Midland Heart Limited (202011008)

REPORT

COMPLAINT 202011008

Midland Heart Limited

24 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

The complaint is about the landlord’s:
1. Response to the resident’s reports of anti-social behaviour (ASB) in the car park area of the property.
2. Response to the resident’s reports of problems with the ground maintenance service provided in return for the service charge.
3. Complaints handling.

Background and summary of events

The resident is an assured tenant of a semi detached house owned and managed by the landlord.
The resident’s tenancy agreement says that she is responsible for the behaviour of any children living in and / or visiting the property. Examples of behaviour which will or is likely to, or is capable of, causing a nuisance and / or annoyance include playing ball games close to someone’s house.
The landlord’s ASB policy says that where behaviour is not regular or persistent, nor is there a risk of harm, it would not have the powers available to compel someone to stop the behaviour, and nor would it be reasonable to do so. The policy says that children playing ball games and youths congregating are examples of behaviour that is not ASB.
The ASB policy sets out examples of early intervention actions that the landlord might take on receiving a report of ASB. These include Interviews with subjects of the complaint; advisory letters and formal warnings/ letters/ notices.
The property has a communal car parking area and residents pay a service charge for the maintenance of the car parking area. The landlord’s grounds maintenance specification says that between March and October, the contractor is required to visit the site 18 times on a frequency basis of no more than 14 calendar days apart. Between November to February the contractor is required to visit the site 4 times on a frequency basis of no more than 1 calendar month apart.
The grounds maintenance specification says that the contractor will ensure an attendance poster is visible in all communal areas and that the contractor signs this on every visit. The detail of the poster must be agreed with the landlord prior to putting up.
The grounds maintenance specification also says that all hard surfaces should be weed, litter, leaf and moss free.
The landlord’s complaints procedure has two stages, the investigation stage and the review stage. The response time at the investigation stage is 10 working days and at the review stage 20 working days. At both stages where the timescales are not possible due to the specifics of the complaint, the landlord will agree an appropriate extension for response with the resident.
The Ombudsman’s Complaint Handling Code says that at stage two a response should be sent within 20 working days from the resident’s request to escalate the complaint. If this is not possible an explanation and a date when the stage two response will be received should be sent. This should not exceed a further 10 working days without good reason
The landlord’s compensation matrix says that the amount of a goodwill payment where there has been upset or inconvenience will be based on the impact on the resident and will be up to a maximum of £100.

ASB in the car park area of the property

On 5 June 2020 the resident reported ASB to the landlord, specifically that her car had been damaged by children playing in the carpark at the property and a child speaking to her inappropriately.
In August 2020 the resident made a formal complaint to the landlord about its response to her reports of ASB and provided the landlord with videos recording of children playing in the carpark.
The landlord sent the resident its stage one response to her complaint on 27 August 2020. In its complaint response the landlord said that:
1. Following the resident’s report of ASB it had sent warning letters to the neighbours she had advised were involved in the incident.
2. It had spoken to the resident about the ASB on 25 June 2020.
3. It had produced an action plan in which it had advised the resident to continue to keep an incident log as well as gathering any evidence using the CCTV and agreed to review the case on 7 July 2020.
4. It had conducted a site visit on 6 July 2020.
5. It had spoken with the resident’s neighbour on 6 July 2020 and discussed an action plan which was to be reviewed on 20 August 2020.
6. It acknowledged that a case review did not take place on 7 July 2020 as agreed.
7. On 15 July 2020 it had responded to emails from the resident and advised her that it had spoken to the neighbour and agreed an action plan which was to be reviewed on 20 August 2020. The landlord said it would “check in” with the resident on 23 July 2020 and 6 August 2020.
8. It acknowledged that it did not contact the resident as agreed on 6 August 2020.
9. It had reviewed the ASB case on 18 August 2020 and found that the videos provided were not considered to be ASB nor a tenancy breach.
10. It would continue to review the case periodically with the next review taking place on 1 September 2020.
11. It had concluded that the actions it had taken in response to the resident’s reports of ASB were in line with its policy.
12. It apologised that it had not reviewed the case on 7 July 2020 or contacted the resident on 6 August 2020 as agreed and offered the resident £35 compensation.
On 3 September 2020, the resident asked the landlord to escalate her complaint to the formal review stage of its complaints procedure. The landlord sent the resident its response on 25 September 2020. In its response the landlord declined to escalate the complaint to a formal review as it was satisfied that it had acted in accordance with its policies and procedures and said that:
1. It had reviewed the video evidence provided by the resident showing children playing in the car park and found no evidence of any breach of tenancy.
2. It had spoken to the resident’s neighbours about children playing in the car park around vehicles.
The landlord’s letter dated 25 September 2020 was its final response to the complaint confirming that the complaint had exhausted the landlord’s internal complaints process.
The resident made a further formal complaint to the landlord on 30 March 2021 about its response to her previous reports of children playing in the car park. The outcome she was seeking was for the landlord to speak to the parents and to ask the children not to play ball games in the car park.
The landlord sent the resident its stage one complaint response on 16 April 2021. The landlord:
1. Again said that the evidence the resident had provided, and the claims of ASB and nuisance from children, were not within the remit of ASB and did not show evidence for it to be able to take any enforcement action against the parents of the children.
2. Said that it no longer put up ‘no ball game’ signs as they were not enforceable, and the police also considered that ball games were an acceptable form of play.
3. Said that it had written to the resident’s neighbours advising them that the car park might not be safe for children to play in due to cars entering it and asking the children to respect other people’s property.
4. Explained that if damage was caused to property by ball games this should be reported to the police in the first instance as it would be classed as criminal damage. The landlord would then be guided by any action taken by the police and any tenancy enforcement action following this would “be reasonable and proportionate to the incidents that are proven.”
5. It could not currently enforce any tenancy conditions as the allegations the resident had made did not show any ASB or vandalism to property.

