Eastlight Community Homes Limited (202106160)

REPORT

COMPLAINT 202106160

Eastlight Community Homes Limited

24 July 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 concerns regarding the waterlogged condition of the garden.
2. Handling of the complaint.

Background and summary of events

Background

The resident is an assured tenant of the landlord. He has lived in the property, a 2-bed semi-detached house with a private garden, with his partner and 2 children since 2017. The property was a new build when the resident moved in.
The landlord has confirmed that its records show that the resident has a long-term health condition. This Service also notes that the resident has stated within communications with the landlord that his son is going through the process of being diagnosed with attention deficit hyperactivity disorder (ADHD).
A previous investigation (202000056) by this Service in December 2020 considered the landlord’s response to the resident’s concerns regarding the waterlogged condition of the garden between 2017 and April 2020. It found no maladministration in the landlord’s handling of the issues. Our report recommended that the landlord take action as suggested by its surveyor and add further topsoil to the garden to if that resolved the problems. We add within our recommendation that if this did not resolve matters, the landlord should investigate further.

Relevant agreements, policies, and procedures

In relation to the garden, the tenancy agreement states that the landlord is responsible for the repair of the structure and exterior of the property. The resident is obliged to keep the garden properly cultivated and in a tidy condition.
The landlord operates a 2-stage complaints process. Its policy states it will respond to stage 1 complaints within 10 working and stage 2 complaints within 20 working days.

