Metropolitan Thames Valley Housing (MTV) (202232114)

REPORT

COMPLAINT 202232114

Metropolitan Thames Valley Housing (MTV)

31 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. Response to the resident’s requests for the removal of a tree near her garden.
2. Handling of replacement fence panels.
3. Handling of the resident’s complaint.

Background

The resident is an assured tenant of the property owned by the landlord, a housing association.
The resident made a complaint to the landlord on 19 August 2022 stating she had requested a tree in a communal area to the rear of her garden to be cut and for high fences earlier that year. She had received no back fences, and the communal tree and roots were damaging a shed in her garden. Due to broken fences, foxes were digging up her garden, damaging membrane and fouling in the garden. She stated that it had discriminated against her as it fitted high fences for her neighbours. The tree issue had been ongoing for a few years. The resident said she wanted the landlord to remove the tree and roots, change all the fences to high fences as foxes were a problem and for the landlord to compensate her for the damage caused.

The landlord issued its stage 1 response on 3 November 2022. It apologised for the delays to the tree removal as it took it time to establish whose responsibility it was to complete. The works would commence within the next 10 working days. It had agreed to install tall fences for symmetry but could not install these all the way down her garden. Once the tree and broken fence panel had been removed and the panel resolved, the issue with foxes would be eradicated. It advised her to make an insurance claim regarding damage to her shed. It disagreed that it had discriminatory practices as she was incorrect regarding the claim that it installed tall fences in its other tenanted properties.
The landlord offered the resident compensation of £300 which it would credit to her rent account. |It consisted of £100 for delays in action being taken following her original requests for service, £100 for the time and trouble chasing appointments and the inconvenience caused, and £100 for its complaint handling for the length of time it had taken to put a solution in place.
The resident requested the complaint be escalated to stage 2 on 22 November 2022, stating the tree issue was reported in July 2021 when some fences were replaced but the issue with the tree and the back fence was ignored. The landlord had repair records and as part of the complaint should have provided the initial repair request details from 2021. It had been more than 11 working days, and no works had commenced. She did receive a visit on 18 November 2022 for another operative to take pictures, but no work had been undertaken. The delays had resulted in the issue with foxes continuing. The discriminatory practices concerned fences as some tenants/neighbours to her right and left had high fences from the landlord.
The landlord acknowledged the escalation request on 23 November 2022 and stated a response would be issued by 20 December 2022. On 22 December 2022 it informed the resident the response would be delayed and it hoped to provide her with a response by the 13 January 2023.
The landlord issued its stage 2 response on 31 January 2023. It acknowledged that its records showed that no action had been undertaken until her complaint. There had been delays while it awaited a quote from the tree surgeon and works agreed to be completed by 18 November 2022 were not undertaken. Since receiving the stage 2 escalation some works had been done and it had placed an order for replacement of the remaining damaged fence panels. However, it would only remove a tree completely if absolutely necessary.
The landlord apologised for the time taken for the overgrown tree to be addressed since her initial report in 2021, and the further delays following the closure of her Stage 1 complaint. It would monitor the fox situation once the repair had been completed. It re–offered the compensation made at stage 1 to be credited to her rent account plus an additional £50 for delays in action being taken following her original requests for service. Thus, its total offer of compensation was £350.

Assessment and findings

Scope of the Investigation.

The resident has raised concerns of discrimination. It is outside the Ombudsman’s remit to establish whether the actions of the landlord’s staff amounted to discrimination as it is not possible for this Service to make an assessment of an individual’s motives. Furthermore, allegations of discrimination are legal issues better suited to a court of law to decide. Nevertheless, the Ombudsman can assess whether the landlord’s overall communication with, and responses to, the resident were appropriate, fair and reasonable.
The resident felt the landlord should accept liability for the damage caused to her personal property by foxes, who were entering the property via the damaged fences. Liability is a legal issue and so would need to be considered using legal avenues. Whilst the Ombudsman is unable to make a direct finding of liability, this investigation will look at how the landlord managed the complaint about the damage, as well as the landlord’s response to reports of any associated repairs.

