Midland Heart Limited (202006097)

REPORT

COMPLAINT 202006097

Midland Heart Limited

28 February 2022

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 reports about the standard of the garden maintenance service.

Background and summary of events

2. The resident is an assured tenant of the landlord, which is a housing association. The property is a flat within a block of flats (the evidence of the events leading up to the resident’s complaint have not been provided for this investigation).
3. The landlord has a three-stage complaint process. A first-stage resolution, where an immediate solution can be agreed to resolve concerns at the first point of contact. An investigation (stage two complaint response) and formal review (stage three complaint response).
4. On 18 September 2020, the resident brought a complaint to this Service. She said she had been “complaining since March 2020 regarding the gardening service, requesting proof that the contractor [had] attended”. She said the landlord had failed to provide the information. The resident explained that she paid a weekly service charge and was not informed that the gardening and cleaning services were fortnightly. She said the gardening service was sub-standard and on 17 August 2020 the contractors “arrived at 12:05pm and left at 12:07pm having remained in the vehicle smoking.” The resident requested; a full refund of service charge paid from 10 September 2019 to date (18 September 2020); an explanation of why the services were not being carried out and why the landlord failed to respond to her.
5. The Ombudsman forwarded the resident’s complaint to the landlord on 22 September and 20 November 2020. We explained that her complaint was about the standard of the gardening services, and its response to her request for evidence that the gardening contractor had attended.
6. On 23 November 2020 the landlord sent the resident its resolution response. It explained that it had fitted a lock on the bin store area, to ensure that only residents used it to dispose of their waste (it is not apparent when this issue had been raised with the landlord, and it was not part of the complaint forwarded by this Service). It confirmed that the bins would be cleared fortnightly. The landlord explained that it had discussed their work with the grounds maintenance team, and issued them with a “rectification fail” (a term used by the landlord when further work is needed to bring previous work up to the required standard). It confirmed the issues with the bins were resolved and a notice had since been displayed in the communal area to advise when contractors attended the site. The landlord explained that monthly estate inspections were carried out by operatives who recorded a pass or fail on the works completed by the grounds team. It advised that if the agreed quality was not met, the grounds team would return to rectify the shortcoming, within an agreed timescale.
7. According to the landlord’s records, on 18 January 2021 the resident disputed the information provided by it and asked for her complaint to be escalated to its next stage. She also asked to see photographic evidence of when the gardening work was completed.
8. On 2 February 2021 the landlord sent the resident its investigation response (the second stage of its complaint process). It explained that part of her service charge was paid towards the ground maintenance of the communal areas. The landlord explained that it monitored the service provided, through site inspections and surveys depending on the history and the feedback received from residents. It said that between April and October 2020, there were no site inspections, however, in July 2020 it asked the contractor to attend and return the site up to its agreed standard following her report. It also stated that between April and July 2020 it only completed site inspections of an emergency nature, due to Covid-19 restrictions. The landlord addressed concerns the resident had previously raised about the contractors not having anywhere to sign in on site. It acknowledged that her requests for proof of the contractor’s attendance and photos of the work had not been provided. It explained that it did not request photographic proof of the visits, but instead it monitored the service by completing regular patrols of the building and communal areas. The landlord apologised that its lack of response caused her to contact this Service, and advised that it was partially upholding her complaint due to its handling of her concerns. It offered £70 compensation; £35 for not providing her with a thorough response and £35 for the delays in responding to her complaint.
9. The resident asked for her complaint to be escalated on 5 February 2021. She disputed the contractor’s attendance on 26 May, 16 June and 1 July 2020, and again requested proof of their visits. She said that 30 visits were missed between September 2019 and April 2020 and 28 missed between April to November 2020. The resident asked that the landlord refund her £110.14 in service charges for that period. She referred to the other services provided by the landlord, where the contractors signed in when they attended the estate. She advised that since the signing in sheet was introduced for the garden maintenance, and the site inspections had been completed that she had no cause to complain further. She said she believed that the introduction of a signing in sheet evidenced that there was a significant failure in services provided by it, through its contracted provider. The resident requested compensation for the inconvenience along with a full refund of service charge. The landlord acknowledged her request on 9 February 2021.
10. The landlord emailed the resident on 4 March 2021 requesting an extension in providing its response. It explained that due to unexpected staff absences the outcome would be delayed. 
11. On 19 March 2021 the landlord issued its final complaint response. It advised her that the contractor visits were not based around the length of time, but rather that the appropriate actions were taken on each visit to bring the site up to its standard in line with its contract, which could take as much time as required. The landlord explained that after contractor visits it conducted its own follow-up checks, and any issues with the gardening work were fed back to the contractors to carry out any necessary rework. The landlord said that from the pictures provided by the resident, dated 16 April 2020, it could see that there was litter on the ground. It said the contractor had attended on 8 April 2020, and it considered it “reasonable to assume the litter accumulated after their visit.” The landlord advised it could not be conclusively evidenced due to the time lapse, it explained that because the matter was not reported within 6 months of the incident, it would not be able to investigate that aspect of her complaint, under its complaint policy. 
12. The landlord said that her photograph, dated 1 December 2020, showed litter on the ground, and on that same day the grounds were surveyed by its property officer and the site failed the inspection. It said the contractors were notified and they returned and rectified it the following day. It said from her photographs dated, 16 February 2021, it could see an area which had many cigarette butts. It advised that its contractors were not expected to clear them up on every visit, but that a property officer had been requested to investigate further to prevent litter in the communal grounds. It acknowledged her request for compensation, and said, it found no service failure by its contractor. The landlord said that it was satisfied that as and when it was notified it acted and held the contractors responsible, who in turn took prompt and appropriate action to correct the issues reported. It said that, that aspect of her complaint had not been upheld. It maintained its offer of £70 for its recognised service failures and apologised for its complaint handling. The landlord assured her that it had learnt from it to prevent further occurrences. It declined her escalation to formal review, and advised that it would not change the outcome. It explained how she could contact this Service if she remained dissatisfied with its response.
13. On 19 April 2021 the resident brought her complaint to the Ombudsman and disputed the details in the landlord’s response. She said that she no longer queried the visits as a signing in sheet was displayed to evidence the attendance by the gardening contractors. She also explained in her complaint to us that, the officer who wrote the final complaint response, had a conflict of interest with her in 2002. Therefore, she believed the officer should not have been involved.

