Haringey London Borough Council (202312808)

REPORT

COMPLAINT 202312808

Haringey London Borough Council

29 November 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 handling of:
   1. The maintenance of a hedge.
   2. The associated complaint.

Background

2. The resident is a secure tenant of the landlord.
3. The resident emailed the landlord on 14 June 2022 regarding the hedge located at the front of her property which she said it had recently inspected. She said it was yet to be cut it down as she was told at the time. She said the hedge was obscuring the light to the property and upstairs windows. 
4. On 26 July 2022, the resident made a complaint to the landlord stating there had been several visits made to her property over a year ago by members of its housing team. No one had been in contact since to inform her when the hedge was going to be cut down.
5. The landlord issued a stage 1 response on 8 August 2022. It said that the previous year, during a joint visit, 1 of its estate officers suggested it may be possible to arrange to carry out the requested job as a one-off gesture. However, no agreement or confirmation was made to carry out the work, because under the terms of the tenancy agreement, it was the responsibility of the tenant to maintain their garden. It apologised for the lack of communication with her on the matter which may have arisen because it had not received updates on the enquiry from other teams.
6. On the same day the resident requested for her complaint to be escalated to stage 2 and enclosed photos of the hedge and her garden area.
7. In its stage 2 response on 13 September 2022, the landlord said its estate services team did not provide gardening services for street properties. Due to the time it had taken to provide the resident with a firm decision concerning the cutting back of the hedge, it had agreed to cut back the hedge free of charge as a one-off service and confirmed that was cut back on 5 September 2022.
8. The resident states that her tenancy does not include a front and back garden and has referred the matter to this Service as remains dissatisfied with the landlord’s response.

Assessment and findings

Scope of the investigation

9. The resident stated to the Ombudsman she had been reporting her concerns regarding the hedge to the landlord for 20 years. In accordance with the paragraph 42.c. of the Housing Ombudsman Scheme, we may not consider complaints that were not brought to the landlord’s attention as a formal complaint within a reasonable period, which at the time of the resident’s complaint was normally within 6 months of the matters arising. There is no evidence the resident raised a formal complaint with it that completed its internal complaint process until the complaint raised with it in July 2022. Therefore, although it is acknowledged that the resident had stated she reported issues to it over a significant period of time, this investigation will only consider the events in this case up to 6 months prior to the complaint being made. We have, therefore, not considered her request for reimbursement of costs incurred over the 20-year period.
10. This investigation will investigate the issues raised by the resident during the complaint period until addressed by the landlord in its final response issued on 13 September 2022.
11. It is noted that the resident has informed this Service that she has raised further issues to the landlord in relation to the hedge, including it causing damp and mould in her property and damage cause to the surrounding wall. Paragraph 42.a., of the Housing Ombudsman Scheme (the Scheme) says the Ombudsman will not investigate complaints which have not yet exhausted the landlord’s internal complaints process. Therefore, the resident will need to raise those issues with her landlord and if she remains dissatisfied with its response after completing its complaint process, she can refer the matter back to the Ombudsman as a new complaint.
12. The Ombudsman cannot establish legal liability for area boundaries. These matters maybe more suited for consideration by a court. However, it will be assessed how the landlord handled the resident’s requests for the hedge to be maintained by it including its communication and consideration of her statement the hedge was located in a communal area.

