Mid Devon District Council (202234298)

REPORT

COMPLAINT 202234298

Mid Devon District Council

31 July 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 landlord’s handling of the resident’s concerns about:
1. The position of a fence at the bottom of her garden.
2. The height of a fence on the left-hand boundary of her property.
The Ombudsman has also considered the landlord’s complaint handling.

Background

The resident occupies a two-bedroom bungalow under a secure tenancy, which began on 12 November 2018 following a mutual exchange.
The landlord’s records indicate that the resident has mobility issues which require her to have a level, single storey property. The landlord also noted that the resident had heart surgery in 2021.
The resident requested permission to install fencing around her property in February 2021. Her original request was for 6-foot-high fences at the bottom of her garden and along the both the left and right-hand boundaries of the property. The resident’s property borders a footpath, which is also a public right of way.
Throughout 2021 there were discussions, meetings, and site visits to discuss the fencing. This included other alterations to the property which are outside of the scope of this investigation. This concluded with the landlord giving permission for fencing to be installed, which the resident completed later in 2021. The complaint centres around the height and position of the fences, where the accounts of what permissions were granted for differ between the landlord and the resident.
On 9 November 2022, the landlord wrote to the resident and said that the fence she had installed at the bottom of the garden had encroached onto a public right of way “quite significantly” and would need to be moved back. Later in December 2022, the landlord also noted that the fence on the left-hand boundary was 6 feet high and said that it had only given permission for 4-foot fences on this side of the property boundary. This was due to safety concerns for those using the footpath.
The resident raised a complaint on 14 March 2023 in which she said:
1. She was unsure why the landlord had delayed almost 18 months in notifying her of the issues with her fences and felt this was unreasonable.
2. She had installed the fence at the bottom of the garden in the same holes as the fence she removed, which was installed by the landlord. She also noted that the new fence matched the line of other neighbour’s fences.
3. She had an email from the landlord giving permission for 6-foot fences on all boundaries of her property, including the left-hand boundary, which it was now contesting.
4. She was happy to move the fence at the bottom of the garden but felt that this should be at the landlord’s expense due to the delays and conflicting communication she had received.
The landlord issued a ‘minded to’ response on 28 March 2023 and sent its final complaint response on 3 April 2023 in which it said:
1. It apologised for the delays in noticing the issues with the resident’s fences. It attributed this to the pandemic and staff shortages following this period.
2. It had previously sent a letter setting out the dimensions of the fences. It noted that a follow up letter had omitted the dimension of the left-hand boundary fence, however its position remained unchanged. The landlord affirmed that the fences would need to be resized and moved back from the public right of way.
3. It acknowledged that some confusion had been caused by its staff using different metrics (metres and feet) in their communications.
The resident escalated her complaint, following receipt of the landlord’s ‘minded to’ response, on 29 March 2023. The resident said:
1. There had been significant delays in the landlord acting on the fences and she requested a second opinion on its position.
2. The landlord had given permission verbally for 2 metre fences to be installed around the property and had now rescinded this.
3. The landlord’s original letter had stipulated that 4-foot fences must be installed, however the resident attested that its later letter superseded this and permitted 6 foot fences on all sides.
The landlord issued its stage 2 complaint response on 26 May 2023 in which it partially upheld the resident’s complaint and said:
1. There had been a delay in identifying the issues with the resident’s fences, for which it apologised. It attributed these delays to the pandemic and staff shortages.
2. It did not have the legal ability to permit an encroachment onto the public right of way and therefore it would not have done this. The landlord confirmed that its position remained the same and the fence would need to be moved back to abate the encroachment.
3. Its second letter did not include the height requirement for the left-hand boundary. It apologised for this but confirmed that this did not alter its previous position that the fence needed to be no more than 4 foot high.
4. It had found one instance where different metrics were used in communication, however this was related to the bottom fence, where the height was not being contested. It apologised for any confusion that this caused the resident.
The resident remained dissatisfied and escalated her complaint to the Ombudsman on 31 May 2023. She said she was seeking permission for the fence on the left-hand boundary to remain at its present height and for any works required to the bottom fence to be undertaken at the landlord’s expense.