Summary of events

In January 2021 the resident contacted the landlord and asked when it would carry out works to the garden. He provided photographs which showed the garden was waterlogged and under a layer of water.
The landlord responded and said that due to weather conditions works would “probably” take place in the spring. It also stated that that due to COVID-19 it was only carrying out emergency works at that time.
On 19 January 2021 the resident advised the landlord that the garden was waterlogged throughout the year and it was a “constant issue”. He said that he had sought the opinion of a geo-technical specialist who stated that adding topsoil would not resolve the issue and that drainage needed to be installed. He added that less than 1 foot below the surface of the topsoil was a layer of tarmac from an old footpath or similar and this was preventing water from draining away.
The landlord replied 3 days later and said that it would put in “a suitable drainage solution”. It asked the resident to provide a copy of the specialist’s report. The resident said that he did not have a written report but would ascertain the cost of a full written report.
On 3 February 2021 the landlord confirmed it had received photographs sent by the resident and would be in touch when it had an update. On the same date the resident provided the landlord with a copy of the specialist’s report.
The resident emailed the landlord on 19 February 2021 and asked for an update. He said he had been able to open the living rooms curtains for the first time in a year as it had snowed disguising the condition of the garden. He stated that the issue was impacting the family’s mental health.
The landlord replied on 9 March 2021. It said its surveyor needed to attend to draft a specification of works. It would then obtain quotes with a view to works commencing at the start of April 2021.
The surveyor attended on 18 March 2021. On 30 March the landlord emailed the resident and attached a letter and copy of the surveyor’s report. It said:
1. Some areas of the garden had sunk due to insufficient soil.
2. There had been a “lack of maintenance and care of the grass and soil” by the resident.
3. It would fill the sunken areas with more topsoil and would provide turf for the resident to lay and maintain himself.
The resident replied on the same date and said:
1. The landlord had advised in January 2021 that it would install suitable drainage. He asked why this had changed.
2. He denied that the waterlogging and dying grass was due to his “apparent neglect of the garden.
3. It was ignoring the geo-technical engineer’s professional opinion.
4. It knew that he was unable to lay turf himself due to his health.
On 14 April 2021 the landlord replied to the resident. It confirmed it had received a copy of the specialist’s report. In response to the resident’s concerns, it said:
1. It had agreed to install drainage on the basis that the area would be surveyed again and the work would be carried out if recommended by the surveyor.
2. There was insufficient evidence of the cause of the issue and therefore there was no need to carry out extensive works such as installing drainage.
3. It was aware of issues in neighbouring properties and had taken “relevant action”.
4. It was supplying turf as a “gesture of goodwill”. It could arrange a contractor to install it but the resident would be recharged for this.
5. It was not responsible for the maintenance of the garden and there was a lack of evidence to support that drainage was a problem. It would however continue to monitor the issue.
6. It had not ignored the geo-technical engineer’s opinion but “no site visit was carried out”, it did not guarantee a resolution, and therefore it was “not proportionate to conduct the recommendations”.
The resident wrote to the landlord on 16 April 2021. He said:
1. The waterlogged garden was not a maintenance issue as it was caused by issues during development.
2. A site visit was carried out by his geo-technician. He attached evidence to demonstrate this.
3. Planning documents for the site showed that the soil under the site was contaminated.
4. He did not feel the surveyors instructed by the landlord were able to properly assess the issue and a specialist was required.
5. The issue was impacting his family’s physical and mental health.
The resident contacted the landlord again on 20 April 2021. He stated that the developer had failed to install a ‘capping layer’ of topsoil to prevent “exposure” to compounds which may be of risk to health. The resident said that failure to install the capping layer meant the site did not meet the planning requirements.
The landlord has provided this Service with a copy of a site report from July 2014 when the development of the site was in the planning stages. The report shows elevated levels of lead and other elements within shallow soil on the site. It recommended that a 600mm ‘capping layer’ of topsoil be added to “act as an effective barrier” to prevent residents from being “exposed to unacceptable concentrations of the identified compounds”.
On 29 April 2021 the resident asked the landlord to provide a response to his letter of 16 April 2021. He also asked it to:
1. Follow the advice of the geo-technical specialist.
2. Install the required capping layer.
3. Landscape his garden after the required works were completed.
4. Provide the case reference number for his complaint.
