Vivid Housing Limited (202124450)

REPORT

COMPLAINT 202124450

Vivid Housing Limited

11 August 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

1. The complaint is about the landlord’s handling of the resident’s reports of overgrown bamboo from a neighbouring property.

Background

2. The resident is an assured tenant of the landlord at the property.
3. On 27 September 2021, the resident raised a complaint regarding overgrown bamboo entering his garden. He stated that the overgrown bamboo was from a neighbouring property and it was growing into his two boundary fences, and damaging his Japanese maples and fruit plants in his garden, which amounted to £3400 worth of damage. He added that it had been an ongoing issue since 2020, and wanted the landlord to legally enforce the removal of the bamboo. The landlord visited the neighbour on 29 September. She explained to the landlord that she was maintaining the bamboo, keeping it tidy on her side of the garden and did not want to remove it. The landlord also spoke to its grounds supervisor in October 2021, who advised that there was not much it could do to stop the spread of the bamboo, but a barrier made of concrete, metal or wood could be installed to help prevent the spread.
4. The landlord issued its stage one response on 12 October 2021, in which it apologised to the resident that it did not make him aware that it had no legal authority to enforce the removal of the overgrown bamboo. It also apologised that it had conducted multiple visits to his property, without moving the matter forward. It admitted that this amounted to a service failure and stated that it would ensure its visit logs were up to date, to avoid repeated visits. The landlord spoke to the neighbour again on 28 October 2021, during which they explained that they were unable to remove the bamboo, as it was growing between two parallel fences. They further added that they used sunken concrete slabs to maintain the bamboo, and suggested that the resident try the same method.
5. The resident was dissatisfied with the landlord’s response, as it felt that it did not resolve his issues in relation to the overgrown bamboo. The landlord informed him that it would issue a final stage complaint response by 9 November 2021. However, it was not issued until 25 November 2021. It explained that it would email the neighbour to request to remove the bamboo, but reiterated that it could not legally enforce its removal, unless it was damaging the building. It also explained that it considered installing a root barrier to resolve his issues, but the two quotes it was given were £12,000 and £14,000 which it could not afford. It advised the resident that he could either grub out the plants, or use treatment to prevent the spread of bamboo.
6. The resident brought his complaint to this Service to investigate, as he believed that the landlord showed a “lack of concern” in relation to the overgrown bamboo affecting his property. He was dissatisfied with the lack of contact from it, and stated that he sent an email on 2 December 2021 and 5 January 2022, but received no response. He further added that the landlord could take legal action, because the bamboo was considered a nuisance, and he would consult his solicitor if no action was taken. He also requested £500 compensation to help with the cost of work that was required to prevent the bamboo from spreading.

Assessment and findings

Scope of investigation

7. While the resident reports that he had issues concerning the overgrown bamboo from a neighbouring property since 2020, the scope of this investigation is limited to considering the landlord’s handling of his reports about this in 2021. This is because, under the Housing Ombudsman Scheme, this Service cannot investigate complaints about issues that were not brought to the landlord’s attention as a formal complaint within a reasonable period of normally within six months of the matters arising, and his complaint about this was made in September 2021. Furthermore, while the resident reports that the landlord could take legal action against the owners of the neighbouring property for nuisance, in accordance with the Scheme, we do not have the authority to require it or the local authority to do so in the way that a court or tribunal might.

The landlord’s handling of the resident’s reports of overgrown bamboo from a neighbouring property