Assessment and findings

14. The tenancy agreement states that the resident’s flat forms part of a building owned by the landlord which includes shared communal gardens.
15. The landlord’s garden maintenance procedure advises that it aims for the communal areas to be kept clean, tidy and well maintained throughout the year. The landlord employs contractors to deliver environmental services including, grounds maintenance and communal cleaning. This includes maintaining clean and usable hard surfaces (external bin stores) and shared internal areas.
16. The landlord’s complaints, comments and compliments policy states that a complaint may be made where; there has been a failure of its service standards, where action has not been taken within agreed timescales; where it has not acted in line with its policies and procedures to a resident request; and where there has been poor conduct by staff or its contractors. The policy advises that it does not cover issues that are more than six months old.
17. The landlord has a three-stage complaint process, the policy does not provide timescales for when it will respond to a complaint. Common practice for complaint timescales would be for the landlord to respond at stage one within 10 to 20 working days of receiving the complaint, and to respond at the second stage of the complaint process within 20 working days of the complaint being escalated.

The landlords handling of the resident’s reports about the standard of the garden maintenance service

18. It is understood that part of the resident’s complaint concerns the level of service charge paid for the maintenance of the communal grounds, and the landlord’s response to the queries she raised about the service charge. The Ombudsman will not review complaints about service charges or determine whether service charges are reasonable or payable. This is an accordance with paragraph 39(i) of the Housing Ombudsman Scheme which says we will not investigate complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure. For service charges, the First Tier Property Tribunal is the more appropriate organisation. However, we can look at how the landlord responded to the resident’s concerns about the standard of the garden maintenance service.

