Southway Housing Trust (Manchester) Limited (202210234)

REPORT

COMPLAINT 202210234

Southway Housing Trust (Manchester) Limited

21 August 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

The complaint is about the landlord’s response to the resident’s concerns about rights of access over shared pathways and the associated reports of antisocial behaviour by her neighbour.
The Ombudsman has also considered the landlord’s complaint handling.

Background

The resident has an assured tenancy with the landlord which is a housing trust. The tenancy commenced on 30 January 1995. The landlord’s records state that the resident has a “long standing illness.” The resident describes herself as disabled.
The property is a 2 bedroom ground floor flat. The neighbour living in the property above is a leaseholder.
The resident’s property is accessed through a door at the front of the building. The landlord installed a driveway, also at the front of the property, which provides direct access to her front door. There is a path to the side of the building leading from the public highway at the front of the building to the resident’s rear garden and her neighbour’s front door. There is also a path across the front and rear of the building.
The resident contacted the landlord in 2022 regarding ongoing concerns about rights of access over the shared pathways. The landlord wrote to the resident on 26 May to explain who had rights of access over which areas. On 8 August a further letter was issued to the resident by the landlord’s solicitor setting out the same. The resident contacted the landlord to report that her neighbour had put a padlock on the gate to the side path, which meant she could not access it from the highway. She also reported associated Antisocial Behaviour (ASB) caused by the neighbour, including verbal abuse when she tried to use the side path.
The resident made a stage 1 complaint on 24 August 2022, the main points being that she:
1. Had been trying to resolve the boundary issue for the past 4-5 years.
2. Did not feel the recent solicitor’s letter clearly set out who had access over which areas of land.
3. Felt victimised by her neighbour and was “frustrated” that the landlord had not investigated her concerns about associated ASB.
4. Was being prevented from accessing the shared pathway to the side which she wanted to use for purposes such as receiving deliveries.
The landlord provided its stage 1 complaint response on 28 October 2022, as follows:
1. It did not own the gate and the lock fitted to the gate belonged to her neighbour.
2. The resident could still access the side path and her rear garden even if the gate was locked because the path through the locked gate had another small gate which could be accessed from her front garden.
3. The path belonged to the resident’s neighbour but she did have a right of access.
The resident made a stage 2 complaint on 2 November 2022, as follows:
1. She had asked for an appointment but was ignored. She went into the office and was told someone would contact her but they failed to do so.
2. She had a legal right of access to the path so there should not have been a lock on the gate.
3. Her neighbour should not use the path under her front window via her private drive as the landlord had “encouraged” him to do.
4. The landlord failed to respond to her concerns about associated ASB.
The landlord provided a stage 2 complaint response on 17 March 2023, the main points being:
1. Her neighbour put a padlock on the gate at the end of the path leading onto the highway. She put a lock on the gate to her rear garden preventing her neighbour’s access to the other shared path which they had a right to access.
2. It had written to both parties to ask them to attend a meeting at its offices on 20 October 2022 and 3 February 2023. Neither meeting went ahead due to at least one or both parties being unable to attend.
3. It did not own the gate or padlock, these belonged to the neighbour.
4. While the resident had a right over the path she could also access the path and rear garden via her front driveway. Therefore, she could still access the full length of the path highlighted in green on letter sent by its solicitor’s letter of 8 August 2022.
5. It did not uphold the complaint.
When the resident contacted this Service in June 2023 she was dissatisfied with the landlord’s explanation as to who had access over which areas and why.
In a telephone call to this Service on 9 August 2024 the resident said issues with access being restricted through the gate and the associated ASB were ongoing.

Assessment and findings

Landlord’s obligations, policies and procedures

The landlord’s ASB policy says that when someone reports ASB they will be listened to, treated with respect and dignity (…). It will respond to reports of ASB in a timely manner, based on risk and priority.
Its complaints policy says it:
1. Aims to respond to stage 1 complaints within 10 working days and to stage 2 complaints within 20 working days.
2. If it cannot adhere to these timescales it will explain why and agree a date the resident will receive it.
3. Will address all points raised in the complaint and provide clear reasons for any decisions (…).
Its customer compensation policy states that it will consider paying discretionary compensation for service failure (…). The amount offered will be based on the impact of the service failure on the resident and their household.

