Sovereign Housing Association Limited (202014317)

REPORT

COMPLAINT 202014317

Sovereign Housing Group

3 August 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. The complaint is about the landlord’s response to the resident’s request that it install a gate to the resident’s shared garden. 

Background and summary of events

2. The resident occupied a 2-bedroom bungalow under an assured tenancy with the landlord which began on 22 April 2019. The tenancy agreement stated that the property included a garden and any shed or fence let with it. The agreement did not specify the garden was shared , but it was not disputed the property was let with a garden that was shared with her neighbour. 

Policy framework

3. The landlord’s complaint policy stated that it would seek to ensure an issue did not result in a complaint. It would not close a complaint until it had tried everything that it believed it could reasonably have done to resolve it. It would aim to agree a solution within ten working days. The complaint procedure consisted of a two-stage process. If the tenant was not happy with the outcome of stage one, it would escalate to a second stage, and make a decision within 20 working days.

Chronology

4. The Ombudsman has not seen any documentary evidence prior to 9 July 2020, however it appears, from the context of an email from the resident to the landlord of 9 July 2020, that the resident had raised concerns about the garden, and in particular that there was no gate to the garden, and that the landlord had arranged to visit the property sometime prior. In her email, the resident apologised for missing the landlord’s visit, but she was happy it would be inspecting the garden. She reported that, given the garden had no gate, anyone could just walk in, which was a regular occurrence. She enquired whether the landlord would install a gate, as she felt exposed and unsafe, and unable to be in the garden without being approached.
5. The resident chased a response to her request on 28 July 2020. She requested that if the landlord refused her request, she be given permission to fit a gate herself, and she would seek reimbursement for this.
6. The landlord replied on 29 Jul 2020, stating that it had inspected the property and considered the request. It would not agree to the request as it was a shared garden, and because the property was a new build.
7. The resident replied on the same day, stating that all other properties in the area had gates. She did not understand why the garden being shared was a reason for not erecting a gate. It was her understanding that her neighbour would agree to a gate being installed. She repeated her concerns regarding the lack of privacy in the garden, and in relation to her security. She felt it would be a straightforward task, and as the landlord did not maintain the garden, restricting access would not be an issue for the garden maintenance team. She asked to escalate her request, and she also stated there had already been a delay in the landlord’s response to her request.
8. On 30 July 2020, the landlord treated her email as an escalation of a complaint.
9. According to the landlord’s records, it made enquiries with its legal department as to whether there was any legal reason for not being allowed to erect a gate. In the landlord’s view, a gate was not required, and it was not something it would do.
10. On 7 August 2020 while the landlord noted internally that a gate did not contravene any legal agreement in relation to the land, it still would not be authorised.
11. On 20 August 2020, the landlord wrote to the resident with its second stage complaint response that the original building plans did not identify the need for a gate. The path led to a communal garden and a number of sheds used by other residents. It refused her request on that basis.
12. On 15 October 2020, the neighbour wrote a letter to state he agreed to the installation of a gate for the shared garden. The letter stated that the gate was required for “multiple reasons”, including security. The resident has informed the service that the letter was provided to the landlord, however there is no evidence when this letter was provided to the landlord. The landlord has not confirmed either way.
13. The resident referred her complaint to the Housing Ombudsman Service. On 26 May 2021, this service invited the landlord to consider local resolution, as an alternative to an investigation. It passed on the resident’s comments on her position, including her concerns about anti-social behaviour (ASB). As a result of the request, the landlord considered the matter further. According to the landlord, it was not aware that the resident had offered to pay for the gate. It considered whether there was an area available to the resident which would provide privacy. It noted that the garden would be overlooked by neighbouring properties in any event.
14. The landlord also investigated whether the resident had reported anti-social behaviour (ASB) at the property. According to the landlord‘s records of 8 June 2021, it was only aware of one incident, when she reported that she was looked at and a comment was made. The landlord was sure that the neighbour was adamant that he did not want a gate. It considered that any difficulty the resident experienced was at the side of the bungalow, which could not be made private.
15. On 15 June 2021, the resident informed this service that she had revoked her offer to pay for the gate.
16. The landlord wrote to this service on 16 June 2021. It understood that the resident felt she had no privacy in her garden, as it is left open to the public, she did not feel safe and she felt unable to sit in her garden during the summer. It explained that the garden was a “communal” garden for two bungalows, and the resident did not have exclusive rights to it. It explained that the garden had a high fence surrounding it on two sides, and high shrubbery to a third side. The location of the sheds also provided an area of privacy in the grassed area. The pathway was at the end of a cul-de-sac leading to the two bungalows, with no throughway to the public. It was only aware of one report of ASB reported some time ago. It upheld its original decision not to install a gate because it considered there was privacy, and the sheds afforded a secure means of storage. It said the neighbour did not want a gate installed. It had no record of the resident offering to pay for the gate, however, this would have made no difference to its decision. Given the property was offered with a communal garden, it upheld its decision.

