Gentoo Group Limited (202228261)

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REPORT

COMPLAINT 202228261

Gentoo Group Limited

19 August 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

  1. The complaint is about the landlord’s handling of the resident’s concerns regarding shrubs planted in her front garden and its communication.
  2. The Ombudsman has also considered the landlord’s complaint handling.

Background

  1. The resident holds an assured transferring tenancy with the landlord, a housing association. The tenancy commenced in October 2022. The property is a bungalow.
  2. The resident has mental health vulnerabilities, which the landlord is aware of.
  3. Plans for the landlord to build residential homes were approved by the local council in November 2020. On 4 December 2022, after the resident moved into the property, the landlord’s contractors attended to plant shrubs in the resident’s garden. At the same time, they also planted trees in the communal areas. The resident was unhappy about this.
  4. The resident emailed the landlord on 7 December 2022 about the types of shrubs that were planted, as she believed they were poisonous. She received a response on the same day which gave the names of the 4 types of shrubs. She was also told the shrubs were low maintenance and not toxic.
  5. On 8 December 2022, the resident’s representative wrote to the landlord about the resident’s experience. The resident complained that shrubs should not have been planted in her garden. She was not told in advance this was happening and its contractors were disrespectful to her. She wanted the landlord to restore her property to the condition it was before the shrubs were planted and provide an explanation as to why they were planted. She noted her mental health had been affected.
  6. The landlord sent its stage 1 complaint response on 22 December 2022. It told the resident the shrubs had been planted as required to comply with the approved plans for the development. It had already told her that the shrubs were low maintenance and not toxic. The information about the shrubs should be given in the induction by a member of staff, but it apologised if there had been any miscommunication beforehand. It acknowledged that she felt its contractors were disrespectful and it apologised for this. It also logged her dissatisfaction with its contractors’ managers. The resident requested escalation of her complaint on 11 January 2023, this was by email to the landlord.
  7. The landlord sent its final response on 25 January 2023. The landlord told the resident that separate to her complaint, its team was sending the contents of a subject access request to her. It reiterated that it followed the plans that were approved by the local council. It looked at the plans submitted to the council and had been advised that the small amount of shrubbery was low level and required limited maintenance. The other shrubbery throughout the communal areas would be pruned by it, but shrubs in the resident’s garden would need to be maintained by her. It noted that it had offered the resident support since moving to the property, however she was being supported by a charity for her mental health.
  8. The resident first contacted this Service about her experience on 7 February 2023 by letter. She remained dissatisfied with the landlord’s response and her notes show that she was unhappy with staff conduct on a call in December 2022. By 12 May 2023 the resident confirmed she wanted us to investigate her concerns and sought compensation.

Assessment and findings

Scope of investigation

  1. It is noted the resident said because of the planting in her garden, her mental health was affected. The Ombudsman does not doubt the resident’s concerns about her health, but this Service is unable to draw conclusions on the causation of, or liability for, effects on health and wellbeing. Therefore, we cannot confirm the effect of the landlord’s actions or inaction on the resident’s health and she may wish to seek independent advice if she wishes to pursue this aspect of her complaint. However, this Service will consider the landlord’s handling of the resident’s concerns.
  2. Paragraph 42a of the Scheme says the Ombudsman may not consider complaints which were made prior to having exhausted a landlord’s complaints procedure.
  3. The resident told this Service she wanted us to investigate the landlord’s staff conduct in a phone conversation between the parties. However, there is no evidence that this aspect of her complaint was put to the landlord at the outset. Her initial complaint emails do not contain reference to this. An email was sent on 11 January 2023 that requested a transcript of this call.
  4. The resident also requested the transcript again on 22 January 2023. This was after the landlord had provided its stage 1 complaint response, so it would not have had the opportunity to respond at stage 1 of its internal complaints procedure. The landlord did not comment on this aspect of her complaint within its final response of 25 January 2023.
  5. As such, this aspect of the complaint has not exhausted the landlord’s complaints process in line with paragraph 42a of the Scheme. Therefore, this element of the complaint is outside the Ombudsman’s jurisdiction and we cannot comment any further. However, we will look at the landlord’s complaint handling regarding concerns over staff conduct in a telephone call.

Policies and procedures

  1. Under the tenancy agreement, the landlord is responsible for repairs to the structure and exterior of the property. The resident must keep her garden neat and tidy. She is also to allow the landlord access to the property to carry out repairs or inspections.
  2. The landlord operates a neighbourhood management policy, where it says it will follow regulations. It will attempt to ensure customers are treated with fairness and respect, as well as provide quality services. This policy echoes the tenancy agreement, and the resident must make sure that her garden is well maintained and in good condition.
  3. The landlord’s complaints policy, in force at the time of the internal complaint process, states where residents raise additional complaints during an investigation, these will be incorporated into the response if they are relevant, and the response has not been issued. Where the response has been issued, or it would unreasonably delay the response, the complaint should be logged as a new complaint.

