North Northamptonshire Council (202209812)

REPORT

COMPLAINT 202209812

North Northamptonshire Council

30 May 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

1. The complaint is about the landlord’s handling of:

a.     a neighbour dispute, including:

i.        the resident’s reports about her neighbour partitioning a driveway.

ii.      the resident’s reports about her neighbour’s threatening behaviour.  

b.     the resident’s concerns about the position of the CCTV installed by the neighbour.

c.      the resident’s reports of her neighbour dismantling his garage that had an asbestos roof.

2. The Ombudsman has also considered:

a.     the landlord’s record keeping.

b.     the landlord’s complaint handling.

Background

3. The resident occupies a property under a secure tenancy with the landlord. The landlord did not provide a copy of the agreement but said the tenancy commenced on 5 August 1974. The resident and her husband have explained to the Ombudsman they are elderly and have been supported by their son and a local councillor during their complaint. Throughout this report, we have referred to ‘the resident’ and this includes actions taken by the resident, her husband, their son, or the local councillor on her behalf.
4. The landlord does not have any vulnerabilities recorded for the resident.
5. It is convenient to set out here that the property has a driveway that is located between the resident and her neighbour’s property. Both the resident and her neighbour use the driveway to park their cars. On 29 June 2020, the resident reported the neighbour had placed rubble down the centre line of the driveway and intended to erect either a hedge or a fence to partition the driveway. This prevented any passengers on the resident’s side of the drive from alighting onto the driveway when the car was parked. Before this, the neighbour said she had enjoyed an undisputed shared right of access to the driveway by vehicle and on foot.
6. Initially the landlord advised the resident that neither she nor the neighbour had exclusive right to use any, or all of the area of the shared driveway. This was because neither the landlord nor the resident’s neighbour owned the whole or any half of the shared driveway. As a result, it sought legal advice about acting against the neighbour. It visited the neighbour and resident to explain this on or around 3 July 2020. It issued a letter to the neighbour explaining they could not erect a fence without prior permission in or around October 2020. The neighbour erected a fence down the centre line of the driveway around March 2021.
7. The resident also reported that between July 2020 and July 2021 the neighbour had used an angle grinder to partition the driveway, was using their CCTV system unlawfully to capture imagery of her property and had dismantled their garage which had an asbestos roof. The resident felt the landlord had failed to act and that her neighbour’s behaviour was escalating, and this was causing unnecessary stress.
8. The landlord responded to the allegations by asking the resident to keep diary sheets. It went on to review the allegations with the community safety team and the legal team. The response was that the behaviour was related to the dispute over the driveway and could not be considered antisocial behaviour. The legal team explained to the landlord that the evidence provided did not meet the threshold for further legal action.
9. The landlord received advice around March 2021 from its legal team that it could not stop the neighbour from erecting the fence as there was no restriction in the deeds. The boundary line down the middle of the driveway also indicated the neighbour was carrying out activities on his side of the boundary. However, the legal team advised the landlord it could lodge an application to the HM Land Registry for prescriptive rights (a right of way) over the driveway to be recognised.
10. The landlord applied for the right of way across the neighbour’s drive for the benefit of the resident around July 2021. In or around March 2023, it considered ceasing action because of the associated costs and because the likelihood of succeeding was low. This was based on the legal advice it had received regarding the right of way over the driveway not being a necessity for the resident to access her property.
11. The resident raised a formal complaint on 1 October 2021 because she felt the landlord had failed to take action against the neighbour for:

a.     restricting her access to the shared driveway and their associated threatening behaviour.

b.     the neighbour use of their CCTV system to capture her front door.

c.      the neighbour dismantled their garage and did not dispose of the asbestos material legally.

12. The landlord issued its stage 1 response on 4 February 2022 and partly upheld the resident’s complaint because it had given her the wrong advice about the legal position of the shared driveway. It signposted the resident to the Information Commissioner’s Office for her report about the CCTV and explained that the neighbour had not acted unlawfully when he disposed of the asbestos roof of his garage.
13. The resident escalated her complaint on 10 February 2022. She said she was unhappy with the landlord’s response. The landlord did not provide a copy of this. However, the landlord issued its final response on 8 April 2022. It said that it partially upheld the resident’s complaint because of the incorrect advice given initially, as previously acknowledged, and recognised it had delayed in its complaint handling. It offered the resident an apology for both of these issues.

