Notting Hill Genesis (202009450)

REPORT

COMPLAINT 202009450

Notting Hill Genesis

29 June 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 the residents’ reports that a neighbour installed a gate that restricted access to the communal path serving their property.

Background and summary of events

The residents are secure joint tenants.
The building has multiple properties. The property is a raised ground floor flat, with steps at the back leading down to their (middle) section of the garden. There is a step-free communal path around the right side of the building that all residents have access to, and which leads to all three individual gardens.
According to the landlord’s records, on 17 January 2020 it received a verbal request from the resident of flat a (the neighbour), who had recently moved into the building, for permission to install a gate across the pathway around the right side of the building to improve security. The landlord asked the neighbour to complete an improvement form therefore implying their request was possible in principle.
On 7 February 2020, the landlord’s surveyor inspected the building and provided a report. This rejected the request to install a wooden gate but suggested exploring the option of a metal gate which would last longer.
The neighbour subsequently installed a wooden gate and fence across the communal path around the right side of the building without the landlord’s written permission.
On 2 March 2020, the residents emailed the landlord raising a concern about the newly installed “high wooden” door and fence erected by the neighbour blocking the pathway. They explained the narrowness of the door now made it very difficult for them to access by bicycle or scooter. They requested for the gate and fence to be removed so that they could continue to have free access around the side of the property, as had always been the case.
On 5 March 2020, the landlord responded advising it had requested the neighbour to remove the gate/fence by 13 March 2020.
On 11 March 2020, the landlord and its surveyor met with the residents at the property to discuss the gate and fence.
On 16 March 2020, the landlord emailed the residents a summary of the 11 March 2020 meeting stating:
1. The residents felt that this gate was blocking access to their garden and rear entry into the property; they used the path to wheel their bike through to the garden and to deliver garden materials. This arrangement has worked well for many years with all neighbours.
2. It apologised for the upset it had caused the residents. It acknowledged that it should have explained to the neighbour that it would have to consult other residents before agreeing to the installation of a gate across a communal pathway.
3. It said that it no longer believed that removing the gate would be “the right way forward”. It explained that tenants can request improvements and these requests cannot be unreasonably withheld by the landlord. It can also give retrospective permission for adaptations. It said that it was not unusual to receive requests for a side gate to improve security and that these sorts of requests were typically granted.
4. It said that given the security concerns that the neighbour had raised, it found it reasonable to grant them retrospective permission to fit a side gate. It said that it would review the situation with a view to installing an alternative gate which would give more access to other residents. In the interim they are free to continue using the communal path or use the access point through flat b if they prefer.
5. It apologised on behalf on the neighbour for “any offence caused”.
In an email to the landlord on 18 March 2020, the residents disputed the landlord’s reference to “gate” asserting it was a “door, set into a high wooden frame” with the installed door being 66 cm wide. They also disputed the suggestion that they are free to use the access point through flat b and pointed out that this left-hand side entrance gate is for access to flat b only. In any event, they said it was not suitable for wheeling through bicycles and wheelbarrows; it involves steps and four gates between their garden and the road.
The landlord replied on 18 March 2020 apologising for the upset caused by the situation. It said it would review the gate to see if it could be widened but this would not happen immediately due to the Covid-19 restrictions.
On 23 March 2020, the residents raised a stage one formal complaint with the landlord regarding the installation of the “barrier” across the pathway. They stated:
1. The barrier was 204cm x 178cm wide with a narrow, locked door that effectively reconfigured the communal area around the right‐hand side of the building to the advantage of the neighbour and to their disadvantage.
2. Access to their garden is via the alleyway around the right‐hand side of the building. They were not consulted by the neighbour or landlord about the installation of the fence and door.
3. They use the alleyway regularly to take bikes and garden equipment to and from their garden. The narrowness of the door installed makes it impossible for them to use in this way. Their family also use the alleyway to come to their back door via the garden if they do not hear the doorbell, which is a regular occurrence.
4. The landlord had provided conflicting information about this issue and ultimately their complaint and rights have been disregarded. They were originally told by the landlord that the neighbour’s request for permission to erect this barrier had been refused. It told them it had written to the neighbour telling them that it must be removed by 13 March 2020.
5. Their objections were dismissed by the landlord when it visited on 11 March 2020, including “the obvious one that the door in the barrier erected is too narrow to pass through with a bicycle or wheelbarrow”. They reiterated the reasons for rejecting the landlord’s suggestion to use flat b’s gate.
6. They repeated that they wanted the fence and door removed.
The landlord issued a stage one response on 2 April 2020. It apologised for the delay in responding. It acknowledged that the residents were concerned about the narrowness of the gate as it did “not allow adequate access”. It explained that its contractors would assess and install a wider gate to provide better access. However, it explained that due to the Covid-19 restrictions, this work would be delayed.
It concluded by explaining that it would use the resident’s feedback to learn from this situation and make its approach better in the future.
It is evident there was further email correspondence between the parties from 5 April 2020 to 19 April 2020, when the residents made clear they did not want a gate installed at all due to concerns about it being too narrow and blocking access. However, it said it would review the matter once restrictions had been eased and would visit the residents in order to discuss the issue.
On 16 July 2020, the landlord informed the residents that it would still be unable to attend the property due to lockdown restrictions, but that work to the gate could go ahead. It advised the resident that it had raised a job for the existing gate to be removed and replaced with a wider one which would enable more access.
On 17 July 2020, the residents emailed the landlord stating they understand why the landlord felt unable to visit but that they did not understand why it had not attempted to discuss by telephone their suggestion about the alternative placement of the gate. They asked that before proceeding with installing a wider gate, the landlord discuss the proposal with themselves and another resident that opposed the installation of the gate.
On 24 July 2020, the landlord replied stating their complaint would be escalated to the next stage of its complaints procedure which will be a full review of the situation from the beginning of the gate being requested; what it had proposed and the residents’ objections and alternative solutions. It stated it would respond by 20 August 2020 and that it had requested that any works be put on hold until after the review had been conducted.
On 1 October 2020, the landlord issued its stage two complaint response. It apologised for the delay in responding and offered the residents £50 in compensation for the delay.
It said that the resident had been given “conflicting information” regarding information about the gate. It said that this was a service failure and offered the resident a further £50 for this.
It acknowledged that there had not been a gate installed during the resident’s tenancy but said the neighbour had raised reasonable security concerns.
It confirmed that it would install a wider metal gate which would be in line with environmental health guidelines and had been recommended by its surveyors. It said that it should have been clearer with the residents that the request from the neighbour was reasonable given their security concerns raised and that it would not refuse such a request.
On 11 October 2020, the residents wrote to the landlord disputing aspects of its response and reiterated that despite promising a meeting to discuss alternatives, this had not taken place.
In their communication to the Ombudsman dated 11 March 2021, the residents advised of the redress they seek including:
1. Removal of the door and fence;
2. The landlord to acknowledge that the barrier erected across the previously free access to the gardens of three flats including their own does not constituted a ‘home improvement’ and should never have been accepted as such;
3. The landlord to acknowledge that the fence and door were erected without the required planning permission from the Council and;
4. To have a discussion about whether the barrier is necessary or desirable or whether another solution can be found to any concerns the neighbour may have.
In its communication to the Ombudsman dated 21 April 2021, the landlord advised that this work has been put on hold until after the outcome of this investigation but that on receipt of this, it would follow-up with all tenants living at the property to seek their feedback as to the style of gate they preferred.

