Uttlesford District Council (202005573)

REPORT

COMPLAINT 202005573

Uttlesford District Council

19 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

The complaint is about:
1. The landlord’s handling of a boundary hedge maintenance dispute.
2. The landlord’s associated complaint handling.

Background and summary of events

The resident is a tenant of the landlord. The landlord is the local authority. The property is a house with a private garden. The landlord has assisted the resident with the maintenance of her garden, since March 2019, which included the maintenance of a shared boundary hedge. The resident shared this boundary hedge with the neighbouring property.
According to the landlord’s records, whilst the neighbouring property was void (empty), the landlord’s maintenance team had cut the shared boundary hedge too low, leaving the resident’s garden exposed. Consequently, the landlord installed a six-foot fence, adjacent to the boundary hedge, which then became the new boundary line, leaving the boundary hedge entirely in the neighbouring garden.
For clarity, this case references two hedges: a three-foot hedge, situated between the two properties, which is described above as being the shared boundary hedge; and a six-foot hedge, which is specified as falling within the resident’s own garden and which acts as a boundary line for the resident’s property only.
In a letter, dated 28 May 2020, the resident explained that, following on from her telephone complaint to the landlord of 27 May 2020 regarding the dispute over the shared boundary hedge, her new neighbour (who was also a tenant of the landlord) had cut at least two meters off the top and side of her six-foot boundary hedge on 26 May 2020. She said she had spoken with the neighbour about it the following day, but the neighbour would not accept that the three-foot hedge between the properties was a shared boundary hedge. She said that she had tried to explain that her own six-foot hedge were trimmed by the landlord, but the neighbour said they would cut it down again because the hedge between the properties was theirs to maintain.
In the landlord’s letter to the resident, dated 2 July 2020, confirmed that it had discussed the issues with the neighbour and the resident’s hedges would remain in the care of the landlord. The neighbour was allowed to trim anything that fell within the boundary of their property but was not permitted to trim the height of the boundary hedges, as this would be maintained by the landlord.
On 7 July 2020 the resident wrote to the landlord to report that the neighbour had again trimmed the height of her boundary hedge. She said that this was the second time the neighbour had cut her boundary hedge and it was becoming a nuisance and was affecting her enjoyment of the property.
According to the landlord’s records, it inspected the hedges on 20 July 2020, taking photographs of where the hedges had been cut.
The resident wrote to the landlord on 4 August 2020 as she was dissatisfied with how it had handled her complaint and confirmed the issue remained unresolved. She explained that her neighbour had trimmed the height of the boundary hedge three times (on 26 May, 7 July, and 4 August 2020) and as a result the neighbour was causing a nuisance to her. The resident therefore requested that the issue be investigated as an antisocial behaviour (ASB) case as it had been ongoing since 26 May 2020 and was affecting her health.
The landlord acknowledged the escalation of the complaint via letter, dated 10 August 2020, in which it stated the resident would receive a response within ten working days.
In the landlord’s complaint response of 14 August 2020, it clarified that it had spoken to the neighbour and requested that they did not reduce the height of the ‘hedge’. It also confirmed that it had inspected the ‘hedge’ on 20 July 2020 but was not able to visit the neighbour at that time, due to the restrictions on carrying out visits because of the Covid-19 pandemic. It said that now that some visits to residents’ properties were beginning to restart, it would arrange to visit the neighbour and discuss the issue with them. This, it said, would present an opportunity to clarify where the neighbour was allowed to trim the ‘hedge’ and it would reiterate that the landlord would be responsible for maintaining the height. In other words, it affirmed that the neighbour could only cut back the width of the ‘hedge’ and they were not to cut the top of the ‘hedge’.
In the resident’s letter, dated 22 August 2020, she informed the landlord that the neighbour had again trimmed the height of the boundary hedge, which involved reducing part of her own six-foot boundary hedge to three feet. This, she claimed, was the fourth time the neighbour had trimmed and reduced the height of these hedges despite being told they were not permitted to do so. She also mentioned that the staff member who had carried out an inspection was in agreement with her and told her that the maintenance of these would remain the landlord’s responsibility.
In addition, the resident reported finding dead animals at the bottom of her garden, believing the neighbour to be responsible for placing them there. She therefore reiterated her request that the landlord investigate this as part of an ASB case and intervene accordingly. She concluded by reiterating that she had been complaining about her neighbour since 26 May 2020, yet the situation remained unresolved, which was negatively impacting her health and was disturbing her quiet enjoyment of her home.
The landlord’s records state that an inspection was conducted with the resident and the resident’s neighbour on 7 September 2020. It stated that it spoke to the resident first who reiterated that the neighbour was still cutting the top of the boundary hedge and was still placing deceased animals in her garden, which she had subsequently reported to the police.
The record states that the landlord then spoke with the neighbour who explained that they had been maintaining the hedges to the height that was agreed when viewing the property before they moved in. At that time, the hedges were cut back to three feet and therefore they had been trimming their own hedges, and the hedges between the resident’s and their own property, to that height.
From its inspection, the landlord concluded that the only issue from its perspective was a slight gap in the six-foot fence in the corner of the resident’s garden; and, if this gap could be closed, it could take the hedge trimming from the landlord’s maintenance schedule, as the neighbour was maintaining the hedge to a satisfactory standard.
