Torus62 Limited (202017501)

REPORT

COMPLAINT 202017501

Torus62 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

The complaint is regarding the landlord’s decision to remove three trees from the resident’s property.

Background and summary of events

Background

The resident is a leaseholder and has resided at the property, a two-bedroom flat in a low-rise block, since 2014. The resident’s lease contains the rights to a private garden within the estate.
The landlord operates a two-stage complaints policy and its complaint procedure states that it will respond to complaints at Stage One within 10 working days and at Stage Two within 20 working days. Its procedure advises that Stage Two responses will be issued by a senior manager.

Summary of Events

On 7 September 2020, the resident contacted the landlord to advise that, on 4 September 2020, three tree surgeons and a member of the landlord’s staff had attended his property and cut down three trees from his private garden. He stated that, when challenged, they had advised they had been sent by the landlord but were not able to provide any documentation regarding any specific work orders at the time. He stated he had sought legal advice and been advised to report the matter to the Police as an incident of trespass and criminal damage but he wanted to speak to the landlord about the issue first and asked for a call back.
Internal landlord correspondence indicates the landlord responded by phone the same day to apologise and its Leasehold Manager provided their details in case the resident wished to take further action.
There is no information regarding further correspondence between the resident and landlord until 9 November 2020 when the resident emailed again to advise that, since the landlord’s tree surgeons had returned to grind out the remaining tree stumps, he had contacted a local tree supplier to enquire how much it would cost to replace the three trees the landlord had cut down. He stated he had been advised the trees could be replaced by much smaller, younger trees (around 12cm high) for around £90 per tree, plus £55 for delivery and planting but stressed that this would not match the size of the trees the landlord had removed. He stated the tree suppliers had advised it would ‘theoretically’ be possible to replace the trees on a more like for like basis but that as this would cost around £7,000-£10,000 per tree (as it would involve crane hire, road closures and additional insurance) he noted the ‘costs and logistics seem prohibitive’. He therefore enquired how the landlord would be looking to compensate him for the ‘criminal damage’.
The landlord responded to the resident on 18 November 2020, writing to him regarding the tree removal. It offered its apologies for ‘the inconvenience this matter (had) caused’ and offered an explanation as to why the trees had been removed:
1. It acknowledged that ‘the trees were located in an area of the rear gardens that belong to yourself’ and that this had come to its attention only since the trees were removed.
2. It advised it had received a report that the trees had been ‘in need of urgent attention as roots and branches were affecting nearby properties’. It further advised that the trees had been inspected by an arborist ‘who reported that there were several cavities in the crown of the trees and cracking to trunks was evident’. It therefore ‘considered the three trees were in a danger of immediate collapse hence a decision was made to cut the trees down’.
3. The landlord stated that it ‘understood that you now wish to be compensated for the loss of the three trees’ and although it advised that its view was that ‘the condition of the original trees suggest that they had little monetary value’, it did accept that ‘some compensation is justified’. It therefore offered a total of £370 compensation (£270 for three new trees, plus £100 to cover delivery and planting), noting that this was in line with the quote the resident had referred to in his email of 9 November 2020.
Landlord records show that the resident responded the same day and advised he was ‘offended’ both by the landlord’s letter and offer of compensation. The resident raised other concerns, including:
1. He requested a copy of the arborist’s report.
2. He queried whether all three trees were so damaged that they warranted removal and whether the landlord had carried out any investigation to trace the tree roots and establish whether they were the cause of some reported lifted paving slabs.
Landlord notes suggest that it advised it had not meant to cause the resident offence but had met the figures mentioned by him in his email and taken this to be the amount of compensation he had requested. It also agreed to provide the arborist’s report (and duly did so the following day, providing an email it had been sent by the arborist on 4 September 2020). It further advised that the arborist’s view was that ‘all three trees were dangerous and to avoid any property damage and/or fatalities (a) decision was made to reduce trees’. The landlord also clarified that it had not carried out any excavation work to look at the tree roots but that it had originally attended following ‘reports of root damage’ to paving slabs which were causing a trip hazard, only to find ‘more serious matters that required immediate attention’.
On 12 January 2021, the resident contacted the landlord again to state that no-one was getting back to him regarding the trees that had been cut down in his garden. He advised that he had made a formal complaint via the landlord’s website on 19 November 2020 although internal landlord correspondence from 12 January 2021 shows that it did not have a record of the complaint and did not recognise a reference number the resident had provided. A new complaint was therefore logged on 13 January 2021, which noted that while it had already provided a response to the resident in November 2020 following his initial enquiry, he was not satisfied with it.
