Newcastle City Council (202124710)

REPORT

COMPLAINT 202124710

Newcastle City Council

30 September 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:
1. Request for a boundary fence to be moved.
2. Concerns about discrimination.
The Service has also considered the landlord’s handling of the resident’s complaint.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to the Service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated. Having carefully considered all the evidence, complaint 1b falls outside of the Ombudsman’s jurisdiction.
The resident has complained that the landlord has discriminated against him. Section 114 (1) of the Equality Act 2010, states the county court has the jurisdiction to decide if there has been ‘discrimination’ or other prohibited conduct. As such, this Service cannot make a binding decision that discrimination has occurred.
Paragraph 42.f of the Scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, other tribunal or procedure. It follows that the resident’s complaint that the landlord discriminated against him is outside of the Ombudsman’s jurisdiction.
While we cannot determine whether the landlord has discriminated against the resident, we will consider whether it treated him fairly and appropriately.

Background

The resident moved into the property on 21 March 2022. He had a joint secure tenancy with his wife and subsequently bought the property through the right to buy scheme (RTB) on 10 June 2024. At the time of the events complained of, the resident remained a tenant. The property is a 3 bedroom house with a garden and driveway.
The landlord made internal enquiries about the location of the boundary between the property and a neighbouring property in April 2022. These followed the property having been empty and then let to the resident. The landlord confirmed that the neighbouring property had been sold through RTB in 1996 and given the time that had elapsed it did not have detailed records relating to the sale. It had a boundary map which showed a discrepancy in the location of the boundary fence. It agreed that it would write to the occupier of the neighbouring property with a copy of the boundary map and request reinstatement of the original boundary.
The resident first contacted the landlord’s complaints team on 12 September 2022. He said that he had repeatedly complained about his neighbour occupying his side of the garden, to the side of his house. He said the landlord had acknowledged the encroachment but the issue had not been resolved. This was passed to the relevant housing manager. Internal discussions took place about the boundary and the landlord sought advice from its solicitor. It further arranged for a surveyor to visit the properties. The landlord wrote to the resident on 17 November 2022. It explained the investigations that it had carried out and set out its decision. It said that the area of land in dispute was approximately 600mm in width. Given this it did not consider that it was economic to “spend public money taking this case through court”. It said that it had established that the fence in dispute had been in place for approximately 14 years and would have become part of the structure of the property. As a result it would not be taking further action and considered the matter closed. It offered to meet with the resident to discuss this further.
The resident raised a formal complaint with the landlord on 25 March 2023 about the boundary of his home. He said that he was unhappy that the landlord had taken no action to reinstate the disputed boundary. He provided pictures of the disputed area and said that his neighbour had taken 1200mm of his land. He then set out 6 specific questions for the landlord. These were:
1. Was the fence, both to the front and rear of the property, the responsibility of the landlord?
2. Who had erected the fence?
3. If the fence was the landlord’s responsibility, why was it placed 2 feet inside his property?
4. What steps had the landlord taken to ask the neighbour to move the fence?
5. If the fence belonged to the neighbour, the landlord should provide written confirmation of this and that it was the correct size.
6. If the fence was the responsibility of the landlord, why was it in the wrong place?
The landlord provided its reply on 31 March 2023. It said that the dividing fence between the 2 properties was approximately 2 feet over the boundary line of the resident’s property. It confirmed that this was the measurement at the widest point as the area of land was not square. It understood that the resident wanted the landlord to amend the boundary line to add 2 feet to the side return of his property. It had investigated the issues he had raised and responded as follows:
1. It confirmed that the fence to the front and rear of the property belonged to it.
2. It could not confirm when the fence had been erected as it had been in place for a long time. This predated its own records. It considered that the fence was the boundary to the property.
3. It said that due to GDPR it was unable to share details of its correspondence with his neighbour.
4. It confirmed that the fence was of a suitable height.
5. It could not say why the fence was in the wrong place as it did not have records relating to the fence being installed.
6. It had sought legal advice about the resident’s complaint and said that it would not be taking further action on this issue. It did not believe that it would be an appropriate use of public funds to take legal action to recover the area of land that was disputed.
7. He had accepted the tenancy of the property with the boundary in place.
8. It noted that a section of the rear fence was damaged. It had made attempts to repair this, but the resident had not allowed this to go ahead. It set out his obligation under the tenancy agreement to allow its contractors access to undertake an essential repair.
The resident replied on 11 April 2023. He was unhappy with the landlord’s response and said that he believed it was “not serious” about resolving the problem. He explained that a contractor had attended his home only once and had inspected the whole fence. He had not returned. Further he said that the landlord had failed to answer all his questions. He specifically highlighted his questions, set out above – specifically points d, e, and f. He said that when he accepted the property the location of the fence was not discussed and it was only later that he became aware of the encroachment. He believed that the landlord’s decision not to act was based on race and that it favoured his neighbour. He said that he had a right to all the space around his property.
The resident contacted the landlord again on 19 April 2023. He said that his neighbour had removed a wall on the disputed boundary and provided photographs of this.
The resident contacted the Housing Ombudsman Service on 9 May 2023. This was in follow up to earlier contact he had had with the Service about his complaint to his landlord. He explained that following his move to the property he found that his neighbour’s fence was encroaching “more then 2 feet inside our property”. Both he and his housing manager had approached the neighbour about moving the fence but they had refused. He had been told by the landlord following further inspections that it could not take the matter further “as it will be a waste of public money and resources”. He explained that:
1. he planned to buy the property and later extend it.
2. he believed that his landlord had been unfair in its handling of the issue, siding with his neighbour.
3. he had escalated his complaint and was awaiting a response from the landlord.
4. there was an issue of damp and mould within the property. He had raised this with the landlord but it had failed to take this seriously.
5. he believed that the landlord’s staff had behaved in a discriminatory manner.
On 10 May 2023, the landlord provided its stage 2 response. It said that it understood his dissatisfaction and that he wanted the fence to be moved. It said that it had called him on 3 May 2023 to discuss his complaint. He had asked that it respond to him in writing. The landlord confirmed that it had spoken with his neighbour, although it could not share the details of its communications with them. It had then sought legal advice. Its investigations had shown that there was 609mm area of land that the landlord owned, which sat on the neighbour’s side of the fence. This boundary was in place when the property had been let to the resident. It had a duty to use public funds properly. Legal action would be costly and based on its advice this was unlikely to succeed. It understood that this was not the outcome he was looking for but it would not be taking further action. It addressed the specific questions raised by the resident, confirming the landlord’s ownership and responsibility for repairing the fence that was in place.
The resident provided the Service with a copy of the landlord’s response and 17 May 2023 and said that he wished it to investigate the matter on his behalf.

