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Hinckley and Bosworth Borough Council (202109753)

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REPORT

COMPLAINT 202109753

Hinckley and Bosworth Borough Council

28 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:
    1. the boundary between his and his neighbour’s gardens;
    2. antisocial behaviour (ASB) from his neighbour.

Background and summary of events

Background

  1. The resident has been a secured tenant at the property of the landlord since 1998. The landlord is a local authority.
  2. The resident’s property is part of a two storey building, in which the resident’s neighbour also resides. There is a garden area at the front and rear of the property, with a narrow garden area along the side. Access to the rear garden is across the front and side garden.
  3. The resident has advised this service that, prior to the period of the complaint, there was a fence dividing the side garden, and that the resident had use of the garden to the rear of this fence, and that the neighbour had use of the garden in front of the fence.
  4. The landlord has provided this service with a letter addressed to the resident dated 20 June 2012 which noted that “the garden at the side of the flats becomes the responsibility of your neighbour,” and that the neighbour “has agreed that your bins can stay beside the fence on his garden.”
  5. This service does not hold a copy of the original tenancy agreement. The landlord has provided this service with a template tenancy agreement. The template tenancy agreement notes that the ‘property’ may include a ‘garden’. The tenancy agreement also refers to potential ‘shared gardens’. The landlord’s permission must be sought prior to erecting any structure on the garden.
  6. The landlord operates a two stage complaints procedure.

Summary of events

  1. The resident has advised this service that the current neighbour removed the fence and gate dividing the side garden. It is not disputed that the neighbour did not seek the permission of the resident or the landlord when removing the fence.
  2. Prior to the period of the complaint, it is not disputed that the neighbour discussed with the resident the installation of a shed in the side garden, which would overlap onto an area the resident considered to be his garden. The resident provided his verbal agreement for a “small” shed. The resident has advised this service that the shed subsequently erected was larger than he had agreed to, and that the neighbour also built decking in the side garden area which he had not agreed to. The neighbour also installed raised planters in the side garden where the resident had previously kept his bins. It is not disputed that the neighbour did not seek permission prior to the installation of the shed and decking.
  3. The landlord has provided this service with its internal communications and notes from the period of the complaint. The resident reported in April 2020 that the neighbour had installed a shed, decking, and planters in the “shared area.” He requested that the landlord review these installations. The landlord advised that it had raised the resident’s concerns with the neighbour, however, based on the evidence provided to this service, it is not evident whether there were any follow up communications at this time.
  4. In August 2020, the landlord confirmed that it did not require permission for planters, and that while it required a request for permission for a shed, this would usually be granted. It therefore requested that the resident provide further details about his concerns about the shed.
  5. Throughout September 2020, the resident reported that the neighbour had been interfering with his bins. The landlord’s internal communications note it was searching its records for the original garden boundary plans around this time.
  6. In October 2020, the resident reported that the neighbour had been verbally abusive towards him. He advised he had forwarded his reports to the police, who were investigating. The landlord forwarded the reports to its ASB team, which confirmed the correct course of action was to refer these reports to the police. It advised it would liaise with the police and could consider tenancy enforcement action based on the outcome of the police’s investigation. It is evident that in or around January 2021, the police determined they would not take any further action and closed the investigation.
  7. In or around January 2021, the landlord discovered that it did not have a garden boundary plan in its records, and so provided a new draft garden plan to the resident. The draft garden plan depicted the neighbour’s garden area extending into the rear garden. On 15 January 2021, the resident expressed concern that the landlord was now giving away a large part of his garden. He also expressed dissatisfaction with the landlord’s response to the ASB he had reported.
  8. On 22 January 2021, the resident provided the landlord with a link to an online land registry database which depicted a plan of the garden with a dividing line across the side garden. He also noted the garden allocation to the neighbour in the landlord’s draft garden plan appeared to encroach on another neighbour’s property as well. He concluded that he wanted the garden boundaries returned to how they were prior to the neighbour moving in, and reiterated that he had not given permission for the fence to be removed, or for the shed as it currently was.
  9. On 22 March 2021, the resident raised a formal complaint regarding the landlord’s garden plan and its management of his concerns. The landlord provided its stage one response on 25 March 2021. The landlord noted that the resident and the neighbour had previously made their own arrangements regarding the boundaries which “should not have been made between yourselves.” It noted it had made reasonable attempts to facilitate mediation, which had been unsuccessful, and as such it had made its own decision regarding the boundary, which it was “entitled to do as … the land owner.” It advised that if the resident wished to challenge its garden plan, he should seek legal advice.
  10. The resident subsequently requested that his complaint be escalated. He also reported he had injured his arm on some loose screws sticking out of the shed. The landlord confirmed the escalation and advised it would request for the neighbour to address the loose screws. Regarding any sort of personal injury claim, the landlord advised this would be a civil matter between the resident and the neighbour.
  11. The landlord provided its stage two response on 12 April 2021. It noted its staff had been proactive in communicating with the resident and so disputed it had mishandled his concerns. It reiterated its position that it was able to determine the boundary as it saw fit and that the resident could seek legal advice if he disagreed.
  12. In May 2021, the resident requested that the landlord consider his complaint again. He also expressed concern that the shed had an electricity and water supply that could be dangerous. It is evident that the landlord subsequently attended the property and assessed the shed. On 28 May 2021, the landlord advised it considered the shed to be safe and that the electricity supply had been a temporary use of an extension cord. The resident disputed this was the case and provided a photograph depicting electrical cables being fed through an air brick in the property to the shed. The landlord advised it would consider if a further inspection was necessary, however, it is not evident any further action was taken.
  13. Throughout May and June 2021, it is evident that there was ongoing issues with the storage of the bins, and that the resident agreed to mediation to discuss all the issues. The landlord noted the resident had reported the removal of the fence and gate by the neighbour to the police, and so advised mediation would commence following the police’s investigation. The resident has advised this service, however, that following this he no longer wished to proceed with mediation.
  14. Around this time, the neighbour also raised concerns about the resident’s CCTV. The resident has reported to this service that the neighbour subsequently damaged the CCTV while removing it.

