Willow Tree Housing Partnership Limited (202317198)

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REPORT

COMPLAINT 202317198

Willow Tree Housing Partnership Limited

29 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:
1. The landlord’s response to the resident’s reports of defective drainage in the resident’s garden.
2. The landlord’s complaint handling.

Background and summary of events

The resident occupied his home, a 3-bedroom house with his family, under a fixed-term affordable rent assured tenancy under a rent-to-buy scheme. The tenancy began on 3 March 2016.
A number of companies were involved in the transactions referred to in this investigation. There was a holding company which operated a rent-to-buy scheme whereby rent paid by a resident would be counted as a deposit towards a purchase. That company will be referred to in this report as “R”.
The resident was represented by R in this complaint.
2 or 3 subsidiary companies of R were also involved. As which is which subsidiary is not relevant to the complaint, this investigation will refer to each of the subsidiaries uniformly as “R1”.
The landlord had leased the property from R1, also on 3 March 2016, under a 20-year lease. The lease between R1 and the landlord was a “fully repairing lease” which meant that the landlord was responsible for all repairs and maintenance to the property during the term of the lease. On or around 27 August 2021, the resident purchased the property from R1. At the point of purchase, the tenancy ended and the landlord surrendered its lease to R1, enabling the sale of the property to the resident.

Legal and policy framework : documents:

Undated and unsigned Agreement to Lease between R1 and the landlord. The agreement stated as follows:
1. The landlord was to notify R1 and/or the developer of any defect during the rectification period. The rectification period was one year starting on the “practical completion date” (the date the property was ready for occupation).
2. R1 was to “procure” that the developer made good any defects notified to it by the landlord during the rectification period.
3. Documentation to be passed at handover included a NHBC (National House Building Council) cover note and certificate for the relevant plot. The NHBC provides warranties for new homes. The “registered social landlord’s” copy of the NHBC “Buildmark” certificate in relation to the plot stated that cover began on 14 December 2015 and expired on 13 December 2027. It is reasonable to assume that the plot referred to was the resident’s property.
Collaboration agreement dated 3 October 2015 between R and the landlord.
1. The landlord did not provide the appendices to this agreement, however R provided us with the following wording which R said was from appendix 9 of the agreement. The wording stated as follows (it is understood these referred to R’s obligations):
  1. “..manage defect reporting, repairs and release of retention”. R informed us that this wording referred to defects reported during the rectification period
  2. “provide support on latent defects”. R informed us that this wording referred to latent defects reported outside the rectification period
Lease between R1 and the landlord dated 3 June 2016.
1. Under the lease, the landlord had an obligation to keep the property in good substantial repair including the “structure and outside the property” and only excluding the garage. The property meant the house and garden and included all drains and the grassed area, and included the drains in, under and over the property and served the property only.
Tenancy agreement between the landlord and the resident dated 3 June 2016
1. Under the lease, the landlord had an obligation to repair the structure and exterior including drains, gutters and external pipes. The garden was not referred to.
Template Buildmark 2014 policy, available on NHBC’s website, states that the home it covered included “the external handrails and balustrades, paths, drives, gardens and paved areas newly built by the contractor at the date of the Buildmark Choice certificate”.
NHBC standards effective January 2014 stated that:
1. The “garden area” is the land within the curtilage up to 20m from the habitable parts of the home.
2. Garden areas within 3m of the habitable part of the home shall not be waterlogged. Waterlogging of garden areas within 3m of the habitable part of the home should be prevented by drainage or other suitable means.

