The Extracare Charitable Trust (202210871)

REPORT

COMPLAINT 202210871

The Extracare Charitable Trust

21 June 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 response to the resident’s concerns about communal landscaping. In particular:
   1. The size of the designated “dog area”.
   2. Fencing which is restricting access to some areas.
   3. The use of “shingle” when replacing an area of grass.
2. This Service has also considered the landlord’s associated complaint handling.

Background

3. The resident and landlord have a shared ownership agreement.
4. Following a period of consultation with residents, the landlord completed landscaping work in the communal garden area of the resident’s property. This included installing a designated area for dogs, erecting trellis fencing and replacing some of the turf with shingle.
5. The resident made a complaint to the landlord about the landscaping in April 2022. They said that:
   1. The area created specifically for dogs is “less than 50%” of the size that was agreed during the consultation period.
   2. The landlord had replaced turf with shingle, which was “unstable and unsafe for walking”. This had not been discussed with residents prior to installation.
   3. Trellis fencing had been erected to reduce the risks associated with the use of shingle, but without consulting with residents. This had also caused an issue with residents having to travel further to gain access to certain areas.
   4. The landlord should replace the shingle with paving slabs or use sand to “firm up” the shingle.
6. The landlord provided its stage one complaint response in May 2022, addressing the resident’s concerns. It said that it had found no service failure during its investigation and explained the following:
   1. There had been no “adverse feedback” from other residents.
   2. Plans were changed “mid-build”, following resident involvement, as the dog area did not meet specific needs. This had been agreed after engaging with dog owners, who had confirmed acceptance of the changes.
   3. The space provided was larger than before and now included an area for wheelchair users.
   4. The area where shingle had been used to replace turf was not intended to be walked on.
   5. The trellis fencing had been identified and erected as a required improvement due to loose shingle.
7. The landlord acknowledged the resident’s request to escalate the complaint to stage two of the complaint process in May 2022. The request outlined the resident’s dissatisfaction with the landlord’s stage one response, specifically:
   1. The stage one response did not accurately reflect the events that occurred and suggestions that had been made were ignored by the landlord.
   2. The fenced area was smaller than that agreed in 2018 and the paved area had been placed after the landlord realised shingle was a “poor decision”.
   3. The use of shingle had been unsuitable, and residents required access to some areas from both sides, which the fence prevented.
8. The resident contacted the landlord again in July 2022, as they had not received a stage two complaint response. The resident reaffirmed their complaint points and said that a meeting had taken place in which residents agreed the fencing had been “inappropriately placed”.
9. The landlord issued the resident with an apology in September 2022 which referred to the delays in issuing a stage two complaint response. In October 2022, the landlord issued its response and acknowledged there had been a failure in handling the resident’s complaint. Of the complaint raised, it said:
   1. There had been errors in communication relating to the dog area and keeping the resident informed, but it did not accept there had been a substantive failure.
   2. Landscaping issues had been raised and resolved with all other residents, but the resident remained unhappy.
   3. It did not agree that areas had been made inaccessible. The newly landscaped area consisted of a fenced off area for dogs, a central area for sitting (wheelchair accessible) and a “nature garden” with no “hard landscaping”.
   4. The area for dogs had not been reduced and any changes it had made did not contravene planning obligations.
   5. The use of shingle had not been inappropriate and had replaced an area which had not been getting sunlight, therefore turf had “died” and shingle had been used to improve the visual appearance.
   6. Due to the complaint handling failures, it offered £50 compensation.
10. The resident contacted this Service to express their continued dissatisfaction with the landlord. They said that plans submitted by the landlord had been vastly different to those agreed. To put things right, the resident requested an apology from the landlord, the fencing to be made in line with the agreed plans and for the shingle to be replaced with concrete slabs.

