Southwark Council (202014353)

REPORT

COMPLAINT 202014353

Southwark Council

20 December 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 regarding the landlord’s decision to remove a fence erected by the resident.

Background and summary of events

Background

2. The resident is a secure tenant of the landlord, a Local Authority. She has held a tenancy at the property, a 2-bedroom ground floor flat, since 2004.
3. The landlord has a Tenancy Handbook, which notes that ‘shared areas can form a part of a tenant’s escape route’ and that ‘it is very important that (tenants) do not block these areas in any way’.

Summary of Events

4. On 15 September 2020, the resident wrote to the landlord in relation to a conversation regarding ‘a fence around my rented ground floor flat’. This Service has not seen any other records relating to this conversation but, in her letter, the resident advised she had been granted permission to build the fence by her previous Resident Services Officer because her ‘living room door/window faces a main road’ and she had been the victim of anti-social behaviour which made her feel unsafe in her home. She noted the fence had now been up for over ten years but clarified she was ‘fully aware the area inside the fence is not included in (my) tenancy and that should I ever purchase the leasehold it would not be included’.
5. The resident wrote a further letter to the landlord on 21 October 2020, ‘regarding the decision to ask me to remove the fence around the flat I live in’, which she stated had been relayed to her by her Housing Officer on 18 October 2020. In her letter, the resident expanded on her reasons for wanting the fence to remain:
   1. It had been in place for ’18 years or so’, she had renewed it twice during that time and been given permission to erect the fence by a previous Resident Services Officer.
   2. She first installed it for security and privacy reasons and because her flat was the only one in her block which faced the main road. She stated that in warm weather having the door open was unsafe and cited two incidents of anti-social behaviour, including a burglary, from before the fence was erected.
   3. She stated that during the coronavirus lockdown, the garden had been a great space to assist with social distancing and had helped her mental health.
   4. Two other residents had built fences and had not been asked to remove them. She asked whether, if the reason for her being asked to remove the fence was only ‘aesthetic’, she would be allowed to install another fence which met the landlord’s approval.
   5. She again acknowledged that the land did not form part of the property, noting that, were she to purchase the flat, ‘the garden is not included’.
   6. She asked the landlord not to ‘make me feel unsafe in my own home’ and that she be allowed to ‘have a fence of some kind’.
6. The landlord replied to the resident on 29 October 2020 (while the letter was dated 29 September 2020, the landlord has since clarified that this was an error). In its letter, the landlord advised it had read the resident’s letter and that it appreciated ‘how difficult the thought of removing the fence will be for you’. However, it went on to state that the area in question was a communal space and it was ‘unclear…on what basis permission would have been granted (to originally erect the fence), if it was at all as there is no document on your file to say so’ and that there was no record of her being allowed to ‘take private possession of a communal space’. The landlord stressed that it ‘shared (the resident’s) pain’ and it was not ‘in any way dismissing the genuine security and safety concerns you have raised’ but clarified that it had ‘no authority to give you permission to fence off a communal space and convert it into a private garden’. It apologised to the resident that it had to send her ‘a distressing letter’ but reiterated its position.
7. On 17 November 2020, the resident sent the landlord a further email regarding the fence. She largely reiterated her reasons for wanting the fence to be remained, but additionally stated that she believed the landlord was being ‘unreasonable’ in asking for her to remove the fence after it had stood for 18 years, that in 45 years of living on the same street she had never seen residents using the communal area in question ‘for recreational purposes’ and that the landlord’s decision had affected her mental health and it was treating her badly by not considering her offer to replace the fence with one that it might approve of. The resident stressed she was ‘not asking for special treatment’ but just wanted to feel safe in her house.
8. The landlord issued its Complaint Review (Stage Two) response on 18 December 2020. It noted that the complaint regarded the fact the resident considered its decision to order the removal of her fence was ‘not fair and caused great upset’. It noted that the resident believed she should be allowed to keep the fence due to ‘potential risk; duration the fence has been there; lack of use by other residents (of the communal garden); (and) other residents have fences around the communal land’.
9. In its response, the landlord advised that, having investigated the case, it was satisfied that its response at Stage One had been correct. It noted that its decision to order the removal of the resident’s fence had been prompted by complaints from other residents and confirmed that, should other residents request permission to erect their own fences, this would not be granted as this would be contrary to their tenancy agreements. It advised that, were it to grant permission, it would ‘have a significant impact on ownership issues relating to properties if there comes a time when residents want to purchase the property through the right to buy scheme’. It acknowledged that the fence had given the resident ‘further privacy and security’ and that reported security issues were ‘unfortunate’ but noted that there was no record of her ever having been granted formal permission to erect the fence and therefore it needed to be removed. It further noted that despite the resident stating that her neighbours did not use the communal space in question, the erection of her fence had in effect ‘privatised’ part of a communal area which was against the agreements it had with other residents to ‘provide communal space for all to share’. The landlord outlined that this was the final stage of its complaint process and referred the resident to this Service if she remained unhappy with its response.