Policies

The Landlord’s Improvement Procedure for residents states that written permission from the landlord is required prior to making “minor” improvements and may be given following consultation with the area Surveyor. Written permission from the landlord is also required for “major” home and property improvements. Also, the landlord’s website states that residents “are not permitted to carry out any alteration or improvements in communal areas”.
The landlord’s repairs policy states that an emergency repair is only undertaken when there “is an immediate danger to a persons safety”.

Assessment and findings

According to the landlords “resident improvement procedure” regardless of whether a resident wishes to make a minor or major improvement, the landlord must first give its written permission. Also, its website states that residents “are not permitted to carry out any alteration or improvements in communal areas”.
It is evident that the neighbour asked about having a gate installed at the side of the building and that the landlord advised the neighbour to complete an improvement form therefore implying their request was possible in principle. The landlord’s surveyor visited in February 2020 to assess the request, however, the neighbour then installed the gate and fence across the right-hand-side communal path sometime in late February 2020 without any formal written consent from the landlord. When the landlord was made aware of this and the residents’ concerns, it asked the neighbour to remove the gate and gave them a deadline of when this needed to be completed by.
When the landlord visited the building again in March 2020 to review the concerns raised by the residents, it explained to the residents that due to the security concerns raised by the neighbour, it should not have promised the removal of the gate as its policy was for residents to request an improvement which cannot be unreasonably withheld. It said requests for side door entrances are not unusual in the neighbourhood and that they are usually granted as they improve security although normally the landlord would fit the gate. The landlord explained to the residents that in accordance with its policy, it can give “retrospective permission for adaptations” and that as the neighbour had presented it with a reasonable argument as to why they wanted this gate, in line with its policy, it could not refuse such a request.
Following the meeting, the landlord emailed the residents on 16 March 2020 apologising for having promised the removal of the gate/fence, which it no longer felt was the right way forward. It acknowledged that it should have reviewed the options available before promising this. It also apologised and accepted responsibility for not having explained to the neighbour, on their initial request, that it needed to consult with other residents who used the rear communal area as it affected their access.
Therefore, it is evident that the landlord did not take account of the fact that the installation of the gate was in a communal area and affected other residents when initially responding to the neighbour’s verbal request. However, following the residents raising a concern about the erection of the fence and gate, the landlord recognised its service shortcoming and apologised to the residents for this in its 16 March 2020 communication.
It also acknowledged that it gave contradictory advice to the residents as it initially advised them that the neighbour had been told to remove the gate/fence fitted. After reviewing the situation, the landlord felt the neighbour’s security concerns warranted a side gate/fence. The landlord decided the neighbour was no longer required to remove this – despite it being fitted without its formal consent. The landlord however swiftly clarified its position to the residents during its visit of 11 March 2020 and apologised for the upset caused. Subsequently in its stage one response, the landlord further acknowledged that the resident had received conflicting information for which it apologised although it reiterated that due to the security concerns raised by the neighbour, it was reasonable to grant the neighbour retrospective permission. The landlord’s response was reasonable in the circumstances as it clearly explained its change of position.
As the residents had raised concerns about the narrowness of the gate installed which restricted their access when wheeling bicycles and scooters to the rear of their property via the alleyway, the landlord would have been expected to take on board their needs and consider if there was a workable solution which addressed the concerns raised by all of its residents. It proposed to install an alternative wider gate which would be more accessible for wheelbarrows and bicycles. Although the resident remained dissatisfied with the landlord’s proposal, the solution offered demonstrates that the landlord took into account their needs as well as the neighbour’s request to improve security in order to prevent access by intruders at the rear of the property.
The landlord explained in its stage one response of 2 April 2020 that due to Covid-19 restrictions, it was unable to carry out these works at present. However, it said once it was able to resume its repairs service, it would be arranging for these works to be carried out as soon as possible. According to the landlord’s repairs policy, an emergency repair is only undertaken when there “is an immediate danger to a person’s safety”. There is no evidence to establish the reduced access caused by the narrow gate installed, constituted an emergency that warranted immediate action by the landlord during the Covid-19 lockdown. Therefore, it was reasonable for the landlord put on hold the works to replace the gate in the circumstances.
