South Tyneside Council (202012625)

REPORT

COMPLAINT 202012625

South Tyneside Homes

24 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

1. The complaint is about the landlord’s decision to decline the resident’s request to install fencing outside his property.

Background and summary of events

2. The resident is an assured tenant of the landlord and occupies a bungalow (‘the property’).
3. On 5 November 2020, the resident called the landlord to make a complaint about a verbal agreement he received from its surveyor some weeks prior, in which the surveyor said that he would be able to put up fencing. He was unhappy that he had since received no update on this and had been subsequently informed that he had not been granted permission to do this. The resident raised a stage one complaint about this on 11 November 2020.
4. On 12 November 2020, the resident received confirmation from the landlord informing him that his application for permission to erect front and rear fencing at his property had been refused. It referenced his tenancy agreement which stated that he was to keep shared areas free from obstruction and explained that the areas around his property were shared areas which were maintained as part of communal grounds maintenance.
5. The landlord issued a stage one complaint response to the resident on 17 November 2020 in which it stated that it had followed its procedure correctly as the areas on which he wished to erect fencing were “classed as open/communal spaces” and did not uphold his complaint.
6. In response to enquiries from the resident, the landlord visited the property on 18 November 2020 and called him on 20 November 2020 to clarify its findings. It confirmed to him that it upheld its decision not to give permission for him to erect a fence, adding that doing so would give rise to difficulties with grounds maintenance.
7. The landlord noted concerns raised by the resident that he knew of other properties in the area which had been given the same permission which had been refused him. It thanked him for this information and advised that it would now review its procedure to ensure it was clearer in future. The landlord confirmed that it was dealing with his enquiry informally and he would need to escalate his complaint to stage two if he wished the matter to be investigated formally.
8. Later that day, on 20 November 2020, the resident called the landlord to escalate his complaint to stage two. He called it on 24, 26 and 27 November 2020 to insist that it forgo investigating the complaint at stage two and requested that it be dealt with at the final stage.
9. A stage two complaint response was issued to the resident from the landlord on 3 December 2020. This has not been provided to this Service, however, it is evident that the resident was dissatisfied with this.
10. The landlord escalated the complaint to the final stage on 9 December 2020 and spoke to the resident about his concerns on 15 December 2020. 
11. On 13 January 2021, the landlord issued a final response to the resident. In this, it noted that his dissatisfaction with being refused permission to erect a fence was due to being aware that permission had been granted to other residents in similar areas which had resulted in them erecting similar fences. The landlord also noted that he had said that he would maintain the area enclosed within his fence and that this option should be a matter which other residents should be consulted on.
12. The landlord noted that the resident made his original request to erect the fencing in October 2020 which resulted in a visit from its surveyor. The surveyor had verbally told him that they “couldn’t see any problems” with the request but the final decision would be made by its Housing department. The resident’s request to erect fencing was subsequently denied due to the areas in question being communal areas. The landlord explained that the properties in the area were “mainly tenanted by the elderly and people with vulnerabilities” and therefore it had contracted grounds maintenance to maintain the grassed areas for those who were unable to; this was why it could not allow areas to be fenced off as future residents may be unable to maintain these areas.
13. The landlord also noted that its stage two complaint response had addressed the issue of other neighbours in the area being given permission to erect fencing and it had explained that this permission had been given in error. It acknowledged that its decision concerning these types of requests had been historically inconsistent and therefore it had identified service improvements as a result to enable it to ensure consistency in its decisions.
14. The landlord maintained that it would not grant permission for the erection of fencing at the resident’s property, explaining that this decision had been made in line with its policy, and apologised if his expectations had been raised by the surveyor. It noted that this verbal statement from the surveyor had not constituted formal permission. The landlord relayed the actions it had since taken across several departments to ensure that future alterations requests were dealt with appropriately and it was considering how to remove fencing that had already been erected by residents in communal areas.

Assessment and findings

Policies and procedures

15. The landlord’s tenant’s handbook confirms that a resident must obtain written permission from it before carrying out any alterations to the property; failure to do this constitutes a breach of tenancy. The tenancy agreement further confirms that the landlord’s written permission must be obtained before erecting any fence or wall. This agreement also states that the resident is required to keep shared areas free from obstruction
16. The landlord’s improvements and alterations procedure states that it may refuse permission for alterations where the alteration “may cause future issues”.

The landlord’s response to the resident’s request to erect a fence

17. It is not disputed that the area of garden which the resident requested to enclose with a fence is part of a communal area. The landlord’s decision to refuse permission is in accordance with both its tenancy agreement, above at point 15, and its improvements and alterations policy. Therefore, there is no evidence of a failure by the landlord to act in line with its obligations. It noted, in its final response on 13 January 2021, that its surveyor may have raised the resident’s expectations but advised that a final decision was required. Therefore, there is no evidence that the resident was given any incorrect information. 
18. The landlord acknowledged in its final response on 13 January 2021 that historically it had not applied its policies consistently. In line with the Ombudsman’s dispute resolution of ‘learning from outcomes’ it is noted that it created an action plan to ensure that deals with similar situations consistently in future. This action plan was provided to the resident in its final response and, by advising that it was in the process of removing existing fencing, demonstrated that the landlord dealt with the complaint fairly, in line with our dispute resolution principle of ‘being fair’, by applying its policy consistently across all properties.
19. In conclusion, there was no evidence of any failure by the landlord. It recognised that it had not enforced its policies consistently which resulted in raised expectations for the resident but there is no evidence that incorrect information was provided to him nor evidence that it acted unreasonably or outside of its policy.

Determination (decision)

20. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in its decision to decline the resident’s request to install fencing outside his property.

Reasons

21. The landlord acted in accordance with its policies and the tenancy agreement in refusing permission for the resident’s fence and there is no evidence that he was provided with incorrect information.

Recommendations

22. The landlord should ensure that it follows through with its proposed action plan to ensure that it deals with fencing requests on communal areas fairly, consistently and in accordance with its policy in future.