East Devon District Council (202327721)

REPORT

COMPLAINT 202327721

East Devon District Council

24 October 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

The complaint is about the landlord’s:
1. Handling of the resident’s concerns about information she had been provided with in relation to access to a communal garden.
2. Response to the resident’s concerns about the condition of the garden.
3. Handling of the associated complaint.

Background

The resident is a secure tenant of the landlord. The resident and her young daughter have lived in the property, a 2-bed first floor flat, since October 2021. At the time of allocating the property the landlord advised the resident that she would have access to a communal garden.
In May 2022 the resident attempted to use the garden with her daughter. However, the occupant of the ground floor flat told her that she did not have access to the garden as it belonged to their property.
On 23 May 2022 the resident emailed the landlord and explained what had happened and asked it to confirm whether she had access to the garden. She said she wished to use it for her daughter to play. The landlord responded and said it had made a mistake. It confirmed the garden was not communal and she therefore did not have access to it.
The resident emailed the landlord on 7 January 2023 and said she was unhappy with its handling of the issue. She said she wanted it to address the issue in writing. On 4 April 2023 the resident emailed the landlord and asked it to raise a formal complaint. She said:
1. It had given her “false information” when it showed her the property. It had told her she had access to the garden which was communal.
2. The garden was in a poor state. The ground floor resident had not cut the grass since May 2022 and it was overgrown, the shed was falling apart, and the area was “dirty and disgusting”.
3. The estates team did not respond to her request for it to make the garden communal.
4. It had failed to return her phone calls or attend meetings it had booked.
5. A member of staff had told her that she could either move to another property with a garden or “stay as [she was]”.
The landlord has advised that it did not receive this email.
On 13 June 2023 the resident submitted an enquiry on the landlord’s website asking for a response to her complaint. The landlord replied and said it had no knowledge of the complaint and asked her to put the complaint in writing so it could investigate.
The resident responded on 22 June 2023 and forwarded the email she had sent in April.
The landlord provided its stage 1 complaint response on 4 August 2023. It said:
1. It apologised for its delayed response to her complaint of 22 June 2023. This was due to “higher than normal” workloads.
2. The garden had always been allocated to the ground floor flat. There had been an informal agreement between previous tenants and this had caused confusion.
3. The allocations officer had made a “mistake” when they advised her the garden was communal.
4. It empathised that she had accepted the tenancy on the impression that she would have use of a garden. It apologised and would investigate whether it could make the garden communal. It would notify her of its decision.
5. It was sorry for the “poor” communication and that she had not received a response to her enquiries.
6. It offered her £100 as a “gesture of goodwill” for the inconvenience of having to chase for responses to her enquiries.
The resident asked the landlord to escalate the complaint to stage 2 of its process on 28 August 2023. She said:
1. A “monetary offer” would not change the fact she could not use the garden.
2. She wanted to know when she could expect a response to whether it could make the garden communal.
3. She was still unhappy that the ground floor residents were not maintaining the garden. It had not responded to this aspect of the complaint.
4. It had also not acknowledged the lack of responses to emails and phone calls or the missed appointment. Nor had it acknowledged that the failings had gone on for over a year.
The landlord provided its stage 2 complaint response on 19 October 2023. It said:
1. It apologised for the delay. This was due to the “high volume of correspondence” it was dealing with.
2. The garden belonged to the ground floor flats. It formed part of the tenancy and gave sole use to the tenants.
3. The tenants may choose to allow others to use the garden but it could not force them to.
4. While the existing tenancy was in place it could not make the garden communal. It would revisit this decision if the property became vacant.
5. It would visit to inspect the garden and discuss its condition with the ground floor tenant.
6. It was sorry she did not receive relies to her emails or phone calls and that an appointment was made and the officer didn’t attend. It was also sorry that she had to chase for a response to her complaint.
7. Its housing and complaints teams had been “extremely busy” and this had “severely impacted” on the level of service officers had been able to deliver.
8. It was “putting measures in place” to improve its services.
9. It had offered £100 as a “gesture of goodwill” in its stage 1 complaint response. This offer still stood.
The resident escalated her complaint to this Service in December 2023 as she remained unhappy with the landlord’s response to her concerns. She said:
1. The grass in the garden was being cut more often but the garden still was not being looked after.
2. The shed had been taken down but its parts left lying in the garden.
3. The landlord was still slow to communicate and she had to chase several times for a response.
4. No amount of compensation would change the fact she did not have access to the garden.
5. She feels the landlord should “keep its word” and allow her to use the garden.
The complaint became one we could consider in February 2024.