Assessment and findings

Scope of investigation

Part of the resident’s complaint relates to the position of a fence along the bottom boundary of her garden and whether this fence encroached onto a public right of way.
Paragraph 42 (f) of the Housing Ombudsman Scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, concern matters where it is quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure.
It is beyond the remit or ability of this Service to determine where the legal boundary of a property lies. These matters may only be determined by the Land Registry or the Land Registry Division of the First-tier Tribunal (Property Chamber).
This investigation has considered the landlord’s handling of the resident’s request for fencing and its response to her concerns but will not comment on the legal position of the boundary.

Position of the fence at the bottom of the garden

The resident requested permission to erect fencing around her garden on 15 February 2021. This request included a sketch map showing 6-foot fencing on three sides of the garden. The resident’s garden borders a footpath, which is also a public right of way, on the left-hand and bottom boundaries.
The resident’s tenancy agreement states that requests for improvements must be agreed by the landlord in writing. The tenancy agreement and tenant handbook also note that once any improvements are made, they become the resident’s responsibility to maintain and repair.
Landowners, in this case the landlord, have a legal responsibility to ensure that they keep any public rights of way clear and unobstructed at all times. Obstructing a public right of way is a criminal offence and may lead to enforcement action being taken, including the recovery of any costs incurred to remove obstructions on the highway.
The resident was given permission by the landlord on 23 March 2021 to install a 6-foot fence on the bottom boundary. In a later letter on 6 July 2021 the landlord said that “if there is a shared footpath, the fencing must not restrict or obstruct it”. The Ombudsman notes that neither of the permission letters discuss the location or line of the proposed fence. In particular, no schematic or plan was included to indicate the precise locations it was giving permission for a fence to be installed within.
The resident installed her fence later in 2021 and was subsequently informed on 9 November 2022 that it encroached onto the right of way. A further letter was sent on 13 March 2023 following a site inspection which noted that the fence needed to be moved back by 42cm / 16.5 inches to remove the encroachment. The landlord gave the resident 9 weeks to complete this work.
Within the complaint process, the resident noted that:
1. There had been a delay of around 18 months between the fence being erected and the landlord identifying any issue. The landlord attributed this to the pandemic, staff shortages and “much discussion and investigation on the matter”.
2. The new fence had been installed in the same footings that the previous fence had been. The previous fence was in place since before the resident occupied the property.
3. The new fence was in line with other neighbour’s fences that bordered the right of way.
4. She was content to move the fence back but felt that the cost of this should be borne by the landlord due to the delays, lack of clarity and her low income.
Based on the evidence provided it does not appear to be disputed by either party that the fence needed to be moved if it was encroaching on a public right of way. The dispute instead centres around liability for the work and costs associated with this.
The Ombudsman would have expected the landlord, acting reasonably, to have taken the following steps:
1. To have provided the resident with clear permissions to erect the fence, including a plan or diagram showing where this should be and any limitation on this. If the landlord had provided this, it may have avoided a possible encroachment occurring.
2. To have taken legal advice once it identified a possible encroachment. This should have clarified if any encroachment had occurred and explored any liabilities or defences to this. There is no evidence that the landlord took legal advice at any time during its assessment of the new fence position or during the subsequent complaint.
3. To set out its position clearly to the resident, including a summary of the legal advice relied upon. Beyond the provision of a letter stating that an encroachment had occurred, there is no evidence that the landlord did this. In particular, it did not justify or substantiate its claims of encroachment.
4. To have responded in full to the resident’s concerns that her fence was sited in the same footings as the previous fence and was aligned to other neighbouring fences. This may have included taking further legal advice around possible adverse possession of the land. The landlord should also have considered whether its requests for the resident to move the fence at her cost were reasonable if it had previously permitted (or not identified) any encroachment by the former occupier.
Taking these factors together, there has been maladministration in the landlord’s handling of the resident’s concerns about the position of the fence at the bottom of her garden. The landlord must now take appropriate advice to substantiate its position and set out a summary of its findings including any liabilities that arise, and provide this to the resident.
Following the complaint process, the landlord wrote to the resident on 31 May 2023 to advise that a site visit had taken place. This letter confirmed that the landlord’s manager for public health, regulation and housing had confirmed the previous findings and required the fence to be moved back. The letter stipulated that the width of the path was to be no less than 36 inches wide at all points. It gave a deadline of 26 June 2023 for completion of the works. It is unclear from the evidence provided if any works have been undertaken by either party at the time of this investigation.