Assessment and findings

Scope of investigation

The resident told the Service that there were issues of damp and mould within his property. The serious nature of this matter is acknowledged. However, it did not form part of his formal complaint that the landlord responded to on 10 May 2023. In the interest of fairness, the scope of this investigation is limited to the issues raised during the resident’s formal complaint. This is because the landlord needs to be given a fair opportunity to investigate and respond to any reported dissatisfaction with its actions prior to the involvement of this service. Should the resident wish to pursue this aspect of his complaint he would first need to raise this with his landlord.

Request for a boundary fence to be moved.

The Ombudsman Service cannot decide where a boundary lies and it cannot compel a landlord to move or reinstate a boundary. The role of the Service is to assess how the landlord responded to the concerns that were raised and consider if it dealt with the matter in a way that was fair and reasonable in all of the circumstances.
The landlord began investigating the boundary position in April 2022. It is unclear from the evidence provided why the landlord began its investigation or if this was in response to an enquiry from the resident. It contacted its RTB team on 25 April 2022 to confirm the boundary position as it believed the neighbour was encroaching across the boundary. The landlord’s officer indicated that it had spoken with the neighbour, but they had refused to discuss the issue.
The landlord has not provided any other evidence of its communication with the resident’s neighbour about the boundary issue. Its RTB team recommended that it write to the neighbour providing a copy of the boundary plan. It is not known if it did so. The resident contacted the landlord’s complaint team on 12 September 2022 seeking an update. He set out that the landlord had visited his home and agreed that there was “encroachment” by his neighbour. He said that the landlord had also spoken with his neighbour about the boundary. The landlord’s complaint’s team acknowledged this contact. Through internal emails with the complaint’s team, the landlord recorded that it spoke with the resident. It said that it was continuing to investigate the issue. It explained that this was difficult as the neighbour was a private owner and said that it would be seeking legal advice. It noted that the resident accepted this explanation. The landlord contacted its legal advisor on 20 September 2022. It was appropriate that it did so. However, it would have been reasonable for the landlord to have followed up its verbal discussions with the resident in writing. That it did not was a shortcoming in its handling of the matter.
The resident contacted the landlord’s complaint’s team again on 12 October 2022, chasing his complaint. He said that he had been promised “contact within 2 weeks but said that over a month had passed”. The landlord recorded that it contacted the resident on 13 October 2022 to further discuss his concerns and provide an update on the boundary issue. Given the frustration expressed by the resident and that he had raised the issue through the landlord’s complaint’s team, the landlord should have provided the resident with a formal complaint response. The landlord’s complaint handling has been assessed in further detail below.
The evidence shows that the landlord’s solicitor made a recommendation on 23 October 2022, that a surveyor should visit the property to record the boundary and identify the disputed area. In response the landlord made arrangements for an inspection to be carried out by its technical surveyor and housing manager. It was appropriate for the landlord to act on the advice of its solicitors at this point.
The landlord wrote to the resident on 8 November 2022 in response to a further email from him seeking an update to his complaint. It explained that it would be in touch in due course. No contact had been made on its behalf as “it did not have any update to give”. It explained that a technical surveyor was due to visit and it would provide a further update once it had received the report. It asked the resident “not to email … complaints any further on this”, and he was asked to contact a named member of staff instead. The resident replied on 8 November 2022. He said that he would not contact complaints again and would await an update. The tone of the landlord’s communication was inappropriate. It did not manage the resident’s expectations or provide a clear timescale for its actions. While it may not have had any further information to provide at that time, to say that it would respond “in due course” provided no clarity for the resident as to how long he may have to wait for the matter to be resolved.
The landlord subsequently provided a detailed response to the resident on 17 November 2022. This explained its findings about the boundary. It confirmed its ownership of the land that fell on the neighbour’s side of the boundary fence and the size of this. It further said that the boundary had been in place for at least 14 years and that it would not take action to recover the disputed land. The landlord’s explanation of the actions that it had taken to investigate the matter and how it had reached its decision was clear and well explained. It is acknowledged that the resident was unhappy with its response; however, the landlord had taken proportionate action in the circumstances.
The resident pursued his wish for the landlord to relocate the boundary fence and raised a further complaint on 25 March 2023. The landlord appropriately dealt with this as a formal complaint and responded within the timescale set within its complaint procedure. It responded to the resident’s questions and reaffirmed its position that it would take not further action to recover the land.
The landlord accepted that it owned the disputed area of land and had “most likely” installed the fence in its current location. It identified that, given the sales history of the property, the existing boundary had been in place for at least 14 years. The boundary had also not changed in the time that the resident occupied his property. The landlord’s solicitor said that it was unlikely to be successful should it take legal action to recover the land, considering the length of time the boundary had been in place. It was appropriate for the landlord to act based on its legal advice. It is acknowledged that boundary disputes can present challenges in identifying the correct boundary and finding a solution agreeable to all parties. Here the landlord concluded its investigations over a 7 month period, which in the circumstances was overall reasonable. It is noted that the resident remains unhappy. However, the landlord appropriately considered the matter of where the boundary lies and made an informed decision not to take action to seek to reinstate it. We are satisfied that the landlord’s decision not to seek a relocation of the boundary was appropriate in all circumstances and as such there was no maladministration in the landlord’s handling of this matter.