Chronology

This investigation was hampered by a lack of documents. The landlord informed this Service that, under its retention policy, it only retained emails up to 18 months which would mean mid-2023. That did not explain why there were so few records. There were various gaps in the evidence and the chronology is limited to the documents provided by both parties.
The tenancy began on 3 March 2016. On 6 May 2016, according to the landlord’s notes, the landlord made a “post-sign-up” visit to the resident. The notes do not record any concerns about drainage and noted that the garden was in good condition. Notes of a “5 year” review meeting on 3 May 2018 showed that the resident raised concerns about drainage at that meeting.
On 13 April 2021, the landlord wrote to the resident that it had approached the developer about the garden as a latent defect and, if this was not agreed with them, works would be carried out by the landlord’s contractor.
On 18 August 2021, the landlord wrote to the resident stating that repairs to address the poor drainage would be carried out by contractors. It confirmed the works would be carried out by the landlord at its cost, even if they took place after he had purchased the property.
On 12 June 2023, the landlord wrote to the resident as follows:
1. The matter had been first raised back in 2019 (sic) and had been ongoing ever since.
2. While the landlord stated that it would carry out the drainage work prior to the resident purchasing the property and then again after the purchase, the advice was not correct. It apologised.
3. The remedial works were a latent defect and should have been referred back to R to liaise with the developer to rectify.
4. The landlord did not have responsibility for elements that were development defects. The drainage matter stemmed from development.
5. Support should have been provided to raise the matter with the correct parties in order to help remedy the matter.
6. The landlord should not have led the resident to believe that these works would be remedied by the landlord.
7. Given the protracted length of time the matter had been left unresolved for, and the fact that his expectations were not managed and misinformation was provided, it offered £1,000 by way of contribution to remedying the issue. It would ask the resident to sign a “disclaimer” that he would be accepting “this payment in full and final settlement for the way in which this matter has been handled to date”.
On 21 June 2023 the resident made a complaint as follows:
1. The offer fell “significantly short of rectifying the problem”.
2. It had been agreed that the landlord would bear the responsibility and cost for remedying the drainage issues. The cost was approximately £3,800 to £4,600 according to two independent quotes.
3. The resident asked the landlord for a number of actions including fulfilling the original agreement and attendant actions and “a sincere apology for the prolonged delay, the inconvenience and his distress”.
On 26 June 2023 the landlord wrote its response as follows:
1. It apologised unreservedly that he was incorrectly advised that the landlord would undertake the remedial works. It felt the resolution offered was proportionate.
2. The resident “may wish” to pursue the case with the developer.
3. As this was a developer’s defect issue, its complaints policy did not apply.
4. The “protracted and drawn-out issue” did not “leave the landlord in the best light”.
On 12 July 2023 the resident wrote asking to lodge a Stage 2 complaint as follows;
1. He repeated the contents of his original complaint.
2. He added that the landlord had failed to comply with the Housing Ombudsman’s Complaint Handling Code as the landlord had not provided the contact details for the Housing Ombudsman or his right to appeal the decision, as stipulated by the Code.
On 19 July 2023, R, in its capacity of the resident’s representative, wrote to the landlord as follows:
1. The reason the landlord had taken responsibility was that it had known about this issue for a couple of years, but nothing had been done.
2. It was on this promise that the resident proceeded with the purchase of the property, with the understanding that the garden would be resolved after the purchase was complete.
3. It referred to the Ombudsman’s complaint code regarding refusal to escalate a complaint. “A landlord must not unreasonably refuse to escalate a complaint through all stages of the complaints procedure and must have clear and valid reasons for taking that course of action. Reasons for declining to escalate a complaint must be clearly set out in a landlord’s complaints policy and must be the same as the reasons for not accepting a complaint.” The landlord’s reason for rejecting the complaint was not a valid reason, as the complaint dated back to a time when the landlord was responsible for defects. In addition, the complaint was about its failure to make good on their promise to rectify the defect.
4. Responsibility for the defect had already been accepted by the landlord.
5. The complaints code stated that: “Communication with the resident should not generally identify individual members of staff or contractors as their actions are undertaken on behalf of the landlord.” The landlord’s Complaints Policy stated that the landlord should: “take collective responsibility for any shortfalls identified through complaints rather than blaming others.”
6. Due to the delays in resolving the resident’s garden issue, more than 6 years had now passed since his home was completed, which meant that the resident had been denied the opportunity to resolve this issue with the developers as they have very limited or no legal responsibility for latent defects after 6 years.
7. The only course of “honourable action” was to accept responsibility as an organisation and make good on those promises. He suggested a meeting.
On 25 July 2023, the Chief Executive of the landlord (CEO) wrote us stating that the resident had pursued an issue with drainage in his garden through the defects period that remained unresolved after the twelve month snagging was concluded.
On 31 July 2023 the resident chased the landlord stating he would refer the matter to our Service. On 4 August 2023, the CEO wrote to the resident stating that its position was unchanged and suggested R might match its offer. The letter acknowledged it had given the resident assurances which “were incorrect”. “This was not right, but to continue to do what (was) not right (was) not the correct way forward”. It set out that it was not-for-profit and bound by its charitable objects. It “was important” it used its finite resources in the best way possible”.
On 2 November 2023, the landlord wrote to the resident as follows:
1. The Ombudsman had requested that it advised him of their contact details and confirm it was not pursuing this matter through the internal formal complaints process.
2. There had been no doubt he had been misinformed and the issue was protracted. However, “to continue to do the wrong thing is not appropriate nor proportionate”. It “strongly” advised him to make contact with the developer.

