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Brighton and Hove City Council (202316755)

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REPORT

COMPLAINT 202316755

Brighton and Hove City Council

28 February 2025


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 the resident’s:
    1. Concerns about the maintenance of communal land.
    2. A request for a separate path.

Background

  1. The resident is a secured tenant of the property, a 1-bedroom flat on the ground floor. He has lived there since May 2012.
  2. In 2021 and 2022, the resident and the landlord discussed the possibility of splitting a communal path at the property. No formal decision was ever made. The resident told us he contacted the landlord in May 2023 to request garden maintenance be carried out on the communal land.
  3. On 24 May 2023, the resident complained to the landlord that the communal area of the garden had become overgrown.
  4. The landlord issued its stage 1 complaint response on 26 May 2023. It stated that as the residents of the block did not pay a service charge for ground maintenance, it was their responsibility to manage these areas.
  5. The resident escalated his complaint with the landlord on 1 June 2023. He questioned why it was the responsibility of the residents when the landlord had confirmed the area in question was communal. The resident also stated he wanted the path that ran along side the communal area to be moved / split to allow him his own pathway to his garden.
  6. The landlord responded at stage 2 on 28 July 2023 and apologised that the resident was disappointed with its earlier response. The landlord summarised its position in relation to the resident’s complaint and said:
    1. Where it took responsibility for a communal area, residents would pay a charge for garden maintenance. As the resident had never been subject to such a charge it did not believe it was responsible for providing a garden maintenance service.
    2. It would require the agreement of all neighbours to change the communal path. This would also cost thousands of pounds. The landlord did not believe there would be a need for this work to take place.
  7. The resident remained dissatisfied and brought the complaint to this Service.

Assessment and findings

Scope of investigation

  1. The Ombudsman encourages residents to raise complaints with their landlords in a timely manner, so that the landlord has a reasonable opportunity to consider the issues while they are still ‘live’, and while the evidence is available to reach an informed conclusion on the events which occurred. As the substantive issues become historical it is increasingly difficult for either the landlord, or an independent body such as the Ombudsman, to conduct an effective review of the actions taken to address those issues.
  2. In his correspondence with us, the resident has raised similar matters that occurred before those subject to this complaint. These issues have not been through the landlord’s complaint process. In the interest of fairness, the scope of this investigation is limited to matters which occurred from October 2022 and completed the landlord’s internal complaints procedure on 28 July 2023. This is because the landlord needs to be given a fair opportunity to investigate and respond to any reported dissatisfaction with its actions about the remaining matters, before the involvement of this Service.

Maintenance of communal land

  1. The resident lives in a block containing 4 flats. Each flat has its own front door and an allocated rear garden space. Each tenant is responsible for their own garden space. The 2 ground floor flats, including the resident, have direct access to their own garden from their property. The first-floor flats access their garden via a communal path that runs down the side of the property.
  2. Next to the communal path is a narrow strip of land. Communication between the landlord and the resident dated 2019, confirms that the strip of land is a communal area.
  3. The resident states that during May 2023, he contacted the landlord several times to report that the strip of land had become overgrown. The landlord has said it had no record of these calls.
  4. On 24 May 2023 the resident complained to the landlord that he had been stung by the nettles twice and his phone calls to report the matter had not been returned. He stated he would employ a contractor to carry out the work and would send the invoice to the landlord.
  5. The landlord responded 2 days later with its stage 1 complaint response. The landlord confirmed the strip of land was a communal area. It said that because the resident did not pay a service charge, the expectation was for the resident and his neighbours to manage the communal area themselves. This response was echoed in the landlord’s stage 2 response dated 28 July 2023.
  6. The landlord’s records confirm that the resident does not pay a service charge for the property. However, the tenant handbook features guidance on gardens. It states that tenants are “required to maintain their own gardens”. The strip of land complained of was not part of the residents own garden.
  7. The handbook also states:
    1. Some of the estates have shared grassed areas, which the landlord is responsible for.
    2. The landlord maintains landscaped areas, cuts the grass, and prunes shrubs and hedges.
  8. The information in the handbook is supported by the tenancy agreement. The resident’s tenancy agreement is historic and does not contain the full conditions of the tenancy. However, the landlord has provided a blank tenancy agreement and has confirmed the conditions as being applicable to the resident. The agreement states the landlord will keep communal grounds and landscaped areas reasonably clear and tidy.
  9. This Service has seen no evidence of any policy or agreement that suggests residents are responsible for the maintenance of the communal area at this property. The impact to the resident is minimal given he is able to access his rear garden without passing the communal strip of land. However, the landlord’s refusal to assist the resident was against its own policy and was unreasonable.
  10. This leads to a determination of service failure in the landlord’s handling of concerns regarding maintenance of the communal land. An order has been made for the landlord to pay the resident £50 compensation for the time and trouble caused. This is in line with the Ombudsman’s remedies guidance for service failure where the impact the resident was minimal.