Legal and policy framework

The landlord’s ‘citizen commitments” says it will acknowledge or reply to enquiries within 3 working days. The commitments also state it will “turn up on time” to appointments.
The landlord operates a 2-stage complaints process. It aims to respond to stage 1 complaints within 10 working days and to stage 2 complaints within 20 working days.

Assessment and findings

Handling of the resident’s concerns about information she had been provided with in relation to access to a communal garden.

The tenancy agreement is silent in relation to the use of a garden. The tenancy agreement sets out the rights and obligations of both the landlord and the resident. This includes setting out what areas form part of “the property” that has been let to the resident to use as her home. The resident’s tenancy agreement is silent in relation to the use of a garden. We acknowledge that the resident was informed that she would be entitled to use the garden, and that she would like the landlord to facilitate this. However, the tenancy agreement is a binding contract and we cannot make orders that alter the existing agreement between both parties.
Our investigation has therefore focussed on assessing the landlord’s response to the resident’s concerns and whether it took appropriate and proportionate action when made aware of the situation that gave rise to the complaint
The landlord does not dispute that it incorrectly advised the resident that the property came with access to a communal garden when she viewed it. It has confirmed that its allocations team did not check its IT systems prior to letting the property to confirm that it did have a garden. This was unreasonable and caused it to provide inaccurate information.
The landlord’s failure to carry out reasonable investigations was poor. As a result of its failing, the resident lost the opportunity to make an informed decision whether to accept the offer of the tenancy based on correct facts.
It is noted that following the events of this case the landlord has updated its allocations procedures to ensure that it carried out system checks to confirm whether a property has a garden. This is encouraging and demonstrates that it has learned from outcomes in line with our dispute resolution principles.
In May 2022 the resident advised the landlord she had tried to use the garden but had been confronted by the ground floor resident. The evidence shows that the landlord’s allocations team checked its systems 2 weeks later to determine whether the garden did have use of a garden. These checks showed that the garden belonged to the ground floor flat and was not communal.
The landlord emailed the resident on the same day and explained it had made a mistake and she did not have access to a garden. It said the confusion had occurred as previous tenants of the ground floor flat made an informal agreement with the first-floor tenants. This informal arrangement was no longer in place. The landlord said it would speak to the resident of the ground floor flat to explain what had happened.
It is unclear why it took the landlord 2 weeks to carry out checks of its system after the resident contacted it. Its citizens commitments state it aims to respond to residents within 3 working days. That it did not do so in this case was unreasonable.
It was right that on finding out the garden was not communal it acknowledged that it had made a mistake and apologised to the resident. Its response however did not show that it understood the impact the mistake had had on the resident. The resident was distressed at finding she and her child did not have access to a garden. She had also experienced an awkward encounter with her neighbour which may have damaged their future relationship. The landlord should reasonably have acknowledged this impact at the time.
When the resident replied to the landlord, she said every time they entered the building her daughter asked to go into the garden. She also stated that the ground floor residents did not use the garden except for one lady who let her dog use it as a toilet.
The landlord replied to the resident and said it had spoken to the ground floor resident. It said there was public green space nearby where children played and it would pass her enquiry about making the garden communal to its estates team. Internal landlord emails show it passed the enquiry to its estates team and asked it to respond to the resident. While we recognise this advice was not the outcome the resident wanted, it was positive that the landlord attempted to offer an alternative solution to accessing outdoor space.
The resident emailed the landlord on 7 March 2023 asking for an update. We have not seen evidence that it responded. This was unreasonable and a failure to adhere to its citizen commitments.
Internal landlord emails demonstrate that the allocations team confirmed the resident had emailed it in August 2022, November 2022, and January 2023 asking for an update. The allocations team forwarded the emails to the estates team. We have not seen evidence that it responded to any of these emails. This was unreasonable and a further example of poor communication.
Internal emails also show that the resident called the estates team on 13 December 2023. The estates team returned her call and it arranged for an officer to visit her. The resident has stated that the officer only looked at the garden and did not visit her property as arranged. The landlord has not disputed this statement. That it failed to attend an agreed meeting without informing the resident was unreasonable and caused her unnecessary time and trouble waiting for the officer.