Complaint handling.

The landlord should have better managed its communication with the resident. It should have set clear expectations as to when it would provide feedback on its actions and should have scheduled in regular updates with him. It failed to respond appropriately when he first raised a complaint about the matter. Its correspondence asking him not to contact its complaint’s team was inappropriate.
The resident first sought to make a complaint in September 2022. Although the landlord’s records show that it spoke with the resident about his complaint it provided no formal complaint response within its prescribed 10 working day target. The resident followed up his complaint on 2 separate occasions. The landlord then wrote to the resident and said it was investigating the boundary issue. It also told him not to contact its complaints team. This was inappropriate and not in line with the Ombudsman’s Complaint Handling Code (the Code). This states that “a complaint must be raised when the resident expresses dissatisfaction with the response to their service request, even if the handling of the service request remains ongoing”. That the landlord did not treat the matter as a formal complaint from this point was a failing in its complaint handling.
When the resident raised his concerns as a complaint again in March 2023, the landlord appropriately responded to the questions and concerns raised.
In escalating his complaint on 11 April 2023, the resident raised his concern that his landlord’s actions were based on his race. He expressed his belief that the landlord has favoured his neighbour over him in regard to the boundary. The landlord did not respond to this element of his complaint. It would have been appropriate for the landlord to acknowledge these concerns and review its actions. That it did not do so was a failure in its complaint handling. This was also not in line with the Code which states that landlords must consider all points raised within the complaint.
While the landlord failed to respond to the resident’s concerns, through this investigation we have found no evidence that it treated the resident any less favourably. Its decisions were based appropriately on the advice it received from its solicitor. However, we acknowledge how the situation made the resident feel and the landlord’s failure to address his concerns that he had been discriminated against may have compounded these feelings.
Considering the combined failures in the landlord’s handling of the resident’s complaint there was maladministration. An order has been made for the landlord to apologise for the failures identified and pay the resident compensation.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s reports of request for a boundary fence to be moved.
In accordance with paragraph 42.f. the resident’s concerns about discrimination is outside of the Ombudsman’s jurisdiction.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s complaint.

Orders

Within 4 weeks of the date of this report the landlord must:
1. Provide the resident with a written apology, acknowledging the identified failings in its complaint handling. This should be in line with the Service’s guidance on remedies.
2. Pay the resident a total of £150 compensation in recognition of the distress and inconvenience caused by its failure to respond appropriately to his complaints, as outlined within this report.

Recommendations

It is recommended that the landlord put in place guidance for its staff on how to respond to boundary disputes brought by residents and private owners. This should include general guidance around the legal framework, together with recommended timeframes for resolution and template correspondence with each party.