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Metropolitan Thames Valley Housing (MTV) (202333543)

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REPORT

COMPLAINT 202333543

Metropolitan Thames Valley Housing (MTV)

16 June 2025


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 response to the resident’s request to remove a communal garden wall.

Background and summary of events

  1. The resident is a shared owner of a 2-bedroom ground floor flat. She pays a service charge to the landlord, who is responsible under the lease for maintaining the communal areas. In July 2022 the landlord replaced a wooden wall in the communal garden area. This was originally installed by the developer to retain the soil on the slope behind the block, and prevent it from washing down towards the building.
  2. On 4 June 2023 the resident wrote to the landlord about the work it had completed in the communal garden outside her patio. She stated that:
    1. the landlord had used creosoted railway sleepers to build the retaining wall, which was a “very serious problem”.
    2. as per UK legislation, wood treated with creosote cannot be used in parks, gardens, or anywhere posing a risk of contact with skin.
    3. the wall was less than 2 metres away from her patio, and in the communal garden where her children should be able to play. They were unable play outside because the wood could cause “skin cancer”.
    4. she had asked it to send her a risk assessment report more than once but had never received one.
    5. the wall was a serious health hazard and needed to be removed “as soon as possible”.
  3. The resident wrote again to the landlord on 22 June 2023 reiterating her concerns. She stated that she wanted to raise this as a new complaint. The landlord acknowledged her complaint on 29 June 2023. It sent her a stage 1 response on 3 July 2023. It said it did not uphold her complaint because:
    1. it had replaced the retaining wall in July 2022 as the previous one was “rotting and dangerous”.
    2. its contractor had advised it that there was no legislation that prevented the use of reclaimed railway sleepers for retaining walls. It provided 2 websites links detailing the legislation on the use of creosoted wood.
    3. it had not passed the cost of replacing the wall onto the residents.
    4. if she wanted the wall to be rebuilt in a different material it would have to consult with other leaseholders first.
  4. The resident responded to the landlord on 3 July 2023 and said that:
    1. she could not let her children play outside when the wall was only a metre away from her windows and patio.
    2. it should remove the wall and level the ground instead.
  5. The landlord wrote to the resident on 4 July 2023 acknowledging her continuing concerns. It stated it would send her a further response within 20 working days. It issued its stage 2 response on 5 July 2023 stating that:
    1. any changes to the estate would be considered an improvement under her lease. Removal of the wall and levelling off the ground to the boundary would “come at a significant cost”.
    2. if a leaseholder wishes to request an improvement to the housing scheme, the other leaseholders would have to vote for the proposal.
  6. The resident wrote to the Ombudsman on 21 December 2023 to say she was unhappy with the landlord’s response because:
    1. the wall in the communal garden posed a danger to her and her children’s health. She wanted the landlord to “get rid” of it as it was made of “dangerous materials”.
    2. she did not want to open her windows because of a “horrible smell” coming from the materials used.

Assessment and findings

Scope of investigation

  1. It is acknowledged that the resident is unhappy about the new retaining wall the landlord had built in the communal garden. Her desired outcome is for the landlord to remove the wall completely or replace it using different materials.
  2. Our role is to determine complaints by what is fair in all the circumstances. We seek to establish whether a landlord failed to comply with any relevant obligations, such as those set out in the resident’s lease. Additionally, we consider whether the landlord has followed its policies, procedures, and good practice. We will then determine if there have been any failings and make orders to try to put the resident back in the position they would have been if those failings had not occurred.
  3. The resident has also raised concerns about an unpleasant smell coming from the materials used to build the wall. As this issue did not from part of the formal complaint to the landlord under consideration, this is not something we can investigate at this stage. This is because the landlord needs to be provided with the opportunity to investigate and respond to this report. The resident will need to contact the landlord and, if appropriate, raise a separate complaint to get this matter resolved. They may then approach the Ombudsman if they remain dissatisfied. However we have considered how the landlord handled the resident’s concerns about the safety of the chemical used.

