Portsmouth City Council (202120896)

REPORT

COMPLAINT 202120896

Portsmouth City Council

11 July 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

1. The complaint is about the landlord’s response to the resident’s reports about items left in a communal garden.

Background

2. On 12 October 2021, the resident, who is a secure tenant, informed the landlord that her neighbour (from the flat above and with whom she shared the communal area) had put a large trampoline, amongst other items, in the communal garden. The resident advised that after an unsuccessful attempt to speak to the neighbour in order to come to an agreement, the neighbour had become aggressive. In response, the landlord sent a letter, on 26 October 2021, to both residents to require all belongings to be removed from the communal area by 9 November 2021. When the neighbour failed to remove their items from the communal area by this date, the landlord issued a further letter, requiring objects to be removed by 30 November 2021.
3. The resident complained on 24 November 2021. As well as raising the issue of her neighbour’s personal belongings in the communal area, the resident said that, in her view, the landlord was siding with the neighbour due to a comment that was made about the trampoline and the neighbour’s son. The resident also raised additional anti-social behaviour (ASB) issues regarding the neighbour. However, it was noted by the landlord that these additional issues were not part of the formal complaint. The landlord attempted to pursue the ASB claim, but the neighbour would not engage and therefore the ASB case was closed. The resident was made aware of this on 21 December 2021.
4. The landlord’s stage one response was sent on 8 December 2021. It confirmed that conversations would be had with the neighbour regarding the remaining items in the communal area. It also apologised if the statement made about the neighbour’s son had led the resident to construe bias towards the neighbour, and it assured that any resolution to the issues would be based upon a fully informed and proportionate assessment of the circumstances. It thanked the resident for her compliance with removing her own personal belongings and assured her that conversations were ongoing with the neighbour.
5. Following this Service’s involvement, which confirmed the resident’s desired outcome of ensuring that the neighbour would adhere to tenancy conditions, and that a date would be set for the removal of items from the communal area, the landlord provided its final response (13 January 2022). The landlord advised that it had been in communication with the neighbour regarding the removal and use of personal possessions in the communal garden. It acknowledged that it had taken longer than expected, that it had not kept the resident updated regarding the progress of the matter and that it had failed to resolve the issue in a timely manner. It sincerely apologised and confirmed that the issue would be resolved within 4 weeks. It also noted that it was considering providing a dividing fence and providing each tenant with a dedicated area of use.
6. On 10 February 2022 the landlord notified the neighbour that staff would be attending the property on 18 February 2022 in order to remove the trampoline if it had not been already. On 23 February 2022, the landlord confirmed that the garden had been split, and that it was awaiting new washing lines to be installed. Although the fence had been split, the resident remained dissatisfied as the neighbour still entered her ‘side’ of the garden. The landlord said that it had made clear that it was still a communal space and though it understood the resident’s frustration, it apologised that it could do no more. However, it did offer to have a conversation with the neighbour to remind her of the reasons the fence had been installed, and to ask her to respect this. The resident confirmed that she did not want the landlord to do this.

Assessment and findings

Policies & Procedures

7. Section 4 of the Tenancy Agreement states that ‘[Residents] must keep communal areas clear of [their] personal belongings and rubbish’.
8. Section 2.1(a) of the landlord’s Anti-Social Behaviour (ASB) Policy states that a definition of ASB is ‘conduct that has caused or is likely to cause, harassment, alarm or distress to any person’.
9. Section 7.2(b) of the landlord’s ASB Policy states that the landlord should ‘[Keep the resident] informed of developments’.
10. Section 7.2(c) of the landlord’s ASB Policy states that the landlord should ‘[Offer] appropriate advice and support’.