Assessment and findings

Scope of the investigation

14. The Housing Ombudsman Scheme states in paragraph 42(g): “The Ombudsman may not consider complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure.”
15. The question of who owns the driveway and who has a right of access to it is not a decision the Housing Ombudsman can make. This is a technical legal question which would fall within the jurisdiction of the Land Registry or the court. A determination of one of these bodies would be more reasonable and effective for all parties involved in this dispute. This is because the finding would be based on professional evidence and be legally binding.
16. For clarity, this investigation will be looking at how the landlord handled the resident’s query and formal complaint.
17. The resident explained that part of her complaint related to her neighbour’s use of his CCTV system. She said she felt her neighbour was invading her privacy by placing his CCTV system in a position that captured her front door. Paragraph 42(j) of the Scheme states: “The Ombudsman may not consider complaints which, in the Ombudsman’s opinion: fall properly within the jurisdiction of another Ombudsman, regulator, or complaint-handling body.”
18. It is also important to note that the resident’s neighbour is a freeholder and does not have a landlord/tenant relationship with the landlord. This means that the landlord has general obligations to protect its property. However, it does not have the authority to exercise control over the resident’s neighbour in the same way had there been a contractual relationship between the parties.
19. The landlord is also a council. Councils have public duties outside of their role as landlords to manage anti-social behaviour (‘ASB’) for the benefit of all of its citizens regardless of whether they are the council’s tenants. When exercising those general powers, the council is not necessarily acting as a landlord for the purposes of paragraph 5 of the Scheme. Under paragraph 41(d) of the Scheme, we have no jurisdiction to investigate the actions or omissions of the council exercising its wider public powers. We are limited to looking at what it did acting as the landlord in this matter.
20. The resident explained that part of her complaint related to her neighbour dismantling an asbestos garage without sanction by the landlord. She said this caused her distress because she was worried about the potential health implications on her and her household. As the neighbour is not a tenant of the landlord, it does not exercise control over him based on any contractual relationship and would be unable to restrict the neighbour from carrying out this type of activity on his property unless it was a general breach of a civil or environmental law. This would usually be a matter dealt with by the council’s Environmental Health team. This would not be the council acting as a social landlord or the landlord under a long lease. As such, we cannot assess what it did in this capacity in respect of these reports. However, the Ombudsman can consider if the council, as a landlord, acted reasonably to the resident’s concerns.

The landlord’s record-keeping

21. The Ombudsman expects landlords to maintain a robust record of contacts and repairs. This is because clear, accurate, and easily accessible records provide an audit trail and enhance landlords’ ability to identify and respond to problems when they arise.
22. It is the Ombudsman’s opinion that the landlord has failed to maintain adequate records, which has significantly impacted this service’s ability to carry out a thorough investigation, as highlighted at various points throughout this report. This includes:

a.        failing to provide the resident’s tenancy agreement.

b.        the relevant conveyance for the neighbour’s property.

c.        the letters it said it sent to the resident’s neighbour.

d.        the resident’s escalation request.

e.        its notes from internal meetings with the community safety team.

f.          its complaint policy.

g.        its ASB policy.

23. This was a significant failure by the landlord. The Ombudsman issued a Complaint Handling Failure Order for its failure to provide the evidence we requested. Therefore, a finding of maladministration has been made for poor record keeping.

The landlord’s handling of the resident’s reports about her neighbour partitioning a driveway

24. On 29 June 2020, the resident complained about her neighbour who was planning to put a fence up on the shared driveway. She explained the household had elderly members and her husband was disabled. This meant he needed room to get in and out of the car, but the neighbour had piled rubble down the middle of the driveway which prevented this.
25. The landlord visited the resident and the neighbour between 6 and 9 July 2020. It noted it discussed alternative measures to the fence with both parties but was unable to find a compromise because the resident objected to any form of division over the driveway.
26. The Ombudsman considers the landlord took appropriate action because it sought to consider the views of both parties. It also demonstrated it tried to mediate between the parties to consider alternative actions that might be acceptable to both parties.
27. Between June 2020 and February 2021, the neighbour intermittently used soil and other materials to mark the centre line of the driveway. In March 2021, they erected a fence down the middle of the driveway. The resident said that because of these actions she was no longer able to enjoy the use of the shared driveway as she once had. This was because her passengers were no longer able to alight from the car whilst on the driveway.
28. Where there are issues relating to the contractual obligations of parties concerning the use of land, the landlord must assess:

a.     if its property (the resident’s home) had the benefit of an easement (right of way over the neighbour’s driveway) which its tenant (the resident) had been benefitting from.

b.     whether the neighbouring property was affected by a restrictive covenant preventing the fence from being erected.

c.      what action it should take to protect its asset and rights.