Assessment and findings

17. The Ombudsman’s role is not to make a decision on whether there should be a gate or not, but to investigate the landlord’s response to a request made to it. The landlord did not have a legal obligation to erect a gate to the property. This was not an issue of disrepair. While the tenancy agreement stated that the property was let with a garden, and did not state it was a shared garden, there was no dispute that the garden was shared, or that the property was let to the resident without a gate in place. However, the Housing Ombudsman would expect the landlord to consider the resident’s request, and the reasons why the request had been made, before reaching a decision. It should then offer an explanation as to the reasons why a request has been agreed or not.  
18. There is no evidence of the date when the resident first made a request for a gate to be erected, but it would be reasonable to conclude, from the context of the email correspondence, that it was not long before 9 July 2021. The landlord acted reasonably by inspecting the property and considering the resident’s request. The landlord’s initial stance, that erecting a gate was something it simply would not do, was unhelpful, and it did not address the resident’s concerns. It was also misleading in that it stated that the reason for its refusal was due to the fact the property was a new build. This did not transpire to be the case, as the landlord’s legal department demonstrated when it confirmed that there was no legal reason not to erect the fence. It also explained that the gate could not be erected as it was a shared garden. It did not however expand on that explanation, or make clear why that was a reason for its decision. 
19. The landlord should have ensured it provided a clear explanation and accurate response, in order to ensure the resident was provided with correct information. Misleading information can damage the landlord and tenant relationship. However, whilst this initial response was unhelpful, the landlord did later clarify its position, and there was no significant impact on the resident, as the outcome was still the same. However, while it is recognised the landlord’s resources are limited, it is recommended that the landlord ensures its reasoning is fuller and clearer, in order to provide clarity and transparency to a resident.  
20. The landlord exercised its discretion reasonably in escalating the resident’s request to stage two of its complaints procedure. This resulted in the landlord investigating the matter in more depth, and by more senior personnel, which is essentially what the resident was requesting.
21. The landlord’s second response of 20 August 2020 was more detailed, and followed a more in-depth investigation. It had investigated the legal position, it considered the original building plans and that the path led to a communal garden, and was used by other residents. It did not make clear who used the sheds at that time, but it is reasonable to conclude a gate would block access to the sheds. 
22. Had the landlord refused to erect a gate because of the cost, this would have been reasonable, as a social landlord is entitled to preserve its limited resources. However, it is evidenced that resources were not an issue. The landlord stated that, even if the resident had offered to pay for the fence, it would not have made any difference. Equally, it was reasonable for the landlord not to agree to a third party erecting the gate, as it was responsible for the land and what was on the land. It would be a matter of good practice not to allow contractors over whom the landlord would have no control, to erect structures on its land.
23. While the period following the conclusion of the landlord’s internal complaints’ process is usually beyond the remit of an investigation by the Ombudsman, in this case, the service asked the landlord to consider the matter further. By so doing, the landlord investigated the matter yet further and provided yet more clarification for its refusal. It investigated the resident’s further points, which included that she had suffered ASB, and that she had offered to pay for the fence. It also considered afresh the resident’s desire for privacy. It found that there was only one historical report of ASB, that the fence and outbuildings provided privacy and that a gate, in its view, would not provide additional privacy. It explained to this service that the garden had a high fence surrounding it on two sides and a high shrubbery to a third side. The location of the sheds also provides an area of privacy on the grassed area. The pathway was at the end of a cul-de-sac leading to these two bungalows with no throughway to the public. This explanation, in the Ombudsman’s view, was reasonable.
24. It was reasonable for the landlord to take into account that the property had been offered to the resident with a shared garden without a gate, and therefore the resident would have no legitimate expectation or contractual right to a gate. The landlord had made its own enquiries, and had ascertained that the neighbour did not want the fence. While this finding contradicts the letter from the neighbour of 15 October 2020, there is no conclusive evidence that the letter was ever presented to the landlord. In any event, the neighbour may have changed his mind.
25. The landlord considered the matter in detail. It investigated the various issues that the resident had raised, including those made after the conclusion of internal complaints procedure. Considering the matter fully and afresh was an appropriate response by the landlord.
26. The starting point for the decision in this case is that the landlord is entitled to plan the layout of its land as it chooses, unless there is some legal obligation to prevent it. There was none. In the Ombudsman’s view, the landlord gave due consideration to the resident’s concerns and in fully considering the resident’s request. Its own complaint policy required the landlord to seek resolution. The landlord did what it reasonably could by considering the matter. It noted that it had only received one report of ASB, it considered the level of privacy in the garden, it also considered the wishes of the neighbour who shared the resident’s garden.
27. While it is understandable that the resident would have liked privacy, there was no evidence of service failure on the part of the landlord, and it had no obligation to meet the resident’s request in these circumstances.   

Determination (decision)

28. In accordance with paragraph 54 of the Housing Ombudsman scheme, there was no maladministration in the landlord’s response to the resident’s request.

Reasons

29. While it should have provided a more considered response earlier in the process, there was no obligation on the landlord to erect a gate. Nevertheless, the landlord reasonably investigated and considered all the points raised by the resident.  

Recommendations

30. The Housing Ombudsman recommends that the landlord ensures that its responses are accurate and evidence-based, and gives clear, fully–reasoned explanations for its decisions in order to promote clarity and understanding for the resident.