Epping Forest District Council (202128520)

REPORT

COMPLAINT 202128520

Epping Forest District Council

30 November 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:
1. The landlord’s response to the resident’s concerns about his neighbour’s building work.
2. The associated complaint.

Background

The resident had an introductory tenancy dated 21 July 2014 which became a secure tenancy after 12 months.
The resident’s neighbour, who is a homeowner, had been looking to extend their property since 2020. The resident’s neighbour made various applications to the council’s planning department for permission to build a rear extension.
The resident was concerned about his neighbour’s work. He complained to his landlord on 30 March 2020. The resident claimed that his landlord had not told him about an agreement to help manage the work. The resident also alleged that his neighbour’s building work had caused cracking and damage to his property. He asked his landlord to cover the cost of filling the cracks in and redecoration.
In August 2020 the planning department wrote to the resident to say it was investigating allegations that his neighbour had breached planning law. The landlord surveyed the resident’s property and published a property survey report dated 12 October 2020.
The landlord explained to the resident’s mother in April 2021 that it had no control over the building work as this was a planning matter. It said it could only ask the council’s planning department to contact the resident. The landlord told the resident it would deal with any issues after the building work was completed.
On 15 April 2021 the landlord wrote to the resident to explain a retrospective party wall agreement was not possible. The landlord explained that it could not attribute any cracks to the neighbour’s building work.
On 28 June 2021 the resident alleged to his landlord that his neighbour had encroached on his land and referred to a “third party wall notice”.
The resident’s mother contacted the council’s planning department in July 2021 on behalf of her son. She alleged that:
1. the extension was over the shared boundary
2. the neighbour had built on a party wall line
3. the neighbour’s building work damaged her son’s property and was not in line with planning permission.
The resident’s mother told the council’s planning department the work was affecting her son’s mental health.
The planning department responded to the resident’s mother by saying that it could not resolve private disputes between neighbours. The planning department explained:
1. that it could not consider allegations that the resident’s neighbour did work to any party walls or investigate the alleged damage. This is because these were not planning enforcement matters
2. it could not consider the finish of the neighbour’s extension
3. an enforcement officer had visited the resident’s neighbour and agreed on remedial works to allow for better conformity with the planning permission granted
4. it acknowledged the neighbour had built a small additional parapet wall with guttering. It decided at its discretion that it could not justify further enforcement action
5. it had closed its investigation and would not take further action.
In December 2021 the resident provided his landlord with a list of items he wanted to allow him to fill in wall cracks and redecorate.
In March 2022 the landlord refused the resident’s request. It offered to either supply him with the materials its contractor would have used or to ask its contractor to redecorate and fill in the cracks.
The resident complained to the landlord on 15 March 2022. The landlord responded on 23 May 2022 at stage 1 stating:
1. it had no prior knowledge of the work done by his neighbour and there was no party wall agreement in place to manage this
2. it had made the planning department aware of the issues and would consider what action it may take
3. it had referred the matter to its legal department
4. it had offered to redecorate and fill in the cracks or provide the supplies that its contractors would have used to allow the resident to do this. It could not confirm the cause of the cracks
5. it believed the supplies the resident requested were ‘excessive’ and would not be of the quality he would want
6. it had communicated to the resident as much as it was aware
7. it had acted in his interests and made an offer to do remedial work on the resident’s property.
After an escalation request the landlord responded on 24 June 2022 at stage 2 and said:
1. it had offered to provide the resident with supplies but could not provide the materials the resident wanted as it believed they were excessive
2. it could not supply a party wall agreement as there was not one
3. the housing assets and planning enforcement team were still considering the issues, and it would take any relevant action recommended
4. it had communicated as much as it was aware and tried to make good issues caused by the neighbour’s work, without accepting the work caused them
5. It had offered the resident reasonable costs for the cracks.
The resident informed us that he wants to move home to help improve his mental health. He also has referred to having invested in the property and feeling treated unfairly. The resident requested we investigate his complaint.

