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Clarion Housing Association Limited (202228172)

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REPORT

COMPLAINT 202228172

Clarion Housing Association Limited

30 April 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 reports of poor drainage in the garden.
  2. The Ombudsman has also considered the associated record keeping and complaint handling.

Background

  1. The resident has a garden which contains a patio and a sloped, grass covered area. In March 2022 the resident contacted the landlord about drainage issues in the garden, which caused intermittent flooding which would take “weeks” to drain away. An operative attended and made recommendations.
  2. In June 2022, the landlord reported a cyber incident, resulting in prolonged loss of access to its systems and a loss of several records. On 29 July 2022 the resident raised concerns again with the garden. On 16 August 2022 the landlord inspected. It noted that the 5 manhole covers present were a potential trip hazard. It lowered all covers on 7 September 2022. The resident complained on 28 September 2022.
  3. On 27 October 2022 the landlord issued its stage 1 response. It stated that a cyber incident had meant that it had no records prior to 29 July 2022. It stated that the resident had complained about “swamp like conditions” in the garden following rainfall. It said that the resolution the resident had sought was “for the garden to be levelled and floor slabs to be re-laid”, which it could not complete because “landscaping is the resident’s responsibility”. It offered £450 compensation for delays, poor communication and complaint handling delays.
  4. On 20 November 2022 the resident asked to escalate her complaint. On 9 January 2023 she set out her reasons. She wanted the flooding to be resolved, suggesting the garden should be levelled and covered with either patio, decking or gravel. She was unhappy with the landlord’s understanding of the complaint, because she felt the landlord had conflated issues with drains in the garden and the drainage of the garden itself. She stated that the slippery mud meant that people often fell and as a result avoided stepping onto the grass. She added that her dogs could not be let outside without then trailing mud back into the house.
  5. On 5 February 2023 a surveyor attended and inspected the garden. On 13 February 2023 the landlord issued its stage 2 response. It stated that “the drainage was assessed and found to be sufficient. Any improvements/upgrades such as levelling the garden would be tenant’s responsibility.”
  6. On 14 February 2023 the resident approached the Ombudsman. She was dissatisfied with the landlord’s decision not to resolve the flooding or complete the desired works in the garden. She asked the Ombudsman to investigate.

Assessment and findings

  1. The resident’s tenancy agreement will set out what areas of repairs and maintenance are the landlord’s responsibility, and what areas are the tenant’s. In this case, while the landlord has stated that garden maintenance is the resident’s responsibility, the Ombudsman has not had sight of the full tenancy agreement to verify this. However, the landlord’s website does set out that garden maintenance is the responsibility of the tenant. Further, generally a landlord would not be expected to carry out improvements to a garden such as installing decking. Having said this, the Ombudsman would expect a landlord to take action to investigate reports of flooding/drainage issues to a garden, given this can be reasonably said to fall outside of general garden maintenance.
  2.  The evidence seen by this Service suggests that there has been some misunderstanding of the complaint, which has resulted in internal miscommunication on the landlord’s part. This is seen predominantly in the landlord’s handling of the complaint, where it has focussed more on the resident’s “desired outcome” (which it described as a “request for landscaping work”, rightly explaining that such work would be the responsibility of the resident), than on the issue reported. There was also further confusion caused by the separate fact that a number of drains from several properties run beneath the resident’s garden, accessible by 5 manhole covers in the garden. The landlord accepted the resident’s report that, especially when combined with wet mud, these represented a trip hazard. It did well to lower these quickly after its second inspection. However it appears that at times, “drainage issues” were taken to mean “an issue with the drains” (which are not believed to serve the garden, but only happen to run through it) by some of the landlord’s staff. This was somewhat understandable on the part of the landlord, but nevertheless resulted in frustration to the resident, who wrote that her complaint was “not about the garden drains” and that she felt that “nobody is listening or understanding the problem.”
  3. The Ombudsman understands that a resolution to the drainage issue in the garden is the resident’s priority, for which she suggested landscaping works after the landlord’s initial recommendation to add topsoil was ineffective. A senior staff member at the landlord appeared to show good understanding of this in an internal email on 31 January 2023, in which the staff member wrote “it sounds as if a surveyor needs to visit to assess what can be done about the drainage if it’s still flooding… we may need to explore installing some [ACO] channels or something to better drain away from the patio… a surveyor needs to check where the pooling/flooding is”. A surveyor had already been appointed on 27 January 2023, however the request stated “the resident wants [the landlord] to re-turf her garden, pave/deck areas and lay shingle. We feel it is residents responsibility but would appreciate your take on this”. However, there is no evidence that the landlord mentioned drainage issues to the surveyor.
  4. During the surveyor’s visit on 5 February 2024, the surveyor provided a description of the garden, including that it is “slow to drain”. It does not appear that the surveyor witnessed the flooding or had sight of the photographs provided by the resident. This is the only comment by the surveyor which has been seen by this Service regarding the drainage issues, which the senior staff member felt should be investigated. Instead, the surveyor’s comments note that “it is not landlord’s responsibility for improvements/upgrades to the garden area”, in line with the instructions given by the landlord. It appears therefore that following the senior staff member’s email of 31 January 2023, no drainage survey was completed. In the landlord’s stage 2 response however, it stated that the “surveyor confirmed the drainage was assessed and found to be sufficient, but that owing to the clay subbase, some pooling/slower soak away is inevitable… it does not indicate a repair or upgraded drainage channel being installed, as this would be disproportionate.” However, the evidence submitted by the landlord in response to the Ombudsman’s request for “copies of any survey or inspection reports”, do not reflect this conclusion.
  5. The landlord acknowledged that there were some shortcomings in its response to reports of issues raised by the resident, such as delays, which it apologised for at stage 2. It explained that the reasons for these delays, predominantly, was due to a cyber incident in June 2022 which prevented it from accessing its systems and caused the loss of some records. It also appears that the incident resulted in the resident experiencing a repeat visit in March 2022 and in August 2022, which may have been unnecessary. Although the length of these delays are unclear due to a lack of records, the landlord adequately put things right by offering £450 compensation to reflect the resident’s time and trouble, as assessed in more detail later in this report.
  6. While the landlord’s general approach to the reports of the garden was fair and considerate, and it made reasonable efforts to provide a resolution and put things right, there has nonetheless been a failure to complete the drainage survey as recommended by a senior member of staff. As a result, there was a service failure in the landlord’s handling of the resident’s reports of poor drainage in the garden. The landlord should now seek to rectify this by ensuring a comprehensive drainage survey of the garden is completed. An order is made below.

