Wolverhampton City Council (202208137)

REPORT

COMPLAINT 202208137

Wolverhampton City Council

17 March 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

The complaint is about the landlord’s:
1. response to the resident’s concerns about the maintenance of her driveway and hardstanding.
2. response to the resident’s reports of her neighbour driving over the grass verge and using the dropped-kerb.
3. refusal to refund the resident for a back fence, dropped-kerb and driveway.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. 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.
Paragraph 42(m) of the Housing Ombudsman Scheme says that the Ombudsman may not consider complaints which, in our opinion, seek to raise again matters which the Housing Ombudsman, or any other Ombudsman has already decided upon.
After carefully considering all the evidence, in accordance with paragraph 42(m) of the Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction: the landlord’s refusal to refund the resident for a back fence, dropped-kerb and driveway. This issue was determined in a previous Housing Ombudsman complaint under reference 201815944.

Background and summary of events

Background

The resident has a secure tenancy. The property is a three bed terrace house. The tenancy started as an introductory tenancy which began on 26 June 2017. The tenancy agreement is with Wolverhampton Homes who are a managing agent of Wolverhampton City Council.
The landlord has provided a copy of the resident’s tenancy agreement which states the following: “You may only park in a designated parking area or on the dwelling where a hard-standing and dropped kerb are provided. You must not park on or drive over any footpaths, grassed area including gardens (specific or communal) or verges. Nor will you allow anyone who lives with you or visitors to do so. Any damage caused will result in a charge for reinstatement.” Furthermore, it mentions “You will, at all times, keep any gardens clean, tidy and free from rubbish and weeds.”
The landlord has provided its anti-social behaviour policy which sets out its obligations to the resident after considering the risks and how it will investigate reports.

Summary of events

The resident has previously brought a complaint to the Housing Ombudsman which covered the landlord’s handling of the resident’s application to install a driveway, the resident’s introductory tenancy being extended due to a breach and issues with the back garden fences. This information is for context only.
The landlord visited the resident on 7 June 2021, following issues raised by her, including her neighbour using the dropped kerb to access their property and CCTV installed by her neighbour which she believed faced her property.
On 9 June 2021, the landlord visited the resident’s neighbour to address the issues raised by the resident. The notes from the meeting said that the neighbour commented that they did not cut across the grass verge and said that it was other people who did this such as school traffic. The neighbour said that they made a conscious effort since the landlord last spoke to them to be careful when pulling onto the drive. The neighbour said that other people were the culprits for parking on the grass verge.
On 12 June 2021, the landlord sent an email to the resident, following on from its visit on 7 June 2021, confirming that it had discussed what areas came under the Highway Services areas of responsibility. It also said that the resident had acknowledged that the school traffic had affected parking and access to frontages for many residents in the street. The email added stated that a truck that was accessing the neighbour’s drive via the dropped kerb was not the fault of the neighbour. It was agreed by both the resident and neighbour to try mediation.
On 10 January 2022, the resident called the landlord and stated that her driveway was in need of repair and that her neighbour received free fencing whilst she had to pay.
On 11 January 2022, the landlord visited the resident following her enquiry. It noted that the resident’s issue was actually with her neighbours driving over the grass verge and not actually with the driveway. The resident apparently wanted a barrier installed to stop them.
The resident and her neighbour had agreed to mediation, but by January 2022 the case was closed. The resident has said that this was due to a lack of engagement from her neighbour. The mediator confirmed to the landlord that this was due to both parties agreeing to resolve the problems between themselves.
The landlord wrote to the Highways Department to ask what the position was with regards to the kerb and verges and if anything could be done to stop people from parking on the verges. Highways responded on 31 January 2022 to say that the kerb and footpath did not belong to the resident and that there was no law to prevent people from using the dropped kerb. They also said it was difficult to manage the issue because of the school traffic in the area.
On 3 February 2022, the landlord wrote to the resident with a response from the Highways Department regarding putting up a tree on the verge. It was concluded by Highways that the area was not suitable for a tree and the reasons for the decision were provided.
The resident raised a formal complaint on 13 April 2022 raising concerns regarding receiving letters related to the ongoing maintenance of the driveway, her neighbours blocking the hardstanding, crossing the grass verge and using her hardstanding to gain access to their property. The resident believed her neighbours’ actions were becoming anti-social behaviour or a nuisance and that she had been treated unfairly compared to her neighbours.
The landlord discussed the complaint with the resident over the phone on 4 May 2022 and an extension was agreed by the resident for the landlord to provide a formal stage one response.
The landlord provided its stage one response on 9 May 2022. The response said the following:
1. That the resident had provided a photograph of her neighbour blocking her driveway and driving on the dropped kerb in front of her property. The landlord said that the photograph showed the neighbour parking a very small distance across the dropped kerb and it would not have caused the resident difficulty in driving on or off their driveway. The landlord said that it would not raise this with the neighbour and did not uphold this part of the complaint.
2. The landlord explained that the dropped kerb did not belong to the resident and that she had paid a fee to drop the kerb to enable her to drive over the footpath and on to her driveway. The landlord said it was not able to take action against anyone who encroaches onto the dropped kerb crossing.
3. That the resident was charged £200 for the removal of front fencing, but at the time the installation started, the fencing had already been removed. A refund of £200 was agreed and this element of the complaint was upheld.
The resident escalated her complaint to stage two on 10 June 2022 via email. The email said she was dissatisfied with the landlord’s response to her complaint. The resident said the following issues remained outstanding:
1. conflicting communication about who was responsible for the maintenance of the driveway and hardstanding;
2. the issue of the neighbour driving over the hardstanding, footpath and grass verge to gain access to their property;
3. unfair treatment as she was penalised for breaching her tenancy agreement in the past but believes her neighbours were doing the same thing and had not been given a tenancy breach.
The landlord sent its stage two response on the 14 July 2022. The response said the following:
1. A letter had been sent to the resident which said: “As the tenant you are responsible for keeping the driveway clean, tidy and well maintained. Any repairs will be carried out by Wolverhampton Homes. If the repairs are found to be as a result of misuse, accidental or deliberate damage by you or another person, you may be charged the total cost of the repair.” It concluded it had not given conflicting advice and did not uphold this part of the complaint.
2. With regards to the resident’s claim that she had not been treated equitably compared to her neighbour, as they had not received a breach of their tenancy like the resident, the landlord partially upheld this. The response said that the tenancy manager and tenancy officer had made numerous site visits to obtain evidence of the neighbour’s alleged behaviour but had found no evidence to substantiate the allegation. This element was partially upheld however as the landlord had not updated the resident on their actions.
3. Whilst the landlord found no evidence of the neighbour using the dropped kerb and parking on the verge, it said that if this nuisance occurred again, specifically if the neighbour was blocking the resident’s driveway and preventing her from leaving her home, then it would take appropriate action. The landlord said that the dropped kerb was under the jurisdiction of Highways and therefore it could not prevent other residents from using it.
4. The Building Solutions Team visited the resident to check the hardstanding as the resident said that it had been damaged by her neighbour. On arrival, it was discovered that the damage was not to the driveway (hardstanding) but the grass verge which was not under the jurisdiction of the Building Solutions Team. This element was upheld because no one had communicated anything to the resident.
5. A full refund of the fencing and hardstanding was declined.
The resident tried to correspond with the landlord after the stage two response but the landlord said that the resident should contact the Housing Ombudsman Service if they remained unhappy.