Shrubs planted and the landlord’s communication

  1. The resident disputed that the landlord should have planted the shrubs in her garden. She also said that the landlord should have told her in advance about the planting. The landlord said this would have been communicated to her as part of the induction process when she moved into the property. The landlord has since apologised in its complaint responses if this was not made clear, which was reasonable. However, a recommendation has been made for it to notify its resident’s when an appointment that involves the property has been made so residents know what to expect.
  2. This Service has been provided with evidence that plans were submitted to the local council by the landlord, which was approved in 2020 for the residential development. This included plans for shrubs and greenery in various plots. Therefore, the landlord was following planning permissions by planting the shrubs in the resident’s property, which was appropriate. Although the resident preferred the property’s condition prior to shrubs being planted in her garden, the landlord acted appropriately following the approved planning permissions.
  3. The resident also complained that she was disrespected by the landlord’s contractors when they attended the property to plant the shrubs. The landlord apologised for this and demonstrated it was taking her complaint seriously by providing feedback to the contractors’ managers. This was in line with its neighbourhood management policy where it aims to treat people fairly. It also communicated her concerns to the relevant teams, which was appropriate.
  4. Additionally, on 7 December 2022 the resident told the landlord that she thought the shrubs were poisonous, and that she would taste the berries from the shrubs to check if they were. She received a response from the landlord on the same day, the timeliness of this response was prompt. It noted the 4 types of shrubs that had been planted, it communicated clearly that they were not poisonous, were low maintenance, and advised her not to consume the berries. This was reasonable action by the landlord.
  5. Overall, this Service has not identified any service failures by the landlord. It was required to comply with the planning application submitted to the local council, which included shrubs and other landscaping features. It communicated clearly that the shrubs were planted in accordance with the local council’s requirements, the types of shrubs, and responded to the resident’s concerns that they were poisonous. It also reiterated that it was her responsibility to maintain the shrubs in her garden, but that it is responsible for the communal areas and pruning those trees.
  6. Considering the above, this Service has found no maladministration in the landlord’s handling of the resident’s concerns regarding shrubs planted in her front garden and its communication.

The landlord’s complaint handling

  1. Looking at the information available to us, it is the Ombudsman’s opinion that there was no issue with the timeliness of the landlord’s complaint responses. However, the resident had expressed dissatisfaction about a call between her and the landlord’s staff member.
  2. Under this Service’s remedies guidance, consideration is given for the severity of the situation and the length of time involved as well as other relevant factors, such as vulnerabilities.
  3. The landlord’s complaints policy notes that it would either incorporate additional complaint points at stage 1 of its internal complaints procedure if a response had not been provided. If a response was provided, it would raise a new complaint. This is in line with the Ombudsman’s Complaint Handling Code (the Code).
  4. When the landlord was made aware that the resident was unhappy about a phone call with the landlord that took place in December 2022, it should have considered its policy and the residents vulnerabilities and guided her to the potential next steps. It should have clearly communicated whether this was something it had already responded to, or if the stage 1 complaint response was already provided regarding the shrubs, it should have also considered whether a new stage 1 complaint was to be logged regarding the phone call.
  5. There is no evidence provided to this Service that the landlord did this. Therefore, it did not act in accordance with its own complaints policy or the Code. This is despite the landlord acknowledging that the resident made a subject access request to gain more insight about the telephone call she was dissatisfied with. The resident expended time and effort in communicating her concerns to the landlord, and she was still dissatisfied with this matter when she referred her complaint to this Service.
  6. It would have been inappropriate for the landlord to not consider this aspect of the complaint at all. As such, we find service failure in the landlord’s handling of the complaint. The Code is now statutory, but orders have been made to apologise to the resident for its service failure in its complaint handling and assist her to progress a complaint about this issue. The orders also recognise the time and trouble the resident expended.

Determination

  1. In accordance with paragraph 52 of the Scheme, there was no maladministration in the landlord’s handling of the resident’s concerns regarding shrubs planted in her front garden and its communication.
  2. In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s complaint handling.

Orders and recommendation

Orders

  1. Within 4 weeks of the date of this determination the landlord is ordered to:
    1. Apologise to the resident for its failure to appropriately consider a complaint about staff conduct on a telephone call that took place in December 2022.
    2. Pay directly to the resident’s bank account £50 for the time and trouble expended.
    3. If it has not done so already, it is to support the resident in progressing a complaint about staff conduct on the phone through the landlord’s internal complaints process, if she wishes to pursue this matter. If a response about this was since provided, it is to send a copy to this Service and the resident.
  2. The landlord must provide evidence of compliance with the above orders, within 4 weeks of the date of this determination.

Recommendation

  1. The landlord is recommended to consider notifying residents in writing when planned works, repairs, or installations are going to take place, so residents expectations are managed.