One Vision Housing Limited (202003683)

REPORT

COMPLAINT 202003683

One Vision Housing Limited

8 February 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 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 decision not to allow partition of the rear garden at the property.

Background and summary of events

Background and policies

2. The resident has been an assured tenant of the landlord, at the property, from 18 December 2017.
3. The landlord’s ‘Communal Areas Policy’ states at Paragraph 3.1.2. states that “Communal areas, even those immediately adjacent to a resident’s property, are not an extension of an individual’s property, as such residents should not use these areas for their personal effects or have exclusive use particularly where access to communal facilities / areas is required by other residents”.
4. Paragraph 3.4.3 of the same policy states that “The following …. is not permitted at any time … anything which prevents or significantly limits the use of shared facilities by other residents”.
5. The landlord has a two-stage complaints policy, with the landlord aiming to provide a response within ten working days at both stages.

Summary of events

6. Around 31 January 2020 the resident contacted the landlord to ask if he could plant hedges to create a more secure and private area directly beyond his bedroom window and back door, following concerns around security and openness of the communal gardens, dating back to the previous year.  He also expressed the benefit to the environment that this would bring.
7. Following this, the landlord made a request to survey the property, to which the resident responded on 10 February 2020, stating that he was happy to be done.  In his response the resident reiterated his request to create a 6ft primitive fence line at the back of the property to secure his garden. He stated that there had been an incident with a man who was wanted for a knife crime being chased through the communal garden the previous year, which formed the basis of his reason for the request – as it would give him more privacy and security – and added that there would be benefit to the environment. The resident stated he would look after the garden and hedges himself and would not expect the landlord to do so.
8. On 12 February 2020 the resident contacted the landlord providing photographs of his proposal.  The landlord responded, advising that it had referred his email to the relevant member of staff to respond.
9. On 13 February 2020 the resident emailed the landlord asking if its decision not to allow him to plant hedges still stood. It is unclear exactly when this decision was made or how it was communicated, however, the landlord responded stating that its decision did stand because it would not allow the obstruction of access, which the resident’s plans would cause if they went ahead.  It stated that this decision had been carefully considered.
10. On 14 February 2020 the resident raised a formal complaint about the landlord’s decision not to allow him to plant hedges because it would restrict access, stating that access would not be restricted.
11. On the same date the landlord issued an acknowledgement of the complaint at stage one of its complaints process, advising that it would be in contact within 48 hours to discuss the matter and provide a stage one response to the compliant 10 working days thereafter.
12. On 17 February 2020, following a phone call with the landlord, the resident emailed it, summarising his request to plant two hedge lines from the property at the back. The resident stated that he wanted to do this in order to stop any further incidents occurring (which compromised his privacy and security and he had previously referred to).  He also referred to a neighbour leaning their bike against his property, which the hedges and sealing off of this part of the garden would prevent and he reiterated the benefit to wildlife.
13. The resident did not believe that access would be obstructed, unlike the washing lines, which caused obstruction when washing was hanging on them.  He said that he would be responsible for maintaining the hedges himself with the private gardener he already used for the front and side gardens.
14. On 25 February 2020, the landlord issued its stage one response to the complaint. The landlord did not uphold the complaint, explaining that the partitioning of the garden would cause difficulties in maintenance because the gardener uses a ride-on a lawnmower and having the partition would have a severe impact on the gardening work.
15. The resident has stated that a ride-on lawnmower is not used in the communal garden as it simply does not fit around the side gate which provides access. On 27 February 2020, the resident requested escalation of his complaint.
16. On 3 March 2020, the landlord acknowledged the resident’s escalation request and said that after reviewing the information it would come back to the resident within 10 working days.
17. On an unknown date in March 2020, the landlord inspected the garden again and discussed the issues with the resident. The landlord discussed how the planting of trees would mean that the landlord would need to increase its time in gardening and pruning and there would be later considerations as the trees matured.
18. On 5 March 202 having noted the resident’s request for all contact to be in writing, the landlord asked for further information from him.  This was followed up on 10 March 2020.  On the same date, the resident responded, reiterating his request and concerns.
19. On 16 March 2020 the landlord issued its stage two response to the complaint. The landlord did not uphold the complaint, recognising the importance of the issue to the resident but explaining the reasons for its decision as follows:
    1. Partitioning of the garden would result in additional garden maintenance work and associated costs as well as cause difficulty in accessing the border;
    2. There would be an additional cost in terms of removing the hedges around the partition, should the resident decide to end the tenancy, and;
    3. If permission is granted for the garden to be partitioned with hedges for the resident, the landlord would be obliged to also grant this permission to other residents, rendering the garden to be no longer communal and causing additional work load and cost in terms of maintenance.

Post complaint

20. The resident does not feel that his request was sufficiently investigated by the landlord, in particular, in terms of cost and on 20 March 2020 he emailed the landlord expressing his dissatisfaction with its response. Within his email he requested a copy of a feasibility report undertaken by the landlord in respect of his request and questioned why the landlord would assume that he would leave the property.
21. The landlord responded on 26 March 2020, explaining that it was not required to provide feasibility information as it was information that belonged to it and it was not required to share it. It apologised that the resident felt that it was encouraging him to leave (which the resident had expressed) and explained that it had to consider all circumstances and each case on its own merit, which it did here. It offered to review its decision once the resident was no longer self-isolating and acknowledged his passion for the project and that it meant a lot to him. 
22. Four months later, on 10 July 2020 the landlord visited the property to inspect the gardens and speak to the resident about his request. It explained to him that it would need to consult his neighbours about any changes to the communal gardens.
23. On 23 July 2020, following correspondence between the resident and landlord, the landlord advised that the resident’s neighbours were being consulted as to his proposal. The resident responded stating that he did not want his neighbours consulted because they were the perpetrators of Anti-Social Behaviour (ASB) towards him and contacted the landlord again on 28 July 2020 expressing the impact the situation was having on his mental health.

