Gentoo Group Limited (202218794)

REPORT

COMPLAINT 202218794

Gentoo Group Limited

23 August 2023

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 its proposals to remove the resident’s garage and driveway as part of its regeneration scheme.

Background

2. The complainants are joint assured tenants and live in a property owned by the landlord. For clarity, both complainants will be referred to as ‘the resident’ throughout this report.
3. In October 2021, the landlord sent a general letter to the resident informing them that their home was to be included in a planned regeneration scheme due to start in the summer of 2022.
4. On 13 January 2022, the landlord sent another letter to the resident containing further details about the regeneration scheme. The letter explained that the scheme aimed to restore homes back to their original designs where external alterations had been made to them without the landlord’s permission. It said that the resident’s property had been identified as having a garage and a driveway without the relevant permissions. The landlord stated that it was giving the resident opportunity to seek retrospective permission for these alterations. However, if permission was not asked for or granted, the following works would be carried out at the resident’s home:
   1. reverting the resident’s driveway back to grass;
   2. removing the resident’s garage door, including the frame and fixings;
   3. reconstructing the garage opening with brickwork that matches the existing brickwork.
5. In the letter, the landlord enclosed guidance on how the resident could request retrospective permissionfor the garage and driveway to remain. Itsaid that its approval would be subject to confirmation from a technical inspector that thealterations met the appropriate standards. Anotherletter was sent to the resident about the works it proposed for their home in June 2022 but did not mention the garage or driveway.
6. On 21 September 2022, the resident made a formal complaint to the landlord. They said they were unhappy with the proposals the landlord had made as part of its upcoming regeneration programme. They were concerned that more cars would be forced to park on the streets if people’s garages and driveways were removed and if permissions for dropped kerbs were denied.
7. On 29 September 2022, the landlord issued its stage one complaint response to the resident. It stated that it had written to the resident to advise them that they would need to apply for retrospective permission for these alterations and ensure they met with appropriate standards. As the landlord had not received an application for permission from the resident, it had progressed with its plans and was no longer accepting applications due to the amount of time it had given the resident to apply.
8. The resident contacted the landlord on 17 October 2022 and requested that it escalated their complaint to stage two of its complaints procedure. The resident explained that his wife moved into their property in 1996 and had accepted the property at that time with the garage and driveway already installed by a previous resident. They were unhappy with the landlord’s proposals to remove these items.
9. On 10 November 2022, the landlord issued its stage two complaint response to the resident. The landlord said it understood that the resident had various concerns about the impact of more cars parking on the road and said it would monitor these issues. It pointed out that there had always been a requirement for a kerb to be dropped before a driveway was installed. It stated that it had consulted with residents and given time for their concerns to be discussed. It appreciated that the removal of the resident’s garage and driveway would be an unsatisfactory outcome for the resident, but the landlord was within its rights to carry out work that would have a positive impact on the area. It apologised for the distress that had been caused to the resident.
10. The resident asked the Ombudsman to investigate their complaint. They stated that they had not received the landlord’s letter of 13 January 2022. They are willing to accept the landlord making changes to their garage. However, they would like the landlord to allow them to keep their driveway due to previously having had cars damaged while parked on the road. The landlord has agreed to suspend any planned work at the resident’s property until the Ombudsman has completed our investigation.