Request to remove a treated timber wall

  1. Government legislation covering the control of the marketing and use of creosote came into force in the UK in June 2003. It states that railway sleepers treated with creosote may not be used:
    1. inside buildings.
    2. in playgrounds.
    3. in parks, gardens and outdoor leisure facilities where there is a risk of frequent skin contact.
    4. for making garden furniture such a picnic tables.
  2. The landlord does not have a specific policy on the use of creosote treated wood in its properties, or communal areas. However, it would be expected to adhere to the above mentioned legislation.
  3. Records of internal correspondence make mention of a risk assessment. However, it is unclear whether the landlord or its contractor had carried one out prior to building the new retaining wall. However, there is no indication it was under any obligation to carry out a risk assessment in this case.
  4. As part of its investigation into the resident’s concerns, it consulted with its grounds maintenance contractor that had built the retaining wall. The contractor told the landlord it was not aware of any legislation that prohibited the use of reclaimed railway sleepers for retaining walls. It is reasonable for landlords to rely on the advice provided by suitably qualified professionals.  
  5. The records show that the landlord responded reasonably to the resident’s concerns about whether creosoted timber was permitted for use in the communal garden. It shared the advice it had received from its contractor. It also provided links in its stage 1 response to information relating to the relevant legislation, which sets out where reclaimed railways sleepers cannot be used.
  6. It was reasonable for the landlord to explain the reasons it had replaced the retaining wall. The landlord also appropriately tried to manage the resident’s expectations in response to her request to rebuild the wall with different materials. It correctly told her that this would require the agreement of the other leaseholders and be subject to a consultation process.
  7. However, given the anxieties the resident had expressed about the safety of her children, the landlord could have done more to offer her reassurance. Furthermore, its responses should have been more empathetic and understanding of the resident’s concerns.
  8. The landlord told the Ombudsman on 9 July 2024 that the area where the wall was situated was “primarily designated for bin storage and is not intended as a play area for children”. The landlord ought to have included this information in its response to the resident. It could also have sought appropriate advice so it was able to give her greater clarity around what could be defined as “frequent skin contact”. It could not demonstrate that it had taken reasonable steps to give her reassurance around the risks of the treated timber. This was a failing and caused her ongoing distress about the possible danger to her children of being in the communal garden.
  9. Furthermore, the landlord could have discussed with the resident any actions it could take to minimise the risk of her children coming into contact with the retaining wall. It could have considered putting up signs to deter residents from touching the treated wood. It could also have explored whether there were any barriers it could erect or cladding it could install to help prevent direct contact with the wall. However, we understand this would likely be subject to consultation with other leaseholders, depending on the cost of any such options.
  10. The landlord acknowledged to us on 9 July 2024 that it could have communicated more clearly with the resident regarding the materials used and addressed her concerns more effectively. It stated that it wanted to offer her £50 compensation in recognition of this. It is unclear why the landlord did not offer compensation for its failures during the complaints process. As it had failed try and put things right at the appropriate time, we cannot consider that its offer was reasonable redress. However, although its offer came after the conclusion of the complaints process, it is positive that the landlord did eventually recognise its failings.
  11. For the reasons stated, we have made a finding of service failure. We will order that the landlord pays the resident £100 compensation. This in recognition of the distress and inconvenience caused by the landlord’s lack of clarity over the use of the area with the retaining wall, and definition of frequent skin contact.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s response to the resident’s request to remove a communal garden wall.

Orders

  1. Within 4 weeks of the date of this report, the landlord should must:
    1. apologise to the resident for the failings identified in this report. The apology should follow the best practice set out in the Ombudsman’s remedies guidance and a senior member of the landlord’s staff should make it.
    2. pay the resident £100 compensation in recognition of its inadequate communication and the distress caused as a result. If it has already paid her the £50 it had previously offered, this can be deduced from the overall total.
    3. contact the resident to discuss whether there are any options available to reduce the likelihood of children coming into direct skin contact with the retaining wall. It is acknowledged that the landlord will be restricted by the requirement to seek agreement from other leaseholders, and any associated cost implications.

Recommendation

  1. The landlord should consider whether it would be appropriate to put signs up in the communal area to deter residents from touching the retaining wall.