Birmingham City Council (202201323)

REPORT

COMPLAINT 202201323

Birmingham City Council

14 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:
   1. The landlord’s handling of the resident’s property boundary dispute and her reports of fly-tipping.
   2. The landlord’s complaint handling.

Background

2. The resident is a secure tenant of the landlord, which is a local authority. The property is an inner-terraced house with a rear garden fence separating the resident’s property line from her neighbours. There is an area of land between her rear garden and her neighbour’s fencing that is referred to as “no man’s land”.
3. The resident said she reported fly-tipping as rubbish had been dumped in “no man’s land” since 2020 (the exact date of the first report has not been provided). She said the landlord should send an operative round to inspect the fly-tipping and visit the neighbouring properties, remove the rubbish, and move her rear garden fence to close the gap between her and her neighbour’s property boundary line.
4. The resident contacted the landlord again on 11 June 2021 requesting an update as no action had been taken. She requested the landlord to consider the fly-tipping issue, and for her fence to be pushed back to prevent this issue from reoccurring. She added that mice were now beginning to nest in the rubbish and sent photographic evidence to the landlord.
5. The resident contacted this Service for assistance on 26 April 2022. She said that she had not received a complaint response from the landlord and that the fly-tipping took place during the Covid-19 lockdown. This service wrote to the landlord on 17 May 2022, requesting a formal complaint response from the landlord. The resident returned to this Service on 23 August 2022, after not receiving a response. This Service subsequently chased the landlord on 4 October 2022 for a formal complaint response.
6. The resident had an unannounced inspection at the property by the landlord on 13 October 2022. It conducted an inspection of the boundary gap at the rear of her property but was unable to evidence any sign of fly-tipping. It agreed that the vegetation was overgrown and may be obscuring the rubbish, and that the fence was correctly positioned. The resident disputed this and felt that the landlord was abrupt towards her.
7. The landlord issued it stage 1 complaint response on 20 October 2022 and did not uphold the resident’s complaint. It apologised for the delays in its response and stated that it had been unable to evidence of any sign of fly-tipping, but accepted that the vegetation was obscuring this. It noted that the resident was requesting a garden extension but ultimately, as the boundary line on the property was not clear, and as the “no man’s land” extended across multiple properties, it would not relocate her fence to close the gap.
8. The resident escalated her complaint to stage 2 on the same day. She said that when she first raised the issue the area was not overgrown and the rubbish was visible. She said the fly-tipping had continued throughout her tenancy and would continue unless the landlord acted. She said she was not requesting a garden extension but that the landlord move her fence to where the property boundary line should be, and that this would resolve the issue. She said that she spoke to the landlord a while ago who investigated and agreed there should be no such gap between the properties.
9. The landlord reattended the property on 18 November 2022 to address the condition and placement of the fencing. It agreed that the fence was in very good condition, and although the panels were placed at a slight angle, it was in line with the property boundary, and that no further action would be taken.
10. The landlord issued its stage 2 complaint response on 22 December 2022. It upheld the resident’s complaint, apologising for the delays in issuing a response. It agreed that it had failed to acknowledge fly-tipping taking place, and had presented an unwillingness to move the property boundary line to match the garden extension line. It also said that it had been unable to find evidence of the two years the resident had been reporting the issue and that it was ‘‘regrettably’’ unable to provide a satisfactory solution to the situation, whilst noting that the tenants from the surrounding area were likely the culprits of the fly-tipping as the “no man’s land” was not accessible via a public footpath or highway.
11. The resident brought her complaint to the attention of this Service stating that she remained dissatisfied with the landlord’s response and wished for landlord to move her fence so that it was placed correctly and to take appropriate action to address the fly-tipping.

Assessment and findings

Landlord’s handling of the resident’s property boundary dispute and her reports of fly-tipping