Assessment and findings

Boundary

  1. The Ombudsman’s role is to assess whether a landlord’s actions were in line with its policies, with best practice, and were fair and reasonable in all the circumstances.
  2. Paragraph 52 of The Housing Ombudsman Scheme also notes the Ombudsman’s investigation will assess whether a landlord behaved unfairly, or unreasonably, and also whether it treated the resident in a heavy handed manner.
  3. The tenancy agreement notes that a ‘property’ may include a garden which is the responsibility of the resident, or a shared garden. Unfortunately, this service had not been provided with a plan of the property from the period that the tenancy agreement was entered into, nor does the landlord have a copy in its records.
  4. The resident has advised this service, and the landlord, that there had historically been a fence separating the rear garden from the side/front garden. This position is corroborated in the landlord’s correspondence from June 2012, in which it confirmed the neighbour had responsibility for the front and side garden up to the fence. The resident has also provided a copy of a historic land registry plan of the neighbourhood which indicates a divide between the gardens in the same location that the resident has advised there was a fence.
  5. The resident has advised that the current neighbour removed the dividing fence (and access gate). It is not disputed that the neighbour requested to build a shed in the side garden and requested the resident’s permission. The resident has described that the shed he agreed to was small in nature. The agreement between the resident and the neighbour was not put in writing, so this service cannot assess the details of this agreement. The resident has, however, made it clear it his position that he did not, and does not, give permission for the larger shed that was built to overlap onto his garden.
  6. Following the resident’s reports about his concerns with the shed and storage of his bins, the landlord advised it would initially discuss the concerns with the neighbour. This was an appropriate course of action, however, it is not evident whether this occurred and no follow up with the resident was made.
  7. The resident also raised concerns that no permission had been sought for the shed by the neighbour. The landlord did not dispute that no permission had been sought, but advised that permission for sheds would usually be automatically granted, unless contested. The landlord has also advised this service that it has retrospectively granted permission. Given, however, that there was, and is, an active dispute over the shed, and that at the time the shed was built, it is unclear on whose property it was built, it is unclear how such permission has been justified.
  8. The resident also raised concerns about an electrical supply to the shed. The landlord appropriately inspected the shed and during the inspection, it determined that the electrical supply had only been temporary by way of an extension cable. The resident has disputed the temporary nature of the electrical supply and has provided a photograph of an electrical cable being fed through an airbrick in the house to the shed. The landlord appropriately advised it would consider reinvestigating. Given the safety concerns that the photograph presents, the Ombudsman would consider it best practice to have provided a follow up to the resident about its position, however, it is not evident this occurred.
  9. Regarding the boundary, the landlord appropriately searched its records to determine the correct garden plan, however, it did not have one. It therefore determined it would create a new boundary plan. The landlord did not have a policy in place for determining a plan in such circumstances. It based its draft plan on the current location of the shed (and decking). This meant that an area extending beyond the property and into the rear garden had now been assigned to the neighbour.
  10. Following the resident’s formal complaint about the new garden plan, the landlord’s formal response somewhat chastised the resident for having initially made his own arrangements with the neighbour regarding the shed, noting “these arrangements should not have been made between yourselves.” This position does not take into account the resident’s advice that he requested the neighbour to seek the landlord’s permission prior to building the shed.