The resident called the landlord again in January 2024 as she had not received an update. At this time, it advised her that the gardens were not communal. It said that previously an informal arrangement had been made between tenants that they could use the garden but these tenants had since left.
Following the resident’s stage 2 complaint the landlord visited the property to look at the garden and speak with the ground floor resident. Communications show it confirmed that the garden belonged to the ground floor flat and its residents could therefore restrict access to it. It decided it could not change the garden to communal use. This was because it would deprive the ground floor resident of the sole use and enjoyment of it which they had had for over 10 years. It said however that it could “revisit this decision” if the ground floor property became vacant.
The landlord’s conclusion that it could not make the garden communal as this would disadvantage the ground floor resident was reasonable.
It is important to note that while this Service has a wide range of discretion to order remedies, there are some remedies that we would not order. While this Service empathises with the resident’s situation, we would not propose a remedy that would put matters right for the resident but would adversely affect other individuals. For this reason we would not order the landlord to consider making the garden communal or to move the resident to a property with a garden. Such orders may disadvantage other tenants or applicants of the landlord and would therefore be inappropriate.
In February 2024 the resident stated that she contacted the landlord as she had heard that the ground floor resident had passed away. She therefore asked it to reconsider making the garden communal and available to all the flats. It is unclear whether the landlord considered this request. As it told the resident in its complaint responses that it would revisit its decision if the ground floor became available, it would have been reasonable for it do have done so.
In June 2024 the landlord offered the resident a move to a neighbouring ground floor property with access to a garden as a “remedy” to her complaint. The resident rejected the landlord’s offer. It is not clear why she did however she was within her rights to do so. The landlord made this offer 10 months after the end of its internal complaint procedure and after the case was duly made to this Service. It cannot therefore be considered to be an offer of reasonable redress. The landlord’s offer was however resolution focussed and this is encouraging. There was no obligation on the landlord to offer the resident an alternative property. However, that it did so with the aim of trying to put things right was appropriate.
Overall, the landlord caused the resident distress and inconvenience by providing her with incorrect information about the property. Its failing caused her to lose the opportunity to make an informed decision about whether to accept the offer of the tenancy. There was also loss of expectation. The resident signed the tenancy agreement expecting to be able to use the garden. She was unable to do so.
While the landlord had appropriately acknowledged its mistake and apologised for it, it has not acknowledged the impact of its error on the resident and her daughter.
Its communications have been poor and this has caused the resident to invest unnecessary time and trouble and to reasonably feel that she was being ignored. We have therefore found that there was maladministration in the landlord’s handling of the resident’s concerns that it had incorrectly told her that the property had access to a communal garden.

Response to the resident’s concerns about the condition of the garden.

The resident first raised her concerns regarding the condition of the garden in her email sent in April 2023. The landlord received this in June 2023. She said that the grass was severely overgrown, the shed was falling apart, and the area was “dirty and disgusting”. The landlord has not provided any evidence that it responded to the concerns at this time. This was unreasonable.
The resident raised the concerns again in her stage 2 escalation request in August 2023. The landlord advised in its final complaint response of October 2023 that it would inspect the garden and speak with the ground floor tenant. By this time it had been 4 months since it had become aware of the poor condition of the garden. That it took this length of time to respond to the resident’s concerns was unreasonable.
The landlord has not provided evidence that it inspected the garden and spoke with the ground floor resident. The resident did however acknowledge a few months later that the grass had been cut and the shed taken down. We would however have reasonably expected the landlord to keep a record of the actions it took and to provide them to this Service. This is an obligation of membership to the Scheme.
Overall, the landlord delayed unreasonably in responding to the resident’s concerns. It has also failed to demonstrate what actions it took to resolve the issue. There was therefore service failure in its response to the resident’s concerns about the condition of the garden.