Requests for the removal of a tree

The resident has stated she had been reporting the issue with the tree since 2021. The landlord’s correspondence with this Service also confirmed its records indicated the tree works had been outstanding since June 2021, but it had been unable to provide evidence of works being completed from that time. It is therefore not disputed that the issue has been ongoing since June 2021.
Section 9 of the landlord’s repairs policy states the landlord is responsible for trees that are dead, diseased, dangerous, or causing damage to a property.
The landlord has a tree management process. This process details the steps it should take when receiving a report regarding its tree management. It also lays out the steps the landlord should take to investigate any reports it receives regarding its management of trees. It further clarifies that regardless of whether the tree is in a communal area or a resident’s garden, a survey and quote is required from the landlord’s contractor.
Although the landlord’s evidence does refer to a quote being raised and received from a tree surgeon, it has not provided any evidence of when it requested a survey and quote, what it requested to be quoted and what findings and quotations were provided to it.
The landlord has also not provided any evidence of the actions it took prior to the resident making her complaint in August 2022. Given that the landlord has confirmed it had been aware of the issue since June 2021 and in the resident’s complaint she stated the issue had been reported during 2022, the landlord would be expected to have records relating to those events. The lack of evidence provided by the landlord hampered this investigation into how it handled the resident’s reports up to the complaint being made in August 2022. This was a record keeping failure by the landlord.
Following the complaint being made, there was some evidence that the landlord did make contact with its tree surgeons. On 21 September 2022 and 29 September 2022, it made internal enquiries regarding if it had received contact from its tree surgeon. There was also an email from the landlord to the resident on 19 October 2022 that indicated the tree surgeon had recently visited the resident’s property, it was waiting for the quote but the works were quite extensive. On 25 October 2022 the landlord informed the resident it had not had an expected date for the works to commence.
However, there was no evidence provided by the landlord regarding its contact with the tree surgeons, limiting the Ombudsman’s ability to determine what extent its contact with the tree surgeons was or what inspections or works were required to be raised. This is an additional record keeping failure.
It is vital that landlords keep clear, accurate and easily accessible records to provide an audit trail. If there is disputed evidence and no audit trail, the Ombudsman may not be able to conclude that an action took place or that the landlord followed its own policies and procedures.
When the landlord’s officer visited the resident on 3 October 2022, its findings noted that the tree behind the shed was leaning against it and against the back fences as well. A big root from the tree had gone through underneath the shed and was destroying the shed.
The landlord’s records indicate a quote was to take place on 12 October 2022 for tree works but again there was no evidence provided by the landlord of what was requested to be quoted or when the request was raised. Although the landlord records indicated a quote was received on 17 October 2022, there was again no evidence of what the quote was for.
The landlord however emailed the resident on 19 October 2022 and stated it understood the works were extensive and was waiting for a quote. It is therefore unclear from its records what the situation was at that time. The works however had not progressed since the complaint had been made on 19 August 2022. It had been 42 working days at that point.
The landlord did inform the resident on 21 October 2022 that the quote for the tree works had been approved and it was waiting for a date for when the works could be scheduled. It is noted, however, that the landlord did not provide any further information to the resident about what works had been agreed or when she would be next updated.
The landlord, in internal correspondence on 1 November 2022, noted that its estates team had committed to having the tree at the far end removed within the next 2 weeks. It hoped that once the fence panels were replaced, this would also address the issue of foxes entering the garden.
