Abri Group Limited (202303671)

REPORT

COMPLAINT 202303671

Abri Group Limited

07 June 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

1. The complaint is about the landlord’s handling of the resident’s concerns about a slope in the garden, and the information it gave her while she was purchasing the property.
2. The Ombudsman has also investigated the landlord’s complaint handling.

Background

3. The resident is a shared owner of a 2 bedroom first floor maisonette with a private rear garden. The resident purchased the property in September 2021.
4. After moving into the property in September 2021, the resident remained in contact with the landlord, and reported snagging issues with the property. She raised concerns around a split in one of the garden fences on 20 September 2021.
5. The resident raised more issues with the property on 25 January 2022 and told the landlord that the garden had not been levelled before the turf was laid. She said the majority of the garden was sloping and she was unable to put any tables or chairs on it. She also said the turf was completely ruined, had bare patches, and clumps were missing. She said that, where the garden was “lopsided”, there was a bare patch all around the outside by the fence which would be where all the rainwater was draining to as the garden was not levelled. She asked for the garden to be made level and all turf re-laid.
6. The landlord arranged for 2 inspections of the resident’s garden in February 2022 and March 2022. The inspections found that the garden was built to design and that the slope was built to stop water collecting on the surface of the garden when it rained. It was also identified that there was no defect with the garden, and it was within a 9 degree gradient allowance according to guidance provided by National House Building Council (NHBC).
7. The resident raised a complaint on 3 May 2022. She said the landlord had told her that 80% of new build homes were built with non-flat gardens, and she had previously asked for the reports or documentation that supported this. She said she was unsure why it believed that a garden where she was unable to make use of most of it was acceptable.
8. The landlord provided its stage 1 complaint response on 8 June 2022. It said there had been a visit to her property on 16 March 2022 about the issue and it had concluded that:
   1. The construction/installation and design of the garden appeared to be in line with design and was not a defect.
   2. There appeared to be no failure in process. Its sales team should ensure garden gradients/features were better communicated to residents prior to handover.
   3. She had been correctly advised that a garden slope was not a defect if it was part of the design.
   4. It had found no reason to dispute the findings of its development team. Their investigation was detailed and thorough. The investigations included site visits, measurements of the garden, analysis of the design, extensive discussions within its build and sales team, and analysis of building controls as laid down by the NHBC. The NHBC guidance stated that unsupported cohesive soil should not exceed 9 degrees, and her garden fell within this parameter as discovered during the visit.
   5. She had mentioned that a member of its staff had said 80% of all new builds had a sloping garden. The member of staff did not recall saying that but, if she did, it was anecdotal from her experience of working in the housing sector and not from any official report.
   6. It apologised that she had to chase it on several occasions for the findings of the visit.
9. The resident remained dissatisfied and on 9 June 2022, asked for her complaint to be escalated to stage 2. She said she was unsure how it believed her garden was acceptable as the majority of it was sloped. She said its builders made the slope as the land was flat, as proven by photographs she had provided. She said she had been informed that 80% of the new builds were not flat, and she expected anything said quoting such specific details to be proven with data and reports and not opinion.
10. The landlord provided its stage 2 response to the resident on 2 August 2022. It apologised that she was dissatisfied with the outcome of her complaint at stage 1. It said from, reviewing the stage 1 complaint, it noted she had raised concerns about the suitability of the garden for her expected use of the area. She was also dissatisfied the slope was not highlighted to her prior to purchase. It said:
    1. It was not upholding her complaint at stage 2 as the garden area had been prepared, was stable, and provided reasonable access as per building regulations and NHBC standards for new build homes.
    2. Where the ground was disturbed during construction, it had been regraded to conform to the general shape of the adjacent ground.
    3. Although no works would be undertaken to her garden, residents could make changes to their garden to meet their individual needs within the guidelines of their lease agreement.
    4. It had forwarded her feedback about the slope not being highlighted prior to purchase to its sales team to help improve future service.
11. The resident contacted the Ombudsman on 8 August 2023. She said:
    1. She was unhappy with the landlord’s final response, and the garden had not been fixed.
    2.  The slope was created by the landlord, and at no point during the sale did it inform her of the slope prior to her purchase. When she raised it with the builder, they told her to log it as a defect, however it had since said it was built to plan and not a defect.
    3. All of the outright owned properties did not have a slope, only the shared ownership properties did. The landlord put the slope in so that shared owners were responsible for making the garden flat.
    4. The slope meant she had no privacy from the neighbours behind her property as the fence did not cover the garden slope. As a single female she was vulnerable and scared as the neighbours ran a childcare business, so the amount of men who collect their children and look into her garden was very unnerving.
    5. The landlord had not been helpful and said she could pay for the garden to be fixed. However, she did not have the money and she would not have bought the property had she known about the unusable garden.
    6. She could not sit on her grass and that was the only part that ever got the sun. Her garden made her upset as she had no privacy and people stared in.

