London Borough of Hillingdon (202334242)

REPORT

COMPLAINT 202334242

London Borough of Hillingdon

8 August 2024

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 the way the landlord responded to the resident’s reports that it had sold land belonging to her property.

Background and summary of events

The resident is a secure tenant of the landlord in a 2 bedroom, ground floor flat, which she has occupied since March 1995. The resident is recorded as having mobility and mental health issues. In 2012, with the landlord’s permission, the resident had works carried out privately. These were to convert her front garden into a driveway, with a dropped kerb.
On 12 May 2014, the neighbour in the upper floor flat purchased their property through the right to buy scheme. As part of the purchase, the landlord sold them the land to the front of the building that belonged to the resident’s property, and which she had converted into a driveway.
On 26 August 2020, the landlord wrote to the resident to inform her it had received complaints that she was parking in the front garden. It said she was not “allowed” to do this as the area belonged to the flat above. The resident contacted the landlord on 27 August 2020 to question this and told it that she would not accept that the front garden belonged to her neighbour until she saw the property deeds. She added that, had it belonged to them, the landlord would not have granted her permission to install a driveway.
The landlord wrote to the resident on 6 October 2020 regarding the front garden that had been sold to her neighbour. It said it had passed the matter onto its property and estate team to see if there was anything that could be done to “rectify the error”. On 15 and 19 October, and 4 November 2020, the resident chased the landlord for an update. The landlord called her on 5 November 2020 to let her know that it had passed the matter onto its legal team. The resident told it that she could not understand how the driveway was sold without her knowledge. She added that she did not wish to move and wanted to know when her neighbour bought the property as she was “shocked” when she received the letter telling her she could not park on her driveway.
The resident wrote to the landlord on 19 January 2021 and stated that:
1. It had sent her a letter in August 2020 telling her she was parking on her neighbour’s front garden. However, at the time, nobody had contacted her or visited to her home with any information about this.
2. She understood it had been bought by her neighbour “approximately 3 years ago” and she had parked on the driveway without any knowledge of this.
3. She had been dealing with the landlord’s tenancy management team who had offered no help or explanation about this matter and was ignoring her calls.
4. She wanted her garden back as it provided access to her front door. She added that as her neighbour could look through her windows, it was also a privacy issue.
It is not clear from the records whether the landlord responded to this. However, on 9 November 2023, the resident raised a stage 1 complaint. The landlord has not provided us with a copy of the correspondence. However, the records confirm that it was about the difficulties the resident had been experiencing following the sale of the front garden to her neighbour. The landlord issued its stage 1 response on 20 November 2023. It stated that:
1. It acknowledged the front garden was “incorrectly sold” to her neighbour.
2. It had recognised the error and had received confirmation from its legal team that the sale of the land could not be reversed. It offered her £5,000 in recognition of this.
3. It acknowledged that she had asked it to consider moving her to alternative accommodation with a garden. Given the exceptional circumstances, it would agree to her request and would “make every effort” to find a suitable alternative property for her.
4. As a move was dependent on suitable alternative properties becoming available, in the resident’s area of choice, it would not be able to provide a specific timeframe.
The resident wrote to the landlord on 4 December 2023 to say that its response was “unacceptable” and she wanted to escalate her complaint. She stated that:
1. The landlord had admitted its mistake and somebody had not checked all the details before the sale went through.
2. She had lived in the property for nearly 29 years and had spent a lot of money on it over the years, including a driveway and dropped kerb.
3. She did not want to move “out of choice” but this was a safety issue. She did not know who would be parked in front of her home. She added that the front garden was her access to her flat, and she could not be expected to “live in fear” of who was “hanging about” outside.
4. She wanted the landlord to either buy the front garden back or, as she was disabled, move her as soon as possible to a “like for like” property with a driveway.
On 8 December 2023, the landlord issued its stage 2 response, which stated that:
1. It had provided her with a detailed response to her complaint and offered her the sum of £5,000 by way of compensation.
2. It acknowledged its error and apologised “unreservedly” for what had happened.
3. It could see that she felt the sale of the garden had taken away her rights as she could not exchange with anybody, or even buy her home as it no longer had a front garden.
4. It could not reverse what had happened. However, in recognition of its error, her circumstances and the expense she had incurred in purchasing a dropped kerb and driveway, the landlord would offer her a “like for like” 2 bedroom ground floor flat with a driveway and a dropped kerb.
5. It would also compensate her for the costs of the driveway she had installed and her “reasonable removal costs”.
6. If it could not find a property with a driveway, it would pay for the costs of installing one.
The resident approached the Ombudsman for assistance on 15 January 2024. She stated she would not accept the landlord’s offer to resolve her complaint because the compensation would not cover the costs of her “starting again in a new property”. Furthermore, she stated that the landlord had never given her an explanation of why it could not compulsorily purchase the front garden back.

