Progress Housing Association Limited (202112857)

REPORT

COMPLAINT 202112857

Progress Housing Association Limited

10 March 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 about the landlord’s revocation of permission to extend the garden at the property.

Background and summary of events

Background and policies

The resident was an assured tenant of the landlord, at the property, from 12 September 2016. The property is a three–bedroom house.
The landlord’s ‘Fencing Policy’ states at section 9.1, that ‘Tenants who wish to erect new fencing must request permission’, which the landlord will consider on a case-by-case basis.
Section 9.2 of that same policy, states that having received a request to erect fencing, the landlord will request information from its legal team, who will ‘provide details of the boundary’ and that ‘Property Services will advise on where the fencing is to be installed i.e., on the correct boundary line’.
The landlord has a two stage formal complaints procedure, whereby it aims to respond to a complaint at stage one within five working days at stage one. In circumstances where a complainant is dissatisfied with the outcome of their complaint at stage one, they may request escalation to stage two of the complaints process.
The landlord aims to review a complaint at stage two, within 10 working days. Where target timeframes cannot be met, the landlord will advise the complainant of this and provide a revised timescale.
The landlord’s compensation policy sets out circumstances where compensation may be offered. Such circumstances may include where there has been a service failure, inconvenience and as a gesture of goodwill. Guide compensation amounts range from flowers and a monetary amount of £25 for ‘low’ level impact, to £25-£500 for ‘medium’ level impact and to beyond £500 for a ‘high’ level of impact.

Summary of events

On 22 June 2018, the landlord refused a request by the resident to extend the garden at the property with the erection of a fence, due to it being communal land.
On an unknown date, the resident again requested to extend the garden at the property with the erection of a fence and on 17 September 2020, the landlord visited the property to assess the situation and the following day, gave permission to the resident to install the fence as agreed. Permission was granted for the fencing on the basis that the garden at the property was smaller than all the others on the crescent and that there was gated access further up the road and the access route at the side of the property was not being used as access.
The permission granted was conditional, with one of those conditions being “that the works are carried out by competent/qualified tradesmen” and another, “final approval can only be given once the finished works have been inspected and passed; if the works are not to standard, [the resident] may be asked to make good or, in default of this, [the landlord] will make good and recharge [the resident]”. The resident signed the document agreeing to these conditions a number of months later, on 1 April 2021.
On 20 April 2021, the landlord wrote to the resident, requesting that he let it know once the works to the fencing had been carried out, in order for a post inspection to be carried out, in accordance with the conditions earlier set out.
On an unknown date shortly thereafter, the resident received notification that the permission granted was being withdrawn and on 27 May 2021, the resident telephoned the landlord to express his dissatisfaction with this. The resident phoned the landlord again on 1 June 2021, this time to complain about the decision to revoke permission to install a fence around the garden at the property.
On the same date, the landlord wrote to the resident, acknowledging the complaint and advising it would be in touch by 8 June 2021.
On 7 June 2021, the landlord also requested advice from its legal team on the issue.
On 8 June 2021, the landlord telephoned the resident to discuss the erection of fencing at the property and wrote to him later that day. The landlord advised that it needed to undertake further investigations and aimed to provide a formal response by 22 June 2021. Specifically, it needed to:
1. Establish if any right of way exists to the ground at the rear of the property.
2. Receive confirmation from its ‘Development’ department as to whether there are any plans to use the ground to the rear for any future developments (if there were plans then it would need clarity as to whether access to the side of the property would be needed).
3. Confirm if reasonable adjustments could be made.
4. Confirm if it would need to grant retrospective permission for the erection of two sheds in the rear garden, which the resident had also installed.
On 18 June 2021, the legal advice received by the landlord was to withdraw permission in accordance with previous advice it is said to have received on 4 June 2021 and to work with the residents in the vicinity, to find a suitable solution.
Around 24 June 2021, the landlord visited the property to carry out an inspection and discuss the complaint. The landlord telephoned the resident later that day and advised that:
1. Complaints had been made about the fencing and the title deeds state that it was obliged to access to the rear field via the side of the property.
2. It could revoke the permission it granted in September 2020 at any time and that it was revoking that permission.
3. It noted that the resident had installed two sheds, a hot tub and flag pole which he had not requested permission to do and advised him that he was required to submit a written request for permission.
4. It would not be providing the resident with compensation for the works he had carried out in respect of the fencing, as he was unable to provide receipts, having stating that his friends and family had carried out the work; one of the conditions of carrying out the work was that it was completed by a competent/qualified tradesman.
Around 30 June 2021, the landlord provided its stage one response to the complaint. The complaint was not upheld. The landlord explained:
1. It had investigated ‘Rights of Way’ and could confirm that the title deeds to the land to the side and rear of the property, which state that the freeholder [the landlord] has a legal obligation to provide foot and vehicle access to the land at all times.
2. Permission had been granted in September 2020 with conditions attached and it had explicitly set out that it reserves the right to withdraw permission if it is causing or likely to cause disturbance to others or contravenes any terms of the tenancy.
3. In light of complaints that had been made about the fence and its legal obligation to provide access, it was withdrawing the permission it granted on 18 September 2020.
It set out the following actions that it would take and that would be required of the resident:
1. It would pay for the removal and disposal of the front and back fence on the access route.
2. It would pay for and remove the concrete base to the second shed.
3. It would supply and fit a new boundary fence back to the original boundary.
The landlord advised that it had ordered the works to be carried out and anticipated that this would be completed within the next two months and that the resident would be contacted with a date that the works will take place. It added that it was the resident’s responsibility to remove both sheds, the hot tub and the flag pole prior to the date that the fencing work commences.
On 2 July 2021, the resident telephoned the landlord to advise that he disagreed with the outcome of his complaint at stage one. Specifically, he said that he had spent a lot of money on the works and it would have been better if the landlord did not grant permission in the first place. He also advised that his neighbour agreed with the works
On 6 July 2021, the landlord wrote to the resident advising him that it would need to attend and remove the current fencing to the front and rear of the property where it blocks the entrance to communal land and install new fencing along the boundary line.
On the same date, the landlord acknowledged the resident’s stage two escalation request and said that it aimed to provide a response by 20 July 2021.
On 19 July 2021, the landlord issued its stage two response to the complaint. The complaint was not upheld. The landlord found that the stage one complaint had been investigated thoroughly; the title deeds had been reviewed, legal advice sought and the original refusal of permission and later granting of permission letters were looked at.
The landlord reiterated its position that it should not have granted permission in September 2020, as this contravenes the title deeds to the communal land rights of way and that it had the right to revoke permission. It advised that it would be carrying out works to remove and dispose of the fencing to the front and rear of the property that blocks communal access, erect a boundary fence with posts and remove and dispose of a concrete base positioned under one of the sheds.
The landlord stated that removal of the sheds, hot tub and flag pole would be the resident’s responsibility to remove and if he wanted to erect them in other parts of the garden, he would first need written permission. It confirmed that once a date for the works had been set, he would need to ensure that the sheds, hot tub and flag pole had been removed. It also confirmed that it would not be offering compensation as no invoices or receipts had been provided to it.