However, in response to the residents expressing further concerns about it being too narrow and blocking access, the landlord advised it would discuss with the residents a suggestion they had raised about an alternative placement of the gate, when possible. When the landlord subsequently explained to the residents in July 2020 that due to ongoing restrictions it was still unable to visit but that the gate adaption was to go ahead, the residents highlighted that it had not discussed their proposal about the gate being installed in an alternative location. In response the landlord agreed to include this in its stage two review of the complaint and said it had requested that any works be put on hold until after the review had been conducted. It was reasonable for the landlord to put on hold the works until after its stage two review on this basis however there is no evidence of it evaluating the residents’ counter proposal either in the final response or elsewhere. It would have been helpful if the landlord had been clear about its position in relation to the residents’ proposal involving installing the gate in an alternative location.
The landlord however in its stage two response recognised that there had been a lack of communication on its behalf regarding the gate and offered the resident compensation in light of this. The landlord offered compensation that the Ombudsman considers was proportionate to the distress and inconvenience experienced by the resident in relation to the landlord’s failings in communication. The landlord also stated that a lesson had been learned around communication for changes in communal areas and ensuring all tenants are informed with notice about changes that will affect them.
Furthermore, according to the landlord’s complaint policy, it will issue its stage two complaint response withing 20 working days of receipt of the review request. However, it is evident that the landlord exceeded this timeframe. Nevertheless, it acknowledged this shortcoming, apologised for it, and made an offer of redress. The amount offered to the resident in light of its failure was reasonable and in line with its compensation policy and what the Ombudsman would expect in such circumstances.
The landlord also assured in its stage two response that the gate will be widened to accommodate the issues with accessibility that were highlighted and that this would be in line with Environmental Health guidelines.
In summary, the gate was installed without the landlord’s formal consent but the landlord had an obligation to consider all its residents’ situations when deciding on a course of action. It explained why it had agreed to the gate retrospectively and acknowledged that whilst there may have been no need for one beforehand, the new neighbour had raised concerns about security which were reasonable. The landlord subsequently proposed an alternative solution which took into account the accessibility concerns that had been raised by the residents. On balance, this was a reasonable solution. The landlord acknowledged that it had not taken into account of the fact that the installation of the gate was in a communal area used by other residents when initially responding to the neighbour’s verbal request and that it gave conflicting information about whether the gate would remain as it was. However, it offered an apology and reasonable compensation in recognition of its service failure. It also indicated learning from this outcome which the Ombudsman considers is good practice and is in accordance with our dispute resolution principles of fairness and learning from outcomes. This redress resolves the complaint satisfactorily.
The landlord has not yet carried out work to widen the gate as it told the Ombudsman this had been put on hold until after the outcome of this investigation. It also said it would follow-up with all tenants living at the property to seek their feedback as to the style of gate they preferred. This is reasonable and therefore I have included this as a recommendation below.

Determination (decision)

In accordance with paragraph 55(b) of the Scheme, there was a reasonable offer of redress by the landlord which resolves the complaint regarding the landlord’s response to the residents’ reports that a neighbour had installed a gate that restricted access to the communal path serving their property.

Reasons

Although the landlord initially failed to ensure the residents were consulted about a change that affected them, it subsequently explained why the installation of the side gate was reasonable given the safety concerns raised by the neighbour. It took account of the residents’ issues raised about accessibility and decided on a reasonable resolution that had considered all parties involved. It also acknowledged and provided reasonable redress for shortcomings in its service when handling the matter.

Recommendations

The Ombudsman recommends that the landlord:
1. Pay the residents the compensation offered in its complaint process of £100 if it has not already done so.
2. Contact the residents to seek their feedback as to the style and location of gate in accordance with its comments to the Ombudsman.