Ashfield District Council (202200028)

REPORT

COMPLAINT 202200028

Ashfield District Council

2 October 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 concerns regarding the boundary hedge at the property.

Background

2. The resident is a tenant of the landlord which is a local authority. The tenancy began in April 2021. The property is an end of terrace bungalow. The landlord has advised that it has no recorded vulnerabilities for the resident but the resident has referred to having disabilities.
3. The complaint was raised by the resident, and, at times, by various representatives. For clarity, this report will refer to both the resident and her representatives as ‘the resident’.
4. The records indicate that the boundary hedge of the property was cut back whilst the property was empty prior to the resident’s tenancy beginning. The resident initially raised concerns to the landlord in May 2021 about security and privacy, noting that the hedge had been cut to a low level and had large gaps. She continued to pursue her concerns throughout 2021.
5. The landlord responded at the time and confirmed that the hedge had been maintained by its environmental sector and that it would grow back in time. It said that the hedge demarked the property’s boundary and it was not its procedure to remove the hedge and replace it with fencing. The records indicate that sprigs were planted around October 2021 to fill in the gaps that had previously been created.
6. The resident raised further concerns in January 2022, noting that there were still gaps in the hedge which were allowing members of the public to enter the garden. She provided video footage of unknown persons passing along the back of the property. The landlord explained that the main entrance gate to the property was shared with the neighbouring property, meaning that, at times, people would use the gateway and would pass along the back of the resident’s property to access the neighbouring property. It confirmed that concerns regarding unauthorised people accessing the garden would need to be raised with the Police or its community safety team.
7. The resident raised a complaint in February 2022 as she was unhappy that the landlord had refused to remedy her concerns regarding the boundary hedge of the property. She was dissatisfied that the hedge had been cut to around 18 inches in height and the lack of privacy and security as a result. She noted her concerns that the landlord had a legal obligation to provide a safe and secure boundary which provided privacy in line with the Human Rights Act 1998 and the Housing Health and Safety Rating System (HHSRS). She also raised concern that strangers could currently enter the garden and that she and her neighbours were concerned about security. She asked the landlord to make the boundary secure with a fence.
8. In response to the resident’s complaint, the landlord acknowledged that the hedge had been given a “hard cut” by its environmental service and apologised that this sat below the resident’s desired height. It reassured the resident that this would grow in time and that it had planted sprigs as a gesture of goodwill. It further explained that it was not obliged to do this as the hedge would grow, however, it did so in view of the resident’s concerns about gaps. It had also instructed its grounds team to trim the hedge during its bi-yearly visits but to let the hedge grow. It confirmed that it had viewed the hedge on 23 February 2022 and noted that it was around hip height, which was similar to the height of other hedges and fences in the locality. It explained that it was obliged to demark the boundary of the property, however, it had no obligations in regard to the height or density of the hedge, or to supply a fence in its place.
9. The landlord further explained that it did not believe that it had violated or infringed the resident’s rights under the Human Rights Act 1998 but that if the resident wished to challenge this, she may wish to seek legal advice. In addition, it noted that the HHSRS referred to the property itself and that it supplied door and window locks as well as external security lighting as safeguarding measures. It said that there were no apparent gaps in the hedge which would allow persons to enter the garden and that it had discussed the resident’s concerns about crime and antisocial behaviour with the Police and its community safety team; both had confirmed that the area was a low to no risk crime area. It maintained that the resident should report any suspicious activity to the police or its community safety team. It confirmed that there was no sufficient evidence to support it in replacing the hedge with a fence but that if the resident wished to erect a fence, this would be at her own expense and that she would need to seek written permission from it in order to proceed.
10. The resident referred her complaint to this Service as she remained dissatisfied with the landlord’s response to her concerns. She maintained that the hedge had gaps which people could walk through and provided photos. She remained dissatisfied that the landlord had failed to provide a safe living environment. She also raised concern that the hedge of the property at the other end of the terrace had also been cut but this was significantly higher than her own.

Assessment and findings

Scope of investigation

11. In her communication with this Service, the resident raised concern that the landlord had not considered the height of the hedge at the other end of the terrace when handling the matter. There is no evidence to suggest that the resident had raised these concerns as part of her formal complaint to the landlord. As such, this is not something that this Service can adjudicate on at this stage, as the landlord needs to be provided with the opportunity to investigate and respond to this aspect. The resident may wish to contact the landlord regarding this if she remains concerned.
12. The resident has maintained that the landlord had violated her rights to privacy and security under the Human Rights Act 1998. It is beyond the remit of this Service to determine whether a member landlord has acted contrary to the Human Rights Act 1998 as this would be a legal matter, better suited for courts to decide.
13. This investigation has considered the action taken by the landlord in response to the resident’s complaint, including whether it has behaved reasonably and responsibly in the circumstances and acted in accordance with its policies and procedures. The resident may wish to seek independent legal advice if she believes her rights have been infringed by the landlord.

The landlord’s response to the resident’s concerns regarding the boundary hedge.