The works had not commenced at the time the stage 1 response was issued on 3 November 2022 and the landlord apologised in this response that there were delays in the works commencing. The landlord stated that was due to it taking time to establish whose responsibility it was to complete the works but confirmed that its Estates Team had contractors in place and works would commence within the next 10 working days.
The works did not take place within those 10 working days and the delays, at that point, went far beyond the timescales of its repairs policy. This would also have caused further distress for the resident, given that works remained incomplete at least 16 months later.
The landlord also stated that the damage to the resident’s shed would need to be claimed through her building and contents insurance but if she did not have one it could provide her with documents to pursue a public liability claim against it. The length of time the tree works had been outstanding and the landlord’s inaction during that time may have contributed to the damage being caused. It was appropriate that it gave her both options.
The landlord addressed the resident’s concern about foxes entering the garden due to the damage fence panel caused by the tree stating that once it had been removed and the panel replaced, that would eradicate the issue. Those works would commence after the tree surgeon had attended. It, however, did not evidence that it considered if there was any short-term measure it could put in place while waiting for the works to be completed, or offer any other assistance to the resident in deterring the foxes she stated were damaging her garden.
The stage 1 response stated the actions the landlord would take would be the removal of the tree. It emailed the resident on 13 December 2022 about not being able to provide a date for the removal of the tree. The landlord’s internal correspondence asked about the removal of the tree on 19 December 2022, and the resident was emailed on 21 December 2022 that the tree would be removed on 23 December 2022. From those correspondences from the landlord, it would have been reasonable for the resident to conclude the tree was to be removed.
However, on 21 December 2022 the resident informed the landlord a contractor told her he would remove the branch against her shed. She said that would be unsatisfactory and not resolve the remaining issues. She was aware the tree needed to be removed before other works were completed, so cutting the branch against the shed alone would not complete the work. She had already reminded the contractor that the tree was based in the communal garden of nearby flats. She asked the landlord to confirm the actual detail of works to be done on 23 December 2022. She was concerned at the amount of time it was taking to resolve the complaint, the further damage being caused, and that contractors were not clear about the work expected to be completed.
The landlord responded the next day and said it believed its wording may have caused some confusion. The works being completed were to remove stem rubbing on the shed roof and cut back remaining vegetation to boundary fence. Once those works were completed it could look at getting the fence panels repaired.
The resident, on 22 December 2022, informed the landlord that the tree had roots which were uprooting the foundations that the fences needed to be placed onto and was damaging her shed. That meant that not dealing with the tree root removal fully would mean her complaint was not being resolved as the root cause was the tree. The resident felt the tree/root removal needed to happen before foundation and fence works took place.
There is no evidence that the landlord considered her concerns or the information she provided. In multiple correspondence with the resident, it referred to the tree being removed. The evidence has not clarified why it changed its position afterwards to then inform her the works would be different.
The resident confirmed to the landlord on 9 January 2023 that, although parts of the tree was cut back, the roots remained. However, the landlord has failed to provide any evidence of those works taking place.
Overall, due to the poor record keeping by the landlord, there was no evidence that it appropriately addressed the resident’s reports of the roots being the issue of the damage caused or the comments of its officer from 3 October 2022 which also stated the roots were causing damage. It failed to evidence that it conducted an appropriate investigation of the tree, consider if it needed to take any interim action to prevent foxes entering the garden and to clarify why it changed its position on the works. This Service concludes that these actions demonstrate very significant failings by the landlord.