Assessment and findings

10. It is not disputed that the resident has erected a fence outside of her property and created a private garden space on communal land, owned by the landlord, which is not included within her tenancy agreement. Although this Service has not seen records relating to the original conversation that took place between the landlord and the resident, records indicate that she was asked to remove the fence in or around October 2020. In the correspondence between the resident and landlord seen by this investigation, it is clear that the resident acknowledges that the fence that was built covers communal land that is not included within her tenancy agreement and that, should she ever buy the lease, the land within the fenced area would not be included. There does not appear to be any dispute that the resident does not have any rights to the land that she has fenced off.
11. In its original response in October 2020, the landlord stressed it fully understood the distress its decision would cause the resident but clarified it did not have any record of her having been given permission to erect a fence in the communal area and it therefore had no option but to ask her to remove it. It further clarified that it had ‘no authority to give (her) permission to fence off a communal space and convert it into a private garden’. While this Service empathises with the resident, in particular regarding her safety concerns and the fact that the fence has been in place for a significant length of time, the landlord’s response was reasonable. Its letter acknowledged the reasons she wished to keep the fence in place, and as above, that its decision would be upsetting for her, but it was fair to point out that the resident had effectively taken part of a communal area for her private use and, while she advised that a former Resident Services Officer had given her permission to build it, there was no documented record of this.
12. In its later Complaint Review response, the landlord was transparent when advising that its decision had been prompted following the receipt of complaints from other residents and that it would not grant permission to other residents if they requested permission to install fences of their own, noting that this would have ‘significant impact on ownership issues’ should residents subsequently make ‘right to buy’ applications. In the Ombudsman’s opinion, the landlord’s response was reasonable. It again noted the reasons the resident had given for wanting to keep the fence, but it was consistent in its position and its response treated her fairly by providing clear reasons for its decision. While it acknowledged the resident had advised she felt unsafe in her property, it is noted that the incidents the resident cited in her complaint letter occurred almost twenty years ago. While the resident may believe that there have been not been more recent incidents because the fence was in place, the landlord was not unreasonable in concluding that there was no evidence of any current risk to her if it removed the fence.
13. In its submissions to this Service, the landlord provided its Tenants Handbook and drew attention to Section 3 of the document which notes that ‘it is very important that (tenants) do not block these (communal areas) in any way’ and notes that the resident is in breach of her tenancy by keeping the fence, as it constitutes a trespass. While the Ombudsman acknowledges that the resident will be upset at having to remove the fence and this may be distressing for her, based on the information available, in the Ombudsman’s opinion the landlord is legally entitled to ask it to be removed, or to take subsequent enforcement action if this is not done. Its decision is not unreasonable and there is no evidence that it has treated the resident unfairly. While the resident believes that the landlord should consider her request to replace the fence with a different type it may approve of, unless the fence did not encroach onto the communal, shared area, it would still constitute a breach of tenancy and the landlord therefore did not act unreasonably by not considering this. It is also noted that, particularly in its original response, the landlord sought to convey its decision respectfully, and considered the effect it may have on the resident.

Determination (decision)

14. In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord regarding its decision to remove a fence erected by the resident.

Reasons

15. The landlord is legally entitled to ask the resident to remove the fence, as it has been built on communal land which does not form part of her tenancy. Despite it being in place for a significant length of time, there is no documentary evidence that the resident was ever given permission to install the fence and there is no evidence that indicates she is currently at risk of anti-social behaviour were it to be removed. Whilst the resident’s concerns about potential risks are understandable, the landlord addressed these and explained its position in regard to the removal of the fence.
16. The landlord’s responses showed that it acknowledged the resident’s reasons for wanting the fence to remain, and that she would be very upset by its removal. It showed understanding towards her feelings and the impact that removing the fence may have on her but, based on the evidence available, including the resident’s tenancy conditions and other relevant legislation, its decision was reasonable and there is no evidence that it treated her unfairly in its decision-making process.