Scope of Investigation

11. It is clear from investigating this complaint, that the resident had reported the issue to the landlord of aggressive and threatening behaviour from her neighbour. The landlord attempted to conduct an investigation into this, however, this investigation did not progress due to a lack of engagement from the resident’s neighbour. As this aspect of the complaint was not part of the resident’s escalation to stage two, it did not exhaust the landlord’s internal complaints process (ICP).
12. Therefore, this Service is unable to investigate this aspect of the complaint, as the Ombudsman can only investigate complaints that have fully exhausted the landlord’s ICP. If the resident felt dissatisfied with how the landlord had handled this aspect of the issue, the resident would need to make a formal complaint to the landlord, and only after receiving a final response in regard to the complaint, would this Service be able to investigate.
13. With this in mind, this investigation has considered the landlord’s response to the resident’s reports of the neighbour’s items left in the communal area. This includes the actions that the landlord agreed to take as part of its complaint response to the resident.

The landlord’s response to the resident’s reports about items left in a communal garden

14. On 12 October 2021, the resident reported to the landlord that her neighbour had left several of her personal items in the shared communal area and that this had led to confrontation between the resident and her neighbour. Section 2.1(a) of the landlord’s Anti-Social Behaviour (ASB) Policy states that a definition of ASB is ‘conduct that has caused or is likely to cause, harassment, alarm or distress to any person’.
15. Additionally, leaving personal items in the communal area was in breach of section 4 of the tenancy agreement, in which it states that ‘[Residents] must keep communal areas clear of [their] personal belongings and rubbish’. With this in mind, the landlord advised that it would send a letter to both residents advising of the breach of tenancy, and to advise that all personal belongings must be moved by 9 November 2021.
16. The landlord’s decision to send a letter to both residents was fair and reasonable. It would not have been fair to the neighbour if the landlord had required her to move her personal belongings without requiring the resident to do so also. The resident agreed with the landlord’s decision and subsequently complied with the order to remove her belongings from the area, such as plant pots.
17. On 24 November 2021, the resident submitted her formal complaint. She expressed that during a visit to the property on 12 November 2021, she felt that the landlord had displayed a bias to the neighbour regarding the issue with the trampoline, by mentioning how its removal would affect the neighbour’s son. The resident also expressed her frustration that the neighbour’s personal items remained in the communal area following the deadline to have them removed.
18. The landlord gave its stage one response on 8 December 2021. It advised that the agent who had visited the property on 12 November 2021 apologised if ‘her statement that the removal of the play equipment would impact upon [the resident’s] neighbour’s child led [the resident] to construe a bias’. It also added that ‘any resolution to the issues…will be based upon a fully informed and proportionate assessment of the circumstances’. It was appropriate for the landlord to apologise and to reassure the resident that it would seek a fair and reasonable resolution based upon the circumstances at hand. It is important for the landlord to build trust with the resident, as this helps to improve the landlord/tenant relationship. Ensuring that the landlord is working in a transparent, fair and equal manner, is vital in achieving this. In the circumstances, the apology given by the landlord, together with its clarification as to how its management of the situation would proceed, was proportionate to the failing that had been identified.
19. In regard to the resident’s concerns that the neighbour’s items remained in the communal area, the landlord briefly addressed this as part of its formal response, but did not go into detail. The landlord advised that it was engaging in ongoing conversations with the neighbour, but that the details would be kept private. Although it is reasonable that details of conversations are kept private, the landlord should have expressed its intentions to the resident. By giving both the resident and the neighbour a specific date in which to comply with a request, the landlord opened itself to scrutiny when the order had not been enforced. Additionally, this would have helped to manage the resident’s expectations.
20. In her formal complaint, the resident noted that the landlord had attended on 10 November to remove rubbish but had said that it was not able to remove personal belongings. However, this was contrary to what had been written in a letter to the neighbour on 22 November 2021. This letter advised that all personal belongings should be removed by 30 November and that ‘Any items left in the communal area beyond this date and time will be removed and stored for a period of 28 days before being disposed of’. This contradiction of information was part of a communication issue that was present throughout the landlord’s handling of the complaint. This communication issue points to an overall failing by the landlord in managing the resident’s expectations, which is an important part of maintaining a positive tenant/landlord relationship.
