Metropolitan Thames Valley Housing (MTV) (202216453)

REPORT

COMPLAINT 202216453

Metropolitan Thames Valley Housing (MTV)

31 January 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:
   1. Communal garden maintenance allocation.
   2. The associated complaint.

Background and summary of events

Background

2. The resident is a secure tenant of the landlord, which is a housing association. The property is a 1 bedroom flat. The tenancy commended on 21 March 1983.
3. There are no recorded vulnerabilities for the resident recorded in the evidence provided by the landlord.

Landlord obligations

4. The landlord’s antisocial behaviour (ASB) policy states it would:
   1. Tackle the causes of ASB and prevent incidents arising and escalating.
   2. Take the necessary management in intervention and legal action to deal with perpetrators of ASB.
   3. Provide residents with appropriate advice, support and assistance.
   4. Work in partnership with other specialist agencies where appropriate.
5. The resident’s tenancy agreement states that, where appropriate, the resident must maintain the garden pertaining to the premises, and in any case, the main walks, borders, shrubs and areas of grass and lawns must be undamaged, litter-free and undisturbed.
6. The landlord operates a 2 stage complaints procedure. It will respond to stage 1 complaints within 10 working days and stage 2 complaints within 20 working days.
7. The landlord’s compensation procedure explains it may consider a further financial award to reimburse a resident where a resident incurs costs or there has been a financial loss.

Scope of investigation

8. Paragraph 42(a) of the Scheme states, the Ombudsman may not consider complaints which, in the Ombudsman’s opinion:
   1. Were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising.
9. Part of the resident’s complaint relates to ASB reports about a neighbour between 2019 and March 2021.This was in respect of removing and damaging items within her private garden area at the rear of her property and the communal gardens. This resulted in the resident obtaining an injunction against a neighbour.
10. The resident complained to the landlord on 16 June 2022. Whilst this Service is able to look at events from 16 December 2021, this investigation will consider the landlord’s handling of the matters complained about from 17 May 2022. This was when the resident reported the actions of another neighbour to make changes to the communal garden. There is no evidence of previous issues reported before this date, within the scope of investigation.
11. The Ombudsman’s role when considering complaints is to assess whether the landlord appropriately considered matters within the timeframe of the complaint, and reasonably applied its policy and procedure, complied with any relevant legislation, and followed good practice when reaching decisions. Whilst this Service cannot assess the actions after the internal complaint procedure (ICP) was completed, this Service can ensure that this is taken into account and will inform any remedies made. Any reference to events after the ICP and outside of the scope of this investigation are included for context and will not be assessed.

Previous events

12. In November 2012, the landlord sent a letter to residents where it allocated parts of the communal gardens to residents to maintain. It explained if gardens were not being maintained to reasonable standards, then they could be reallocated back to the landlord to maintain.
13. In April 2021, it was explained to the resident the communal gardens were allocated for resident’s wishing to carry out gardening, to have their own plot to be responsible for. It explained the gardens remained communal and were never included as part of her tenancy. The only garden space the resident was allocated for private use was the garden area immediately behind her property, not the front communal gardens.
14. In July 2021, the landlord advised the resident that due to ASB reports, it divided the back garden behind the resident and her neighbour’s flats to create a private garden space. The front gardens were to remain communal, but the resident took responsibility of the space in front of her and her neighbours flat. It reiterated as per her tenancy; no gardens were allocated legally.