Upon speaking to the resident about this proposal, it was clear that she was not happy with the landlord reversing its decision to maintain the boundary hedge. The landlord reasoned that as the hedge was not visible to the resident because of the six-foot fence, there was no issue with the neighbour continuing to maintain the hedge.
In addition, it had offered independent mediation, to help resolve the dispute with her neighbour, and confirmed there was no evidence to support the resident’s claim that the neighbour had put the deceased animals in her garden. The landlord agreed written confirmation would be sent regarding the conclusion of its inspection, as well as its intention to erect a panel of fencing to fill the gap between the two gardens.
In the resident’s letter, dated 8 September 2020, she outlined her dissatisfaction with the landlord’s reversal of its decision to maintain the boundary, despite being advised that it would remain in the care of the landlord on 2 July, 10 July, and 27 August 2020. This, she said, was not a satisfactory resolution, as it was agreed more than three months prior that the landlord would maintain the boundary hedge.
The landlord’s letter of 15 September 2020 confirmed that it was intending to fill the gap identified on the visit of 7 September 2020 with a small panel of fencing, and it was satisfied that the trimming of the boundary hedge would be carried out by her neighbour and thereby taken off the ground maintenance programme, becoming the responsibility of the neighbour.
In the resident’s letter of 17 September 2020, she cited the tenancy agreement in support of her position that the neighbour should not be reducing the height of the hedge unless the ‘owner’ agrees. The resident therefore asserted that the neighbour had breached the tenancy agreement by reducing the height of the boundary hedge without permission since May 2020. Consequently, the landlord had facilitated the resulting nuisance that occurred, which included the throwing of dead animals into the resident’s garden. The resident requested that the maintenance of the boundary hedge should therefore remain in the care of the landlord, so to avoid any further nuisance.
On 5 February 2021, this Service asked the landlord whether its correspondence, dated 14 August 2020, was its final complaint response as it was not clear.
In the resident’s letter to the landlord, dated 3 March 2021, she explained that the complaint had still not been resolved and requested that the landlord intervene. She said that matters had been made worse and not better by the extra panel of fencing, because she was concerned this would be used as an excuse to cross over on to her boundary and again reduce the height of her own six-foot front hedge.
She also said that because the landlord did not respond accordingly to her reports of ASB, she had contacted the police, showed them pictures of the dead animals, and they had subsequently questioned the neighbour about this.
Furthermore, the resident questioned the safety of handing the responsibility of the maintenance of the shared boundary hedge to her neighbour and again asked that the landlord maintain the hedge as before. She maintained that in doing so this would end the ongoing harassment and ASB she had been experiencing since May 2020.
In the landlord’s complaint response of 12 March 2021, it addressed the two aspects of the complaint separately as follows:
1. It confirmed that following a visit, it was agreed that the panel of fencing would be installed to fill the gap in the hedge and thereby improve privacy. The fence panel was later installed with the resident’s prior knowledge and agreement. The landlord also confirmed there was no evidence that the dead animals came from her neighbour so no further action could be taken in this regard.
2. It confirmed that the shared boundary hedge had been taken off the landlord’s maintenance schedule because it did not routinely maintain boundary hedges. The terms of the tenancy agreement state that tenants are responsible for trimming hedges. Her neighbour was capable of maintaining the hedge and had agreed to do this. If at any point the resident or her neighbour became unable to manage their gardens, the landlord advised that it had a scheme to assist tenants in this situation, and it would be able to provide further information regarding this if required.
The landlord concluded by confirming that the neighbour’s actions did not constitute ASB so it would not be in a position to take formal action against them.
In the resident’s letter, dated 17 March 2021, she contended that the landlord’s response of 12 March 2021 had factual inaccuracies such as:
1. The panel of fencing was not installed with her agreement;
2. She did not understand why she was being given information about the garden maintenance scheme that she had belonged to since March 2019; and
3. The hedge the landlord’s response referred to is a shared boundary hedge and therefore she wanted the maintenance to return to the landlord’s care.
In the landlord’s complaint response of 30 March 2021, it concluded that it had investigated the issues raised and responded correctly to each matter. It asserted that the resident had raised the issue of the small gap during the inspection of 7 September 2020 and she had agreed that an added fence panel would increase the levels of privacy in her garden.
It explained that the landlord offers the garden maintenance scheme to cut hedges and lawns when there is no one capable of maintaining them. The particular boundary hedge was being maintained by the resident’s neighbour, who was capable and willing to cut this hedge. Moreover, the landlord had carried out an inspection of the hedge and was satisfied with how the neighbour was maintaining this. The landlord confirmed that it would continue to maintain the other hedges that formed the boundary of the resident’s garden as part of the scheme the resident paid for.
On the 8 April 2021, the landlord confirmed to this Service that the complaint response of 30 March 2021 was the stage two, final complaint response on this matter.
According to the landlord’s records, it conducted a further visit to the neighbour on 29 April 2021, which concluded that it was happy with the way the neighbour was maintaining the hedges.
On 1 July 2021, the resident informed the landlord that the neighbour had again reduced the height of the shared boundary hedge that day. She also said that she had reported that the neighbour had trimmed the shared boundary hedge on 22 April 2021 and at the same time reduced the height of her own six-foot boundary hedge. She said she had spoken to a staff member at the time and they had agreed that her hedge had indeed been cut back.

