Peabody Trust (202311049)

REPORT

COMPLAINT 202311049

Peabody Trust

19 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

The complaint is about the landlord’s handling of the resident’s:
1. Concerns about the use of the communal gardens.
2. Associated formal complaint.

Background

The resident has been an assured tenant of the landlord, a housing association, since 2000. The property is a second floor, 2-bedroom flat and there are no recorded vulnerabilities.
In early 2020, the resident raised concerns with the landlord about extensive structures and multiple items a neighbour had placed in the communal gardens, and the hazards these were causing. She said this stopped her being able to enjoy the use of the gardens.
On 31 January 2022 the resident raised a complaint through a representative. She said the landlord had not removed the structures from the communal gardens, these were a trip hazard, and they restricted access to the affected areas. The landlord issued its stage 1 response on 4 May 2022. It said it could not establish that the resident had been prevented from using the communal garden, and that none of the other neighbours had complained about this. As such, it did not uphold the complaint.
The resident escalated her complaint to stage 2 on 4 July 2022. She said:
1. The complaint response was not accurate as it gave the incorrect complaint date and she disagreed with the reason for the delay.
2. She had not been prevented from accessing the garden, the complaint was about her not having full and equal access to the garden because of the neighbour’s actions.
3. The landlord’s comment that none of the other neighbours had complained about the issue made her feel ‘patronized and dismissed’.
4. She was told on 7 June 2022 that someone would try to attend the property within 3 weeks to assess the blockages in the garden, but she had not been contacted with an update.
5. The neighbour had since erected a large, unstable tree branch to prop up the washing line.
6. It was not reasonable for a tenant to section off and install permanent structures which restrict the use of the communal garden.
In its stage 2 response of 9 August 2022 the landlord said that it was not able to award the resident compensation because it could not establish that she had been prevented from using the communal garden. However, it offered her £425 compensation for its delays (£175 for complaint handling failures and £250 for the time, trouble and inconvenience taken to chase a response to her concerns and the complaint).
On 10 July 2023 the resident referred her complaint to the Ombudsman. She said:
1. The compensation amount was not reasonable because she disagreed with the complaint response and the time taken to respond.
2. The landlord’s complaint responses did not address her question about whether her neighbour had been given permission to erect the structures.
3. The neighbour continued to use the unsecure tree branch to hang her clothes and this was a safety risk.
4. The neighbour continued to leave her plant, vegetables and fruit pots in the middle and around the perimeter of the garden. There were also broken bricks and small plant pots covering the ground, which were dangerous due to the overgrown grass.
5. The neighbour had only left a small area in the middle of the garden free for others to use.
6. The landlord had allowed the neighbour to have complete control of the communal garden despite them making the garden hazardous and the landlord being aware of these hazards.
To the Ombudsman’s knowledge the structures erected by the neighbour have not been removed and the issues these caused are ongoing.

Assessment and findings

Scope of investigation

The Ombudsman expects residents to raise complaints with their landlords in a timely manner, usually within 12 months of the issues complained of arising (reflected at paragraph 42.c of the Scheme). This is so that the landlord has a reasonable opportunity to investigate the issues whilst they are still ‘live’ and whilst the evidence is still available to properly assess them. Therefore, while the events dating back to July 2020 are noted for context, this investigation is focused on events from January 2021, 12 months before the complaint was raised.

