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Peabody Enterprises Limited (202009487)

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REPORT

COMPLAINT 202009487

Peabody Enterprises Limited

28 October 2021


Our approach

What we can and cannot consider is called the Ombudsman’s jurisdiction and is governed by the Housing Ombudsman Scheme. The Ombudsman must determine whether a complaint comes within their jurisdiction. The Ombudsman seeks to resolve disputes wherever possible but cannot investigate complaints that fall outside of this. 

In deciding whether a complaint falls within their jurisdiction, the Ombudsman will carefully consider all the evidence provided by the parties and the circumstances of the case.

The complaint

  1. The complaint concerns a dispute about the resident’s access to the garden at the rear of her home.

Determination (jurisdictional decision)

  1. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
  2. After carefully considering all the evidence, we have determined that the complaint, as set out above, is not within the Ombudsman’s jurisdiction.

Summary of events

  1. The property is a house that has been converted into two flats. For clarity, the neighbour’s property will be referred to as Flat A and the resident’s as Flat B. The garden in question is to the rear of the building. The resident is a tenant of the landlord and has lived there since 2011.
  2. In late 2017 the resident contacted the landlord to report that a lock had been put onto a gate to the garden to the rear of Flat A and Flat B. She advised that this was a communal garden that she had always had access to previously.
  3. On 21 December 2017 the landlord advised the resident via telephone and in writing, that her tenancy agreement did not state that she had access to the garden.
  4. The resident raised the issue with the landlord again in March 2018 via a housing advice charity. The landlord looked at the tenancy agreements and visited the neighbour’s property at Flat A. On 11 April 2018 the landlord wrote to the resident confirming that she did not have access to the rear garden
  5. The resident continued to raise the issue and on 5 May 2019 the landlord reopened the case.
  6. The resident has explained that the landlord emailed her on 29 May 2019 advising that the matter had been investigated. It said that Flat A had sole use of the garden, and that this was highlighted in Flat A’s tenancy agreement. The landlord advised the resident to seek independent legal advice.
  7. The resident continued to correspond with the landlord until early 2020. She asked for access to the rear of her property for repairs and for a file of all the information related to the issue which she would share with her solicitor. The resident received the information in February 2020.
  8. The resident raised the issue with this Service in November 2020. Following contact from this Service, the landlord opened a complaint on 8 January 2021.
  9. In the landlord’s stage one complaint response of 21 January 2021, the landlord explained that it was satisfied with its decision on 29 May 2019 to decline the resident’s request to use the garden to the rear of her property. The resident requested that this be escalated.
  10. The landlord issued its stage two complaint response on 14 May 2021. It noted that it had reviewed the stage one response and agreed with the original findings.

Reasons

  1. Paragraph 39 (i) of the Scheme states that the Ombudsman will not investigate complaints which “concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.”
  2. The primary issue in this complaint is one of interpretation of the resident’s tenancy agreement, and, potentially, that of Flat A as well. While the landlord’s assessment of the resident’s tenancy rights is supported by the agreement (which gives no obvious indication of a right of access to the garden), the resident has put forward a range of arguments in support of her contention that she does have access.
  3. While the Ombudsman can make assessments of basic issues around the interpretation of a tenancy agreement, any issues of dispute that go beyond that basic level are not ones this Service has the expertise or legal authority to determine, and are not appropriate for the Ombudsman’s investigation process.
  4. In this particular case, the Ombudsman cannot make a decision about whether either tenancy agreement confirms who has access to the garden. Resolution of this dispute would require a definitive interpretation of the terms of the tenancy agreements. It is not the role of the Ombudsman to make such a determination. This would, ultimately, need to be decided by a court of law.