Believe Housing Limited (202102816)

REPORT

COMPLAINT 202102816

Believe Housing Limited

21 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

The complaint is about the landlord’s response to:
1. The resident’s reports of boundaries issues between hers and the neighbouring property.
2. The resident’s concerns about being advised to reinstate her garden and her request for the landlord to undertake the works to install a driveway.
Since completing the complaints procedure, the resident has also complained about the landlord’s response to a report of antisocial behaviour.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
Paragraph 39(a) of the Housing Ombudsman Scheme states that “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.”
After carefully considering all the evidence, in accordance with paragraph 39(a) of the Housing Ombudsman Scheme, the resident’s complaint about the landlord’s response to a report of antisocial behaviour that she made since completing the landlord’s complaints procedure is outside of the Ombudsman’s jurisdiction.
On 4 August 2021, this Service advised the resident that any incidents that have arisen after the date of the final complaint response will therefore not have been investigated and responded to by the landlord and will fall outside the scope of the investigation, in accordance with paragraph 39(a). The resident on 9 August 2021 asked the landlord to raise a Stage 1 complaint as she had concerns her neighbour was seeking to antagonise and intimidate her. She provided a photo of a neighbour’s friend standing within the curtilage of her property. The landlord responded on 13 August 2021 stating it would not register a Stage 1 complaint as there was no evidence that the neighbour was confronting her. Furthermore, it had no jurisdiction in approaching the neighbour as he is an owner/occupier. The landlord noted that the resident had the right to ask people to leave her property. It also noted that it had offered mediation and it reiterated this offer.
The resident’s complaint about the landlord’s response to her report about her neighbour has not completed the landlord’s complaints procedure. Therefore, in accordance with paragraph 39(a) of the Housing Ombudsman Scheme, this complaint is outside the Ombudsman’s jurisdiction to consider.
Reports about the behaviour of neighbours would not ordinarily be responded to as a formal complaint in the first instance, but by reference to the landlord’s antisocial behaviour and nuisance policy. It is noted that the landlord did not register a formal Stage 1 complaint. However, it explained its position that it did not consider that the incident reported to be one that it was required to intervene in. The resident has explained to this Service on 9 December 2021 that she disagrees with this decision. This Service can assist residents with raising formal complaints and advise landlords to register or escalate a formal complaint in accordance with this Service’s complaint handling code. In fact, a separate case has been created with this purpose, 202111557. This Service will therefore consider the landlord’s response of 13 August 2021 and the resident’s email of 9 December 2021 under 202111557, then advise the parties accordingly of the next steps.

Background and summary of events

Policies and Procedures

The resident’s tenancy agreement confirms that the resident:
1. Should not “carry out alterations or additions either inside or outside your home without our written permission… This includes…, driveways…”
2. Is “not to without our written permission build a garage, car-hardstanding or driveway.”
The landlord’s Alterations Policy states that:
1. Alterations include situations where the resident “undertakes any alterations within the curtilage e.g. boundary fences, garden sheds, greenhouses, patios, decorative gravel and garden decking.”
2. “Works that would constitute a major alteration or improvement include … Installing car driveways…”
3. “It is a condition of our tenancy agreements that all tenants must seek written approval before starting any alterations and improvement.”
The landlord has a two-stage complaints procedure:
1. At stage 1, the landlord “will respond formally once the investigation is complete within ten working days… Where it is not possible to respond within 10 days, we will let customers know that we are extending this and give a date within an additional 10 days where we aim to get the response to them.”
2. At stage 2, “We will acknowledge all stage two complaints within two working days and aim to respond formally once the investigation is complete within 20 working days…As with stage one, if we require further time to investigate the complaint we will inform the customer and advise of a revised date for response within an additional ten working days.”