Assessment and findings

Policies and Procedures

The tenancy agreement states that the tenant is responsible for ensuring that the garden is kept clean, tidy, and manageable, by cutting the lawn and trimming any hedges or trees. A tenant is entitled to cut overhanging branches back to the boundary line of their property but cannot reduce the height of a hedge unless the owner of the hedge agrees.
The tenancy agreement defines antisocial behaviour as any act, or failure to do something, which causes or is likely to cause alarm, distress, nuisance or harassment or which interferes with the peace, comfort or convenience of other people living in the local area.
In accordance with the landlord’s ASB procedure, the landlord’s initial action is to carry out a risk assessment of the report of ASB, which includes contacting the victim to establish the basic facts of the complaint and explain the investigation procedure.
The landlord’s ASB policy states that it will explain its reasons, should it choose to take no further action on a report of ASB, and advise on self-help or other alternative courses of action whenever it is possible and appropriate to do this.
The landlord has a two-stage complaint procedure. At stage one, the landlord will aim to provide a response within ten working days and provide details of the second stage of the complaint procedure, if a tenant remains dissatisfied with the stage one response. At stage two, the landlord will also aim to provide a response within ten working days, with the purpose being to ensure that everything raised in the original complaint has been addressed.
The Ombudsman’s Complaint Handling Code sets out that, at the completion of each stage of the complaints process, the landlord should write to the resident advising them of the following:
1. the complaint stage
2. the outcome of the complaint
3. the reasons for any decisions made
4. the details of any remedy offered to put things right
5. details of any outstanding actions
6. details of how to escalate the matter if dissatisfied

Scope of the Investigation

(p.14) It is noted that the resident has mentioned that the situation has impacted her health. Whilst we do not doubt the resident’s comments, the Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be more effectively dealt with as a personal injury claim through the courts. The courts can call on medical experts and make legally binding judgements. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident. The resident may be able to make a personal injury claim against the landlord if she considers that her health has been affected by its actions. This is a legal process and the resident should seek independent legal advice if she wants to pursue this option.

