The Guinness Partnership Limited (202006419)

REPORT

COMPLAINT 202006419

The Guinness Partnership Limited

28 September 2021

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 response to a dispute over the maintenance of the garden area in the front of the resident’s property.

Background and summary of events

Background

The resident is an assured tenant of the landlord and took up the tenancy in 2006. The resident has stated that she is disabled.
The property is a three-bedroom house. The property has a front garden area. This is a grassy area which has shrubs/a tree stump beneath the window.
The resident said:
1. When she first moved into the house in 2006 the landlord was maintaining the area. Then, about 6-7 years later, it stopped.
2. The landlord told the resident that the area was her responsibility to maintain. The resident disagreed. She said that everyone else’s front garden area in the estate was being maintained except for hers.
3. In 2018 the resident’s gas was shut off due to the impact of the overgrowth outside of the property. The overgrowth was covering the flue. The landlord cut back the overgrowth, to address the repair on that occasion. However, it continued to maintain that it was her responsibility to maintain the area.
In response to a previous formal complaint of 2018, the landlord said that it checked with several members of staff, and it advised that “the whole of the area outside of your property, including the garden and the bushes are your responsibility” (email of 2 August 2018).
In 2019 the resident said that she paid for the land registry information which showed that the garden area did not come with the property. The deeds have not been seen but the landlord subsequently accepted responsibility for the maintenance of the area.
The landlord said that it had always been responsible for the grass area, but it recently took back responsibility for the shrubs in July 2020 (email to resident 21 August 2020). The landlord maintained the whole of the front garden area from then onwards.

