Dudley Metropolitan Borough Council (202118269)

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REPORT

COMPLAINT 202118269

Dudley Metropolitan Borough Council

11 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

  1. The complaint is about the landlord’s handling of the resident’s reports of badgers in her garden.

Background

  1. The resident is a tenant of the landlord, which is a local authority.
  2. In February 2021 the resident reported that badgers were damaging her garden. She said the landlord was indirectly responsible as it had sold the land behind her garden to building developers. The subsequent development of the landlord had displaced the badgers who had been living there previously, meaning they moved into the resident’s garden.
  3. The resident raised a formal complaint concerning the landlord’s handling of the badger issue in March 2021. In its responses to the complaint in March and September 2021, the landlord said badgers were a protected species, and that it could not take any action to mitigate the problem. It had visited the site but could not carry out the actions the resident had suggested (excluding or relocating the badgers). It said it would continue to monitor the situation.
  4. In the resident’s complaint to this Service, she set out that she was dissatisfied the landlord had not relocated the badgers. She reiterated her concerns with the landlord selling land to building developers. She asked to be compensated for her belongings in the garden which had been damaged by the badgers.

 

 

 

Assessment and findings

Scope of investigation

  1. In the resident’s correspondence with this Service, she raised concerns that the landlord sold land behind her property to building developers. In accordance with paragraph 39 (m) of Housing Ombudsman Scheme, we will not look at matters which in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator, or complaints-handling body. Concerns relating to the local authority’s decision to sell land would be more suitable for the Local Government and Social Care Ombudsman (LGSCO). This is because it is the Housing Ombudsman’s remit to investigates local authorities’ activities which directly relate to their role as social landlords. Local authorities’ other activities which do not directly relate to their role as landlords, fall under the remit of the LGCSO. this would include the local authority’s decision to sell land.
  2. The resident also referred to her belief that the building developer illegally displaced the badgers. In accordance with paragraph 35 of the Housing Ombudsman Scheme, the Ombudsman would only look at the actions and omissions of member landlords. We would not investigate the actions of other organisations, such as building developers which are not members of the housing Ombudsman Scheme. Therefore, this investigation will focus solely on the landlord’s actions in its capacity as a social housing landlord, and not the actions of the building developer. Specifically, we will look at how the landlord handled the resident’s reports of badgers, and whether its actions and responses were reasonable in the circumstances of the complaint.

The landlord’s handling of the resident’s reports of badgers in her garden.

  1. The Ombudsman acknowledges that the badgers’ presence in the resident’s garden has caused her significant distress and inconvenience. We have not disregarded her reports of how this has affected her and continues to affect her. However, as set out above, it is our role to assess whether the landlord has acted reasonably, in accordance with its obligations.
  2. The landlord’s website explains that its pest control service does not provide pest control treatment for badgers. It also explains that it is illegal to kill, injure or interfere with badgers or their sett in any way, even if they are causing damage to a property. This is because badgers are a protected species under UK law.
  3. The resident was dissatisfied with the landlord’s actions in response to her reports of badgers. The evidence provided for this investigation shows the landlord attended on at least three occasions (in March, August, and September 2021) to inspect the resident’s garden. It provided a detailed update concerning its position on the badger situation following its August 2021 visit. The landlord reported that the resident had suggested excluding the badgers from the garden. The landlord said this option was not feasible as it would result in the badgers digging new access points to their sett. The landlord said the resident had also suggested capturing and relocating the badgers. It said there was a limited scope for relocation as surrounding districts had similar issues due to the number of badgers living in the area. It maintained that it could not take action against the badgers because they are a protected species but advised that it would monitor the situation.
  4. Although the landlord was unable to resolve the resident’s complaint, it demonstrated that it had taken her reports seriously by attending on multiple occasions to assess the situation. It managed her expectations by reminding her that badgers were protected species and gave clear, and reasonable explanations as to why its actions were limited and it could not follow the resident’s suggestions for resolving the issue.
  5. The resident wanted the landlord to compensate her for the damages to her garden as she said it was responsible for the problem. She said it was responsible for taking action when residents reported issues which were not their fault. For the landlord to be expected to compensate the resident for any damages there would need to be evidence to show it was responsible for the badgers presence in the garden and that it could have but did not take appropriate steps to resolve the situation. In this case, no evidence has been provided to show the landlord had any obligations in terms of the removal or handling of the badgers. It is acknowledged that the resident was not at fault for the badgers entering her garden, however this does not mean that the landlord was responsible. Badgers are protected species, wild animals, and there are laws in place to ensure their safety. As such, whilst the landlord would normally have certain responsibilities in terms of pests such as rats, or bed bugs, badgers would not fall under its jurisdiction. Therefore, the landlord would not be required to offer the resident compensation for the damages as it had no control over the issue and was not at fault for causing it.
  6. Ultimately, whilst it is understandable that the situation would have been extremely distressing and frustrating for the resident, no evidence has been provided for this investigation to suggest there were further steps the landlord could have taken in response to her concerns as it had no obligations relating to badgers. As such, in the circumstances of this complaint, its actions and responses were reasonable. 
  7. Nevertheless, the landlord’s records show that following the completion of its complaints procedure, it reattended and internally suggested installing badger proof fencing along the rear garden boundary. It is unclear whether it has since carried out this work. Whilst the landlord was not required to fit such fencing, it would have been helpful if it had considered this action whilst the resident’s complaint was ongoing to help resolve her concerns. It is therefore recommended that the landlord considers carrying out this work now, if it has not already been completed.

Determination

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in respect of the landlord’s handling of the resident’s reports of badgers in her garden.

Orders and recommendations

  1. It is recommended that the landlord considers installing badger proof fencing along the rear garden boundary as it suggested following its visit in October 2021.