Southway Housing Trust (Manchester) Limited (202012382)

REPORT

COMPLAINT 202012382

Southway Housing Trust (Manchester) Limited

28 May 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

The complaint is about the landlord’s response to the resident’s request to be reimbursed for a parking fine.

Background and summary of events

Background

The resident is a shared ownership leaseholder of the landlord, a housing association. The lease commenced in 2020.
The resident’s lease outlines the resident’s right to park in a parking space located on the estate:
1. Section 3.27 covenants the leaseholder not to park other than in the parking space or visitor parking space.
2. Schedule 3(5) gives the resident the right to park in a parking space, while the landlord reserves the right to alter the location and number of bays in the parking area, and to temporarily close the parking space for repairs, maintenance or other works.
3. Schedule 9 advises that the parking space refers to a parking space edged green and numbered, or such other parking space as the landlord may designate.
4. A ‘plot’ plan included in the lease shows a numbered parking space edged green whose number is the number of the resident’s property.
5. A ‘parking arrangements’ plan included in the lease shows a numbered parking space in the same location, whose number matches the number of the parking bay stated on the resident’s parking permit.
6. Section 3.28.5 advises that parking spaces are not to be used for anything other than motor vehicles or motorcycles, and prevents use for other vehicle types or activities that may cause a nuisance.
The parking permit issued by the landlord’s employed parking management company advises that the landlord has no jurisdiction over vehicles enforced, and under no circumstances will they act as mediators in any cases concerning the enforcement of any vehicles.
The landlord operates a two stage complaints procedure, and aims to respond at stage one within ten working days, and at stage two within 20 working days.

Summary of events

On 29 January 2020, the resident completed purchase of her property. She has not disputed that the same day, the landlord emailed her about parking restrictions, which were to commence on 12 February 2020.
The resident explains she subsequently fell ill with Covid-19 symptoms, during which a permit was sent to her home. She explains she only saw this and the landlord’s email retrospectively, and that at the time she was too ill to locate the permit and to realise this had arrived. While the resident remained ill, her vehicle remained parked without a permit and enforcement commenced. On 19 February 2020, the landlord’s employed parking management company then issued a parking charge notice for not displaying a permit. Following this, the resident explains that she wrote to the parking management company to appeal this, which was unsuccessful.
On 29 April 2020 the resident wrote to the landlord. She explained that threatening letters from its employed parking management company and a debt company were causing distress. She noted a disclaimer on the parking permit that the landlord had no jurisdiction to mediate, but requested it help dispute the case, following advice from the Citizens Advice Bureau. She advised that the issuing of the parking charge notice and the parking restrictions generally were unreasonable. She reported there was ample parking space but the restrictions meant residents had to park in assigned spaces far away from their properties. She also reported that other residents kept parking in her space, and because of the restrictions she had to ask for the vehicles to be moved.
On 29 April 2020 the landlord issued its stage one response to the resident’s complaint.
1. It acknowledged the resident’s illness and wished her well.
2. It explained parking was limited therefore restrictions were put in place to ensure residents could park close to their property, which its employed parking management company enforced.
3. It noted that on 29 January 2020, two weeks’ notice was given before enforcement started on 12 February 2020, and that it understood the resident was unwell from 10 February 2020.
4. It advised that the permit included the bay number, so it was clear where she was permitted to park, and the car should have been moved to the correct bay between 29 January 2020 and 11 February 2020 to avoid it being ticketed. It noted that the correspondence detailed that it had no jurisdiction over vehicle enforcement and under no circumstances would it mediate in enforcement action. It advised that taking everything into account, it was unable to intervene.
The resident requested escalation of her complaint, which this Service does not have sight of, and on 18 May 2020 the landlord issued its final response.
1. It expressed sympathy with the resident’s circumstances and recognised these were stressful and difficult.
2. It noted dissatisfaction the resident raised about its employed parking management company. It advised that it had not received any other complaints about parking restrictions on the estate or its employed parking management company. It advised that feedback had generally been positive that a system was in place to ensure the correct use of parking bays.
3. It explained that when the resident completed her home purchase, she was provided information that showed her parking bay and its number, and this was also provided in documentation left at the apartment. It stated the resident was therefore aware of the parking restrictions.
4. It noted that, as the resident stated, initial communication was sent out on 29 January 2020 about the use of a monitoring company. It explained this was important to make sure parking bays were used appropriately and by the designated owner.
5. It concluded that it believed the resident had sufficient information about matters at point of sale, as well as before becoming ill. It did not agree the resident did not know her own designated parking bay and did not consider it appropriate for it to advocate with its employed parking management company on her behalf, or to reimburse her parking charge notice.
The resident raises dissatisfaction to this Service that the landlord will not intervene.
1. She provided a letter that detailed absence from work the week after parking enforcement commenced.
2. She states that she was not made aware of her parking bay prior to completion and that she was informed by landlord staff to park where necessary until a permit was sent out.
3. She states that the bay stated in her lease was not the bay assigned by the landlord’s employed parking management company.
4. She contends that the lease states that she is assigned a different bay, and that if she had followed the lease instructions, she would have been breaching the instructions of the landlord’s employed parking management company.
5. She raises dissatisfaction that her lease does not state the need to show a permit and that there is no justification for being issued the penalty charge in the first place.

