Clarion Housing Association Limited (202302201)

REPORT

COMPLAINT 202302201

Clarion Housing Association Limited

30 January 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

The complaint is about the landlord’s response to the resident’s request that it remove fallen trees from the communal gardens and replace fencing damaged by the fallen trees.
The Ombudsman has also considered the landlord’s complaints handling.

Background

The resident is an assured tenant of the housing association landlord. He has been a resident in the property since 2022. The property is a 1 bed first floor flat in a block. The resident has informed this Service that he has mental health needs.
In September and October 2022, the resident asked the landlord to remove trees that had fallen following a storm in August 2021, as he had reported this previously, but the tree had not yet been removed nor the fence repaired. The landlord sent contractors to inspect the tree in November 2022, but it the job closed as they could not get access to the garden. The resident chased this again in January and February 2023. He raised a complaint on 4 March 2023.
The landlord arranged to remove a tree on 17 March 2023. However, another tree was left standing. The resident raised this with the landlord on 17 March 2023.
On 23 March 2023, the landlord issued its stage 1 complaint response to the resident. It said that:
1. the delays in removing the tree were due to the need to prioritise dead, dying and dangerous trees, as well as the contractor experiencing staffing issues
2. as the tree had completely fallen, it was not a health and safety risk and would not have been prioritised and apologised for the delay and inconvenience
3. it had raised another job to remove the second tree, it had not been given an appointment date for contractors to attend, and it would monitor this attendance and any agreed follow-on works
4. it attended to inspect the fence on 23 March 2023, it would schedule an appointment to repair this, and explained it could not replace the fence until the trees had been removed
5. it offered the resident £50 in compensation for the distress and inconvenience of having to chase this with the landlord
On 27 March 2023, the resident asked to escalate his complaint to stage 2. On 29 March 2023 he provided the landlord with his reasons for requesting an escalation, which were:
1. he was dissatisfied that the second tree had not been removed and said that the roots were causing structural damage to the pathway and fencing
2. he did not feel that the landlord’s offer of compensation was proportionate to the amount of time and effort he had spent raising this
On 4 May 2023, the landlord told the resident that it would escalate his complaint, and it would respond within 20 working days.
On 25 May 2023 the landlord issued its stage 2 complaints response. It said that:
1. contractors removed the second tree on 4 May 2023, it apologised for the delay in the tree’s removal, and offered the resident £50 compensation
2. the landlord considered that it was not responsible for removing the overgrown roots and branches as the gardens were private and not communal, and it was the responsibility of the resident to maintain the space
3. it apologised for the delay in providing the resident with its stage 2 complaint response and offered the resident £100
The resident was unhappy with the outcome of his complaint and asked this Service to investigate it.

Post complaint

On 1 June 2023 the resident wrote to the landlord to report that, contrary to the information in its complaint’s response, it had not removed the second tree. He disputed that it was his responsibility to remove overgrown roots and branches.
The resident arranged to cut down the second tree himself, but he could not meet the cost of the root removal, as he was on a low income. There were delays in the landlord replacing the fencing due to supplier problems. Contractors completed the fencing works on 22 November 2023.
On 9 April 2024, the landlord wrote to the resident to reimburse him £700 for the cost of removing the second tree. It said it would also verify who was responsible for clearing the overgrowth and roots and would complete a site visit to confirm this. On 1 May 2024, the landlord clarified with the resident that it was responsible for maintaining the land where the tree was located. On 18 June 2024, the landlord had recorded that its contractors had removed the tree roots and that the paving slabs had been re-laid.

Assessment and findings

Scope of the investigation

The resident has raised his dissatisfaction with the quality of works to the fence, which were carried out after the completion of the landlord’s complaints procedure. Although the repair was related to the issues raised in the complaint, the Ombudsman’s role is to assess the landlord’s response to a complaint. Therefore, this assessment will only consider the landlord’s response to issues and incidents up to the date of the landlord’s final response. Any new issues that have not been subject to a formal complaint can be addressed directly with the landlord and progressed as a new formal complaint if required.