Assessment and findings

Where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this, the Ombudsman assesses whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: be fair, put things right and learn from outcomes.
The Ombudsman does not make findings in law. However, it would expect the landlord to comply with its legal obligations, its policies and good practice. The Ombudsman has first considered whether there was any evidence that the landlord had a legal obligation to rectify the drainage in the property. If it had, the Ombudsman would have expected the landlord to comply with its legal obligations.
Section 11 of the Housing Act 1985 (HA 1985) and the Defective Premises Act 1972 (DPA 1972) imply repair obligations and obligations into the tenancy agreement. In general, the HA 1985 does not relate to inherent building defects or gardens while the DPA 1972 applies to injury or property damage. In line with its statutory obligations, the tenancy agreement itself referred to the landlord’s repair obligations as regards the fabric of the building, and not the garden. There was no evidence that provisions in either legislation or the tenancy agreement imposed an obligation on the landlord to undertake the repairs. However, as we do not make legal findings, and this would require a legal analysis involving interpretation of the tenancy agreement, statute and case law, it would be for a court to make a definitive determination.
R, in its capacity as the resident’s representative, told us in December 2024 that the landlord’s obligations under a fully repairing lease included rectifying any defects in the property. This was indicated by the lease between R1 and the landlord. The Ombudsman is unable to make a definitive finding on that point as, again, this would entail a legal analysis. However, the obligations under the lease were those owed by the landlord to the lessor and not to the resident, and it is the landlord’s obligations to the resident that that this investigation is concerned with.
Part of the resident’s complaint was that the landlord was responsible for the actions of its employees, namely, the promise made to the resident in August 2021 to carry out the repairs. The landlord did not dispute that it was responsible for its employee actions. It explicitly acknowledged that a promise was made. Another aspect of the resident’s complaint was that the landlord should abide by its agreement of August 2021 as a matter of contract. However, there was no evidence that the promise the landlord made constituted a contract, with an exchange of consideration on both sides, and was therefore enforceable. Again, any definite finding would have to be in a court of law.
There was no evidence of the specific reasons the landlord made a promise to undertake the repairs except that R stated it was because the landlord did not take the steps it should have taken. This would indicate that the offer was made by way of compensation, and did not indicate the landlord had accepted it had a legal obligation to carry out the works. Also part of the complaint was that the landlord’s delays (which were not disputed) prevented the resident from pursuing the developers. There was no evidence that that was the case. In any event, such an analysis would involve an investigation into whether the landlord was negligent in law which would be appropriate for a court to decide.
In conclusion, in the opinion of the Ombudsman, there was no evidence that the landlord had a legal obligation to undertake the repairs.
In reaching this conclusion, the Ombudsman is not making definitive legal findings. That would be for a court of law. While it is appreciated it would be costly, it is open for the resident to seek legal advice on this matter.
Even where there is no evidence of a legal obligation by the landlord to remedy a defect, the Ombudsman would expect the landlord to have made reasonable efforts to liaise with the R, the developer and NHBC, as appropriate. The onus was on R or its subsidiaries to liaise with the developer during the rectification period.
While the landlord’s contractual relationship was with R and not the developer, according to R the NHBC warranty could have been passed to the landlord. R told us that R would have transferred the NHBC warranty to the landlord on request. Also, according to R, its only role after the rectification period ended would have been to provide “support” to the landlord. This was indicated in appendix 9 of the “collaboration agreement” and the agreement to lease.
The evidence was not clear as to whether the resident reported or was aware of the defect before the end of the rectification period and prior to his report in May 2018. Once the rectification period came to an end, it would be a matter of approaching NHBC and the developer. There was no evidence of what steps were taken, if any, by the landlord in relation to the developer, the NHBC or R, prior to the landlord’s email of April 2021. According to R, the landlord had not taken any steps for 2 years. If that was its first attempt, it was a significant time after the resident’s report of May 2018.
It was both the landlord and R’s position in conversations with our Service that the garden drainage was unlikely to have fallen within the NHBC guarantee as it did not affect the fabric of the resident’s property. The 2014 NHBC guidance regarding preventing waterlogging was limited to a distance of 3 metres of the resident’s home. It was implied that the waterlogging was situated beyond 3 metres.
In any event, the landlord acknowledged in its complaint response that it did not do enough. The landlord’s letter of 12 June 2023 acknowledged that “support should have been provided to raise the matter with the correct parties in order to help remedy the matter”.
R made the point on the resident’s behalf that the delays prevented the resident from making a claim. Whether a claim to NHBC would have succeeded is speculative and the evidence suggests that it would not have succeeded. Both R and the landlord stated it would not have done. The Ombudsman therefore considers that, by the landlord not approaching NHBC, it is unlikely the resident is worse off. The resident can take legal advice about whether he is outside a limitation period in relation to making a claim about a latent defect. However, we note that a claim against the developer is also uncertain and potentially expensive.
The Ombudsman would also expect the landlord to consider whether it had unfairly raised a resident’s expectations and whether it should honour assurances made to a resident.
The landlord acknowledged that it had agreed to repair the drainage under the garden. It also acknowledged that it had withdrawn that promise and that there had been considerable delays and uncertainties for the resident. It apologised on a number of occasions. It was not disputed the landlord failed in its actions towards the resident. It acknowledged that it had not put itself in the “best light”.
R put to the landlord on 19 July 2023 that the resident bought the property “on the promise” the works would be done. There was no definitive evidence that was the case. In any event, this could have been raised in the conveyancing process. Moreover, the resident informed this Service on 3 December 2024 that he was unable to say whether he would have not bought the property if the landlord had not promised to rectify the drainage but the promise may have affected his decision. In the circumstances, what the resident would or would not have done is speculation and the Ombudsman is unable to make a definitive finding in this regard.
The Ombudsman considers that, notwithstanding the impact on the resident, the landlord is not obliged to fulfil all its promises where it is not proportionate to do so. That is because the landlord is entitled to and has a duty to consider its resources as a social landlord.
We recognise the distress this issue has caused the resident, the impact of the delays and uncertainties. We recognise the resident has been put in a difficult situation by having defective drainage, but the landlord was not responsible for that and nor have we found evidence of a legal obligation to carry out the works. The landlord’s failings were in failing to assist the resident and for raising his expectations. There was no evidence that the resident was worse off financially by the landlord having made a promise and not keeping it. The Ombudsman therefore considers that that the sum of £1,000 offered by the landlord constitutes reasonable redress in relation to the distress and inconvenience caused to the resident by the landlord’s delays, it making an offer and then withdrawing it.