Throughout May 2021 the resident and landlord exchanged emails regarding the garden. On 14 May 2021 the landlord said that its landscaping contractor would commence works on 18 May 2021 to lay more topsoil. The resident replied on 16 May 2021 reiterating his concern that this would not resolve the issue.
On 20 May 2021 the resident asked the landlord to raise a stage 1 complaint (Complaint 1). He said:
1. He had provided evidence that the ground was still waterlogged after the prep work was completed.
2. The turf had been laid on top of the waterlogged and “contaminated” soil.
3. Qualified specialists had stated that the ground was unable to drain.
4. It had denied his assertion that the site was contaminated. It should investigate this further and take action to protect his family’s health.
The landlord responded the following day. It said that it had previously considered the resident’s concerns, as had this Service. It said it considered the issue to be an “ongoing case and therefore would not be able to open an new complaint. The landlord stated its contractor would attend to review the work and it would monitor the issue.
One week later the landlord asked to inspect the resident’s garden. It said it had contacted its own specialist who would be formally instructed if deemed necessary following its inspection. The resident replied on the same day and said he had provided images of the waterlogged garden and was unsure why a further inspection was required. He asked the landlord to confirm that a specialist would be attending the inspection to make an assessment. The landlord replied to the resident and said that its contractors were “qualified specialists in this field”.
On 2 June 2021 the resident asked the landlord for an update. The landlord replied the following day and said its specialist contractor would be in contact to arrange an appointment for an initial visit. It said any investigative works such as boreholes would be carried out “a couple of weeks after, or as soon as they [were] able to accommodate”. It said that it would advise him of its recommendations once it received the contractor’s report.
The resident asked the landlord again on 3 June 2021 to provide a reference number for his complaint or explain why it would not log the complaint. He also raised concerns about the qualifications of the landlord’s contractor who was a chartered building surveyor and not a geo-technical specialist. The landlord replied a few days later and stated that its contractor was “able to deal with the potential issue at [the] property” and had “all of the necessary skills and qualifications” to do so along with access to a bank of other professionals.
The landlord emailed the resident on 14 June 2021 and advised it would be performing soil testing and would provide an update once it received the report.
On 29 June 2021 the landlord’s contractor carried out borehole investigations of the garden. The contractor provided its report on 2 July 2021 and stated:
1. The poor drainage in the rear garden was “likely due to the impermeable layer” of building material found across the lawn area.
2. It recommended excavating and removing the impermeable layer or installing a drainage system within the topsoil layer.
The landlord provided the resident with a copy of the report on 16 July 2021. The resident then contacted his geo-technical specialist who stated that the “wrong test methods” had been used and had looked at structural issued rather than “soakage design”.
The landlord responded to the resident on 2 August 2021. It said its contractor had completed the site investigations as “part of a step-by-step procedure”. It stated the investigations had successfully identified the cause of the issues and recommendations would be sought regarding appropriate remedial measures.
During August and September 2021 the landlord and its landscaping contractor exchanged several emails regarding the works. The landlord stated that the resident believed the soil was contaminated and that therefore a specialist licence would be required for disposal of the topsoil.
On 23 September 2021 the garden works were postponed to allow for soil testing to be carried out.
The landlord emailed the resident on 18 October 2021 in response to an email he had sent. It said that the works would be carried out that year and stated that it “acknowledged that matters could have been progressed some time ago”.
The resident wrote to the landlord’s Chief Executive Officer on 12 November 2021. He outlined the events that had taken place and said he had been requesting an update since 27 October 2021 but had not received a response.
On 19 November 2021 the landlord received a copy of the soil testing report which stated that the soil tested was “non-hazardous”. It emailed the resident and said it would instruct its landscaping contractor accordingly. The resident replied on the same day and said he was still concerned as the original report had found that the soil was contaminated. He also expressed concern regarding the lack of a capping layer.
The landlord contacted its landscaping contractor on 21 November 2021 and asked it to move forward with arranging the works and asked it to install a capping layer.
On 21 November 2021 the landlord asked the resident to confirm his availability for the works. The resident responded the next day and, having not received a response sent 2 further emails on 25 November 2021 and 26 November 2021. The landlord replied on 30 November 2021 the landlord replied and explained it had not received the emails until then due to annual leave but had passed the resident’s availability to its landscaping contractor.