Request for a separate path

  1. The evidence shows the resident and the landlord were considering alterations to the communal path from 2021. The landlord’s notes from a meeting with the resident in October 2021 recorded that he had offered to complete the work himself.
  2. During a phone call between the resident and the landlord in October 2022, the landlord agreed to consider the resident’s request for the communal path to be split, so he did not have to share the path with other residents. Landlord’s notes of the call recorded:
    1. The resident’s family were builders and were happy to undertake the work.
    2. The proposal would solve a lot of problems as the communal path was a cause of tension between the residents.
    3. It was likely the new path would be narrow, but it was possible.
    4. The resident was unable to access the internet so it would not be easy for him to make a request.
  3. The landlord’s alteration and improvements procedure sets out the requirements for requesting an alternation to a property. It states the landlord will not normally refuse permission for works unless the work is likely to cause a nuisance to neighbours.
  4. The procedure states that all alteration requests must be made online only. It also states that the landlord can complete the form on behalf of a tenant if they do not have the ability, or the support, to do it themselves. It is not clear whether the resident submitted a request or whether any support was offered to him to do so at this stage.
  5. In escalating his complaint on 1 June 2023, the resident stated he wanted the path split to separate his own garden from the communal area. The landlord included this in its stage 2 response dated 28 July 2023. The landlord refused the request on the grounds that it would be expensive and that all of the neighbours would need to agree as it would impact on their passage to the garden areas. There is no evidence to suggest the landlord advised the resident to make a formal application.
  6. It is important to note that social landlords have limited resources and are expected to manage these resources responsibly, to the benefit of all their residents. The landlord stated that the works the resident was requesting were expensive and would impact upon other tenants in the block. In the interest of managing its resources appropriately, the landlord was reasonable in informing the resident that the works would not be possible.
  7. However, the landlord did not follow its policy and advise the resident to make a formal application. The resident has told us he is happy to pay for the works and believes he has the support of his neighbours. Had the landlord followed its policy, this information could have been taken into consideration before an informed decision was made on the request. By deviating from its policy, the landlord has not afforded the resident access to a fair review of his request, and this was unreasonable.
  8. This leads to a determination of service failure in the landlord’s handling of the resident’s request for a separate path. An order has been made for the landlord to pay the resident £100 compensation for the time and trouble caused

Determination

  1. In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s handling of concerns regarding the maintenance of communal land.
  2. In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s handling of the resident’s request for a separate path.

Orders and recommendations

  1. Within 4 weeks of the date of this report, the landlord must:
    1. Provide the resident with a written apology for the failings identified in this report.
    2. Pay directly to the resident £150 compensation, made up of:
      1. £50 for its failures in handling concerns regarding maintenance of the communal land.
      2. £100 for its failures in handling a request for a separate path.
    3. Carry out maintenance to the area of communal land at the property, in line with the tenancy agreement and tenant handbook. The landlord will provide the resident and this Service details of the arrangements it will put in place to maintain the area in accordance with the tenants handbook.
    4. Support the resident to make an online application for the path to be altered in line with its alterations and improvements procedure.
  2. The landlord should reply to this Service with evidence of compliance with the orders within the timescale set out above.