The ground maintenance service provided in return for the service charge

During the summer and autumn of 2020, the resident raised concerns with the landlord about the ground maintenance at the property. The resident said that the landlord’s contractors were not visiting the property to carry out maintenance as often as required under the landlord’s grounds maintenance specification.
In October 2020 the landlord carried out a site visit and asked the contractor to attend the property to clear moss.
On 28 October 2020 the resident sent an email to the landlord saying that she had been visited twice by the landlord’s contractor who she said had knocked on her door to “ask me why I’m complaining.” The resident said that she told the contractor that she was paying a service charge for a four weekly clean of the car park area and the contractor had told her that was incorrect. The resident said that the contractor had no identification, wasn’t wearing personal protective equipment and was rude. She was concerned that the landlord had given her personal details to the contractor and that the contractor had said that cleaning shouldn’t take place every four weeks. The resident also sent the landlord a video showing the grounds staff sweeping moss from the car park into her garden.
On 10 December 2020 the resident made a complaint to the landlord that the ground maintenance at the property wasn’t being carried out properly.
The resident sent a further email to the landlord on 16 December 2020 saying that the contractors had attended the property that day for only two minutes and had blown rubbish into residents’ gardens.
On 7 January 2021 the resident spoke to the landlord about the complaint and said that:
1. She had paid a service charge since she moved to the property three years before and she didn’t think maintenance was being properly carried in the communal areas.
2. She didn’t think that the contractors were attending the property as often as they should under the grounds maintenance specification.
3. There were oil splashes on her car parking space.
4. There were paint splashes on the area outside the carpark.
5. The contractor had twice knocked on her door without any identification.
6. The moss hadn’t been killed.
7. She had filmed the contractors on 16 December 2020 and said they were only at the property for 3 minutes 15 seconds and blew debris into her parking space.
8. She wanted:
  1. A formal apology from the landlord for giving her details to the contractor and for the contractor knocking on her door.
  2. The oil patch and paint splashes to be removed.
  3. The car park to be maintained.
  4. A service charge refund for work which she said had not been done.
On 19 January 2021 the resident spoke to the landlord and said that the contractors had swept moss from the communal area into her garden. Later the same day the landlord sent the resident an email saying it had asked for the contractors to attend her property and clear the moss out of her garden.
On 20 January 2021 the landlord sent the resident its response to her complaint and said:
1. In line with its grounds maintenance policy the contractors should be attending fortnightly in summer and once monthly in winter. The contractors had provided the landlord with the dates they had attended to “complete their work which fell in line with the times they were meant to attend.”
2. Its internal environmental contractor team had confirmed that the maintenance included picking up litter and clearing weeds and moss from the car park only.
3. The contractors would be able to clean the oil from the parking space and the paint splashes, but this would be rechargeable to the resident as an additional service. If the resident wished for this to be arranged the landlord asked her to get in touch.
4. It noted that it had had to request the contractor to clear moss following the site visit in October 2020, as this had been outstanding. The landlord upheld this aspect of the complaint as the service the resident had received had not been in line with its contract and a further visit had been required to rectify this.
5. It had taken on board the resident’s comments concerning the amount of time spent on site when carrying out the maintenance and this had been fed back to the contractors to ensure all aspects of the maintenance contract were being completed.
6. That when it received enquiries from customers, it was usual for its contractors to speak directly to customers as this could often resolves matters more quickly and the contractors could see if there was anything more that could be done whilst on site.
