Wolverhampton City Council (202116971)

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REPORT

COMPLAINT 202116971

Wolverhampton City Council

23 February 2023

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 concerns:
1. The landlord’s response to concerns about the information provided at signup regarding parking and the suitability of the property.
2. The landlord’s handling of a report about a privacy issue.

Background

The resident is a secure tenant. The introductory tenancy dated 4 March 2021, stated that after the introductory period had finished the tenancy would convert to become a secure tenancy.
The property is a one bedroom “low-rise” ground floor flat. The landlord is an Arms-Length Management Organisation that manage properties owned by the Council.
The resident has vulnerabilities, she has medical conditions including arthritis and diabetes. The landlord however told the Ombudsman that it had no vulnerabilities recorded.
In her 24 October 2021 communication, the resident told the Ombudsman that she believed a lack of a duty of care shown by the landlord had caused a significant decline in her physical health, mental health and wellbeing.
It is not the role of the Ombudsman to investigate if there was a causal link between reports of health issues experienced by the resident and the actions of the landlord. The resident may wish to seek legal advice about this, as a personal injury claim may be a more appropriate way of dealing with this aspect of the complaint. As this type of claim is more appropriately dealt with by a court or other procedure, this allegation will not be investigated.

Summary of events

On 26 January 2021, the landlord wrote to the resident and advised that its medical panel had assessed the medical evidence provided in support of her application for housing and that she had been awarded priority status (band two).
The resident placed a bid on the property on 4 March 2021, after viewing it on the landlord’s choice-based letting system, she then viewed and received the keys for the property on the same date.
On 13 May 2021, the landlord’s Tenancy Officer (TO) wrote to the resident regarding a matter she had raised relating to parking. They advised the two parking spaces on the driveway at the property were for her neighbour’s sole use as they paid for it to be built approximately 30 years ago. The HO said that the advert for the property did not state that there were any parking facilities. They also confirmed the resident was responsible for maintaining the left-hand side of the rear garden and reference map that they had provided to the resident.
On 14 May 2021, the resident replied saying the landlord was aware of her health conditions before she was offered the property. She said that being offered an adapted property without stairs was “wonderful”, however, it defeated the purpose if parking was 50 metres away from her front door. She said needed (nearby) parking.
On 17 May 2021, two officers from the landlord visited the resident at the property to explain the front and rear boundaries.
On 25 May 2021, the resident emailed the TO advising that earlier in the day, she had been startled by a man who was in her private gated garden with a ladder up against the lounge window. She said he was at the bottom of the ladder facing her and that she went back into her bedroom to get dressed but he came and put the ladders up against her bedroom window whilst she was getting dressed. This was unacceptable.
The resident said she was unhappy that her neighbour did not think it would be courteous to ask her if their contractor could enter her garden. She asked the TO to urgently contact the neighbour about this issue as she did not agree to grant access. She attached a six second video of the man from her bedroom window.
On 28 May 2021, the resident raised a formal complaint with the landlord. Within her complaint, she referenced the assessment of her application by the medical panel on 26 January 2021. She said that the medical correspondence they received from hospital consultants confirmed the status of her health, including a diagnosis of hip and spinal arthritis.
The resident stated that during the viewing of the property on 4 March 2021, she saw two parking spaces with one space occupied by the upstairs’ neighbour’s car. She said the landlord’s two officers did not point out that they were for the sole use of neighbour. She therefore felt it was safe to assume that one of the spaces would be for her property. After moving into the property, the neighbour advised her that she could not park on the drive as both spaces were for their sole use.