Summary of Events

A photograph from 2018 confirms that originally, at the rear of the resident’s property, was a grassed garden area. This area lead outward onto a gravel topped area, bordered by chain-link fencing on two side. It is understood that the resident previously parked on this area. Enclosing the other side of the gravel was a wooden fence held by concrete posts separating the area from the adjacent, parking area of a neighbour, who is an owner occupier. The open side of the gravel leads onto a shared driveway as does the neighbour’s parking area.
On 25 May 2018 the landlord wrote to the resident granting permission for her to remove chain link fencing so she could temporarily park her car into her rear garden whilst improvement works necessitating scaffolding were carried out. The landlord stated the resident, on completion of the works should reinstate the garden fence and garden to the original state.
On 21 June 2018, the resident asked the landlord if she could make the situation permanent. On 22 June 2018, the landlord responded stating that it refused permission for the resident to install a driveway to her rear garden and insisting that the garden was reinstated.
A photo from 2019 confirms that the resident had removed the perpendicular chain link fencing and that as a consequence there was no boundary between the grassed area and the gravel. That section of the chain-link fencing was not reinstated.
On 28 May 2019, the landlord warned the resident about not parking on an appropriate hardstanding area but on the grass/soil itself which was churning up the garden and driving it onto the street. Following a complaint from the resident on 23 July 2019, the landlord on 9 August 2019, granted permission for her to install a permanent hardstanding area at the rear of the garden, with conditions. One condition was the surface should be tarmac, concrete or blocked paving. It advised the approval was valid for 6 months and would be withdrawn if the resident had not completed the works within that time. The resident signed her agreement to the conditions.
On 13 August 2019, the landlord sent the formal complaint response confirming that whilst the resident had not reinstated the chain link fencing as requested, it had now permitted her to make a permanent hardstanding drive. The landlord stated that whilst the resident had parked in the area for 13 years without being told not to, it would only take action against a breach of tenancy when aware. The landlord also noted that the resident had reported that the neighbour was erecting part of fence to extend the boundary line. It had approached the neighbour who stated that he had temporarily added a string fence on the resident’s side to ensure the correct fence was straight.
On 30 August 2019, the resident confirmed to the landlord that she would meet the conditions set for the hardstanding. She also advised that she understood the neighbour would keep to the boundaries of the property when he rebuilt his fence. The resident has not installed a hardstanding drive and at some point, the grassed area was replaced with gravel.
On 2 September 2019, the resident complained through her MP that the neighbour had encroached on her land and was now removing the fence posts. She also complained about having to pay for a hardstanding area. On 15 September 2019 the resident advised the neighbour had now removed the fence post and would be concreting the area, taking 20cm or so over the boundary.
On 23 September 2020, the landlord visited then emailed the resident the outcome. It sent a marked photograph showing where it believed the boundary line to be, based on the centre points of the original concrete posts. It advised the resident that it would need to consult with the neighbour, however.
On 2 October 2020 the resident claimed the neighbour was not following the boundary, now laying down shuttering which presented a hazard to her car as she could not see it from her driving position. On 26 October 2020 an internal email of the landlord noted that the position of the ends of the shuttering were correct as were the posts that were on the neighbour’s deeds. It also noted that the neighbour had agreed not to install a fence.
On 5 November 2020 the landlord wrote to the resident attaching a photograph showing a red dot and the line of shuttering which ran flush and straight from the near side of the fence posts. It noted that the “dot indicates the centre line as the whole of the fence posts are the responsibility of the neighbouring property as per the terms of his sale, however if there were to be fencing attached, this would cause an obstruction for both parties for the purpose of the drive. With this in mind it has been agreed that the shuttering will be your dividing line and NO FENCE will be erected. That way, access and egress from your vehicle will not be compromised.” The landlord noted that this should allow the resident to proceed with installing her driveway.
On 18 November 2020, the landlord confirmed with the neighbour the agreement that the shuttering would be the boundary, therefore they could lay down concrete to that point, but that no fence would be installed.
The resident raised concerns about the landlord’s decision stating that:
1. The surveyors who visited on 23 September 2020 had provided contradictory information and advised that the neighbour had unlawfully erected the fence further than they should have.
2. She disagreed with the proposal to extend the shared driveway “into the area of each other’s property” as she thought if the neighbour concreted the area where there used to be a fence, they would encroach on her side of the driveway to gain more space on their side.
3. As a resolution she wanted the landlord to install a fence on her side of the driveway to form the boundary, as was the case before. With regards to the hardstanding driveway, she requested that the landlord install it as it was not her property and she had used the driveway for 13 years previously.
After speaking to the resident, on 8 February 2021, the landlord raised a new complaint given the length of time that had elapsed since the previous complaint response in 2019.
On 13 February 2021 the resident asked the landlord, as resolution to her complaint, to also inform her neighbour that he had parked his vehicle in such a way that it overlapped on the shared driveway.
On 18 February 2021, the landlord held a joint meeting with its legal team. The legal team noted that the deeds for the neighbour’s property showed that the fence line was owned by the neighbour. It considered the fence to be in the correct location taking into account the position of the original fence posts as seen from the photo from 2018. (The meeting notes confirm the surveyor who visited in September 2020 was not aware of the photo of 2018 showing the original fenceposts when he visited). The legal team also advised that the access pathway to the rear of both properties was owned by the landlord and therefore not part of the curtilage of either property and as such, neither party should be parking on this. The meeting notes confirm that the neighbour had been made aware not to overhang onto the shared pathway.
On 23 February 2021, the landlord responded to the complaint, providing annotated photographs from 2018 and 2020. It noted:
1. Having consulted the deeds for the neighbour’s property, the original fence fell under their responsibility and was part of their curtilage. As the neighbour owned the fence, the boundary was to the end of the fence posts as shown by the photo from 2018. This boundary was depicted by the shuttering in the recent photograph.
2. It therefore would not be advising the neighbour to remove the shuttering and apologised that its surveyor had given contradictory advice at the home visit.
3. Whilst the resident had asked the landlord to install a fence, this would therefore be within the neighbour’s property.
4. It had previously granted permission for the resident to install a hardstanding driveway in 2019. It would not withdraw permission but had decided that the resident should complete the works by 23 May 2021. If the works were not completed, permission would be withdrawn, and the resident expected to return the area to its former state.
5. As requested by the resident, it had advised the neighbour that as the access to the rear was shared access, he should not encroach on this whilst parking.
On 8 March 2021, the resident escalated the complaint, disputing the landlord’s proposed boundary and contending that the photo from 2018 showed the neighbour’s fence in between the concrete posts and on their side, therefore the shuttering was to their advantage. The resident also queried why she had not been contacted about using the driveway during the previous 15 years and how the deadline date was calculated. She stated that the “garden fence, post, the driveway and patio are also up to the landlord to repair.” The resident also stated that she had reported many times her neighbour encroaching on the shared driveway when parking.
The landlord escalated the complaint and sent holding responses on 7 April 2021 stating it would now respond on or by 21 April 2021. On 21 April 2021, the landlord confirmed the response would be sent the following day.
On 22 April 2021, the landlord sent the Stage 2 response to the complaint. It found that:
1. the Stage 1 decision that the actual boundary fell at the edge of the fence posts had been taken fairly. The advice previously provided was based on information from the resident and neighbour alongside advice from the Legal Team.
2. Once it was made aware that the resident was using the driveway from its complaints response of August 2019, it took steps to resolve the issue.
3. The letter of May 2018 providing temporary permission to use the back of the garden for parking whilst scaffolding was erected made clear that she should restore the garden afterwards. The target date given of 23 May 2021 was set as three months from the date of the response issue. It would extend the date to 23 June 2021.
4. It would not install a drive as compensation as the only service failure was an initial lack of clarity over the initial information provided about the boundary. However, to resolve the issue, it would contribute 50% of the cost of the driveway.
5. It had spoken to the neighbour requesting him not to cause an encroachment.
6. It would offer £25 for the delay in the Stage 2 response.