The landlord provided a Stage One response on 26 January 2021. In its response, the landlord noted that:
1. The trees, which were ‘located in an area of the rear communal gardens that belong to yourself’, were reported as being ‘in need of urgent attention as roots and branches were affecting nearby properties’ and following this, an arborist was instructed to carry out an inspection. Following said inspection, the arborist ‘considered the three trees were in danger of immediate collapse hence a decision was taken to cut three trees down’.
2. It clarified that its previous response to him had acknowledged that ‘some compensation was justified’ but that the ‘condition of the original trees had little monetary value’. It noted that the resident had advised that ‘the cost of replacing the trees including delivery and planting was £370.00’ and it had therefore offered that sum ‘in order to settle the matter’.
3. It noted it had spoken to the resident on 20 January 2021 (this Service has not seen any records regarding this conversation) and acknowledged that he was unhappy with the compensation offered and that he would prefer for the trees to be replaced by ones of the same size (circa 20m tall) as those that were removed. The landlord said that it ‘had been advised that it would not be possible and too dangerous to replant trees of this size’.
4. It concluded that the trees had been ‘in a precarious condition and it was more luck than judgement that they did not cause any damage to surrounding properties’. It acknowledged that the ‘area of land’ where the trees were located ‘did not belong to (us) and our representatives should not have entered the area’. It apologised for this and advised that it therefore upheld his complaint and would increase its offer of compensation to £100 per tree removed, in addition to the £370 originally offered (bringing the total offered to £670).
On 31 March 2021, the resident contacted this Service to advise that he had made a complaint to the landlord but had not received a response and was now considering taking the matter to the small claims court. The landlord clarified to this Service that its Stage One response had already been sent and it was subsequently agreed that his complaint should therefore be escalated to Stage Two of its complaint procedure. It advised it would provide a response by 4 May 2021.
The landlord duly issued its Stage Two complaint response as advised on 4 May 2021. It noted that it considered the resident’s complaint to be about how it ‘handled your reports that we removed three trees from your property without permission’ and noted that, in his correspondence with this Service, he had stated his desired outcome was for it to ‘to replace the three trees with 20-25 metre equivalents or provide £10,000 compensation’. It advised it had reviewed the case and made the following findings:
1. It apologised for the fact it had ‘clearly…not effectively communicated with you prior to commencing any work on the…trees’. However, it reiterated that the ‘reports we received about the trees being dangerous and unsafe were accurate and confirmed as correct by our specialist Arborist’.
2. It advised it ‘was not easily obvious to identify ownership’ of the trees, as they were ‘located in the rear communal garden of the block in which you live’ but it acknowledged it should have ‘perhaps’ made more effect to establish ownership and apologised for this.
3. It stated it was ‘very clear’ that there was an ‘immediate concern about the trees and a danger of imminent collapse’, so the decision was made to ‘fell the trees and remove the risk’. It noted that the resident ‘would have responsibility for the trees’ and that he would have ‘no doubt…needed to act swiftly upon the Arborist’s recommendations’.
4. While the landlord acknowledged that ‘the matter has been distressing’ and that the resident should be compensated ‘for the loss of the trees’, it was ‘clear that it is not practically possible, feasible or even safe to plant 20-25 high mature trees in the rear communal garden’.
5. It clarified that replacing the trees with ‘less mature specimens’ would cost £370, and it had offered this plus an additional £300 for ‘inconvenience and stress’ in its Stage One response. However, it acknowledged that ‘this matter has been difficult for you’ and that ‘the rear garden is very different in appearance now the trees have gone’. It therefore suggested that it could, along with its ‘environmental team’, carry out a ‘further survey of the rear garden with a view to providing some additional planting/shrubbery that is suitable to improve its aesthetic’. It proposed to do this in conjunction with the resident and other neighbours in the block. It clarified that it upheld his complaint, and that its offer of £670 and a survey of the garden with a view to ‘improve its visual appearance’ was its final offer of compensation.
Following further correspondence with this Service, the resident confirmed on 6 October 2021 that he remained unhappy with the landlord’s response and its offer of compensation. He reiterated his desired outcome and advised that he had reported the latter to the Police at the time and obtained a crime reference number, although this Service has not been made aware of any further action taken following this. The resident also clarified that his garden was separated from the communal gardens by a fence, which the landlord had had to remove to access his garden when cutting the trees down and provided a photo of his garden. He again contested that the trees had been in a ‘dangerous and unsafe’ condition and stated that the only information provided to the landlord by the arborist had been submitted after the trees had already been removed.