Summary of events

In July 2020 the resident contacted the landlord to request maintenance of the area outside of her property. The resident’s complaint of 15 July 2020 stated that she contacted the landlord “weeks” ago about the matter and she also said that she gave it details of the information she got from the land registry. The resident said that this showed that she was not responsible for the maintenance of it.
Around the same time, the resident had an interaction with one of the estate’s maintenance operatives on site about the issue. She explained that she pointed out the area which was overgrown, and he said it was “not my problem”. The resident considered that the operative’s conduct was “unacceptable”. She said that she had a recording of the incident (through a doorbell recording device).
On 9 and 10 July 2020 the landlord and resident discussed the maintenance of the front garden. The landlord’s notes state that there had not been a call back logged from the resident’s contact, instead the landlord noted the actions it would take following a call. These were that it would cut the additional growth back and weed kill it once the operative was back from leave. Following this, in a few weeks time, it would remove anything it could, prepare the area and put grass seed down.
The resident complained to the landlord about the matter on 15 July 2020 by telephone. She said:
1. She was not called back about her query.
2. She had been living at the property for 14 years and the gardeners had stopped cutting and taking care of the front garden and side garden. She was advised to speak to the gardening operative.
3. When she spoke to the gardening operative, he said that it was not his area.
The landlord logged the matter as a complaint about the way that the operative reportedly spoke to her and the dispute over the maintenance of the gardening area.
On 16 July 2020 the resident expressed her concerns further to the landlord by email:
1. The resident said that she paid for a copy of the land registry which confirmed that the front garden area outside of the property did not come with the property, it was therefore a communal area which was not her responsibility to care for.
2. She said that the whole of the square was cared for apart from the area outside of her property, this had been left to overgrow and looked “awful”. In the past she could not get access to her water meter and was concerned that the overgrowth would affect her boiler once more.
3. She had been told on 10 July 2020 that the area would be treated and grass seed put down but this had not happened.
On 16 July 2020 the landlord investigated the resident’s comments and noted that she had made further comments on social media about the landlord’s communication (lack of call back).
On the same day the landlord’s internal notes state that:
1. It left her a voicemail following her latest contact in which she said that she did not have a date for when the work would be completed. She was given the plan (work would be done that week) and a direct number to call.
2. Its operative did the works in the morning and spoke to the resident who appeared to be satisfied with what had been done.
In respect of the resident’s complaint about missed call backs, it considered that:
1. Following the resident’s contact, it did not call her back, instead it noted down the actions it would take to address the gardening maintenance.
2. At the beginning of the week commencing 13 July 2020 there was a call back request. It called and left a message.
3. The resident raised the lack of call backs and as part of her complaint about the landlord.
The call logs or acknowledgement of this with the resident have not been seen by the Ombudsman.
In respect of the works it undertook, its records state that:
1. On Tuesday 14 July 2020 the team was “cutting the grass and strimming in the area but did not do outside this property as they said there were workmen outside with tools and materials so they started out of the way”. The landlord said that it would revisit the area in the future to reseed and remove stumps.
2. The operative told the resident the next day (Wednesday 15 July 2020) that they would attend on Thursday to undertake the work.
3. The operative attended in the morning of Thursday 16 July 2020 to complete the first stage of the work and spoke with the resident. The operative’s notes state:
  1. It “trimmed down the weeds and has weed sprayed and cut the shrub back by the wall”.
  2. It removed the planting below the window and sprayed the area.
  3. It would now maintain the grass outside of the property at the same time as it would normally cut the grass.
  4. It would then remove anything left in a few weeks, prepare the ground and seed it. Further down the line it would get tree works undertaken, remove stumps left there, make good the area and reseed where it needed to.
  5. There was a shrub/tree to the side of the property and a tree stump that needed removing and this was added to a tree survey that would be undertaken with a view to having these removed at the time the tree works would be undertaken (subject to further considerations).
  6. Once completed, the area would be reseeded.
  7. The operative said that the resident was satisfied with this.
After the works were complete, the resident remained dissatisfied and the landlord’s investigation notes reflect its consideration of the concerns (20 July 2020):
1. The resident was unhappy that when the landlord came out to undertake the proposed work (on 14 July 2020) the disputed area was missed once more due to the landlord’s report of workmen being in the area with tools.
2. The landlord said that it apologised for the miscommunication, but it did not undertake the work for the reason it gave, which was that there were workmen and tools in the area.
3. The resident mentioned that previously the area was not maintained, and the boiler was cut off due to the overgrowth. The landlord said it would not investigate this report due to the timescale (as it was over six months ago).
4. The resident said that she had evidence of the operative’s conduct.
On 21 July 2020 the landlord asked the resident for her recorded evidence about the staff conduct. The resident said that she would need the operative’s permission to share this.
The stage one response was issued on 22 July 2020. The landlord said:
1. The resident flagged the unaddressed area in July 2020; this was not maintained when the estate team had been to carry out ground maintenance.
2. The landlord requested for the estate team to make sure this was complete on the next visit. It did not log a call back request. The social media staff told the resident that this would be passed on, so that the area was not missed again on the next visit.