Assessment and findings

The Ombudsman’s remit in relation to complaints is set out in the Housing Ombudsman Scheme (‘the Scheme.’) Paragraph 39(i) of the Scheme states that the Ombudsman will not investigate 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, a designated person, other tribunal or procedure.”
This limits this Service’s assessment of this complaint to an extent. The resident has a procedure by which she can appeal the parking charge notice issued by the landlord’s employed parking management company, and then ultimately challenge any debt recovery via the courts.
However, the Ombudsman can assess whether any act or omission by a landlord has had an adverse effect on a complainant. In doing so, this Service assesses how a landlord has dealt with reports it receives and if it has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case. While the Ombudsman can take a view on the position by reference to the lease agreement, if this is disputed, only a court can offer a definitive and legally binding decision.
This Service understands the resident’s circumstances around the time of the parking charge notice were difficult, and recognises the concerns she has reported affected and caused distress to her.
In light of the Ombudsman’s remit, this Service’s main considerations are whether reasonable action was taken by the landlord in relation to making the resident aware of her parking space and of the parking restrictions.
This Service notes that the resident does not dispute receipt of email correspondence on 29 January 2020 about the parking restrictions, or receipt of the permit, however due to it being a busy and concerning time, these were only read retrospectively.
Although this Service understands it was a difficult time, in the Ombudsman’s opinion, the landlord cannot reasonably be responsible for when its correspondence is read. This Service is satisfied that the landlord acted appropriately in giving the resident sufficient opportunity to be aware of the parking restrictions, before the restrictions started and also before she became ill.
The landlord has stated the resident was provided information that showed her parking bay and its number when she completed her home purchase. This Service notes the resident disputes being aware of her parking bay prior to completion; disputes the bay stated in the lease is the bay assigned by the landlord’s employed parking management company; and disputes justification for showing a permit/being issued parking charges.
This Service notes that the lease assigns the leaseholder an “edged green and numbered” parking space and covenants the leaseholder not to park in any other spaces (apart from visitor spaces). A supplemental page shows an estate plan, which depicts one parking space edged green, and numbered with the resident’s apartment number.
This Service notes that an additional page, which the resident refers to in correspondence, shows parking spaces with multiple numbers on them. This shows a parking space in the same location as the one “edged green” on the other page, the number of which matches the number of the parking bay on the resident’s parking permit.
From the above, there are restrictions in the lease which restrict where residents may be able to park, as well as restrictions on the use of parking spaces for other vehicles or activities that may be a nuisance. The landlord has the right to take steps to ensure that such restrictions are not breached and are enforced.
From the above, the lease also provides information that the resident’s assigned parking bay is one that is edged green, which from information this Service has seen appears to be of the same location and number of the parking bay assigned in the permit.
Accordingly, the Ombudsman is satisfied that the resident was provided information about the location of her assigned parking bay, when she completed her property purchase and before enforcement commenced. This is because this was detailed and depicted in the lease, whose contents should reasonably have been read and agreed to before being signed by the resident. As the lease is a contractually binding agreement, it was the resident’s responsibility to read and ensure that she understood the terms of her lease.
This Service notes that the relationship between the landlord and its employed parking management company is stated to limit the landlord’s jurisdiction in enforcement matters and as a mediator. While this is the case, in the Ombudsman’s opinion the landlord does nevertheless need to be mindful of ensuring its customers are treated fairly and to consider intervention in appropriate circumstances.
Although it is recognised that the circumstances were distressing for the resident, in the Ombudsman’s opinion, the landlord’s response to the resident was appropriate. This is because it investigated the issues the resident raised and provided a reasonable position on the matters which appear to be in line with the lease.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s response to the resident’s request to be reimbursed for a parking fine.

Reasons

It is not disputed that the landlord gave prior notice to the resident about commencement of parking restrictions or that she was provided a parking permit.
From the information this Service has seen, the resident’s lease provides information about her assigned parking bay, which from the evidence reflects the location and number subsequently assigned in the parking permit.
The Ombudsman is therefore satisfied, based on the evidence available, that the landlord’s response was reasonable and there is no evidence of service failure in its decision not to reimburse the resident for the fine she incurred. This is because the resident had sufficient information about matters at point of sale and before becoming ill; and the landlord provided reasonable position which appear to be in line with the lease.