Summary of events

15. On 17 May 2022, the resident informed the landlord her neighbour removed the plants in the front communal garden. She explained she believed the neighbour was in breach of their tenancy, as they behaved in a manner which was a nuisance and annoyance to neighbours and damaged the common parts used by other residents. She was concerned the landlord allowed the neighbour to do this when the landlord was responsible for the upkeep and appearance of the planted areas and did not believe the landlord would want those areas to be vandalised.
16. On 19 May 2022, the landlord confirmed it would review its grounds maintenance provision to the front of the apartment block. It would write to residents in the following weeks.
17. On 31 May 2022, the landlord notified residents it would engage in consultation with residents to decide the future grounds maintenance of the communal front garden space. It explained:
    1. It had previously given exception to normal procedure to allow residents to request permission to maintain the communal garden. It gave exception on the condition residents worked together in a respectful and co-operative manner to keep the garden to an expected standard.
    2. Recent events showed the management of the garden was not working and it would therefore review how the communal garden was maintained going forward.
    3. It asked for feedback from residents.
18. On 16 June 2022, the resident complained to the landlord. She explained:
    1. The landlord failed to investigate actions amounting to ASB behaviour by her neighbour, which resulted in her obtaining an injunction against the neighbour. She noted her concerns about the neighbour related to:
       1. they demonstrated no interest in caring for the gardens adjacent to their flat
       2. they destroyed the existing garden, turning the area into an eyesore
       3. they would not allow entrance to other residents to maintain the garden.
    2. The landlord did not uphold its ASB procedures.
    3. The landlord misled her relating to her rights and obligations in respect of the communal garden area. Its decision to engage in consultation around the use of the communal gardens was against the tenancy agreement.
19. On 19 August 2022, the landlord wrote to residents to update them on the consultation process. It would follow up with residents on the feedback received. It reminded residents the communal garden was owned by the landlord and its objective was to ensure it met it obligations whilst ensuring residents voices are heard and considered within the consultation process.
20. On 24 August 2022, the landlord provided its stage 1 response:
    1. It explained the front gardens were communal, but the back gardens can be used by the occupants of the ground floor flats. The landlord owns the land, and the communal gardens were not part of the resident’s tenancy agreement. It would still need to monitor how the gardens were being maintained and it could take back ownership of the grounds maintenance if required.
    2. It noted the future use of the communal gardens was under consultation with residents.
    3. It offered the resident compensation for its delayed stage 1 response in the sum of £40. It also offered £60 compensation in respect of its handling of ASB reports, which is outside of the scope of this investigation.
21. On 13 September 2022, the resident escalated her complaint to stage 2. She disagreed with the landlord’s position relating to the communal gardens. She believed she was misled as to how the communal gardens were allocated and she believed her tenancy agreement gave her responsibility. She also requested she was reimbursed for the plants which were removed from the communal garden.
22. On 27 September 2022 the landlord provided its stage 2 response. The landlord explained:
    1. It was not liable for the plants residents plant themselves and any planting done by residents was at their own risk. It would therefore not reimburse the resident.
    2. It was under consultation with residents regarding the future use of the communal garden space to ensure a reasonable and amicable agreement was put in place with guidelines confirmed to residents. It encouraged the resident’s cooperation with the consultation process.

Events post complaint

23. On 20 December 2022, the landlord wrote to residents following the conclusion of the consultation process. It confirmed it would give all residents on the ground floor the option to maintain the communal garden space immediately in front of their flat only. It would therefore withdraw the discretionary consent given following a previous consultation, which gave some residents the opportunity to manage spaces to the front of flats of other residents. If a resident did not wish to maintain the garden space in front of their property, it would arrange for the space to be added to its contractor’s schedule of ground maintenance.
24. It explained the reasoning for the approach was that when residents in the ground floor flats moved out, some new residents wanted to change who managed the area in front of their flat but found that they did not have a say in this. Additionally, new residents who wanted to make changes to the style and planting of the garden in front of their flat did not have this option if another resident had already invested time and money creating a garden they wanted. This gave rise to conflict between neighbours which it deemed unacceptable and could only be resolved by changing the approach to how each space was maintained.

Assessment and findings

25. When investigating a complaint, the Ombudsman considers its Dispute Resolution Principles. This is good practice guidance developed from the Ombudsman’s experience of resolving disputes for use by everyone involved in the complaints process. There are 3 principles driving effective dispute resolution:

a. be fair – treat people fairly and follow fair processes

b. put things right, and

c. learn from outcomes.