The resident explained that arthritis was a painful condition that caused considerable physical pain in her hip and spine particularly when she had bags of grocery shopping. She said it was a 40-50 metre walk from the street to her front door and that this situation was causing her psychological distress. The resident said, therefore, she requested a ‘hard standing’ on or beside the drive, near her front door.
The resident also raised a concern about the landlord’s TO who had incorrectly told her that the upstairs neighbour had “bought” the parking spaces. She said its TO had also failed to advise her of her options regarding parking since she moved in. Additionally, its TO relayed a request from the upstairs’ neighbour for her to park her car further away from the path into the property to make it easier for them to reverse out of the drive. She informed the TO that she always ensured she parked avoiding the drop kerb. As such, the resident felt its TO had not shown due care or treated her equally.
She also felt unable to trust the information its TO had provided regarding the boundary at the front garden. In response to her initial request for details of the property boundary she was told “ask the neighbour”, although the TO later provided her with a map advising her the areas she and her neighbour were responsible for.
The resident also reiterated her concern about the incident with the window cleaner in her rear garden. She said she had emailed the TO explaining the distress this had caused and asked her to speak to the neighbour and inform them that she did not agree to any of their contractors entering her rear or front gardens. It was commonplace to clean external first floor windows from inside the property.
The resident said the TO dismissed her experience stating that the upstairs neighbour would let her know when the window cleaner would be there and in her garden. The resident reiterated that the garden was private, and she should not be forced to permit people to enter at their own convenience, invading her privacy. She said that she felt “bullied” and she had a right to ‘peaceful enjoyment’ of her home and living without interruption. These two issues had negatively impacted her mental wellbeing. The resident said legally, she should be able live in the property in peace without disturbance from the landlord or other tenants. This had not happened since she had moved in.
On 11 June 2021, the landlord’s Tenancy Manager (TM) provided a stage one response. Within its response it explained that whilst the medical panel awarded her priority status which allowed her to bid for one level accommodation, unfortunately, this did not stipulate any requirement for off road parking or parking with direct access to a front door. The landlord explained that if this was needed then an applicant needed to bid for properties with parking stipulated in the advert at the time. It said that alternatively, once successful in obtaining a property, the applicant could then make a direct application to the Council’s O.T team to see if a driveway/hardstanding could be installed due to medical conditions. The landlord said it was sorry if this was not explained fully at the time of her application but it could confirm the advert for the property did not state off road parking.
It was understandable why during the viewing, she thought the parking spaces were for both flats, however this information was not directly available to its officers at the time of her viewing. A detailed map of her outside area and the area that belonged to the neighbour had now been provided to her. The landlord said that there were three options available to residents in regards to off road parking:
1. Contact the Council’s Occupational Therapy (OT) team. They would assess if parking facilities were required and proceed with providing this if they found to be required. It provided a link for the team.
2. Apply for its tenant buy in scheme. It would arrange all of the work for her and it would pay 40% of the cost, up to £1,000 and the resident paid the balance.
3. She could speak to her own contractors to provide a hardstanding, but it would need to give permission. It provided a link to apply for permission.
It explained that its TO was new to the position and was still learning some aspects of the role and gaining experience. As a result, on occasions, she needed to seek advice and guidance from her colleagues when approached with queries she was unable to answer immediately. The TO’s manager had discussed with her the issues the resident had raised in regards to her not providing her with clear advice on queries put to her regarding her tenancy. It said improving this aspect of her role was part of the HO’s continued training plan.