29. In July 2020, the landlord told the resident that neither the resident or the neighbour had the exclusive right to use any, or all of the driveway. It explained that neither the landlord nor the neighbour owned the whole or half of the shared driveway. As a result, the landlord said it wrote a “strongly worded letter” to the resident’s neighbour that had been drafted by its legal team. This was in or around December 2020 and requested that he did not obstruct the shared driveway.
30. The landlord was advised by its legal team in March 2021 that the former advice it had relied upon was incorrect. This was because the former advice relied on the presumption that there was a necessity for the right of way over the driveway to access the property. The landlord said it had perceived this initially to be a “shared driveway” but in reality, this was not the case because the resident could access her property without the use of the neighbour’s driveway.
31. The Ombudsman considers that the landlord behaved incompetently because it provided incorrect advice to the resident. The initial advice failed to consider the ownership of the driveway and whether it was a necessity for the resident to access the neighbour’s driveway to access her own property. This set the resident’s expectation that she:

a.     had a right to the use of the driveway outside of the landlord’s boundary marked on the conveyance.

b.     could expect the landlord to enforce this right through legal recourse.

32. In or around June 2021, the landlord received further advice from its legal team that there was a limited restriction relating to the installation of a fence that had lapsed in the 1970s. The landlord was told its only option to secure certainty over the rights to shared access to the driveway would be through an application to the Land Registry to register a prescriptive right. The landlord made an application in July 2021 to the Land Registry.
33. The Ombudsman considers the landlord acted reasonably because it followed the advice of its legal team by making an application for prescriptive rights to the shared driveway. This was to seek to have the resident’s unfettered use of the previously enjoyed right of way over the neighbour’s driveway acknowledged by the HM Land Registry. Its intention at this time was to protect the rights of the resident and its asset.
34. The evidence shows that the landlord fully appraised the situation in or around December 2021. The landlord explained its position concerning the erection of the fence in its stage 1 response dated 12 December 2021. However, this was not issued to the resident until 4 February 2022.
35. The letter explained it had done all it could lawfully do to dissuade the neighbour from erecting the fence but as there was no restriction on the property records, it could not prevent the fence from being erected. It also acknowledged that while it did not prevent vehicular access to the resident’s driveway, alighting from the vehicle with the fence in situ was more difficult. It said it was incorrect to say access to her property had been blocked permanently because the driver could still dismount and access the property.
36. The Ombudsman considers the landlord was entitled to rely on the competent advice of its legal representative, however, it delayed in explaining its evolving position to the resident. This was a failure that impacted the resident because it resulted in time and trouble for her in chasing the landlord for its formal position on the matter.
37. The landlord also considered around December 2021 that there could be alternative options such as widening the access to the resident’s property to remove a source of “antipathy” between the neighbours. However, there is no evidence that this was considered further because the landlord did not think the resident would agree to it.
38. The Ombudsman notes this may have resolved the resident’s concerns because it could have allowed the resident an alternative solution to her to alight from vehicles on the driveway. Not discussing this option with the resident was a failure.
39. In June 2023, the Land Registry advised it had received a formal objection to the landlord’s application for prescriptive rights. The landlord went on to consider whether it should continue its application. It said if it did, the matter would be referred to the County Court or the Land Registry’s Internal Tribunal and it had concerns over its prospects for success.
40. The legal team reviewed the landlord’s position in July 2023. It advised the landlord to cease further action because the land in dispute was not the landlord’s property, and the conveyance did not contain a restriction on development upon which it could rely. This meant it was not protecting the rights of its asset through its application for prescriptive rights. In addition, the landlord had looked at the costs of the matter to date and prospective costs should the case continue. The landlord did not provide evidence to suggest at the time of writing this report it had ceased action on the application.
41. The Ombudsman considers the landlord was entitled to review whether to continue with the application and to consider the prospects of success and the associated costs. However, given the landlord was aware in July 2023 that its application for prescriptive rights was unlikely to proceed, it would have been reasonable to have explained this to the resident. There is no evidence of it doing so. This caused further distress and inconvenience for the resident because she was under the impression the application would reinstate a right, she thought she held over the driveway.
42. The resident said that she was not kept informed by the landlord about the actions it was taking to resolve the dispute over the driveway. The Ombudsman expects landlords to provide residents with regular updates, including what actions it was going to take and when. The landlord should have explained its position to the resident about the decision to cease its application.
43. Overall, the evidence shows that:

a.     the landlord provided incorrect advice initially to the resident and this raised the resident’s expectations between June 2020 and February 2022. This caused time and trouble as well as distress and inconvenience to the resident.

b.     there was a lack of evidence to demonstrate the landlord updated the resident on its decision to cease its application with the HM Land Registry in July 2023.

c.      the landlord’s failure to provide the resident with all the alternatives it had considered, including the widening of the driveway.