Assessment and findings

24. The resident’s strong wish to partition the garden is clear in this case and his reasons around privacy and a sense for him of increased safety and security, reasonably based.  The benefits to the environment that he has pointed out, too, is undoubtedly a valid and important point.  The resident’s upset at the landlord’s decision not to grant him permission to plant the trees and create the border and boundary is understandable.
25. Notwithstanding this, it is unfortunate for the resident, however, that the landlord is not obliged to grant him permission to partition off the garden to the rear of his property.  The request to do this was a request and was treated as such; making any changes such as this are proposals and are not automatic rights and in asking a question, a resident must be prepared for the answer, even if it does not go in their favour.
26. The landlord’s ‘Communal Areas Policy’ makes clear that communal gardens are for communal rather than exclusive use and despite the resident having a garden directly at the back of his property, this does not belong solely to him and is not an extension of the bungalow within which he lives.
27. The landlord is entitled to refuse the request, having considered it, in accordance with its policies and procedures and having carried out an assessment of the situation.  The situation here is that the resident does not accept the landlord’s reasoning regarding obstruction of access and of cost.  Although the landlord is not obliged to honour the request to create a partition, there is a reasonable expectation on it to provide a satisfactory reason or reasons for its decision.
28. The difficulty in access is in direct dispute and although the resident does not have to agree with the landlord’s decision and reasons, there seems to be a lack of understanding or misunderstanding as to what exactly the landlord means by this. The landlord has made a broad assertion that there would be obstruction but has not explained where, why or how, which has undoubtedly exacerbated the resident’s frustration with its reasoning.
29. In terms of the cost, the landlord has said it is not required to provide its assessments or documentation pertaining to this or feasibility report.  Whilst it may not provide the documentation itself, its reasons for declining the request should be explained, as previously described.  The landlord has explained that there would be increased cost, but again, not how.  The resident has been unable to make sense of this given that he has stated he will pay for the maintenance and upkeep himself.
30. In terms of the landlord’s reference to the resident possibly ending the tenancy at some point, this Service has seen no indication that this was intended to encourage the resident to move or to make assumptions around him leaving. Properties do change hands, tenants do move and life circumstances and situations change.  The landlord was entitled to point out that should the resident move, it would be required to undertake work to change the garden back to the condition it is in now and that that would take time and effort to do and come with financial implications.
31. Regarding the decision, should it be made, to grant permission to partition the garden setting a precedent, this is also a valid reason the landlord gave.  The landlord is obliged to treat all residents equally and fairly and creating one secluded space may result in further requests and secluded areas, rendering the garden no longer communal, affecting tenancies and potentially causing difficulty and complications including around maintenance and responsibility, for instance. 
32. The landlord has been reasonable in its approach – inspecting the area on around three occasions at least, as noted by this investigation and in explaining that it would reconsider the matter again, following its final response to the complaint, once the resident was no longer self-isolating.  In doing so, the landlord demonstrated that it was taking the resident’s request seriously and seeking to come to a satisfactory resolution.
33. Whist the resident was uncomfortable with this, the landlord acted responsibly, appropriately and fairly in seeking to consult other residents about any potential changes to the garden and reasonably in explaining to the resident that neighbours would need to be consulted, facilitating transparency in the process. The landlord missed the opportunity, however, to discuss with the resident the privacy, security and safety concerns he referred to in his correspondence to it; discussions which may have helped to allay his fears and/or sought other resolutions.
34. Finally, turning to complaint handling, the landlord delayed minimally in providing a response at stage two of the complaints process.  Although the response was provided very minimally outside of the timescale set out in the landlord’s complaints policy, sometimes complaints do take longer to resolve and the landlord was not inactive, leading to delay, but rather was proactive in seeking additional information from the resident, which it did so twice, seeking to ensure it had fully heard the resident’s concerns before responding.

Determination

35. In accordance with paragraph 54 of the Scheme, there was no maladministration by the landlord in respect of the complaint.

Reasons

36. There was no maladministration insofar as the landlord was not obliged to honour the request to partition the garden, irrespective of its reasons and the resident’s disagreement with them. In considering the request, the landlord carried out a number of inspections, took time to speak to the resident and offered to review the situation and consult the neighbours as it continued to consider the request.

Recommendations

37. The landlord to explain its findings that access would be obstructed should the resident’s garden be partitioned and that the cost of upkeep would be more. (The resident to note that it is not a requirement that he agrees with the landlord’s reasons and indeed, may not do so).
38. If not already done so, the landlord to confirm with the resident the outcome of the consultation with the neighbours (if this did indeed go ahead).
39. If not already done so, the landlord to offer to speak with the resident about his reference to ASB and concerns around privacy and safety, with a view to discussing any potential options for resolution and increased sense of safety. 
40. Although the landlord is not obliged to carry out recommendations it is requested to confirm its intentions as to the above recommendations by 8 March 2021.