The landlord’s response to the resident’s request that some fallen trees be removed from the communal gardens and that it replace fencing damaged by the fallen trees.

The landlord has not provided this Service with a policy regarding tree maintenance. However, the landlord’s neighbourhood management policy says it will regularly cut communal grassed areas and shrubbery.
Where trees are located in a private garden owned by the landlord, the landlord should take reasonable management measures to avoid foreseeable injury or harm. This may include inspecting the trees periodically and when they are alerted to a potential risk from a damaged, diseased or fallen tree.
In this case, the landlord was informed about the fallen tree and fence in September 2022. There was initially an issue with contractor access, which the landlord may not have been aware of prior to the appointment. The resident chased the works 5 times between January and March 2022. While the landlord acknowledged his communications, it did not provide a satisfactory update at this time, which was unreasonable. Where delays are anticipated, the landlord should provide the resident with an explanation so they can be reassured that matters are in hand.
The records show that the landlord chased this with contractors in March 2023, but the tree was not a priority for removal as it was not considered to be dangerous. There were also some staffing issues with the contractors. It is reasonable for a landlord to take a risk-based approach to tree management in communal areas. The landlord may consider that tree maintenance work is necessary where a tree is diseased or affecting the stability of a structure, or if the tree is structurally unsafe itself.
Otherwise, it is reasonable for a landlord to carry out maintenance work on communal gardens on a scheduled basis The landlord may decide that it is not reasonable to undertake tree management works outside of scheduled times where they are overshadowing gardens or affecting TV reception. However, if this was the case, it is unclear whether this was communicated clearly and in a timely way to the resident.
There were further failures in communication with the resident. He was given conflicting information about who was responsible for undertaking the works, sometimes on the same day. In April 2023 the landlord told him that it was residents’ responsibility to repair fences but later informed him that it had raised the fence repairs. The landlord told him again, in May 2023, that it was his responsibility to repair the fence.
There was also a lack of clarity about whether the trees or fencing were in private gardens or in the communal areas, which would determine who should repair it. The resident was told at different times that he would need to contact the council or take action himself. The landlord later acknowledged that this advice was incorrect. The landlord could have taken steps at an earlier stage to identify whose responsibility it was to undertake the works. Its failure to do so caused delays, and the resident spent time and effort in following this up.
The landlord raised works in August 2023 to replace the fencing, but they were rescheduled twice due to supplier issues. While these cancellations may have been unavoidable, the landlord did not communicate this adequately to the resident, prompting him to raise a new complaint in October 2023.
There was also evidence of poor communication with contractors, poorly co-ordinated works and a lack of oversight by the landlord. It did not provide clear instructions to contractors, which resulted in contractors only removing one of the trees. In its stage 2 complaint response, the landlord told the resident that the tree had been removed on 4 May 2023. However, this information was given in error. Contractors did not remove the tree on 4 May and the resident therefore arranged to cut down the tree at a significant cost to himself.
The landlord replaced some of the fencing in July 2023. However, follow-on appointments were cancelled and rescheduled. On one occasion the contractor did not attend although they had marked the job as completed. This led to the resident having an unnecessary level of involvement in the repairs procedure, spending time and effort in following this up.
In April 2024, the landlord acknowledged it was responsible for removing the tree roots and repaving the affected area and arranged to reimburse the resident for the tree removal. This was 12 months after the resident had reported this to the landlord. The evidence provided by the resident shows that the tree root had lifted some of the paving stones in the garden, presenting a trip hazard. It would have been prudent for the landlord to have assessed and addressed this promptly, given the risk it presented to residents, staff and visitors.
Overall, the landlord’s management of the tree removal and fence replacement was poor. Although it did offer the resident £700 to reimburse him for the cost of removing the tree, this was after the resident had referred his complaint to the Ombudsman for investigation. The Ombudsman therefore finds maladministration because of the landlord’s poor communication, its inadequate assessment of the works and failure to take ownership of the works at an earlier stage.
In assessing compensation, the Ombudsman will look at the impact on the resident and what steps the landlord has taken to put things right. We can award compensation for actual proven financial loss sustained as a direct result of the maladministration or service failure and or avoidable inconvenience, distress, detriment or other unfair impact of the maladministration or service failure.
Factors we may consider when deciding redress include the duration of any avoidable distress or inconvenience and the seriousness of any other unfair impact. In the resident’s case, he was unhappy that the tree had not been removed as this was impeding the use of the communal garden, and he noted in his complaint that it was affecting how children could enjoy the garden. He also said that tree growth was shading his property and broken fencing was allowing non–residents ease of access to the garden.
In assessing redress, the Ombudsman cannot consider the potential or actual impact on other residents, only the impact on the resident and his household. The landlord had previously offered the resident £50 at stage 1 and £50 at stage 2 of its complaints procedures as compensation for delays and poor communication.
The resident did spend a considerable amount of time and trouble in following this up with the landlord, particularly where information provided by the landlord in its complaint response was incorrect. The Ombudsman therefore considers it would be reasonable to order the landlord to pay the resident a further £100 compensation in recognition of this.