Communal garden maintenance allocation

26. The evidence provided shows there was a community approach to the management of the front communal gardens, shared between residents at the block of flats. This Service notes there had been a shared understanding between residents and the landlord, that residents worked collectively to maintain the front communal gardens, providing residents with opportunity to practice their gardening hobby.
27. The resident’s tenancy agreement gives her rights to maintain the communal garden area. However, the communal gardens are owned by the landlord and there is no evidence the communal garden area was legally allocated to the resident. The permission to maintain the communal gardens was discretionally awarded to residents by the landlord, outside of its usual procedure to use contractors. Previously, the discretionary allocation was on the basis an area of the front communal garden would be maintained by the resident residing within the property facing the front communal garden. If the resident did not wish to maintain the garden, it would be allocated to another resident who wished to be responsible for the maintenance. This process continued when new residents moved into the block.
28. The evidence suggests this discretionary agreement remained undisturbed for approximately 40 years. However, recent events occurred where a neighbour moved into a property which faced an area of the front communal garden and did not wish to maintain the garden space. The neighbour also did not enjoy how the area of communal garden his property faced was used and sought to remove the plants and trees.
29. This Service appreciates the time, effort and expense the resident and her neighbours put into the front communal garden space and the overall enjoyment this area brought. However, this Service recognises the landlord has ownership of the communal gardens and it can choose to maintain the communal garden as it sees fit. Whilst the resident did not agree with the landlord’s decision to not take action against the neighbour for removing the plants within their area of the communal garden, the landlord has the overall rights to decide how the area should be used.
30. The landlord showed good practice to commence a consultation process with the residents at the block, inviting feedback and listening to residents opinions. This Service notes the landlord’s decision following the consultation process was provided after the ICP was completed. It is appreciated the decision was not what the resident wanted. However, it is acknowledged that other residents with a property facing the communal garden area should also have their views listened to. If they did not wish for a garden area to block their outside view, this also had to be taken into account, even if other residents did not agree. The landlord showed good practice to come to a decision which provided a balanced outcome, despite this causing the resident to disagree. Overall, in the Ombudsman’s opinion, the landlord’s handling of the communal garden maintenance allocation was no maladministration.

The associated complaint

31. The resident complained to the landlord on 16 June 2022. The landlord did not provide its stage 1 response until 24 August 2022. This was over a 2 month delay.
32. The landlord’s complaint policy and the Ombudsman’s Complaint Handling Code (the Code) required it to provide its stage 1 response within 10 working days. There is no evidence the landlord sought to agree an extension with the resident to provide its stage 1 response. The landlord failed to meet its published timescales. The delays left the resident in the complaints process, without a clear resolution. In the Ombudsman’s opinion, this was service failure.
33. In this case the Ombudsman recognises that in its complaint responses, the landlord acknowledged failures with the service it provided and the delays caused. It also apologised to the resident. It offered the resident £40 compensation in for its complaint handling failure. Whilst the landlord showed good practice to offer compensation, the compensation did not go far enough to remedy the impact to the resident of its complaint handling failings. An award for further compensation has been made at the end of this report.

Determination (decision)

34. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration by the landlord in its handling of the communal garden maintenance allocation.
35. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in its handling of the associated complaint.

Reasons

36. The landlord has discretion in how it allocates maintenance of the communal gardens and fairly consulted with residents to balance opposing views on its future use.
37. The landlord took 2 months to respond to the resident’s stage 1 complaint. This was outside of its policy timescales.

Orders and recommendations

Orders

38. Within four weeks from the date of this report, the landlord is ordered to:
    1. Pay the resident £100 in recognition of the time and trouble caused to the resident by its poor complaint handling.
    2. Provide evidence of compliance with the above order.

Recommendations

39. The landlord should review its process of allocation of communal garden space and ensure that agreements are clearly explained and understood by residents, and it provides a time frame for when they may be reviewed or in what circumstances a review would take place.