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Sandwell Metropolitan Borough Council (202003694)

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REPORT

COMPLAINT 202003694

Sandwell Metropolitan Borough Council

23 May 2023

 

Our approach

What we can and cannot consider is called the Ombudsman’s jurisdiction and is governed by the Housing Ombudsman Scheme. The Ombudsman must determine whether a complaint comes within their jurisdiction. The Ombudsman seeks to resolve disputes wherever possible but cannot investigate complaints that fall outside of this. 

In deciding whether a complaint falls within their jurisdiction, the Ombudsman will carefully consider all the evidence provided by the parties and the circumstances of the case.

The complaint

  1. The complaint is about the landlord’s handling of the resident’s concerns about the condition of her garden.

Determination (jurisdictional decision)

  1. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
  2. After carefully considering all the evidence, I have determined that the complaint, as set out above, is not within the Ombudsman’s jurisdiction.

Summary of events

  1. The resident has a secure tenancy agreement with the landlord, who is a local authority, which started in November 2017. The property is a one bedroom bungalow which has an enclosed rear bungalow.
  2. From early 2018, the resident raised concerns about the condition of the back garden at the property. In October 2018, the resident contacted the landlord again as she was unhappy with the slope in her garden. As a goodwill gesture (as the garden was the resident’s responsibility in line with the tenancy agreement) the landlord agreed to cut down and clear as much of the bushes as it could.
  3. In February 2019, the resident informed the landlord that she was unhappy with her garden, and said that as a result of the slope at the end of her garden, she had fallen and been bitten by a rat. She therefore wanted the garden to be landscaped. The landlord wrote to the resident and confirmed that it had arranged for pest control to attend the property, and that gardens remained the resident’s responsibility as per her tenancy agreement.
  4. On 16 April 2019, the resident submitted a personal injury claim against the landlord. The claim said that as a result of the condition of the garden being unsafe, the resident lost her footing, fell and was bitten by a rat. She was therefore seeking compensation as she felt the landlord was responsible. On 27 March 2020 the court issued a general form of judgement or order.
  5. In April 2022, the resident contacted this Service for assistance with regards to progressing her complaint with the landlord, stating that her garden was unsafe. The landlord provided a final response in August 2022, confirming that the garden remained the responsibility of the resident under point 9.4 of the tenancy agreement.

Reasons

  1. Paragraph 41(c) of the Scheme states that the Ombudsman cannot consider complaints which, in the Ombudsman’s opinion concern matters that are the subject of court proceedings or were the subject of court proceedings where judgement on the merits was given
  2. In this case, this Service has seen a copy of the general form of judgement or order relating to the resident’s concerns about the safety of the garden, dated 27 March 2020. The Order sets out that the resident was required to file Particular of Claim which comply with the Civil Procedure Rules.
  3. The judgement further states that if the resident failed to comply the order, then the claim would be struck out. The effect of the strike out would be that the details in the particulars could not be relied on and the claim would fail. The Ombudsman understands the claim was so struck out and the claim failed.
  4. Therefore, as a judgement on the case has been given, this complaint is outside the jurisdiction of the Ombudsman, in line with paragraph 41(c) of the Scheme
  5. Further, and in the alternative, paragraph 42(f) of the Scheme states: The Ombudsman may not consider complaints which, in the Ombudsman’s opinion concern matters where a complainant has or had the opportunity to raise the subject matter of the complaint as part of legal proceedings. In this case, we have seen evidence that the resident issued proceedings and in fact sought to raise the current complaint issues before those proceedings. We will therefore not investigate the complaint in any event.