14. The resident’s tenancy agreement states that the landlord should supply the resident with the details of the property boundary. The resident would be responsible for maintaining their garden, which includes hedges. It notes that boundary hedges should be trimmed on a regular basis and kept below 2m in height. The resident must also not remove, alter or replace any fence, wall or hedge without the landlord’s written permission. The tenancy handbook confirms that the landlord would be responsible for repairs to any fencing.
15. The resident has provided various photographs of the hedge of the property to the landlord and the Ombudsman. It should be noted that the Ombudsman is limited in the extent to which it can rely on photographic evidence as it is not possible for this Service to determine the location/circumstances of the photographs, or the validity of the images themselves. As a result, we do not generally place significant reliance on photographs in reaching our decisions.
16. In this case, it is not disputed that the boundary hedge of the resident’s property was cut back shortly before the tenancy began. It is noted that following the resident’s initial concerns, there was some miscommunication regarding who had cut the hedge. This was not specifically raised by the resident as part of her formal complaint. However, the landlord took satisfactory steps to rectify any misunderstanding by confirming that its environmental sector, under its role as a local authority which was separate to its responsibilities as a landlord, had maintained the hedge on behalf of the previous tenant who had not been able to do so themselves. The landlord acted appropriately by apologising to the resident that the hedge had been cut to below the desired height and confirming its obligations.
17. The landlord satisfactorily managed the resident’s expectations from the outset by confirming that it would not replace the hedge with a fence at her request. The landlord’s advice was reasonable as it was in accordance with the tenancy agreement which states that the landlord is only obliged to supply the resident with the details of the property boundary. There is no other evidence within the tenancy agreement to suggest that the landlord was obliged to install a fence in place of the hedge. It also offered reasonable advice to the resident and confirmed that she would need to seek written permission if she wished to install a fence at her own cost as it would not complete this work itself.
18. In her correspondence with the landlord, the resident referred the landlord to the Housing Health and Safety rating system (HHSRS), specifically section 12. The HHSRS is a risk assessment procedure which sets out hazards. For a property to be “decent” it should be free from category one hazards and the existence of such hazards should be a trigger for remedial action by a landlord. Section 12 refers to hazards concerned with keeping a dwelling secure against unauthorized entry and maintaining a property’s safety. It notes preventative measures which can affect the likelihood of this hazard, including security lights, window and door locks, consideration regarding the design of the area around the dwelling to reduce hiding places as far as possible, including fencing, and that the dwelling should be made safe against unauthorized entry so as to delay and deter intruders.
19. The landlord took reasonable steps to explain the safeguarding measures it had in place to prevent this hazard such as window and door locks, security lights and sufficient lighting across the area. It acknowledged that the guidance did give reference to the consideration of fencing and noted that the current hedge allowed better visibility across the scheme in order to view any intruders and limit ‘hiding spaces. There is no evidence to suggest that the landlord was required, in line with this guidance, to specifically install fencing in place of hedging which served a similar purpose.
20. Landlord’s would generally only be expected to replace the boundary or other installations where the item in question is beyond economic repair. In this case, whilst it is not disputed that there were gaps in the hedge as a result of the cut, there is no evidence to suggest that the growth of the hedge had been stunted or that it was in decline.
21. The landlord acted appropriately by planting sprigs in the gaps as a result of the resident’s concerns. It was not strictly obliged to do this as the hedge would grow in time, however, it was reasonable for it to do so in an attempt to fill the gaps in the hedge in a shorter timescale for the resident. It has also confirmed that it had instructed its grounds team to allow the hedge to grow to the resident’s desired height in an attempt to resolve the complaint, which is reasonable in the circumstances.
22. Whilst it is noted that the planting of sprigs in the gaps of the hedge would not be an immediate fix of the issue. The landlord also took reasonable steps to consider the potential risk to the property as a result of the gaps and confirm its position. The evidence provided by the landlord shows that it also took reasonable steps to discuss the security of the hedge internally and confirmed with its private sector enforcement team that they would have no reason to issue any form of notice in relation to the installation of fencing at the address.
23. The resident had concerns that unauthorized people would access her garden and property through the gaps in the hedge and provided footage to the landlord which showed people passing along the back of the property. There is no documentary evidence to show that persons had specifically entered through the gaps in the hedging. The landlord acted appropriately by confirming the reasons why people may pass the back of the property; in order to access the neighboring property. It also offered appropriate advice to report unauthorised people or suspicious activity to the Police or its community safety team as this would fall under antisocial behaviour or a possible criminal matter.
24. The evidence shows that the landlord also took reasonable steps to investigate the crime rate in the area in response to the resident’s concerns. The evidence shows that there had been no crime in a half-mile radius of the property between September 2021 and February 2022. Whilst this is not to say that crime is not possible within the area, there is no evidence to suggest that the resident was at a high-risk of crime or that additional intervention was required by the landlord in an attempt to prevent any ongoing crime such as placing a fence in place of a hedge.
25. In summary, there has been no maladministration by the landlord in respect of its handling of the matter. Whilst it is noted that the hedge is not the resident’s desired height or fullness, there is no evidence to suggest that the current hedge is unsafe or unfit for purpose. The landlord is not obliged to replace the hedge with a fence and made reasonable efforts to explain its position to the resident.

Determination

26. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s concerns regarding the boundary hedge.

Recommendation

27. It is recommended that the landlord contacts the resident and updates its record in relation to any household vulnerabilities to ensure these are considered in future in relation to any required repairs.