not necessarily from a different department. This concurs with the Code which says that a different person should investigate at stage two.
40. Overall, the final responses indicate thorough complaint investigations, consideration to the needs of the residents and a willingness to make improvements. The stage two responses acknowledged where errors had been made previously, but the landlord’s position was unchanged in relation to the resident’s obligation to maintain their own garden.
41. However, there was a failure to keep to the landlord’s own timescales and to keep the resident informed of delays. The Ombudsman’s remedies guidance allows for financial compensation of between £50 and £100 in cases where there has been a service failure of short duration, which may not have affected the overall outcome but caused distress and inconvenience. Accordingly, the sum of £100 in respect of the delays in the two final responses being issued would be appropriate in this case.

Determination

42. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its response to the resident’s concerns about ad-hoc visits and the conduct of a member of its staff.
43. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its complaint handling.
44. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s concerns about their garden.

Orders

45. Within four weeks of the date of this determination, the landlord should provide evidence it has taken the following action and provide evidence of that to the Ombudsman:
    1. Paid the resident £350 in respect of the landlord’s response to the resident’s concerns regarding the conduct of members of its staff.
    2. Paid the resident £100 in respect of the delay in the complaint responses being issued.
46. Review its complaints policy giving specific consideration to the Code in relation to the timescales for responding to complaints.