  11. The landlord also noted it had already assigned the side garden to the neighbour in June 2012, however, given that there was no visual plan included in its 2012 correspondence, and that the correspondence noted the side garden ended at the dividing fence, it is unclear why this was used as a justification for its current garden plan which extended into the rear garden.
  12. It is evident that the landlord offered mediation in an attempt to resolve the dispute between the neighbours, and that the resident initially declined this offer. This was an appropriate step by the landlord to reach a resolution to the resident’s concerns and, given that the resident initially declined, it was reasonable that it sought other methods to resolve the dispute.
  13. When providing its initial draft garden plan, the landlord appropriately sought feedback from both the resident and the neighbour prior to finalising it. Given that the resident gave feedback about the location of the fence and the issue around the plan also encroaching on another neighbour’s garden, it would have been helpful had the landlord provided detailed responses to each element of his concerns. Instead, the landlord relied on its ability to determine the plan as it saw fit as the chief justification for its plan. While it did not have a formal policy, the Ombudsman would consider it fair and reasonable for the landlord to consider requests for a review of its decision in light of any further evidence. Instead, the landlord stated its decision was final and that the resident’s only recourse was to seek legal advice.
  14. In summary, the landlord’s decision to change the boundary was based on a number of disputed factors. Firstly, it based its decision upon its 2012 correspondence that the side garden was given to the neighbour, however, this same correspondence indicates there was a dividing fence, meaning the extent the side garden extended into the rear garden was less than it had now determined. Secondly, the landlord used the fact the resident and the neighbour had mutually agreed to the shed as justification for the new plan, however, the resident has been clear throughout that he did not agree to the shed that was built. Thirdly, it based its decision on the fact that it could divide the property as it saw fit as landlord, which the resident has disputed.
  15. The Ombudsman notes that the tenancy agreement included terms for what constitutes the ‘property’, which can include a garden. There are also terms for the use of a shared garden. Whether the property was intended to include a garden is unclear as the original documents are missing. The legal interpretation of such terms, and whether a landlord can vary such terms simply by virtue of being the landlord are beyond the scope of this investigation. Any determination about whether the landlord is in breach of the tenancy agreement is more appropriate for the courts. The resident is reminded of his option to seek legal advice should he wish to pursue this element of the complaint.
  16. Nevertheless, when considering what was fair and reasonable in the circumstances, the Ombudsman would expect a landlord to provide a clear framework for how it would make a decision such as this, justify its position, and provide an avenue for review of its decision. In this case, the landlord took some appropriate steps, such as investigating as to whether there was a historic plan in its records, discussing the issues with both parties and offering mediation, and initially presenting a draft plan. However, as noted above, the justifications for its decision are in opposition to the evidence presented by the resident, and aside from taking legal action, there has been no option to seek a review presented to the resident. The Ombudsman does not therefore consider the landlord’s actions to have been fair and reasonable in all the circumstances, and given the impact its decision has had on the resident, this amounted to maladministration.
  17. It is evident that the resident has expended considerable time and trouble in pursuing his concerns with the landlord, and that its decision has caused him distress and inconvenience. In the circumstances, an amount of £400 compensation is appropriate to reflect the distress caused.
  18. Given that there is no conclusive evidence as to the exact garden boundaries prior to the fence being removed, the Ombudsman cannot make an order that the boundaries be returned to their previous position. An order has, however, been made for the landlord to review its decision in light of the issues identified in this investigation, and to seek further comments and evidence from the parties before reaching a decision that it is satisfied is fair to both parties.

