Newcastle City Council (202123255)

REPORT

COMPLAINT 202123255

Newcastle City Council

17 May 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 a dispute regarding access to the resident’s garden.

Background

2. The resident is a tenant of the landlord. She has multiple vulnerabilities that affect her mobility and mental health, which the landlord is aware of. The resident resides in a row of houses, with a neighbour on either side of her. The neighbours will be referred to as A and B in this report.
3. The resident’s property does not have an external access point to her garden. As herhome is in the middle of a row of houses, she relies on gaining external access (i.e., not through her house) to the garden through B’s property via a gate in their shared fence. The resident complained in July 2021 that B had been restricting her access through their garden. Although the resident was paying for a gardening service through the landlord, due to the lack of access the gardeners had not been able to attend. The resident has explained that she continued to be charged, despite not receiving the service.
4. The landlord responded to the complaint informally. It stated that it would assess if an alternative access route could be found through neighbour A’s garden on the other side. The resident continued to report issues with gaining access to her garden in September. She made another complaint on 5 October 2021. She explained that in addition to refusing access, her neighbour had now become anti-social and aggressive toward her.
5. After intervention from this Service, the landlord acknowledged the resident’s complaint on 21 January 2022. It responded on 2 February 2022, stating that it had visited the resident and concluded that she did not have a right of way through either of her neighbours’ gardens. It also stated that as there was a drop at the back of the property, it was unable to install a fence for the resident to have her own external access. To resolve the complaint, the landlord offered to liaise with B, to discuss pre-arranged times for the resident’s workmen to gain reasonable access. Additionally, it stated that it would consider putting in an access gate for A, which the resident could use with A’s permission.
6. The resident escalated her complaint on 22 April 2022. She said that the landlord had failed to arrange reasonable access through either of her neighbours’ properties. The landlord responded on 19 May 2022. It apologised for not following up on its stage one commitments, and for failing to organise access for the resident’s workmen. It confirmed that it had reviewed the original plans for the property, and concluded that the resident did not have a right of way through her neighbours’ properties. Additionally, it stated that the resident’s tenancy agreement did not give her any additional access rights. The landlord stated that it would continue to work on gaining reasonable access through either of the neighbouring properties. This would be for specific, pre-arranged appointments for workmen. The landlord offered to refund the resident for any missed appointments by her gardeners.
7. In her complaint to this Service, the resident has stated that she accepted her home on the understanding that it had external access to the garden. She is dissatisfied with how the landlord has handled this dispute. As an outcome, the resident would like to be provided with some type of external access to her garden.

Assessment

8. The resident’s tenancy agreement does not grant the resident access rights through either of her neighbour’s properties.
9. After the resident reported that her neighbour was restricting access to her garden the landlord acted appropriately by visiting the resident and viewing the gardens. In its stage two complaint response the landlord it considered the original property plans and the resident’s tenancy agreement. It concluded that there was no evidence to support the resident’s claims there was a right of access through her neighbour’s garden. As such, the landlord acted reasonably by explaining to the resident that she did not have a right of way, and could not access her neighbour’s property without permission.
10. The landlord also acted reasonably by discussing how the resident might gain access for workmen in the future. Although the resident did not have the right to access her garden through her neighbour’s properties, the landlord explained that it would be reasonable to ask the neighbours to grant access for workmen at pre-arranged times. The landlord promised to liaise with the neighbours to arrange these windows of access. This was appropriate, as the landlord needed to balance the neighbours’ rights with the resident’s desire for external access. The landlord also discussed with the resident the idea that it could place another gate to the side of her neighbour A’s property. It was careful to stipulate that this would have to be done with clear permission from A, and would be under the same access terms as B.
11. The landlord acted appropriately in explaining to the resident that neighbour B had the right to lock the gate, as their garden was private. It acknowledged that the resident had felt intimidated and that this was not appropriate. However, it explained that B was also frustrated by the access issue. The landlord acted appropriately by offering mediation to the neighbours, to help them resolve this dispute. It asked the resident to report any incidents to itself or the police. This was a pragmatic and reasonable approach to take, which recognised the requirements of each party, but also provided support to the resident if the neighbour dispute became more serious.
12. The resident requested a gate be installed at the bottom of her garden fence, to gain access to the road behind. The landlord acted reasonably by considering the request, and concluding that the drop was too sheer for the access to be safe for the resident. It liaised with the local authority’s occupational health department on this matter, who accepted its findings. As such, the landlord endeavoured to consider all the options available to the resident, within the limitations of the circumstances.
13. In the landlord’s first complaint response, the landlord acted appropriately by explaining to the resident that she did not have access rights through her neighbours’ properties. It promised to liaise with the resident’s neighbours, to ask if they would grant her reasonable access at prescribed times. Unfortunately, the landlord failed to follow this through. This was not appropriate, as the Ombudsman’s Complaint Handling Code (the code) states that when offering a remedy, landlords should clearly set out what will happen and by when. Any remedy must be followed through to completion.
14. However, the landlord acknowledged this failure in its final complaint response. It apologised to the resident and reiterated that it would arrange reasonable access for her. It asked her to provide applicable dates so that it could liaise effectively with her neighbour. It explained that if this was not successful, it would discuss with the resident’s neighbour A if there was potential to install a gate into their property for the resident to use. The landlord also offered to refund the resident for any garden appointments its operatives had missed due to the lack of access. This was reasonable, as the resident should not have to pay for services which she cannot receive.
15. Overall, while the access issue was not resolved, the landlord acted reasonably to try find a solution, and appropriately acknowledged and apologised for its failure to follow through on the action promised in its first complaint response.

Determination (decision)

16. In accordance with paragraph 53 (b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Recommendations

17. This determination is based on the stipulation that the landlord follows through with any offers that it has made in its complaint responses. In this case, the landlord should:
    1. Continue to liaise with the resident’s neighbours to obtain reasonable, pre-arranged access for the resident’s workmen and gardeners.
    2. Reimburse the resident for the costs of any gardening appointments missed due to the lack of access.
18. Appropriate records of these actions should be kept for future reference if needed.