The landlord contacted the resident on 6 December 2021 and said that its landscaping contractor was not available until February 2022. A few days later it confirmed that the works would start on 23 February 2021 and would involve the removal of the existing topsoil and hard layer and installation of a new capping layer of topsoil.
Between 12 January 2022 and 17 February 2022 the resident emailed the landlord 4 times asking for a schedule of works and other documentation. The landlord responded on 18 February 2022 and stated that its contractor had advised it no longer wished to undertake the works. It acknowledged that this would be “frustrating and disappointing” for the resident but said it would prioritise finding a new contractor.
The resident replied to the landlord and said he had again been let down. He said that he had booked leave from work which he was now unable to cancel. He added that the family would now be left for another summer without the full use of the garden.
On 20 February 2022 the resident emailed the landlord. He said the landscaping contractor had told him it had informed the landlord 2 weeks prior to the commencement date of the works that it would not be completing the works as the landlord had not provided a new works order. He asked why the landlord had not let him know until 5 days before the work was due to start.
The landlord responded to the resident on 24 February 2022. It said:
1. The scope of works had changed several times due to the results of several tests.
2. It had not intentionally misled him or wasted his time.
3. The delay between the contractor withdrawing from the job and it informing the resident was due to it contacting other contractors to see if they could honour the date provided for the works.
4. Several contractors were now providing quotes and it would keep him informed.
5. It apologised for the events but they were not within its control.
The resident replied to the landlord the following day and said the contractor maintained that the landlord had not communicated with him. The resident also said he had received a letter from the landlord offering him £250 compensation for the handling of the issue.
By 4 March 2022 the landlord had appointed a new landscaping contractor to complete the garden works. It contacted the resident and advised the new contractor would conduct a site visit on 7 March 2022.
Works to the garden commenced on 30 March 2022. On 1 April 2022 the resident emailed the landlord stating that there was standing water on the garden. He said he was concerned that the works would not be effective in resolving the issue. The landlord replied on the same day and said that it did not feel the amount of pooling water was of concern but that it would continue to monitor the situation.
On 21 June 2022 the landlord emailed the resident and asked whether there had been any further waterlogging. The resident responded and said the ground was still waterlogged.
The landlord responded on 8 July 2022 and said it wished to carry out a further site visit. It emailed the resident again on 13 July 2022 to advise that it had appointed a new officer to deal with the case.
On 1 August 2022 the landlord advised the resident it had appointed a geo-technical engineer. A site visit was arranged for 12 August 2022.
Between August 2022 and October 2022 investigations were completed at the advice of the geo-technical engineer. The landlord provided the resident with a copy of the engineer’s report on 13 October 2022 which said:
1. The source of the excessive groundwater saturation was unknown.
2. It had identified a 2-phase action process to address the issue:
  1. Phase 1 – create several borehole soakaways and carry out permeation tests. If the boreholes were insufficient to resolve the issue it would move to phase 2.
  2. Phase 2 – install a French-drain to collect and transfer any exceedance water to the stormwater drainage system.
On 1 December 2022 the resident emailed the landlord and asked several questions about its plans to resolve the issues. As he had not received a response, he sent further emails on 8 December 2022 and 10 December 2022. The landlord provided a response on 12 December 2022.
Phase 1 works were carried out in January 2023. As there was still standing surface water after rainfall phase 2 works to install further drainage were carried out on 8 March 2023.
The resident continued to report waterlogging after phase 2 and a further site visit was completed on 21 March 2023. The visit identified that a layer of gravel should have been installed prior to the capping layer of topsoil. This had not been done. On 18 April 2023 the landlord proposed to excavate the garden again and install a layer of shingle prior to replacing the topsoil and turf. These works were completed in May 2023.
The resident made a further stage 1 complaint on 7 June 2023 (Complaint 2). He said:
1. The inspection of the garden had been completed by a building surveyor who did not hold the “relevant qualifications”.
2. The landlord had rotovated and returfed the garden but this had not been successful.
3. Several concerns had come to light including:
  1. Possible contaminated land.
  2. Lack of a capping layer as per the requirements set out in planning conditions.