The landlord’s complaint handling

The landlord provided the complaints policy dated August 2024, not that in operation at the time of the complaint. It stated that its “acceptable exclusions” included: “The issue giving rise to the complaint occurred over 12 months ago, legal proceedings have started, the issue has previously been considered under the complaint policy”. We accept exclusions cannot always be comprehensive, however the landlord’s reasons for refusing to apply its complaints procedure to this complaint appeared to fall outside its policy.
The resident requested an apology from the landlord. It was reasonable that the landlord apologised for not pursuing the matter on behalf of the resident, its delays in addressing the matter and then making a promise that was incorrectly made. It acknowledged that its actions had caused the resident inconvenience and distress. It also recognised that this did not reflect well on itself. It did not seek to be defensive and repeated its apology on a number of occasions.
It was inappropriate that the landlord did not address this issue as a complaint. Its reasoning that the complaints policy did not apply because it was about a defect was unsatisfactory. We do not know if that was an exclusion at the time of the complaint but is not a current exclusion. Either way, the Ombudsman would expect the landlord to reflect on its conduct and how it addressed the defect and that it had not adhered to its promises. Service failure goes beyond legal obligations and involves policies and good practice.
The resident also noted that the landlord had not complied with our Code by not setting out the resident’s right to escalate his complaint and that a landlord should not identify members of staff as responsible for any service failure. However, the landlord accepted that the actions of that member of staff were that of the landlord. Until the landlord’s final response of November 2023, not referring to the code accorded with its view it was not applying its complaint procedure.
R also noted that the landlord did not refer the resident to this Service, which it should have done. However, the resident had informed the landlord early on that he would make a referral to us, if the matter was not resolved to his satisfaction. This showed he was aware of our Service. We do not find the resident was affected by this omission.
The landlord responded to the resident’s complaint even if it did not do so within its formal complaints process, and there is no indication the response or outcome would have been any different. While frustrating for the resident, the Ombudsman does not consider that the landlord’s failure in not addressing the resident’s complaint within its process had a significant impact on the resident or the case itself. In those circumstances, we do not find service failure in the landlord’s complaint handling.

Determination

In accordance with Paragraph 53(b) of the Housing Ombudsman Scheme, in the Ombudsman’s view, there was reasonable redress in relation to the landlord’s response to the resident’s reports of defective drainage in the resident’s garden.
In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s complaint handling.

Recommendation

The Ombudsman makes the following recommendations:
1. The landlord should pay the resident the sum of £1,000 it offered on 12 June 2023, if it has not done so already. It should explain the significance of any condition that the offer is made in final and final settlement.
2. The landlord should note the findings in this investigation, in particular during staff training, regarding complaint handling and consider carefully its reasoning prior to rejecting a complaint.
3. The landlord should ensure that its complaints policy and correspondence comply with the Ombudsman’s Complaint Handling Code, including referring the resident to our Service.
The landlord should provide feedback on the above recommendations to the Ombudsman within 4 weeks of this report.