Assessment and findings

It is important to note that this investigation will consider is the evidence available regarding how the landlord reached the decision to remove the trees, whether its actions were reasonable and whether its responses to the concerns the resident raised after their removal were appropriate.
It is not in dispute that, in September 2020, three trees were removed from the resident’s garden by operatives working on behalf of the landlord. From the evidence available to this investigation, it is clear the garden was a private space that formed part of the resident’s leasehold rather than being part of a communal area to be shared with other residents. However, information seen by this Service shows that, following contact from a neighbour in July 2020 regarding ‘a tree in the communal yard at (the resident’s) block of flats’, the landlord raised an inspection on 21 August 2020 and contracted an arborist to look at the tree. While evidence suggests the landlord’s initial response was reasonable, as it was responding to reports from a resident who was concerned about the tree, there was a clear error when it incorrectly identified the tree as being within a communal area for which it was responsible. This Service has not seen any evidence that, following the initial report it received, the landlord sought to clarify or double check who had responsibility for the tree(s) and whether the area in question was communal space or contained within the resident’s lease. In the Ombudsman’s opinion, this was not appropriate and, given there appeared to be a clear demarcation of the resident’s garden via a border fence, the landlord was at fault for progressing with the inspection and subsequent works without clarifying it had the right to access the area.
Information provided by the landlord shows that its arborist emailed it on 26 August 2020 to advise its operatives ‘went out…the other day’ and reported that ‘there (are) 3 large trees that could do with a crown reduction and possible root pruning to stop them lifting some flags in the rear garden’. It advised it would send the landlord pictures, although this Service has not seen these. However, it is noted that, following the arborist’s initial visit, there is no indication that the complete removal of any of the trees was recommended.
The next record related to the trees is the ‘arborist’s report’ dated 4 September 2020, referred to by the landlord in its responses to the resident and provided to him in November 2020. This advised that ‘following on from our phone conversation (with the landlord)…the original job was to reduce the height of the sycamore trees in the rear of the flats’. However, it advised that when ‘we climbed the trees to start the reduction we immediately noticed that there was several cavities in the crown of the tree so decided that the best option is to remove the tree to take away any future risk of failure’. It further noted that when ‘section felling the tree we also noticed there was a large crack in the main stem’.
However, it is noted that the report only refers to one tree, rather than all three. It is not clear if this is a mistake or typing error, or if the arborist had only identified an issue with one tree rather than all three. This Service has also not seen any further evidence regarding any orders that were issued by the landlord regarding proposed works to the tree(s) or whether it sought any further clarification from the arborist regarding the work that it ultimately completed. In the Ombudsman’s opinion, this is not appropriate and raises concerns regarding the landlord’s record keeping as, regardless of where the trees were located, this Service would expect to see more information and comprehensive estate management records which showed how the landlord had progressed the issue and details of the work it had actually ordered once the initial inspection had taken place. That it was not able to provide these undermines the justification it provided to the resident regarding how and why it came to remove the trees.
While it was reasonable that the landlord apologised to the resident in a phone call after his initial report and repeated this apology in its subsequent responses and complaint responses, this Service has concerns over the lack of evidence available regarding how the landlord reached the decision to remove the trees and the justifications it provided to the resident in its complaint responses.
In its Stage One complaint response the landlord advised that its arborist had, following their inspection, concluded that the trees were ‘in danger of immediate collapse’ and the decision was taken to remove all three trees. However, as noted above (Paragraph 19) from the arborist’s email it is not clear whether it believed all the trees needed to be removed, or just one. Additionally, it is noted that the only report seen by this Service from the arborist was provided once the trees had already been removed. While this Service appreciates that, if there was the possibility that the trees may have fallen ‘immediately’, there may not have been time for the arborist to complete a full report following their inspection, the arborist’s email refers to only one tree and advised that the trees were removed to ‘take any future risk of failure’. In the Ombudsman’s opinion, this does not appear to confirm that the tree, or trees, required immediate removal and this investigation has not seen any further evidence that indicates this was the case.
The landlord has therefore, in the Ombudsman’s opinion, been unable to provide sufficient evidence that justifies the decision to remove the trees from the resident’s garden. It is noted that in its complaint responses, there also appears to be an element of speculation on the landlord’s part, particularly in its Stage Two response when it indicated that the resident would have been liable for any issues caused by the trees falling and would have ‘no doubt’ have had to respond swiftly himself following the arborists’ recommendations. In the Ombudsman’s opinion this was neither helpful nor appropriate as it referred to a hypothetical situation rather than focusing on events that had actually unfolded.