The use of the communal gardens

The landlord’s estate management policy defines ‘communal areas’ as shared areas which are managed by the landlord and can be accessed by other residents, including gardens and open green spaces. The policy also confirms that the landlord is responsible for maintaining communal areas, and will:
1. Regularly visit communal areas to make sure that they are clean, tidy and safe.
2. Comply with all health and safety requirements in communal areas related to maintenance, cleaning, responsive repairs, antisocial behaviour and fire safety.
3. Work with residents to monitor communal areas and gardens to identify health and safety concerns, such as trip hazards or dangerous trees, repairs and other maintenance issues.
Following the resident’s reports of a neighbour ‘taking over’ the communal gardens in 2020, and the perceived lack of action by the landlord, she arranged a housing health and safety rating system (HHSRS) inspection which took place on 6 April 2021. It identified several category 1 hazards in the rear garden and made the following recommendations:
1. Replace all broken and damaged paving slabs as necessary.
2. Lift any paving slabs which are uneven or raised, and re-lay them on flat ground.
3. Remove all bricks around the flower beds to ensure the lawn surface is left in a smooth even manner.
4. Build up the ground around the man-hole cover using sand and cement to ensure the edges of the man-hole cover do not protrude out from the adjacent ground surface.
5. Remove the old concrete post remnant from the rear garden.
6. Remove all loose bricks stacked up in the rear garden.
The resident has said that she presented this report to the landlord in 2021. While the landlord disputes this, a copy of the report was provided to it as part of the resident’s stage 1 complaint in January 2022.
The landlord’s stage 2 response said that on 31 March 2022 it inspected the property and found a structure with raised bricks but the rest of the area was free for residents to use. The landlord wrote to the neighbour on 16 April 2022 asking her to remove the ‘piled up wood, loose slates of tiles, buckets and all other items not captured in this letter’ as soon as possible, so all residents could use the garden without restrictions. This was a reasonable and appropriate response to the resident’s concerns, and demonstrates an attempt by the landlord to resolve the issues. However, it has provided no evidence of any subsequent attempts to monitor the outcome of the request and ensure the neighbour complied.
In fact, the landlord has provided no evidence of taking any further action until 9 August 2022, some 4 months later, when it inspected the property again following the resident’s complaint escalation. It found the raised brick structure was still in place and concluded there were ‘some health and safety issues’. No evidence has been provided to show what these were. It then wrote to the neighbour on 18 August 2022 and again asked them to remove the structure.
It was not reasonable for it to take 4 months, and a complaint escalation from the resident, for the landlord to follow-up on its initial request for the neighbour to remove the items and structures. Additionally, when it inspected the property and found the neighbour had not removed the items, it chose to make a further request for their removal. Given the neighbour had not fully complied with the landlord’s previous request, it would have been more appropriate for it to escalate the issue. For example, the landlord could have sent a letter highlighting their tenancy obligations and the consequences should they not remove all the items.
The landlord failed to assess the hazards identified in the HHSRS report in (at least) 2021 or remove/repair them following the complaint and subsequent inspections in 2022. Additionally, the evidence provided by the landlord does not address the resident’s report that the neighbour had erected a “fence” in the communal front garden and sectioned part of it off as “hers”. When the Ombudsman spoke to the resident on 10 October 2024, she confirmed that this “fence” was still in place and the landlord had not taken any steps to remove it. This represents a failure in service and was understandably frustrating for the resident.
Regarding the resident’s concerns about an unsafe tree branch being used to hold the clothesline, it is noted that this particular issue did not form part of the original complaint, and was only raised in July 2022 (as a further example of the neighbour’s actions). In the landlord’s stage 2 response it advised that it had inspected the property and did not see the tree branch, but confirmed that it would not be a breach of tenancy in any event. While this may be the case, the resident had reported the branch as a potential hazard which was unsecure and could fall on someone. As a result, it would have been more appropriate for the landlord to proactively assess the branch, determine whether it did constitute a hazard, and confirm its position to the resident within its complaint response.
The landlord told the resident within its stage 2 response that it would remove the structure, mow the lawn and tidy the area to make it accessible to all residents. However, on 10 April 2024 the landlord advised this Service that it had failed to do so as it was too busy and had received no further complaints to remind it to do so. During a conversation with the Ombudsman on 10 October 2024, 6 months later, the resident advised that these works remained outstanding. This indicates that the landlord has failed to put things right or learn from outcomes, in contravention of the Ombudsman’s Dispute Resolution Principles.
It took 2 years for the landlord to inspect the items and hazards reported by the resident, and it only did so in response to a formal complaint. This was an unreasonable delay, which was not in line with either its estates management policy or good industry practice. The landlord’s failure to remove items and hazards from the communal gardens within a reasonable time meant that the resident was unable to fully enjoy the area since January 2021 (the start of this investigation period). The Ombudsman has also seen no evidence that the items have since been removed from the communal garden, or that the other hazards identified in the HHSRS report have been fixed.
Cumulatively, the landlord’s failures amount to maladministration. They led to a delay in the hazards in the communal gardens being removed and fixed, which impacted the resident’s full enjoyment of the property for at least 4 years. Furthermore, the landlord failed to take the opportunity presented by the complaints process to recognise and resolve this.
In view of this, the Ombudsman orders the landlord to apologise for the failings identified in this report and pay £200 compensation. This sum is in line with the Ombudsman’s published remedies guidance for failings which adversely affect a resident and the landlord has failed to acknowledge its failings, but which have no permanent impact. Further, an order is made for the landlord to write to the resident setting out what actions it will take to remove the remaining hazards, items and unauthorised installations, with timescales given.