Assessment and findings

Response to the resident’s concerns about the maintenance of her driveway and hardstanding.

The resident has said that the landlord sent conflicting communications by telling her about maintaining the driveway but then saying that the dropped kerb and footpath did not belong to her. The landlord reiterated in its final response that the resident was responsible for keeping the driveway clean, tidy and well maintained.
The landlord has also informed the resident that the dropped kerb, verge and footpath do not belong to her and belong to Highways. The resident paid to drop the kerb but this was only to allow access to her driveway. The landlord’s communications are clear and do not provide conflicting information about the dropped kerb and footpath.
The evidence shows that the landlord visited the resident on 7 June 2021 and discussed what areas were owned by Highways and what areas were her responsibility. This shows that the landlord took reasonable steps to explain to the resident the different areas of responsibility and there has therefore not been a service failure with regards to the landlord’s communication.
The landlord also made clear that the resident was only responsible for keeping her driveway clean and tidy which was reasonable. The tenancy agreement states that the resident will, at all times, keep any gardens clean, tidy and free from rubbish and weeds. Therefore, what the landlord has said is in line with the resident’s obligations under the tenancy agreement.
The landlord has assured the resident that it is responsible for any repairs to the driveway. It also noted that it inspected the driveway but established no repairs were needed. It was reasonable for the landlord to check if any repairs were required and confirm the outcome of this inspection to the resident.

Response to the resident’s reports of her neighbour driving over the grass verge and using the dropped-kerb.

