Sanctuary Housing Association (202102360)

REPORT

COMPLAINT 202102360

Sanctuary Housing Association

14 December 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. This complaint is about:

a.     the landlord’s response to the resident’s concerns over obstructed shared access pathways at the front and rear of the property;

b.     the landlord’s handling of the resident’s subsequent complaint.

Background and summary of events

Background

2. The resident is an assured tenant, and the tenancy began on 17 June 2020. The property is a mid-terrace one-bedroom home in a row of three bungalows. The landlord owns two of the three bungalows, but one is owned and let by a private landlord (the homeowner) through a managing agent.
3. The entrance to the property is accessed through a shared path along the front of the terrace. The resident’s rear garden is accessed by a gated shared path down the side of the privately owned bungalow, which runs through its garden to the property’s back gate. No information is given in the tenancy agreement about the resident’s right of way.
4. The landlord operates a two stage complaints procedure. Its “Complaints – Housing and Support Policy” shows the first stage, Front Line Resolution (FLR), is focussed on swift action by front line staff to effectively resolve concerns. The second stage, investigation, focusses on providing an independent investigation and a full written report of its findings.

Summary of events

5. The landlord made a routine visit to the property on 8 September 2020. Its internal notes show the resident asked for confirmation of the shared paths at the front of the property and made enquires as to whether he was permitted to cut a hedge. Permission was declined because the hedge belonged to the homeowner.
6. The resident sought further clarification about access arrangements in an email to the landlord on 28 September 2020. He asked who owned the side gate controlling access to the private garden, and which areas were communal in relation to accessing the property from both sides at the front and rear. He requested a map of the terrace and raised the following issues:

a.     An aggressive dog in the privately owned property occasionally prevented access