Height of the fence on the left-hand boundary of the property

Following the resident’s requests to erect fencing around her property, a meeting was held on 19 March 2021 via video conferencing. The notes from this meeting indicate that:
1. The landlord had approved a 4-foot fence to be installed along the left-hand boundary of the property. It had also approved a 6-foot fence to be installed “for the boundary between her and her immediate neighbour and along the back of her garden.”
2. The resident did not feel that a 4-foot fence would be sufficient for her own security purposes and the notes indicate that she intended to challenge this decision.
3. The resident had noted that other properties in the vicinity, which also bordered the footpath, had much higher fences.
Following the meeting, a permission letter was sent to the resident on 23 March 2021 which granted permission for fencing to be erected provided that “fencing [did] not exceed 4ft in height to the left-hand boundary where the communal path runs next to it.” The letter also confirmed that 6-foot fencing was permitted at the bottom of the garden and on the right-hand boundary.
A further letter was sent to the resident on 6 July 2021 which said: “fencing to the rear of your home must not exceed 2 metres”. This letter did not make any reference to the fencing on either boundary.
Following installation of the fencing later in 2021, the landlord sent the resident a letter on 13 March 2023 which identified that the fence height did not comply with the permissions the landlord had previously given. The landlord gave the resident 6 months to remedy the height of the fences to within 4 feet as previously permitted.
The resident subsequently raised her formal complaint and escalation to the landlord in which she said:
1. There was an unreasonable delay since the time she installed the fencing to being notified of the issues by the landlord.
2. The landlord’s letter of 6 July 2021 had superseded its previous letter of 23 March 2021 and granted permission for 6-foot fencing around the property.
3. The landlord had given verbal permission for a 6-foot fence around the property and had now rescinded this.
The evidence shows that the landlord’s second letter did not rescind or supersede its earlier letter as it made no mention of fencing on the left-hand boundary. While this was an oversight, there is nothing within the letter to indicate that the landlord intended to alter its previous position. On this basis, the resident could not reasonably infer that its omission had rescinded the earlier letter or permissions.
There is insufficient evidence to indicate what, if any, verbal agreements were made between the landlord’s staff and the resident. The resident’s tenancy agreement and tenant’s handbook both require permission for improvement works to be granted in writing. On this basis, the resident would not be able to rely on any verbal agreement that may have taken place.
Throughout the permissions and complaints process the landlord justified the reduced 4-foot fence on the grounds of health and safety. It said that users of the communal path needed adequate light for their own safety and comfort in using the path. A higher fence, such as the 6-foot fence requested by the resident, may interfere with this. This was a reasonable concern, and the landlord was entitled to rely on this view from the building manager.
Following the complaints process the landlord wrote to the resident on 31 May 2023. It said that it had decided to accept the fencing on the left-hand boundary, meaning that the fence height could remain as it was. The landlord said that the fence posts needed to be cut down to the height of the fence and that no further trellis or extensions could be placed on the fence. Given the longstanding dispute, this was reasonable given that the landlord was entitled to rely on its earlier position and enforce this if necessary.
Taking these factors together the Ombudsman can find no maladministration in the landlord’s handling of the resident’s concerns about the height of the fences on the left-hand boundary.