Assessment and findings

Policies and procedures

The landlord’s compensation policy states that a remedy should, as far as possible, “put the resident back into the position that they would have been in if the maladministration had not occurred”. There will be circumstances where this cannot be achieved because of the passage of time or events that have occurred. In such cases, a financial remedy may be appropriate. While the policy does not specify compensation amounts, it says that it is good practice to seek the view of the resident about the remedy they are seeking. It will offer discretionary compensation in recognition of a number of factors, including quantifiable loss, distress, and time and trouble.

Scope of investigation

In order to resolve her complaint, the resident has asked that the landlord uses its powers to order a compulsory purchase of the land that it had sold to her neighbour in error. The authority to purchase land compulsorily is granted to councils in their capacity as a local authority and does not form part of their function as a social landlord. There are limited reasons why a council can use such powers and it is up to officers with the relevant delegated authority to determine if certain legal thresholds have been met. For this reason, it would be more appropriate for the resident to seek independent legal advice on how she can appeal an erroneous sale of land belonging to her tenancy. She may wish to approach the Citizen’s Advice Bureau (CAB) for example, who could offer appropriate advice and support. As such the Ombudsman is unable to investigate the landlord’s response to this request. Furthermore, we do not have the jurisdiction to order it to instigate a compulsory purchase.
The resident has raised concerns that her mental health has been detrimentally affected by the actions of the landlord. The Ombudsman does not doubt the resident’s comments regarding her health. However the Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Matters of personal injury or damage to health, their investigation and compensation, are not part of the complaints process, and are more appropriately addressed by way of the courts or the landlord’s liability insurer (if it has one) as a personal injury claim. We have, however, considered any distress and inconvenience caused to the resident as a result of any failings by the landlord.

The resident’s reports that the landlord had sold land belonging to her property

The Ombudsman wishes to acknowledge the distress and inconvenience the resident experienced as a result of the erroneous sale of land belonging to her property without her knowledge. We recognise how upsetting it must have been to discover that this had happened and the impact this has had on her as a result. This would have been particularly difficult while living with a disability and mental health issues. While we cannot assess the sale itself and the legalities around it, we can consider whether the landlord has taken reasonable and appropriate steps to put things right.
It is not disputed that the landlord had made an error in selling land that belonged to the resident’s property. It acknowledged its mistake in its stage 1 response and offered £5,000 compensation in recognition of the fact it would not be able to repurchase the land. It is also noted that, according to the records, the landlord did make attempts to speak to the neighbour and ask if they would sell the land back to it.
However, the evidence shows that, following receipt of the landlord’s letter of 26 August 2020 about parking on her neighbour’s property and her subsequent enquiries, the landlord’s communication was lacking. Following several requests from her for updates, the landlord advised her it had passed the matter to its property and estate team and then to its legal team. There is no indication either team had contacted her to provide any information. It is acknowledged that, in such situations, where appropriate advice should be sought, the landlord may take longer than usual to respond to an enquiry.
However, the landlord should have reasonably recognised the confusion and distress the resident would have likely felt after being told she could not park on land she believed still belonged to her property. It should have properly recognised at the outset that she had not been informed that the front garden had been sold as part of another property. That the landlord failed to be sufficiently proactive in coming back to her to clarify the situation demonstrates a lack of customer focus and empathy. Instead she was left in a state of confusion about what had happened for longer than was necessary.
It is not until 2 August 2023, 2 years after she had raised her initial enquiries, that records indicate the landlord had visited the resident to give her a proper explanation of what had happened. This was following repeated contacts she had made without receiving a substantive response. That the landlord had failed to respond to her enquiries in a timely enough manner, resulting in avoidable additional distress, was a failing.
There is evidence that, when the resident raised queries about the ownership of the front garden area, the landlord had communicated with its legal team. It was appropriate that it had sought advice on the legalities and implications of the error that had been brought to its attention and on what options were available to it to try to put things right. It is acknowledged therefore that the landlord took steps to seek appropriate legal advice, which was reasonable in the circumstances.
One of the pivotal issues is that the front garden area had been granted as part of the resident’s tenancy agreement, which she had signed up to in good faith. This area of land belonging to her flat was therefore part of the contractual agreement between the landlord and resident. Once the landlord had sold it to her neighbour she no longer had access to it. This meant that, apart from the obvious inconvenience caused to her, the property she had contractually agreed to occupy was effectively made smaller. It is noted that the landlord had discussed with its legal team the possibility of reducing the level of rent payable by the resident to reflect the loss of use. This was reasonable.
However, it is unclear why the landlord had not explored this further, particularly as the resident had indicated that she did not wish to move. To offer a rent reduction on the basis the resident’s use of her property was effectively diminished would have presented the landlord with an option to resolve the matter for the resident. This would have been a reasonable way forward and would have gone some way to restoring the resident’s position. That the landlord could not demonstrate that it had explored this option further was a failing.
Although the Ombudsman understands the resident would like the landlord to find her a “like for like” property with a driveway “as soon as possible”, it was reasonable in the circumstances that the landlord tried to manage her expectations. This was because there was a scarcity of available properties in the resident’s area, which would have resulted in unavoidable delays finding properties suitable for her specific needs. Any delays in finding an alternative property would therefore have reasonably been beyond the landlord’s control.
The Ombudsman’s Dispute Resolution Principles are:
1. Be fair;
2. Put things right;
3. Learn from outcomes.