Scope if the investigation

The evidence shows that the landlord corresponded with the resident about her concerns regarding rights of access as early as 2020. However, this investigation has focussed on the landlord’s handling of the resident’s recent concerns from 2022 onwards, as these were considered through its recent complaints investigation. This is because residents are expected to raise complaints with their landlord in a timely manner so that it has a reasonable opportunity to consider the issues whilst they are still ‘live,’ and while the evidence is available to reach an informed conclusion on the events that occurred.
During the resident’s correspondence with the landlord about rights of access she also raised issues relating to pests and scaffolding. These issues were determined by the Ombudsman on 30 July 2024, case reference 202203674.

Rights of Access

The landlord’s file note dated 23 May 2022 says that the resident went to its offices to raise an issue with her neighbour.
The landlord wrote to the resident on 26 May 2022, enclosing a map, to set out in clear terms who had rights of access over which areas of land. It set out that rights of access were restricted to reasonable access only. It gave a definition of what this meant and gave appropriate examples. It offered to refer the resident and her neighbour to mediation. It also advised the resident that she could seek her own legal advice if she wished. This was an appropriate initial response.
On 30 June 2022 the resident emailed the landlord to report that her neighbour was verbally abusing her when she used the shared pathway. She asked the landlord to start an ASB investigation and to refer her and her neighbour to mediation. The landlord failed to provide a response which was inappropriate, causing disappointment and distress.
Furthermore, there is no evidence that the landlord considered opening an ASB case in line with its ASB policy which was inappropriate. If it did not consider it appropriate to do so it should have written to the resident to set out the reason for its decision. There is also no evidence that it made a referral to mediation which was inappropriate given that the resident had accepted its offer to do so. This compounded the disappointment caused and further eroded the resident/landlord relationship.
The landlord’s file note dated 30 June 2022 said the resident had phoned to report that her neighbour had padlocked the gate so she could not access the pathway. The landlord called the resident that same day and left a message to advise that it would visit the following day.
A file note dated 1 July 2022 states that the neighbour had placed a padlock on the gate. It noted that because the resident had a side gate she could still access her bins. It said it would seek legal advice with a view to contacting the neighbour to ask them to remove it. This was an appropriate response in the circumstances.
The resident emailed the landlord on 5 July 2022 to chase a response regarding removal of the padlock. The landlord’s file note dated 7 July said it intended to hold a meeting to discuss the situation and would update the resident accordingly. However, there is no evidence it did so which was a failure. This caused the resident inconvenience, time and trouble when she emailed again on 19 July to seek an update on both the padlock and her reports of ASB.
There is no evidence that the landlord responded to the resident’s ongoing reports of ASB which was inappropriate. However, it appropriately arranged for its solicitor to write to the resident on 8 August 2022 to further clarify the position with regards to rights of access.
The letter enclosed an additional map setting out the areas in question. It reiterated that access by either party over each other’s land should be “reasonable” and that excessive use could amount to a nuisance. It reminded the resident that she must not interfere with her neighbour’s rights to access the pathways which belonged to the landlord for all reasonable and proper use such as window cleaning. It confirmed that the resident could access the path to the side from her driveway and the path which passed her front window. It said she only needed to continue down the pathway to the highway on occasions such as putting the bins out.
On 10 August 2022 the resident attended the landlord’s offices to discuss the letter of 8 August. She confirmed that she would like to attend mediation and asked when the lock on the gate on the side path would be removed. The landlord emailed the resident on 12 August to confirm it had referred her enquiry to the relevant team who would look into it. There is no evidence that the landlord provided a response which was inappropriate.