The landlord’s response to the resident’s reports about her neighbour’s threatening behaviour

44. In or around February 2021, the resident reported that the neighbour’s behaviour was escalating. She said that he was “becoming more aggressive” because he ground out a channel between the two properties with an angle grinder to put up a fence.
45. When a report like this is made to a landlord, it must decide if it constitutes anti-social behaviour. This is found in the Anti-Social Behaviour, Crime and Policing Act 2014 and is defined as “behaviour by a person which causes, or is likely to cause, harassment, alarm or distress to persons not of the same household as the person.”
46. The landlord responded by visiting the resident 26 working days later. It then discussed the matter with its community safety team to see if further action was justified. The landlord did not provide a copy of the notes of its meeting with the community safety team. This was evidence of poor record keeping. However, there was an email from the community safety team in March 2021 explaining that the incident reported was not believed to constitute ASB because it related to the dissatisfaction resulting from a neighbour dispute for unresolved question over the ownership of the driveway.
47. The landlord’s decision was not patently incorrect, and it was one it was entitled to arrive at considering all the circumstances of the case.  Although the neighbour’s behaviour was undoubtedly causing the resident inconvenience, there was no evidence that he was acting unlawfully by using his angle grinder to partition the driveway.
48. The landlord demonstrated it considered the resident’s reports and came to a conclusion that was open to it. However, it could have acknowledged the resident’s report at an earlier stage and explained when she could expect further contact to investigate her allegations. This was a service failure because it had a minimal impact on the resident.
49. In March 2021, there is evidence of the landlord considering whether to issue a community protection warning (‘CPW’) with the condition to remove any material from the shared driveway and to keep it clear, as well as conditions not to prevent or restrict access to the shared driveway or carry out any works to modify the landlord without prior written permission from the landlord.
50. Before issuing the CPW, the landlord sought advice from its legal team on its drafting because it wanted to ensure it would be able to defend any challenge should a breach be reported. The legal team advised the landlord that the erection of the fence was not a ground for issuing a CPW, but originally the soil being left for long periods could have formed the basis for one. However, if it had issued a CPW on this basis, it had concerns over the viability of its ability to defend the CPW because of the length of time the boundary appeared to have been disputed. On this basis, it decided not to issue a CPW.
51. The Ombudsman considers the landlord was entitled to rely on the legal advice it had received regarding the issuance of a CPW. Due to the concerns raised by the legal team, it was not unreasonable for the landlord to make the decision not to take this action. In addition, had it issued a CPW there is no evidence this would have changed the position of the parties or prevented the neighbour from ultimately erecting the fence which was the primary concern of the resident.
52. At the same time, the landlord received advice about whether it could issue an injunction against the neighbour for the erection of the fence. However, the advice was that it was not “evidentially justified” and was a tool of “last resort.” The Ombudsman considers the landlord was entitled to rely on the legal advice it had received. The landlord demonstrated it considered its position and the legal action available to it. Therefore, the landlord acted reasonably in the circumstances.

The landlord’s handling of the resident’s concerns about the position of the CCTV installed by the neighbour.

53. The resident reported in July 2021, that her neighbour had placed his CCTV to face her front door. She felt this was an invasion of her privacy. For context, the neighbour had also raised a similar complaint about the resident’s CCTV cameras, which the resident denied.
54. The landlord responded as part of its complaint responses that it did not have the power to address the issue because of the camera being on private property. It signposted her to the Information Commissioner’s Office. In addition, it signposted the resident to the police and explained that she could seek independent legal advice on the matter.
55. The Ombudsman considers the landlord acted reasonably in the circumstances by explaining its position to the resident and where she could seek further support or redress. The landlord should have provided this advice at an earlier stage. However, had the landlord responded at an earlier stage, there is no evidence that she would have been in a different position. 

The landlord’s handling of the resident’s reports of her neighbour dismantling his garage that had an asbestos roof

56. On 20 July 2020, the resident reported that her neighbour was dismantling his garage. The resident said the garage contained asbestos and she felt this put her health at risk because the neighbour had not disposed of the material safely. The resident said her neighbour had piled the waste along the driveway and she had closed her window because of concerns over how this may have impacted her health. She was dissatisfied that the neighbour was able to do this without sanction.
57. The landlord responded by contacting the environmental health team in July 2020. It also contacted the neighbour at a similar time who had satisfied it that he had used a licenced carrier to remove the waste. The landlord wrote to the resident in February 2022 and explained that the neighbour was not prevented from handling or removing asbestos on his property. Nor was he under any obligation to use a licenced carrier to remove the waste. It explained that it was unable to issue an enforcement action such as a fine to the neighbour as he had not acted unlawfully. However, it signposted her to government guidance from the Health and Safety Executive.
58. The Ombudsman considers the landlord made enquiries with the neighbour and referred the matter to the relevant authority that could have dealt with the issue. It also wrote to the resident confirming its position, but this was unreasonably delayed. It is unlikely that it could have acted further to assist the resident with this element of her complaint. Therefore, the Ombudsman finds no maladministration because even had the landlord written to the resident at an earlier stage, there is no evidence she would have been in a different position.

