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Gateshead Metropolitan Borough Council (202126868)

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REPORT

COMPLAINT 202126868

Gateshead Metropolitan Borough Council

27 February 2023


Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

  1. The complaint concerns:
    1. The landlord’s response to the resident’s request for remedial action to be carried out to trees overhanging their property.
    2. The associated formal complaint into this matter.

Background

  1. The resident was a secure tenant of the landlord, which is a local authority. The landlord records note that the resident has mobility issues and his son has mobility and learning difficulties. The property is a three-bedroom house. The resident moved into the property in February 2021 and bought the property via the Right to Buy scheme (RTB) in July 2022.
  2. The resident has experienced ongoing issues with trees overhanging his garden and potentially causing structural damage since he moved into the property. The landlord’s records state that an inspection was undertaken on 14 May 2021 that highlighted a tree in a private residence that potentially could cause damage to the resident’s property. The surveyor noted that the owner had given permission for the landlord to carry out work to the tree in their garden and that as the tree had a tree preservation order (TPO) placed on it, a planning application would have to be made before any maintenance could go ahead. 
  3. The resident wrote to the landlord on 7 November 2021 to complain about the condition of trees that were overhanging the rear garden. He described the elements of his complaint as:
    1. There were three trees overhanging the garden that require to be cut back.
    2. The trees appeared to be diseased and branches had fallen off them and hit members of his family.
    3. The current condition of the trees blocked sunlight and left the garden in shade all year.
  4. The resident wrote a further email to the landlord on 13 November 2021 to confirm that he wished the matter to be dealt with as a formal complaint. The landlord’s records show that a work order was raised on 25 November 2021 to prune the branches of the three trees. However, there is no evidence that the landlord acknowledged the resident’s complaint request.
  5. A local councillor contacted the landlord on the resident’s behalf in February 2022 to enquire on the status of the complaint. The landlord’s call logs show that it contacted the resident’s household and explained that due to a backlog of work caused by storm damage over the winter months, that there would be a delay in the work to the trees going ahead. There is no evidence that the landlord provided any updates on the status of the complaint to the resident during this period.
  6. The resident wrote to this Service on 6 March 2022 and expressed his dissatisfaction with how the landlord was handling his complaint. This Service passed on the resident’s concerns to the landlord, who provided a stage one complaint response on 25 March 2022 and a stage two complaint response on 15 May 2022. In its complaint responses, the landlord:
    1. Apologised for the delay in responding the complaint and explained that this was as a result of the complaint handler being on annual leave in November 2021.
    2. Explained that there were delays in starting work to the neighbour’s tree as a result of restrictions placed on its staff caused by the national lockdowns and having to wait to receive permission for the work to go ahead due to the TPO. The work was scheduled for December 2021, but further delays occurred due to two storms over the winter months. The landlord informed the resident that the work to the tree had now been completed.
    3. Confirmed that in November 2021 it had removed trees that were deemed to be causing damage to a boundary wall and raised a work order to prune the three trees overhanging the resident’s garden. It explained that the pruning work had been delayed as work to remove trees blocking footpaths and that had caused damage to homes after the two storms had taken priority. It stated that the pruning work would go ahead as soon as the backlog of storm work had been completed, which it expected to be able to start within the next two weeks from the date of the stage two response. The landlord noted that the resident had highlighted concerns with ivy growing on the trees and confirmed that this would be severed as part of the pruning.
    4. Apologised for the length of time it was taking for the issues to be resolved and accepted that although the delays were as a result of matters the landlord had little control over, it should have kept the resident more properly informed on the status of the work and the reasons for the delays.
    5. Noted that during a telephone call to discuss the complaint on 6 May 2022, that the resident had requested the removal of the trees. The landlord stated that it had undertaken a further inspection of the trees on 9 May 2022 which included a review of the actions it had taken up to that point. The inspection found that the landlord had removed the trees that presented a risk to the resident’s property and the remaining trees posed no risk. It had therefore declined the resident’s request to remove any further trees,

Assessment and findings

Relevant policies and procedures

  1. Section 5.4 of the tenancy agreement sets out the landlord’s responsibilities for repair and maintenance of the property. This states that the landlord “will arrange to repair the structure and exterior of your home and the building of which your home may form part”. Section 5.6 of the tenancy agreement notes that “If you apply to buy your home we will continue to arrange these repairs until you have bought your home, but will not carry out any improvements”.
  2. The landlord’s website explains its tree management and maintenance policy. This provides information for its residents on how to report issues with trees on their property, or encroaching onto their property. The policy states that the landlord considers a tree to be potentially hazardous in situations where “trees or branches that are at risk of falling, or have snapped branches as a result of things like storm damage. It may also include trees that are dead, dying or decayed that could cause an issue in the future. They do not include trees that may be dangerous simply because they are tall and may sway in the wind, or cause an issue if they fell”. The policy notes that it will “carry out works to landlord-owned trees if their branches or roots are affecting the structure of a building or property”.
  3. The policy states that the landlord does not normally remove trees blocking light “unless an Arboriculture Officer agrees the problem is severe. Severe problems may include loss of sunlight where the property is surrounded by trees and very little sunlight enters the garden, or trees that block light during the day in living room areas which means having to use artificial light”.
  4. The policy also provides information for residents on how to report a tree that is encroaching on their property’s boundary and notes that “If a landlord-owned tree’s branches are encroaching over a boundary and touching a property, we will assess the encroachment and may carry out work to prevent damage from occurring. Generally, we will only lessen tree encroachment where it is significant in relation to the size and position of the trees. We prioritise work where a tree’s branches touch or are very close to a building. We may not take any action where overhang of a boundary is relatively minor, or at considerable height”.
  5. The landlord operates a two-stage complaints process. When a complaint is received, the landlord aims to provide a response at stage one within 20 working days. If the complainant is dissatisfied with the response, they can request an escalation of the complaint to the next stage. The landlord will then undertake a review of the complaint and provide a stage two response within 20 working days. This will be the landlord’s final response to the complaint.
  6. The landlord’s compensation guidance notes that it follows this Service’s remedies guidance and Complaint Handling Code (which are available on our website) when calculating financial redress for a complainant’s time and trouble and for their distress and inconvenience.