With regards to the quiet enjoyment of her home, the landlord said it understood why issue described with the window cleaner came as a shock to her, however, it was unable to advise her neighbour that they cannot have their windows cleaned. It had asked its HO to speak to the neighbour to request that they inform her of the date and time prior to the window cleaner attending so that she could prepare. It was sorry about her experience with its TO, however, hoped that she felt reassured that her concerns had been listened to, acted upon, and responded to appropriately.
On 14 June 2021, the resident sent the landlord a stage two complaint. She said in regards to the parking issue:
1. The medical panel were aware of her health condition, therefore the landlord should be aware that parking was a necessary adaption.
2. She was unable to view the details of property online after she bid for it as the property was removed.
3. It is the responsibility of the landlord to have the full details of the property during the viewing.
The resident also stated she was disappointed that the landlord had disregarded her point about ‘peaceful enjoyment’ of her home and living without interruption. She was currently writing a dissertation and worked from home. She worked late at night and got up later and it was unacceptable for anyone to peer into her windows when she was seated having breakfast or working.
The resident said there had been several failings by the landlord including a failure to identify the implications of arthritis in the spine and hip, to staff not having information at the viewing or providing correct information after moving in. She no longer had confidence in the HO’s ability to provide her with correct and unbiased information.
On 21 July 2021, the landlord provided a stage two response. Regarding the quiet enjoyment of her property, it said whilst it appreciated that the neighbour’s window cleaner’s arrival at the property had caused her distress, it felt that the solution suggested in its stage one for advance notice of the window cleaner’s visit to be given to her so she could prepare, was proportionate and reasonable. It explained that whilst it understood the rationale for her suggestion that the windows be cleaned from the inside, it would not be able to demand this from her neighbour. Therefore, the window cleaner would continue to visit the neighbour’s property and it asked that she grant access to them at the time of the pre-notified visit.
Regarding her concern raised about the TO, it reiterated that she was new to the role and therefore was not fully experienced in dealing with some elements of the role. It also repeated that the TO had been asked to check with the TM if she was unsure of any answers.
On 29 July 2021, the resident contacted the landlord advising she was dissatisfied with its response as her complaint had not been resolved.
On 24 October 2021, the resident told the Ombudsman that her mobility needs to access the front door had been ignored by the landlord whilst her right to peaceful enjoyment in the property, denied by the landlord. The landlord had not adhered to its duty to make reasonable adjustments and the issue could be put right by it laying a hardstanding in her garden. There was a drop kerb adjacent to her garden and foliage that can be easily removed. The resident told us she declined the option offered by the landlord for a OT assessment as her hospital Rheumatologist Consultant is far senior, therefore, his assessment superseded that of an O.T.
On 29 November 2021, the resident contacted the landlord’s ASB team to report an incident with her upstairs neighbour. As this report was made after the landlord’s final complaint response, this Service is unable to consider this report with this review.
In response to this Service’s evidence request, on 4 March 2022, the landlord told us that the parking situation was a historical one and was unique in that the upstairs’ neighbours paid for the spaces to be installed “many years ago”. It reiterated that the resident could approach the Council’s O.T team for an assessment to be made due to her medical condition to consider assisted parking provision.
In response to a further information request, in February 2023 the landlord advised us that in relation to parking: “several plans have been proposed to our customers as a way of finding a resolution to this matter, however all parties are not in agreeance, and this is something we will continue to work on until an amicable solution is found”.