Assessment and findings

Scope of investigation

12. The resident has raised concerns that she was not informed about the slope in the garden during the sale of the property. The Ombudsman is unable to make a finding as to whether the property was miss sold to the resident as this is a matter that would need to be considered by the courts who can reach a decision that is binding on the parties. The resident may wish to seek independent advice about this. The Ombudsman can however consider the landlord’s response once she raised her concerns around the issue.
13. The resident has also raised concerns about her privacy being affected by the garden’s slope with the Ombudsman. Paragraph 42 (a) of the Housing Ombudsman’s Scheme states that the Ombudsman may not consider complaints which in the Ombudsman’s opinion, are made prior to having exhausted a member’s complaint’s procedure. This is unless there is evidence of a complaint handling failure, or the Ombudsman is satisfied that the member has not taken action within a reasonable timescale. The Ombudsman has not been provided with any evidence to suggest that the resident raised the concerns around her privacy with the landlord, or that such concerns exhausted its internal complaints process. As such, the Ombudsman is unable to consider this aspect of the resident’s complaint as the landlord must be provided with an opportunity to respond. Should the concerns continue, the resident may wish to raise these as a complaint, and if so, the landlord is encouraged to provide the relevant responses. The Ombudsman has also made a recommendation relating to the resident’s privacy concerns later in this report,

Garden slope.

14. The landlord explained that, during a home tour 48 hours before completion, on 8 September 2021, the garden was turfed and completed. A member of its staff had spoken with the resident for a couple of minutes, and the drop was explained to be due to the lower level of the neighbouring property. The landlord stated that, at the time, the resident expressed no significant dissatisfaction. She also followed up with an email and raised no concerns with the garden.
15. When the resident notified the landlord of the slope in the garden in January 2022, it arranged for an inspection in February 2022. The result of the inspection was that the garden was completed according to design and that there was no defect. It also provided an explanation to the resident about why the garden had been built the way it had. These were both appropriate actions for the landlord to take.
16. It is important to note that it is not the Ombudsman’s role to assess individual instances of workmanship or determine whether or not an issue raised is a building defect. The Ombudsman’s role is to assess whether the landlord handled the resident’s reports in line with its policies and good industry practice. The service understands the resident’s views, however, having reviewed the evidence provided, the Ombudsman has seen no information which suggests that there was a defect with the garden.
17. It was reasonable for the landlord to refer the issues raised to the member of the development team, following the resident’s concerns around the slope in the garden. This is because the developer was responsible for resolving defects during the defect period. The Ombudsman appreciates that the resident disputes the decision to do this and understands her concerns around neutrality around the completed works. However, industry practice is that the developer assesses the issue (in this instance the garden) and determines whether it is a defect. This is because if it was determined to be a defect, the developer was responsible for remedying the situation. The landlord’s responsibility during the defect period was to act as a liaison between the developer and the resident, and it appropriately did so.
18. The landlord’s new build ownership form explained that it would pass the details of defects to the developer, who may not deem the items to be defects. The landlord did not explain to the resident that the reason the inspection was being completed by the developer was due to the fact she had reported it as a defect prior to her raising it as a concern. However, it was reasonable for it to believe that she was aware that her report would be forwarded to the developer, as the process had been made clear in the new build ownership completion form.
19. The resident also informed the landlord on 15 February 2022 that its inspector had told her that the garden was not fit for purpose. It has not demonstrated that it took any action to investigate the resident’s reports or that it discussed them with the relevant individual, and this was inappropriate. Investigating would have allowed it to identify whether there were any further issues it was unaware of that needed to be addressed, establish whether the comment was made, or what was meant by it. That way it could assure itself that it had taken consideration of all the facts in reaching a decision on how it would approach the matter, and there was nothing outstanding around the issue. However, as the landlord completed a second inspection of the garden, this allowed it to assure itself that the garden was installed properly despite the comments. As such there is no evidence of any detriment to the resident in relation to this.
20. The landlord reiterated to the resident on 25 February 2022 that the garden had been built to the design which was dictated by the existing landscape and ground levels. It advised her that the gradient in the garden was outside of its control, that this was apparent at the point of sale, and this was set by the planning department. It advised her that turf maintenance fell within resident’s responsibilities in line with the lease agreement. It also explained that the inspection being completed by the developer was normal practice within the industry. It further told her that, although she had said she was unable to use tables and chairs on the grass due to the slope, it had provided a patio area for that purpose.
21. The resident raised issues with the patio area as it was next to her garden door and a shed door. She raised concerns with the size of the patio area, it being too small to use as a sitting area and barbeque area, and the fact the doors opened onto the area, and said it was unusable. The Ombudsman understands the resident’s frustration with the situation, however the landlord’s actions were all appropriate to try to help facilitate understanding around her concerns and its actions. It also reasonably explained the patio area was provided for the purpose she said she wanted to use the garden for.
22. The landlord then completed a second inspection in March 2022, which agreed with the original inspection. It identified that the slope in the garden was not a defect, and it was built in this manner intentionally. It again provided an explanation about the construction of the garden, why it was built in the manner it was, and found the installation was to a reasonable standard. This was a reasonable approach to take, and the landlord was entitled to rely on the advice of its expert.
23. The lease places responsibility for cleaning and repairs to the garden on the resident. As the landlord had completed 2 inspections which found the garden installation was not defective, any works to the garden would be the resident’s responsibility in line with the lease.
24. Following the inspection in March 2022, the resident requested an update on 3 occasions from the landlord. She was told that her query had been forwarded on to the inspector and she would receive a response. She was then not provided with an update for a period of 6 weeks, and this was unreasonable. The landlord was aware of the level of frustration and distress the resident faced around the issue. As such it should have taken the time to explain any delays to her and why they were occurring if it was unable to provide her with the information she wanted.
25. The landlord acknowledged that there had been a failing with its communication with the resident’s information request and apologised for this. This was in line with its putting things right policy as it acted and offered her remediation around its failing through its apology at stage 1 of its complaints process. The landlord however failed to consider the time and effort taken by the resident to repeatedly request updates from it on 3 occasions across the 6 week delay.
26. The landlord responded to the resident’s comment about the slope not being explained to her prior to the purchase in its stage 2 response. It advised that it had fed this back to its sales team to better the service provided in future. Whilst this was an appropriate action to take, it may have been helpful for it to have explained to her why the information was not provided to her prior to the sale. The failure to do so was unsatisfactory and raises further concerns with its communication.
27. In summary, the landlord acted reasonably when it was notified of the slope in the resident’s garden. It arranged for 2 inspections to be completed which identified there was no defect in the build of the garden. It also explained the reason the garden was built in that way and advised that a patio area was provided for the purpose the resident wanted to use the garden for. It however failed with its communication with the resident. This is because there was a 6 week delay in it providing her with information she requested following the second survey. Although it apologised for the issues with its communication, it failed to consider the time and effort taken by the resident to request updates from it. Although it took learning from her report about the lack of information about the slope in the garden prior to sale, it did not explain why this information was not provided to her. Based on this, the Ombudsman finds that there was service failure.