Scope of investigation

  1. When raising a complaint with the landlord, the resident described the adverse effect on his mental health and that of his family caused by the condition of the trees. The Ombudsman does not doubt the resident’s comments. However, it is beyond the remit of this Service to make a determination on whether there was a direct link between the landlord’s actions and the resident’s health. However, whilst we cannot consider the effect on health, consideration has been given to any general distress and inconvenience which the resident experienced as a result of any errors by the landlord.

The landlord’s response to the resident’s request for remedial action to be carried out to trees overhanging their property.

  1. Once it had received the residents reports of trees encroaching on his property and his concerns that they may cause structural damage, the landlord had a duty to respond to the matter in line with its obligations set out in the tenancy agreement and its published policies and procedures.
  2. The landlord acted appropriately to the reports by assigning the matter to an arboriculture officer. The officer undertook an inspection of the trees and determined which trees were causing potential structural issues and required to be removed, and which trees required to be pruned back from overhanging the resident’s property. The officer also identified a tree in a neighbouring property which required work and took the steps to get permission for the landlord to do the work on behalf of the neighbour and to be in compliance with the TPO. When the resident highlighted his concerns of the health of the trees due to be pruned and requested that they were felled, the landlord arranged for a further inspection of trees which found no risk of structural damage and no concerns as to the current health of the trees.
  3. It was reasonable for the landlord to rely on the opinions of its appropriately qualified staff members when determining what work was required to the trees in order to resolve the issues highlighted by the resident. Therefore, there is no evidence of service failure in what work was raised by the landlord relating to the trees. However, there was clearly delays in this work being completed. This was initially caused by restrictions placed on its staff members as a result of the national lockdowns. Further delays occurred as two storms over the winter months caused a backlog of urgent work that required to be completed before the tree pruning could go ahead. While these delays were outside of the landlord’s control, there was clearly a breakdown in communication between the landlord and resident during this period and the resident was not properly kept updated on the status of the work and the reasons for the delays.
  4. Therefore, there has been service failure in the landlord’s communication with the resident. While it was appropriate for the landlord to acknowledge and apologise for this in its complaint responses, it should have also considered offering financial redress for the inconvenience that this caused. This Service’s remedies guidance suggests a payment of £100 to £600 in cases of considerable service failure or maladministration. This includes distress and inconvenience, time and trouble, disappointment, loss of confidence, and delays in getting matters resolved. It would therefore be appropriate for the landlord to pay the resident a total of £200 compensation, made up of £100 compensation for its poor communication and a further £100 for the inconvenience caused to the resident in having a to raise a complaint in order to receive updates on the status of the work.

The landlord’s complaint handling

  1. The landlord did not follow its complaint process at stage one of the complaint. The resident first requested to open a formal complaint on 7 November 2021 and did not receive a stage one complaint response until 25 March 2022: 77 working days outside of its target of 20 working days.
  2. The resident requested the help of a local councillor to progress the complaint in February 2022. While the landlord has provided evidence that it contacted the resident and local councillor to provide them with updates on the status of the work, there is no evidence that it opened a formal complaint as requested. It took the intervention of this Service on 8 March 2022 before a formal complaint was opened.
  3. Therefore, there has been maladministration by the landlord in its complaint handling. While it is noted that the landlord did apologise for the delay in responding and explained that this was due to a staff member being on leave; it did not explain why another staff member did not pick up the complaint in November 2021, nor why it did not open a complaint in February 2022 when requested to by the local councillor.
  4. In order to fully redress this element of the complaint, further compensation is warranted. In line with the remedies guidance detailed above, it would be appropriate for the landlord to pay the resident £200 for the delay in providing a complaint response and the inconvenience caused to the resident in having to seek the help of a local councillor and this Service in order for the complaint to be opened.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its response to the resident’s request for remedial action to be carried out to trees overhanging their property.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its complaint handling.

Order

  1. For the service failure and reasons set out above, the landlord is ordered to pay to the resident a total amount of £400 in compensation, comprised of:
    1. £100 for its poor communication.
    2. £100 for the inconvenience caused to the resident in having to raise a complaint in order to receive updates on the status of the work to the trees.
    3. £200 for its poor complaint handling.
  2. This payment should be made within four weeks of the date of this report. The landlord should update this Service when payment has been made.