21. 30 November 2021 came and went without the landlord enforcing the removal of the items in the area. On 10 December 2021, the resident called the landlord to advise that she was not satisfied with the landlord’s formal response. She also wanted to know if the neighbour would be asked to move the trampoline or not. Had the landlord maintained adequate communication with the resident, it could have made the resident aware that it was attempting to get the neighbour to remove the trampoline and had sent letters instructing her to do so. It may also have been able to clarify any restrictions it might encounter in taking such an action. Section 7.2(b) of the landlord’s ASB Policy states that the landlord should ‘[Keep the resident] informed of developments’. With this in mind, the landlord could have still maintained its aim of keeping conversations with the neighbour private, whilst still informing the resident of its attempts to make the neighbour remove the items.
22. The landlord provided no reasoning for not enforcing the removal of the items, even though its letter suggested that it would remove them, if not already done by the neighbour. The landlord’s failure to ensure that the neighbour complied with its order could have conveyed to the resident that it was not taking the matter seriously. Although no reason was given for not enforcing the removal, the landlord did admit in its final response (13 January 2022), that resolving the issue had ‘taken longer than should be expected’ and apologised for the delay. It then confirmed that it would be ‘resolved in the next four weeks’.
23. Following this, a letter was sent to the neighbour on 10 February 2022, that advised her that staff would be attending the communal area on 18 February 2022. It said that if the trampoline was still there, it would be removed of. That said, the trampoline was not taken by 18 February and was still present in the area at the end of February. No evidence has been provided confirming the date that it was removed. However, it is clear that it remained in the communal area for a long time after the date given in the stage one response and final response. Although the removal date has not been confirmed, it is not disputed it has since been removed.
24. The landlord also admitted that there was a failure to update the resident regarding the delays in resolving the issue. The poor communication from the landlord was a consistent theme throughout its handling of the complaint. The landlord should have kept the resident updated regarding the progress of her complaint, and its attempts to resolve the ongoing issue. Its failure to do so potentially conveyed a lack of urgency to the resident, further deteriorating the trust and relationship between the two parties.
25. Although the landlord apologised, it offered no form of compensation to the resident. This Service’s remedies guidance suggests that payments of £50 to £250 would be reasonable for the landlord’s ‘failure to meet service standards for actions and responses but where the failure had no significant impact’. Given that in its final response, the landlord had admitted to a ‘failure in the level of service received’, a payment within this bracket would be expected.
26. However, the landlord did show that it would attempt to learn from its service failures, as it stated that ‘[the landlord] will now look at how this type of issue is recorded and followed up, to ensure that [the landlord manages] these more effectively and provide realistic timescales to manage expectations in the future’. Managing the resident’s expectations is a vital part of resolving a complaint, as it shows that the landlord is being proactive in its attempts to resolve the issue for the resident. It also gives the resident a roadmap of the landlord’s intentions and expected targets for investigating and resolving the complaint. Additionally, the landlord’s suggestion that it would learn from its failures was in line with this Service’s dispute resolution principles (DRP). The DRP suggests that landlords should ‘learn from outcomes’ and that it should ‘review lessons identified from complaints and inform the complainant of changes made as a result of them to demonstrate commitment to resolving disputes and excellence in customer care’.
27. Although the landlord suggested that it would learn from its service failures, the communication problems continued. In its final response, the landlord advised the resident that it was considering ‘providing a dividing fence in the communal garden and providing each tenant with a dedicated area to use’. The resident, on multiple occasions contacted the landlord in order to gain clarity on the installation of the fence. On 21 February 2021, during a call from the landlord to the resident, notes suggest that the resident had been asking whether each tenant would have separate access to the gardens following the split of the communal area. The notes of the call suggest that the resident was not given an answer and that the landlord would chase an answer for the resident.