Assessment and findings

The landlord’s response to the resident’s concerns about communal landscaping

11. The tenancy agreement provides information about the obligations of both the landlord and resident. The agreement explains that “(2.5) the landlord may add to, withhold or vary the services and/or the communal facilities if he considers the addition, withholding or variation to be necessary or desirable for the comfort or convenience of the leaseholders of the apartment and of the other apartments even if it increases the landlords costs, or if he is required to do so by a competent authority.”
12. The tenancy agreement clause shows that the landlord had a legal right to change communal facilities if it found those changes to be “necessary or desirable”. Therefore, this Service has not considered the decisions made by the landlord when landscaping the communal garden area as the landlord was legally entitled to do this. However, it has investigated the way those decisions were communicated to the resident, the response to concerns of accessibility and whether the landlord’s responses were appropriate.
13. The resident contacted the landlord to raise their concerns about landscaping on 11 April 2022 and the landlord’s internal complaint process was exhausted by 27 October 2022. This Service expects a landlord to acknowledge complaint points and, where applicable, provide an explanation for decisions it had made which might have impacted the resident.
14. The landlord recognised the resident’s main concerns as relating to the size of the dog area, the use of shingle in parts of the garden and fencing it had erected causing restrictions to access, particularly for disabled residents. During the complaint process, the landlord provided an explanation for each of those concerns. It explained that the size of the dog area had not been reduced, the areas where shingle had been used were not intended for walking on and the fencing had been erected to prevent loose shingle from being spread around the garden. The evidence provided shows that, throughout the complaint process, the landlord explained why changes had been made to the plans agreed in 2018. It also gave a response to each of the resident’s complaint points.
15. This Service has found the responses the landlord gave to be clear and provided context for the decisions it had made when landscaping the communal garden. This Service understands that the landlord’s decisions may not have corroborated with the opinion of the resident, but it has found the explanations for those decisions to be appropriate. The landlord also demonstrated an understanding that it could have done better in communicating with the resident, particularly regarding the dog area.
16. In a complaint response to the resident, the landlord mentioned there had been an absence of “adverse feedback” from other residents, which it used as justification for decisions it had made. It is important to note that an absence of other complaints or feedback does not suggest wrongdoing did not occur. It should also not detract from the importance or relevance of an individual resident’s complaint.
17. While there may have been some missed opportunities in providing the resident with information about its decisions, the landlord responded reasonably to the complaint and, in the Ombudsman’s opinion, provided sufficient information when responding to their concerns. Therefore, this Service has found no maladministration in the landlord’s response to concerns about the communal landscaping.

The associated complaint handling

18. The Ombudsman’s Complaint Handling Code provides a framework for the effective handling and prevention of complaints for landlord members. The Code gives guidance on the maximum timescales for a response. Those timescales are set out as:
    1. Five working days for logging and acknowledging a complaint.
    2. 10 working days from the receipt of a complaint at stage one of the complaint process.
    3. 20 working days from the receipt of a request to escalate a complaint to stage two of the complaint process.
    4. The Code also allows for an additional 10 working days at stages one and two if the landlord requires an extension to the deadline to issue its response.
19. The resident first expressed their dissatisfaction with the landlord’s response to their concerns about landscaping on 11 April 2022. The landlord acknowledged the complaint on 12 April 2022 and issued a stage one response on 4 May 2022, some 15 working days later. There is no evidence to suggest the landlord communicated with the resident to explain there would be a delay in responding, however the delay had been a minor one and did not adversely impact the resident.
20. The resident requested escalation to stage two of the complaint process on 6 May 2022, which the landlord acknowledged on the same day. The resident raised concerns that they had not received a response on 7 July 2022. The landlord apologised on 12 September 2022 and provided its stage two complaint response on 27 October 2022. This demonstrated a substantial delay of 121 working days.
21. The evidence provided clearly shows complaint handling failure by the landlord which required action to put things right for the resident. During the complaint process, the landlord provided the resident with an apology for the delays and agreed that there had been a failure in handling their complaint. To acknowledge the failure, it offered to pay £50 compensation.
22. While this Service acknowledges the landlord’s willingness to compensate the resident for its failures, it has found the offer of £50 to not be proportionate to the substantial delays experienced by the resident.
23. The Ombudsman’s approach to compensation is set out in our Remedies Guidance, published on our website. The guidance suggests that awards of £100 to £600 may be appropriate for cases where the landlord has made an error and the landlord has acknowledged failings, but the offer was not proportionate to the failings identified by our investigation.
24. Given the substantial delay, specifically in issuing a stage two complaint response, this Service has found an award of £150 to be appropriate. The landlord failed to provide the resident with information sooner and missed an opportunity to resolve the complaint earlier.

Determination

25. In accordance with paragraph 52 of the Housing Ombudsman Scheme, this Service has found no maladministration by the landlord in its response to the resident’s concerns about communal landscaping.
26. In accordance with paragraph 52 of the Housing Ombudsman Scheme, this Service has service failure by the landlord in its handling of the associated complaint.

Orders and recommendations

Orders

27. The landlord is ordered to pay the resident compensation of £150 for the service failure in its handling of the associated complaint. If the landlord has already made a payment of £50, offered during the complaint process, this is to be deducted from the amount ordered.
28. The landlord must provide evidence of compliance with the above order within four weeks of the date of this report.
29. The landlord should provide the resident with an apology for failing to keep the resident informed of changes to the agreed landscaping plans within an appropriate time.

Recommendations

30. The landlord should review its process of updating residents when development plans (communal or otherwise) are amended, to provide clear and timely explanations for any associated changed.
31. The landlord should run refresher training with all relevant staff on complaint handling, particularly on adhering to the applicable timescales at all stages of a complaint.