The Housing Ombudsman’s Dispute Resolutions Principles advise that landlords should ensure decisions ‘are based on evidence and the facts of a particular case’ but, regarding the justification for removing the resident’s trees, the landlord seems to have provided an explanation that was not based on evidence or information it had been provided with or garnered from an investigation into the matter. This was not appropriate, and the further explanations provided by the landlord to the resident did not provide adequate clarity to the resident. Indeed, if the landlord was unable to provide evidence that backed up the explanation it gave for immediately removing the trees, in the Ombudsman’s opinion, it would have been fairer to the resident if the landlord had simply said so.
While the landlord advised the resident in its Stage Two response that it took ‘immediate action’ due to the trees potentially posing a risk to property, or even someone’s life, in the Ombudsman’s opinion there is insufficient evidence to show that the landlord did not have the opportunity to commission a full inspection and consider the findings before it took further action and agreed to the removal of the resident’s trees. If the landlord had taken more time to do so, it may also have recognised that the trees were not actually in a communal area. This Service has also not seen a reasonable explanation from the landlord as to why it removed the resident’s fence to access the trees, which would have been a clear indicator that the resident’s garden did not form part of the communal area. This is not appropriate and means that the landlord did not reasonably respond to one of the main concerns the resident raised regarding its conduct. It also does not appear to have considered this within the redress it subsequently offered the resident, focusing instead on the cost of replanting new trees.
In the Ombudsman’s opinion, the landlord cannot be said to have acted reasonably when it accessed the resident’s property and removed his trees when it did not have the right to do so and did not provide him with notice or even seek to communicate with him prior to any inspection or subsequent works.
As previously noted, the landlord did appropriately apologise to the resident for its error in entering his private property and removing the trees. However, the tone of its correspondence appears to seek to justify its actions and does not appropriately acknowledge the impact of its work upon the resident. When offering the resident compensation, it noted that there was ‘little monetary value’ to the trees, without initially considering that his garden space would have been noticeably altered by the trees being removed. It also told the resident that it ‘had been advised that it would not be possible and (would be) too dangerous to replant trees of (the same) size’ but this Service has not seen any evidence of enquiries made by the landlord regarding this, or who it had received this advice from. This again appears to be an example of the landlord providing an explanation and justification without evidencing how it reached such a decision.
The Housing Ombudsman’s Dispute Resolution Principles highlight the importance of landlord’s considering whether the resident can be left in the same position as they were before making the complaint and, in the Ombudsman’s opinion, given this was the main outcome requested by the resident, the landlord could have done more to show that it had fully explored whether it could ‘put things right’ and ensure that the resident was not left worse off by its actions. By not doing so, the landlord’s response did not treat the resident fairly.
This Service acknowledges that landlords must manage their resources carefully and that, if it is not possible to replace the trees on a like for like basis, the amount of compensation requested by the resident to resolve the complaint is significant. However, in the Ombudsman’s opinion, the landlord could have gone further when considering the redress it could offer the resident and it should have better acknowledged the full impact of its error and subsequent actions. Its original offer of £370 towards the cost of three new saplings and costs towards planting did not appropriately reflect the inconvenience its actions had caused. It was positive that the landlord’s Stage Two response increased this offer and additionally offered to work with the resident regarding how it could improve the look of the garden. The landlord offered to do so ‘in conjunction with other residents in the block’. While this was a more positive step for the landlord to take, it is not clear why it suggested involving other residents in the process when its actions only related to the resident and the detriment caused to him. In the Ombudsman’s opinion, this was not appropriate and the landlord could have done more to ‘put things right’ in accordance with the Housing Ombudsman’s Complaint Handling Code.
As outlined above, there were a number of failings in this case, both regarding the landlord’s original decision to remove the trees and the basis on which it reached this decision, and subsequently in its response to the resident’s complaint about the matter. Whilst the landlord did make an offer of redress to the resident, this did not fully reflect the extent of the failings or the impact on him, and as such did not ‘put things right’. The Ombudsman has therefore made a finding of maladministration in this case.
When considering what remedies should be ordered in a case where there has been maladministration, the Ombudsman considers its own Remedies Guidance, any offer a landlord has already made, and to what extent a resident can be restored to the position that they would have been in, had there not been failings in service.
In this case, the Ombudsman notes the significant cost of replacing the trees with trees of a similar age and height and that this would involve significant logistical and other challenges, including possible disruption to other residents. The Ombudsman also notes that the resident had suggested a figure of £10,000 as suitable compensation. Whilst the resident’s position is acknowledged, we have also taken into account that a landlord needs to carefully manage its financial resources, in order to calculate what this Service considers to be a fair amount of compensation.
As set out below, the Ombudsman has therefore calculated that the landlord should make a total compensation payment of £1,500 to the resident, which is broken down as follows:
1. £670 previously awarded by the landlord.
2. £750, which is calculated as a further £250 per tree.
3. £80 to further recognise the resident’s distress and inconvenience.