7. That its contractors were part of its data sharing agreement and if issues occurred that were relevant to the service the contractors provided, it was able to share information to resolve the issues.
8. It had spoken to the member of the contractor’s staff who had spoken to the resident. It thanked the resident for bringing the incident to its attention as it would not expect any of its contractors to be intimidating.
9. It apologised if the contractor had behaved in a manner that it would not expect, and it had escalated the matter to its environmental team who had dealt with it “appropriately”.
10. It thanked her for sending in the video from 28 October 2020 showing that the moss from the car park has been swept into the resident’s garden and not picked up. The landlord recognised this as a service failure and had requested the contractor to clear this on their next visit.
11. It apologised for the delay in responding to the complaint.
12. It offered to pay the resident £45.00 compensation made up of £10 for poor workmanship and £35 for the delay in responding to the complaint.
On 25 January 2021 the contractor sent the landlord emails saying it could “confirm the ‘moss swept into the shrub bed’ was about as big as a 50pence piece.” and “In regard to the minimal moss being blown/ swept into the shrub it is best practice that a small percentage of detritus is left and blown into shrub beds / under hedges as this provides new nutrients to the soil.”
On 27 January 2021 the resident sent an email to the landlord asking to escalate her complaint to the review stage of the landlord’s complaints process as:
1. The landlord had stated that the contractors had attended the property in line with its contract, but it had not given any dates or proof.
2. She did not think that she should have to pay for the removal of the oil and paint marks.
3. The contractor was still only visiting for a couple of minutes and blowing debris around the car park, there had been no litter picking or use of a rake.
4. The moss that had been swept into her garden hadn’t been removed.
On 28 January 2021the landlord sent the resident an email acknowledging her request to escalate her complaint and saying it would provide a response by 24 February 2021.
On 18 February 2021 the resident sent an email to the landlord saying that there had been another two minute visit from the contractor that day with “no sweeping or rubbish picked up just leave (sic) blowing and a little bit of moss scraped. The moss still remains on my property.”
On 24 February 2021 the landlord sent an email to the resident saying that its complaint response would be delayed “due to unforeseen circumstances” but it would ensure that it was sent to her by 5 March 2021.
On 5 March 2021 the landlord sent the resident an email saying its complaint response would be further delayed as the relevant director was not in the office. The landlord said that its complaint response would be sent to her by 10 March 2021.
On 10 March 2021 the landlord sent the resident its complaint review response saying:
1. It had studied the dates its contractor had attended the communal areas at the property and had cross referenced these with its internal systems and had found them to be aligned with the dates that the contractor has provided.
2. It did not ask the contractor for proof of their visits, instead, to monitor the service, its rangers and estates team carried out regular patrols of the building and communal areas and would report any issues.
3. In relation to the resident’s query concerning how long the contractors were spending on site it had been in contact with the other residents to carry out a survey concerning their views on how the contract was performing. One of the residents felt that the shrubs could do with further cutting and potentially this had not been addressed in the winter months. The landlord had addressed this with its estates team to ensure the shrubs were maintained within the contract specification as well as cleaning the moss from the resident’s garden.
4. All other residents had confirmed they were happy with the service that has been provide and “would like to keep this service in place, in order to maintain the current state of the car park”. Taking this into consideration, the landlord said that it was unable to remove or refund the service charge to the resident.
5. It had reviewed the contract and confirmed that the service charge did not include the removal of the oil stain and if the resident wished this to be removed this would be an additional charge.
6. It repeated its offer of £45 compensation.
The landlord’s letter dated 10 March 2021 was its final response to the resident’s complaint confirming that the complaint had exhausted its internal complaints process.