8. Under its tenancy agreement, the landlord has a responsibility to keep in good repair the exterior of its properties including boundary fences owned by it, and not to interrupt or interfere with its residents’ rights to peacefully occupy its properties except where permitted.
9. Furthermore, nuisance has been described by case law as the encroachment onto a property from neighbouring land of invasive plants, even in the absence of actual physical damage, because the risk of future damage from them and their high cost of removal constitute an immediate interference with the use & enjoyment of the land.
10. Therefore, the landlord was required by the resident’s tenancy agreement to consider and respond to the resident’s reports of nuisance from the overgrown bamboo from a neighbouring property. It cannot legally enforce the removal of the overgrown bamboo; however, it has a responsibility to ensure all reasonable steps are taken to address the resident’s concerns.
11. It was appropriate for the landlord to attempt to resolve the complaint amicably by speaking to the neighbour, and requesting that they remove the bamboo. It was also suitable for it to offer suggestions to the resident on how he could remove the overgrown bamboo, such as using treatment, or grubbing out the plants.  Furthermore, it was reasonable for the landlord to decline to pay for the high cost root barrier, given the disproportionately high cost of this to deal with the bamboo and its duty to provide value for money. However, it should also have considered the advice from its grounds supervisor who suggested to install a low-cost wooden barrier. It also should have considered the advice from the neighbour to install sunken concrete slabs to deal with the bamboo effectively. It has been recommended below that the landlord consider these options, and provide the resident with the outcome of its consideration.
12. Furthermore, the resident reported that he had contacted the landlord during December 2021, and January 2022, and received no response from it. The landlord should have maintained frequent contact with the resident, and proactively inform him of any updates in relation to the overgrown bamboo, as the onus should not be on him to chase for an update. To prevent future occurrences from happening again, it has been recommended below that it review its staff and contractors training needs in relation to communication and consider additional training and improvements in light of the resident’s case.
13. The landlord failed to consider offering compensation to the resident, despite it admitting to service failure in its stage one complaint response. It ought to have offered compensation to the resident, that was in line with this Service’s remedies guidance, due to the delays in communication during December 2021 and January 2022, and its failure to consider all reasonable to steps to address the resident’s concerns of overgrown bamboo from a neighbouring property. These factors caused the resident distress and inconvenience, and led him to believe that the landlord showed a “lack of concern” in handling his reports of overgrown bamboo. Therefore, in light of these factors, and the impact they had on the resident, it has been ordered below that the landlord award the resident £150 compensation.
14. Moreover, the resident requested £500 compensation for the costs of the work required to prevent the bamboo from spreading. There is no evidence to suggest that the landlord considered his request in regard to this. Furthermore, he also reported that the overgrown bamboo caused up to £3400 damage to his garden. The landlord should have advised him to submit a liability insurance claim. Therefore, it has been recommended below that it invite him to submit estimates to it for the cost of work required for it to consider, and provide him with the outcome. It also recommended that it provides him with details as to how to submit a liability insurance claim to it or its insurers for damages for the cost of his plants affected by the bamboo. It is relevant to note however, that the Ombudsman does not assess issues of liability or negligence in the way that a court or insurer would.
15. Under the landlord’s complaints policy, it has a responsibility to respond to final stage complaints within 20 working days. It advised the resident that its final stage complaint response would be issued by 9 November 2021. The final stage complaint response did not arrive until 25 November, which exceeded the timescale by 12 days. While the delay was not excessive, and did not impact the resident, it ought to take measures to ensure occurrences like these do not happen again. It has therefore, been recommended below that it review its staff’s training needs in relation to their application of its complaints policy to seek to prevent its complaint handling delays from occurring again.

Determination

16. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in the way it handled the resident’s reports of overgrown bamboo from a neighbouring property.

Orders and recommendations

17. The landlord is ordered to:
    1. Pay the resident £150 compensation within four weeks in recognition of any distress and inconvenience caused to him by its failures handling his reports of overgrown bamboo from a neighbouring property.
18. It is recommended that the landlord:
    1. Consider installing a low-cost wooden barrier, and sunken concrete slabs and provide the resident with its outcome.
    2. Review its staff and contractors training needs in relation to communication and consider additional training and improvements in light of the resident’s case.
    3. Invite him to submit estimates to it for the cost of work required for it to consider, and provide him with the outcome.
    4. Provide him with details as to how to submit a liability insurance claim to it or its insurers for damages for the cost of his plants affected by the bamboo.
    5. Review its staff’s training needs in relation to their application of its complaints policy to seek to prevent its complaint handling delays from occurring again.
19. The landlord shall contact this Service within four weeks to confirm that it has complied with the above orders and whether it will follow the above recommendations.