b.     The side gate could be locked from the inside

c.      The path through the homeowner’s back garden was not always clear

d.     Cars were sometimes parked over the shared front pathway

e.     Paths were being blocked by overgrown vegetation

7. The landlord acknowledged the resident’s enquiry the following day. It agreed to respond in due course but advised its understanding was that shared access applied to the pathways only and not the driveways at each end of the terrace. It said no concerns about obstructed access had been noted during its last visit.
8. The resident made further enquires on 3 October 2020. He said he felt hemmed in by his situation, so he needed to know where he stood in terms of the location of communal areas. This was because shrubs were preventing proper use of the path. Further, he sought clarification as to his rights in relation to access through the privately owned back garden. This was based on concerns around obstructions on the pathway and the side gate being locked.
9. The internal notes show the landlord passed the resident’s enquires to its legal team on 5 October 2020 and it received a response the same day. It then called the resident to discuss the reply and arranged an appointment to visit him in person on 9 October 2020.
10. A discussion took place around access during the scheduled appointment. The notes show the landlord confirmed the resident held a right of access “at all times and for all purposes”, through the private garden, in connection to his use of the property. Shared access should be kept clear, and the resident should not be prevented from using it. The landlord showed the areas of responsibility in line with the title plans and encouraged the resident to discuss any concerns with his neighbour. It also offered to hold a conversation around access on his behalf, which the resident declined, and signposted him to other sources of advice including the Local Council and the Citizens Advice Bureau (CAB).
11. On 15 October 2020 the resident emailed the landlord again. He said he had identified an overgrown path running along the outside edge of the private garden to the property’s back gate. He requested a boundary map for the neighbouring property to allow him to confirm whether this was the correct path for him to use.
12. On 19 October 2020, following a telephone conversation, the landlord signposted the resident to the Land Registry as a source of information about the neighbouring property.
13. On 20 October 2020 the resident gave the landlord copies of the title deeds, for all three bungalows, obtained from the Land Registry. He said the information he sought was not contained in the deed for the privately owned property. As a result, he asked for the landlord’s help to interpret the information in respect of its two homes. He also requested any documentation which confirmed his legal access rights in writing.
14. The resident’s query was submitted to the landlord’s legal team on 23 October 2020.
15. The resident contacted the landlord again on 28 October 2020 with respect to a leaking gutter at the private property. He said his neighbour was unsure who was responsible for resolving the issue but, given it could cause problems for both the landlord’s bungalows, it needed to be addressed. Since information he gave from the Land Registry contained contact details for the private landlord, he recommended notifying them of the problem and raising the issue of access. Specifically, that communal pathways, including around the edge of the neighbours back garden, should be kept clear to at least three feet.
16. The landlord wrote to the homeowner on 6 November 2020 about the guttering. It also asked them to raise the issue of access with their tenants. This was on the basis shared pathways should be kept clear at the front and rear to allow the resident access when required.
17. The landlord received a response from its legal team on 13 November 2020. It said access rights were confirmed by publicly available documents, but the tenant should seek independent representation if he required legal advice.
18. On 25 November 2020 the landlord advised the resident no response had been received from the private landlord and, as a result, it would ask the Local Council to follow up the matter.
19. The resident responded on 27 November 2020. He said, since the access path was not clear, he had been forced to park in a different location, which had caused a problem with another neighbour. He said deeds to the private property should include clear access rights and pathways should be identifiable. He was presently unsure whether he had a legal right of way, or whether the landlord was entitled to compel his neighbours to clear the path. Further, if the areas in question were communal, a shared responsibility to maintain them would allow the landlord to clear the paths and guttering. The resident asked for legal advice from the landlord to resolve the situation.
20. Notes from 10 December 2020 show the resident was “advised again” to seek independent legal advice through the CAB. This was because the landlord could only refer to its own legal advice which the resident was unhappy with. They said the resident felt the shared access and guttering problems should be resolved by the landlord and the Council. Further, that the landlord had agreed to write to the homeowner again and suggested the resident could contact them to discuss matters. The landlord’s correspondence confirms the agreed letter was sent the same day and its content was similar to its previous letter.
21. The resident updated the landlord the following day and confirmed he had spoken to the homeowner in detail. He said they had agreed to ask their tenants to clear the front path of shrubs. They also agreed to seek information about the access paths from their deeds, but an arrangement had been made with the previous tenant of the property to allow the side gate to be locked. The resident disputed the tenant’s entitlement to lock the gate and advised he had not been offered a key. The issue of cars blocking access to paths and bin stores was also discussed.
22. On 14 December 2020 the resident notified the landlord he was considering works to establish a straight path from his front door to the road. He would make enquires with the Council in relation to planning permission, but he was seeking to understand the landlord’s position with respect to approving the works.
23. A note from 18 December 2020 shows the landlord discussed several issues with the resident that day. It said permission paperwork had been issued for the proposed works and the resident had been encouraged to raise the matter with the landlord’s surveyor during an upcoming appointment. Further, he was advised there was no legal documentation with the homeowner around access rights.
24. The resident updated the landlord about a number of issues on 8 January 2021. He said he hadn’t received the permission paperwork and the gutters and pathways were still blocked.
25. On 14 January 2021 the landlord advised the resident that the Local Council was handling the guttering issue and the homeowner had not responded to its letters.
26. On 15 January 2021 the resident notified the landlord his neighbour had cleared the front guttering.
27. On 17 January 2021 the resident contacted the Council by email about the access issue. He said the access path around the outside of the private garden was unusable because it was blocked by planters, a chicken coup, scrap timber and other assorted garden waste. Further, bushes were obstructing the front access and vehicles were frequently parked over the pathway. The issue of leaking rear guttering was also raised, and he asked for clarification of his access rights. The Ombudsman has not seen copies of the images attached to his email.
28. The resident shared the Council’s reply with the landlord on 19 January 2021. It said, since the terrace was not its property, the Council was unable to get involved. However, the resident could discuss the issues with his neighbour or the landlord who may be able to take up the matter on his behalf. However, if the property was privately owned legal advice should be sought through a solicitor or through the Citizens Advice Bureau (CAB)
29. On 22 January 2021 the landlord contacted the homeowner by email. The notes suggest the contact was established following the Council’s involvement, which prompted the homeowner to provide their tenant’s comments on the situation. The email asked the homeowner to ensure pathways to the front and rear were always kept clear and accessible. The issue of the rear guttering was also raised.
30. Later that day the resident shared findings from his own research, from the Land Registry’s deeds and other sources, with the landlord. He quoted legal text referencing a right of way, which enabled access to the rear of the property through a garden path three feet wide at the back of the property. He asked the landlord for confirmation that its deeds for the property contained similar wording. This was because he sought clarification whether he was permitted to clear the obstructed pathways himself.
31. On 26 January 2021 the landlord received an update from the homeowner. confirming the guttering had been cleared. It said, as far as the homeowner was aware, the existing arrangements did not restrict the resident’s access to the front of the property. Further, access to the homeowner’s garden should always be possible through a low unlocked gate at the rear of the property. The resident could then proceed through the homeowner’s garden to the side gate and unbolt it from the back.
32. Notes from the following day show the information given by the homeowner was relayed to the resident, who disputed his access was unrestricted. He said various items were obstructing his movement when he moved his bin to the front of the property, and he had not been given a key to the side gate. He said the homeowner should instruct their tenants clear the access paths. He also asked if the landlord would send his images to the homeowner.
33. On 12 February 2021 the landlord rejected the resident’s works proposal.
34.  On 18 February 2021 the landlord shared documents from its legal team with the resident. This was around four months after he first requested this information. The landlord restated its position that the resident had a right of access to the rear of the property via a pathway shared with the homeowner. Access to the entrance of the property was via a shared pathway that could be accessed from both ends of the terrace. It said the resident would need independent legal advice if he sought further assistance in the matter.
35. The resident acknowledged receipt of the documents the following day and raised a separate formal complaint. He confirmed the documents confirmed the information he was seeking in respect of the right of way, but he questioned why they weren’t provided earlier. He asked the landlord to contact the homeowner with the proof of access and ensure they, or their tenants, cleared the path.
36. The landlord’s stage one complaint handler emailed the resident on 26 February 2021 to acknowledge his complaint.
37. Internal notes show the landlord attended the property on 1 March 2021. A discussion was held with both the resident and the private tenants around access. They said the tenants did not object to clearing the pathway but would not clear items that were present when they moved in. Further, they felt they were not responsible for managing vegetation in their rented property.
38. The landlord issued its stage one complaint response on 3 March 2021. The main points were:

a.     The landlord’s, and his neighbour’s, position had always been that the resident had a clear right of access across the homeowner’s land, and this was not in dispute.

b.     The landlord did not generally provide deeds to tenants, but it had a responsibility to ensure access was clear and available to the resident.

c.      It made an operational decision to provide documentation for the resident’s piece of mind, but this required the involvement of its legal team which had a long response time.

d.     The landlord had previously confirmed the resident had access and therefore the fact the resident now had confirmatory documents did not alter his position.

e.     The neighbours had been advised to ensure access across their garden was clear and unfettered during the landlord’s visit. The landlord may take reasonable action if free access did not materialise.

f.        The resident was to inform the landlord if access to the property was obstructed.

39. An exchange of emails between the landlord and the resident took place on 4 March 2021 after the resident queried the landlord’s process for allocating complaints to its staff for internal investigation. In summary, he raised concerns over the thoroughness of the landlord’s investigation, its understanding of his complaint, the suitability of its stage one complaint handler and the landlord’s allocation process. During the exchange the resident asked for his complaint to be escalated to the second stage of the landlord’s procedure.
40. The landlord issued its stage two complaint response on 3 April 2021.The main points were:

a.     The homeowner’s title deeds granted the resident a right of way through their garden.

b.     The landlord recognised the resident contacted it consistently about obstructions on the pathway and had provided supporting evidence. Further, that he had been inconvenienced by the situation.

c.      The shared pathway should have been checked and cleared prior to the commencement of his tenancy and the landlord should have contacted the managing agents immediately to raise his concerns over access.

d.     The length of time taken to resolve the access issue was unreasonable and feedback had been provided internally.

e.     The landlord had refused permission for access works based on factually incorrect information. Permission would be granted with conditions, but the resident would need to seek approval from the Council.

f.        The complaint had been handled in line the landlord’s complaints procedure.

g.     The complaint was partially upheld and total of £300 in compensation was offered in respect of: an unhelpful response to the resident’s request for title deeds, £25; time, trouble and inconvenience of accessing the title deeds, £25; unhelpful response to permission for works, £50; time trouble and inconvenience of raising a complaint, £150; poor handling of the resident’s concerns prior to his formal complaint, £50.

41. During an exchange of emails between 3 and 6 March 2021, the resident disagreed with the landlord’s final response. This prompted it to confirm its decision remained unchanged and refer him to the Ombudsman.
42. On 9 April 2021 the resident detailed his outstanding concerns in correspondence to his local MP. He said the landlord had not followed its complaints policy, when allocating his complaint at stage one, because a collective agreement should have been reached about the best handler to respond to his concerns. Further, contrary to its policy, the landlord had failed to provide appropriate supporting evidence. Finally, the level of compensation awarded was disproportionate given the distress and inconvenience the situation had caused.

Assessment and findings

43. It is recognised the situation has been frustrating for the resident and the timeline confirms he has raised concerns about obstructed access on multiple occasions. It is also noted the information seen suggests the access issue is still ongoing. However, in accordance with the Ombudsman’s remit, the scope of this assessment 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 issues accordingly, prior to the Ombudsman’s involvement.

