Abri Group Limited (202228061)

REPORT

COMPLAINT 202228061

Abri Group Limited

27 November 2024

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s:
1. Response to the resident’s concerns that a neighbour had erected a patio and fence without permission.
2. Handling of the complaint.

Background

The resident is an assured tenant of the landlord. He lives in a 2-bed ground-floor flat within a low-rise block of similar properties. He has lived in the property since 2008.
No properties within the block have their own gardens, all garden areas are communal. The landlord purchased the freehold for the block in 1995. It has explained that at that time residents had already created informal boundaries between properties with fences and planting. This was done by informal agreement with the previous freeholders. The landlord said that due to the time and costs of taking action to remove such features and the impact this would have on community relations, it had decided it would not be reasonable to take enforcement action.
The resident contacted the landlord on 21 February 2022. He said his neighbour, who was a leaseholder, had erected a fence which encroached into the communal garden. The landlord replied and said it would investigate his concerns.
In October 2022 the landlord advised that the neighbour had agreed to remove the fence by the end of October 2022.
On 28 December 2022 the resident said he wished to raise a complaint. He said he had been contacting the landlord regarding his concerns about his neighbour’s patio and fence but it had not responded. He said his neighbour had installed the patio and fence without the landlord’s permission and they were an “eyesore”. He also said that while his neighbour had agreed to remove the fence, he did not believe they intended to do so as they had now sold the property.
The landlord acknowledged the stage 1 complaint on 3 January 2023. It provided its stage 1 response on 24 January 2023. It said:
1. It did not uphold the complaint.
2. It had advised his neighbour to remove the fence in October 2022. A new officer had taken over the case in October 2022 and was working with the neighbour to remove the fence.
3. As the resident had not raised the patio as an issue previously it had not addressed it with his neighbour.
4. It had contacted his neighbour before Christmas and she agreed to remove the fence in the new year.
5. It had contacted her again on 18 January 2023 and she said she would chase her gardener to remove it as soon as possible.
6. Its officer would continue to work with his neighbour to resolve the issue.
On 25 January 2023 the resident rang the landlord to discuss its stage 1 complaint response. He asked the complaint handler to return his call. He emailed the landlord on 1 February 2023 and said he had not received a call back. On 14 March 2023 the resident asked the landlord to escalate his complaint to stage 2 of its complaints process. He said he had been trying to discuss the matter with the landlord but had not received a response.
The landlord acknowledged receipt of the resident’s stage 2 complaint on 15 March 2023. It said that there had been an “administrative error” which had caused it to miss his escalation request. It apologised and offered him a food hamper for the delay. The resident refused this offer.
The landlord provided its stage 2 complaint response on 6 July 2023. It said:
1. The resident had raised concerns about the fence in February 2022. It had arranged to visit the area the following week.
2. He had called to request an update on 30 August 2022 and the officer returned his call on 14 September 2022.
3. It was agreed that his neighbour needed to remove the fence by the end of October 2022.
4. He had reported on 16 November 2022 that his neighbour had not removed the fence. It had not responded to his communication. He chased for a response on 1 December 2022. It had not responded.
5. Over previous years residents had made “minor adaptations” to the communal gardens to create “small boundaries between properties”. The resident had also made “minor alterations and adaptations…without permission”. It had decided not to carry out enforcement measures to resident’s who had done so.
6. His neighbour had discussed the fencing with “both neighbouring properties” and no one had raised objections.
7. A compromise was made that the fence be lowered rather than removed. This was because his neighbour needed a fence for privacy to allow her to run her home business.
8. It apologised for the lack of communication he had received and for the delays in responding to his complaint.
9. It offered £100 compensation comprising £50 for the complaint handling delay and £50 for the missed complaint points in his stage 1 complaint.
On 2 May 2024 the landlord wrote to the resident having been informed that this Service would be investigating his complaint. It said it had revisited the issue and considered that its offer of compensation within its stage 2 complaint response had not been high enough and offered an additional £100 compensation.

Legal and policy framework

The landlord operates a 2-stage complaints process. It states it will respond to stage 1 complaints within 10 working days and stage 2 complaints within 20 working days.
The complaints policy says that there may be times when it is unable to respond within these timeframes due to “complexity of the case”. It says in such cases it will confirm this with the resident and explain why.

