Optivo (now Southern Housing) (202123226)

REPORT

COMPLAINT 202123226

Optivo (now Southern Housing)

29 January 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

1. This complaint is about the landlord’s handling of the resident’s complaint about the reduced size of a disabled parking bay.

Background and summary of events

2. The resident is a tenant of the landlord. She lives in a semi-detached house with an allocated parking space. She has a mobility related disability.
3. In 2018 the resident was in discussion with the landlord about parking spaces on the estate, and the lack of a disabled parking space. It told her that “taking into account your need” it would install a disabled parking bay, which could be used by any residents holding a blue badge.
4. In 2019 the landlord engaged in a consultation with tenants about parking on the estate. It concluded the consultation by writing to tenants explaining that each would have an allocated parking space (including the resident). It would also create several other spaces for visitors, and one larger disabled parking bay for visitors with a blue badge. The communal disabled bay was created in front of the resident’s home (next to her allocated bay), using part of what she believed at the time to be her front garden, to provide for the increased width the disabled bay needed.
5. The resident’s neighbour is a private owner. In 2021 the resident discovered that the neighbour had built a fence along the side of his own parking bay  which encroached on the disabled bay (the two spaces are adjacent). The resident reported the matter to the landlord, and then complained in May 2021 that it had not updated her or kept in contact about the issue.
6. An internal email dated 9 June 2021 states that the landlord had discovered that the fence raised by the neighbour could potentially be on his own land. It recommended asking its legal team to establish the correct boundaries. The legal team’s response confirmed that it was possible that part of the land used for the disabled parking bay belonged to the neighbour.
7. The landlord sent its complaint response on 22 June 2021. It confirmed that it had inspected the parking bays and that the neighbour’s fence encroached on the disabled bay by 40cm. It said it was arranging for the neighbour to remove his fence and restore the disabled bay to its former size.
8. The landlord’s internal notes dated 6 July 2021 state that it had discussed the disabled bay issue with the neighbour, and that he felt he had acted correctly.
9. The resident was dissatisfied with the landlord’s response and escalated her complaint on 13 August 2021. She complained about the lack of action to resolve the issue since she reported it, that she had had to chase the matter, and about the quality and frequency of updates and communication from the landlord.
10. The landlord held a complaint panel review on 1 December 2021, and sent its complaint response on 24 December. It explained that the parking bay dispute was now with its legal team, and apologised for the time taken to get to that stage. It said it had issued a pre-action legal letter to the neighbour with a deadline to remove the fence by 7 January 2022. It explained how it would follow the issue up and take the necessary action depending on the neighbour’s actions. It apologised for delays in its updates to the resident, and offered her £50 compensation in light of its poor communication and delays resolving the issue. The landlord referred the resident to the Ombudsman if she remained dissatisfied.
11. The resident approached this Service in November 2022. She said she had had no further updates from the landlord, and no further action had been taken to get the disabled parking bay back to its original size. In response to our query, the landlord promised to update the resident. It then wrote to her on 13 December. It explained there had been delays with its legal action, but it had been followed up and the matter would be expedited to “get this case to court”.
12. After her further requests for updates in 2023, the landlord informed the resident in March that on further consideration, it had decided not to proceed with legal action because the fence’s location was “consistent with the Land Registry title plan.” The resident objected to the landlord’s decision, on the basis of the time it had taken to reach it, and for the time and trouble she had been put to chasing the matter.
13. The landlord sent a final response in April 2023. It explained its decision in more detail, saying that the area taken by the neighbour was part of his property. It explained that the additional area used for the original disabled bay was communal, and not part of the resident’s front garden (something she had raised as a further issue). It said that the resident had not been impacted by the issue as she did not use the disabled bay, and had her own parking space. It acknowledged it had not managed the resident’s expectations well in regard to the action it would take and apologised. It offered her £380 compensation for its delays, and the inconvenience caused to the resident. It also committed to restoring the disabled bay to its previous size in a different manner.