Determination (decision)

In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord regarding its decision to remove three trees from the resident’s property.

Reasons

While the landlord has advised that it acted swiftly to remove the trees as it was advised that they were at ‘immediate’ risk of falling and there was even a potential risk to life, this Service has not seen evidence that corroborates this. The evidence provided by the arborist is brief and does not appear to fully back up the assertions the landlord made and its justifications for removing the trees.
The landlord made a significant error in entering the resident’s private property, which was clearly demarked from the communal area by a border fence (which the landlord’s arborist removed) and removing trees which did not belong to it. In the Ombudsman’s opinion, while it has apologised for this, in its correspondence with the resident it appears to have concentrated more on justifying its decision, without corroborating evidence, rather than acknowledging its error.
Its initial offer of redress did not recognise the significance of its failings and although it subsequently increased the amount of compensation offered and proposed to work with the resident to improve the look of his garden, the landlord did not appear to take into consideration its error in accessing his property in the first place. It also could have gone further in considering whether it could have done more to leave the resident no worse off than he was before it removed his trees, as the Housing Ombudsman’s Complaint Handling Code suggests.

Orders

The landlord should, within four weeks of this determination:
1. Pay the resident £1500 compensation, consisting of:
  1. £670 it previously awarded him.
  2. £750, calculated as £250 per tree.
  3. £80 to recognise his distress and inconvenience.