Assessment and findings

The landlord’s response to the resident’s concerns that a neighbour had erected a patio and fence without permission.

Our role when considering the resident’s complaint is to assess whether the landlord’s response to his concerns about his neighbour’s fence and patio was reasonable.
We have not considered whether the landlord’s decision not to take enforcement action to remove alterations to the communal areas was reasonable. We consider that the decision could reasonably give rise to further issues in relation to ownership (in the case of leasehold properties) and responsibility for upkeep of fencing etc. We have therefore made a recommendation that the landlord considers seeking legal advice on its position and the overall management of this area.
Within his contact with this Service the resident has stated that his desired outcome is for his neighbour’s front patio and fencing to be removed or for the landlord (at its own expense) to split the grassed area equally down the middle with a fence.
The reasons for the resident’s desired outcomes are acknowledged. However, these are not outcomes that we are able to order. Where we identify failings on behalf of a landlord, we can make order remedies aimed at putting things right. As per the Housing Ombudsman Scheme, this includes ordering the landlord to perform or not to perform any of the contractual or other obligations existing between the member and the complainant. The resident’s tenancy agreement is silent in relation to the use of the grassed area, and therefore we cannot make orders in respect of this area of land.
The resident first contacted the landlord to raise concerns about his neighbour’s fence on 21 February 2022. The landlord replied and said it would investigate his concerns. We have seen no evidence to confirm that the landlord took any action following the resident’s report, nor that he was updated. This was unreasonable.
The resident contacted the landlord again on 25 April 2022 and asked for an update following his February 2022 report. The landlord said that the investigating officer was on leave and would update him on their return the following week. The records show that the investigating officer tried to call the resident on 5 May 2022 but there was no answer and no voicemail facility.
It was reasonable that the officer tried to call the resident back. However, we would reasonably have expected them to follow this up in writing when they were unable to leave a message.
On 30 August 2022 the resident emailed the landlord and again asked for an update. He said he had not heard anything since his initial report. The landlord replied and advised that the investigating officer had tried to call him. It said the officer would contact him within 10 working days.
The investigating officer called the resident on 14 September 2022. The notes from the call state the landlord asked him to provide photographs of the fence. This was so the landlord could consider the photos before approaching the neighbour. The resident said that his neighbour was running a childminding business from the property and this was why she needed the fence. The resident emailed the landlord photographs of the fence the same day. The landlord acknowledged receipt of the photographs and said the investigating officer would update him within 10 working days.
The landlord’s response indicates that it had not previously visited to inspect the fence or to speak to the neighbour. As the resident had raised his concerns 7 months previous, it is unclear why the landlord had not taken any action sooner. This was not reasonable.
On 30 September 2022 the resident again asked the landlord for an update. He said it had been more than 10 working days since he contacted the investigating officer. The landlord replied on the same day. It said the investigating officer was looking into the issue and would contact him on 3 October 2022.
On 3 October 2022 the investigating officer tried to call the resident but there was no answer. They emailed him and said that they had visited the leaseholder who had agreed to remove the fence by the end of October 2022.
On 10 November 2022 the resident emailed the landlord and said the fence had not been removed. The landlord acknowledged the email on 16 November 2022 and said the investigating officer would respond to him within 5 working days. The officer did not do so, this was a further communication failing.
This Service considers that it would have been reasonable and proportionate for the landlord to have arranged to check the area at the beginning of November to ensure the agreed action had been taken. Because it did not monitor the situation, the resident was inconvenienced in having to update the landlord.
The resident emailed the landlord again on 1 December 2022. He said he was still waiting on a response from the investigating officer. He also asked why it had not asked his neighbour to remove the paving along with the fence.
We note that the resident’s communications with the landlord prior to December 2022 only referenced the fencing, and not the patio. It was therefore reasonable that the landlord only approached his neighbour about the fencing.
Internal landlord emails state that the investigating officer had explained to the resident (prior to handing the case to a new officer in October 2023) that previous freeholders had not managed alterations to the communal areas. The officer said they had told him that this made it difficult for the landlord to now force residents to remove these alterations. It was reasonable that this was explained to the resident.
Further internal landlord emails sent in June 2023 stated that the resident had said that he got on well with his neighbour and did not want to fall out with them. It said that he had therefore agreed that landlord would ask his neighbour to reduce the height of the fence and was happy with this solution.
This Service has not seen any contemporaneous evidence that show that the landlord had such discussions with the resident. Nor have we seen evidence that the landlord came to such an agreement with his neighbour. Had such an agreement been reached we would reasonably have expected to see evidence in the form of notes from visits or telephone calls, or letters sent to both parties.
The resident has also stated repeatedly throughout his communications with this Service and with the landlord that he was unhappy with the patio and fence. He has been consistent in his messaging that he wanted them to be removed.
The landlord’s comments in the stage 2 complaint response are therefore not in keeping with the other evidence. We have seen nothing to suggest that the resident was happy with the fence remaining in situ, but lowered. It therefore follows that the landlord has failed to adequately address and respond to the resident’s concerns about the fencing and patio.
Overall, the landlord failed to demonstrate that it carried out reasonable investigations in response to the resident’s concerns between February 2022 and October 2022. It failed to respond to the resident’s communications within a reasonable time frame on several occasions which caused him time and trouble in chasing for a response. The landlord has not evidenced that facilitated an agreement between the resident and his neighbour for the height of the fence to be reduced. His concerns have consequently been left unaddressed. As a result we find maladministration in the landlord’s response to the resident’s concerns that a neighbour had erected a patio and fence without permission.