Assessment and findings

The legal framework and landlord’s policies

Anyone looking to develop their property must either apply to their local council for planning permission or be satisfied that their plans do not require an application. Certain types of development come under permitted development rights. Developments with permitted development rights are considered to have planning consent without the need for an application.
In addition to planning consent if a person’s proposed development will affect a shared (party) wall or a boundary line between properties, the Party Wall Act 1996 may be relevant. This act provides a framework for preventing or resolving disputes concerning building work that affects party structures. These include shared walls, boundary structures, or some excavations near buildings.
The act requires anyone intending to conduct work to serve a notice of their intended work on adjoining freeholders or leaseholders. The person doing the work must serve notice on the neighbouring freeholder or leaseholder at least two months before the start of the work.
Adjoining owners can either agree to the intended works or if this is not possible, they can withhold their consent. The procedure in the act allows for an appointment of a surveyor to resolve any dispute. The act also allows for an adjoining landowner without notice of work to a party structure to apply to the court to stop the work. The legislation also gives protections to neighbouring owners by allowing them to influence work. The act also allows the buildings of neighbouring owners to enjoy protection whilst the neighbour’s building work is ongoing. It also entitles neighbours to compensation for damage caused by the work.
Under section 11 of the Landlord and Tenant Act 1985 the landlord must keep the structure of a property in repair. Plasterwork is generally regarded as part of the structure of a property.
The law regards a situation where something that occurs in one property that affects the use and enjoyment of another as a private nuisance. Under part 3 of the Environmental Protection Act 1990, the local council is under a legal duty to take reasonable steps to investigate claims of a statutory nuisance. It must also act where it finds one.
Regulation 4(1)(a) of the Building Regulations 2010 requires work to be conducted following the standards contained in Schedule 1 Part B relating to fire safety. This requirement is supported by technical guidance called ‘Approved Document B’. The council enforces these regulations.
The landlord’s complaint policy requires it to send a written response at stage 1 within 10 working days. If the stage 1 response is incomplete the landlord can conduct a review and issue a response within 15 working days.

The scope of the investigation

Paragraph 41(c) of the Scheme precludes us from considering complaints about a council where it is not acting as a landlord. Part of the resident’s complaint relates to the grant of planning permission. The council’s planning department granted this in the performance of its statutory planning functions and not as a landlord. This aspect of the complaint is therefore out of scope under paragraph 41(c) of the Scheme. This also includes the council’s handling of reports of statutory nuisance or breaches of building regulation consent.
The Ombudsman can consider how the landlord responded to the resident’s concerns which will be the focus of this investigation.