Assessment and findings

Investigation scope

14. The Scheme states that complaints to the Ombudsman can be made about matters which have affected a person in relation to their occupation of their home. The Scheme goes on to say any affect should be significant. In this case, the disabled bay was for the use of all residents and/or visitors with a blue badge. The resident has explained that she has a blue badge, but that she rarely used the disabled bay because she had her own parking space. In her complaint to the landlord the resident referred only to other users potentially being impacted by the reduced size of the disabled space. She did not describe any effect on herself from the reduced size, and she was not complaining on behalf of any other tenants.
15. The resident clearly went to a lot of time and trouble chasing this issue, but no evidence has been seen which could reasonably be said to show that the matter at the heart of it (the reduced disabled bay size) had a significant effect on her occupation of her home. Because of that, this investigation is very limited as to how much it can consider about the landlord’s actions, and will centre on the time taken by the landlord to make its final decision, and how it managed the resident’s expectations.

The landlord’s handling of the resident’s complaint regarding the reduced size of a disabled parking bay

16. The resident reported this issue in April 2021. She raised her complaint in May 2021, and the landlord responded to it promptly. It explained that it would be asking the neighbour to remove the fence. It gave no indication that there was any potential doubt about the situation, which was not reasonable or appropriate, given that the internal correspondence shows that by that time valid doubts had been raised.
17. The landlord’s response to the resident’s escalated complaint reiterated that it intended for the neighbour to remove his fence and restore the size of the disabled bay, and explained that it had already issued preliminary legal demands. However the internal records show that the landlord was aware by that point that the neighbour did not agree with the landlord’s claim. Nothing has been seen suggesting that the landlord had resolved its earlier doubts, and so its repeated assertion that it would force the issue was again an unreasonable one, given that it gave the resident no indication that the action might not proceed or be successful.
18. There was no apparent action by the landlord through much of 2022, until the resident approached this Service, following which in December the landlord again reassured her that action was intended, but had simply been delayed. It is not evident what developments (if any) had occurred in 2022, or whether the landlord had resolved its uncertainty about ownership of the land. So it is not possible to conclude whether its explanation at this stage was reasonable.
19. Nonetheless, it then changed its mind 3 months later, having decided that it was likely the neighbour actually owned the land he had encroached on, and that the landlord would therefore not take further action. This decision was at least partly based on records which would have previously been available to the landlord, rather than anything new. While the landlord was entitled to make its own decision, and the decision appears to be a logical and pragmatic one, there is no evidence of the landlord forewarning the resident, and her dismay at learning of it was wholly understandable, even if there was no practical impact on her.
20. The landlord’s internal records following its discussion with the neighbour in 2021 about his fence note that the matter appeared to be one for the landlord to resolve directly with the neighbour, without the need for the resident’s further involvement. That appears to have been a valid observation, as the parking space was communal, and therefore for the landlord to decide its use, and the resident was not directly affected. The landlord did not explain this to the resident, which was a further missed opportunity to robustly manage her expectations about what could be done, and what role she had.
21. In its final complaint response in March 2023 the landlord accepted and acknowledged that it had dragged the issue out much longer than it should have been. It apologised for the frustration and inconvenience caused to the resident, suggested possible alternative solutions, and offered £380 compensation. While the time taken to reach a final conclusion was excessive, there was no material effect on the resident by that, and the landlord’s biggest failing was in not setting realistic expectations for her in light of its uncertainty about ownership of the land. This led to her spending time and effort chasing a matter which she might not otherwise have done if she had been better informed.
22. The compensation offered by the landlord exceeded what its compensation policy states should be its limit for service failure (setting a limit of £250). Nonetheless, the amount offered was broadly in line with the Ombudsman’s remedies guidance for an issue where a resident has been put to time and trouble, but where there is no appreciable impact. Accordingly, along with its acknowledgements, apologies, and alternative suggestions, the landlord remedied its failing appropriately.

Determination (decision)

23. In line with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord has offered redress to the resident prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Reasons

24. The landlord failed to reasonably manage the resident’s expectations about what action it might take in response to her reports about the encroachment on the disabled parking bay. It dragged the matter out before finally reaching a decision different to those it had previously given. However, in addressing the resident’s complaint the landlord provided reasonable and proportionate remedies.

Recommendations

25. If it has not done so already, the landlord should now pay to the resident the compensation offered to her in March 2023.