Assessment and findings

In reaching decisions about the resident’s complaints, we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case.

The landlord’s response to the resident’s reports of ASB in the car park area of the property

It is evident that this situation has been distressing to the resident. It may help to firstly explain that the Ombudsman’s role is not to decide if the actions of the neighbour’s children amounted to ASB, but rather, whether the landlord dealt with the resident’s reports about this appropriately and reasonably.
The further complaint made by the resident on 31 March 2021 about the landlord’s response to her reports of ASB has not exhausted the landlord’s internal complaints process and therefore does not form a part of this investigation. However, details of the complaint and the landlord’s stage one response have been included in the background section of this report for completeness.
In response to the resident’s reports of ASB the landlord:
1. Sent warning letters to the neighbours
2. Advised the resident to continue to keep an incident log as well as gathering any evidence using the CCTV.
3. Spoke to the resident about the ASB on 25 June 2020.
4. Carried out a site visit on 6 July 2020.
5. Spoke with a neighbour on 6 July 2020 and discussed an action plan which was to be reviewed on 20 August 2020.
6. Reviewed the ASB case on 18 August 2020 and decided that the videos provided by the resident were not considered to be ASB or a tenancy breach.
7. Said that it would continue to review the case periodically with the next review taking place on 1 September 2020.
8. Concluded that the actions it had taken in response to the resident’s reports of ASB were in line with its policy.
The landlord’s actions set out in the previous paragraph were an appropriate response to the resident’s allegations of ASB, demonstrating that the landlord had taken steps to consider how to resolve the ASB reports in accordance with its policy and procedure in response to the resident’s allegations. Ultimately though there was a lack of conclusive evidence of the ASB to support the landlord taking further, more formal action and so it was reasonable that the landlord did not do so.
As set out in paragraph 3 above, whilst the landlord’s ASB policy says that children playing ball games and youths congregating are examples of behaviour that is not ASB, the resident’s tenancy agreement says that examples of behaviour which will or is likely to, or is capable of, causing a nuisance and / or annoyance include playing ball games close to someone’s house.
The landlord acted appropriately in reviewing the evidence to decide whether there had been a breach of tenancy and there is no evidence of maladministration in this regard. However, the wording of the tenancy agreement and the ASB policy about ball games is confusing and the Ombudsman has made a recommendation concerning this below.
In its response to the resident’s complaint the landlord also:
1. Acknowledged and apologised that a case review did not take place on 7 July 2020 as agreed.
2. Acknowledged and apologised that it did not contact the resident as agreed on 6 August 2020.
3. Offered the resident £35 compensation.
When there are failings by a landlord, as is the case here, the Ombudsman’s role is to consider whether the redress offered by the landlord (acknowledgment of failings, an apology and compensation) put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles; be fair, put things right and learn from outcomes.
The landlord acted fairly by acknowledging its failings and apologising.
The compensation offered by the landlord was appropriate and proportionate to impact of its failings on the resident as:
1. Whilst the landlord did not carry out the ASB case review on 7 July 2020, it informed the resident on 15 July 2020 (six working days later) that it had been in contact with the neighbour and would be reviewing the case on 20 August 2020.
2. Whilst the landlord did not contact the resident as agreed on 6 August 2020 there is no evidence that this had an impact on the outcome of the complaint.
3. The impact on the resident of the landlord not carrying out the case review on 7 July 2020 and not contacting the resident on 6 August 2020 was therefore low.
4. The level of compensation offered (£35) was within the range set out in the landlord’s compensation matrix for goodwill payments for delay where the impact upon the resident was low.
The Ombudsman notes that it would have demonstrated good practice by the landlord if it had detailed what steps it was taking to ensure that, going forward, it would not make similar service failures. However, the landlord’s overall response was fair.