This caused the resident inconvenience, time and trouble when she called the landlord’s solicitors on 24 August 2022. She again raised that the gate was locked and that she would like to have access for things like deliveries. This was not an unreasonable request and was consistent with the definition of reasonable and proper use. The solicitor recommended to the landlord that it investigate if there was a lock on the gate.
There is no evidence that the landlord took any further action regarding the lock on the gate either following its file note of 1 July 2022 or the solicitors’ recommendation made on 24 August. This was inappropriate because although the resident could gain access to the path itself she could not do so from the highway. This restricted the extent to which she could use the path for reasonable access which was inappropriate. It is unclear why the landlord did not progress this issue and therefore, its inaction was unreasonable.
The resident emailed the landlord on 30 August 2022 to say she had not received any responses and the gate was still locked. The landlord replied on the same day to say her query had been passed to the complaints team. The resident emailed the landlord again on 7 September to chase a response. The landlord’s lack of communication with the resident suggested that it did not take her reports seriously, causing distress and inconvenience.
The resident emailed the landlord on 14 and 15 September 2022 to request that it arrange for the lock to be removed from the gate. The landlord’s stage 1 complaint response of 28 October dismissed the resident’s concerns about the lock, advising she could still access the pathway via other means. This was inappropriate because it failed to consider that the locked gate obstructed the resident’s access to the path from the highway.
On 12 October 2022 the resident emailed the landlord to ask that the lock be removed and an update provided. The email was forwarded to the housing team on 18 October. However, there is no evidence that a response was provided to the resident which was inappropriate.
The resident raised the issue of the lock again in her stage 2 complaint of 2 November 2022, adding that it was still in place. She reasonably argued that because she had a right of access the gate should not be locked and she asked that it be removed.
The resident also said that her neighbour could not access the path under her window. Unfortunately, the resident’s statement was incorrect. It is acknowledged that the resident may not approve of her neighbour using this path given her concerns around ASB. However, the plans showed her neighbour had a legal right of access over the shared path, albeit only for reasonable and proper use. There was no evidence to suggest that it was not being used as such.
On 16 November 2022 the resident emailed the landlord to say the gate was still locked. The landlord replied to say her query had been forwarded to the complaints team. The resident emailed the landlord again on 18 February and 13 March 2023 to request an update regarding the locked gate and ASB. There is no evidence that a response was provided which was inappropriate.
The landlord’s stage 2 complaint response of 17 March 2023 failed to set out why it had not taken action to have the padlock removed. It also failed to acknowledge the detriment caused to the resident by not being able to access the path from the highway which was unreasonable.
This investigation acknowledges that the landlord made several attempts to clearly set out the position with regards to rights of access in writing. It is also noted that the landlord tried to arrange to meet with both residents in an effort to resolve the dispute.
However, outside of the formal complaints process the resident chased the landlord twice regarding the ASB issues and 13 times regarding the lock on the gate. It repeatedly failed to provide a meaningful response to her concerns which was unreasonable, causing her distress and inconvenience. Furthermore, it failed to use the complaints process to resolve the substantive issue.
Considering the above, the failures of service amount to maladministration. This is because there were several, avoidable failures which adversely affected the resident. The landlord has been ordered to pay £600 to the resident. This is consistent with the Ombudsman’s remedies guidance where there was a failure which had a significant impact on the resident.