Complaint handling.

28. The landlord’s putting things right policy states that it should always consider redress and remediation. It defines redress as financial compensation, and remediation as actions. Following the completion of the landlord’s internal complaints procedure, it did not offer the resident any redress or remediation around the minor delays throughout the complaints process. The failure to demonstrate that it offered any redress or remediation (such as an apology) in a timely manner, was not in line with its policy.
29. 15 months after the completion of the complaints process in November 2023, the landlord then offered the resident compensation of £250. It identified there had been failings over the delays in its complaint handling. There was a 4 working day delay at stage 1 after asking for an extension from the resident and a 14 working day delay at stage 2 after asking for another extension.
30. It is unclear what led to the landlord’s review of the resident’s complaint, and its decision to award her compensation at this time. It is also unclear why it had not offered the resident the compensation at the time of her complaint, as doing so would have been adequate redress for its complaint handling failings. Doing so 15 months after the complaints process shows that it did not recognise its failings and address them in a timely manner, and this was unreasonable. The landlord’s offer of redress was reasonable, however, due to the delays in acknowledging and taking action to address its failings, the Ombudsman has made a finding of service failure.

Determination (decision)

31. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
    1. Service failure with the landlord’s handling of slope in the resident’s garden.
    2. Service failure with the landlord’s complaint handling.

Orders and recommendations

Orders

32. Within 4 weeks of this report the landlord must:
    1. Provide the resident with an apology around the failings identified within this report.
    2. Pay compensation of £350 to the resident. This is broken down as:
       1. £250 previously offered in its letter of November 2023 if this has not already been paid.
       2. £100 for its communication failings around the resident’s information requests in relation to the garden slope.
    3. Provide proof of compliance with these orders.

Recommendation

33. The landlord should work with the resident to identify any options which may assist with rectifying her concerns over her privacy.