The resident has raised concerns about her neighbour using the dropped kerb she paid for to access their driveway. The resident says that the neighbour also drives over the grass verge when accessing their driveway and this destroys the verge. The only evidence the resident supplied was a photograph of their neighbour parking in front of the verge, but the landlord said in its May 2022 complaint response that the resident could easily access their driveway and did not take any action. This shows that the landlord considered the resident’s evidence and explained why it would not take further actions – it was reasonable for the landlord to review the matter and make an evidence-based decision.
On 9 June 2021, the landlord visited the neighbour and discussed the resident’s concerns. The neighbour contested what the resident had said and confirmed that they made a conscious effort not to do this since the landlord last spoke to them. This would indicate the landlord has also previously spoken to them about the matter. It was reasonable for the landlord to engage with the neighbour to try to resolve the resident’s concerns, especially given it noted that mediation was also being attempted at this time.
The landlord also assessed the situation through a site visit on 11 January 2022, and spoke to the resident to clarify what the problem was. It then contacted the Highways Department to see if anything could be done to prevent the issue from reoccurring. Notes show that the resident mentioned to the landlord that school traffic was contributing to the untidy grass verge, which the landlord said it was unable to police.
The landlord has said that it found no evidence of the neighbour driving over the kerb to support the resident’s allegations and the tenancy manager and tenancy officer had made numerous site visits to obtain evidence. The landlord has inspected the site and spoken to the neighbour on a couple of occasions. The resident, the neighbour and the Highways Department have all mentioned that school traffic can affect the verges, and the landlord cannot do anything about this. It would therefore appear that the landlord has taken reasonable steps to investigate the issue and spoken to the neighbour to try to improve the situation.
The landlord has informed the resident that she does not own the dropped kerb or the hardstanding in front of her driveway which includes a footpath. This is all owned by the Highways Department. The landlord corresponded with the Highways Department to see if anything could be done and was told that there was nothing to prevent anyone from using the dropped kerb as it did not belong to the resident. Furthermore, the Highways Department looked into whether a tree could be placed on the verge, but it was decided that this would not be appropriate. Given the above, the landlord has acted appropriately in investigating the resident’s concerns by liaising with other agencies and exploring potential solutions.
The landlord has visited the area but could not find evidence to support the resident’s allegations. The landlord has told the resident that if the neighbour blocks the dropped kerb and prevents access to and from the resident’s driveway then they will take action; however, it has not been necessary for it to take action so far based on the evidence it gathered.
The resident is unhappy that mud is dragged across the hardstanding which she often has to clean and believes this is caused by the neighbour. As determined above, the area beyond the resident’s driveway does not actually belong to her, and therefore she does not need to maintain this. The Building Solutions Team will maintain the hardstanding and Highways are responsible for the dropped kerb, pathway and the grass verge. The Building Solutions Team has inspected the area and said that there was no damage to the hardstanding only the verge. This again was a reasonable action by the landlord.
The landlord is not responsible for the verge and cannot be held to account for the damage caused by other cars such as school traffic. Whilst it was decided by Highways that a tree was not suitable for the area, the landlord could explore the option of asking the Highways Department to put a sign or bollard up and a recommendation is made to this effect below.
The Ombudsman also cannot comment on what the landlord has said to the resident’s neighbour as this would be confidential. The landlord has visited the neighbour and relayed the resident’s concerns and has so far found that it did not need to take any further action.
The resident has sent videos to this Service of her neighbour entering and leaving their driveway and driving over the verge. As mentioned above, this is something that the landlord can take up with the neighbour if it has sufficient evidence to demonstrate that the neighbour is in breach of their tenancy.
Although the landlord acknowledged that it could have better updated the resident with some of its findings, it is clear that it has investigated all the allegations made by the resident appropriately. There is no evidence that the resident has been treated unfairly by the landlord.

Determination (decision)

In accordance with Paragraph 52 of the Scheme, the Ombudsman finds no maladministration by the landlord in relation to the communication regarding the maintenance of her driveway and hardstanding.
In accordance with Paragraph 52 of the Scheme, the Ombudsman finds no maladministration by the landlord in relation to its response to the resident’s reports of her neighbour driving over the grass verge and using the dropped kerb.

Reasons

The landlord made it clear in its communications that the resident was only responsible for maintaining the driveway. The tenancy agreement also states what the resident’s obligations were and they did not conflict with what the landlord said. Furthermore, the landlord visited the resident to clarify any misunderstanding.
The landlord has visited both the resident and her neighbour and investigated whether the neighbour is using the dropped kerb. The landlord has found no evidence of this and has been proactive in contacting Highways to try and find a solution. It is clear that there are potentially other vehicles that park in the area as it is situated near a school and there is nothing the landlord can do as it does not have jurisdiction over who uses the kerb as long as they do not block it. The resident does not own the kerb and the landlord has made this clear that it is owned by Highways.

Orders and recommendations

Recommendations

It is recommended that the landlord contact the Highways Department to see if a sign or bollard can be installed to prevent anyone from being able to park across the grass verge.
The landlord should advise this Service of its intentions in regard to the above recommendation within four weeks of the date of this report.