Hyde Housing Association Limited (202314459)
REPORT
COMPLAINT 202314459
Hyde Housing Association Limited
17 September 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 response to the resident’s request that it restore the condition of the garden following an asbestos investigation.
- The Ombudsman has also considered the landlord’s complaint handling.
Background
- The resident has an assured tenancy with the landlord which is a housing association. The tenancy commenced on 21 March 2011. The resident’s partner is disabled and has limited mobility. He is diagnosed with social anxiety, post traumatic stress disorder and nerve compression on his spinal cord.
- The property is a 3 bedroom house which has a rear garden.
- The resident contacted the landlord on 25 October 2021 to report what she thought were asbestos roof boards buried in the garden. Having carried out an inspection in December the landlord arranged for the material to be removed in February 2022. In April 2022 the landlord undertook further investigation to check the rest of the garden for asbestos by drilling holes. The results of the second investigation were negative.
- In January 2023 the resident requested that the landlord inspect the garden and restore it to the condition it was in before the investigation. The resident said it was unusable in its current condition. The landlord said it would not carry out works because the resident was responsible for maintaining the garden.
- On 19 May 2023 the resident made a stage 1 complaint, the main points being:
- She had made “loads” of calls to the landlord since January to request an inspection of the garden. She was promised call backs but none were received.
- The resident’s partner was physically and mentally disabled and relied on the garden for “outside time.” They were already under a lot of stress with visits to hospital for tests.
- The garden was not fit for their dog to use due to rats nesting in the exposed ground.
- The landlord provided its stage 1 complaint response on 7 July 2023, as follows:
- The complaint was not upheld.
- It offered £100 compensation for its delay in issuing the complaint response.
- It was only able to investigate failures of service which occurred 6 months prior to complaint, although it acknowledged the resident had contacted it about the issue prior to that period.
- Asbestos soil samples were taken at the beginning of 2023 but there was no asbestos in the holes dug. There was asbestos detected in concrete but this was safely removed.
- It had reviewed the photos of the garden and had concluded that no further works required and the matter was therefore closed.
- It said it knew it needed to improve its response times when a repair was initially reported, along with when this needed to be escalated because a complaint about its services had been received.
- It was taking action within the business to ensure it was able to do this across all service areas, especially repairs, as it recognised the impact on resident when things went wrong.
- It is unclear when the resident requested to escalate their complaint to stage 2 of the process. However, on 18 July 2023 the landlord issued a stage 2 complaint response. It apologised for its inaccurate stage 1 complaint response because it mistakenly said the asbestos soil test was carried out in 2023 instead of 2022. No asbestos had been detected and under its policy the restoration of the garden to its original state was the resident’s responsibility. It would therefore not return to carry out further works.
- The resident contacted this Service on 2 August 2023 to say they had not been able to use the garden since the holes were dug because it had been “turned upside down and left.” She said it had affected her partners mental and physical health as well as that of her family because they had no private outdoor space.
Assessment and findings
Landlord’s obligations, policies and procedures
- Section 4 of the landlord’s responsive repairs procedure says that the resident is responsible for self-contained property gardens.
- The landlord’s complaints and compensation policy in place at the time of the complaint says that it:
- May decline to investigate a complaint about a specific incident or service failure that occurred over 6 months prior to the complaint being made.
- Will respond to stage 1 complaints within 10 working days of receipt. If it needed extra time to complete the investigation, it would explain this to the resident and give a date for its response. This would be no later than a further 10 working days.
- Compensation may be paid at the discretion of the investigating manager, in line with the policy and to reflect the circumstances of the case.
Scope of the investigation
- When the resident contacted this Service on 2 August 2023 they raised concerns about the way in which the landlord carried out the asbestos survey.
- The Housing Ombudsman’s approach, as set out in the Housing Ombudsman Scheme, is that the Ombudsman may not consider complaints which have not exhausted the landlord’s complaints process.