Assessment and findings

Parking

Under the Equality Act 2010 the landlord has an obligation to make reasonable adjustments to a property where a resident has a disability.
The resident has health conditions including arthritis which causes pain when she walks. In January 2021, the landlord’s medical panel assessed her housing need as band two on account of her medical conditions. This enabled her to bid for adapted properties (on one level) on its choice based letting system.
In her formal complaint, the resident said she discovered after moving in, that she could not park on either of the two parking spaces (on the driveway, left of the property building). The landlord has provided this Service with the advert for the property seen by the resident prior to her bidding on it, via the landlord’s choice-based letting system, on 4 March 2021. This does not indicate any off-road parking was included with the tenancy. Due to this and because the Tenancy Agreement does not reference parking rights being granted, on the face of it, the lack of a parking space given to the resident does not indicate any failure in the service provided by the landlord.
However, in her formal complaint the resident pointed out that the landlord’s two members of staff whom accompanied her at the viewing did not explain that both parking spaces were for the upstairs neighbours’ sole use. It is clear that the landlord only explained the parking situation to the resident approximately two months into the tenancy, after she sought clarification on this issue once the neighbours informed her she could not park on the drive.
The landlord told this Service that the parking situation at the property is “unique” as the upstairs’ neighbours had sole access as they paid the Council for the spaces to be installed “many years ago”. This indicates the Council has a private informal arrangement with the neighbour in regards to parking on the driveway at the property. Whilst no evidence of any agreement reflecting this has been provided to this Service, in such circumstances, it is reasonable to expect the landlord to have explained this arrangement to the resident at the point of viewing as it was foreseeable that she would see the two spaces and assume one of them was allocated to the property, which she did. Had it provided timely information to the resident in regards to parking, the situation and complaint may have been avoided.
On balance, the landlord’s failure to provide information at this stage, is evidence of its service provided not reaching the expected standard. In its final response, the landlord acknowledged that its staff should have known and shared this information with the resident at the viewing. However, it did not offer the resident any remedy to put right its failure, for example, compensation which would have been reasonable in the circumstance.
In her formal complaint, the resident suggested to the landlord that parking should be included in the tenancy on the basis it ought to have known she needed easy access to the front door due to her medical conditions. In its stage one response, the landlord explained there was no requirement for off road parking or parking with direct access to a front door in the banding award. Further, that if this was a requirement, it would be for her to bid for properties with parking stipulated in the advert. It reiterated this position in its final response.
The landlord was aware of the resident’s health conditions from the medical panel’s review in January 2021 and therefore ought to have known the impact of these on her mobility. However, the award letter dated 26 January 2021, from its medical panel did not refer to a requirement for parking. Moreover, choice based lettings work through allowing applicants to bid for properties they think are suitable for them. As such, on balance the landlord’s response to the resident implying the onus was on her to check if the property included parking, was accurate and therefore reasonable in this circumstance.
Nonetheless, once the resident highlighted to the landlord how walking the long distance from the street to her front door impacted her on account of her health conditions, the landlord had a duty to consider her request for a reasonable adjustment by way of installing a ‘hard standing’ on or beside the drive, near her front door. In its stage one response, the landlord advised she could apply to the Council’s OT team for an assessment to see if she was eligible and if this could be done. Alternatively, it advised that she could either fund a hardstanding herself (subject to its consent) or apply for its tenant buy in scheme whereby it arranged the work for her and it would pay 40% of the cost, up to £1,000 and the resident paid the remainder.
It is clear that the resident did not accept the options given by the landlord on the terms explained in its stage one response. She told the Ombudsman that she felt that her hospital Rheumatologist Consultant was more senior to an O.T, therefore, their assessment superseded that of an O.T. Further, that she was unable to fund a hardstanding herself.
On balance, by offering potential solutions in relation to the resident’s request for a hardstanding including an assessment by the Council’s O.T team, the landlord did consider the adjustment required. Whatever the O.T’s seniority/status, it is reasonable to expect the landlord to have its own processes in place for handling adaption requests and it is usual practice across the sector for landlords to refer residents to apply for a T.O assessment in this circumstance. The landlord has not provided us with its adaption policy in place at the time of the complaint, however, on its webpage titled: ‘Grants and Support’, it sets out its process which confirms an assessment from the Council’s OT team is required to access available support including a ‘Disabled facilities Grant’ (up to a maximum of £30,000).
However, the landlord’s internal communications suggests that applications for a hardstanding had previously been made by former tenants of the property, which had been refused due to the property being on a corner which required the upstairs neighbour’s garden to be dug up. In response to the Ombudsman’s further information request, the landlord told us it would continue to work on finding a solution to the parking issue that all parties are in agreement with. Whilst no further details were given by the landlord, the evidence suggests there may be an issue with it obtaining agreement from the neighbour, which could affect the resident’s request for a hardstanding. It is noted that the landlord did not explain this potential barrier to the resident when it suggested she apply for a hardstanding installation via an O.T assessment in its complaint responses, nor did it advise of its approach to finding a solution, which would have been reasonable in the circumstances.
Therefore, whilst the landlord considered the adjustments required, it did not go far enough in providing the relevant information of any barriers to the resident in achieving the solution and facilitating her to access any of the pathways of resolution offered. Whilst the landlord has indicated to the Ombudsman a willingness to find a solution to the parking issue, this constitutes a failure in the service provided.
It is noted that despite the landlord being aware of the resident’s medical conditions including arthritis and diabetes, it told the Ombudsman that it had no vulnerabilities recorded for the resident. A recommendation has been included below for it to update its records to reflect the resident’s vulnerabilities.

