London Borough of Newham (202212688)

REPORT

COMPLAINT 202212688

Newham Council

5 May 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 resident’s complaint is about:
   1. The landlord’s response to the resident’s queries about whether the rear garden is a communal space and who is responsible for its maintenance.
   2. The landlord’s response to the resident’s queries about the horticulture payment.
   3. The level of customer service provided.
   4. The landlord’s complaints handling.

Background

2. The resident is a secure tenant of the landlord in a one bed property with a rear garden which is shared with the resident’s neighbour. The resident pays a weekly horticulture charge.
3. On 6 March 2022 the resident raised a complaint with the landlord in relation to two previous complaints to which she had not received a response. It appears that the resident contacted the landlord a number of times prior to her complaint on 6 March 2022 in relation to a horticulture charge she had been paying. The resident said that she had attempted to contact the landlord’s contractor for it to carry out a maintenance job in the rear garden. However, the resident had been told that she was not entitled to have the landlord carry out maintenance work in the rear garden. The resident appears to have contacted the landlord numerous times in order to seek clarity on the issue. The resident believed that the horticulture charge covered communal areas, including the rear garden that she shared with her neighbour, and that therefore the landlord was responsible for the rear garden’s maintenance.
4. In the landlord’s stage one response issued on 11 May 2022 the landlord advised that an inspection was carried out on 4 May 2022 and that due to the resident’s neighbour’s vulnerabilities, arrangements were in place for garden maintenance to commence by the end of the month.
5. On 16 May 2022 it appears as though the resident escalated her complaint to stage two. It is unclear what the resident raised on this occasion as details of the complaint have not been provided. The escalation was however acknowledged on 17 June 2022 and a stage two response was issued on 17 August 2022. In its stage two response, the landlord outlined the timeline of events and maintained that it was not the landlord’s responsibility to maintain the rear garden. The landlord advised that the rear garden was shared between the resident and her neighbour. The landlord clarified that the resident and the neighbour were jointly responsible for the upkeep. The landlord advised that the resident’s neighbour had been referred to the landlord’s gardening scheme which helped residents maintain their gardens and that the resident would also benefit from the service through the neighbour. The landlord also noted that the garden could not be split as requested by the resident. The landlord also provided the resident with details of her new Housing Liaison Officer.
6. On 2 September 2022, the resident escalated her complaint with this Service as she believed that the landlord had failed to deal with her compliant and due to the duration it had taken the landlord to engage with the complaint. The resident stated that there were no other green communal areas to which the horticulture charge could relate to apart from the rear garden and that she believed that she was the sole user of the garden as set out in her tenancy agreement.

Assessment and findings

The landlord’s response to the resident’s queries about whether the rear garden is a communal space and who is responsible for its maintenance.

7. Following the resident’s complaint to the landlord on 6 April 2022, the following day the landlord advised the resident that the property did not fall under the garden maintenance schedule and therefore the landlord was not responsible for maintaining the rear garden. On 5 May 2022 the landlord confirmed that the garden was a shared garden, and the maintenance responsibility was a joint one between the resident and her neighbour. The landlord referred the resident to the tenancy agreement. The landlord reiterated the same in its stage two response, maintaining its position that it was not responsible for the maintenance of the resident’s rear garden.
8. The tenancy agreement confirms a maintenance responsibility in regard to the rear garden. In the resident’s view, this responsibility does not apply to her circumstances as the garden is shared and therefore in the resident’s view, it is a communal space. Whilst it is appreciated that the tenancy agreement does not state whether the resident is solely responsible for the maintenance or jointly with the neighbour it does make clear that the resident bares the responsibility. There is no evidence within the tenancy agreement that the landlord has a maintenance responsibility where the garden is shared. Moreover, the landlord’s gardening guidance published on its website explains that the rear garden is the responsibility of the resident to maintain regardless of the property type.
9. The landlord appropriately relied on the tenancy agreement signed by the resident and provided further clarity as published on its website. Therefore, there was no maladministration by the landlord in its response to the resident about whether the rear garden is a communal space and who is responsible for its maintenance.