- Concerns about the testing itself were not raised as part of the resident’s formal complaint. Therefore the landlord has not been given the opportunity to give its response on this matter and it cannot be assessed as part of this investigation.
Garden
- The landlord’s asbestos register database shows that on 6 December 2021 the landlord tested a sample of loose concrete debris from the garden. The test was positive and the loose bits of cement debris were removed from the garden accordingly.
- The landlord’s asbestos survey data export report shows that on 12 April 2022 the landlord dug holes in the garden to carry out a visual asbestos inspection. No asbestos was detected.
- On 19 May 2023 the resident said they had been calling the landlord since January or February that year to ask that a surveyor inspect the damage caused by the testing. This investigation has not seen evidence of the calls made to the landlord.
- However, it is noted that in the landlord’s letter to the resident of 23 May 2023 the landlord apologised that she had to “repeatedly chase” and acknowledged that it would be “frustrating.” Furthermore, its stage 1 complaint response of 7 July acknowledged that the resident had made contact in the period 6 months before the complaint was made. That the landlord has not provided details of these calls is a record keeping failure.
- The Ombudsman’s dispute resolution principles are to be fair, learn from outcomes and put things right. As set out below, the landlord’s stage 1 complaint response of 7 July 2023 failed to provide a meaningful response on this point. Therefore, it failed to identify what had gone wrong, what it would do differently and how it could put things right for the resident.
- The resident said that her partner was disabled and relied on the garden for “outside time.” The landlord’s stage 1 complaint response failed to consider this in terms of its duty under the Equality Act 2010 which was inappropriate.
- In its letter to the resident of 23 May 2023 the landlord noted her observation that when she had chased the customer service team she was told the responsibility sat with different teams. This was mirrored in the landlord’s internal emails of 1, 8 and 28 June when the complaints team tried to obtain an update to provide its complaint response.
- The internal emails exchanged on 28 June 2023 confirmed the matter had been referred to a surveyor who had declined to take ownership because it was not a surveying issue. It noted the resident had said that all the “terram membrane” was removed from the garden when the holes were dug. Therefore, what was a level, weed free garden was no longer useable. When it rained it was like a “mud bath” where the holes were dug and not back filled. The last email in the chain said that the garden was the resident’s responsibility and that a surveyor would only inspect if there was a structural issue. The lack of clarity around responsibilities accounted for the complaint delays discussed below.
- A further internal email dated 6 July 2023 confirmed it was the resident’s responsibility to make good because they were responsible for the garden.
Events post internal complaints process
- The landlord inspected the garden on 5 February 2024. It maintained its position that there was no work to be carried out.
- In a telephone call to this Service on 6 September 2024 the resident advised that a further inspection had been carried out more recently and “out of the blue” the landlord carried out works to restore the garden.
Summary
- It was unreasonable for the landlord to rely on the clause that the resident was responsible for maintaining the garden given that it was damaged by works it was responsible for. Furthermore, it failed to consider the resident’s individual circumstances, including its duty under the Equality Act 2010. It also failed to consider what had gone wrong with its response to the resident’s request for an inspection during early 2023.
- It is noted that approximately 18 months after the resident first requested an inspection, the landlord carried out works to restore the garden and put things right. However, it missed the opportunity to use the complaints process as a meaningful exploration of its response and therefore failed to identify its failings.
- Its failings amount to maladministration because they had an adverse effect on the resident and her household. The landlord failed to acknowledge its failings and failed to put things right during the complaints process. The landlord has been ordered to pay the resident £600 which is consistent with the Ombudsman’s remedies guidance where there was a significant physical and/or emotional impact on the resident.
Complaint handling
- The resident made a Stage 1 complaint on 19 May 2023. On 23 May the landlord wrote to the resident to acknowledge receipt of the complaint and said it would reply by 7 June. On 7 June the landlord wrote to the resident to advise that it needed more time and extended the response date to 21 June. It was inappropriate of the landlord to write to the resident in the day the response was due because rather than proactively managing the resident’s expectations, it was an apology for not doing something.