Record keeping

  1.  Although the landlord has referred to the cyber incident of June 2022 for many of the shortcomings in record keeping, the evidence suggests that inadequacies in the landlord’s record keeping practices also played a part. For example, the landlord stated that it has no record of the resident’s original complaint. However, the evidence suggests that the complaint was raised by the repairs team on the resident’s behalf on 28 September 2022, around 3 months after the incident. Furthermore, the resident’s evidence submission to this Service shows correspondence between the landlord and resident which was not included in the landlord’s evidence submission. For example, an email it sent to the resident on 19 December 2022, 6 months on from the cyber incident. However, these record keeping issues do not appear to have had a significant adverse effect on the resident. Other cases the Ombudsman has investigated involving this landlord following the cyber incident in June 2022, have resulted in orders and recommendations surrounding the landlord’s data management practices. As such, a finding of no maladministration is made here.

Complaint handling

  1. The complaint handling was also delayed, with responses being issued later than the timescales set out in the landlord’s interim complaints policy, which was active at the time. For example, the 40 working day timescale to provide its stage 2 response was not met. This timescale itself exceeds that which is set out in the Ombudsman’s Complaint Handling Code (the Code), by which the landlord is bound. This is mitigated somewhat by the cyber incident and the landlord’s attempts to manage the expectations of the resident. It may have been mitigated further depending on what was said to the resident in its missing correspondence of December 2022, however it is difficult know the extent of the shortcomings in this instance in the absence of that evidence.
  2. In providing compensation to the resident however, it awarded an amount “exceeding the levels set out in its policy guidelines, in recognition of the inconvenience caused”. The Ombudsman has considered the adverse effect experienced by the resident which is reflected in the evidence, including her time and trouble and distress and inconvenience. It has also considered potential adverse effect that may have been caused, such as by sending chasing emails (which the landlord has acknowledged) but have since been lost and are therefore not reflected in the evidence. The Ombudsman’s remedies guidance states that where service failures have occurred of the nature seen in this case, at least £100 compensation would be expected. Therefore, the £450 offered was appropriate and serves to ‘put right’ the adverse effect during the period this investigation has assessed, and a finding of reasonable redress is made here.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was:
    1. A service failure in the landlord’s handling of the resident’s reports of poor drainage in the garden
    2. No maladministration in the landlord’s record keeping.
  2. In accordance with paragraph 53 of the Housing Ombudsman Scheme, there was reasonable redress in the landlord’s handling of the complaint.

Orders

  1. Within four weeks of the date of this determination, the landlord must send a surveyor to assess the drainage issues in the garden. It should locate the areas affected by pooling or flooding and set out any actions that may be taken to improve the issue, by producing a report on the inspection. It should then write to the resident, copying in the Ombudsman, providing a copy of the report and explaining whether it intends to take any further actions as a result of the survey.

Recommendations

  1. To pay the resident the £450 already offered, if it has not done so already.