The landlord’s handling of a boundary hedge maintenance dispute

(p.21) In correspondence to this Service, dated 7 July 2021, the landlord clarified that the three-foot hedge referenced in this case did not form part of the shared boundary between the resident’s property and her neighbour’s since the installation of the six-foot fence. In fact, since that point, the three-foot hedge was entirely within in the garden of the resident’s neighbour. As a result, the maintenance of the former boundary hedge lay entirely with the neighbour, as per the tenancy agreement above at paragraph 34 and would therefore not return to the landlord’s garden maintenance scheme. The landlord’s decision, therefore, that the responsibility for the maintenance of the boundary hedge would change from the landlord to the neighbour, was reasonable in the circumstances and in line with the terms of the tenancy agreement.
The landlord was expected to explain its position to the resident at the earliest opportunity, so to avoid any unnecessary confusion and provide clarity on the matter, especially as the resident had claimed that some members of the landlord’s staff were in agreement with her position. In this instance, however, the landlord did not communicate clearly, which extended the process unnecessarily and caused considerable distress and inconvenience to the resident. In fact, there is no evidence that the landlord ever explicitly clarified to the resident that the former shared boundary hedge was no longer a shared boundary line because it was now entirely within the neighbour’s garden.
For example, in the landlord’s letter, dated 2 July 2020, its states that the neighbour is allowed to trim anything that falls within the boundary of their property, but were not permitted to trim the height of the boundary hedges. Nowhere in this correspondence does it explicitly state that the boundary hedge in question was not a boundary hedge any more. This resulted in the resident believing that when the neighbour cut the three-foot hedge again, she was thereby in breach of the tenancy agreement, as the neighbour had not sought permission from the ‘owner’ before the height of the hedge was reduced. Nor does the correspondence differentiate between the shared boundary hedge (three feet) and the resident’s boundary hedge (six feet) and provide a direct response to the resident’s concerns relating to the neighbour cutting both hedges. The landlord has therefore missed the opportunity to provide an adequate response to the matter at the earliest opportunity.
Thereafter, following the resident’s escalation request on 4 August 2020 due to the neighbour trimming the height of the three-foot hedge again, the landlord had a further opportunity to clarify its position and resolve the matter accordingly. However, the landlord’s complaint response, dated 14 August 2020, again did not clarify its position and instead reaffirmed the belief that the neighbour did indeed cut the resident’s hedge, which the landlord had previously asked the neighbour not to do. It therefore said that it would visit the neighbour again to reiterate that they must not reduce the height of the boundary hedge as this duty was carried out by the landlord, thereby reinforcing the resident’s belief that the neighbour was indeed not complying with the tenancy agreement. It is noted that this response also did not differentiate between the shared boundary hedge and the resident’s six-foot boundary hedge, and simply referenced ‘the hedge’; this too did not provide clarification on the issues raised.
It was not until the landlord’s letter, dated 15 September 2020, following a visit on 7 September 2020, that some clarity on the matter was given, with the landlord confirming that the maintenance of the ‘hedge’ would be taken off the landlord’s maintenance programme and become the sole responsibility of the neighbour. Nevertheless, the landlord still referred to this hedge as being a shared boundary hedge, despite it being in the neighbour’s garden and despite previously confirming that this would remain in the care of the landlord’s maintenance team.
The landlord’s records from the inspection confirm it explained that the fence was hiding the hedging; but at no point did it explicitly confirm that the hedge was no longer a boundary hedge because of the installation of the six-foot fence. Again, no clarity was given regarding its position on the neighbour trimming the resident’s seperate six-foot hedge.
This was also the case with the subsequent correspondence provided by the landlord, dated 12 and 30 March 2021, whereby the hedge was again referred to as a ‘boundary hedge’ and at no point was it confirmed that the hedge was no longer a boundary hedge. In light of the above, this was a failure in service by the landlord to communicate effectively when addressing the boundary hedge dispute.
Similarly, the landlord failed to communicate effectively when the resident requested that the landlord intervene and address this case as an ASB case rather than a boundary dispute. In some cases, following an initial assessment of the ASB report, as per the landlord’s ASB policy above at paragraph 37, the landlord could decide to use its discretion and address the ASB report using alternative courses of action. However, it should explain its reasons for doing so, and advise on self-help or other alternative ways forward for the resident whenever it is possible and appropriate to do this.
However, in this instance, the landlord neither carried out an initial risk assessment, and nor did it explain its decision why it would not address this matter as an ASB case.
Following the resident’s initial request on 4 August 2020 that the landlord treat this case as per its ASB procedure, there is no mention of the ASB until the 7 September 2020, when the landlord’s file note of that date states that it spoke with the resident and confirmed that there was no evidence that the neighbour had placed dead animals in her garden.
There was no formal clarification (in writing) that the landlord would not address the dispute as an ASB case until the landlord’s letter, dated 12 March 2021, in which it confirmed that it did not believe the neighbour’s actions constituted ASB so it would not be in a position to take formal action.
The landlord should have clearly explained its position and confirmed how it would address the dispute following the resident’s correspondence on 4 August 2020. Because the landlord did not adhere to its obligations in accordance with its ASB procedure, this was a further failure in service by the landlord.
The Ombudsman has not disregarded the resident’s reports that her neighbour had left dead animals in her garden, which were understandably distressing for her to find. However, it is important to be aware that it is the Ombudsman’s role to assess the landlord’s handling of ASB reports rather than the ASB itself. It is not part of our role to establish whether someone has committed ASB, therefore we would not be able to say whether or not the neighbour was responsible for this. In response to the resident’s reports of dead animals, the landlord acted reasonably by speaking to the neighbour. As the neighbour denied the allegations, the landlord was not able to take any further action. It would not be reasonable for a landlord to take action against its tenants for ASB without evidence to support the allegations. The Ombudsman notes that the police questioned the neighbour but did not take any further action against them either because of a lack of evidence to confirm they were responsible for placing the animals in the garden.
In summary, because the landlord has not clearly explained its position regarding the hedges, nor clearly explained its position regarding the ASB, it has resulted in the continued confusion that ensued, prolonging the matter unnecessarily and causing considerable distress and inconvenience to the resident. As such, the overall communication aspect of the complaint does constitute a failure in service by the landlord and compensation should therefore be provided, along with formal clarification on the status of the boundary hedge, in order to resolve the matter satisfactorily.