Complaint handling

The resident raised a complaint on 31 January 2022. Under the landlord’s complaints policy and the Ombudsman’s Complaint Handling Code (the Code), the landlord should have issued a stage 1 response within 10 working days. Instead, it issued its response on 4 May 2022, over 3 months after the resident made a complaint.
In its stage 1 response, the landlord said the delay occurred because it had not received signed authority from the resident’s representative. However, this was inaccurate. It has since accepted that it requested a letter of authority on 16 February 2022 (12 working days after the complaint) and it received the relevant authority the next day. In its stage 2 response, the landlord said the real reason for the delay was that it had failed to log the complaint, and had instead incorrectly logged it as an informal enquiry.
The landlord’s failure to log the complaint caused unreasonable and avoidable delays in its complaint handling, which meant the resident had to repeatedly chase it for a response. It is also of concern that the landlord initially sought to incorrectly place blame for the delays on the resident.
The resident then escalated the complaint on 4 July 2022. Under its complaints policy and the Code, the landlord was required to issue a stage 2 response within 20 working days. It issued its response on 8 August 2022, which was 26 working days after the escalation request. It has provided no evidence of agreeing any extension with the resident, and no explanation for the delay. While this was a relatively short delay compared to its previous delays, it demonstrates that the landlord did not learn from its previous failings.
It is also noted that, in the resident’s stage 1 and 2 complaints, she quoted the tenancy agreement which states that tenants require permission from the landlord before making any alterations or additions to the property. She then asked whether the neighbour had been given permission to erect the structures in the communal garden. Neither the stage 1 or 2 responses directly addressed this question. The Code in operation at the time required that landlords must address all points raised in a complaint and provide clear reasons for any decisions, referencing the relevant policy, law and good practice where appropriate.
While the landlord’s confirmation that it had asked the neighbour to remove the structures may suggest that she did not have permission to erect them, no evidence has been seen to show that this was ever confirmed and communicated to the resident. This led to the resident having to take time to raise this question multiple times.
In its stage 2 response, the landlord recognised there were failings in its complaint handling and offered the resident £425 compensation. This sum is in line with the Ombudsman’s published remedies guidance for failings which adversely affect a resident, but which have no permanent impact. As such, the Ombudsman considers that the landlord has made an offer of redress which resolves its poor complaint handling satisfactorily.

Determination

In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord in its response to the resident’s concerns about the use of the communal gardens.
In accordance with paragraph 53.b of the Scheme, there was reasonable redress by the landlord in respect of its handling of the associated complaint.

Orders

Within 4 weeks of the date of this determination, the landlord is ordered to provide the Ombudsman with evidence that it has complied with the following orders:
1. Issue a written apology to the resident for the failings identified in this report. The apology must be from a member of the landlord’s management team and should follow the Ombudsman’s apologies guidance on our website.
2. Directly pay the resident £200 compensation for its poor handling of her concerns surrounding the communal areas.
3. Write to the resident to confirm the following:
  1. What hazards, items or unauthorised installations are still present in the communal gardens.
  2. What action it intends to take regarding any remaining hazards, items or installations and when it will take that action.
  3. If it does not consider that it needs to take any further action, what its reasons are.

Recommendations

Within 4 weeks of the date of this determination, the landlord is recommended to, if it has not already done so, pay the resident the £425 compensation offered in its stage 2 response for its poor complaint handling. This offer recognised genuine elements of service failure and the reasonable redress finding is made on that basis.