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Exeter City Council (202005117)

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REPORT

COMPLAINT 202005117

Exeter City Council

10 February 2021


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. consultation about, and installation of, a mobility scooter storage unit (the store).
    2. handling of the associated formal complaint.

Background and summary of events

  1. The landlord wrote to all residents on 9 October 2018 advising of a number of planned works including the installation of scooter stores to the rear of several of the properties.
  2. The resident contacted the landlord on 7 October 2019 as she had awoken to find work being done to the rear of her property. She said that she and other neighbours had not been given any notice of this work or seen any planning permission and she was concerned about the size of the store and the loss of green space. In the landlord’s responses of 9 and 10 October 2019, it said that planning permission was not needed and the size of the store was to accommodate multiple scooters and charging points for multiple residents and to allow for future needs.
  3. The landlord said that it had provided consultation on the work during 2018 and that it had sent out letters to all residents on 9 October 2018 detailing all work to be done and the store was included in this. It requested that the resident not interfere with the workmen as the work was not specific to her property and it considered this to be unacceptable behaviour. It noted that she did not agree with the works but it considered them necessary and said that it was entitled to undertake such works regardless of an individual’s opinion or objection.
  4. The resident sent a number of emails containing photographs and queries regarding planning permission to the landlord. She also disputed that there had been any consultation as the letter received said that the store was being built at flats A and X-Z (not the resident’s flat). In the landlord’s response of 29 October 2019, it said that Local Authorities had permission to build any small ancillary building on land it owned without planning permission. The hardstanding for the store fell within the permitted development rights and therefore no planning application was required.
  5. The landlord met with the resident on 25 November 2019 to discuss the store and any other outstanding issues with the property. Following the visit the resident emailed the landlord to say that she was still unhappy with the location of the store as it took away green space and she asked if a feasibility study had been conducted.
  6. In a further email of 10 December 2019, the resident listed a number of points that she wanted answering about: the safety measures at the site of the work; the planning application for the concrete standing; and whether there was a feasibility study. She also said she wanted an apology for what she considered to be the landlords bullying tactics towards her. The landlord responded on 8 January 2020, when it apologized for the delay in responding to the points she had raised and said that it was in the process of addressing them.
  7. The resident emailed the landlord on 3 February 2020 requesting that a complaint be registered as she had not received a response to her list of points. The landlord acknowledged receipt of the complaint on 4 February 2020 and said that it would be responding to the points raised soon and that it would arrange for a complaint to be logged at stage one of its process.
  8. In the landlord’s stage one response of 5 February 2020, it said that the safety measures and regulations on site were addressed by the appointed contractors and that it had assessed the proposed works and the contractors were appointed on the basis of the assessment. It also said that it conducted regular site visits to assess the contractor performance.
  9. The landlord reiterated that planning permission had not been necessary in this case and that it had sought guidance on this before making the decision. It also acknowledged that the resident’s feasibility study suggestion was a good idea and had fed this back to inform future activity. However, whilst the new hardstanding reduced the size of the communal area, work previously done to another area had removed paving and returned some green space. It was sorry that the resident had perceived its actions as a form of bullying and said that this was not its intention. Instead, its intention was to consistently address matters raised by her in a positive and constructive manner.