Complaint Handling

In accordance with the landlord’s complaint procedure, above at paragraph 38, the landlord should provide details of the second stage of the complaints procedure, if a tenant remains dissatisfied with the stage one response. However, information on the complaints procedure and how to escalate the complaint was not contained within the landlord’s initial complaint response dated 2 July 2020. Also, the response did not confirm that it was the stage one complaint response, in accordance with the Ombudsman’s Complaint Handling Code, as detailed in paragraph 39.
When the resident escalated the complaint to stage two of the landlord’s process on 4 August 2020, the landlord’s complaint response of 14 August 2020 also did not confirm what stage of the complaint process the resident was at; nor did it provide details of how to escalate the complaint to this Service, if the resident remained dissatisfied. If the steps in the landlord’s complaint procedure had been followed, this should have been the landlord’s final response on the matter and stated as such in the response, including information on how to escalate the matter to the Ombudsman.
However, because the next steps and expectations were not provided, the complaint procedure was unnecessarily extended, with a final response to the matter not being confirmed until it was clarified with this Service in correspondence dated 8 April 2021, nearly 12 months after the initial complaint was raised.
It is noted that further actions were required that could not have been completed due to the restrictions during the Covid-19 pandemic. The landlord did inform the resident in its complaint response of 14 August 2020 that a further visit would be completed with the neighbour once the restrictions for visits had been lifted. However, following the landlord’s visit on 7 September 2020, the corresponding letter of 15 September 2020 also did not confirm the next steps should the resident remain dissatisfied.
Consequently, two further complaint responses were issued: one being provided on the 12 March 2021, which again did not explain the complaint stages nor provide details of the next steps and expectations; and the other on 30 March 2021, which also did not specify the stage of the complaint nor provide the next steps.
In short, the landlord’s lack of clear next steps and expectations has contributed to the unnecessary length of the complaint procedure, which in total had taken approximately ten months to conclude. This was a failure in service by the landlord and therefore further compensation should be provided to put matters right for the resident as detailed below.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in way the landlord handled the boundary hedge maintenance dispute.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord for its associated complaint handling.

Reasons

The landlord’s decision to not continue with the maintenance of the former three-foot-high boundary hedge was reasonable in the circumstances and in line with the terms of the tenancy agreement. However, the landlord’s communication regarding this matter did not act to clarify the situation: that the hedge no longer formed the boundary line and was entirely within the neighbour’s garden. This omission was a failure on the landlord’s part and extended the matter unnecessarily. The landlord has also not adequately responded to the resident’s concerns about the separate six foot high hedge which is in her own garden.
Furthermore, the landlord’s complaint response did not communicate the next steps and expectations in accordance with its policies and procedures and in accordance with the Ombudsman’s Complaint Handling Code.
These failings would have caused distress and inconvenience to the resident and the landlord should offer her compensation to reflect this, as set out below.

Orders and recommendations

The landlord is ordered to:
1. Write to the resident and formally clarify its position regarding the ‘shared boundary hedge’ including both the three foot high hedge and the separate six foot high hedge.
2. Pay compensation of £150.00 to the resident for its poor communication
3. Pay compensation of £100.00 to the resident for its poor complaint handling.
The total amount of compensation to be paid is £250.00.
The above actions should be completed within 28 days of the date of this report.
It is recommended that the landlord:
1. Review this case and consider whether further training is required for staff who deal with ASB to ensure that its ASB policy is followed appropriately going forward.
2. Consider staff training to ensure complaints are handled in accordance with its policies and procedures and in compliance with the Ombudsman’s Complaint Handling Code.