Rooftop Housing Association Limited (202203134)

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REPORT

COMPLAINT 202203134

Rooftop Housing Association Limited

5 September 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 complaint is about the landlord’s handling of reported issues with the resident’s garden.
  2. The Ombudsman has also considered the landlord’s complaint handling as part of this investigation.

Background

  1. The resident moved into her new build, shared ownership property in October 2021.
  2. The developer built the property and sold it to the landlord. The landlord entered into a shared ownership arrangement with the resident.
  3. The resident recognised her lawn was waterlogged after rainfall. The resident reported this to the landlord in February 2022. The landlord sent someone to investigate in April 2022 and realised it was for the developer to investigate. The developer installed drainage channels in July 2022 and the landlord asked the resident to keep it informed about the performance of the new drainage channels.
  4. The resident did not believe the repairs were satisfactory and took her complaint through the landlord’s complaint process. In the landlord’s final response, it offered £400 for the delays in progressing her complaint and committed to review the guidance given to new shared owners to clarify rights and responsibilities.
  5. The resident remains dissatisfied stating that the lawn is bumpy and uneven meaning she cannot use the garden. As a resolution the resident would like an apology and for her garden issue to be resolved, either through the provision of compensation or the landlord carrying out the work.

Assessment and findings

  1. When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution:

a.         Be fair – treat people fairly and follow fair processes;

b.         put things right, and;

c.         learn from outcomes.

Scope of the investigation

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction and is governed by the scheme. The Ombudsman must determine whether a complaint comes within their jurisdiction. The Ombudsman seeks to resolve disputes wherever possible but cannot investigate complaints that fall outside this.
  2. Paragraph 42(k) of the scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion concern matters which fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.
  3. It may be appropriate for the resident to bring this case to the New Homes Ombudsman Service. The New Homes Ombudsman Service exists to help customers resolve issues between residents and developers.

The landlord’s handling of the reported issues with her garden.

  1. From time to time there will be defects and snagging in new build properties which may not have been identified at the point of handover. Shared owners are therefore protected by the defect period and the warranties in place (for the resident, the NHBC was the respective warranty). The existence of defects alone would not constitute a failure in the landlord’s service.
  2. The resident received a new homeowner pack which provided information about the bricks and mortar of the house but did not contain any information about the garden. It did not advise the resident of practical tips to ensure the lawn takes.
  3. This service has seen evidence the resident was advised she must report all defects to the landlord who would arrange for the developer to carry out the work. Complying with this advice, in February 2022 the resident reported the waterlogged lawn to the landlord. The landlord incorrectly classified the repair as its own before it realised it was the developer’s responsibility and subsequently reported the issue to the developer. For the resident this created a 2-month delay in getting the defect reported to the correct organisation and created confusion as to who was responsible for carrying out work.
  4. The Ombudsman would expect the landlord to act as an appropriate intermediary coordinating any defect issues between the developer and resident, to ensure that defects were appropriately managed and completed to a satisfactory standard. This would also include ensuring that any reported defects were passed on to the developer and arranged within a reasonable amount of time.
  5. The landlord’s internal emails acknowledge difficulties with the developer stating, “They are aware of the issue with the property garden next door, so it seems reasonable to me that this is affecting both properties…Are you able to speak with Customer Care please and see if they can send someone to have a look at her garden?” This displays the landlord recognised the need for the developer to visit the property and inspect. The developer was alerted to the defect on 1 April 2022, and their representative visited the resident on 23 May 2022.
  6. It is appropriate at this time to recognise the landlord was not responsible for carrying out work to remedy defects and this remained a contractual obligation of the developer, therefore as previously mentioned it may be advisable for the resident to approach the New Homes Ombudsman Service. However, this service would expect the landlord to explore every available option to ensure the developer complies with any applicable contract. For example, as in this case there was a warranty with the NHBC if the developer does not deal with these defects within a reasonable period, then the resident could use the NHBC resolution service.
  7. Despite this service’s involvement there were further delays, and the resident chased the landlord on at least 14 occasions in addition to contact with the developer. The developer laid drainage channels in the resident’s garden on 6 July 2022, 5 months after the initial complaint was logged with the landlord. This delay was unreasonable as the resident was not informed what, if any, action was going to be taken and how long it would take. This affected the resident to the point she stated she was depressed because she felt her concerns regarding her lawn were not being believed.
  8. The resident remained dissatisfied following this work as her lawn was still uneven. The landlord (as part of its stage 1 response) told the resident that the developer did not intend to carry out any further work as grass was growing and the garden was level. It also referred the resident to online guides on how to look after the lawn.
  9. As the resident’s neighbours had the same problem as her and had their garden levelled and re-turfed, the resident remained dissatisfied. This service has seen evidence of discussions concerning the resident’s and the neighbour’s garden between the developer and the landlord and internal landlord emails. The issues experienced by both adjoining properties appear the same. The neighbour reported this sooner and once the developer remedied their garden, the resident reported her issues. This service has not seen evidence of consideration whether the repairs to the neighbouring plot have impacted on the resident’s garden, or whether she should receive the same package of care.
  10. Further emails considered by this service state the developer’s position is that the uneven lawn came about as it had not been sufficiently maintained. This service is unable to determine on this issue.
  11. The landlord wrote to the resident to advise the defect warranty period for the property was due to end in the coming month. The landlord advised the resident to list any defects on the form. This was an appropriate course of action for the landlord to take and an opportunity for the resident to alert the developer of any considered outstanding work. This service has viewed the defects form, and there were no defects listed by the resident.
  12. The evidence shows there was confusion for the resident on who was responsible for carrying out works to the property. It is reasonable to consider the landlord missed opportunities to provide clarity on its responsibilities. However, prior to entering into a shared ownership lease, the resident had the opportunity to seek independent legal advice to establish her own responsibilities and those of others in connection with her new build property.
  13. Through the complaints process the landlord has advised it would review the shared ownership new homeowner guidance to make the rights and responsibilities clearer regarding areas that fall outside any formal guarantees and warranties. This illustrates the landlord believes there has not been sufficient clear information presented to the resident, leading to this complaint. It also displays an effort by the landlord to learn from this complaint and make changes to prevent a repeat in the future.
  14. Ultimately, the resident experienced issues with the drainage and the unevenness of her lawn. There were delays, but the landlord in accordance with its obligations liaised with the developer and secured the introduction of drainage channels. The developer considered the uneven nature of the lawn was due to improper care. The landlord has recognised an opportunity to improve its communications on responsibilities for new homeowners/shared owners.
  15. This service finds there was service failure from the landlord in its handling of reported issues with the resident’s garden. This is because of undue delays in exchanging information with the developer to enable a timely management of the reported issues.