The landlord’s complaint handling

59. The Complaint Handling Code (‘the Code’) states landlords must respond within 10 working days at stage 1 of its complaint process and within 20 working days at stage 2 of its complaint process. The landlord’s complaints policy was not provided.
60. The resident raised her complaint on 1 October 2021. The landlord responded on 4 February 2022, which was 87 working days later. This was maladministration because the landlord unreasonably delayed in issuing its response. Therefore, it failed to respond in line with the timeframes prescribed in the Code and its complaint policy.
61. The landlord explained the delay in issuing the stage 1 response was due to human error. This was supported by the evidence. It recognised its delay in its stage 2 response, which was appropriate. However, this combined with its failure to provide its position about the CCTV and garage issues reported to it in 2020, the Ombudsman considers the landlord’s remedy was not proportionate to address its delay in communicating its position to the resident.
62. The landlord said it received an escalation request from the resident on 10 February 2022. It did not provide evidence of this to the Ombudsman. This was a failure in its record keeping.
63. The landlord responded at stage 2 on 8 April 2022, this was 41 working days later. This was not in line with the timeframes prescribed in the Code and its complaint policy when it issued its stage 2 response. This was inappropriate because it delayed the resident from seeking further redress through the Ombudsman.
64. Although the landlord said the delays, in part, were due to the complexities of the case, it ought to have notified the resident of the delay. Under the Code, it should also have provided a new timeframe for its response or tried to agree on an extension with the resident. It failed to do this and that was maladministration.
65. Both complaint responses failed to contain details of the Housing Ombudsman. This was a further failure to follow the Code, which requires landlords to include details in their complaint responses about how the resident can escalate their concerns to the Ombudsman.
66. Overall, there was maladministration with the landlord’s complaint handling because:

a.     it unreasonably delayed issuing both its complaint responses, and this was a failure to follow the requirements of the Code and its policy.

b.     its complaint responses failed to contain details about how the resident could seek redress from the Ombudsman.

c.      the remedy provided by the landlord was not sufficient to address its failures and the detriment of those failures on the resident.

Determination

67. In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord in the way it handled the neighbour dispute, including the resident’s reports about her neighbour partitioning a driveway.
68. In accordance with paragraph 52 of the Scheme, there was service failure in the way the landlord handled the neighbour dispute, including the resident’s reports about her neighbour’s threatening behaviour.  
69. In accordance with paragraph 52 of the Scheme, there was no maladministration by the landlord in its handling of the resident’s concerns about the position of the CCTV installed by the neighbour.
70. In accordance with paragraph 52 of the Scheme, there was no maladministration in the landlord’s handling of the resident’s reports of her neighbour dismantling a garage with an asbestos roof.
71. In accordance with paragraph 52 of the Scheme, there was maladministration with the landlord’s record keeping.
72. In accordance with paragraph 52 of the Scheme, there was maladministration with the landlord’s complaint handling.

Orders

73. Within 28 days of the date of this determination, the Ombudsman orders the landlord to:

a.     write to the resident to apologise for the failures found in this report.

b.     pay the resident £500 compensation comprising of:

i.        £350 for the distress and inconvenience caused by the landlord’s handling of the neighbour dispute. This is to recognise the delay in communicating the correct position relating to the resident’s property and shared driveway.

ii.      £150 for the failures identified in its complaint handling.

c.      it must write to the resident confirming the current position of its prescriptive rights application. If it has ceased its application, it must include its reasons for doing so. This must include a summary of any legal advice it had relied upon in making its decision.

d.     the landlord must provide complaint handling refresher training to its complaint handlers.

e.     the landlord must review its complaint templates to ensure it includes how residents can refer complaints to the Housing Ombudsman when responding to relevant housing-related complaints.

f.        undertake a self-assessment against the recommendations in the Ombudsman’s spotlight report on Knowledge and Information Management. It must provide this service with a copy of the self-assessment, any learning identified and a detailed plan to implement its learning, including timescales.

g.     the landlord must publish its ASB policy online to enable easy access to this information for its residents. If it does not have an ASB policy, it must devise and publish one for its website within 90 days of the date of this determination.