  3. Lack of drainage.
4. It had ignored the resident and reports by a specialist which identified the cause of the issues.
5. Delays had been added to when the first landscaping contractor pulled out due to delays by the landlord. The resident was not informed that the contractor had pulled out until the day the works were due to start.
6. The required works were completed but further issues were caused as the wrong type of soil was used to top the finished works causing further waterlogging.
7. In resolution of his complaint he requested:
  1. A formal apology.
  2. A 10% rebate on his rent for the period he had been without the use of the garden from February 2020 to April 2023.
  3. Compensation for stress, increased costs due to paying for metered water to water turf which he “knew would die”, and the impact on his family who had additional needs during the COVID-19 pandemic.
On 15 June 2023 the resident reminded the landlord that it had not yet acknowledged his complaint. It replied on the same day acknowledging receipt of the complaint.
On 19 June 2023 the landlord’s contractor connected a further drainage system.
The landlord emailed the resident on 6 July 2023. It said that it had previously advised that it needed to extend the timeframe for its stage 1 response to 5 July 2023. It had since noted that it involved a “complex and lengthy issue” and so would need to extend its response timeframe to 17 July 2023. This Service has not seen evidence of the previous extensions.
The resident emailed the landlord on 17 July 2023 and asked for an update on the complaint. The landlord responded on 19 July 2023 and apologised that he had not yet received a response. It said this was because there was “clearly a long history to this issue, and much for [it] to review”. The landlord said it expected to be able to provide a full response by the end of the following week (28 July 2023).
On 27 July 2023 the resident emailed the landlord and advised he wanted to keep all communications in writing due to “previous incidents where [the landlord had] said something on the phone and then later denied doing so”.
The landlord provided its stage 1 response to Complaint 2 on 28 July 2023. It said:
1. It was sorry for the length of time it had taken to review the complaint.
2. It did not uphold the complaint.
3. It had tried to speak to the resident on the phone but he had advised he preferred to communicate in writing. This made it difficult to assess the impact of the issue.
4. At no time had it ignored or refused to investigate the issue. It had consistently engaged with the resident and contractors, carried out assessments and suggested reasonable solutions.
5. It had initially arranged for additional topsoil. It then appointed a structural engineer, when this did not resolve the issue, it had appointed a geo-tech engineer who recommended additional drainage. This appeared to have resolved the problem.
6. It understood the resident was frustrated that it had not appointed a geo-tech engineer sooner as he had suggested but “it was right that [it had] sought to rule out the most likely factors first”.
7. It had investigated the issue in a “reasonable order and tried lower cost solutions” following a “logical path to diagnose the issue”.
8. It had also communicated consistently throughout the process.
The resident requested that the landlord escalate Complaint 2 to stage 2 of its complaints process on 3 August 2023. He said that it had taken the landlord 2 years to employ a specialist which had provided the same advice given by his own specialist in early 2021.
The landlord acknowledged the stage 2 escalation on 22 August 2023. The resident emailed the landlord on 5 September 2023 and again on 20 September 2023 asking for a response to the complaint.
The landlord provided its stage 2 complaint response on 22 September 2023. It said:
1. It upheld the complaint.
2. It apologised for the delays at both stage 1 and stage 2 of the complaints process.
3. It had been reasonable that it obtained the services of its own specialist contractor and took a “step-by-step approach”.
4. It accepted that this appeared to the resident to be “very slow”.
5. It had been ready to instruct works in July 2021 but the resident raised concerns regarding soil contamination which had to be investigated. The investigations caused delays as it did not receive resting results until November 2021.
6. Its contractor then pulled out of the work in January 2022 and it had to find another contractor.
7. The agreed works were completed in April 2022. The resident did not feel the issue had been resolved so a further inspection was carried out in July 2022. The recommendations from this inspection were implemented and the issue appeared to be resolved.
8. While its stage 1 complaint response was correct in that it had engaged with the resident and made a “considerable effort” to resolve the issue; it did not accurately reflect that the process had taken more than 3 years.
9. There had been lapses in communication which caused unnecessary delays.
10. It offered compensation of £1,625 comprising:
  1. £250 for complaint handling delays.
  2. £250 for inconsistent communication.
  3. £1,125 for the distress and inconvenience caused by the loss of the use of the garden for an “extended period”.
The resident remained unhappy following the completion of the landlord’s internal complaint process and asked this Service to consider his complaint.