The landlord’s response to the resident’s building work concerns

The resident was concerned about his neighbour’s building work as far back as 2020. On 3 August 2020, he reported to the council’s planning department an alleged breach of planning law. It is unclear from the evidence when the landlord was aware of the resident’s concerns or of this allegation. However, the landlord was on notice of these concerns by October 2020 having arranged for a property survey report. This was an appropriate action to take to help the landlord understand if the building work was affecting the resident’s property.
The report noted irregularities in the building work of the resident’s neighbour. This included a steel beam that extended beyond the party wall boundary. The report raised concerns that this may have affected the fire break between the properties.
The report also noted cracks in both levels of the resident’s property. The report described these as minor which the surveyor could not conclusively attribute to the neighbour’s building work. The report made the following suggestions saying:
1. the landlord could approach the neighbour to ask if they would enter into a party wall agreement retrospectively
2. the landlord could ask the neighbour to compensate the resident for any damage caused by their building work
3. the resident could fill in any cracks and decorate after the neighbour’s building work was finished
4. the landlord could consider legal action to get a court order (injunction) requiring the neighbour to shorten the steel beam.
The landlord told the resident that it would address the issues at the property after his neighbour completed the building work. It also directed the resident to the local authority’s planning department. This was appropriate as any alleged breach of planning would be a matter for the planning department which had responsibility for enforcement.
However, the landlord was responsible for carefully considering each recommendation in the survey report. This is because the landlord requested this report, and it had an interest in the resident’s property.
On 28 June 2021 the landlord noted the resident’s concern that his neighbour had encroached onto his property. The resident’s communication to the landlord referred to a ‘third party wall notice’. It was clear that the resident was concerned about the lack of any party wall agreement. The survey report recommended the landlord consider the possibility of entering into a retrospective party wall agreement.
The landlord has supplied evidence to us that it considered but ruled out entering into an agreement. The landlord wrote to the resident in April 2021 to explain no agreement was possible. The landlord was unable to compel the resident’s neighbour to enter into an agreement and it had decided that there was no reasonable prospect of an agreement. The Ombudsman can find no fault in the landlord’s approach to the party wall agreement.
The landlord also supplied evidence to us that it considered and ruled out applying for an injunction after considering legal advice. This was a reasonable position to take having weighed up the prospects of successfully obtaining one. However, there is no evidence that the landlord explained this to the resident which was a failure in communication.
The survey raised a risk relating to fire safety caused by the neighbour’s building work and questioned what building regulation approval the council gave. Despite this, the landlord has not provided evidence that it made any enquiries with the building control department. This would have been appropriate, given its responsibilities as landowner and landlord, to ensure the safety of the resident and his property.
It was clear that the building work caused the resident distress and was affecting his enjoyment of his property. The landlord was therefore on notice that there may have been a private nuisance.
It would therefore have been appropriate for the landlord to have made a referral to the council’s environmental health protection team to investigate. The council’s environmental health protection team were under a legal duty to take reasonable steps to investigate any allegations of statutory nuisances and prevent any found. The landlord should have made a referral to allow for this assessment given the concerns raised by the resident. However, there is no evidence that it did, and this was a failure as this meant the landlord had not appropriately acted upon the resident’s concerns of a nuisance.
The landlord offered the resident to fill in the cracks or to provide him with the materials to allow him to do so. The resident challenged the landlord’s decision to refuse to provide him with the materials he wanted.
The Ombudsman considers the landlord acted fairly in making this offer to the resident. This is because the landlord was under no legal obligation to fill in the cracks and paint or provide the resident with specific products. The evidence shows that the landlord had not caused the cracks. There was also no conclusive evidence that an inherent defect in the resident’s property caused the cracks, or that the cracks amounted to disrepair.
The survey report showed that the cracks in the resident’s property were non-structural, minor, and did not have a single cause. The Ombudsman considers that the landlord was not under an obligation under section 11 Landlord and Tenant Act 1985. This is because the damage to the plasterwork was so minor and cosmetic that it only required redecoration. In the Ombudsman’s opinion, the condition of the resident’s plasterwork did not amount to disrepair that needed repair by replastering.
The Ombudsman considers nevertheless that there was a failure in the landlord’s communication of its decision to the resident. The resident requested materials in December 2021, but it took the landlord until March 2022 to respond. This amounted to an excessive delay which caused the resident distress and frustration.

The landlord’s complaint handling

The Ombudsman also considers there was a failure in the landlord’s complaint handling. The resident complained to the landlord on 15 March 2022 about its refusal to supply the materials that he requested in December 2021. However, the landlord did not log this as a complaint and respond which was a breach of the Ombudsman’s Complaint Handling Code (the Code).
There was no explanation as to why the landlord did not treat the communication from the resident in March 2022 as a complaint. It was not until we contacted the landlord in May 2022 that it logged a complaint, and this was unsatisfactory.
The Ombudsman notes from the landlord’s self-assessment against the Code that it treats all expressions of dissatisfaction as complaints however in this instance it did not. Consequently, the landlord failed to respond to the complaint within the timescales within its policy. This delay added to the resident’s frustration and delayed the Service considering his complaint.

Determination

In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s response to the resident’s concerns about his neighbour’s building work.
In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of the resident’s complaint.

Orders

Within 28 days of the date of this determination the landlord must pay the resident the sum of £350 made up of:
1. £200 for the distress and inconvenience caused by its handling of the resident’s concerns about his neighbour’s building work
2. £150 for the failures in complaint handling.
Within 28 days of the date of this determination the landlord should write to the resident to:
1. apologise for its failures in communication and complaint handling
2. inform him of his right to claim compensation for any qualifying improvements under the Secure Tenants (Compensation for Improvements) Regulations 1994 should he end his tenancy.
Within 28 days of the date of this determination the landlord should:
1. contact the building regulation department to check the neighbour’s work satisfies building regulations with respect to fire safety
2. arrange for a survey of the resident’s property to assess if there is any damage to the structure and inform the resident of the outcome.
The landlord must provide us with evidence of compliance with the orders made within 28 days of the date of this determination.