Handling of the associated complaint.

On 7 January 2023 the resident emailed the landlord. She said she was “not very happy” that when she viewed the property, it had incorrectly told her she would have use of the communal garden. She said it had told her that it would pass her enquiry about making the garden communal to the estates team but she had received no response. It had been 6 months during which time she had contacted various departments and left messages but received no response.
The resident said a member of staff had eventually called her back and arranged to visit her on 16 December 2022 but they did not attend. When she had telephoned about the missed appointment the staff member told her they had attended and viewed the garden. They had not attempted to visit her property or called to cancel the appointment. It then told her she would have to ask the ground floor residents if she wanted to use the garden but it would not be made communal. She said:
1. She could not ask her neighbour as they had shut the door in her face.
2. Other properties in the areas had communal gardens.
3. The ground floor tenant was not looking after the garden. The grass was long and the shed was falling apart.
4. She was paying the same amount of rent as the ground floor residents but their property included a garden.
5. She expected it to take action “in writing” for the “incompetence, broken promises…and disrespect”.
This Service has not seen evidence that the landlord responded to the resident’s email.
The Ombudsman’s Complaint Handling Code (the Code) states that a complaint is “an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the organisation”. This Service considers therefore, that the landlord should reasonably have considered the resident’s email as a resident’s formal complaint. The resident clearly said she was “unhappy” with the service provided by the landlord and outlined the separate issues of the complaint. That the landlord did not respond to the email or raise a complaint at that time was inappropriate and a communication and complaint handling failing. This caused the resident to have to invest unnecessary time and trouble by raising her complaint again. It also delayed the landlord’s complaint response and therefore the resident’s access to this Service.
On 4 April 2023 the resident emailed the landlord and asked it to raise a formal complaint. She said:
1. It had given her “false information” when it showed her the property. It had told her she had access to the garden which was communal.
2. The garden was in a poor state. The grass had not been cut since May 2022 and was overgrown, the shed was falling apart, and the area was “dirty and disgusting”.
3. The estate team had not responded to her requests for it to make the garden communal.
4. It had failed to return her phone calls or attend meetings it had booked.
The landlord did not respond to the resident’s email.
In May 2023 the resident contacted her local councillor and asked for assistance in resolving her complaint. She said she had raised a complaint but the landlord had not provided a response. She said she had called and left a message for the complaints team to call her back but it had not.
On 13 June 2023 the landlord emailed the resident. It said it had received her enquiry from its website but had “no knowledge of the previous complaint [she referred] to or what service it was about”. It asked that she put her complaint in writing so it could investigate.
The Code states that a complaint is an expression of dissatisfaction “however made”. A complaint does not have to be made in writing. The resident had made the landlord aware that she had previously submitted the complaint. It would therefore have been reasonable for the landlord to attempt to telephone her to ascertain the details of the complaint. This would have reduced any further delays. That it did not do so was unreasonable.
The resident responded to the landlord on 22 June 2023 and forwarded her email sent in April. She also said that she had spoken to someone at its switchboard on 18 April 2023 who said they would pass a message to the complaints team. She had not received a call back.
Internal landlord emails show that it could not find the resident’s initial complaint email. It thought this may be because she had sent it from a Portuguese email address. It is noted that this was not confirmed to be the case, however, it would be reasonable for the landlord to investigate this further. Doing so may help to ensure that other residents are not inconvenienced in the same way as the resident and that there are not similar issues with communication not being received.