The landlord’s response to the resident’s reports of problems with the ground maintenance service provided in return for the service charge

During the course of this investigation both the resident and the landlord have informed this Service that there has been ongoing correspondence about whether the contractors have been attending the property to carry out maintenance in accordance with the schedule of visits set out in the grounds maintenance specification. The Ombudsman’s role is to investigate complaints brought to it that have exhausted a landlord’s internal complaints process. This investigation report, therefore, concerns the matters which were the subject of the resident’s formal complaint dealt with in the landlord’s final response dated 10 March 2021.
In its complaint response the landlord acted reasonably in:
1. Apologising to the resident about the contractor’s member of staff’s behaviour.
2. Speaking to the contractor’s staff member.
3. Escalating the matter to its environmental team.
4. Agreeing to remove the oil and paint stains and recharge this to the resident as this was not work which was covered by the grounds maintenance specification and therefore covered by the service charge.
In its complaint response the landlord said that it did not ask the contractor for proof of their visits. As set out in paragraph 7 above the grounds maintenance specification says that the contractor will ensure an attendance poster is visible in all communal areas and that the contractor signs this on every visit. Whilst it may be difficult to find a suitable place for an attendance sheet when the communal area is a carpark, as in this case, the landlord acted inappropriately in not considering what alternative proof of attendance by the contractors could be provided to residents.
In its response to the complaint the landlord acknowledged that there had been service failure concerning the contractors sweeping moss into the resident’s garden. The landlord requested the contractor to clear this on their next visit and offered £10 compensation for poor workmanship. The minimum amount of compensation set out in the landlord’s compensation matrix for service failure for quality that had a low impact on a resident is £35. Therefore, the level of compensation offered by the landlord was inappropriate.
Therefore, for the reasons set out in paragraphs 49 and 50 there was service failure by the landlord in response to the resident’s reports of problems with the ground maintenance service provided in return for the service charge.

The landlord’s complaints handling

The complaint about the grounds maintenance was made on 10 December 2020 and the landlord issued its response on 20 January 2021, 20 working days later and 10 working days after the 10 working day timescale set out in its complaints policy. However, the landlord apologised for the delay and offered £35 compensation.
The resident asked to escalate the complaint to the review stage on 27 January 2021. The landlord provided its response on 10 March 2021, 30 working days later and 10 days after the 20 working day timescale set out in its complaints policy. However, the landlord had informed the resident that its response would be delayed beyond the 20 working days, and the response date did not exceed the additional 10 working days set out in the Ombudsman’s Complaints Handling Code for providing a stage two response (see paragraph 10 above).
The landlord’s delays in its complaints handling at stage one were inappropriate and caused the complainant to incur avoidable time and trouble in pursuing the complaint.
The Ombudsman considers that the landlord’s response to its complaints handling failures (an apology and compensation) was proportionate to the time and trouble incurred by the resident, and that the landlord has made redress to the resident which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Determination (decision)

In accordance with paragraph 55 of the Housing Ombudsman Scheme, the landlord has offered reasonable redress for:
1. The failures identified in its response to the resident’s reports of ASB.
2. The failures identified in its complaints handling.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of the complaint about its response to the resident’s reports of problems with the ground maintenance service provided in return for the service charge.

Reasons

The landlord did not carry out the ASB case review and contact the resident as agreed. However, it has acknowledged and apologised for these failures and awarded proportionate compensation.
The landlord did not consider what alternative proof of attendance by the contractors could be provided to residents in accordance with the provisions of the grounds maintenance specifications. The level of compensation offered by the landlord in respect of its service failure concerning sweeping moss was inappropriate.
There were delays in the landlord’s complaints handling but the landlord apologised and the level of compensation offered was proportionate to the time and trouble incurred by the resident.

Orders

The landlord is ordered within four weeks of the date of the determination to pay the resident £75 compensation for the distress and inconvenience incurred by the resident as a result of the landlord’s failings in responding to the resident’s reports of problems with the ground maintenance service provided in return for the service charge.
The landlord must update this Service when payment has been made.
The landlord is ordered within four weeks of the date of this determination to consider what proof of attendance can be provided by the contractors to residents and to update residents and this Service.

Recommendations

It is recommended that the landlord consider the wording of its ASB policy and tenancy agreement to ensure that there is no contradiction about how it considers the playing of ball games.