Assessment and findings

Upon receipt of the request to install his own fencing, the landlord was required to consider the request, in accordance with its ‘Fencing Policy’. There is no evidence that the landlord did this, instead granting permission on the basis that the resident’s garden was smaller than others nearby and that there was alternative access to the communal land elsewhere – with the thinking that by erecting the fencing he would not be totally blocking access off.
The basis upon which the landlord made its decision was flawed, because it was not arrived at by carrying out the actions its ‘Fencing Policy’, namely, determining the boundary and ensuring that the fencing did not breach the boundary of the property or obstruct access to communal land. Besides the issue of impinging beyond the property boundary, irrespective of access from another point, it was not permissible to block access at the property itself for reasons pertaining to the ownership of land, as well as factors such as emergency access here being unobstructed.
The granting of permission was an error on the part of the landlord; an error made because it did not act in accordance with its own policy. Additionally, a lack of attention to its own records and/or lack of thoroughness of approach to consideration of the application, also meant that the same request two years prior that had been declined for important reasons pertaining to the ownership of land and blocking access to communal land, was not considered in its decision making.
This error caused a great deal of inconvenience and undoubtedly stress, to the resident, who then spent time and money in erecting fencing around the property, under the incorrect but reasonable belief that it was OK to do so.
There is no information as to the nature of the complaints about the fencing, which the landlord referred to on 24 June 2021. Where complaints are made, there should be an opportunity for the matter in question to be put right and in the absence of information about what had been complained of, it was not possible for the resident to do so, which was unfair. The resident believed his neighbour to be happy with the fencing and it is unclear whether the complaints were from neighbours, the local authority or elsewhere, although part of the advice received by the landlord was to work with residents to resolve the issues but it is unclear precisely what this meant.
In any event, irrespective of complaints being made and by whom, the resident was not entitled to erect fencing on the land which was beyond the boundary and obstructing communal land as he did, albeit in good faith. The landlord was therefore entitled – and in fact, obliged – to revoke permission, even in circumstances where this had not been explicitly set out in the conditions.
In advising of the revocation, the landlord failed to apologise and missed an opportunity to approach the matter sensitively and empathically, particularly given the error it had made and the impact of this on the resident, nor did the landlord evidence learning from this at the time or in its complaints responses. The landlord was receiving pressure from the local authority to remove the fencing, although this was not a reason to negate this important aspect of responding to an issue or complaint such as this. In his communication with the landlord, the resident was clearly feeling stressed about the situation and referred also, to the impact on his mental health as a result.
The complaints responses were slightly delayed and outside of timescales set out in its complaints procedure, although reasons were appropriately explained for this, as its policy also makes reference to, in circumstances where a longer period of time is needed to respond.
Compensation is not the only way of responding to and resolving a complaint, but where an error has been made by a landlord, or service failure occurred, an offer of compensation is often appropriate and its compensation policy will provide guidance for this. The landlord reasonably offered consideration of reimbursement for works carried out by the resident if receipts could be provided by him, although he could not do so. The offer to remove the concrete slab under the shed was also a reasonable offer, as the landlord was not obliged to do this, particularly given that the resident had not asked permission to install the shed as he should have done.
Consideration of reimbursement for costs is different to compensation for an error or inconvenience caused on its part, however. The landlord’s compensation policy sets out tariffs for compensation offers in accordance with severity of impact and includes ‘inconvenience’ and goodwill gestures as situations where compensation may be warranted. The landlord missed an opportunity to offer compensation in accordance with its policy.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of the complaint.

Reasons

There was service failure by the landlord insofar as it failed to consider the request to erect fencing in accordance with its policy. When it realised the error and advised the resident of this, it failed to apologise, deal with the matter empathically, or to offer compensation in accordance with its compensation policy.

Orders

The landlord to apologise for the error made.
The landlord to pay the resident £250 compensation, comprised of:
1. £150 for the error made,
2. £50 for its communication and handling of the issue once it had realised the error, and;
3. £50 for the stress and inconvenience caused.
The landlord to ensure its staff are aware of the policies and procedures in respect of fencing requests, given the findings in this case.
The landlord to confirm compliance with the above orders within four weeks of the date of this determination.