The maintenance of a hedge

13. As part of this investigation the landlord was contacted and asked to provide evidence of its contact with the resident regarding this issue. The landlord has not provided evidence of the correspondence it had with her prior to her complaint being made. This limited the Ombudsman’s ability to determine the actions it had taken regarding its handling of her reports and concerns regarding the hedge prior to the complaint being made.  
14. The resident contacted the landlord on 14 June 2022 and asked it for an update regarding the hedge located to the front of her property which she pointed out was obscuring light to the property. There was no evidence the landlord responded to her.
15. On 26 July 2022, the resident emailed the landlord to make a complaint. She said there were several visits made to her property over a year ago by members of its housing team. One of the officers was involved in arranging the cutting down of the hedge which surrounded the property. No one had contacted her since to inform her when the hedge was going to be cut down. She said the hedge was engulfing the property and reaching the property upstairs, was over 10 feet high in places, and an email was sent in June 2022 to it regarding the matter which it failed to respond to. She also said the hedge posed a serious fire hazard to the property during the extreme weather at that time. She said she understood that 3 officers that attended the property over a year ago agreed it would be dealt with by it as it was communal and came under the estate management team.
16. It is expected that the landlord would have contacted the resident to understand her concerns and explain its position to her at the earliest opportunity. This is to avoid any unnecessary confusion and provide clarity on the matter, especially as she had claimed that some members of its staff were in agreement with her position, but works had not taken place.
17. There is no evidence provided by the landlord of the actions it took regarding the resident’s concerns in until it issued its stage 1 response to her. The Ombudsman therefore cannot establish that it appropriately dealt with her correspondence and that it took sufficient steps to investigate her complaint.
18. The landlord issued its stage 1 response on 8 August 2022. It said that the previous year, during a joint visit to the indoor communal areas of the property with 2 members of the estates services team, the resident had made enquiries about whether the hedge in the front garden of her property, could be cut. She reported that she could not afford to pay the cost for the job because she had stood the cost over the previous years. An estates services officer, who had since left the team, suggested it may be possible to arrange to carry out the requested job as a one-off gesture. However, no agreement or confirmation was made to carry out the work. This was because under the terms of the tenancy agreement, where a garden was included with the property, it was the responsibility of the tenants to maintain their garden.
19. The landlord’s complaint response failed to provide sufficient explanation to the resident for its delays in providing a response to her since the last inspection took place. The property was part of a shared building. It should thus have clarified which terms of the tenancy agreement it was referring to in relation to her specific complaint when it stated that where a garden was part of her property it was the responsibility of tenants to maintain.
20. The resident’s tenancy agreement does state in section A(6) that if a garden is included with the property, she is responsible for maintaining all garden space free from rubbish and in a tidy condition. The tenancy agreement also states in section B(c) that the landlord is responsible for making reasonable arrangements to keep tidy all external communal spaces and communal hedges on its housing estates. The tenancy agreement does not make it clear to her if she has a garden as part of her tenancy and if so if the garden is private or communal with the occupier of the other flat.
21. The landlord’s complaint response to the complaint failed to establish how the terms of her tenancy applied in her specific case. It also failed to offer an explanation of any investigations it conducted resulting in its decision, or to respond specifically about her belief that the hedge was communal. 
22. The landlord, in its complaint response, did apologise for the lack of communication with the resident on the matter. It stated that this may have been because it had not received updates on the enquiry from other teams. As previously stated in this report, it had not provided evidence of the steps it took to investigate her concerns about the hedge or of any contact it had with her during the period covered in this investigation. It was appropriate that it apologised for its lack of communication.
23. On the same day the resident requested her complaint to be escalated to stage 2 and enclosed photos of the hedge and her garden area. The landlord has not provided any evidence of the actions or investigations it took following the resident’s escalation request, including if it contacted her to discuss her escalation and reasons for doing so, or that it considered her reports regarding the safety of the wall.
24. The landlord issued its stage 2 response on 13 September 2022. It said:
    1. The officer the resident had spoken to concerning the cutting back of the hedge was no longer working for it, so it was unable to confirm any conversation she had with the officer. However, its estate services team said they did not provide gardening services for street properties. Where they had carried out the service for street properties a charge was applied, and the tenant would be informed of that prior to any gardening services being carried out.
    2. Given the time it took to provide her with a firm decision concerning the cutting back of the hedge, its estate services team had reconsidered her request and agreed to cut back the hedge free of charge as a one-off service. It apologised for the length of time it had taken in reaching a decision in relation to that. It had sought confirmation from its parks team and confirmed that the hedge was cut back on 5 September 2022.
    3. Its estate services team advised that letters the resident had referred to were regarding cleaning and inspecting of the internal communal area and not ground maintenance as suggested in her complaint. It referred to Clause 6 of the tenancy agreement stating she was responsible for maintaining all gardens spaces, and that would include her front garden area. Due to the time it had taken to provide her with a decision concerning the cutting back of the hedge, her complaint was partially upheld. 
25. It was positive that the landlord considered the length of time the resident had been chasing it regarding the hedge and made the decision to cut the hedge as a good will gesture. However, although in the stage 2 response it did refer to the specific part of her tenancy agreement it considered to confirm she was responsible for the hedge, it did so without offering an explanation regarding the issues raised in her complaint. This was specifically that the area the hedge was located in was a communal area and that her tenancy agreement did not specify she had a garden. At the end of the complaint process she had not been provided a response from it on why it deemed the front garden area to be hers and not communal as she stated she had been told by it in prior visits to her property.
26. On 15 September 2022, the resident emailed the landlord and said the front area outside of the property was not accessible to only her property, which was the ground floor flat, and had always been a communal area accessed by the flat upstairs on a daily basis. She said the area also housed the rubbish and recycling bins for the flat upstairs so the front area could not legally be her responsibility. She stated the garden at the back of the property was only accessible by her flat, so she maintained that as her garden. She said she had never had on her tenancy anything stating she had a property with a front and back garden and would not be taking any further responsibility for that area as she did not have exclusive use, and it was giving her the burden of a communal area which had always been accessed as a bin area for both properties and was not an actual garden.
27. On 23 September 2022, the landlord emailed the resident and asked if she could tell it if she had already spoken to someone about her concern, and if so, what did they tell her and what action would she like it to take on the matter.
28. In internal correspondence, the landlord stated on 28 June 2023 that the hedge was not a communal hedge, it did not cut the hedges on any of the street conversion properties
29. The landlord has not evidenced any communication it had with the resident outside of its complaint responses and therefore did not demonstrate it communicated clearly. It did acknowledge this in its complaint responses but failed to offer any redress to her.
30. In summary, the landlord has failed to evidence that it communicated clearly with the resident following the visit it had made to her property regarding the hedge being cut. It also did not explain to her its decisions regarding her concerns the hedge was part of a communal front garden. These issues have resulted in confusion that prolonged the matter unnecessarily and caused distress and inconvenience to her. As such, there was maladministration by the landlord and compensation should therefore be provided, along with formal clarification on the status of the responsibility for the hedge to resolve the matter satisfactorily.

