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Leeds City Council (202005224)

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REPORT

COMPLAINT 202005224

Leeds City Council

28 January 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 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 concerns the landlord’s response to the resident’s:
    1. Reports of antisocial behavior (ASB).
    2. Request to increase the height of the garden fence.

Background and summary of events

  1. The resident is a secure tenant of the landlord, which is a local authority. The landlord’s records show that the resident reported incidents on 31 December 2019, 29 May 2020 and 29 June 2020. The landlord described these reports as noise nuisance and threatening behaviour from the neighbour.
  2. The landlord opened an ASB case into the matter on 31 December 2019 and investigated the reports made by the resident.
  3. On 29 May 2020 the resident called the landlord and requested to raise a formal complaint into how the landlord had handled the ASB case. The landlord’s notes of the call state that the resident felt that the stress that this situation had caused him had been dismissed.
  4. The notes also say that the resident had spoken with his housing officer regarding raising the height of the fence between his property and the communal drying area. The resident felt that, due to the circumstances of the ASB, it should be the landlord’s responsibility to increase the height of the fence and that he should not be required to seek planning permission or pay for the work himself.
  5. The landlord called the resident on 9 June 2020 to discuss the complaint and then sent a stage one complaint response on the same day. The landlord first advised the resident to continue to report any further incidents of ASB, to allow them to be fully investigated.
  6. The landlord then addressed the issue of increasing the height of the garden fence. It informed the resident that its policy stated that it would not increase the height of a boundary fence, but as a secure tenant the resident had the right to request permission to replace the fence as an improvement to the property.
  7. The landlord concluded the response by providing the information required for the resident to seek permission to replace the fence and under what circumstances planning permission may also be needed.
  8. On 15 June 2020 the resident wrote to the landlord and requested an escalation of the complaint to stage two. He described the adverse effect on his health that the ASB had caused and that he felt that the decision by the landlord not to install an extra high fence was “disrespectful and immoral”.
  9. The landlord called the resident on 1 July 2020 to discuss the outstanding issues of the complaint. On 17 July it wrote to advise him that the stage two response would be delayed and it aimed to provide it by 30 July.
  10. The stage two complaint response was sent to the resident on 26 July 2020. The landlord informed him that:
    1. It had taken the reports of ASB from him and the other residents seriously and was working with other agencies in order to reach a resolution. However, due to customer confidentiality, it was unable to provide specific detail of that.
    2. The neighbour had the right to access the communal drying area and this was not a tenancy breach, but any alleged ASB committed by the neighbour while in the area should be reported to allow the landlord to investigate.
    3. It appreciated the reasons why the resident wanted to increase the height of the garden fence. However, the existing fence was deemed satisfactory and in line with the estate design. It noted that he still retained the opportunity to seek planning permission to increase the height of the fence at his own cost. The landlord also informed the resident that it would raise the issue of fencing during a planned meeting regarding the ASB and that it would consider any recommendations made.
  11. The landlord concluded the response by informing the resident that he had exhausted its internal complaints process and advised him on the steps to bring his case to this Service should he remain dissatisfied.
  12. The landlord held a meeting on 7 August 2020 to discuss the ASB case. The notes of the meeting state that the ASB case officer would investigate whether increasing the fence height would decrease the alleged incidents of ASB. No recommendation to increase the fence height was made and the ASB case was closed on 6 November 2020.

Assessment and findings

ASB Case

  1. The role of the Ombudsman is not to establish whether the ASB reported was occurring or not; the Ombudsman’s role is to establish whether the landlord’s response to the resident’s reports was in line with its legal and policy obligations, and whether its response was fair in all the circumstances of the case.
  2. The landlord has provided this Service with its ASB policy and the records from the ASB case it opened after receiving reports from the resident. The landlord’s website states that it aims to respond to “serious complaints” in one working day and all other complaints in five working days. The website also notes that due to the current COVID-19 pandemic that it may take longer than normal to respond to complaints. The ASB case notes record the telephone calls and text message sent by the resident reporting the alleged ASB. The landlord’s response to the reports was appropriate because they were responded to within the described timescales.
  3. The landlord also took appropriate action in response to the reports of threatening behaviour by the neighbour by working with outside agencies including the police and healthcare professionals. An investigation was also undertaken by the police, who informed the landlord that it would not be taking any further action and they considered the matter resolved.
  4. In relation to noise nuisance, the landlord advised the affected residents to keep noise diaries. On receipt of these diaries, the landlord visited the neighbour to discuss his behaviour. As a result of this meeting residents reported an improvement in noise nuisance, particularly the playing of loud music.
  5. The landlord took appropriate action in response to the resident’s reports of ASB which was in line with its policy. There is no evidence of any service failure.

Garden Fence

  1. The landlord has provided this Service with its fencing and gates policy. Section 1 of the gates policy concerns repair responsibilities and states as follows:

Fencing and gates to individual homes do not fall under the [landlord’s] repair responsibilities as a landlord (Section 11 of the Landlord and Tenant Act) meaning the [landlord] does not have a legal responsibility to provide, repair and maintain or replace fencing and gates.

Legally it is a tenant’s responsibility to provide, repair and maintain and replace fencing and gates to their homes, however, the council will consider individual circumstances when dealing with fencing requests.

  1. Section 6 of the policy describes the circumstances where the landlord would undertake discretionary work to repair or replace fencing, and in relation to ASB states as follows:

[If] the work will help enhance security, protect against or reduce the impact of anti-social behaviour or harassment. Upgrading or replacing fencing and gates will only be considered as a measure where all reasonable attempts to address the behaviour have been exhausted.

  1. In its stage two response, the landlord noted that the neighbour’s presence in the communal drying area was not a tenancy breach but did advise the resident to report any incidents of ASB that occurred in the communal area. The ASB case notes do not show that any incidents were reported.
  2. The landlord refusal to install a higher fence was appropriate as it was in line with its fencing policy. Although the landlord does have the discretion to replace fencing, the resident’s request did not meet the threshold set out in section 6 of the policy as there was no evidence that an increase in the height of the fence would prevent or reduce incidents of ASB and attempts to resolve the ASB were still ongoing. The landlord’s decisions regarding the fence were appropriate as they were in line with its policy. There is no evidence of any service failure.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s:
    1. Reports of ASB.
    2. Request to increase the height of the garden fence.

Reasons

  1. The landlord correctly followed both its ASB policy and its fencing and gates policy.
  2. As increasing the height of the fence did not meet the threshold for the landlord to consider a discretionary replacement as described in the policy, it therefore remained the responsibility of the resident to seek permission and then undertake the work himself if he so wished.