19. On 5 February 2021 the resident raised concerns over the contractor’s visits from May 2020 to July 2020. However, under paragraph 39(e) of the Housing Ombudsman Scheme, we will not consider complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be within six months of the matters arising. Therefore, whilst the historical incidents provide context to the current complaint, this assessment focuses on events from around September 2020 onward.
20. In the resident’s complaint to the Ombudsman, she alleged a conflict of interest for one of the landlord’s officers involved with her complaint. As this is a separate issue to the complaint raised with the Service, this is not something that we can adjudicate on at this stage, as the landlord needs to be provided with the opportunity to investigate and respond first. The resident will need to contact the landlord and, if appropriate, raise a separate complaint about this issue.

21. In its complaint response to the resident, dated 23 November 2020, the landlord clearly explained the actions taken to rectify the issues raised. It discussed the quality of service with the grounds maintenance team, and they were issued with a rectification fail. It was appropriate for the landlord to inspect the area following the resident’s raised concerns, and to use its scoring system accordingly. The landlord acted in line with its garden maintenance procedure, which fails contractors if the site does not meet its required standard or where quality could be improved. It acted reasonably by bringing the standard of the site back up to its contracted specification, and informed the resident of its actions to maintain the standard of the communal area.
22. The resident raised concerns over the length of time the contractor attended the site, and quality of service provided by its contractors. The landlord explained that visits were not based around the length of time taken but rather the nature of the work that was needed at the time of the visit. The communal areas procedures states that its environmental services are checked regularly for quality by property operatives, who carry out quality site inspections, focused on how each contractor has followed the agreed guidelines. A scoring system is used, and a pass awarded to contractors who fit within the guidelines, a fail is awarded to sites which could be improved or did not meet the required standard. The landlord clearly explained the basis on which its contractors work and how it monitored the service provided.
23.  The resident asked for photographic evidence as proof that the contractors had attended the communal garden. It was appropriate for the landlord to explain its procedure, and advise how it monitored its service provided, as it did not keep photographic evidence of the contractor’s attendance, and nothing in its policy called for it to do so. The resident said there was nowhere for contractors to sign into the site. On 23 November 2020 the landlord advised that a notice had been displayed in the communal area to show when contractors attended the site. On 5 May 2021 the resident said that since the attendance sheet was introduced and the site inspections had been completed she had had no cause to complain further. Accordingly, the landlord’s actions (resulting, it seems, from the resident’s concerns and complaints) were appropriate and effective. The fact that the landlord was open to making changes and improvements does not, in itself, imply that it was providing a poor service previously.
24. The landlord acknowledged the delays in its response to the resident and also the poor quality of its first complaint response to her. It apologised that its lack of response led to her contacting the Ombudsman to resolve her complaint. It was appropriate for the landlord to recognise the inconvenience this had on the resident and to apologise for its recognised failings. It offered £70 compensation for its service failures. The compensation offered was in line with the Ombudsman’s own remedies guidance, where there is service failure resulting in some impact on the resident, but was of short duration and may not have significantly affected the overall outcome for the resident.
25. When a landlord is at fault, it needs to put things right by acknowledging its mistakes and apologising for them, explaining why things went wrong and what it will do to prevent the same mistake happening again. In this the landlord apologised for not providing a thorough response to her concerns and for the delays in responding to her complaint. It acknowledged its service failures and offered compensation for them. The Ombudsman will not usually make a finding of maladministration where the landlord has fully acknowledged any failings and taken reasonable steps to offer redress. In this case, the landlord’s acknowledgement of its service failure, and the remedies it provided were appropriate and reasonable.

Determination (decision)

26. In accordance with paragraph 55 (b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Reasons

27. The landlord addressed the resident’s concerns and clearly explained the basis on which it monitored its communal grounds service. Its actions were appropriately in resolving the resident’s concerns. The landlord offered compensation in recognition of its service failures in handling of the complaint, which were in line with the Ombudsman own remedies guidance.