The landlord’s response to the resident’s concerns over shared access pathways

44. The timeline confirms it took around four months, between mid-October 2020 and 18 February 2021, for the landlord to provide the legal documents the resident had requested. It also took more than five months, until the point of its stage two response, for the landlord to identify that the shared access path should have been checked and cleared prior to the commencement of the resident’s tenancy. This was despite the fact the resident provided supporting images from 22 January 2021.The above represent unreasonable timescales given the circumstances.
45. While it is accepted the focus of the resident’s formal complaint was the initially the delay in providing the requested documents. It is noted that obtaining the documents was not the resident’s ultimate objective, it was to resolve the access issues. From the correspondence between the parties, and the landlord’s stage two response, it is reasonable to conclude the landlord should have been aware of this from 27 November 2020 at the latest.
46. The resident formally expressed a willingness remove obstacles himself from 22 January 2021, but he was prevented from doing so because it was unclear whether he was entitled to take such action along the right of way through the homeowner’s property. The wording of its stage two response implies obligations on the part of the landlord and the homeowner in respect of keeping the access paths clear. However, this assessment found, based on the evidence seen, the responsibilities of the respective parties remained undefined on completion of the landlord’s complaints process.
47. After the issue had been raised with the involved parties several times, the private tenants eventually told the landlord they were not prepared to remove all the obstructions. It is therefore reasonable to conclude the issue was likely to remain unresolved or could reoccur. Further, asking the homeowner, or the managing agent, to raise the issue with the tenants without clarifying their responsibilities was also unlikely to be productive. As a result, this assessment found the landlord was not sufficiently resolution focussed, in its response to the resident’s concerns over access, because it failed to clarify the situation, and this prevented progress from being made with the dispute. This represents service failure on the part of the landlord.
48. A comparison of the timeline and the level of compensation awarded with the Ombudsman’s internal redress guidance confirms the landlord’s total award of £300 in compensation is in line with the Ombudsman’s expectations for instances where misdirection has occurred, for example where a landlord has given contradictory, inadequate or incorrect information about a complainant’s rights. This is a reasonable benchmark given the above-mentioned findings concerning the shared access pathways.
49. Consequently, the level of compensation the landlord awarded was appropriate, given the circumstances, and it is noted the landlord demonstrated best practice by breaking down its award. This shows it gave appropriate consideration to the impact of its actions on the resident. However, since the offer was not accompanied by reasonable actions to clarify matters, in accordance with the resident’s underlying concerns and its knowledge of the situation, this assessment identified service failure on the part of the landlord.

The landlord’s handling of the resident’s complaint

50. In relation to the landlord’s complaint handling, its process for allocating cases internally is an operational matter for the landlord. It is noted the landlord’s objective, at the first stage of its complaints process, is the swift resolution of a complainant’s concerns. The resident’s complaint was allocated to a manager in his area, who contacted him to acknowledge the complaint before beginning their investigation. However, this service has not seen any evidence the resident objected to this manager being allocated his case at this point. As a result, it was reasonable for the manager to proceed with their investigation in line with the landlord’s objective.
51. Further, the evidence suggests the allocation took place in accordance with the Housing Ombudsman Service’s Complaint Handling Code, which recommends that complaint handlers should have access to staff at all levels, along with the authority and autonomy to resolve disputes quickly. Since the landlord’s procedure allowed the resident an independent investigation at stage two, based on providing a full report, this assessment found the landlord’s process was fair to the resident. And, having considered its policy and procedure documents, along with the Complaint Handling Code, no evidence has been seen to show the landlord is obliged to provide the resident with evidence to support its final decision on his complaint.
52. Given the above, this assessment found no maladministration in respect of the landlord’s handling of the resident’s complaint.

Determination (decision)

53. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in respect of the landlord’s response to the resident’s concerns over obstructed shared access pathways at the front and rear of the property.
54. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in respect of the landlord’s handling of the resident’s subsequent complaint.

Reasons

55. The landlord’s stage two response did not clarify the responsibilities of the involved parties with respect to ensuring shared access pathways were kept clear. The landlord could have reasonably determined that, from its correspondence with the resident, this uncertainty was a key factor behind his complaint. It could have used any clarifying information to have raised the resident’s concerns more persuasively with the other involved parties.
56. It was also aware its previous requests to the homeowner, their tenants and the managing agent had failed to resolve the access issues. Further, the private tenants had ultimately declined to remove all the obstructions along the shared path. The landlord was therefore insufficiently resolution focussed, although the level of compensation it awarded was appropriate given the circumstances, and it should have identified the issues were likely to reoccur, if indeed all the obstructions were removed in the first place.
57. The landlord’s process for allocating complaints internally is an operational matter for the landlord. The resident did not raise any concerns about the landlord’s handler at the outset of its stage one investigation, and he was able to escalate his complaint to an independent review at stage two. There is no evidence to show the landlord is obliged to give the resident the information to support its decision.

Orders and recommendations

Orders

58. The Ombudsman orders the landlord, if it has not already, to ascertain within four weeks where responsibility for clearing the shared access paths lies. Once established, the landlord should share its findings with the resident and the homeowner or their managing agent to ensure progress is being made.
59. The Ombudsman orders the landlord, if it has not already, to pay the resident the £300 in total compensation that was offered in its stage two complaint response within four weeks.