3. On 9 July 2020 the resident contacted the landlord again and said the area had been missed. A call back was sent to the wrong person, who directed the call back request to the estate team.
4. On 10 July 2020 the resident called the landlord and was advised that the call back was within two working days.
5. The estate team did not call the resident back within the two working days. The estate team instead left a note to request that the area which had been missed would be completed the next week.
6. It apologised for the missed call back and offered a gesture of goodwill (£25).
7. A further request was raised on 15 July 2020. The estate team left another note about the resident’s conversation with the estate team. It said the estate team called the resident but there was no answer, so it left a voicemail.
8. The landlord had told the resident that the planned work for 14 July 2020 was postponed due to workmen in the area chopping wood, so it could not carry out any ground maintenance.
9. The area had been addressed and would be maintained moving forward. It gave the timetable and schedule of works. The estate team were also to do a tree survey to remove the shrub/tree and stump in the area (around winter time). If approved, the next step would be for the landlord to reseed the area.
10. It explained that the resident said that she had a recording of the operative about the issue.
11. The landlord said that the resident had said she would not share the recording until it had provided its response to her. In order for it to substantiate the resident’s report about the staff conduct it required a copy of the recording. It then said that the recording was taken without prior approval and employees should not be recorded without consent.
12. The resident had said that the area had not been maintained on previous years; the landlord said that it would not be able to investigate this in line with its complaint procedure. It would only investigate an issue which happened within the last six months.
13. It provided an explanation of how it calculated the service charges; it said that it sets the annual budget around December and this comes into effect in April. At the end of the year, it reviews its planned spend/hours of work against the initial budgets that were set and it makes adjustments, such as by a reduction of future charges or an increase. Any adjustments in the 2020/1 charges would reflect in the charge payable from April 2022 (for the charges of 2021/22
The resident emailed the landlord on 24 July 2020 and said:
1. She considered the complaint process was to consider what has happened, to put right what has gone wrong, and to resolve the matter moving forward.
2. She found it unacceptable that the operative was able to tell “lies” and that she would encounter this operative around the estate. The resident said that the landlord’s staff should be polite and courteous, not rude, short or aggressive towards residents.
3. The landlord only considered that it missed the maintenance of the area one time, but it did not take into account the cutting of the gas and it had not asked for photograph evidence she held so she sent this to it. The resident therefore disagreed that the area had been missed once.
4. The resident disputed that someone was cutting wood on 14 July 2020 when the operatives were out to do the work.
The resident emailed the landlord further on 27 July 2020 and said:
1. She felt that she was treated differently from others in the court, her entrance ways had not been kept clear and accessible and the area had not been maintained for years.
2. The call logs that the landlord held should reflect the years of her reports about the maintenance of the area.
3. She was within her rights to expect a refund for work not carried out.
The landlord called the resident as per the resident’s email acknowledgement of 30 July 2020. In the resident’s subsequent email to the landlord on the same day, she said:
1. She attached photos showing what the area used to look like when it was not tended to by the landlord.
2. She referenced the Landlord and Tenant Act 1985 and said that the service charge was only payable in so far as works were carried out to a reasonable standard.
The landlord confirmed receipt of the photographs and it then iterated its position on the historic complaints about the maintenance. It requested a copy of the resident’s recording so that it could manage this with the operative’s manager. The resident repeated that she could not provide the recording of the operative as she needed his permission to, and if the landlord could get this, then she would pass on the recording. The landlord said that it will get this authorisation and get back to her (email of 30 July 2020).
On 11 August 2020 the landlord issued its stage two final response. It said:
1. It understood the complaint was about the maintenance of the communal areas, specifically the patch of land outside her home.
2. It had partially upheld the complaint previously and offered a gesture of goodwill (£25) for the service she received.
3. It confirmed that the land is maintained by the landlord. It said that it forms part of the estate and a previous customer took ownership of the area and planted shrubs. When the landlord was notified that the area was not being maintained it brought this into its management and decided to remove the shrubs and return the area back to grass. It said that the area would be maintained by its estate team moving forward.
4. In respect of the resident’s request for a refund of the service charge for the service she did not receive, it said “any gardening or cleaning that we complete is recorded on time sheets and anything that has been missed would not be charged for”. It explained how its variable service charge scheme operated.
5. In respect of the staff conduct complaint it said that without the resident’s recording it could not investigate this further. It then said that it spoke with the operative’s line manager and gave him feedback about his communication, and it apologised for the resident’s experience.
On 11 August 2020 the resident emailed the landlord said that:
1. The landlord’s final response of 2020 was in direct conflict with the response of 2018, where it had said that the area was the resident’s to maintain.
2. She had not heard back about whether the service charges would be returned for the services not provided.
On 21 August 2020 the landlord and resident exchanged correspondence about the matter. The resident asked the landlord when the landlord took over the maintenance of the area, and the landlord said the grass area was always its responsibility to maintain but it had only recently taken responsibility for the shrubs in July 2020.