Complaint handling

31. The landlord has not provided evidence that it formally acknowledged either the resident’s complaint or her escalation request, as required under its Customer Feedback Policy and the Ombudsman’s Complaint Handling Code. Its response on 8 August 2020 appears to be a stage 1 response to the complaint, although it is not clearly described as such, as it referred to the response as a service investigation. It did however inform the resident if she remained unhappy with the outcome of her complaint that she could escalate it to stage 2.
32. At stage 2 the landlord also failed to state it was its formal response at stage 2. Additionally, it is noted that its stage 2 complaint response was referred to as being an “Independent Review.” A complaint response provided by the landlord in response to concerns raised abouts its services should not be referred as being “independent”. This would imply that the review or investigation had been carried out by a third party not involved in the issues under consideration. While it would be reasonable for it to stress that the person responding to the complaint was a member of its staff not previously involved in the complaint process, it was misleading to refer to the review as being independent. It is noted following a check of its current complaints process on its website that it now refers to stage 2 of its complaints process as a ‘review’.
33. The stage 2 response was issued after 26 working days, 6 days outside of the landlord’s 20 working days timescale. It has not evidenced that it informed the resident there would be a delay in its response. Although this would have caused some inconvenience to the resident, it was not a significant delay.
34. For the lack of acknowledgements by the landlord to the resident, the complaint responses not formally stating it was responding at stages 1 and 2 of its complaint process and for the delay in the stage 2 response being issued. The Ombudsman finds there was service failure in its handling of her complaint. 

Determination

35. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the maintenance of a hedge.
36. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s complaint.

Orders

37. By 7 January 2025 the landlord must:
    1. Provide the resident with a written apology for the failures identified in this report.
    2. Pay the resident the sum of £150 for the distress and inconvenience caused by the landlord’s handling of the maintenance of the hedge.
    3. Pay the resident a sum of £50 for the distress and inconvenience caused by its handling of the resident’s complaint.
    4. Consider the terms of the tenancy agreement and the residents reports that the front garden is communal and formally clarify its position regarding the garden and if the hedge is therefore the landlord’s responsibility to maintain.