Handling of the complaint

The resident made his stage 1 complaint on 28 December 2022. The landlord acknowledged the complaint on 3 January 2023. This was within the timeframe outlined in the Ombudsman’s Complaint Handling Code (the Code) and its own policy.
The landlord’s call log shows it tried to call the resident on 11 January, 13 January 2023 and 23 January 2023 to discuss the complaint but that he did not answer. That it tried to discuss the complaint with the resident verbally was positive. It is however important to note that not all residents share the same communication preferences and some prefer written communication. Given that it was unable to speak with the resident on the phone it would have been sensible to follow up in writing.
On 13 January 2023 the landlord wrote to the resident. It said it was still working to resolve the complaint and would provide a response within 10 working days.
The landlord has described this letter as a ‘complaint extension letter’. We note that the heading of the letter does not make it clear that this is the case. We also note that the contents of the letter do not clearly state that the landlord is unable to respond within the timeframes outlined in its own policy and therefore requests an extension.
The Code states that if the landlord requires an extension, it should provide an explanation to the resident. In this case the landlord provided no explanation as to why it was unable to provide a response within its policy timeframes. This was a departure from the Code and was unreasonable.
It took the landlord 18 working days to respond to the resident’s stage 1 complaint. While it had advised the resident of the delay, albeit unclearly, it did not acknowledge or apologise for the delay in its response. This was a further failing.
The landlord’s stage 1 complaint failed to consider the full timeframe of the issue. It only referenced the resident’s communications with the landlord from October 2022 and did not acknowledge that he had been reporting the issue since February 2022. This caused its response to be inaccurate.
In line with the Ombudsman’s dispute resolution principle ‘be fair’ the landlord’s decision on the complaint should be based on evidence and the facts of the case. In this case the stage 1 response failed to acknowledge any of the landlord’s communication failings during its handling of the issue. This was not transparent or in keeping with the principle of fairness.
The records show the resident called the landlord on 25 January 2023 to discuss the stage 1 complaint response. He asked the complaint handler to return his call but we have no seen evidence that they did so. This was an example of poor communication and was unreasonable.
The resident emailed the landlord on 1 February 2023 and said he had not received a call back. He said on 21 January 2023 his neighbour had taken the fence down to reduce its height and then re-erected it. He said they had not requested permission to install the patio and fence, and the fence crossed the boundary between the 2 properties.
The landlord acknowledged the resident’s email on 3 February 2023 and said an officer would respond to him. We have not seen evidence that the officer did so. This was a further communication failing.
On 14 March 2023 the resident asked the landlord to escalate his complaint to stage 2 of its complaints process as it was not responding to his concerns and the fence and patio remained in place.
The landlord acknowledged receipt of the resident’s stage 2 complaint on 15 March 2023. It said that there had been an “administrative error” which had caused it to miss his stage 2 complaint. It apologised and offered him a food hamper for the delay. The resident refused this offer.
It was positive that the landlord acknowledged that there had been failings in its complaint handling. It accepted that it should have considered the resident’s email of 1 February 2023 as his stage 2 complaint. The landlord’s offer of a hamper along with its apology was reasonable.
On 12 April 2023 the landlord wrote to the resident. It said it was still working to resolve the complaint and would provide a response within 20 working days. This ‘complaint extension’ letter was the same template as the one sent at stage 1. This letter also failed to make clear that the landlord was unable to respond within the timeframes outlined in its own policy and therefore requested an extension.
The Code states that should an extension be required to the complaint response timeframe, this should not exceed a further 10 working days. It was therefore inappropriate of the landlord to state it would respond within 20 working days.
On 2 May 2023 the resident contacted this Service about his complaint. On 19 May 2023 this Service wrote to the landlord and advised it to respond to the resident’s stage 2 complaint.