Assessment and findings

Scope of the investigation

The landlord’s handling of the matter between 2017 and April 2020 has already been investigated by this Service. Events during this time are outside the scope of this investigation. This assessment will focus on the landlord’s handling of the issue from January 2021 onwards.
Aspects of the complaint relate to the impact of the condition of the garden on the health of the resident and his family. We recognise that this situation has caused the resident distress and that the family have experienced the issue over a prolonged period. Where the Ombudsman identifies failure on a landlord’s part, we can consider the resulting distress and inconvenience. However, unlike a court, we cannot establish liability or calculate and award damages. The resident is able to seek legal advice should he wish to pursue a personal injury claim.

Response to the resident’s concerns regarding the waterlogged condition of the garden.

It is acknowledged that during the timeframe of the events in this case the COVID-19 pandemic impacted the ability of landlords to carry out works. We have not however seen evidence within the information provided that shows that the pandemic specifically caused any delays in this case.
The landlord stated in January 2021 that only emergency works were progressing owing to the pandemic. It is unclear why. The government restriction on emergency only repairs was lifted in the summer of 2020. While it is accepted that the landlord may have been continuing to experience disruption and delays because of the pandemic; it should not have been operating on an emergency-only basis. We would therefore have reasonably expected the landlord to have provided some further explanation to the resident – and evidence to this Service – about how its services (and specifically works to the resident’s garden) had been delayed by Covid in January 2021.
The tenancy agreement states that the resident is responsible for keeping the garden cultivated and tidy. The evidence in this case demonstrates that the issue with the garden arose due to failings at the development stage and were therefore structural and the responsibility of the landlord.
In March 2021 the landlord said that the poor condition of the grass was due to a “lack of maintenance and care of the grass and soil” by the resident. It said it would fill the sunken areas and provide turf for the resident to lay himself. This Service has not any evidence demonstrating how the landlord reached its conclusion that the condition of the garden and the waterlogging was owing to a lack of maintenance. It was therefore not reasonable that it made such a comment without stating the evidence on which it was based. The landlord’s unsubstantiated comment caused the resident clear distress.
It is also noted that the landlord was aware at this time that the resident had health conditions. As there was no evidence that the failure of the grass was due to any action or inaction by the resident it was unreasonable that the landlord expected him to pay for the turf to be fitted.
In January 2021 the resident sought the opinion of a geo-technical engineer and provided the landlord with the specialist’s opinion that drainage needed to be installed.
The resident has stated throughout his communications with the landlord that he felt it was ignoring the expert’s opinions and recommendations. It is accepted that the landlord had the right to appoint its own specialist if it chose to do so. This Service would expect however to see evidence that the landlord sought advice, whether from the specialist instructed by the resident or its own, within a reasonable timeframe. In this case there were several unreasonable delays in seeking further specialist advice.
On several occasions the resident raised concerns regarding the skills, experience and qualifications of the landlord’s contractors. It is accepted that the opinion of the resident’s specialist at times differed to the opinions of the contractor’s appointed by the landlord. It is not for this Service to determine whether the landlord’s contractor had the skills and experience required to assess the issue. Nor is it for this Service to determine which of the professional opinions were correct.
This Service considers that the landlord did seek the expert opinion of a range of professionals and this was reasonable. We do not however consider that the landlord did this in a sufficiently judicious timeframe.
The resident first raised concerns regarding potential soil contamination and the lack of a capping layer in April 2021. He repeatedly raised this concern and highlighted the potential risks to health. The report provided by the landlord said that elements in the soil could be hazardous to health and recommended measures to be put in place to prevent exposure. It is therefore entirely understandable that the resident was worried, especially regarding the health of his child.
We have not seen evidence that the landlord addressed the resident’s concerns regarding the safety of the soil until June 2021 when it said it would be carrying out soil testing. It did not however carry this testing until September 2021 and the results were not received until November 2021. This was an unreasonable delay. Considering the concerns regarding risk to health these tests should have been prioritised by the landlord. That they were not was a failing.
The evidence shows that the landlord in this case failed to manage the resident’s expectations on several occasions. By heightening the resident’s expectations it caused him additional avoidable disappointment when it failed to deliver on its promises.
In January 2021 the landlord told the resident that it would install suitable drainage to the garden. Two months later it reneged on this agreement and said that the offer had been subject to a further inspection. We have not however seen any evidence that this was the case. In October 2021 it acknowledged its delays and said works would be completed by the end of the year. It also failed to fulfil this agreement.
In December 2021 the landlord advised its contractor was unable to complete the work until February 2022. It then contacted the resident shortly before the work was due to start to advise that the contractor had pulled out of the work. This Service understands that the landlord delayed in informing the resident that the contractor had pulled out as it was trying to find another contractor to honour the agreed date. We also understand that it was doing so to prevent avoidable disappointment to the resident. Considering the history in this case the landlord should reasonably have been transparent with the resident to rebuild trust that had been eroded. That it did not was a further failing and further eroded the landlord-resident relationship.
Another issue which added to the resident’s frustration in this case was the landlord’s communication which was often slow. On several occasions it took weeks and much chasing by the resident to obtain a response. This poor communication caused avoidable distress and inconvenience and resulted in him having to invest unnecessary time and trouble. This was unreasonable.
In April 2022 the landlord added further topsoil and installed more turf. It quickly became apparent that this had not been successful and the garden remained waterlogged. While the landlord agreed to monitor the situation there is no evidence that it did so regularly and it took it almost 3 months to contact the resident to ascertain whether the issue had been resolved. It then took it a further 6 weeks to seek the advice of a geo-technical engineer.
It is acknowledged that in some cases, it may take more than one inspection to establish the cause of a problem and an effective remedy. It is not unreasonable for the landlord to carry out several visits in order to resolve matters, particularly where the issue was complex and the root cause of the waterlogging was unknown.
It is accepted that the landlord was taking a step-by-step approach to identifying and resolving the cause of the garden issues. It is also accepted that it did carry out several investigations and works to try and resolve the issue. While it was not unreasonable of the landlord to take an incremental approach this Service considers that there were several occasions in which the landlord’s actions delayed the resolution of the issue.
We consider that it was unreasonable that it took 19 months to commission a specialist who, following several investigations gave the same advice as the specialist employed by the resident at his own expense.
The resident has repeatedly described how the family was without the full use and enjoyment of the garden for an extended period. The timeframe of the issue included a period when the country was in ‘lockdown’ due to the COVID-19 pandemic and therefore the loss of use of private outdoor space was even more significant. In January 2021 the country entered its third national lockdown which remained in place until the end of March 2021. It is also noted that the resident has explained that his child is undergoing assessment for ADHD, and the lack of outdoor space for therefore had greater impact.
Overall, the landlord delayed on several occasions to take action to resolve the waterlogging issue. While it was not unreasonable that it sought its own expert opinion, it should have done so sooner. The landlord’s poor communication and its mismanagement of the resident’s expectations caused additional avoidable distress, inconvenience, time and trouble. In this case the resident and his family were without the full use and enjoyment of the garden for an extended period. Therefore there was maladministration in the landlord’s response to the resident’s concerns regarding the waterlogged condition of the garden.

