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Incommunities Limited (202104089)

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REPORT

COMPLAINT 202104089

Incommunities Limited

28 September 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 the landlord’s response to:
    1. The resident’s request that it fence off the land outside the property for her sole use.
    2. Complaint handling.

Background and summary of events

Background

  1. The resident has an assured tenancy with the landlord that started in 2014. The property is a three-bedroom end terrace house. The landlord told this Service that they have noted vulnerabilities for the resident including bipolar and depression and that she has support from carers three days a week.
  2. The tenancy agreement explains that the property “means the home at the address shown above and includes any garden but not communal garden, balcony, outbuilding, shed, fence or wall let with it”. The agreement does not specifically say if the property comes with a garden. The resident provided a copy of the title deed – this shows that there is land at the front, side and rear which belongs to the property.
  3. The landlord’s complaint policy says that a complaint is an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the organisation, its own staff, or those acting on its behalf, affecting an individual resident or group of residents. It has a two stage complaints procedure. It aims to respond within ten working days at stage one and within twenty working days at stage two.

Summary of events

  1. In April 2019 the resident asked the landlord to reconsider its decision not to fence off the area at the side and rear of the property (this Service has not seen significant evidence of any details relating to this matter prior to that date). In response the landlord said it had found refence to a visit to the property on 5 November 2015 whereby:
    1. It had confirmed the land it maintained to the side and rear of the property was not part of her garden.
    2. It had explained that, if the resident wanted to fence an area to the rear in order to make the space around the back door more private, she should request this in writing. It added that it could not see an issue with this as many residents had done this in similar properties around the estate and that this would be at her own expense.
  2. The landlord said it could not see that the resident had subsequently made such a request and it was open to her to do so.
  3. On 2 May 2019 the resident asked the landlord to escalate her complaint about not fencing off the boundaries at the back of the property. She said that, when she first rented the property house five years ago, it came with the garden to the side and had in the past been used by the previous occupants as their garden. She explained that it was defined on the deeds to the property, and she should therefore have access to it and that she believed she was being penalised for the landlord’s poor maintenance. The resident added that the tenancy agreement clearly stated that the landlord was responsible for the fencing to the properties.
  4. The resident said that, among other things, she was living daily with children in her garden; she could not use the back door as “all and sundry just wander by”; she was experiencing fly tipping; she was living with balls banging against the side of the property; the water pipes had been damaged; and items had been removed from the bin area and thrown all over by bored children. She said it was “totally unacceptable and actually causes a lot of antisocial behaviour … It is unfair that I have to live like this as no one else on this estate has their property so open for anyone to walk by or cause issues”.
  5. On 15 July 2019 the resident made a formal complaint to the landlord as she was not being allowed to use the garden as intended. She said that HM Land Registry (which I will to as Land Registry) had provided a document which she said clearly showed that the land at the side belonged to the property. She said the landlord had told her it was her garden, but she could not use it as it was too large for her to maintain but then the landlord told her it was not her garden. She added the previous tenant had told her that the landlord had said it was her garden and she should maintain it.
  6. The resident said that she was experiencing a range of antisocial behaviour (ASB) including “violent brawls from the neighbours … vandalism, smashing windows, graffiti, damage to the structure and pipes …”. She asked the landlord to look at the title deeds for the property and allow her to use the garden as intended.
  7. On 17 July 2019 the landlord acknowledged the complaint.
  8. On 15 August 2019 the landlord wrote to the resident. It said that had obtained a legal view based on the document from Land Registry and its response was as follows:
    1. The title document clearly showed that the land to the rear was a communal area commonly used for drying. It has never been fenced off by the landlord and there were no plans to add fencing now or at any time in the future. It enclosed the title deed from Land Registry which clearly indicated the shared path at the rear of the property. It said the red area showed the land belonging to the neighbouring property for which there must be full access to.
    2. The land to the side of the property had a shared path allowing access for the neighbouring property; therefore, access could not be restricted by way of fencing as the occupants have a right to use this shared path at all times and the right to be consulted. The landlord added it would not consult with them as there were no plans to add fencing now or in the future.
    3. It appreciated that the response might not be the decision the resident had hoped for but “it would not enter into further correspondence about this matter”.
  9. Over eighteen months later, the landlord noted on 10 March 2021 that it had spoken to the resident who said the fact there was no fence at the side of the property caused ASB and her request for a fence had been refused. It noted she had asked for this decision to be looked at again and for the complaint to be escalated to stage two as she needed a final response from it before progressing her complaint to this Service. The landlord also noted the resident also spoke about the right of way at the back of her property which other residents had had blocked off and that she was again suffering serious ASB as this was open to the public. She said Land Registry had confirmed they could not remove the right of way. The landlord subsequently confirmed it would open a new complaint about ASB.
  10. On 25 March 2021 the resident told the landlord that she had been in touch with this Service and that it should investigate her concerns about fencing off the land at the side of the property. She said that a housing officer had told her it was her garden but “too big to manage” and that he would be “cross if I fenced it off as it would upset the neighbours”.
  11. On 20 April 2021 the landlord issued its final complaint response under its formal complaint procedure. The main points were:
    1. A new ASB case would be opened to action the resident’s recent allegations.
    2. It had dealt with the issue of the resident’s request for a fence to be erected in 2019 and enclosed a copy of the letter it had sent her in August 2019 regarding the surrounding land.
  12. The landlord signposted the resident to the Ombudsman.
  13. When the resident approached the Ombudsman, she said she felt the landlord had misled her because the deeds showed that the land at the side and rear belonged to the property. She said the landlord had not looked into this properly. As an outcome, the resident wants a fence putting up around the boundary of the property which would prevent, or at least reduce, the ASB she was experiencing.