- The landlord also failed to provide its response to the resident in time on the second occasion. This caused her inconvenience, time and trouble because she emailed the landlord on 21 June 2023 to chase. On 23 June the landlord wrote to the resident to extend the response deadline to 7 July.
- This was a repeated failure because the landlord failed to proactively manage the resident’s expectations. Furthermore, the new deadline exceeded the additional 10 days set out in the landlord’s complaints policy.
- The landlord issued its stage 1 complaint response on 7 July 2023. This was 34 working days after the complaint was received and 24 days over the initial 10 working day target. The landlord appropriately apologised for the delay and offered £100 compensation to put things right.
- The Housing Ombudsman’s Complaint Handling Code (the Code) says that landlord’s:
- Must consider all information and evidence carefully.
- Should provide a response to each point of the complaint.
- Should provide clear reasons for any decisions, referring to relevant policy, law and good practice where appropriate.
- The stage 1 complaint response itself was confusing because although it set out why it may not investigate the complaint in accordance with its policy it then went on to provide an outcome. It is unclear why the landlord mentioned the 6 month guide if it intended to assess the complaint in any event.
- The complaint response was also inaccurate, referring to asbestos testing taking place in 2023 instead of 2022. Its response was brief and did not demonstrate that it had carried out a detailed consideration of the substantive issue. It did not provide the resident with a reason as to why it would not carry out works, just that it would not and that the matter was closed.
- Having decided not to uphold the complaint the landlord then set out its learning in terms of needing to provide a quicker response to repairs. It is unclear how this paragraph relates to the substantive issue or the outcome of the complaint.
- Furthermore, in her stage 1 complaint the resident said she had been trying to contact the landlord for months to resolve the issue. The landlord broadly acknowledged that was the case but failed to provide any meaningful response on this point.
- The stage 1 response lacked clarity and failed to respond to each point of the complaint, suggesting that the complaint response was rushed. It did not give the resident confidence that her complaint was carefully considered and a response provided accordingly.
- The stage 2 complaint response of 18 July 2023 rectified some of the failures in the stage 1 response. This is because it corrected its mistake regarding the year the asbestos soil test was carried out. It also said the reason it would not carry out works to restore the garden was because it was the resident’s responsibility. While it was appropriate that the landlord provided an explanation for its decision it failed to refer to relevant policy or procedure which was inappropriate.
- The landlord appropriately offered compensation for the delays at stage 1 of the complaints process. However, it did not consider the additional failings in its complaint handling set out above.
- The complaint handling failures amount to maladministration because they had an adverse effect on the resident. The landlord has been ordered to pay the resident £150 which is consistent with the Ombudsman’s remedies guidance where there was no permanent impact. The landlord may deduct the £100 it offered if this has already been paid.
- The Ombudsman is in the process of carrying out a special investigation into the landlord under paragraph 49 of the Housing Ombudsman Scheme. This allows the Ombudsman to conduct further investigations beyond an individual complaint to establish whether any presenting evidence is indicative of a systemic failings. This if reflected in the orders made in this case.
Determination (decision)
- In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s response to the resident’s request to restore the garden following its asbestos investigation.
- In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s complaint handling.
Orders
- Within 4 weeks of the date of the determination the landlord is ordered to:
- Pay the resident £750 compensation comprised of:
- £600 for the distress and inconvenience caused by the landlord’s response to the resident’s request to restore the garden following its asbestos investigation.
- £150 for the distress and inconvenience caused by the landlord’s complaint handling failures. The landlord may deduct the £100 it has offered if this has already been paid.
- Write to the resident to apologise for the failings identified in the case. A copy of the letter should be provided to the Ombudsman, also within 4 weeks.
- Pay the resident £750 compensation comprised of: