Anchor Hanover Group (202005751)

REPORT

COMPLAINT 202005751

Anchor Hanover Group

18 December 2020

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 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 reports regarding:
   1. the general public using pathways on the resident’s estate.

Background and summary of events

Background

1. The resident is a joint tenant of the landlord, renting a one bedroom retirement apartment on a housing estate managed by the landlord. The tenancy began in 2018 on an Assured Periodic Tenancy Agreement.
2. The housing estate contains a number of pathways which allow access from one road to another, in particular providing a pedestrianised route to the local hospital.
3. The tenancy agreement states:

‘(The landlord) grants to the Tenant on the terms set out below an assured non-shorthold periodic tenancy of the premises (the property) which forms part of the land belonging to (the landlord) and known as Estate (location). And this tenancy shall include use of the communal areas of the Estate along with (the landlord), its staff, visitors and other tenants and occupiers of the Estate’.

4. Under the terms of the tenancy agreement, the landlord also agrees to:

1. ‘consider the Tenant’s views before making changes in matters of housing management or maintenance which are likely to have a substantial effect on the tenant’.

5. Within the landlord’s Anti-Social Behaviour Policy it states the following when discussing reports of ASB:

–   ‘Dealing with a report of ASB: If you witness or are made aware of the occurrence of anti-social behaviour you should consider if it falls under ASB, safeguarding or hate incidents/crimes categories. Cases of ASB should be dealt with following this policy…All incidents should be reported to the Customer Relations Team (CRT);

–  Who will deal with a case of ASB?

2. Following a report of ASB, the CRT will classify and assign the case to the location manager or, if it is of a more serious/ complex nature, to an investigating officer.

6. The landlord describes the Estate on its website, stating: ‘(it) provides 24 one bed retirement apartments set within landscaped gardens. Residents have use of a lounge, laundry and parking facilities…A local manager looks after the buildings and grounds maintenance and repairs, as well as providing further help, support and advice. Additional help and assistance is available through (the landlord’s) 24 hour emergency call system. The properties are situated close to local shops, bus routes and amenities’.Summary of Events
7. On 16 April 2020 the landlord contacted the Local Authority’s Right of Way team regarding the pathways within the Estate. The Right of Way Officer responded the same day, advising:

Thank you for your email.  I can confirm that there are no recorded public rights of way over (the Estate). But that doesn’t necessarily mean that there is not a public right of way.  Most existing public paths are legally recorded on something called the Definitive Map of Public rights of way.  There is nothing recorded over the estate. 

But public rights of way generally come in to existence through long use and the County Council is continuously processing applications to record new paths.  From what you’ve described here, if the paths or a path across the estate has been open to the public and used by the public (not just residents) as a route between (Street A) and (Streets B/C) for anything like 50 years, there is a very good chance that it will be a public right of way, albeit an unrecorded one.

If that is the case and the public are habitually using it, the likely prospect is that if the estate was fenced and the paths closed off, it could result in an application to the Council to have the path/s recorded as public rights of way.

Just to further clarify, a public right of way would obviously be different from any private rights of way the residents have to access the flats.  So we are talking here about the possibility of there being (a) right of way for the public in general.’

8. On 20 May 2020 a petition was submitted to the landlord requesting a meeting regarding residents’ concerns about the potential for becoming infected by Coronavirus from members of the public who use pathways through the Estate as a shortcut. The petition was signed by 9 residents on the Estate, including the resident, but submitted via email by one of the other signatories, rather than the resident themself. The petition read:

‘We the undersigned would like to have some kind of meeting to discuss our concerns in regard to the possible risk of infection from Coronavirus of people using (the Estate) as a path through shortcut’. The email from the original complainant makes clear that ‘the issue that we are concerned about here is people constantly trespassing through (the Estate) using it as a short cut’.

9. The landlord acknowledged the receipt of the petition on 21 May 2020, writing to all signatories, including the resident, and advising that it was treating as a complaint the petition regarding members of the public trespassing by using pathways through the Estate as a shortcut. The letter advised a full response should be issued within 14 working days. The resident responded to the acknowledgement letter via email on 29 May 2020, further outlining their concerns over members of the public using the pathways and about the potential risk of them transmitting Covid-19 to residents on the Estate. The resident stated that another neighbour on the Estate had been subjected to abuse and threats after calling out to people using the pathways and asking them not to do so. The resident also stated that the issue had been raised with the landlord prior to the Coronavirus outbreak and submitted photos of people using one particular pathway in support of the complaint.
10. On 14 June 2020 the resident sent an email chasing a response. This was initially logged as a separate communication not related to the original complaint.
11. The landlord issued its Stage 1 response on 15 June 2020. The landlord acknowledged that the response was outside of the 14 day response time and advised that this was due to an error on its part, namely that the response had been sent for printing and distribution, but this had not happened, unbeknownst to the responder. The landlord also acknowledged that the resident’s chase up email on 14 June 2020 had initially been incorrectly logged as a new complaint.

In its Stage 1 response, the landlord addressed the issue of whether members of the public are trespassing by using the pathways through the Estate:

‘The issue of a Right of Way has now been clarified by the Rights of Way Department at the County Council: the paths across the estate have been open to and used by the public (not just residents) as a route between (Street A) and (Streets B/C) for many years, and probably since the scheme was first opened; there is a very good chance that it will be a public right of way.  The use by members of the public cannot therefore be regarded as trespass, albeit unwelcome.  I believe it would be unwise for (the landlord) to block this off as it would likely be challenged.  That could result in legal fees.  We also have no way of stopping access without substantial barrier round the whole site.’

12. The resident responded the same day, requesting the matter be escalated and specifically that it be considered by someone other than the proposed respondent.
13. The landlord issued its Stage 2 response on 18 June 2020. In the response, the landlord stated:

‘we know that the current situation with coronavirus is very worrying for everyone, so it is understandable that some residents want to limit the number of people coming onto the estate, or walking through it, especially when those individuals are not known to us. Ultimately, we are directed on the issue of a right of way by the Rights of Way Department at the County Council, and are following their advice which, as you know from (our previous) reply, is that the paths across the estate have been open to, and used by, the public (not just residents) as a route between (Street A) & (Streets B/C) for many years, and probably since the scheme was first opened; so there is a very good chance that it will be a public right of way.

Anything done by (the landlord) to try and stop this usage could be costly and, in the end, fruitless. If we took the decision to use a border or fences, this too could come at a considerable cost, require planning permission and end up making the estate look unsightly. Also, as this would impact on the service charge, we would likely need to canvas the whole estate, and obtain a majority vote, before we could even consider it. Given this, I agree this isn’t an option which is worth pursuing.’ The landlord then advised the resident of their right to request an independent review of their complaint via their local MP or this Service.

14. On 15 July 2020 the landlord received a further petition from a different set of residents living on the Estate. In this petition they stated:

‘We the undersigned are upset by the bullying and intimidation (of) by certain Residents on our once happy scheme. There are more voices than those constantly complaining and in respect of this we would like to voice our concerns collectively. 1) We DON’T want signs, we are part of a community and enjoy talking to our neighbours in the area. 2) We are tired of the verbal abuse that is being directed at people quietly walking through’. (A third point has been omitted as not relevant to the complaint or events surrounding the complaint). The petition was submitted with 14 signatories.

15. While the landlord had advised the resident that it considered the complaint matter closed, there continued to be ongoing dialogue between the resident and the landlord. On 7 July 2020 the resident emailed the landlord, further to the complaint outcome, forwarding on information he had obtained from the Local Authority’s Right of Way team. This was mainly via email although the landlord did meet with the resident and another neighbour on 24 July 2020 to discuss their concerns regarding use of the pathway further.
16. Following this meeting, the landlord wrote to all residents on 4 August 2020, attempting to allay concerns regarding the possibility of Coronavirus infection from members of the public. The landlord acknowledged that ‘there is a divided opinion on the use of the footpath; some residents are happy with the existing arrangements and others wish for it to be closed to the general public’. However, it further reiterated that it would not be ‘restricting the use of the pathway now or at any time in the future’. It did however agree the following:

3. To purchase and install “No cycling” and “Private Property” signs by the steps at either end of one of the footpaths;
4. To contact the local Police and request that they step up patrols of the local area, particularly on Saturday evenings;
5. To obtain a quote for installation and ongoing maintenance of hedging around the estate and then conduct a ballot of all residents, giving them a vote on whether there is agreement to proceed with planting of hedges.

17. Internal records provided by the landlord show that it obtained a quote for planting, and maintaining, hedging around the Estate on 18 August 2020. The work to plant and maintain a number of Pyracantha bushes around the border of the Estate is quoted as costing £22,300.80.
18. On 11 September 2020 the complaint was referred to the Housing Ombudsman Service by the resident’s MP.