12. The resident said that she had been reporting this issue since 2020. Although no evidence has been submitted by either party, this was not disputed by the landlord. As such, the Ombudsman will investigate the landlord’s response and actions, as to what is fair in all circumstances of the case, since 2020.
13. Where the landlord is unsure of the land registry and ownership, it would have been required to investigate this further. As it agreed it was not clear where the property boundary line rests regarding the resident’s rear garden, it was obligated to seek legal advice on this matter. Yet it has not done so. Furthermore, it is unclear if the landlord has reviewed the original title deeds or land registry for the resident’s property. As such this is considered a failing on the landlord’s behalf.
14. Although the landlord conducted several inspections (3 in total) of the property and had said that it had not been unable to evidence any signs of fly-tipping, its responses and actions were not reasonable, nor has it appropriately investigated the resident’s concerns. The onus is on the landlord to evidence that it had taken all actions necessary to satisfy itself that it did not own the “no man’s land” at the rear of her property, before deciding to take no further action. It also should have taken some action towards the resident’s reports of fly-tipping, yet this was not forthcoming. Whilst the rubbish may have been covered by vegetation, it was not reasonable for the landlord to take no further action on the basis that it could not see what was under the vegetation.
15. The substantive issue remains that the landlord must identify the owner of the land, and where the property boundary line rests. Once it has done so, and if the fly-tipping persists, it would be reasonable to expect it to communicate with the resident and decide upon a suitable action that would provide a permanent solution, such as moving the fence to close the gap between the two properties.
16. The landlord’s website defines fly-tipping as illegally dumped rubbish which can lead up to a fine of £50,000 along with imprisonment. It was required to respond to the resident’s reports of fly-tipping by investigating and looking to then take action, eventually leading to a legal notice to landowners to clear the rubbish that attracts or harbours vermin (such as mice or rats). It also states that households have a legal obligation to ensure they are disposing of waste in line with the Environmental Agency under the Environmental Protection Act 1990.
17. As such, the landlord was required to respond to the resident’s reports of fly-tipping from 2020, and further the resident’s reports of mice on 11 June 2021, by conducting a thorough investigation and looking to act in line with the above policies. Furthermore, according to its anti-social behaviour (ASB) policy, any tenants found to be dumping rubbish, furniture or fly-tipping is a breach of their tenancy.
18. However, in this case, the landlord failed to evidence what actions it took, if any, to address the fly-tipping and reports of mice. It also failed to follow its obligations within its ASB policy. It is also of concern that the landlord was unable to provide any records of its communication with the resident prior to 11 June 2021, despite the resident stating she reported the issues back in 2020 (the exact date is unknown). The landlord is expected to keep robust and clear records of its communications, visits, and resident service reports. For example, it is unknown if the landlord reviewed the photographic evidence the resident sent.
19. When failings are identified, the Ombudsman’s role is to consider whether the redress offered has resolved the resident’s complaint satisfactorily. This is in accordance with the Ombudsman’s Dispute Resolution Principles: be fair, put things right, and learn from the outcomes.
20. Whilst the landlord correctly upheld the resident’s complaint in its final complaint response and offered an apology, its omission of any suggested action to resolve the issue and a fair and proportionate amount of compensation was unreasonable, given the amount of time the resident spent pursuing her complaint, as well as the considerable distress and inconvenience this has caused.
21. Given the above failings, the Ombudsman makes an overall finding of maladministration in the landlord’s handling of this matter. The landlord is ordered to pay the resident a total of £300 compensation made up of £200 for the time, trouble and distress caused by pursuing this matter and a further £100 for its record-keeping failings. These amounts are in line with this Service’s Remedies Guidance, where no permanent impact to the resident has been caused, but failings have been identified and the landlord did not address them or the detriment to the resident.
22. The landlord has also been ordered to seek legal advice regarding the boundary area to the rear of the resident’s property and to provide both the resident and this service a copy of the advice provided. It is also to carry out a further investigation into the dumped rubbish and reports of vermin in the area to the rear of the resident’s property, and to confirm to the resident and this service what action it intends to take, either as the resident’s landlord or as a local authority to address this.

Landlord’s complaint handling

23. In accordance with the landlord’s comments, compliments, and complaints policy, it is required to respond with its stage 1 complaint response within 15 working days. When a complaint is escalated to stage 2 it is to respond within 20 working days. Where an extension is required, it is obligated to contact the resident informing them of the reason for any delays and when a response will next be issued.
24. The resident first lodged a formal complaint on 11 June 2021. However, the landlord failed to issue its stage 1 response until 20 October 2022, despite being chased by this service for its response on 17 May 2022. This far exceeding the timescale of 15 working days stated in its complaints policy.
25. The resident escalated her complaint on 20 October 2022. Again there was a delay in the landlord issuing its response, it not issuing its stage 2 response until 22 December 2022, 25 working days past its policy timescales. The landlord did not evidence what actions it took, if any, to inform the resident of these delays, and did not provide a clear reason for them. It was clear in this case that the landlord waited for when an outcome of the boundary and fly-tipping issues were known and not when the complaint response was due. This resulted in the resident spending an unreasonably length of time pursuing her complaint.
26. In accordance with this Service’s Complaint Handling Code, landlords must provide their response at stage 1 within 10 working days. As the landlord’s policy allows for 15 working days for a stage 1 response, the landlord has been ordered to carry out a self-assessment against this Service’s Complaint Handling Code (located on our website).
27. Furthermore, the landlord issued its stage 1 and stage 2 complaint response by the same person. This Service’s Complaint Handling Code states that the person considering the complaint at stage two, must not be the same person that considered the complaint at stage one. As this did not happen in this case, the resident was denied the opportunity to have her complaint fairly reviewed, which represents a further failing on the landlord’s behalf.
28. While it is acknowledged that the landlord apologised for its complaint-handling delays, given the findings above, the Ombudsman makes an overall finding of maladministration in respect of the landlord’s complaint handling. As such the landlord is ordered to pay the resident £300 for its complaint-handling failings. This amount is in line with this Service’s Remedies Guidance, where failings have been identified and where the landlord has not addressed or looked to put things right regarding its failings.

Determination

29. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in respect of the landlord’s handling of the resident’s property boundary dispute and her reports of fly-tipping.
30. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in respect of the landlord’s complaint handling.

Orders

31. That within 4 weeks of the date of this report, the landlord is ordered to:
    1. Pay the resident £600 compensation broken down as follows:
       1. £300 for the time, trouble and distress the resident spent pursuing her complaint regarding the fly-tipping and property boundary issue and its failing to address the issue appropriately.
       2. £300 for its complaint handling failures.
    2. Seek legal advice regarding the boundary area to the rear of the resident’s property and to provide both the resident and this Service a copy of the advice provided.
    3. Carry out a further investigation into the dumped rubbish and reports of vermin in the area to the rear of the resident’s property, and to confirm to the resident and this service what action it intends to take, either as the resident’s landlord or as a local authority to address this.
    4. To carry out a self-assessment of its complaints policy against this Service’s Complaint Handling Code, specifically in relation to the 15 working days for its stage 1 response when it should be 10 working days. The landlord is to confirm to this service what the outcome of its assessment was and what actions it intends to take, if any.
    5. Confirm to this service that it has complied with the above orders.