Report raised about privacy issue

The landlord’s definition of ASB in its policy includes conduct that causes harassment, alarm or distress to any person. Its policy however also states that it is necessary that individuals and communities recognise and accept responsibility to discuss and resolve some situations locally. It further states that it expects: a reasonable level of tolerance between neighbour and for residents to resolve minor disputes or disagreements with their neighbours. At first point of contact, it will either provide advice or refer the matter to the ASB or Tenancy Management teams for investigation.
The resident and upstairs neighbour each have parts of the rear garden which are sectioned off and are their respective responsibility. This is not clear from the tenancy agreement or boundary map provided to the resident, however, the landlord had confirmed this arrangement. In regards to the front garden, the landlord told this Service this was shared and that there was no sectioning.
The resident raised a concern with the landlord about her neighbour’s window cleaner accessing her private rear garden and placing ladders up against her living room window in order to clean the neighbour’s first floor windows. She explained the distress caused by this and her concern that she had not been asked permission for contractors to enter her private garden. She asked the HO to contact the neighbour to advise that she did not grant permission at that time.
It is noted that the landlord had the option of referring the resident to its ASB policy which states residents are required to recognise and accept responsibility to discuss and resolve some situations locally and resolve minor disputes themselves. However, rather it told the resident that it that it would not tell the upstairs’ neighbour to stop getting their external windows cleaned via the rear garden, but said it would ask them to let her know the date and time of the window cleaner’s visits. It reiterated this position in its final response stating the window cleaner would continue to visit the property asking that the resident grant access at the time of the pre-notified visit.
In response to the Ombudsman’s further information request, on 13 February 2023, the landlord explained that whilst the rear garden is sectioned off, for approximately one metre from the external building towards the garden, this area is communal for reasonable access for any building maintenance, erecting of scaffolding and window cleaning. It said that the same applied in the front garden.
In this circumstance, the neighbour would not need to ask permission as such to clean their windows. Nor would the resident have a right to refuse access. However, the landlord did not explain this or the reasons it was unwilling to tell the neighbour not to get their windows cleaned, either in its responses to the resident or elsewhere when it was clear the resident was not aware that reasonable access for window cleaning was implied. Although it provided a boundary map to the resident, this does not reflect the one meter communal part referred to.
Therefore, it is clear the landlord did not explain the boundaries or communal areas to the resident during the viewing or at the start of the tenancy, and it missed opportunities to provide clarification around this when the resident raised her concern about privacy being compromised. It was reasonable for the landlord to suggest a resolution to the issue and agree to ask the neighbour to give the resident advance notice of their window cleaner’s visits, as opposed to advise the resident that the dispute should be resolved between her and her neighbour as per the ASB policy. However, there is no evidence to demonstrate that it did so at the time. Whilst the landlord’s internal records indicate it spoke to the neighbour about this issue several months later, its failure to follow through with this when it said it would, as well as the lack of an accurate explanation given in regards to implied access in the garden, constitutes a failure in the service provided by the landlord.
The resident raised a concern with the landlord regarding the HO’s conduct such that she no longer had confidence in her to provide correct and unbiased information. Whilst this review has identified failures in the service provided by the landlord, there is no evidence to suggest bias or unfairness treatment of the resident by the landlord’s staff. Further, the landlord explained in its response that its HO was new to the role and confirmed improving this aspect of her role was part of the HO’s continued training plan.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord when responding to concerns about the information provided at signup regarding parking and the suitability of the property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord when responding to concerns about privacy.

Reasons

Whilst the landlord did not agree to provide off-road parking under the tenancy, it acknowledged it should have explained to the resident during the viewing of the property, the unique situation as to parking whereby both spaces on the driveway are for the neighbours’ sole use. The landlord also did not provide sufficient clarity about potential barriers to her request for an adaption if made via the Council’s O.T team, as per its suggestion.
In regards to the concern raised about privacy, the landlord did not explain to the resident that the area around the property was communal whereby reasonable access for window cleaning was implied. Further, whilst it said it would ask the neighbour to provide notice to the resident of when their window cleaner would attend, which was reasonable, there is no evidence to show it did at the time.

Orders and recommendations

The Ombudsman orders the landlord to:
1. Pay the resident £400 in compensation for stress and inconvenience comprising of;
  1. £200 for service failings in relation its handling of her concern about parking at the property.
  2. £200 for service failings when handling her concern raised about privacy.
2. Provide an action plan to the resident and this Service clearly explaining how it intends to resolve the issue of parking for the resident, as referred to in its communication to us. If the resident is required to apply for an adaption via the Council’s O.T team as per its policy, the landlord should explain its role in assisting them to provide the resident with a hardstanding or other solution. The action plan should include an expected timeline for a resolution.
3. Confirm exactly which parts of the rear and front gardens and any adjacent land around the property building are communal and advise of any relevant documentation to confirm this.
4. Comply with the above orders within four weeks.
The Ombudsman recommends that the landlord update its records to reflect the resident’s vulnerabilities.