Assessment and Findings
 

19. In reaching a decision we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case. This Service has a very specific role in considering whether the landlord has met its obligations to a resident and taken reasonable steps to resolve the complaint.
20. The resident moved into a property on the Estate in 2018. The Estate is formed of a number of one-bedroom retirement properties. It is not in dispute that the Estate contains pathways that lead across the Estate from one road to another and that these pathways are used by members of the public. There is, however, disagreement as to whether these pathways should be considered to be effectively private property and whether measures should be taken to prevent, or at least discourage, members of the public from using them, or if it is practical to do so.
21. Under the terms of the tenancy agreement, there is no specific mention of the Estate grounds being private property, nor is there mention of the pathways through the Estate. The tenancy agreement gives the resident the rights of use of the communal areas, but the pathways are not specified within this definition.
22. In the description of the Estate on the landlord’s website, it is not described as being a private estate.
23. Prior to the complaint petition being submitted, the landlord had contacted the Local Authority regarding whether the pathways contained a public right of way. The Local Authority’s response indicates that there is no designated public right of way but that one could be assumed given the length of time members of the public have apparently been using the pathways. The Local Authority advised that, were the pathways to be closed off or were access to be restricted, there would be the possibility of an application being lodged for them to become a designated public right of way.
24. The landlord has acknowledged a service failure regarding a delay in issuing its Stage 1 response and by initially treating the resident’s chase up email as a new enquiry. It has apologized for this, provided an explanation and advised that feedback would be given to those involved. This was a reasonable and proportionate response to the identified service failure.
25. Regarding the resident’s concerns that members of the public using the pathway have been abusive towards residents when they have been requested to desist from using the pathways, the landlord acknowledged this in its Stage 1 response. The landlord requested that any specific instances, including dates and times, are reported to it, although it notes that it will then pass information on to the Police as it involves members of the public rather than tenants of the landlord. The landlord’s Stage 1 response also cautioned against residents engaging with members of the public in this fashion and also noted that it has received conflicting reports that residents of the Estate are being abusive towards passers-by. It is not for the Ombudsman to determine which version of events is more credible. However, the landlord’s response and advice was appropriate – it explained that it was not able to take action against members of the public, but that it would take responsibility for referring any reported instances to the relevant authority, in this case, the Police.
26. In their responses to the initial petition and subsequent Stage 2 complaint from the resident, the landlord noted the advice given from the Local Authority and advised that, based on this, it did not consider that members of the public using pathways through the Estate could be considered trespassers. It further advised that any decision to limit access to the pathways could generate legal challenges and associated legal fees and also that installation of any borders or barriers would affect the service charges for all residents on the Estate. It noted that there would need to be a majority of residents in favour of any changes being made.
27. There has also been a further petition submitted by residents who were not signatories on the initial complaint. They have an opposing view regarding the pathways and suggestions of erecting borders around the Estate. The landlord records demonstrate that there does not appear to be a unified opinion among residents of the Estate as to whether members of the public should be discouraged, or prohibited, from using the pathways through the Estate.
28. The resident’s tenancy agreement states that the landlord must consider the views of the tenant before making changes in matters of housing management or maintenance which are likely to have a substantial effect on the tenant. It is appropriate therefore that the landlord could not make substantial changes to access to the pathways, or install borders, without consulting all residents. As above, following the closure of the complaint, the landlord has continued to correspond with the resident and offered to ballot residents on the Estate on the matter of whether they wish to have borders installed.
29. It is not for the Ombudsman to determine whether the landlord’s interpretation of the Local Authority’s advice is accurate. However, the landlord has demonstrated that they have sought appropriate advice and, considering the Local Authority’s advice is not unequivocal as to whether there is an existing public right of way or not, the landlord’s position was reasonable.
30. Regarding the concern raised in the initial petition that members of the public using the pathways on the Estate as a cut through may pass on Coronavirus to residents of the Estate, the landlord has shown that they have considered the matter. The landlord has sought and shared research and Government guidance with residents, first in a meeting with the resident and one neighbour, and subsequently to all residents of the Estate via letter. The advice suggests that the chances of catching or being exposed to coronavirus in this way is minimal and that residents should follow current Government guidelines regarding Coronavirus.
31. Regarding the alleged behaviour of members of the public using the pathways and allegedly being abusive towards residents, the landlord has acted in accordance with its Anti-Social Behaviour Policy as there is no evidence of any specific incidents having been logged by the resident. All mentions of actions by passers-by that may amount to anti-social behaviour are without specific details such as dates and times or clear descriptions of what has allegedly happened. In its responses, the landlord has advised the resident to report any such incidents to it and offered to pass on those details to the Police for further investigation. This is reasonable. As there have been no specific incidents reported to it, the landlord did not need to allocate the matter to an Investigating Officer.

 

Determination (decision)
 

32. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the complaint.

Reasons
 

33. The landlord acted appropriately in responding to the resident’s reports about members of the public using the pathways through the Estate because it responded to the resident in line with its policies and procedures. There was initially a slight delay in responding to the complaint petition, and a brief error in treating a follow up email as a new enquiry, which it acknowledged and apologized for.
34. The landlord has demonstrated that it has sought to investigate the matter of whether members of the public should have the right to access pathways through the Estate. Having sought advice from the Local Authority, its position that there may be an assumed Right of Way was reasonable. The landlord also provided an explanation as to why and how it had reached that position.
35. After issuing its final decision on the complaint, the landlord also took reasonable steps to continue to engage with the resident on the issue, including meeting with them and offering alternative solutions to closing off access to the pathways. The landlord also acted reasonably by taking into consideration concerns raised over Coronavirus and providing further information which attempted to allay residents’ concerns in its response. It also provided appropriate advice concerning how to report any further alleged anti-social behaviour carried out by members of the public using the pathways.

Recommendations
 

36. It is recommended that within four weeks of the date of this determination, if they have not done so already, the landlord contact all residents of the Estate and arrange a ballot or vote on whether they wish to install bordering around the Estate.