Brentwood Borough Council (201915056)

 

 

 

 

REPORT

COMPLAINT 201915056

Brentwood Borough Council

22 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 how the landlord handled a boundary issue relating to the resident’s property.

Background and summary of events

2. The resident, and his wife, are tenants of the landlord’s property. They have resided at the property for over forty years. Both tenants are elderly; and the resident’s wife suffers from health complications following a stroke. The resident’s daughter has represented them throughout the complaint to the landlord, and has referred the matter to the Ombudsman on their behalf.

The landlord’s complaints policy

3. “Our first priority is to resolve failures and put them right. Unless we agree that [the landlord] is liable for material loss, we will usually only consider compensation when we review if the complaint has been adequately resolved.

Compensation should be appropriate and proportionate. It is not automatic payment when [the landlord] makes a mistake. Compensation should only be considered where the complaint investigation has identified maladministration (a mistake or delay that has caused a customer to suffer injustice) and [the landlord] or those working on behalf of [the landlord] are wholly or partially at fault.

If we cannot put a complainant back in the position that they would have been in but for our mistake/delay then we would consider financial compensation as a substitute. This may be because of the passage of time or the nature of events’.

Summary of events

4. The representative has advised that on 23 October 2017, the resident received a letter from the landlord – dated 12 October 2017 – it stated: 

“It has been brought to our attention that the fence at the bottom of your garden has encroached on your neighbours’ garden. We are giving you 28 days to rectify this and move the green house.

If you have not moved the fence in the time you have been occupying the property then (the landlord) will rectify the boundary issue. However, you are still required to move the green house within the 28 days so that we can complete the further works”.

5. The resident informed the landlord that the fence had been in the same location since they moved to the property.
6. The representative says that later in June 2018, she received an email from one of the landlord’s housing officers stating that the location of the fence was correct in terms of the boundary. On 13 June, the resident and their representative met with the landlord and the neighbour for mediation as the issue of the boundary continued to be debated. However, the representative said that the mediation was unsuccessful. On the same day, the resident received a further letter from the landlord advising once again that the fence was encroaching on the neighbour’s land.
7. In June 2019, the representative submitted a formal complaint to the landlord. In her correspondence, she said that she had spent some time trying to resolve the matter as to where the boundary should be, but felt let down. The representative said that she considered that the landlord had failed the resident, and hoped that it would investigate matters fully.
8. The landlord issued its stage one response to the complaint on 16 July 2019. In its letter, it said:
   1. It understood the complaint was in relation to the boundary dispute with the resident’s neighbour. It acknowledged that the representative was also unhappy with what she considered to be a lack of information provided or action taken by the landlord.
   2. It considered that it was necessary to seek legal advice, given the issues raised, and was waiting to receive this.
   3. The initial letter asking the resident to remove his greenhouse was sent by a member of staff who no longer worked within the relevant department, and the contents of the letter were not correct.
   4. It appeared that the letter had been sent in response to a complaint made by the neighbour; however, there was no evidence to suggest that any investigations had been undertaken prior to writing to the resident.
   5. For the reasons detailed above, it had upheld this section of the complaint. The letter did not outline why the resident was being asked to move the greenhouse; and it did not include any supporting evidence. It was therefore an error for this letter to be sent, and it apologised.
   6. It noted the representative’s concerns about the treatment the resident had received. However, it did not believe that its treatment of the resident had been “deliberately biased, impolite or unfair”.
   7. In relation to the boundary specifically, it said:
      1. It had demonstrated where it believed the boundary should be. It had also informed the neighbour that he should not alter or erect a fence on the relevant portion of land unless he had further evidence that he owned it.
      2. It would be happy to mark a boundary once it had received legal advice; however, in the meantime, neither party should alter the boundary.
      3. It noted that the neighbour had made several complaints about a tree within the resident’s garden. It had informed the neighbour that the tree would remain in situ, and its tree surgeon would monitor it. The landlord added that until such a time as it found the complaints vexatious, he was allowed to express his concerns.
      4. It had informed the neighbour that until it had received legal advice, no actions should be taken to move the boundary.
9. The representative responded on 23 July. She said that she did not consider that the resident had been listened to. She said that when the mediation took place, the meeting was not handled correctly; and she considered that the neighbour had possibly been allowed to think that he was entitled to more land.
10. The landlord subsequently visited the property with surveyors on 7 August 2019 with a view to reaching a conclusion about the boundary. The landlord wrote to the resident on 28 August, setting out the decision that had been reached. It said:
    1. On visiting the property, it was clear that the boundary line was wrong in multiple places.
    2. It reviewed the best place for the boundary and considered that it would be beneficial to all if:
       1. The boundary between the resident and their neighbour was left as it was, but that it was fully renewed.
       2. A corner post would be installed to support the fence; and this would be as close as possible to the greenhouse within the resident’s garden.
       3. The boundary to the rear of the resident’s property was renewed.
    3. For the works to take place, any shrubbery near the fences would have to be removed so that the operatives had sufficient access.
    4. The proposal was to install a 5ft closed board fence to both boundaries with gravel board to the bottom. This would allow privacy for all residents.
    5. The maintenance of the greenhouse would not be possible from within the resident’s garden due to the proximity of the new fence. Therefore, it would require the agreement of the resident to approach their neighbour for access as and when this was required. It added that this would have to be dialogue between both individuals, and it would not be involved.
    6. It asked the resident to review the proposals and sign a declaration of agreement so that works could proceed.
11. It is not clear from the evidence what happened after this letter was sent; however the representative contacted the landlord in relation to the works at the end of October. The landlord replied and advised that it had written to the resident detailing the proposed works and that the rear fence would be replaced first. It added that once the foliage between the resident’s and the neighbour’s property had been removed, it would arrange for that fence to be renewed.
12. The representative wrote to the landlord on 3 November. She said that whilst the response listed what needed to be done, it did not deal with the issues that she felt had been created by the landlord. She said that the whole situation had arisen because of a mistake by an employee; and that as a result the landlord had given up its land and failed to protect its tenants.
13. The landlord issued its stage two response to the complaint on 27 November. In its correspondence, it said that:
    1. During a visit to the area there was no clear boundary; however, it attempted to demonstrate where the boundary was likely to be.
    2. Historical records did not categorically reflect where the boundary line should be.
    3. It was considered that the boundary was most likely where the resident’s greenhouse was sited; meaning that the resident would have to move the greenhouse. However it was agreed that the fencing works would be carried out behind the greenhouse instead.
    4. It did not uphold the complaint as it considered that it had attempted to resolve the issue to the satisfaction of all parties in the absence of Land Registry records.
    5. The complaint regarding the initial letter had been upheld; and it had taken steps to investigate the boundary issue. It had also tried to find a solution to the satisfaction of all; as opposed to asking the resident to move the greenhouse.
    6. With regards to maintenance of the greenhouse, it was happy to liaise with the neighbour if the resident did require access to his garden.
14. The resident and representative were unhappy with the conclusion that had been reached and referred the complaint to the Ombudsman for investigation.