Replacement fence panels

Section 3 of the tenancy agreement confirms the landlord will repair the structure and outside of the property and this includes fences. Section 9 of the landlord’s repairs policy states the landlord is responsible for fences and gates at the resident’s property. It states the priority for those repairs will depend on whether the issue is obstructing a public walkway or causing a safety issue. However, it would be reasonable to expect the landlord would aim to complete the repairs no later than within the timescales of its longest repairs times which under the repairs policy is for non-routine appointments and it aims to complete those types of repairs within 90 days.
Neither the tenancy agreement nor the repairs policy states the fences needed to be of a specific height.
As the landlord is responsible for repairing and maintaining the boundary fences in the resident’s garden, it would have discretion on the style of fencing supplied.
The resident raised the issue as part of her complaint on 19 August 2022, although it is acknowledged that in the complaint she stated the issue had been raised with the landlord prior to the complaint being made.
During the previously mentioned visit by the landlord to the resident’s property on 3 October 2022, it noted that the resident requested for higher fences, which it could not accommodate but did not elaborate on the reasons for being unable to do so.
The landlord’s complaints team did ask its repairs service on 20 October 2022 if works had been booked in and that it had been provided with a video the resident had taken of her garden. It could see that the fence panels did not appear to fit properly as they were bent and there was a mixture of fence panel sizes which was not symmetrical.
The landlord’s records noted on 21 October 2022 that the resident had a mixture of tall and small fence panels running along each side of the garden. It noted that during its inspection none of the panels were bent except for the back of the garden affected by the tree. It would raise work orders for 2 fence panels to be erected, but stated that having tall fences would not stop the foxes getting into the resident’s garden and there was nothing that it could do to stop the foxes.
On 24 October 2022 the resident emailed the landlord and said she had been told over the telephone that it would not provide high fences despite her neighbours having them and that she had raised discriminatory practices for different neighbours in her complaint. The ongoing issues with foxes was being exasperated by the fences and tree issue amongst other issues such as delayed works. She asked what the landlord meant by it trying to make the fence symmetrical. The resident noted that her complaint should have been responded to by 21 October 2022.
The landlord did raise a works order on 31 October 2022 to erect 2 fence panels to match those on the opposite side of the garden and repair any loose panels.
On 2 November 2022 the resident emailed the landlord and said she had been contacted by its contractor who wanted to install 2 fences to make it symmetrical and fix any gaps but that meant she would still have 4 short fences, which was not what the landlord had said in a conversation over the telephone the previous day and would not address why some tenants got tall fences and she could not have the same which was a discriminatory practice. The resident said her request for taller fences previously was due to serious fox issues and neighbours in the street, who were tenants, got all tall fences. She requested clear information on agreed repairs.
The landlord responded the same day stating that the resident had misunderstood what it had told her in the phone call. It clarified that it would be making the fences symmetrical, meaning there would be some tall and some small fences, but it would be the same on both sides. The only fence panel which was allowing foxes to gain access to the garden was the panel damaged by the overgrown tree. It was unable to install all fence panels to be tall ones, but once the tree surgeon had attended, the panel behind the shed would be replaced with a tall panel. The landlord said there was no intended discrimination or practices in place to single her out from any other resident.
In its stage 1 response, the landlord stated that it had agreed to install tall fences so that the panels on both sides of the rear garden were the same and symmetrical. It could not install tall fence panels all the way down the garden and was sorry that was not the outcome she asked for. It disagreed that it had discriminatory practices as the resident had incorrectly claimed that it had installed all tall fences in other tenanted properties but that was not the case.
Correspondence from the resident indicates that the fence panels to the sides of the garden were replaced on 7 December 2022. The landlord however did not provide its own records that confirmed that.
The stage 2 response repeated the landlord’s response at stage 1 and noted that it had replaced some of the panels to ensure each side was symmetrical. However, as with the tree works, the landlord did not provide its repairs records that confirmed what works took place and when.
As previously stated, the tenancy agreement sets out that the landlord is responsible for keeping the structure and exterior of the premises in good repair, including fences. The landlord therefore was obliged to rectify repair issues with the fences.
While the resident was concerned that the replacement fences height was less than her neighbours, the landlord is not obliged to provide a particular height of fence. In light of that, the Ombudsman considers that the landlord fulfilled its obligation to keep the fence in good repair with the panels it installed.
The resident was concerned that her neighbours had been provided with higher fences and felt discriminated against by the landlord on that basis. It was clear in the evidence provided that she felt strongly about that and provided evidence to the landlord consisting of video and photographs of her neighbours’ fences. The landlord did not provide an explanation to the resident specifically regarding her concerns that her neighbours had been provided with higher fences. It instead stated she had not been discriminated against. The landlords’ records show it asked internally for an explanation it could provide to the resident but as of the stage 2 response none was provided by the landlord. This would not have reassured the resident regarding her concerns. However, it is also worth noting that a landlord’s action in relation to a resident does not necessarily create an obligation for it to do the same for every resident.
The landlord’s records were not clear when the resident first made her request for the fence panels to be replaced. It is clear however that the landlord was aware from at least 19 August 2022 when the complaint was made. It took the landlord until 7 December 2022 to replace the fence panels to the sides of the garden, a total of at least 111 days. Although its repairs policy states repairs for fences will vary depending on the issue, there was no substantial reason for its delay in installing the panels and the time taken exceeded the timescales in its repairs policy for any category of repairs. This along with its failure to provide the resident with adequate reasons for its decision about the fence panel heights considering her concerns about discrimination amounts to maladministration.