Handling of the complaint.

The resident asked the landlord to raise Complaint 1 on 20 May 2021.
The landlord’s complaints policy states that it will not consider a complaint that has already been considered by the landlord. This approach is reasonable and in line with the Ombudsman’s Complaint Handling Code (the Code). The Code states that a complaints policy must set out the circumstances in which a matter will not be considered as a complaint and that these circumstances must be fair and reasonable. The Code also states that acceptable exclusions include matters that have previously been considered under the complaints policy.
The landlord believed that this complaint was the same as the resident’s previous complaint as both were related to its handling of his concerns regarding the condition of the garden. This Service can see how the landlord took this view but it was a misinterpretation of the situation.
As the resident had raised new concerns, we would reasonably have expected the landlord to raise a new complaint to consider both the new concerns and its handling of events after December 2020. The landlord instead advised that as the issue had already been investigated as a formal complaint by itself and this Service it was unable to open a new complaint. This advice was flawed and delayed the complaint process and the resident’s access to this Service.
It is noted that the resident has stated that in February 2022 the landlord offered him £250 for its handling of the issue. This Service has not seen evidence of this letter. It is unclear whether we have not had sight of this letter because the landlord does not have a record of it, or because of an omission during its evidence submission to this Service. A landlord should have systems in place to maintain accurate records so it can satisfy itself, the resident (and ultimately the Ombudsman) of its actions.
In June 2023 the resident raised Complaint 2 which included several concerns which had not been raised in his previous complaints.
The landlord did not acknowledge the complaint until 15 June 2023 when the resident asked it to confirm that it had received it. It then took the landlord 37 working days to provide its stage 1 response to the resident’s complaint. While it is acknowledged that it did advise the resident that it needed to extend its response timeframe, it twice failed to adhere to the new timeframe it had set. This clearly mismanaged the resident’s expectations and caused him additional frustration and to have to invest unnecessary time and trouble in chasing the landlord for a response. This was a failing.
While the landlord apologised for its complaint handling delays in its stage 1 complaint response it did not offer the resident any redress for the failings and this was unreasonable.
The landlord stated in its stage 1 complaint response that the resident’s reluctance to speak on the telephone had made it “difficult to assess the impact of the issue”. This Service considers that the resident explained the impact of the issue on his family several times in writing and this was therefore not an obstacle to the landlord fully considering the complaint.
While the landlord’s complaint response addressed many of the issues raised by the resident, it did not specifically address his concerns about the land being contaminated, the lack of a capping layer, or delays in informing him that the landscaper had pulled out. That the landlord failed to address all aspects of the complaint was a further failing, and a departure from the Code.
The resident escalated his complaint to stage 2 of the complaints process on 3 August 2023. It took the landlord 13 working days to acknowledge the escalation. This was an unreasonable delay and caused the resident further frustration.
The landlord did not provide its stage 2 complaint response until 36 working days after the complaint was made. Within this timeframe the resident had to contact the landlord twice to advise that the response was overdue. This caused him further unnecessary frustration, time and trouble and was not reasonable.
The landlord apologised within its final complaint response for the delays and offered compensation for the failings. It was correct that it did so. However, considering the length of the delays and that it failed to log the resident’s first complaint in 2021, the compensation offered was not proportionate to the time, trouble, distress and inconvenience experienced by the resident. Further compensation of £150 has therefore been ordered.
The landlord’s stage 2 complaint response reasonably addressed all the issues that had not been considered in its stage 1 response. Its explanation of events was sufficiently detailed and it acknowledged the lapses in communication and unnecessary delays. This was positive. It was also positive that the landlord awarded compensation for its communication failings.
The landlord offered the resident £1,125 for the distress and inconvenience caused by the loss of the use of the garden for an “extended period”. It has not provided a breakdown of how it calculated this figure and therefore we are unable to determine whether the calculation was appropriate.
While the award went some way to put matters right, taking into consideration its cumulative failures over the protracted time the award is not proportionate to the detriment experienced by the resident and his family. We have explained above the impact that the loss of the full use and enjoyment of the garden had on the family. This was heightened due to the 3 month ‘lockdown’ during the COVID-19 pandemic and because the resident’s son was vulnerable.
The resident has paid approximately £520 per month (taking into account some annual incremental increases) in rental payments during the period of the landlord’s maladministration, which the Ombudsman reasonably considers as having started in January 2021. The Ombudsman considers that, in the circumstances, it is appropriate for the landlord to pay compensation in recognition of the amount of time that the resident’s use and enjoyment of the garden has been affected by outstanding repair issues (29 months).
Considering the rent paid by the resident over the period, the Ombudsman considers it appropriate for the landlord to pay £1,508 compensation. This is inclusive of the compensation already paid by the landlord for the loss of use of the garden. This figure has been calculated as approximately 10% of the total rent during the period in question. It is stressed that the loss of amenity payment is not intended to be a rent refund, or rebate. Rather, rent provides an objective basis for approximating the loss of amenity.
While the Ombudsman acknowledges that this is not a precise calculation, this is considered to a be a fair and reasonable amount of compensation taking all the circumstances into account.
We have not deducted the landlord’s offer of £250 compensation from our award as there is no evidence that this was made within the formal complaints process.
A separate award of £750 has been made in recognition of the distress and inconvenience experienced by the resident and his family.
Overall, the landlord missed the opportunity to consider the resident’s complaint in May 2021 delaying the resolution of the issues. It’s handling of the second complaint in 2023 was slow and this added to the resident’s frustration and caused further distress and inconvenience. The landlord’s stage 1 complaint response failed to address all aspects of the complaint. While the landlord did acknowledge its failing in its stage 2 complaint response it did not address the detriment experienced by the family and the additional impact that would have been experienced due to the family’s vulnerabilities and the COVID-19 pandemic. Therefore, we consider that there was maladministration in the landlord’s complaint handling.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
1. Maladministration in the landlord’s response to the resident’s concerns regarding the waterlogged condition of the garden.
2. Maladministration in the landlord’s handling of the complaint.