Complaint handling

At the time of the complaint, the landlord was using its interim complaints policy which allowed 20 working days for a stage 1 complaint and 40 working days for a stage 2 complaint. The landlord has since updated its complaints policy in line with the Statutory Code which came into force in April 2024.
The resident raised his complaint on 4 March 2023. The landlord provided its stage 1 complaint response on 23 March 2023, which was 13 working days later. This was appropriate, as it was consistent with the landlord’s policy.
The resident escalated the complaint on 29 March 2023. The landlord provided its stage 2 complaint response on 25 May 2023, which was 38 working days later. While this was within the timescales set out in its interim policy, it did not follow the Ombudsman’s Complaints Handling Code which asks that landlord’s respond to stage 2 complaints within 20 working days.
While the landlord acknowledged the delay in its response, it did not provide a reason for the delay in its response or say what it could do going forward to improve service delivery.
A landlord’s complaints procedure provides an opportunity for the landlord to learn, to improve relationships, rebuild trust and confidence, and to address service failures. It would have shown openness and transparency for the landlord to had explained the reasons for delays and what it looked to do going forward to ensure that it responded within its published response timescales.
The landlord apologised for the delay in it responding at stage 2 in its complaints response and offered £100 in compensation. This award was in line with the Ombudsman’s remedies guidance where there is service failure that has had an adverse impact on the resident. The Ombudsman therefore finds that, in relation to its complaints handling, the landlord has made an offer of redress that satisfactorily resolves the complaint.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its response to the resident’s request to remove trees and replace fencing that had been damaged following a storm.
In accordance with paragraph 53.b. of the Scheme, in relation to its complaints handling, the landlord has made an offer of redress prior to this investigation which, in the Ombudsman’s view, satisfactorily resolves the complaint.

Orders and recommendations

Orders

Within 4 weeks of the date of this report, landlord is ordered to pay the resident a total of £900 compensation and confirm payment with this Service. This amount includes:
1. £700 offered by the landlord to reimburse the resident for the cost of felling the tree. This amount should be deducted from the balance if previously paid to the resident.
2. £100 offered by the landlord at stage 1 and stage 2 of its complaints procedure for delays and poor communication regarding the tree removal. This amount should be deducted from the balance if previously paid to the resident.
3. £100 for the resident’s distress, inconvenience, time and trouble because of the identified failings in the landlord’s response to his request for the trees to be removed and fencing installed.

Recommendations

If it has not done so already, the landlord should pay the resident the amount of £100 it offered at the conclusion of its internal complaints procedure for its complaints handling failings and confirm with this Service once it has done so.