East Riding of Yorkshire Council (202128382)

REPORT

COMPLAINT 202128382

East Riding of Yorkshire Council

13 September 2022

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 the landlord’s:
   1. response to the resident’s concerns that the property was incorrectly advertised as having access to a driveway;
   2. reimbursement and communication of its goodwill offer relating to application fees.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman 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.
3. Paragraph 39(m) of the Housing Ombudsman Scheme notes as follows:

39. The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion:

m) fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.

4. It is not disputed that the landlord advertised the property as having a driveway. The landlord has also acknowledged that following enquires made by the resident with the highways authority, it has become apparent that the property does not actually have a recognised driveway.
5. Complaints about the information provided by local authority landlords during the allocations process fall within the jurisdiction of the Local Government and Social Care Ombudsman (LGSCO).
6. After carefully considering all the evidence, in accordance with paragraph 39(m) of the Housing Ombudsman Scheme, the complaint about the landlord’s response to the resident’s concerns that the property was incorrectly advertised as having access to a driveway fall outside of the Ombudsman’s jurisdiction.
7. The resident may wish to refer this element of the complaint to the LGSCO.
8. While out of jurisdiction, the facts surrounding this element of the complaint are still relevant to the remainder of this investigation and so are referred to below to provide context.

Background

9. The resident is a tenant of the landlord. The landlord is a local authority. The property has an area at the front that has been used by previous tenants as a driveway. Between the property and the public road is a public pedestrian footpath with a raised kerb.
10. As noted above, the landlord advertised the property with a driveway. The resident queried whether she could arrange for the footpath kerb to be lowered to improve access to the driveway. The landlord advised this was the responsibility of the highway authority, but that it would provide any necessary consents required.
11. Upon making enquiries with the highways authority, the resident was informed that there was no valid driveway at the property and that it was an offence to cross the footpath with a motor vehicle. The highway authority advised she could apply for the driveway to be formally recognised, however, it would require improvement works costing approximately £6,000-£8,000.
12. The resident subsequently made a formal complaint to the landlord. In its stage one response, the landlord reiterated it could not approve a driveway as this was the jurisdiction of the highway authority. In a further communication, as a gesture of goodwill, the landlord offered to refund the cost of the highway authority’s application pack and planning application fee, being £41 and £206 respectively.
13. In its stage two response, the landlord clarified that the resident needed to pay the fees upfront and it would then reimburse her. The landlord further advised that it would not assume any financial responsibility for the works should she proceed.
14. The resident subsequently obtained the application pack and incurred the £41 fee, as she was under the impression that the landlord would take ownership over the other costs associated with the works. Upon realising this was not the case, the resident discontinued the application process.
15. The resident provided the landlord with receipts for the application pack on 2 February 2022. The resident has advised this service that to date she has not received a reimbursement for this fee from the landlord.
16. The resident has also offered to split the costs for the works to the driveway, however, the landlord has declined this offer.
17. The resident has referred the complaint to this service as she remained dissatisfied with the communication regarding the application fees and that the landlord is yet to reimburse the fee she had incurred.

Assessment and findings

18. As noted above, this investigation will not focus on the complaint about incorrect information provided by the landlord at the allocations stage, nor will it comment on the landlord’s investigation or response to this element of the complaint. This investigation can, however, assess the landlord’s actions that occured following the resident raising her concerns.
19. It is not disputed that the area at the front of the property is not and has never been a valid car parking space. The highway authority has advised that works could be undertaken to adapt the area at the front of the property into a valid car parking space. These works would be considered an improvement as opposed to a repair. This service has not been provided with any evidence to suggest that the landlord is obligated to carry out improvements.
20. Having discovered that there was no valid car parking space, the landlord advised that it would provide any consents required for the resident to carry out these improvements herself. It also used its discretion to offer to refund the resident for the cost of the application pack and planning application fee.
21. It is evident that on or around 25 January 2022, the resident requested further information about its offer of financial help, but that the landlord did not respond. It was appropriate, therefore, that in its stage two response, it acknowledged and apologised for its poor communication regarding the refund offer. The landlord appropriately clarified that after receiving the receipts for the application costs, it would issue a refund.
22. The resident provided copies of the receipts for the application pack in or around February 2022. It is evident that following this, the parties continued to communicate on issues such as funding the works, but it is not evident that the landlord acknowledged the refund request, or provided a refund of this fee. While the resident went on to withdraw her application, the landlord’s offer to reimburse this fee was not conditional on her proceeding with the application. While its offer to refund this fee was at its discretion, having raised her expectations it would pay the refund following submission of the receipts, the Ombudsman would expect it to do so within a reasonable timeframe, or otherwise provide its position on why it hadn’t refunded the fee.
23. The landlord’s failure to pay the refund, having raised the resident’s expectations that it would, and despite multiple opportunities to address the issue in further correspondence, would have caused frustration for the resident and amounts to service failure in the circumstances. In accordance with this service’s remedies guidance, an amount of £100 compensation is appropriate to recognise the distress and inconvenience caused to the resident by its poor communication and failure to provide the refund having raised her expectations that it would.
24. An order has also been made that the landlord contact the resident to provide its position on payment of the refund.
25. The Ombudsman notes that the resident offered to split the cost of the works to the driveway with the landlord, but that the landlord has declined this offer. As noted above, it is not evident that the landlord is responsible for improvement works, and so it was reasonable for it to decline this offer as it saw fit.
26. The Ombudsman has also identified that the landlord’s stage two response should have been issued within 20 working days from the escalation request. The Ombudsman notes that the landlord responded outside of its timescale policy, namely after 23 working days, however, in this instance, the delay was not significant, and it was sufficient that the landlord apologised.

Determination

27. As noted above, in accordance with paragraph 39(m) of the Housing Ombudsman Scheme, the complaint about the landlord’s response to the resident’s concerns that the property was incorrectly advertised as having access to a driveway fall outside of the Ombudsman’s jurisdiction.
28. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of landlord’s response to the landlord’s reimbursement and communication of its goodwill offer.

Orders

29. The Ombudsman orders the landlord to pay compensation of £100 for any distress and inconvenience caused to the resident by its poor communication and failure to provide the refund having raised her expectations that it would.
30. This amount must be paid within four weeks of the date of this determination.
31. The landlord to contact the resident within four weeks of the date of this determination to provide its position on payment of the refund for the application pack fee.