Complaint handling

The Ombudsman’s Complaint Handling Code (the Code) says that a resident does not have to use the word ‘complaint’ for it to be treated as such. A complaint that is submitted via a third party must still be handled in line with the landlord’s complaints policy.
The landlord’s stage 1 complaint response of 28 October 2022 referred to the date of the resident’s stage 1 complaint as 30 September. However, the solicitor’s email to the landlord of 24 August set out that the resident had made a clear expression of dissatisfaction during their conversation. Therefore, this investigation considers that to be the date she made her complaint.
Furthermore, the landlord failed to raise a stage 1 complaint causing the resident inconvenience, time and trouble when she had to contact this Service for assistance. We contacted the landlord on 30 September 2022 to request that it provide a response.
The Code says that stage 1 complaints should be acknowledged within 5 days of receipt. The landlord failed to do so, causing uncertainty for the resident.
The landlord issued its stage 1 complaint response on 28 October 2022. This was 60 working days after the complaint was first raised by the resident and 50 working days out of time. It is unclear as to why the delay occurred and it was therefore unreasonable.
The resident made her stage 2 complaint to the landlord on 2 November 2022. However, it failed to respond causing her inconvenience, time and trouble when she chased a response on 15 December. The landlord failed to respond again so the resident was caused further inconvenience when she contacted this Service for a second time to request assistance.
We wrote to the landlord on 3 March 2023 to request that it provide a response by 17 March. The landlord issued its stage 2 complaint response on 17 March. This was 159 days after the resident requested escalation of her complaint and 139 working days out of time. It is unclear as to why the delay occurred and it was therefore unreasonable.
The Ombudsman’s dispute resolution principles are to be fair, learn from outcomes and put things right. The landlord failed to adhere to the timescales set out in its policy and failed to contact the resident to agree a new response date. Due to the delays it took the resident 7 months to exhaust the landlord’s complaint procedure which ultimately delayed access to our Service for us to undertake an investigation.
It failed to provide an explanation for the delays and failed to identify what it would do differently. In doing so it failed to demonstrate a willingness to improve its complaint handling service. Furthermore, it failed to acknowledge the delay and consider how it could put things right in both its stage 1 and stage 2 response. This was inappropriate because it was not in line with its compensation policy.
The landlord’s complaint policy and the Code require the landlord to respond to all the points of the complaint. In her stage 1 complaint of 24 August 2022 the resident said she felt victimised by her neighbour and was “frustrated” that the landlord had not investigated the associated issue of ASB. The landlord’s stage 1 complaint response of 28 October failed to address this point. Therefore, it failed to adhere to both its complaints and ASB policy which was inappropriate.
The resident raised the issue of ASB again in her stage 2 complaint of 2 November 2022. It is acknowledged that the landlord referred to 2 attempts to meet with both parties to resolve the dispute. However, it failed to provide a clear response to the resident about her feelings of being victimised in accordance with its ASB policy. That it did not do so was a further failure to adhere to its policies.
The delays and failure to address all the elements of the resident’s complaint amount to maladministration. This is because they had an adverse effect on the resident causing her distress, inconvenience, time and trouble. The landlord had been ordered to pay the resident £350 which is consistent with the Ombudsman’s remedies guidance where there was no permanent impact.
This investigation notes that there was also maladministration in the landlord’s complaint handling in case reference 202203674. This has been considered in the orders below.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s response to the resident’s concerns about rights of access over shared pathways and the associated reports of antisocial behaviour by her neighbour.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s complaint handling.

Orders

Within 4 weeks of the date of the determination the landlord is ordered to:
1. Pay the resident £950 compensation, comprised of:
  1. £600 for the distress, inconvenience, time and trouble caused by its response to the resident’s concerns about rights of access over shared pathways and the associated reports of antisocial behaviour by her neighbour.
  2. £350 for the distress, inconvenience, time and trouble caused by its complaint handling failures.
2. Arrange for a member of the senior leadership team to apologise to the resident for the failures identified in this report. This should be given verbally or in writing depending on the resident’s preference (if verbally it should be confirmed in writing). A copy of the letter should be provided to the Ombudsman, also within 4 weeks.
3. Write to the resident to:
  1. Provide a response to her complaints of ASB in line with its current ASB policy and procedure.
  2. Set out its position with regards to the lock the resident’s neighbour has put on the gate.

A copy should be provided to the Ombudsman, also within 4 weeks.

Within 6 weeks of the date of the determination the landlord is ordered to undertake a review of its complaint handling failures to identify what went wrong and what it will do differently. A copy of the outcome should be provided to the resident and the Ombudsman, also within 6 weeks.
Within 8 weeks of the date of the determination the landlord is ordered to arrange for its complaint handling staff to complete the complaints handling module on the Ombudsman’s learning hub. Evidence of compliance should be provided to the Ombudsman, also within 8 weeks.