Complaint handling

The landlord operates a two-stage complaint process in which it commits to issuing complaint responses within 10 working days at both stages.
The Ombudsman’s Complaint Handling Code (the Code) sets out a number of key principles that landlords are required to adhere to in the management of complaints. This includes the following:
1. Landlords must operate a two-stage process without any additional or informal stages as this causes confusion and delay.
2. Landlords must clarify and define the complaint, ensuring that they respond to all elements that they are responsible for, referencing relevant policy, law, or good practice where applicable.
3. Landlords must respond to complaints within the timescales in their own complaints policy and the Code. This is to avoid extending the complaint process or delaying access to the Ombudsman.
4. Landlords must not extend the timescales for responding to complaint by more than 10 working days. In cases of extensions this must be clearly explained to the resident and the Ombudsman’s details must be provided.
The evidence shows that both of the landlord’s complaint responses were issued over the timescales shown in its policy. Its stage 1 response was issued after 14 working days and its stage 2 response after 39 working days.
The landlord did not acknowledge, apologise for, or provide any remedy for these delays in its complaint responses. This was a failing and a missed opportunity to repair the landlord and tenant relationship. It also delayed the resident from referring her case to the Ombudsman.
It is noted that the landlord extended the response deadline at stage 2 on at least 4 occasions. It attributed this to staff illness on each occasion. While the Ombudsman is sympathetic to staff illness, particularly in the post-pandemic landscape, it was not reasonable to delay the complaint process on this basis for such an extended period. Furthermore, some of the extensions did not include a reason for the delay and none of the emails included the details of the Ombudsman. The Ombudsman would expect the organisation to have sufficient resilience within its team and resources to manage a complaint to completion in cases of staff illness without the unreasonable delays seen in this case.
The evidence also shows that the landlord issued ‘minded to’ complaint responses, prior to sending its final response. The Code does not permit additional informal stages, as they can cause confusion. In this case, the resident escalated her complaint to stage 2 following receipt of the provision ‘minded to’ stage 1 response, prior to the final version being sent a few days later. The landlord must review this process to avoid additional steps within its complaint process.
Within the resident’s complaint she raised specific issues that were not addressed in either of the landlord’s complaint responses. Notably, the resident said that she had installed her new fence in the same position as the fence that was in the property when she moved in. If this was the case, the resident may have been acting reasonably when she installed her new fence in this location. The resident or landlord may also have grounds for an adverse possession claim as a defence to the encroachment on the public right of way.
There is no evidence that the landlord considered or responded to this element of the resident’s complaint. This was a complaint handling failure which may also have had significant legal implications on the alleged encroachment.
Taking together the delays in issuing complaint responses, the addition of informal ‘minded to’ stages and the failure to address all of the resident’s complaint points, there has been maladministration in the landlord’s complaint handling in this case.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme there has been:
1. Maladministration in the landlord’s handling of the resident’s concerns about the position of a fence at the bottom of their garden.
2. No maladministration in the landlord’s handling of the resident’s concerns about the height of a fence on the left-hand boundary of their property.
3. Maladministration in the landlord’s complaint handling.

Orders and recommendations

Orders

Within 28 days of the date of this determination the landlord is ordered to:
1. Write to the resident to apologise for the failings identified in this report.
2. Take legal advice regarding the alleged encroachment of the fence onto the public right of way. In particular, this advice must include:
  1. Confirmation as to whether an encroachment has occurred.
  2. Whether any legal defence exists to any potential encroachment, such as adverse possession.
  3. What action, if any, is required to abate the encroachment.
  4. The liability for any action required, including costs. This must include an assessment of the location of the previous fence and the reasonableness of the resident bearing the costs if the new fence is sited in the same footings.

The landlord must summarise this advice and its final position and present this to the Ombudsman and the resident within 5 working days of receipt.

Pay the resident £650 compensation, comprised of:
1. £400 for the distress, inconvenience, time, and trouble in pursuing the fence location and alleged encroachment to completion.
2. £250 for the complaint handling failures and delays identified in this report.

Within 6 weeks of the date of this report, the landlord is ordered to undertake a review of its complaint handling in this case. This review must:
1. Identify the reasons for the delay in issuing complaint responses and how this will be mitigated in future complaints.
2. Identify the reasons that not all complaint points raised by the resident were addressed in its complaint responses.
3. Identify the reasons that ‘minded to’ complaint responses were used in this case and whether this practice continues to date. If this practice continues, the landlord must justify why this is the case.
4. Identify any learning required from this case and include an action plan that shows how any identified changes will be implemented within a period not exceeding 6 weeks from the date of the review.

Recommendations

The landlord should:
1. Review its processes and templates for providing permission for improvements to ensure that it includes specific dimensions and locations for any works. The landlord should also consider when plans, diagrams or schematics should be used in conjunction with permission letters to assist with clarity.
2. Review its processes for completing post-inspection surveys in a timely and effective manner, to identify and remedy any issues at the earliest possible opportunity. This will also allow it to ensure that any conditions within the permissions it granted have been complied with.