Assessment and findings

11. The landlord’s asset management strategy states that the landlord is committed to ensuring its homes are “maintained to keep [its] tenants safe” and “ensure cyclical property compliance checks are completed in line with current guidance, regulation or best practice”. The landlord is within its rights to carry out regeneration works and ensure that its housing stock, including any alterations to properties made without the landlord’s permission, meet the appropriate quality and safety standards.
12. The landlord’s plans to use funding to improve the resident’s local area included proposals to make significant changes to the resident’s home. The proposed works would radically impact the resident’s long-standing use of their home. Therefore, it would be appropriate for the landlord to go to reasonable lengths to ensure the resident had sufficient notice of the plans and opportunity to raise any concerns. This would allow the landlord to consider any fair objections or suggestions from the resident that may affect how, or if, the landlord carries out its proposals. The landlord allowed time for consultation and opportunity for residents to apply for retrospective permission for their alterations before the proposals went ahead. This was the appropriate approach for it to take. Permissions for alterations were necessary to ensure that works that have been carried out meet required safety standards and so the landlord was operating a consistent approach to granting permission, to be fair to all residents.
13. The resident’s case was more complex because the resident had not made the alterations to their property. The resident had accepted the property in its current form in 1996, when the owner and landlord of the property had been the resident’s local council. The landlord became the owner of the resident’s home in 2001. The landlord stated that it had not been able to find any evidence that the resident moved into the property with the alterations already in place, due to its records not going back to 1996. It is understandable that the landlord does not have records dating back nearly three decades, especially considering it did not own the resident’s property at that time. The landlord accepted the resident’s statement that they signed a tenancy at the property in its current form and did not personally fail to request landlord permissions for the garage and driveway. This was appropriate of the landlord given it did not have any contradictory evidence. The resident had a reasonable expectation to continue using these alterations in their current form given the length of time they had been in place. In the interests of fairness to the resident, it was therefore crucial that they had been given sufficient opportunity to object to the landlord’s plans or to take steps to apply for permission to keep their garage and driveway.
14. In its stage one complaint response to the resident, the landlord did not grant the resident’s request to keep their garage and driveway. The landlord stated that it had written to the resident and advised that they needed to apply for retrospective permission for the alterations to remain. The landlord confirmed it would no longer accept any applications for retrospective permission to keep alterations as it had already given enough time for residents to contact it. The landlord has informed this service that it engaged with affected households and set up community events for residents to attend and discuss the proposals. The landlord has provided this service with evidence of three letters that were sent to the resident prior to their complaint in September 2022. The resident has stated to this service that they did not receive the landlord’s letter of 13 January 2022. It is unclear from the evidence whether the resident informed the landlord of this and the landlord does not address this in its complaint responses. The landlord stated that it had no communication from the resident about this issue prior to their complaint of 21 September 2022. As part of its investigation into the resident’s complaint, the landlord should have considered how much the resident knew at the time of its consultation given the resident suddenly raised concerns about the plans months later.
15. It will be appropriate for this service to assess the effectiveness of the landlord’s communication during its consultation period, in order to determine whether it was reasonable to refuse a late application from the resident for retrospective permission. The landlord’s letter of 13 January 2022 is the only letter the landlord has provided to this service that explained the proposals affecting the resident’s garage and driveway. The letter also included details about how to apply for retrospective permission for the alterations. This service has not seen any other evidence that the landlord sent tailored letters to the resident that referenced this application window for permission. Therefore, if the resident did not receive this particular letter, that will have significantly impacted their understanding of the landlord’s plans at the consultation stage. They would not reasonably have been aware of what the landlord proposed to change about their garage and driveway, or the steps they could take to try to prevent those changes if they wished to do so. The resident would have missed the timeframe for applications for retrospective permission through no fault of their own.
16. This service has been unable to confirm if the resident received the letters that the landlord sent to them in October 2021 and July 2022. However, even if the resident had received these letters, the contents of them were generic and had been sent to large numbers of households. The letter of October 2021 informed the resident of an “external regeneration scheme” and gave examples of works that could take place at their property, such as “roof and canopy replacements” and “external decoration”. It did not suggest the proposals may result in the resident losing use of their garage and driveway. The resident could not have reasonably been expected to reach that conclusion from the letter and may not have seen a need to contact the landlord with concerns. The letter of July 2022 listed several works that would be taking place at the resident’s home but included a reference to “reinstatement works of previously unauthorised alterations”. This reference was vague and assumed that the resident would necessarily know if any unauthorised alterations had been made to their property before their tenancy began. Therefore, it could reasonably be the case that the resident received both of these letters from the landlord and remained unaware of the specific proposals for their garage and driveway. This service has been unable to establish when or how the resident became aware of the full detail of the landlord’s proposals. However, they didn’t complain to the landlord until two months after the third letter was posted, which suggests it is likely that they found out from an alternative source.
17. It would have been appropriate for the landlord to contact the resident on more than one occasion with detailed information specific to the resident’s home to ensure that they were aware of the landlord’s plan and how it directly affected them. This would have allowed for a margin of error in case any previous letters had not been delivered by the post system. The landlord has not been able to provide evidence that it did this. The landlord has indicated that reminder text messages were recently sent to other affected residents giving them notice of works starting at their properties. It is unclear why reminders, whether by text, letter, or phone call, had not been issued to the resident at other relevant stages of the process. The landlord should have contacted the resident on at least a second occasion to remind them of their opportunity to request permission for the alterations before the application window closed. The landlord failed to ensure that the resident was sufficiently informed, which was also evidenced by the lack of contact from the resident about the matter until months later.
18. The landlord has suspended the works on the resident’s home pending the outcome of this investigation. This service finds it would be reasonable for the landlord to give the resident a final opportunity to request permissions for the garage and driveway to remain in their current form. These permissions should be subject to the same assessments the landlord would have carried out if the resident had received its letter of 13 January 2022 and had made their application at that time. It should also apply any relevant concessions it had since made as a result of the consultation. This would be a reasonable approach considering the landlord cannot evidence that it communicated sufficiently with the resident at the consultation stage.
19. The resident does not have a dropped kerb on the pavement in front of their driveway. In its stage two complaint response, the landlord stated that there had always been a requirement for the kerb to be dropped where a driveway has been installed. The landlord later said in an internal email that, following its consultation with residents, it had agreed to suspend works on driveways where residents could prove they had a pending application with the local council for their kerb to be dropped. This service accepts the landlord may be reasonably justified in denying retrospective permission to the resident for their garage and driveway. This may be the case if permission is reliant on the outcome of an application with a third party such as the local council, or if the garage and/or driveway do not meet relevant quality or safety standards. However, the landlord should not unreasonably deny retrospective applications and it should give the resident the opportunity to apply for a dropped kerb if this is a requirement for the driveway before denying permission.
20. The landlord should consider how it can improve its approach to future consultations. It should allow for margins of error that become more likely in projects where significant numbers of households are involved. It should consider how it can ensure its residents are aware of its proposals as early as possible by reassessing its approach to effective communications. This should involve multiple attempts at contact using a variety of methods, including email or text messaging, where appropriate.

Determination

21. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of its proposals to remove the resident’s garage and driveway as part of its regeneration scheme.

Orders

22. The landlord must contact the resident and offer them an opportunity to submit an application for retrospective permission for their garage and driveway to remain in their current form. The landlord must provide the resident with information on how they can make this application and give a reasonable deadline for them to submit it by. It must inform the Ombudsman of the deadline it has given to the resident. The landlord must contact the resident with this information within 28 days of the date of this determination.
23. Should the resident submit an application before the deadline given, the landlord must fairly assess it in accordance with its current policies and procedures. If it is appropriate to do so, it should give permission for the garage and/or driveway to remain. The landlord must communicate the outcome of its assessment to the resident and the Ombudsman within 28 days of receiving their application.

Recommendations

24. The landlord should review its approach to effective communications for future consultations. The landlord should ensure it goes to sufficient lengths to appropriately inform and update residents of proposals that may affect them and consider using a variety of communication methods to achieve this.