  10. The resident emailed the landlord on 18 May 2020, saying that there were still outstanding issues in the communal area regarding benches and snagging and no further work had been done to the concrete standing so she asked that it be removed. She also reiterated that there had been no consultation regarding this work. In the landlord’s response of 21 May 2020, it said that the snagging work was being dealt with and it had issued its final response in respect of the store, with work proceeding as soon as possible.
  11. The resident responded the same day and said that no final response in respect of the building of the concrete standing had been issued and this was still an outstanding issue. In the landlord’s response of 9 June 2020, it advised that the complaint response of 5 February 2020 had addressed her concerns about the store. In respect of the complaint, she could request that it be escalated to the next stage or it could respond to the points raised separate to this process.
  12. The resident responded the same day and said that she thought the complaint had already been escalated and confirmed that she did want it escalated. The landlord sent written confirmation that the complaint had been escalated on 11 June 2020 and advised that it would issue its response by 23 July 2020.
  13. On 2 July 2020 the landlord confirmed that no work would be carried out on the store while her complaint was being investigated as per her request. It also said that it had not previously escalated her complaint following its stage one as it had not heard anything from her about the issue until 21 May 2020. It said that correspondence it had received from her between those dates was about weed spraying and no other issues were mentioned. In a letter of 13 July 2020, the landlord advised that, due to high workloads caused by Covid-19, it would need more time to respond to the complaint and it would do so by 6 August 2020.
  14. In the landlord’s stage two response of 23 July 2020, it addressed the six points the resident had raised in an overview of her complaint sent on 12 June 2020, as follows:
    1. Location of the store and feasibility study – The decision to install the store was made in response to the needs of residents and it had taken in to account future residents’ needs. It had chosen the location based on access to services (electricity), path access and overall impact. Had it been placed in another area longer paths would have been needed causing the loss of more of the garden. It had considered the feasibility taking into account resident needs and environmental impact and, on this occasion, the need for the store took precedence;
    2. Formal notification to residents – It had first informed residents during a meeting on 13 April 2018 in which a number of future improvement works were discussed. It also sent a letter to all residents on 9 October 2018 setting out the scope of works to be carried out and it believed that this was an appropriate level of notification. It had overall gained more greenspace through the work in other areas;
    3. Planning permission not necessary – Planning permission was not required under legislative guidelines for small buildings not exceeding four metres in height and 200 cubic metres capacity. The store did not exceed this and it provided a link to a government website setting out the information.
    4. Proximity of the store to flats and loss of green space for vehicles – The placement allowed for space between the buildings while not being too far for the reasons given in its response to point (a) above. Due to other changes made there had been an overall increase in green space and it was reviewing additional landscaping, but this had been suspended due to the pandemic;
    5. Decision making on placement and size – The size was to provide for future needs as it considered that there was an increasing demand for these facilities. The position of the store had taken several factors into account including not obstructing escape routes and being accessible to residents. The rear of the building was considered more secure as it was not in public view;
    6. Access to the store – Access would be by the installed path which was considered to be the most effective and safe route for residents that use the facility.
  15. In summary the landlord did not uphold the complaint as it found that it had appropriately consulted the residents, the store was necessary, and planning considerations had been followed.
  16. The resident submits that the landlord has not provided any proof of the consultation despite her requests and that there were significant delays in the complaints handling. She has also said that she believes the landlord was wrong to build in the garden.