It took the landlord 78 working days from the date it offered the resident a hamper and an apology to provide its stage 2 complaint response. This was a serious departure from the timeframes in the Code, the landlord’s own policy, and its extension letter. This was inappropriate.
The landlord’s stage 2 response outlined that historically residents had made adaptations to the communal gardens without permission. It said that to be fair to all it would not be carrying out enforcement measures in relation to any of these changes. That the landlord provided this context on the issue was appropriate.
We acknowledge that on receipt of the complaint response the resident advised the landlord that he felt it had “accused” him of making changes without permission. While the letter did point out that the resident had made such changes, it made this reference within the wider background of many residents making similar changes. We do not consider that the landlord’s tone in the letter was blaming or that it unfairly placed fault on the resident.
It is noted that within its stage 2 response the landlord stated that his neighbour had discussed the fencing with residents before erecting it. The letter also stated that the resident had agreed to the fence being lowered rather than removed. We have seen no evidence to support this account nor was this account put forward in the landlord’s stage 1 response which clearly stated that the fence would be removed.
It was however positive that the landlord acknowledged and apologised for the full extent of its communication failings between February 2022 and December 2022.
The landlord offered the resident £100 compensation in relation to its complaint handling. It did not offer any compensation for its communication failings or for its other failings in the handling of the substantive issue. It therefore did not provide the resident with reasonable redress.
On 2 May 2024 the landlord increased its offer of compensation by £100. This was in response to this Service informing it that we would be investigating the complaint.
We note that it was positive that the landlord reconsidered its previous response and offered further compensation. However, as the May 2024 offer was made 10 months after its final response letter and after the complaint had been duly made to the Ombudsman, it cannot be deemed to have provided ‘reasonable redress’ in accordance with paragraph 53.b of the Scheme. A finding of reasonable redress can only be made where the redress is offered prior to a complaint being investigated by the Ombudsman.
We do not consider that the compensation offered by the landlord was proportionate to the distress and inconvenience, time and trouble experienced by the resident. Further compensation had therefore been awarded.
Overall, the landlord:
1. Was not clear within its extension request.
2. Did not acknowledge or apologise for its complaint handling delays in its stage 1 response.
3. Failed to acknowledge the full extent of its communication issues within its stage 1 response.
4. Delayed unreasonably in logging and responding to the stage 2 complaint.
5. Introduced new information within its stage 2 response that contradicted its previous response and the information within its records.
6. Failed to offer proportionate compensation for all identified failings.
We therefore consider there was maladministration in the landlord’s complaint handling.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
1. Maladministration in the landlord’s response to the resident’s concerns that a neighbour had erected a patio and fence without permission.
2. Maladministration in the landlord’s handling of the complaint.

Orders and recommendations

Orders

Within 28 calendar days of the date of this report the landlord must:
1. Apologise to the resident for the failings identified in this report in line with the Ombudsman’s remedies guidance.
2. Pay the resident £550 compensation comprising:
  1. £250 for distress and inconvenience, time and trouble in relation to the landlord’s response to the resident’s concerns that a neighbour had erected a patio and fence without permission.
  2. £300 for distress and inconvenience, time and trouble in relation to its complaint handling.
  3. This compensation includes the £200 previously offered by the landlord. If it has already paid this amount this should be deducted from the compensation ordered.
3. Facilitate discussions between the resident and his neighbour to see if an agreement can be reached. It may wish to consider offering them mediation if required.

Recommendations

The landlord to consider taking legal advice in relation to its approach to enforcement action for alterations to the communal areas.