Complaint Handling

The resident made her complaint to the landlord on 19 August 2022. The landlord’s complaint policy states the landlord will respond to the complaint at stage 1 within 10 working days.
The landlord acknowledged the complaint on 23 August 2022 and informed the resident a response would aim to be issued within 10 working days, but if it required more time, she would be contacted and kept informed.
The resident was informed on 7 October 2022 that her complaint handler was no longer working for the landlord and therefore a new officer was assigned to the complaint. The new officer informed the resident it would need a further 10 working days to provide a response to the complaint, which would give it until 21 October 2022.
This update and request came 34 working days after the complaint had been made and was therefore already over the landlord’s complaint policy timescale of 10 working days. The landlord failed to acknowledge that or apologise to the resident in its update and confirmation that it was to extend the complaint process further.
The resident requested a copy of the complaints policy on 18 October 2022 and the landlord referred the resident to its website. It did apologise at that point for the length of time the complaint was taking. However, no change to the expected response date was provided to the resident.
On 25 October 2022, after being chased by the resident, the landlord informed her it was aware it had exceeded the timescale for the stage 1 response to be issued which it would address in its stage 1 response. The landlord informed the resident the stage 1 response would be issued no later than 28 October 2022.
The stage 1 response was issued on 3 November 2022. This was 53 working days after the complaint was originally made and 5 working days beyond the landlord’s extension of the complaint to 28 October 2022.
The landlord acknowledged this in the response, it apologised to the resident and offered £100 compensation. The offer made by the landlord was appropriate given the delays the resident had incurred and the landlord failing to fulfil the extension timescales it provided to her.
Once the complaint had been escalated to stage 2 the landlord had the opportunity to ensure it had learned from the failures in its handling of the stage 1 complaint and provide the stage 2 response within the timescales of its complaints policy.
The landlord informed the resident she would receive the response by 20 December 2022, it then informed the resident on 22 December 2022 it would be extending the complaint response to 13 January 2023. It informed her of a further delay on 16 January 2023 and did not provide the stage 2 response until 31 January 2023. This was 48 working days after the escalation request was made and demonstrated the landlord did not learn from the failures in its handling of the stage 1 response. The landlord did not acknowledge this in its stage 2 response and did not offer any further redress to the resident for its handling of her complaint.
The landlord’s failure to provide complaint responses within the time scales of its complaints policy, failure to provide the responses within initial extension dates, failure to fulfil the commitments it made in the stage 1 response and failure to learn from its handling of the stage 1 response amounts to maladministration by the landlord.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme:
1. There was maladministration in respect of the landlord’s response to the resident’s requests for the removal of a tree near her garden.
2. There was maladministration in respect of the landlord’s handling of replacement fence panels.
3. There was maladministration in respect of the landlord’s handling of the resident’s complaint.

Orders

Within 4 weeks of the date of this report the landlord must:
1. Provide a written apology for the failures identified in this report to the resident.
2. Pay the resident £400 for the distress and inconvenience caused by its handling of its response to the resident’s requests for the removal of a tree near her garden. This compensation is to be paid to the resident and not offset against her rent account.
3. Pay the resident £150 for the distress and inconvenience caused by its handling of replacement fence panels. This compensation is to be paid to the resident and not offset against her rent account.
4. Pay the resident £150 for the distress and inconvenience caused by its handling of her complaint. This compensation is to be paid to the resident and not offset against her rent account.
5. Carry out a full survey of the tree by a suitably qualified operative, provide a copy of the findings and any required work including a timetable for any works to the resident.
6. Complete an inspection of the fences in the resident’s garden and complete any repairs required.