28. No evidence of the landlord providing clarification to the resident on this matter has been provided. On 9 March 2021, the resident called the landlord and advised that the garden had been divided, but the neighbour was entering her ‘side’ of the garden. From this point onwards, the landlord maintained the stance that the garden was still a communal garden, even though they had provided a dividing fence.
29. It is clear that following the suggestion that the landlord would erect a boundary fence in the garden, the resident sought clarity on exactly what it would entail, how it would resolve the issue, and whether or not it would cause further problems between herself and her neighbour. From the evidence provided, the landlord failed to provide that clarity until the fence had been installed. Once the fence had been installed, the landlord’s assertion that the garden remained a communal area contradicted the statement in its final response that suggested each resident would have a ‘dedicated’ area.
30. Additionally, it is reasonable to conclude from the landlord’s internal correspondence, that a contributing factor for the landlord’s actions in how it divided the garden was the resident’s Right to Buy (RTB) application, and its previous experience in dealing with leasehold sales in such circumstances. In an internal email on 9 March 2022, the landlord wrote that including gardens within the lease during RTB transactions had caused legal issues for them, and therefore the landlord was ‘wherever possible not selling gardens with the lease’. The landlord concluded that installing a fence ‘so long as [the landlord] retained ownership and control’ would be an acceptable solution.
31. Whilst the landlord was entitled to take this issue into account when considering its response to the complaint under investigation, there is no evidence that it explained this to the resident. Doing so would have provided her with clarity and would have demonstrated the landlord acting in a transparent manner. Additionally, the resident had clearly been left in the dark after multiple attempts at seeking information from the landlord. The landlord’s failure to explain clearly how its solution would resolve the issue, and exactly how it would be beneficial to the resident, was further indicative of its communication failures throughout the complaints process.
32. It should also be noted that on 9 March 2022, the landlord had offered mediation between the resident and her neighbour. This was offered more than two months after the landlord’s final response was given. Section 7.2(c) of the landlord’s ASB Policy states that following the identification of ASB, the landlord should ‘[offer] appropriate advice and support’. Its failure to offer mediation at the start of the complaint investigation was a failure to offer a level of support that would have been appropriate. It would have been particularly appropriate for the landlord to offer mediation at the earlier stages, as the resident had made it clear to the landlord that she had attempted to come to an arrangement with the neighbour prior to making the complaint. Had the landlord offered this route earlier in its investigation, it may have facilitated an earlier resolution to the issue.
33. It is important to note that the resident refused the mediation offer, however, she might want to reconsider this if the landlord were to offer this option again. This Service acknowledges the benefit of mediation services in improving relationships between parties in such cases. As well as the tenant/landlord relationship, it is important that the resident feels comfortable in their own home regarding the occupants of the neighbouring properties. Any steps that the landlord can take to improve this is welcomed.
34. As a whole, it is clear that the landlord had attempted to resolve the situation fairly and with both the resident and the neighbour’s interests in mind. However, poor communication with the resident, and unnecessary delays in resolving the issue caused the resident to experience needless stress. The landlord admitted services failure in its delays and communication issues, and its attempt at remedying the situation only led to further problems for the resident, and ultimately has left the issue unresolved. Additionally, Its failure to inform the resident of updates, and its decision making processes further reinforces its service failure.

Determination

35. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in the landlord’s response to the resident’s reports about items left in a communal garden.

Orders and recommendations

Orders

36. The landlord is ordered to pay the resident a total of £200 compensation. This can be broken down to:

1. £100 for the delay in removing items from the communal area.
2. £100 for the communication failures.

37. The landlord to evidence compliance to this Service with the above order within 28 days of this determination.

Recommendations

38. It is recommended that the landlord conducts a review of its communication processes, in order to keep residents informed of updates and developments regarding complaints. Additionally, the landlord should ensure that residents are kept informed of its decision-making processes and how conclusions have been drawn.
39. It is also recommended that the landlord once again offers to mediate between the resident and her neighbour in order to come to a mutually beneficial agreement.