The Service will apply these principles when considering whether any redress is appropriate and proportionate for any maladministration or service failure identified

It is noted that the landlord gave reasonable consideration to the remedy the resident was seeking, which was to be offered a similar property with a driveway. This was appropriate and in line with its compensation policy. In response to the resident’s escalation request, the landlord agreed, in addition to its offer of £5,000, to:
1. Make a direct offer of like for like accommodation when a suitable property became available;
2. Pay for the resident’s removal costs;
3. Compensate the resident for the cost of the driveway she had installed;
4. Meet the cost of installing a driveway if it could not find a suitable property with a parking space.

Furthermore, the landlord acknowledge the impact its error had had on the resident with regard to her ability to exchange or buy the property, and it made an unreserved apology.

Although its attempts to put things right are noted, the landlord’s offer of redress falls short of fully recognising the impact on the resident; and as above does not go far enough to restore the resident’s position. This is specifically in view of the for the inconvenience caused by the delay in the landlord confirming its position and its poor communication with the resident. This left the resident in the position that she could not use her own driveway that she had paid for, with no forewarning or explanation, or any alternative. The landlord had also failed to take sufficient account of the time and trouble the resident took to chase for a proper explanation of why this happened.
Due to the impact the above mentioned failings would have had on the resident, the Ombudsman has made a finding of maladministration and will order further redress.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the way the landlord responded to the resident’s reports that it had sold land belonging to her property.

Orders

Within 4 weeks of the date of this report the landlord must:
1. Pay the resident the £5,000 compensation it offered in its stage 1 and stage 2 complaint responses;
2. Pay the resident an additional £500 in recognition of the distress and inconvenience caused by the landlord’s poor communication and protracted delay in confirming its position.
3. In line with the offer it made in its stage 2 response, to contact the resident to establish what she had paid to convert her front garden into a driveway, including the application for a dropped kerb, and to reimburse her for those costs.
Within 8 weeks of receiving this determination, the landlord to seek further legal advice or revisit the previous advice given by its legal team in relation to the rent payable by the resident given she no longer has use of her driveway. Any change in the level of rent payable by the resident should also be backdated. The landlord to report back to the Ombudsman with the outcome following its further consideration of the abovementioned advice.

Recommendations

Within 8 weeks of receiving this determination, the landlord should provide the Service with an update on its progress in finding the resident suitable alternative accommodation. The landlord to continue to support the resident in finding her a property if one has not been found already.
While waiting for alternative accommodation to become available, the landlord should consider whether it can provide the resident with any support to reach an agreement with her neighbour so, while it was not in use, she could park in the driveway. It is acknowledged that, in the circumstances, any such action is not guaranteed to arrive at a desired outcome for the resident.
The landlord to review its right to buy process and consider if there are any appropriate safeguards it could put in place to help mitigate any similar errors occurring, and that it makes reasonable land ownership checks before selling its properties.