Reasons

The landlord was slow to take action to resolve the waterlogging issue. It delayed unreasonably in obtaining its own specialist advice. Its poor communication and mismanagement of expectations added to the resident’s distress, inconvenience, time and trouble. The resident and his family were without the full use and enjoyment of the garden for an extended period during a pandemic.
The landlord’s complaint handling was slow and was not compliant with the requirements of the Code. Its stage 1 response failed to address all issues of complaint and its final response failed to provide proportionate redress or acknowledge the full impact of its failings.

Orders and recommendations

Orders

Within 4 weeks of the date of this report to apologise to the resident for the failings identified in this report in line with the Ombudsman’s guidance.
Within 4 weeks of the date of this report the landlord to pay the resident compensation of £1,283 comprising:
1. £383 for loss of use and enjoyment of the garden.
2. £750 for distress and inconvenience associated with the landlord’s response to the resident’s concerns regarding the condition of the garden.
3. £150 for compliant handling failures.

This compensation is in addition to the compensation already offered by the landlord.

Within 4 weeks of the date of this report and on production of evidence by the resident, the landlord to reimburse the resident for:
1. The costs incurred in obtaining his own specialists opinion and recommendations.
2. The increased water meter costs of watering the turf.
In accordance with paragraph 54.g the landlord is ordered to identify whether any more of its residents on this development have been affected by the issues identified in this case. Specifically it should ascertain whether:
1. Further soil testing is required to ascertain whether there is soil contamination on the site.
2. The capping layer is missing and needs to be installed.
3. Waterlogging is a problem and drainage needs to be added to the gardens of other properties.