Assessment and findings

Scope

  1. When the resident approached this Service, she had a separate complaint about the landlord’s handling of her reports of ASB which, at that time, had not completed the landlord’s formal complaints procedure. Accordingly, this report has focussed on the landlord’s handling of the resident’s request that it fence off the land outside the property for their sole use and complaint handling. It is open to the resident to bring the complaint to this Service if she remains dissatisfied with the landlord’s final complaint response.

The landlord’s response to the resident’s request that it fence off the land outside the property for their sole use

  1. Case law has determined that the boundary line shown on a title plan or map is considered to be a ‘general boundary’ but that this does not determine the exact line of the legal boundary which ultimately can only be determined by the courts.
  2. Further, it should be noted that it is not within the expertise of this Service to determine the boundary line of a property. Therefore, the focus of this report has been on the landlord’s response to the resident’s concerns about the boundary and whether it followed a reasonable process and was fair overall with the actions it took in response.
  3. The resident obtained the deeds for the property and, in 2019, asked the landlord to look at these and allow her to use the garden as intended. The landlord acted reasonably in obtaining a legal view, which it said confirmed that fencing could not be put up at the side and rear of the property due to rights of way. The landlord was entitled to rely on the professional opinion of qualified professionals when it took the decision not to put up fencing. While this Service has not had sight of the legal view itself, we note that the resident has not disputed the existence of the right of way in March 2021 when she confirmed that Land Registry had said they could not remove it.
  4. While the deeds that the resident provided to this Service appear to show that the land to the side and rear belong to the property (which the landlord owns), it does not necessarily follow that the landlord decided to include that land as a garden for the tenants in that property. The tenancy agreement is silent on whether the property has a garden and, if so, the extent of it. The landlord has said it maintains the grass to the side of the property, which the resident has not disputed. This suggests that the land is not part of the resident’s garden. It would have been good customer service for this to have been put in writing to the resident when the tenancy started to avoid any uncertainty.
  5. It is evident that the matter of the land at the side and rear of the property has been a concern for the resident for a long time now. In her correspondence, the resident says she was given conflicting information about this land by the landlord – on the one hand, that it was her garden but too large to manage; and on the other that it was land that the landlord maintained and was not part of her garden. This Service cannot reach a view on what the landlord told the resident about this land as it is unlikely, given the time that has passed, that contemporaneous documents exist that would give details of these conversations.
  6. There is no evidence to suggest that the rear and side gardens had fencing when the resident moved in; the property was therefore offered to, and accepted by, the resident without fencing installed. Under the terms of the tenancy agreement, the landlord is responsible for maintaining the property (including any existing fencing), but it is not obliged to carry out improvements. Any addition of fencing would be regarded as an improvement because the property did not include fencing when the resident started her tenancy.
  7. The landlord acted reasonably by offering to consider any request from the resident to fence an area to the rear of the property in order to make the space around the back door more private. It is not clear if the resident took this offer forward; while the photos she provided appear to show a fence around the back door, it is not clear if that existed previously.
  8.  All that said, the issues of the boundaries and fencing appear to have come about as a result of ASB which the resident said she has been experiencing since at least 2019 as a result of the land adjoining the property being open to the public. As explained above, this report is not considering the landlord’s response to these reports of ASB. However, a recommendation has been made, below, for the landlord to consider what steps it might reasonably take to limit any impact on the resident as a result of any ASB on the adjoining land.
  9. Overall, the Ombudsman considers that there has been no maladministration in the landlord’s response to the resident’s request that it fence off the land outside the property for their sole use.

Complaint handling.

  1. This Service has not had sight of the landlord’s complaint procedure prior to the one issued in January 2021. The resident’s formal complaint from 15 July 2019 was acknowledged two days later and a response issued dated 15 August 2019. This response was not clearly labelled a formal complaint response and no details were given about how to escalate the complaint if she was dissatisfied with it or any timescales for doing so.
  2. The landlord’s failure to offer a review at that time was a service failure. While we cannot say with any certainty that the resident would have asked for a review at that time, it would have been appropriate for the landlord to have offered one. This would have allowed for a review at a more senior level bringing a wider perspective and level of expertise to a complaint.
  3. The resident asked for this matter to be escalated over eighteen months later in March 2021. Following further contact from the resident who had had advice from this Service, the landlord responded with a stage two complaint response on 20 April 2021. This review, while brief, was carried out by a more senior member of staff. This response was slightly outside the timescale in the complaints procedure; however, this minor delay was not so significant to amount to a service failure.
  4. In relation to the failures identified, the Ombudsman’s role is to provide fair and proportionate remedies where maladministration or service failure has been identified. In considering this the Ombudsman takes into account our Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes as well as our own guidance on remedies.
  5. Financial redress of £100 is appropriate here for the evident impact on the resident by the landlord’s failures at stage one of its complaint procedure. Had the landlord given escalation details at the time, the matter would likely have reached a conclusion more quickly. This sum is therefore for the resident’s time and trouble in pursuing this matter including to this Service before a final response was issued.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s request that it fence off the land outside the property for their sole use.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its complaint handling.

Reasons

  1. While it would have been good customer service for the landlord to have put in writing the extent of the garden when the resident took over the tenancy, the landlord’s responses to her requests for fencing have been reasonable.
  2. The landlord did not clearly label its stage one response as a complaint response nor include details of how the resident could escalate the complaint.

Orders

  1. The landlord should take the following action within four weeks of the date of this report and provide compliance of these orders to the Ombudsman:
    1. Apologise to the resident in writing for the complaint handling failures identified in this report.
    2. Pay the resident the sum of £100 for the impact of its complaint handling failings.

Recommendations

  1. It is recommended that the landlord considers what steps it might reasonably take to limit any impact on the resident as a result of any ASB on the adjoining land to the side and rear of the property.