ASB

  1. Throughout the course of the complaint, the resident has reported that the neighbour has used abusive language towards him. Prior to initially reporting this to the landlord, the resident reported this to the police. The landlord subsequently advised that the police were the correct body to investigate this behaviour. It also advised it would liaise with the police regarding their investigation and that they may consider further action depending on the outcome of the police’s investigation.
  2. The Ombudsman considers it reasonable for a landlord to work with external agencies as part of its approach to ASB, especially where the ASB is criminal in nature. In this case, the landlord appropriately informed the resident of its approach, and was proactive in keeping abreast of any developments by liaising with the police directly.
  3. The Ombudsman understands that for a landlord to take significant action against a resident’s tenancy, a high level of evidence is required. In the case of criminal behaviour, this would include action being taken by the police. Given that the police did not take any further action, it was reasonable for the landlord not to consider tenancy enforcement action, and it is evident that the landlord continued to recommend any further similar behaviour be referred to the police.
  4. It is also evident that the neighbour was causing issues with the resident’s bins, either interfering with them, or making it difficult to store them. Following these reports, it is evident that the landlord spoke with the neighbour, and took steps to arrange a mutually arrangement between the parties for the storage of the bins. This is again what the landlord would expect and was reasonable in the circumstances.
  5. In this case, the disagreement over the garden boundaries and the breakdown in the relationship between the parties due to ASB were linked. In his formal complaint, the resident raised his dissatisfaction with how the landlord had handled the issues he was experiencing with the neighbour, which clearly included the ASB concerns.
  6. As part of a landlord’s internal complaints procedure, the Ombudsman would expect a landlord to carry out a thorough investigation of all elements of a complaint, and use its formal response to set out the steps it had taken to address a complaint. In this case, however, the landlord did not specifically refer to the steps it had taken regarding the ASB concerns, and instead stated it was satisfied with how its housing officer had handled the case. This response did not demonstrate that a thorough investigation had taken place and was a missed opportunity to demonstrate the action it had taken. This would have caused frustration for the resident.
  7. Additionally, following the completion of the landlord’s internal complaints procedure, it continued to offer mediation between the parties. It advised, however, that the mediation had to be postponed until after the police’s investigation into the resident’s reports regarding the removal of the fence. It is not evident that the landlord has a specific policy in relation to mediation, and it is not clear why the police investigation would preclude mediation between the parties. Indeed, the delay for this reason led to the resident withdrawing from mediation.
  8. In summary, while the landlord initially approached the resident’s reports about ASB in line with what the Ombudsman would consider best practice, its subsequent deferral of mediation without a clear explanation, along with its failure to use its formal response to demonstrate it investigated the resident’s concerns with its actions caused distress and inconvenience for the resident. In the circumstances, this amounted to service failure for which an amount of £100 compensation is appropriate to reflect the impact on the resident. Additionally, a recommendation has been made that the landlord reiterate its offer of mediation.
  9. The Ombudsman notes the resident has also raised concerns about the neighbour damaging his CCTV. It is not evident this has yet been raised as a formal complaint and so is outside of the scope of this investigation. A recommendation has been made below that the landlord contact the resident to discuss these concerns.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its response to the resident’s concerns regarding the boundary between his and his neighbour’s gardens.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its response to the resident’s concerns regarding ASB from his neighbour.

Reasons

Boundary

  1. The landlord’s decision to draw the garden boundary with the neighbour’s garden taking up a larger area of the rear garden than it previously had was not made in a fair and reasonable manner. This is because the landlord’s reasoning went against the evidence that was presented to it, including its own communication from 2012, and was based on the parties having made an agreement between themselves, which is disputed by the resident. The landlord also did not provide any recourse, aside from legal action, for the resident to dispute its decision.

ASB

  1. While the landlord took reasonable steps to signpost the resident to the police, keep abreast of the police’s investigation, and measure the resident’s expectations about what action it could take, the landlord failed to adequately investigate the resident’s concerns as part of its internal complaints procedure.
  2. The landlord also withheld mediation on the basis that an ongoing police investigation was occurring, despite there being other areas of the breakdown in relationship that could have been resolved in the meantime.

Orders and recommendations

Orders

  1. The Ombudsman orders the landlord to pay compensation of £500, comprising:
    1. £400 for any distress and inconvenience caused to the resident by its failure to act in a fair and reasonable manner when making a new garden plan;
    2. £100 for its inadequate investigation of the resident’s concerns about its handling of his reports about ASB.
  2. This amount must be paid within four weeks of the date of this determination.
  3. Within four weeks of the date of this determination, the landlord is to carry out a review of its decision regarding the garden plan in light of the issues identified in this investigation, and to seek further comments and evidence from the parties before reaching a decision that it is satisfied is fair to both parties involved. The outcome of this review, including an explanation of the factors considered in its decision making, is to be shared with the resident and a copy sent to the Ombudsman.
  4. Within four weeks of the date of this determination, the landlord is to reiterate its offer of mediation between the resident and the neighbour.

Recommendations

  1. The landlord to contact the resident within four weeks of the date of this determination to discuss the resident’s concerns about his CCTV at the property.