 

 

Assessment and findings

15. The Ombudsman cannot make a finding about where the boundary line should lie. This is a legal matter that should be properly determined by inspection of the land and, ordinarily with reference to any documents held by the Land Registry. Further, this would be a matter for the landlord to raise, given that it owns the freehold title for the property. It follows that the Ombudsman cannot determine whether the landlord reached the correct conclusion with regards to the boundary line. However, the Ombudsman has assessed how the landlord dealt with the matter, and what steps were taken to investigate matters relating to the boundary line.
16. From the evidence that is available, it is not clear why the resident was sent the initial letter in relation to the boundary line. Within the complaint correspondence, the landlord had informed the representative that it appears that it was sent in response to concerns that were raised by the neighbour. This was not appropriate.
17. On receipt of the comments by the neighbour, an investigation should have taken place to ascertain where the fence was situated and if the boundary line was correct – before any correspondence was sent to the resident informing him that he was encroaching on the neighbouring land. The resident should have also been consulted, and a full explanation of the actions taken by the landlord should have been provided, before they were asked to make changes to their garden – or that landlord took any action in relation to the fencing.
18. It is acknowledged that the landlord later accepted that it was wrong to send this letter. However, it does not appear that the landlord has acknowledged that the initial letter was heavy handed and that it has had some significant ramifications in terms of how the dispute with the neighbour and subsequent matters progressed. In addition, the letter did not provide the resident with details of what they should do if they wished to discuss the matter further, nor did it provide an explanation as to why after several decades of living at the property they were being informed that the boundary with the neighbouring property was believed to be incorrect. Given the landlord’s complaints policy, it would have been appropriate to consider what steps could have been taken to try to put things right. Further, the evidence does not show that the landlord has put measures in place to ensure that something similar does not happen in the future.
19. In relation to the boundary itself, the landlord did subsequently consult Land Registry records. It is unfortunate that this did not provide any information that would allow the landlord to make a clear decision about where the boundary lines should lie. In the absence of such information, it was appropriate for the landlord to inspect the area and make a decision accordingly. From the evidence that is available, the landlord took the most appropriate steps in the circumstances with a view to resolving the dispute.

Determination (decision)

20. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord.

Reasons

21. The landlord wrote to the resident and informed them that they needed to move their greenhouse as the boundary between their property and the neighbours was incorrect. The letter was received out of the blue without any explanation or supporting evidence. Further, the letter did not explain what steps the resident could take if he wished to discuss the issue of the boundary line with landlord staff. This was inappropriate.
22. During the complaints procedure, the landlord acknowledged that the initial letter should not have been sent. The subsequent steps taken by the landlord to ascertain where the boundary should lie were appropriate. However, the landlord did not recognise the worry and concern that was caused to the resident when the initial letter was issued; nor did it consider whether any steps should be taken to stop similar mistakes happening in the future.

Orders

Within 4 weeks of the date of this letter, the landlord should pay the resident £100 for the worry and concern caused by the initial letter which was sent.

Recommendations

The landlord should consider implementing a policy or procedure for dealing with boundary related complaints and/or enquiries. Such a procedure could help to ensure fairness and consistency when deciding whether a boundary line should be moved.