It took the landlord 31 working days to respond to the resident’s stage 1 complaint. This was 3 times longer than the timeframes outlined in its policy and the Code and was unreasonable. While the landlord apologised for the delay, its explanation that it had had “higher than normal” workloads was not satisfactory. We accept that landlords face challenges in managing its obligations with limited resources. We appreciate its position. However it is for the landlord to effectively manage its own resources and ensure it adheres to the requirements of the Code and its own policy. Where the landlord fails to meet its obligations and is unable to put the resident back in the position they were in before the failure, it should offer proportionate redress. In this case the landlord offered no compensation for its complaint handling failings.
The Code says that landlords must address all points raised in the complaint and provide clear reasons for any decisions. In this case the landlord’s stage 1 complaint response did not address the resident’s concerns about the condition of the garden. This was inappropriate.
We also note that the landlord acknowledged that it had provided incorrect information and that its communication had been “poor”. It did not however mention the impact of these failings of the resident. Therefore, while it said that it empathised with the resident, it missed an opportunity to demonstrate this.
It took the landlord 38 working days to respond to the resident’s stage 2 complaint. This was a significant departure form the timeframes in the Code and the landlord’s policy.
While the landlord offered a further apology for the delay in providing its stage 2 complaint response, it again stated this was due to it receiving high volumes of correspondence. As previously stated, it is for the landlord to effectively manage its resources and ensure it adheres to the requirements of the Code. Where it fails to do so it should offer proportionate redress.
The landlord’s stage 2 complaint response reasonably addressed all issues raised by the resident. It also upheld its offer at stage 1 of £100 as a “gesture of goodwill”.
Generally a goodwill gesture is appropriate when there has been no service failure, but the party making the offer is trying to help the recipient. Where there has been a service failure, as in this case, compensation is the more appropriate term. By framing its offer as a gesture of goodwill, the landlord failed to appropriately acknowledge and accept responsibility for its service failures and the resulting distress and inconvenience.
We do not consider that the landlord’s offer of £100 provides reasonable or proportionate redress for the detriment experienced by the resident in this case.
We order this compensation in addition to the goodwill gesture offer of £100. As this was not an offer of compensation the landlord should not deduct this from the compensation ordered in this report.
We note that the landlord has advised that since the events in this case it has restructured its complaints service. It now has dedicated officers monitoring response timeframes. This is encouraging and demonstrates that the landlord is aware of the importance of adhering to the Code.
Overall, the landlord did not:
1. Identify and record the resident’s communication of January 2023 as a formal complaint.
2. Adhere to the timeframes outlined in the Code and its own policy.
3. Address all aspects of the complaint in its stage 1 complaint response.
4. Acknowledge the impact of its failings on the resident.
5. Offer proportionate redress for its service failures.
We therefore find maladministration in the landlord’s complaint handling.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
1. Maladministration in the landlord’s handling of the resident’s concerns about information she had been provided with in relation to access to a communal garden.
2. Service failure in the landlord’s response to the resident’s concerns about the condition of the garden.
3. Maladministration in the landlord’s handling of the associated complaint.

Orders and recommendations

Orders

Within 4 weeks of the date of this report the landlord must:
1. Pay the resident compensation of £1,550 comprising:
  1. £400 for distress and inconvenience due to its handling of the resident’s concerns that it had incorrectly told her that the property had access to a communal garden.
  2. £400 for loss of opportunity and expectation due to its handling of the resident’s concerns that it had incorrectly told her that the property had access to a communal garden.
  3. £250 for time and trouble due to its poor communication in response to the resident’s concerns.
  4. £500 for distress and inconvenience and time and trouble due to complaint handling failures.
  5. This is in addition to the offer of £100 made by the landlord as a goodwill gesture.
2. Investigate why it did not receive the resident’s first complaint email. It should address this to ensure it does not impact other residents who may have email address from providers in other countries.
If it has not done so within the last 6 months, within 8 weeks of the date of this report the landlord to conduct staff training to all staff involved in complaint handling. The training should explain:
1. The requirements of the Code.
2. That staff must respond to all complaints within the timescales outlined in the Code and its own policy.