Assessment and findings

Installation of the store

  1. With regard to the landlord’s position on planning permission, the Ombudsman has considered the relevant legislation (available on legislation.gov.uk) and this confirms the details provided by the landlord in the stage two response of 23 July 2020 (see paragraph 25(c) above). As this Service has not seen any evidence to show that the store exceeds these parameters, there is no evidence of the landlord acting unreasonably in saying that it was not required to obtain planning permission on this occasion. If the resident has ongoing concerns about this issue, she should contact the council’s planning enforcement department to make further enquiries and this matter may ultimately be considered by the Local Government and Social Care Ombudsman.
  2. No evidence has been provided to show that the landlord carried out a feasibility study prior to the construction of the store. However, the landlord has demonstrated that, when deciding on the location of the store it considered: the accessibility of residents; the electricity supply needed; limiting the reduction of greenspace; the need to not block escape routes; and the additional security of placing it at the rear of the building. Whilst the landlord may not have produced a formal study, and it has not shown when these deliberations were made, the above submissions demonstrate that careful consideration has been given to the location of the store, taking into account a number of appropriate factors.
  3. It is clear that the resident is unhappy with the location of the store and believes that there was a more suitable location on the roadside of the building. Whilst she is entitled to her opinion, no supporting evidence has been provided to indicate that her suggested location has also taken account of matters such as additional security, accessibility, or electricity supply. As a result, it was reasonable that the landlord was not compelled to change the location on that basis. 
  4. The resident has said that the notice the landlord provided regarding the installation of the store was not clear and led her to believe that sheds for specific properties were being fitted and not a general storage facility. Firstly, the landlord has said that the matter was discussed at a meeting with the residents in April 2018, although the Ombudsman has not seen any records/minutes to show what was discussed on that occasion.
  5. Secondly, the landlord has provided this Service with a copy of the notification letters sent to residents on 9 October 2018. Upon review, they were not particularly clear with regard to the scale of the work relating to the installation of the store and they specifically stated that the construction would be at the rear of flat A. Unfortunately, it is not possible for the Ombudsman to determine where the rear of flat A would be in respect of the location that the store was ultimately installed. However, despite the scale of the work not being clear on the letter, this Service does consider that it was sufficiently clear that a storage facility with hard standing was to be built at the rear of the property. As a result, the impact of the store upon the resident is likely to have been similar to that which would have been apparent from the initial consultation.
  6. However, the letter notifying of the list of work was dated 9 October 2018 but the work for the store did not begin until October 2019. Given the nature of the work and the requirement for digging machinery, it would have been appropriate for the landlord to have provided a further update closer to the time of the work beginning. The landlord should review its process to allow for this in any future works especially where the work could be disturbing to residents.

Complaints handling

  1. The resident has also complained about the time it took for the complaint to progress through the landlord’s internal complaint policy and said that there were significant delays which meant that the landlord did not meet the times set out in its policy. The landlord’s published policy states that it will investigate complaints at both stages within 15 working days of receipt. The resident first raised her issues with the landlord regarding the store on 7 October 2019 and the landlord responded on 10 October 2019 and continued to engage with her to try to resolve the matter.
  2. However, this was not recorded as a complaint until the resident specifically requested that a complaint be logged on 3 February 2020 as the landlord had not responded to her last emailed points. The landlord then issued its stage one response on 5 February 2020, within the 15 working days set out in its policy.
  3. The landlord has said that, although it received further correspondence from the resident, there was no further mention of the store until 21 May 2020 when she said that she had not received a final response. No evidence has been provided to this investigation to suggest that the resident had raised ongoing concerns during the intervening period. As a result, there is nothing to indicate that the landlord unreasonably delayed in escalating the complaint to stage two at that time.
  4. The landlord escalated the complaint to stage two on 11 June 2020 in response to the resident’s confirmation on 9 June 2020. In its acknowledgement letter, it said it would respond by 23 July 2020, which was more than the 15 working days set out in its internal complaints process. Whilst this does not strictly comply with the policy, it is reasonable for landlords to extend a complaint investigation period (particularly in the current climate when staff resources may be stretched) provided they keep the resident updated and effectively manage their expectations. The landlord did so in this case by notifying the resident of the extended deadline and ultimately issuing its stage two response within that timeframe.

Determination (decision)

  1. In accordance with paragraph 54 of the Scheme there was no maladministration by the landlord in respect of:
    1. its consultation about, and installation of, the store.
    2. its handling of the associated formal complaint.

Reasons

  1. The landlord has shown that the construction of the store would not require a planning application if under a specific size and no evidence has been provided that it exceeded this and would have therefore required planning permission. The landlord has shown that it gave reasonable consideration to the location of the store and took into account security, safety, facilities and the effect on the green spaces. No evidence has been provided that the location the resident believes would have been more appropriate met the requirements in the same way. The landlord’s notification clearly advised of the plan to build the store with hardstanding to the rear of the building, but it did not fully detail the scale of the work to be carried out.
  2. Whilst the landlord did not meet the timescales detailed in its internal complaints policy it acted reasonably by informing the resident in the acknowledgement letter when it would respond and met that extended deadline.

Recommendations

  1. The Ombudsman recommends that the landlord should review its processes to ensure residents receive updated notification of work closer to when it is due to be started.