Assessment and findings

It is not disputed that the grass area has always been the landlord’s responsibility to maintain. The landlord initially considered that this was the resident’s responsibility (2018). It then accepted responsibility for the entire area (the grass and the shrubs beneath the window) in July 2020. There has been a change in the landlord’s position. It did not offer the resident a reasonable response by way of an apology, an acknowledgement or financial redress for the time and trouble that she experienced in establishing who held the responsibility for the maintenance of the disputed area. It did not consider the inconvenience she experienced.
The resident explained the impact of the lack of maintenance historically, including the repair issue this caused to the boiler’s flue that was covered by the overgrowth (which the landlord addressed on that occasion). She explained that she is disabled and had access issues to the water meter due to the state of the front garden. She also said that she spent years and endless call backs trying to get the matter resolved.
The Ombudsman acknowledges the resident’s protracted journey in getting the issue resolved with the landlord. Although the resident has said this started around 6-7 years after her tenancy (which started in 2006), the Ombudsman is unable to consider the historical timeframe of the matter. The 2018 and prior complaints are not within the scope of this assessment. This is because the resident would have needed to bring this to the Ombudsman within a reasonable timeframe (after it exhausted the landlord’s complaint process). This means that this assessment does not include the repair or access issues which the resident set out historically. However, the landlord’s communication of 2018 which the resident evidenced to the Ombudsman has been considered as a reference point which was relevant to the resident’s complaint of 2020.
The landlord did not consider the historic lack of maintenance, going back to the time when the resident said this had stopped (around 6-7 years after she commenced the tenancy). This was not unreasonable, as the landlord has discretion to limit its investigation into historic issues.
However, while it was reasonable for the landlord not to re-investigate the historic substantive issues, it would have been reasonable for it to have at least acknowledged its error from 2018 to the resident and offered redress for her time and trouble. The only resolution it provided was that once it was notified that the area was not being maintained and once it had accepted that it was its responsibility, it brought this to its management’s attention and carried out the work. It did not address the historically different advice it had given the resident. Given the resident’s communication about her continued dissatisfaction, it would have been resolution focused for it to do so.
Regarding the postponed appointment on 14 July 2020 (to 16 July 2020), the landlord and resident were in dispute over the reason for this. The landlord considered that the work could not be completed as the area was occupied with workmen with tools. The resident disagreed with this. There is insufficient evidence to say what happened that day, however, the evidence seen shows that the resident was kept updated and informed the next day (15 July 2020) of when the maintenance would take place (16 July 2020) and this was duly completed. In respect of the resident’s dissatisfaction over the landlord’s communication, the landlord’s offer of redress (£25) for this was reasonable. It acknowledged a service failure in its communication (missed call back) and offered a gesture of goodwill in recognition of this.
In respect of the service charge dispute, the landlord responded reasonably because it explained how it administered the variable service charges to the resident. This included an explanation of why the resident would not have been charged for any missed maintenance work. Although the resident explained that she had been paying for a service which she did not receive, the landlord explained that as it had not been carrying out works to the front garden, she would not have been charged for it.
The landlord also provided an explanation of how it planned its budget ahead of the financial year and then adjusted its charges afterwards in accordance with the actual expenditure. If the resident remains further dissatisfied with the level or fairness of the service charges then she may be able to enquire with the First Tier Tribunal (Property Chamber), as they may consider complaints that are specifically about whether the level of a charge is fair or reasonable.
In respect of the resident’s complaint of staff conduct, the landlord initially focused its approach on obtaining the corroborative evidence which the resident had referred to. It did not get the evidence but agreed to get back to the resident about the permission for her to then be able to share this. The landlord then progressed the issue without the evidence. It accepted the resident’s claims and said that it took steps to address this: it spoke to the operative’s line manager, gave feedback on their communication and apologised to the resident for this. The landlord set out a reasonable set of actions in respect of the resident’s complaint about the staff conduct including an apology. This was resolution focused.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in respect of the landlord’s response to the dispute over the maintenance of the garden area in the front of the property.

Reasons

The landlord did not acknowledge, address or apologise for the incorrect information which it gave to the resident in 2018 after it was established that this was incorrect in 2020. The landlord missed the opportunity under the recent complaint of 2020 to address this. Instead, it focused on why it could not consider the substantive issues related to historic maintenance complaints. The resident had been told in 2018 that she was responsible for the maintenance of the garden. She obtained third party evidence which she then presented to the landlord before it corrected its position. This was not disputed. The impact was time, trouble and inconvenience experienced by the resident.
The landlord acknowledged the missed call back to the resident and offered redress. This was proportional to the impact of its communication failure. The evidence shows that the landlord had arranged to carry out the work once the resident contacted it in July. It then duly carried out the work within a reasonable timeframe afterwards.
The landlord offered the resident an explanation of how the variable service charge worked, so that she would not have been charged for the service that she did not receive. This was reasonable.

Orders and recommendations

Orders

Within four weeks of the date of this report the landlord is ordered to pay the resident a total of £175 compensation comprised of:
1. £150 for the time, trouble and inconvenience which the resident experienced.
2. £25 for the acknowledged communication service failure (if this has not already been paid).