Complaint handling

  1. The Ombudsman’s Complaint Handling Code (the code) lists the expectations of the landlord when handling complaints. The code states that a stage 1 complaint must be responded to within 10 working days and stage 2 within 20. The landlord’s complaint policy complies with this. The landlord’s stage 1 complaint took 30 working days, which did not adhere to its service standards and created further delays and frustration for the resident.
  2. The code also states the landlord shall address all points raised in the complaint and provide clear reasons for decisions. There are elements of the complaint which were not fully explored by the landlord, such as the resident’s claim of the lawn being uneven which the landlord responded to by saying it was level.
  3. The code also places responsibility for understanding the complaint on the landlord and it should seek clarification if there is any ambiguity. There is evidence of complaint misunderstanding. For example, in her stage 1 complaint the resident stated her desire for the lawn to be re-turfed, the landlord responded to this. Then it was re raised in the stage 2 complaint, but the landlord stated it did not form part of the resident’s original concern from February 2022 and her request was co-incidental with the neighbour’s lawn being re-turfed.
  4. The landlord advised the neighbour’s lawn was re-turfed due to a leatherjacket infestation, however, the resident maintains the developer installed drainage channels in her neighbour’s garden and at the same time re-turfed their lawn. After this the leatherjacket infestation occurred and the developer had to re-turf their lawn again. Further evidence of complaint misunderstanding is shown in the landlord’s stage 2 response when it advised the developer laid new pieces of turf during the installation of the drainage channels. The resident disputes that any new turf has been laid in her garden, these misunderstandings could have been appropriately addressed by communicating with the resident prior to issuing the complaint responses. This is not in line with the code and this service’s dispute resolution principles of treating people fairly and putting things right.
  5. The resident has experienced distress and a loss of confidence in the landlord by the course of action it has taken. The landlord’s actions following this report is critical to rebuilding this relationship. The resident believed the landlord discriminated against her because the complaint process and the developer’s actions did not appear fair and open to her.
  6. This service has been able to establish there was a failure in the landlord’s complaint handling. However, we have not seen any evidence to support the resident’s concerns that she was discriminated against. Further, the landlord has offered £400 compensation for its failures in complaint handling. This amount is at the highest range of compensation that would be considered by this service for the evidenced complaint handling failures.
  7. This service finds the landlord offered reasonable redress in respect of its failings in complaint handling.

Determination

  1. In accordance with paragraph 52 of the scheme, there was service failure in the landlord’s handling of the reported issues with the resident’s garden.
  2. In accordance with paragraph 53(b) of the scheme, there was reasonable redress in respect of the landlord’s complaint handling.

Orders

  1. The landlord is to issue a written apology to the resident for the service failures identified in this report.
  2. The landlord is to pay £200 compensation for the distress, inconvenience, and delays caused by its actions in response to the residents reported concerns with the garden.
  3. The landlord is to confirm compliance with these orders to this service within 4 weeks of the date of this report.

Recommendation

  1. It is recommended the landlord reoffer (if it has not already been paid) the £400 compensation as per its final complaint response for the time, trouble, and delays in its complaint handling.
  2. While the Ombudsman appreciates that with new builds, the landlord will often be relying on third parties to undertake works, the landlord should still endeavour to provide a good and prompt repair service for its residents. It is clear from this case, however, that there were issues with the communication and the level of service provided. If the landlord has not already, it should arrange to meet with developers at prebuild stage to agree a streamlined approach for assessing defects, arranging repairs, and managing resident expectations. The landlord should reflect on this case and should ensure that moving forward, it is effectively managing and monitoring the performance of such third parties to ensure that contractual obligations are met.
  3. The landlord should consider a review of the complaint handling process for this complaint in accordance with the code to ensure it can apply learning for future cases.