After the complaints procedure

On 30 April 2020, the landlord advised the parties that it would not be managing the dispute in relation to parking and offered mediation. The neighbour agreed to stop encroaching when parked, although he also advised he may install the fence on the boundary if the resident did not proceed with install a hardstanding area. The parties have advised this Service that the neighbour has since installed the fence. The landlord considers that the fence is within the boundary of the neighbour’s property, i.e. to the end of the fenceposts.

Assessment and findings

The resident’s reports of boundaries issues between hers and the neighbouring property

The resident has complained that the neighbour is changing the boundary between their properties in the area where they park their vehicles. The resident’s tenancy agreement does not contain a plan showing the curtilage of her property. However, the neighbour is an owner occupier. Therefore, the deeds of his property show the curtilage of the property, and therefore where the boundary lay.
Ultimately, the landlord has taken appropriate steps to identify the boundary. It has inspected the site and examined photographs thereby noting where the fence posts have been sited, and where shuttering has, more recently, been laid. The landlord has considered the deeds which shows the curtilage of the neighbour’s property. It was also appropriate that it consult its legal team as the demise of a property is a legal issue on which the team can provide expert advice.
The landlord has also taken reasonable steps to explain its findings to the resident. It has explained that the fence posts are the responsibility of the neighbour as provided by his deeds, and that therefore the boundary is at the end of the fence posts. It also explained that the shuttering laid down accurately marked this boundary.
The resident raised concerns that the landlord originally provided her different advice in September 2020 and believes that this advice should hold. However, at the time the landlord advised it would need to consult with the neighbour, indicating that the advice was provisional. The landlord also made clear in its subsequent correspondence, in particular in its responses of 23 February 2021 and 22 April 2021 where the boundary lay. In particular the landlord clarified that the boundary was not marked by the centre point of the posts.
The landlord also sought to address the resident’s concerns about access to parking by asking the neighbour not to proceed with installing a new fence. It transpired that the resident did not object to a fence per se, and actually wanted the landlord to install a fence to mark the boundary; however, she disputed the position of the fence. It is the neighbour’s responsibility for the fence. Also, the landlord’s repair obligation to the resident does not extend to improving the property, for instance by installing a new fence that it did not previously provide. Therefore, the landlord was not obliged to install a fence. Moreover, as the landlord does not have the right to carry works on the neighbour’s property any fence that it built would be within the resident’s property and therefore of no more benefit to her.
The resident raised an additional issue of the neighbour’s vehicle encroaching into the shared drive when parking. Where an incident of nuisance has been reported, it is appropriate that a landlord raises this with the alleged perpetrator in the first instance. This ensures that the alleged perpetrator is aware of the report and has an opportunity to amend their behaviour and provide their version of events. It was therefore appropriate that the landlord, as confirmed in the Stage 2 response, spoke to the neighbour about the report.
It was also reasonable that the landlord offered mediation. This is because mediation is a widely used option used to resolve low-level disputes, such as disputes over parking / boundaries. Through a facilitator, the parties are able to understand the views of each other and can arrive at a mutually agreed, confirmed agreement to prevent the dispute escalating.

The resident’s concerns about being advised to reinstate her driveway and her request for the landlord to undertake the works

The resident’s tenancy agreement and the landlord’s Alterations Policy confirm that alterations to the resident’s property need to be formally approved by the landlord. Approval is at the landlord’s discretion. The installation or extension of a driveway is categorised as an alteration / improvement.
In this case, the resident did not comply with the landlord’s original request in 2018 that she reinstall a chain link fence and stop using the grassed area for parking. This was superseded, to her benefit, by the landlord’s later decision in 2019 to permit her to install a hardstanding area instead. The landlord made clear that the area should be hardstanding specifying that the surface should be tarmac, concrete or blocked paving. The type of works that the landlord was allowing the resident to complete was at its discretion, and it is reasonable that it specifies works that it considers will meet the standard it wants for the property.
Given that the resident has not installed the hardstanding the landlord has the right to insist that she either complete the works or return the property to how it was before. The latter is consistent with the condition set in 2018 that the resident should reinstate the garden after the improvement works. Moreover, the landlord’s request that she reinstate the garden in consistent with her tenancy obligation to keep her garden no maintained at all times.
The resident has requested that the landlord install the hardstanding itself. As stated above, it has no obligation to improve the resident’s property, in this way. More generally, as a social landlord it has a responsibility to manage and prioritise its limited budget for repairs and maintenance. Nonetheless, it has offered to meet half the cost for the works. This is over and above its landlord obligation and therefore demonstrates an intention to find a satisfactory solution to the resident’s complaint and draw the matter to a close.
Regarding the landlord’s complaints handling, the Stage 1 response met the target timeframe, but the Stage 2 response was delayed. However, the landlord mitigated the inconvenience by sending holding responses. It also offered compensation of £25 which was proportionate redress given the length of the delay.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the resident’s complaint about its response to her reports of boundary issues between hers and the neighbouring property.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the resident’s complaint about its response to her concerns about being advised to reinstate her driveway and her request for it to undertake the works.

Reasons

The resident’s reports of boundaries issues between hers and the neighbouring property

Ultimately, the landlord has taken appropriate steps to identify the boundary, including consulting with its legal team. The landlord has also taken reasonable steps to explain its findings to the resident, including making clear that its original advice of September 2020 was incorrect.
Whist the resident requested that the landlord install a new fence, the landlord was not obliged to do so. With regards to the resident’s report of the neighbour’s vehicle encroaching onto the shared drive when parked, the landlord responded appropriately by speaking to the neighbour and by offering mediation.

The resident’s concerns about being advised to reinstate her garden and the request for the landlord to undertake the works to install a driveway

The landlord’s decision in 2019 to permit the resident to install a hardstanding area instead of reinstalling a chain link fence and reinstate her garden was made with the discretion it had under the tenancy agreement and Alterations Policy. Given that the resident has not installed the hardstanding, the landlord has the right to insist that she either complete the works or return the property to how it was before, in accordance with her tenancy obligation.
The landlord has no obligation to install the hardstanding itself as it has no obligation to improve the resident’s property. However, it is offered to meet half the cost for the works which is over and above its obligations and demonstrates an intention to find a satisfactory solution to the resident’s complaint.