The landlord’s response to the resident’s queries about the purpose of horticulture payment

10. In its complaint response, the landlord confirmed that the resident pays a horticulture charge. The landlord explained that the charge covered the green areas within the estate and that the charge did not include the maintenance of rear gardens. The resident states that there are not any green areas within the estate. It is noted that the landlord did not elaborate as to which specific green areas within the estate are covered by the horticulture charge.
11. The horticulture charge is included in the resident’s tenancy agreement and therefore the resident has agreed to pay the charge. The landlord’s response was therefore appropriate and there was no maladministration by the landlord in its response to the resident’s queries about the purpose of the horticultural payment. However, the Ombudsman has made recommendation below that the landlord provides the resident with information about of which green areas are covered by the charge.

The level of customer service provided.

12. The resident says that she sent endless emails and made endless phone calls to the landlord about the garden maintenance issues. No evidence has been provided by the landlord prior to the resident’s 6 March 2022 complaint and the landlord has not addressed the resident’s assertions. The resident described the landlord’s behaviour as “passive aggressive and unpolite” and said that the landlord has been “unbothered and not helpful at all”. The resident said that she was “sick of chasing” and felt like the landlord was acting as though she did not exist. The resident also says that her Housing Liaison Officer never made contact with her. The landlord addressed the resident’s concerns by providing her with details of her Housing Liaison Officer. There is no evidence or information provided as to whether this was the first time the resident was given information relating to her Housing Liaison Officer.
13. The landlord delayed in responding to the resident and failed to call the resident back as promised causing the resident to have to chase it for responses. It also appears that the landlord did not provide the resident with her Housing Liaison Officer’s contact details until it did so in its stage two complaint response. The landlord does not dispute or address the level of customer service received. There was therefore service failure due to the level of customer service provided by the landlord, for which the landlord should pay the resident £50 in compensation.

Complaints handling

14. The landlord’s complaints policy says that it will acknowledge a stage one complaint within 2 days and provide a response within 10 working days. The landlord will provide a stage two response within 20 working days of escalation. Where there is likely to be a delay, the landlord will contact the resident to explain such delay and provide a new timeframe.
15. The resident’s initial complaint was made on 6 April 2022 which was acknowledged by the landlord on 22 April 2022, 16 days after the initial complaint, and 14 days outside the 2 day timescale set out in the complaints policy. The landlord also told the resident that she would receive a response to her stage one complaint by 9 May 2022. The landlord responded to the stage one complaint on 11 May 2022, 22 working days after the complaint was made and 12 working days outside the response time set out in the complaints policy. There is no evidence to suggest the reasons for the delay were communicated to the resident.
16. The resident’s stage two complaint was made on 16 May 2022. The complaint was acknowledged a month later on 17 June 2022 in which the resident was advised a response would be provided by 7 July 2022. The resident received a response to its stage two complaint on 17 August 2022, 64 working days after the resident’s stage two escalation and 44 working days outside the response time set out in the complaints policy. There is no evidence to suggest the reasons for the delay were communicated to the resident.
17. The landlord acknowledged its delays in its stage two response and apologised to the resident. However the landlord did not provide further redress nor provide a reason or explanation for the delays. As such, there was inappropriate delay in dealing with the matter and the landlord failed to apply its own complaints handling policy, causing the resident to incur time and trouble in chasing the landlord for a response during both stage one and stage two of the complaints process. There was therefore maladministration by the landlord in its complaint handling and the Ombudsman has made an order below for £100 compensation.

Determination

18. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration with respect to the landlord’s response to the resident’s queries about whether the rear garden is a communal space and who is responsible for its maintenance.
19. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration with respect to the landlord’s response to the resident’s queries about the purpose of the horticulture payment.
20. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord for the level of customer service provided.
21. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its complaints handling.

Orders and recommendations

Orders

22. Within four weeks of this investigation report, the landlord is ordered to pay the resident compensation of £50 for the distress and inconvenience incurred by the resident as a result of its customer service.
23. Within four weeks of this investigation report, the landlord is ordered to pay the resident compensation of £100 for the time and trouble incurred by the resident as a result of its complaints handling failures.

Recommendation

24. It is recommended that the landlord provides the resident with information about which green areas are covered by the horticultural charge.