Leeds City Council (202202625)

REPORT

COMPLAINT 202202625

Leeds City Council

20 February 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 the resident’s concerns regarding the removal of fencing installed in an open space next to the property.

Background

2. The resident is a secure tenant at the property of the landlord. The landlord is a local authority. To the side of the property is an area intended to be an open space.
3. The complaint has been referred to this service by the resident’s partner, who is a joint tenant at the property.
4. On 20 May 2021, the resident requested permission from the landlord to put up a new fence. She advised that she would like to “make a new one around the whole house, with an extension on the side.”
5. The landlord responded on 21 May 2021. It advised it would approve the fence, provided the resident complied with certain standard provisions. The landlord later sent a standard permission letter on 25 May 2021. The permission letter stated that in addition to the other provisions, the resident must not fence off any intended open spaces.
6. The resident began work on the fence in early 2022. On 22 March 2022, the landlord wrote to the resident stating that she had enclosed an area that was intended to be an open space. It asked her to remove the fencing in this area, as she did not have permission to erect it there.
7. On 4 April 2022, the resident wrote to the landlord to appeal its decision. She advised that she had been clear with her intentions for where she had wished to build the fence. She explained that she truly believed that she had been granted permission for the fence she had described, and had incurred expenses in excess of £2,000 for the fencing.
8. The landlord subsequently reiterated that the resident did not have permission to build on the open space and asked her to remove the fencing from this area.
9. On 10 May 2022, the resident submitted a formal complaint. She stated that she had explained her plans for the fence and that she considered she had been granted permission, which had since been revoked. As an outcome, the resident wanted to be allowed to continue with the fence.
10. The landlord provided its stage one response on 27 May 2022. It noted that the permission granted on 25 May 2021 came with the stipulation that the installation of the fencing would not fence off intended open spaces. The resident’s fencing encroached on an open space, therefore the landlord considered its request for her to remove the fencing was reasonable. It reiterated its request for the resident to remove the fencing.
11. The resident escalated her complaint on 28 June 2022. She reiterated her position that permission had been granted. She also explained that the landlord had not debated or contradicted her plans, or asked her to modify them in any way.
12. The landlord provided its stage two response on 4 July 2022. It explained that the permission given was limited by stipulations set out in its permission letter. It also advised that the resident was responsible for checking where her property boundaries lay and adhering to them.
13. In referring the complaint to this service, the resident has explained that she was clear with her intentions for the fencing, and that the landlord failed to expressly explain that she could not build the fence where she had planned prior to the works commencing.
14. Since the completion of its complaints procedure, the landlord has assessed its actions and concluded that it should have examined the resident’s permission request more closely. It explained that while it cannot allow the fence to remain in the open space, it will remove the fence for the resident, and reimburse her for the cost of the extra fencing that she incurred prior to March 2022.

Assessment

15. The landlord’s fencing and gates policy states that the landlord will not install fences and gates to divide up communal spaces and will not grant residents permission to do so themselves. It also states that where written permission is granted by the landlord to replace or install fencing, residents are responsible for complying with local planning guidance and any conditions stipulated by the landlord. Residents are also responsible for ensuring that fence line positions are maintained.
16. In May 2021, the resident requested permission to extend her fence. She wanted to do so to create a safe space for her family, and has stated that the open space to the side of her property was being frequented by individuals who were behaving anti-socially. It is clear from the evidence provided that she considered she had made her intentions clear when making her request, and believed that she had been given permission for the full extent on the fence. Additionally, the resident has explained that many of her neighbours had extended their property boundaries into similar open spaces. While the Ombudsman cannot comment on the landlord’s actions in relation to other residents, it is clear that this would have added to the resident’s impression that building a fence in an open space was possible.
17. When receiving a request for permission, the Ombudsman considers it best practice for a landlord to individually assess the request and grant permission based on its assessment. In this case, however, it is not evident that the landlord carried out such an assessment. Instead, it granted general permission for fencing, and provided general conditions based on its policies, without considering whether they applied to the present case.
18. It is not disputed that the landlord’s policies provide that fencing cannot be built on open spaces, and that the landlord will not provide permission for this. Given, however, that the resident’s request was substantively for this purpose, it would have been helpful for the landlord to have specifically highlighted that the resident’s intentions were contrary to its policy. It would have also been helpful had it specifically highlighted that it considered the area which the resident proposed to erect the fence on to be a shared area.
19. While the landlord’s permission letter noted the requirements for building the fence, given these requirements prohibited the substantive element of the resident’s request, good customer service would have required this be specifically highlighted in the permission letter. The permission letter did not provide any commentary on the resident’s intentions, however, resulting in the permission being counterintuitive. While the landlord is correct that the resident should have taken note of this provision, it is not surprising that this elicited confusion.
20. Given the above, it was appropriate that in in December 2022 the landlord reviewed its response. It acknowledged that it should have asked the resident for more information as to her plans, and that it should have made it clear that such an extension would not be possible, as this was prohibited by its polices.
21. Having accepted its service failure, the landlord appropriately sought to put things right by offering to reimburse the resident for her expenditure incurred prior to it informing her the fence was prohibited. It also appropriately used its discretion to offer to remove the fence at its own expense. In the Ombudsman’s opinion, this offer was reasonable in the circumstances and amounts to reasonable redress for the impact caused to the resident.

Determination (decision)

22. In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Recommendations

23. The landlord should:
    1. Reiterate its commitment to remove the fencing at its own expense, and reimburse the resident for the added expenditure incurred prior to March 2022 for this part of the fencing, if this is yet to be accepted.
    2. Contact the resident regarding her concerns about anti-social activity on the open space at the side of her property.